Her Majesty the Queen - v. -, 2012 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 015 Date: January 6, 2012 Informations: 24391049 & 24391050 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mitchell John Helary Appearing: Mr. Dale N. Blenner-Hassett For the Crown Mr. Ronald P. Piché For the Accused RULING ON VOIR DIRE S.I. ROBINSON , J [ 1 ] Mitchell John Helary of La Ronge, Saskatchewan stands charged in Information 24391049 with four counts alleging that on March 11, 2010, at La Ronge, he did:

1. Unlawfully possess a substance included in

Schedule II, to wit: Cannabis Marijuana in an amount not exceeding 30 grams, contrary to subsection 4(1) of the Controlled Drugs and Substances Act ; 2. Unlawfully possess a substance included in

Schedule II, to wit: Cannabis Resin in an amount not exceeding one gram, contrary to subsection 4(1) of the Controlled Drugs and Substances Act ; 3. Traffic in a substance included in

Schedule II, to wit: Cannabis Marijuana not exceeding three kilograms, contrary to subsection 5(1) of the Controlled Drugs and Substances Act ; 4. Possess a substance included in

Schedule II, to wit: Cannabis Marijuana not exceeding three kilograms for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The accused further stands charged in Information 24391050 with another three counts alleging that on March 11, 2010, at La Ronge, he did: 1. Have in his possession a weapon, to wit: sap gloves, for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code ; 2. Have in his possession a weapon, to wit: a curved blade knife, for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code ; 3. Have in his possession proceeds of property: Canadian currency, of a value not exceeding five thousand dollars, knowing that all of the proceeds of the property were obtained by the commission in Canada of an offence punishable by indictment, contrary to subsection 354(1) of the Criminal Code . [ 3 ] The trial on Informations 24391050 and 24391050 commenced before me at La Ronge on October 27, 2011.

With the agreement of Crown and defence, I ordered that the trial on both Informations would proceed simultaneously since the charges set out in them arose from closely related events. [ 4 ] In this case, the accused’s counsel, Mr. Piché, in a Notice of Motion dated August 8, 2011, gave notice that he sought to have a stay of proceedings entered with respect to the accused’s charges on the grounds that the accused’s rights under sections 7 , 8 , 9 and 12 of the Canadian Charter of Rights and Freedoms had been violated. At the outset of the trial, Mr.

Piché also indicated that he would be seeking, by way of alternative relief, to have evidence excluded on the grounds that the accused’s Charter rights had been violated. Accordingly, once the trial commenced, I directed a voir dire to determine whether there had been any violation of the accused’s rights and, if so, whether he might be entitled to a remedy. At the close of the voir dire , I adjourned for decision with counsel given leave to file written arguments. [ 5 ] I would ordinarily give a synopsis of the facts.

However, the circumstances of this case are such that a more detailed review of the facts is in order. I will therefore summarize the evidence of the four police officers called as Crown witnesses on the voir dire and the evidence of the accused’s parents called as defence witnesses. Evidence of Cst. Keith Ackerman [ 6 ] Cst. Keith Ackerman is an RCMP officer stationed in La Ronge.

He testified that on March 10, 2010, he was at an Ice Wolves hockey game in La Ronge with other RCMP officers when, at about 7:30 p.m., an informant told him that one Samantha Tingley would be coming to La Ronge from Saskatoon at about 11:00 p.m. with marijuana. The officers then went back to the La Ronge RCMP detachment to come up with an action plan.

[ 7 ] After going back to the detachment, Cst. Ackerman and one Cst. Kenny went on patrol in an unmarked police vehicle. At about 10:20 p.m., they saw a black Toyota Corolla vehicle matching the informant’s description of Samantha Tingley’s vehicle. They followed this vehicle onto East Crescent in La Ronge where they saw it pull up in front of a residence. They then engaged the emergency equipment on their police vehicle. At this time, one Britta Neumann approached the stopped vehicle. The police officers told Ms. Neumann to step away. They then dealt with the occupants of the stopped vehicle. Cst.

Kenny arrested the driver, Samantha Tingley, while Cst. Ackerman arrested a passenger, one Cody Rice. Both Ms. Tingley and Mr. Rice were arrested for “possession for the purpose of trafficking.” [ 8 ] Cst. Ackerman testified that he knew Britta Neumann and Samantha Tingley to be acquaintances and friends. However, with respect to Britta Neumann, Cst. Ackerman testified that, “She had nothing to do with this file.” He also testified that Ms. Neumann was not interviewed in relation to the file. [ 9 ] In examination-in-chief, Cst.

Ackerman referred only to Britta Neumann as a witness to the stopping and arrest of Samantha Tingley and Cody Rice. However, on cross-examination, he mentioned that Britta Neumann’s father had also come from his house and asked if he could stand by as an observer. Cst. Ackerman also then, for the first time, referred to “multiple people walking by on the street” but did not elaborate on who these people were or how far away they might have been. [ 10 ] Cst. Kenny turned Samantha Tingley and her cell phone over to Cst. Ackerman and, at approximately 10:30 p.m., Cst. Ackerman examined the phone.

In examination-in-chief, Cst. Ackerman testified that from an examination of Ms. Tingley’s cell phone text messages, it appeared that Ms. Tingley and the accused had met at a cemetery at 10:07 p.m. that same evening. On cross- examination, Cst. Ackerman agreed that he must have been mistaken on that point as the texts transcribed in the Information to Obtain a Search Warrant (a copy of which was entered as Exhibit D-2 on the voir dire ) did not confirm that a meet took place at a cemetery. However, in fairness to Cst. Ackerman, assuming the text messages found on Ms.

