Her Majesty the Queen - v. -, 2022 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 16 Date: April 8, 2022 Information: 991145087 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sean Richard Evanchuk Appearing: A. Clements For the Crown L. Squires For the Accused DECISION ON VOIR DIRE R.D. JACKSON , J I.

INTRODUCTION [ 1 ] Sean Richard Evanchuk stands charged: Count 1 – on or about the 6 th day of November, 2020, at or near Saskatoon, Saskatchewan, did commit robbery against Reagan Night, contrary to section 344(1) of the Criminal Code ; Count 2 – on or about the 6 th day of November, 2020, at or near Saskatoon, Saskatchewan, did have in his possession a firearm, to wit: a CO2 Legends MP Pellet Gun, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code ;

Count 3 - on or about the 6 th day of November, 2020, at or near Saskatoon, Saskatchewan, did have in his possession a firearm, to wit: a CO2 Legends MP Pellet Gun, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code ; and Count 4 - on or about the 6 th day of November, 2020, at or near Saskatoon, Saskatchewan, did have in his possession a firearm, to wit: a CO2 Legends MP Pellet Gun, while he was prohibited from doing so by reason of an order made pursuant to

section 110 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code . [ 2 ] The trial of the matter commenced November 8, 2021, by way of voir dire to address the defendant’s assertion that his

section 8 Charter rights were infringed by the search of the subject premises and that any evidence obtained as a result in regard to items seized therein, should be excluded pursuant to s. 24(2) of the Charter . [ 3 ] By consent, the admissible evidence from the voir dire shall apply to the trial proper. [ 4 ] The Crown called attending Saskatoon Police Service (SPS) search officers, Sgt. Kelly Olafson, Cst. Christopher Martin, Cst. Anthony Neufeld, and SPS Firearms Expert, Matthew Wise. The defence called one witness on the voir dire , Kayla Christina Jacques, the 911 caller and resident of the searched premises. [ 5 ] The following issues emerged for determination: (

a) did the accused have a reasonable expectation of privacy in the searched premises?; (

b) were the police acting under lawful authority when they entered and searched and seized items from the premises pursuant to a 911 firearms call?; (

c) was third party consent given to enter and search the residence, and, if so, was such consent legally valid with respect to the accused’s claimed privacy interests?; (

d) if police entry was lawful, were the items in the residence lawfully seized as being in plain view?; (e) section 24(2) analysis, if required. II.

BACKGROUND [ 6 ] On November 6, 2020, police received an emergency 911 call from a female located at 612 – 222 Lenore Drive, Saskatoon, advising of a domestic dispute with a male, Sean Evanchuk, and that there were drugs and a firearm present. [ 7 ] Several police officers were dispatched on the call, which was considered a high priority situation owing to the presence of the firearm. [ 8 ] En route, it was determined that Evanchuk was arrestable on suspicion of a recent robbery that had occurred within the past 24 hours. [ 9 ] Shortly after arrival, the male identified as the accused, Sean Evanchuk, surrendered to police at the front door of the residence.

He was unarmed, and in the presence of the 911 caller, Kayla Jacques, who appeared unharmed. [ 10 ] As the firearm and other potential victims or perpetrators were unaccounted for, police entered to conduct a search. Whether consent was given to do so by Ms. Jacques is disputed. The lead investigator, Sgt. Olafson, was clear that she had given her permission. Ms. Jacques was equivocal on this point but admitted to memory lapses due in part to intoxication. Regardless, Sgt. Olafson testified that police would have entered in furtherance of the 911 call to do a safety-sweep search.

[ 11 ] In addition to locating the subject firearm in a rear bedroom, police also seized a duffel bag at the top of the stairs leading into the residence, red Nike sandals on the stairs, as well as a Bluetooth JBL speaker, a Celtic basketball ball cap, and two folding knives, all in the bedroom where the firearm was located. These items were seized while clearing the residence, according to police, as being in plain view and fitting the description of stolen items in the recent robbery concerning the accused, Evanchuk. [ 12 ] Several rings were also removed from Evanchuk upon entering SPS detention, which were subsequently seized in relation to the robbery investigation. III. ANALYSIS (

a) Did the accused have a reasonable expectation of privacy in the searched premises? [ 13 ]

Section 8 of the Charter protects rights of the person, not places. The first step in determining whether there has been a breach of s. 8 in this case is to establish that there was a reasonable expectation of such personal privacy in the searched premises. The onus of proving this lies on the applicant on a balance of probabilities. [1] In the present case, the applicant did not testify on the voir dire , the only evidence on his behalf coming from Ms. Jacques.