Tingley’s cell were accurately set out by him in the Information to Obtain a Search Warrant, the text messages do suggest that a meet between Ms. Tingley and the accused did take place at another location. [ 11 ] It might be noted that Cst. Ackerman made no mention of Ms. Tingley’s cell phone containing messages that referred to Ms. Neumann or her father in any way. [ 12 ] During his testimony, Cst. Ackerman was in possession of the cell phone taken from Ms. Tingley. However, Cst.

Ackerman explained it was no longer possible to access the information on the cell phone since either it would not accept an electrical charge or it would not turn on. Whatever the case, the phone, which ordinarily might have been the best evidence respecting Ms. Tingley’s text messages, was not tendered as an exhibit in the voir dire . [ 13 ] Cst. Ackerman testified that at 10:50 p.m., the police received information from another police informant advising that the accused had come into possession of a quantity of marijuana in half pound bags.

This same informant described the accused’s vehicle as being a white Chevrolet Lumina. [ 14 ] Cst. Ackerman called both Cst. Carter of the La Ronge RCMP and Sgt. Wintermute of Saskatoon for advice on how he should next proceed. He testified that those officers advised him that there should be a “freeze” of the accused’s residence while a warrant was being obtained. Cst. Ackerman himself then concluded that there should be a freeze of the accused’s residence to insure the preservation of evidence.

He testified that his fear was that someone might tip off the accused that the police knew he had marijuana in his possession. This might lead the accused to destroy the marijuana, possibly by flushing it down a toilet. [ 15 ] On cross-examination, Cst. Ackerman conceded that neither his police notes nor his six-page General Occurrence Report made with respect to the investigation of this matter contain any reference to a fear that evidence would be destroyed if the accused’s residence was not frozen. [ 16 ] After making the decision to freeze the residence, Cst.

Ackerman and other officers went to the Helary residence. This was on March 10, 2010, at 11:30 p.m. The police knocked on the door and Mr. Terry Helary, the accused’s father, answered. He was told that, “His house was being frozen so that we could obtain a search warrant.” No request for consent to enter was made, but Cst. Ackerman, Cst. Kenny, Cst. Salzl, Cst. McNeil and Cst. Moorhead did enter the residence. The officers were in uniform and outfitted

with sidearms, batons and pepper spray. When Cst. Ackerman was asked on cross-examination as to the reaction of the accused’s parents, he said, “They appeared to be shocked and in disbelief as to why we were there.” [ 17 ] The people present in the Helary residence when the police arrived were the accused, the accused’s parents and the accused’s sister. The accused’s sister was in a bathroom when the police first arrived. [ 18 ] Upon entering the Helary residence, Cst. Ackerman went from room to room to check for other persons who might be a risk to officer safety.

He denied that he took any steps to search for controlled substances at this time. [ 19 ] After the Helary residence had been entered by police, Cst. Ackerman went back to the La Ronge RCMP detachment office with Cst. Carter to draw up an Information to Obtain a Search Warrant. [ 20 ] In paragraph 12 of the Information to Obtain, Cst. Ackerman, as Informant, stated that while checking for other persons in the Helary residence, he could smell a strong odour of cannabis marijuana in a room belonging to a male person. [ 21 ] In paragraph 13 of the Information to Obtain, Cst.

Ackerman stated that on March 11, 2010, at 1:00 a.m., Cst. Kenny of the La Ronge RCMP had seized a cell from the accused at the Helary residence and, after searching it, had determined that its number was 306-420-7798 (a number matching the number that Samantha Tingley had been texting and telephoning to from her cell phone). [ 22 ] In paragraph 15 of the Information to Obtain, Cst. Ackerman stated that On March 11, 2010, at 1:31 a.m., Cst.

Kenny had telephoned him to advise that he could smell the odour of cannabis marijuana coming from the trunk of the white Chevrolet Lumina parked at the Helary residence. [ 23 ] In paragraph 17 of the Information to Obtain, Cst. Ackerman stated he had made queries on the Police Reporting and Occurrence System (PROS) computer and had learned that the accused was convicted on a “drug-related charge” as a young offender in 2006 and given probation. [ 24 ] Once a search warrant had been obtained from a Justice of the Peace, Cst. Ackerman and Cst. Carter returned to the Helary residence to execute the warrant.

Execution of the warrant began in the early morning of March 11 at 3:04 a.m. [ 25 ] The first place searched was the white Chevrolet Lumina parked outside the Helary residence. Using keys obtained from the accused, the trunk of the car was opened and searched. Inside the trunk, the police found a red duffle bag containing numerous empty plastic bags, four bags of marijuana weighing about a half pound each, a box of Ziplock bags, a plastic water bottle with the top cut off, and a black dog dish.

Also found in the trunk was a pair of weighted “sap” gloves designed to protect the user’s knuckles and a metal baseball bat. In the glove compartment of the vehicle, police found a large knife, ZigZag rolling papers, and a pair of scissors. [ 26 ] After the white Chevrolet Lumina had been searched, the police searched the accused’s bedroom inside the Helary residence.

Here, they found numerous items including a small bag containing what appeared to be marijuana roaches, a tinfoil packet of hashish, a bag of what appeared to be marijuana stems, a pair of scissors, two grinders, $520.00 in cash, and three grams of marijuana in a pair of jeans. Evidence of Cst. Jeff Carter [ 27 ] Cst. Jeff Carter is a member of the RCMP who, in March 2010, was stationed in La Ronge working on drug cases and other matters. On March 10, 2010, at about 11:30 p.m., he received a call from Cst.

Ackerman who informed him that he had made a vehicle stop looking for drugs but that the drugs were, by then, somewhere else. Cst. Carter recommended that Cst. Ackerman “do a freeze of the house” (presumably the accused’s house) to preserve evidence but also suggested that Cst. Ackerman get a second opinion. Cst.

Carter later got a second call from Cst. Ackerman who said that he had spoken to someone from the “Saskatoon Integrated Drug Unit” who had informed him that “he had enough grounds to freeze the house.” [ 28 ] At around midnight, Cst. Carter went down to the La Ronge RCMP detachment office to help Cst. Ackerman draft an Information to Obtain a Search Warrant. At around 2:00 a.m., a Justice of the Peace attended at the La Ronge RCMP detachment office to receive the Information to Obtain a Search Warrant and issue a warrant. [ 29 ] Cst. Carter was then involved in executing the search warrant. He, Cst.

Ackerman and other officers took the warrant to the Helary residence. At the residence, Cst. Carter explained the warrant to the accused’s father, the accused’s mother and the accused himself. Cst. Carter understood that the accused’s 17-year-old sister was asleep upstairs, but he did not talk to her. Once the warrant had been explained, a search of the Helary property began with the police first looking at a white Chevrolet Lumina automobile parked outside the house. The police were unable to open the trunk of the vehicle until Cst. Carter obtained the vehicle’s keys from the accused.

When the trunk was searched, the police found a duffle bag containing several bags of marijuana. Inside the accused’s home, Cst. Carter was involved with Cst. Ackerman in searching the accused’s bedroom. Here, the two officers found score sheets, a scale, a small amount of hash, and some cash. Evidence of Sgt. Robin Wintermute [ 30 ] Sgt. Robin Wintermute is a sergeant with the Saskatoon Police Service and has experience in drug-related matters. On the evening of March 10, 2010, at 11:15 p.m., he took a telephone call on his cell phone from Cst.

Ackerman concerning “multiple pounds of marijuana coming in from Saskatoon to La Ronge.” (Despite any time discrepancy, it seems this call was received after Cst. Ackerman had spoken to Cst. Carter for the first time.) Cst. Ackerman told Sgt. Wintermute that a police source had described a vehicle that would be bringing marijuana into La Ronge. That vehicle had been stopped and two occupants of the vehicle had been arrested. A cell phone seized from the vehicle contained text messages that seemed to indicate that marijuana had already been delivered either to the “Helary residence” or to the accused.

A second police source had also provided information that the accused had come into a large quantity of marijuana. Cst. Ackerman also told Sgt. Wintermute that the stopping of the suspect vehicle and the associated arrest of its two occupants had been observed by a civilian who had been approaching the vehicle and also by a second civilian. [ 31 ] Cst. Ackerman asked Sgt. Wintermute for advice on how to proceed. Sgt. Wintermute advised Cst. Ackerman that he was of the view that the facts provided grounds to obtain a warrant respecting the “Helary home” (presumably the accused’s home) and the accused’s vehicle.

Sgt. Wintermute also told Cst. Ackerman that if he was of the view that the two civilian observers would jeopardize the police investigation, then his advice would be for Cst. Ackerman to “go in and secure that home.” [ 32 ] Sgt. Wintermute was no further involved in the accused’s case and did not take any action based on information Cst. Ackerman provided to him. He simply offered his opinions to Cst. Ackerman. Evidence of Cst. Matthew Kenny [ 33 ] The Crown’s fourth and final witness on the voir dire was Cst. Matthew Kenny of the La Ronge RCMP. [ 34 ] Cst. Kenny was with Cst.

Ackerman when Samantha Tingley’s vehicle was stopped on East Crescent. Cst. Kenny was responsible for arresting Ms. Tingley for trafficking and for transporting her back to the La Ronge RCMP detachment office. [ 35 ] After he dealt with Ms. Tingley, Cst. Kenny was one of the officers who accompanied Cst. Ackerman to the Helary residence on March 10, 2010, to “freeze” the residence. His evidence was that he arrived at the front door of the Helary residence at 11:39 p.m. [ 36 ] Upon arriving at the Helary residence, Cst.

Kenny spoke to the accused’s father and told him that the police were there to “seize the house” or “freeze” it because they had information that there was marijuana in the house and that there were “exigent circumstances.”

[ 37 ] It would appear from Cst. Kenny’s testimony that he saw no problem with the “freeze” of the Helary residence. When asked on cross-examination as to whether he thought the police could enter a home without a warrant, Cst. Kenny replied without hesitation, “Of course we can. Yes.” [ 38 ] Cst. Kenny was also responsible for arresting the accused at the Helary residence at 12:08 a.m. on March 11, 2010. Cst. Kenny arrested the accused on the recommendation of Cst. Carter and on information he had received from Cst. Ackerman that the accused was in possession of a large quantity of marijuana.