The Court must, nonetheless, look at the totality of the evidence, both Crown and defence, to determine if the applicant has met his onus. [2] [ 14 ] In Edwards , the Supreme Court stated: A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [ 15 ] There is a dearth of evidence on this point on the present application. The only direct evidence of ownership of the property came from Sgt. Olafson in examination-in-chief : [3] Q: Are you aware of who owned the residence that you guys attended? A: I think it was – I believe it was on both their names – Q. Okay. A. – Ms. Jacque (sic) and Mr. Evanchuk. [ 16 ] Apart from that reference, the only other criteria set out in Edwards was that Mr.

Evanchuk was arrested on scene. [ 17 ] The Court has no evidence otherwise regarding the applicant’s possession or control over the property, sharing of expenses, the ability to regulate access including the right to admit or exclude others, to what extent the applicant held a subjective expectation of privacy and whether same would be objectively reasonable in the circumstances. [ 18 ] In Edwards , the applicant was found not to have a reasonable expectation of privacy in his girlfriend’s apartment notwithstanding that he had a key, stayed there periodically, and kept some clothes and personal possessions there.

However, he contributed nothing to monthly expenses and had no authority to admit or exclude people from the premises.

[ 19 ] In the present case, Ms. Jacques, in cross-examination, made reference to what appeared to be previous court-ordered conditions excluding the applicant from the property: Q: So then on February 18 of 2021 when Sean was arrested at your residence, and you were at the front door telling the police he wasn’t there and they found him hiding under the bed – A: Yeah. Q: - that wasn’t a lie? A: No, it wasn’t. I literally had just gotten home from a birthday party from my friend’s house on Clearwater Drive. I had literally just gotten home. I had no clue he was there.

If he was there and I knew he was there, trust me, I would be the one calling the police. Q: Okay. And the reason his clothes were in the residence was why? A: Because I was folding them and cleaning them away. If I knew Sean was there – I’ve always tried to comply with the law for the most part and if I knew he was there, like I said, I would have been the first one calling the cops.

He was in a state that night which not – was not safe for anybody, so if I knew, I would have made that 911 call. [4] [ 20 ] Further, the Court notes that the applicant’s address on the Informations in regard to the offences charged arising from this incident bear the address of “21 – 1051 Matheson Drive, Saskatoon”, whereas the 911 call emanated from “612 – 222 Lenore Drive, Saskatoon”, the subject premises. [ 21 ] On balance, the Court is not satisfied that the applicant, Mr.

Evanchuk, has demonstrated a subjective or objectively reasonable expectation of privacy in the searched premises and thereby has failed to establish his standing to bring this application. [ 22 ] In the event the Court is in error in this regard, the remainder of the issues shall be addressed. (

b) Were the police acting under lawful authority when they entered and searched and seized items from the premises pursuant to a 911 firearms call? [ 23 ] A search without warrant is presumptively unreasonable. [5] A search or seizure will be reasonable where it is 1) authorized by law; 2) the law itself is reasonable; and 3) the manner in which it is conducted is reasonable. [6] [ 24 ] The benchmark decision for warrantless police entry involving 911 calls is R v Godoy . [7] In that case, police responded to a 911 hang-up call from a potential female victim.

Upon arrival, police were met by a male at the door who refused entry, informing the police that there was no problem.

Police then forced their way in and located the injured complainant inside. [ 25 ] The Supreme Court determined that such entry in these circumstances was justified and lawful, relying first upon the common law doctrine of R v Waterfield, [8] which set out two criteria where police conduct will be justified to enter the residence: 1. the police were acting in the course of their duty when they effected the interference; and 2. the conduct of the police did not involve an unjustifiable use of powers in the circumstances. [ 26 ] The Court further relied upon the statutory authority found in The Police Act , 1990 relating to, inter alia , preserving the peace, preventing crime and assisting victims. [9] [ 27 ] The Court in Godoy cautioned that the intrusion pursuant to a 911 call was not unfettered, stating at para. 22: [22] Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to

ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there.

They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. In Dedman , supra , at p. 35, Le Dain, J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable . A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such course of action is mandated.

Each case will be considered in its own context, keeping in mind all the surrounding circumstances. (I specifically refrain from pronouncing on whether an entry in response to a 911 call affects the applicability of the “plain view” doctrine, as it is not at issue on the facts of the case at bar.) [ 28 ] In the instant case, police responded to a 911 call where the female caller advised that the accused was present, they were fighting, and that there was a firearm as well as drugs present.