This initial arrest of the accused was for possession for the purpose of trafficking. The accused was advised of his right to contact counsel, and it was Cst. Kenny’s understanding that the accused did call a lawyer. [ 39 ] Although Cst. Kenny was called away on another matter during the “freeze” period, he did spend part of this time at the Helary residence. While outside the Helary residence, he checked for marijuana in the trunk of a vehicle by sniffing at the gap between the vehicle’s trunk lid and rear fender. [ 40 ] During the warrant search of the Helary residence, Cst. Kenny was again at the residence.

At 4:07 a.m. on March 11, 2010, he arrested the accused for a second time (apparently on the same charge that gave rise to the initial arrest) and took the accused to the La Ronge RCMP detachment office. Evidence of Theresa Helary [ 41 ] The accused’s mother, Theresa Helary, testified as the first of two defence witnesses on the voir dire . She testified that she is 46 years old and is employed as a supervisor at Service Canada. [ 42 ] Ms. Helary said that in March 2010, she lived at 74 Nunn Street in La Ronge, which address had been the family home since 1994.

She described the house as a large house having a basement, a main floor, an upstairs and a two-car garage. She shared the house with her husband, her son Mitchell (the accused) and a daughter Nicole, aged 16. Another daughter was away at university. [ 43 ] On the evening of March 10, Ms. Helary and her husband had been at a hockey game. Ms. Helary had changed into her nightgown, while her husband remained in his regular clothes. At about 11:30 p.m., the police came to the door and indicated they were coming in. Ms. Helary’s husband asked for a warrant. A police officer replied, “We don’t need a warrant.

We’re seizing your house. We’re taking ownership, and you have to let us in.” Ms. Helary also heard an officer say, “We don’t need a warrant. We’re here to arrest Mitchell.” [ 44 ] Ms. Helary testified that, “I was scared to death.” There were five police officers at the door in uniform and with guns. Further, there was more than one police vehicle at the residence, and one vehicle was completely blocking the short street that the Helarys live on. [ 45 ] The police made it reasonably clear that the Helarys as a group were not free to come and go as they pleased. According to Ms.

Helary, one officer said, “I need to do a search. You’re all under house arrest, and you have to stay in the living room. You can’t go anywhere in the house.” One officer then went running through the whole of the house to check for weapons and other people. [ 46 ] The accused’s sister Nicole had been in an upstairs shower when the police arrived. She came downstairs in her nightgown, crying and asking what was going on. [ 47 ] Ms. Helary did place a call to local La Ronge lawyer, Rick Bell, and had her husband speak to him for legal advice. The telephone conversation was in the presence of the police.

According to Ms. Helary’s husband, Mr. Bell advised that unless there had been a recent change in the law, the police did not have a right to be in a home without a warrant. This information was conveyed to the police. The response was, “We’re not leaving, and we are allowed to do what we are doing.”

[ 48 ] At some point, Ms. Helary was allowed to go upstairs and put underclothes on. However, after that, she and her family were required to stay in the living room. As Ms. Helary put it, they were “under arrest.” If they needed to go to the bathroom, an officer accompanied them and waited outside the washroom. An exemption was finally allowed for the Helarys’ daughter Nicole. She was allowed to go to bed because she had a Grade 10 exam the next day.

However, as she was then unable to sleep, her mother contacted the school the next day to get a postponement of the exam. [ 49 ] It appeared that the accused’s status was different from that of his parents and sister in that he was told he was under arrest and “they read him his rights.” [ 50 ] Ms. Helary said that a police officer arrived with a warrant at around 3:00 a.m. and that a search of their property followed. She said that it was about 5:30 a.m. before the police left. [ 51 ] When asked how she felt about the police presence in her home, Ms. Helary said, “It was horrible.

It was like we were in a nightmare, and I couldn’t really believe what was happening.” She added, “I was afraid because I had never been in trouble with the law before.” Evidence of Terrance Helary [ 52 ] The second defence witness on the voir dire was the accused’s father, Terrance Helary. Mr. Helary testified that he is 53 years old. He has been in La Ronge for 31 years and works as the general manager of a local company. [ 53 ] Mr. Helary testified that the police arrived at the family home on March 10, at about 11:30 p.m. He heard the door bell ring, and the family dogs started barking.

When he answered the door, there were four or five RCMP officers there. In Mr. Helary’s words, “They immediately told me that they were seizing the house and we were all under arrest.” Mr. Helary asked the police if they had a warrant. The police replied that they did not, and Mr. Helary indicated he did not want to let them in. He was then told that if he did not let them in, he would be charged with obstruction of justice. [ 54 ] Mr. Helary could not recall the police initially giving a reason for why they were in the family home.

He did concede, however, that the police may have said that it was because of his son’s involvement with marijuana and that he somehow failed to hear this being said. In any event, he did eventually come to understand that his son’s alleged involvement in drugs was the reason the police were present. [ 55 ] Mr. Helary was cross-examined on whether the police had indicated that he and his family were told they were “under arrest.” Mr. Helary was adamant that the term “under arrest” was used and that it applied to him, his wife, his son and daughter. I accept his evidence on this point. [ 56 ] Mr.

Helary testified that after the police entered his family’s home, one officer spent 15 minutes to a half hour searching the residence. On cross-examination, he agreed that the officer did not return with anything. [ 57 ] Mr. Helary did speak on the telephone to lawyer Rick Bell. Following this conversation, he told the police that Mr. Bell had said the police had no right to be there and that he could physically throw them out. The police response was that if Mr. Helary should try this, he would be charged. [ 58 ] Mr.

Helary also placed a telephone call to the RCMP staff sergeant in La Ronge asking if the police had a right to be in his home. The staff sergeant’s response was that the police did have the right to be there.

[ 59 ] Mr. Helary testified that at around 3:00 a.m., an officer arrived with a search warrant. The warrant was served on him, his wife and his son and was explained to them. On cross-examination, Mr. Helary made the point that this was 3 ½ hours after the police had first arrived in his home. [ 60 ] When asked in examination-in-chief about the police presence in his home, Mr. Helary said, “Well, honestly, I felt like we were in a police state. This is Canada. I always thought you had to have a search warrant to enter a house.” Issues [ 61 ] This case raises the following issues: 1.

Did the police have the power to enter the Helary residence without a search warrant? 2. Did the police have the power to enter the Helary residence and arrest the accused? 3. If there has been a breach of the accused’s Charter rights, is he entitled to a remedy? Canadian Charter of Rights and Freedoms [ 62 ] In my view, the issues engage 7, 8, 9 and 24 of the Canadian Charter of Rights and Freedoms . Those sections read: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8.

Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Did the police have the power to enter the Helary residence without a search warrant? [ 63 ] Counsel for the Crown has suggested that a distinction be drawn between an entry onto property to “freeze” or secure the scene and an entry made to conduct a search. Such a distinction may perhaps seem useful. However, case law makes it clear that both types of entry will be seen as entries to search.

[64] In R. v. Silveira, (SCC), [1995] S.C.J. No. 38, [1995] 2 S.C.R. 297, a case involving charges under theNarcotic Control Act, police arrested the accused for selling cocaine and then entered his residence without a warrant to preserveevidence while a search warrant was being obtained. When a search warrant was obtained about an hour later, police found 10 ounces ofcocaine and a large amount of cash in the accused’s residence.

In deciding whether the initial entry by the police was a search, Cory, J,for the majority, wrote at paragraph 140: In my view, the respondent very properly conceded that the entry by the police, undertaken in order to secure the premises and preventthe destruction of evidence, was indeed a form of search not authorized by law. There is no place on earth where persons can have agreater expectation of privacy than within their "dwelling-house".

No matter how good the intentions of the police may have been, theirentry into the dwelling-house without a warrant infringed the appellant's rights guaranteed by s. 8 of the Charter. Moreover, there can beno artificial division between the entry into the home by the police and the subsequent search of the premises made pursuant to thewarrant. The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line betweenthem in order to claim that, although the initial entry was improper, the subsequent search was valid.

It follows, then, that the question tobe resolved is whether or not the admission of the cocaine and the money discovered during the search could bring the administration ofjustice into disrepute. [65] A similar view was taken in R. v. McCormack, 2000 BCCA 57 , [2000] B.C.J. No. 143 (B.C.C.A.). In that case, theaccused was arrested for trafficking in cocaine. The arrest took place in the underground parking lot of the apartment complex where helived.

As the accused’s arrest was observed by a woman whom police believed to be the accused’s girlfriend who might take steps todestroy evidence in the accused’s apartment, the police decided to enter and secure the accused’s apartment until a search warrant couldbe obtained. In paragraph 5 of the McCormack decision, Saunders, JA, wrote: It was conceded by the Crown that the facts are so similar to those in R. v.

Silveira, (SCC), [1995] 2 S.C.R. 297, that it isnot possible to draw a distinction between the initial warrantless police entry to secure the house and the subsequent search conductedpursuant to the search warrant. [66] Mere entry into a dwelling by police can be a search and seizure because

section 8 of the Charter goes beyond the protectionof one’s property and extends to the protection of one’s privacy. This was made clear by the Supreme Court of Canada in the earlypost-Charter case of Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. Several years later, in R. v. Law, 2002 SCC10 , [2002] S.C.J. No. 10, [2002] 1 S.C.R. 227, at paragraph 15, Bastarache, J, on behalf of the Court, succinctly stated: It has long been held that the principal purpose of s. 8 of the Charter is to protect an accused's privacy interests against unreasonableintrusion by the State.

Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a "search"within the meaning of the provision: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, R. v. Edwards, (SCC), [1996] 1 S.C.R. 128. Such conduct may also be characterized as a "seizure", the essence of which is the "taking of a thingfrom a person by a public authority without that person's consent": R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, per LaForest J., at p. 431. [67] There is no question that the police entry into the accused’s home on March 10, 2010, comprised a significant invasion of hisprivacy. After the police arrived, the accused and his family were held for 3 ½ hours before a judicial warrant arrived. During thistime, any affairs the accused might normally have conducted at home and in private were completely interrupted. Further, just after theinitial entry, Cst.

Ackerman went through the accused’s home for 15 minutes to a half hour. [68] Identifying a warrantless entry onto property to secure the scene as an actual search is important because a warrantless searchwill be prima facie unreasonable under

section 8 of the Charter and will require the party seeking to justify the search to rebut thepresumption of unreasonableness: Hunter v. Southam Inc., supra. In the case before me, there is no question that there was an entry intothe Helary home without a warrant. As this warrantless entry was prima facie unreasonable, the onus is on the Crown to show reasonsto justify it. [69] In R. v. Collins, (SCC), [1987] S.C.J. No. 15, [1987] 1 S.C.R. 265, Lamer, J, referred to the finding in Hunterv.

Southam Inc. that a warrantless search will raise a presumption of unreasonableness and then, at paragraphs 22 and 23, stated: This shifts the burden of persuasion from the appellant to the Crown. As a result, once the appellant has demonstrated that the searchwas a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.