The 911 call was terminated by the caller and subsequent attempts to re- connect were unsuccessful. [ 29 ] En route to the call, police ascertained that the accused, Sean Evanchuk, was arrestable on suspicion of a robbery, which had occurred within the previous 24 hours. Additionally, it was noted that this address had a previous history of domestic assaults calls, although charges had not been preferred due to unwillingness of the female complainant to pursue same. [ 30 ] Shortly after arrival, the accused presented himself to the front door and was arrested in the presence of the 911 caller, Ms. Jacques.

At this point, the firearm was unaccounted for, and Ms. Jacques denied even calling 911. This prompted Sgt. Olafson to call the reporting caller’s number, resulting in Ms. Jacque’s phone ringing in response. [ 31 ] Although Sgt. Olafson testified that he was then invited into the premises by Ms. Jacques to retrieve the firearm (discussed infra ), he stated that irrespective, he would have entered to secure the firearm and identify any potential victims or perpetrators. [ 32 ] Sgt.

Olafson’s evidence was that firearm calls were of the highest priority: Q: When you receive any type of call that has to potentially do with a firearm, what’s going through your head as you’re responding to that call? A. First off, if the firearm is being used in a violent – violent way, if there’s anybody with the suspect who has the firearm, who currently is in danger, or possibly has already been injured with the firearm. Public safety is number one in my mind, and then followed by that is the safety of my officers, and then follow that with the safety of the suspect.

Q: And how seriously are those calls treated by the Saskatoon Police? A: The most serious call we attend. Q: In your opinion and experience, would they be – how would you consider the call, whether it be – is it an emergency type of call or a non-emergency type of call? A: Every firearms call is an emergent call, yes. Q: Okay. A: There is a large degree of danger to the public and anybody involved when there’s a firearm involved. [10] [ 33 ] In Sgt.

Olafson’s view, obtaining a warrant which could take hours, would not be practical or safe, having regard to the emergent circumstances and potential danger involving firearms. [ 34 ] The firearm was subsequently located in a rear bedroom, leaning up against the bed. It was described by Ms. Jacques as a pellet gun, however, this rather benign description belies the evidence of the firearm expert, Cst. Thomas Wise, who described it thus: Q: Alright. And in your expert opinion, this particular firearm that was seized, would it be a threat to officers or other people? A: Oh, absolutely, yes.

This firearm is a – it’s a replica of a German MP40 which was a submachine gun in World War II, and it looks

very much identical to the real German MP40, which fires a 9-millimeter cartridge, centre-fire cartridge. It’s identical until you get it in your hands, then you find out – then you look at the markings and find the operation of it and see that it’s not, in fact, an MP40, it’s a BB gun, but they look identical. [11] And further: Q: Okay. So if I understand this currently, and you can correct me if it’s wrong, if a person was to use this particularly (sic) firearm, they would be able to, in rapid succession, fire up to 40 BBs if it was – A: Yes. Q: - fully loaded? A: Oh, yes. Q: Alright.

And that’s without stopping or cocking it or adjusting the action? A: That’s right. One loaded semi-automatic you would fire every time you pulled the trigger in fully auto mode. As long as you hold the trigger down, it would carry to fire at a rapid rate – Q: Okay. A: - until the magazine was empty or the CO 2 was emptied out, either one. [12] [ 35 ] The .177 calibre BB projectile was fire-tested at 342.5 feet/second. This was nearly 100 feet/second over the required threshold of 246 feet/second to meet the Criminal Code definition of a firearm for this type of weapon, Cst. Wise explained.

Further, the projectile was capable of causing serious bodily harm or even death, and as such, would constitute a significant threat to police or public generally. [ 36 ] Several Saskatchewan decisions have considered Godoy , going both ways. [13] The underlining consideration is, whether, on the facts of each case, the police acted with lawful authority and conducted their search in a reasonable and lawful manner. In the present case, there is no doubt the police were acting in lawful authority responding to the 911 call.

The issue is whether their conduct thereafter was a justifiable use of their powers ie. was a contemporaneous safety search of the premises required? [ 37 ] In R v Brown , [14] police responded to a 911 call to a hotel where there had been a reported stabbing and information that there was a man present with a gun. Upon arrival, the accused, Brown, answered the door and was taken into custody.

Police continued then to search the room for potential victims, weapons, or evidence of an offence, discovering illegal drugs in the process. [ 38 ] In dismissing the accused’s assertion that the authority of the police ended when the accused was taken into custody at the door, the Court of Appeal stated at para. 10: [10] I am not persuaded that the trial judge misapprehended the evidence or that he erred in failing to treat these events as two discrete searches of the room for different purposes.