A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried outis reasonable. . . . [70] If the Crown is to rebut the presumption of unreasonableness, it must first show that the search was authorized by law. In thecase before me, it would have to show there were exigent circumstances that permitted the police to go into the Helary home without asearch warrant.

The “exigent circumstances” exception to the general rule that a search warrant is required before police can enter uponproperty to conduct a search has been codified in two pieces of legislation—section 487.11 of the Criminal Code which deals withgeneral search warrants and tracking device warrants and subsection 11(7) of the Controlled Drugs and Substances Act which deals withdrug cases such as the one before me. [71] Subsection 11(7) of the Controlled Drugs and Substances Act reads:

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) [the subsections setting out the powers of apeace officer having a search warrant] without a warrant if the conditions for obtaining a warrant exist but by reason of exigentcircumstances it would be impracticable to obtain one. [72] The term “exigent circumstances” has not been defined in legislation. However, several cases have done so. A succinctdefinition is set out in the case of R. v. Grant, (SCC), [1993] S.C.R.

No. 98, [1993] 3 S.C.R. 223 where, at paragraph 32,Sopinka, J, on behalf of the Court, wrote: Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance ofthe evidence if the search or seizure is delayed.

While the fact that the evidence sought is believed to be present on a motor vehicle,water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for suchconveyances. [emphasis added] [73] On the facts before me, I am unable to find that there were exigent circumstances allowing the police to enter onto the Helaryproperty or into the Helary home without a warrant. The Crown argues that the police had to act in the manner they did in order toprevent the accused from destroying any marijuana in his possession, possibly by flushing it down a toilet.

However, in advancing thisargument in his written brief, counsel for the Crown does not actually refer to any circumstances that might be considered exigent. [74] In his written argument, counsel for the Crown refers to McCormack, supra.

This reference is perhaps meant to suggest thatto find an exigent circumstance, I need only consider that the police stop of Samantha Tingley was observed by two individuals, namely,one Britta Neumann and her father, and that there was a risk that these individuals might let the accused know that the police were awarehe was in possession of marijuana. [75] On the evidence before me, I am unable to find that there was a likelihood or even a possibility that the accused would bewarned by anyone that the police knew he might have marijuana in his possession.

With respect to Britta Neumann, the evidence of Cst.Ackerman militates strongly against any suggestion that she might tip off the accused. In his testimony, Cst. Ackerman stated quiteforcefully that, “She had nothing to do with this file.” As for the involvement of Ms. Neumann’s father, it would be fanciful andinappropriate to say that he might want to tip off the accused. The only evidence led regarding him suggests that he was a concernedparent conducting a watching brief while the police arrested someone his daughter knew. [76] Cst.

Ackerman did mention during cross-examination that there were also “multiple people walking by on the street.” However, Cst. Ackerman did not refer to any such people during his examination-in-chief. Nor does it appear that he mentioned them inhis early telephone conversations with Sgt. Wintermute and Cst. Carter. I am therefore unable to find that anyone other than BrittaNeumann and her father took note of the police stop of the Samantha Tingley vehicle. [77] I must conclude that there were no objective grounds for Cst.

Ackerman to conclude that someone might tip the accused offthat the police knew he had marijuana in his possession. I would go further and say I am unable to find that Cst. Ackerman had asubjective belief that this was the case. As noted earlier, neither his police notes nor his six-page General Occurrence Report made anymention of a fear that evidence would be destroyed if the accused’s home was not secured.

[78] In McCormack, supra, the fact that a woman saw police arrest the accused for trafficking in cocaine was found to give rise toexigent circumstances that gave the police the right to enter the accused’s apartment without a warrant. The police entry was seen asnecessary to avoid having the woman who witnessed the accused’s arrest go into his apartment and destroy valuable evidence. ButMcCormack is easily distinguished from the present case.

In McCormack, the woman in question fit the description of the accused’sgirlfriend, there was evidence that the girlfriend supported the accused’s involvement in the drug trade, and there was evidence tosuggest that the accused’s girlfriend was indeed on her way to his apartment. [79] Assuming that the stopping of Samantha Tingley’s vehicle somehow gave rise to exigent circumstances (and I do not acceptthis to be the case), I would find that any exigent circumstances that may have arisen were no longer in existence at the time the policeentered upon the Helary property.

The police must have stopped Samantha Tingley’s vehicle shortly before 10:30 p.m. on March 10,2010, because Cst. Ackerman had her cell phone in his possession and was examining it at about 10:30 p.m. It was not until about 11:30p.m. or 11:39 p.m. (per Cst. Kenny) that the police entered the Helary home. If the accused had been tipped off by someone seeing thepolice stop of the Tingley vehicle, one would expect that any evidence he wished to destroy would have been dealt with within momentsor minutes—by 10:30 p.m. or very soon thereafter.

Accordingly, exigent circumstances would have ceased to exist about one hourbefore the police entered the Helary home. [80] Assuming again that the stopping of Samantha Tingley’s vehicle gave rise to exigent circumstances, there is yet anotherproblem with the Crown’s case. That is that after the initial entry onto the Helary property, police engaged in actual evidence-gatheringsearches. A plain reading of subsection 11(7) of the Controlled Drugs and Substances Act suggests that any entry to secure propertybecause of exigent circumstances should interfere as little as possible with an accused’s privacy rights.

Here, prior to the issue of anysearch warrant, Cst. Kenny seized a cell phone from the accused and searched its contents. Further, outside the Helary house, Cst.Kenny conducted an active sniff search of the Chevrolet Lumina automobile by holding his nose to the gap between the vehicle’s trunklid and fender and smelled marijuana. These key pieces of information made their way into the Information to Obtain a Search Warrantsworn by Cst.

Ackerman. [81] I might add that, notwithstanding Crown counsel’s argument to the contrary, I have no hesitation in finding that a sniff searchby a police officer is no less a search than the sniff searches by dogs dealt with by the Supreme Court of Canada in R. v. Kang-Brown,2008 SCC 18 , [2008] S.C.J. No. 18, [2008] 1 S.C.R. 456 and R. v. A.M., 2008 SCC 19 , [2008] S.C.J. No. 19, [2008] 1S.C.R. 569. [82] It is worth noting that the police in the present case apparently failed to consider any action plan less drastic than entering aprivate dwelling without a warrant. Although Cst.

Ackerman was apparently primarily concerned that someone may tip off the accusedas to what the police were up to and that the accused would then flush marijuana down a toilet, a more reasonable fear would be that theaccused would leave his residence with any supply of marijuana he had. However, this is a situation that could have been dealt with byregular police surveillance. Were the accused to leave his home by foot or by vehicle, he could have been stopped by the police. [83] The police might also have benefited from a speedier warrant process.

No explanation was given as to why it took some 4 ½hours, from 10:30 p.m. to 3:00 a.m., to obtain a warrant. If a judge or justice of the peace was not readily available to review a warrant,the telewarrant process could perhaps have been used. [84] I find that the police entry onto the Helary property without a warrant and the subsequent collection of evidence infringed theaccused’s rights under sections 7, 8 and 9 of the Charter.

Did the police have the right to enter the Helary residence and arrest the accused? [85] At 12:08 a.m. on March 11, 2010, about a half hour after the police entered the Helary residence, Cst. Kenny arrested theaccused for possession for the purpose of trafficking. What stands out all too starkly is that this arrest was made inside the accused’shome after the police had entered without warrant. I have already determined that the police did not have grounds to enter the residencewithout a warrant to preserve evidence.

But could they enter without a warrant for the purpose of arresting the accused? [86] Since the decision of the Supreme Court of Canada in R. v. Feeney, (SCC), [1997] 2 S.C.R 13, the Criminal

Code has been amended by the addition of sections 529 to 529.5. These sections set out the procedure for obtaining a warrant to arrestsomeone inside a dwelling and for entering a dwelling to arrest someone without a warrant. When a peace officer may enter a dwellingto arrest without warrant is governed by

section 529.3. That

section reads: 529.3(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law,the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to insection 529 or 529.1 authorizing an entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would beimpracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death toany person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [87] There is no suggestion in the present case that the police needed to arrest the accused to prevent imminent bodily harm ordeath to any person. Accordingly, paragraph 529.3(2)(

a) has no application. [88] Paragraph 529.3(2)(

b) addresses situations where an entry without warrant is necessary to preserve evidence. Here, theconsiderations are essentially the same as those already addressed with respect to the application of subsection 11(7) of the ControlledDrugs and Substances Act. As already stated, I am unable to find that there was any need to enter the Helary home to preserve evidence. [89] Could the police enter the accused’s residence without a warrant for the purpose of arresting him? As I am unable to findexigent circumstances that might allow such an arrest, the short answer is, “No, they could not.” [90] It follows that the accused’s arrest amounted to an arbitrary detention within the meaning of

section 9 of the Charter. It wasalso a deprivation of his liberty that did not comply with the principles of fundamental justice contemplated by

section 7 of the Charter. Moreover, the arbitrary detention of the accused made the search of him and his home after his arrest and the related seizure of itemsunreasonable within the meaning of

section 8 of the Charter. [91] I find that the entry by police into the accused’s home to arrest him infringed his rights under sections 7, 8 and 9 of theCharter. Is the accused entitled to a remedy? [92] Having found that the accused’s rights under sections 7, 8 and 9 of the Charter have been infringed, I will now turn towhether he is entitled to any remedy under

section 24 of the Charter. In doing so, having earlier concluded that the items seized at theaccused’s home were obtained in a manner that infringed his Charter rights, I will consider whether the items seized by the police at theaccused’s home should be excluded from evidence on the grounds that its admission would bring the administration of justice intodisrepute. [93] In R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out theapproach to be taken by a judge considering whether to exclude evidence.

The Court said that in dealing with this issue, a judge musthave regard to: (1) the seriousness of the infringing conduct; (2) the impact of the breach on the Charter-protected interests of theaccused; and (3) the interest of society in having a case adjudicated on its merits.

[94] With regard to the seriousness of the infringing conduct in the present case, I have no hesitation in stating that the infringingconduct was very serious. A police contingent of five officers entered a private home late at night without warrant, arrested the accusedalong with his parents and sister, and then occupied the home for a full 3 ½ hours before a judicial warrant arrived. The police presencethen continued for another 2 ½ hours. Reflecting back on the evening in question, the accused’s father, Mr. Terrance Helary, said, “Well, honestly, I felt like we were in a police state. This is Canada.

I always thought you had to have a search warrant to enter ahouse.” Although he is not a party to these proceedings, the senior Mr. Helary’s words underscore the gravity of the present case. [95] The conduct of the police involved in this matter is perplexing. It certainly suggests a wilful or reckless disregard for theaccused’s Charter rights. Particularly troubling was Cst. Kenny’s unequivocal assertion that the police had a right to enter a dwellingwithout a warrant. In Grant, McLachlin, CJ and Charron, J, at paragraph 75, stated: . . .

Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated withgood faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, (SCC),[1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregardof the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itselffrom such conduct.

It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion ofthe evidence. [96] Regarding the impact of the Charter breaches on the accused, it is important to note the lengthy 3 ½- hour duration of thepolice intrusion without warrant into the accused’s home. There could be no place where the accused could expect a higher degree ofprivacy than his own home.

Having that expectation disregarded by the police could not help but have a significant impact on theaccused. [97] The testimony of the accused’s parents provides a good indication of the impact the Charter breaches would have had on theaccused. Their testimony respecting the considerable impact of the police entry into their home was what one would expect the averageCanadian citizen, including the accused, to have in such a situation. [98] In his written brief, counsel for the Crown argued that the accused had a diminished expectation of privacy in his homebecause it did not belong to him.

I am unable to accept this argument. There was nothing before me to suggest that any member of theHelary family was not entitled to equal enjoyment of the family home. [99] Counsel for the Crown also suggested that the accused’s vehicle was entitled to a reduced level of privacy. This is areasonable argument. At the same time, however, a vehicle parked on private property should enjoy considerably more protection fromstate intrusion than a vehicle on a public road. [100] I must also consider society’s interest in having the present case adjudicated on its merits.

Marijuana use and marijuanatrafficking are significant problems in the La Ronge community. Sitting in Provincial Court, I routinely read pre-sentence reports thatrefer to the daily use of marijuana by young people. Too often, this use is associated with a lack of school attendance and involvement inproperty crimes committed to obtain funds for the purchase of marijuana. The community as a whole has a vested interest in seeingmarijuana use and trafficking curtailed. [101] The community does want drug traffickers brought to justice.

But the community also wants the rights enshrined in theCharter to be respected by the state. These two interests need not be seen as competing against each other. It is not unreasonable for theaverage citizen to expect that drug laws can be enforced and individual rights can be protected at the same time.

It is my view thatcitizens would be shocked and appalled if, barring very exceptional circumstances, courts were to allow police engaged in drugenforcement to enter private dwellings without a warrant, arrest the occupants and then hold them for several hours. [102] It is true that most of the items seized at the accused’s home were collected after a search warrant was obtained. But some ofthe evidence used to obtain the search warrant was gathered when the accused’s home was entered without a warrant.

It is not entirelyclear that the search warrant would have issued if the Information to Obtain a Search Warrant had not referred to information gathered asa result of the warrantless entry onto the Helary property, namely, the odour of marijuana in a basement bedroom, the accused’s cellphone number, and the odour of marijuana coming from the trunk of the Chevrolet Lumina parked outside the Helary residence.

[103] It might also be noted that the Information to Obtain makes a questionable reference to the accused having a criminal record fora “drug related charge” for which he was convicted and given probation as a young offender in 2006. The reference to this charge isvague as to whether it related to a

summary conviction matter or an indictable matter. If the matter was in fact a

summary matter, theYouth Criminal Justice Act would not allow disclosure of the conviction more than three years after the accused’s probation order hadexpired. [104] In the recent case of R. v. Côté, 2011 SCC 46 , [2011] S.C.J. 46, the Supreme Court of Canada has made the point thatthe fact that evidence could have been discovered independently of any Charter breaches will not necessarily lead to the admission ofthe evidence. Further, the Court discourages speculation where, as in the present case, it is not entirely clear whether evidence couldhave been discovered independently of Charter breaches.

At paragraph 70 of Côté, Cromwell, J for the majority wrote: While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should notbe seen as necessarily leading to admission of evidence. Nor should courts engage in speculation.

As stated in Grant, where it cannot bedetermined with any confidence whether evidence would have been discovered in absence of the Charter breach, discoverability willhave no impact on the s. 24(2) inquiry. . . . [105] The magnitude of the breaches of the accused’s Charter rights in the case before me casts a very dark shadow over all theitems seized by the police at the accused’s residence.

After assessing the impact of those breaches using the principles set out in Grant,supra, it is my view that all of the items seized by the police after they arrived at the accused’s home, either before or after they obtaineda search warrant, should be excluded from the evidence of this case on the grounds that their admission would bring the administrationof justice into disrepute. [106] In the recent case of R. v. Laliberte, 2011 SKPC 190 (Sask. Prov. Ct.), my colleague Nightingale, J dealt with a case wherepolice made an initial entry into a residence without warrant and found what appeared to be cocaine.

A further search after a warrant hadbeen obtained led to the discovery of more drugs and related items. Nightingale, J found that the police entry into the accused’s homebreached her right to be free from unreasonable search and seizure but found that the evidence seized by police should not be excludedunder subsection 24(2) of the Charter. Although the issues in the Laliberte case were similar to those now before me, the facts werenot. I have therefore reached a different conclusion. [107] In his Notice of Motion dated August 8, 2011, Mr.

Piché asked that a stay of proceedings be entered with respect to theaccused’s charges. I do not find it necessary to rule on that request at this time. I will allow both counsel to re-address this issue at theend of the trial if they so wish. [108] I wish to thank both Mr. Piché and Mr. Blenner-Hassett for their helpful submissions. ____________________________________ S.I. Robinson, PCJ