The dispatch call upon which the police officers were acting suggested that the reported activity was occurring in either Room 201 or 202. I do not think that it can reasonably said in the circumstances that the officers had completed the execution of their general duty to protect life until they had satisfied themselves that there was no potentially dangerous assailant nor any injured victim in either of the rooms or in any place nearby to which their investigation of the two rooms might have led them.

In my view, the evidence supports the trial judge’s conclusion that the officers were justified in entering Room 201 for the purposes that they described in their testimony. Those purposes were within the scope of their general duty to protect life and their actions were, accordingly, authorized by law. The suggestion that there were two separate searches for different purposes is an artificial one in the circumstances. [ 39 ] In R v Hill , [15] police received a 911 call from the neighbour of the accused informing that she had heard what she perceived as gun shots coming from his home.

When the accused was confronted at the door by police, he gave some possible explanations as to the perceived gunshots, which the police did not accept. The police then entered to “clear the house and search the residence for any possible victims of a gunshot” (para. 7).

The subsequent search which lasted roughly six minutes yielded a substantial amount of marijuana in the basement. [ 40 ] The Court of Appeal upheld the trial judge’s finding based on Godoy that the officers had acted in the lawful execution of their duty and that their “conduct was justifiable based upon their common law duty to protect life and prevent serious injury and death”

(para. 13).[16] [41] Also, in R v Farrah,[17] the Manitoba Court of Appeal stated the following at paras. 44-46 in relation to a 911 gun call: [44] Although the police had reasonable grounds for concern, they had no way of knowing, with certainty, who or what they wouldfind upon entry into the suite. They were confronting an unpredictable and potentially volatile situation with a real possibility that thesafety of the public or police officers may be imperilled if time were taken to obtain a warrant. Waiting for a warrant was simply not aviable option.

There may have been an injured party in that suite, a hostage may have been taken or an armed suspect may have suddenlyexited the suite. Immediate action was required to address these safety concerns. There is considerable authority on the need for thepolice to act quickly when a gun is involved to address the risk posed to the community and the police (see R. v. Clayton, 2007 SCC 32at paras. 36, 108; [2007] 2 S.C.R. 725; Reference re Firearms Act (Can.), 2000 SCC 31 , 2000 S.C.C. 31 at para. 33; [2000] 1S.C.R. 783, at para. 36; R. v. M. (M. R.), (SCC), [1998] 3 S.C.R. 393 at para. 52; and R. v.

Felawka, (SCC), [1993] 4 S.C.R. 199 at 211). [45] In my view, and in the particular circumstances of this case, the forced entry into the suite amounted to a justifiable use of policepowers to address public and officer safety concerns.

The following passage, recently cited by Cromwell J. in Cornell, is well suited tothe case at bar (at para. 20): .… I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police toput their lives or safety on the line if there is even a low risk of weapons being present”: para. 24. [46] Furthermore, this court has previously concluded, where extraordinary circumstances exist (such as a legitimate cause forconcern with respect to the safety of those at the scene or of the public generally), that the police are permitted to enter the dwellingwithout a warrant to conduct a “sweep search” for other persons (see Tereck at paras. 3, 12).

As was stated by Monnin J.A. in Tereck, todo otherwise “would have been a dereliction of their duty” (at para. 12). In Tereck, as in this case, the principal reason for entry into thedwelling was not to effect an arrest (although one did ultimately occur), it was to address a real and urgent concern surrounding publicand police safety. [42] In the Court’s view, the same rationale set out in Brown, Hill, and Farrah applies to the instant case. [43] As noted, firearms calls are of the highest priority and present the greatest danger to responding officers and the public.

Timeis of the essence, and it is critical that police be able to effectively neutralize any potential threat or harm as efficiently and safely aspossible. Further, information received from Ms. Jacques would not have been reliable, given her initial denial of even calling 911 andher intoxicated condition. [44] Nor would it have made any difference to carrying out their duties if a firearm had been presented and secured at the door,either by the accused or the occupant. The threat would have nonetheless remained alive until the residence had been cleared of any otherpotential firearms, victims, or perpetrators. (

c) Was third party consent given to enter and search the residence, and, if so, was such consent legally valid with respect to theaccused’s claimed privacy interests? [45] Crown counsel advised in his submissions that he was not relying upon consent as the lawful authority to enter the premises.The evidence is clear, he stated, that the police were going to enter pursuant to the 911 firearms call, irrespective of whether Ms. Jacquesgave her permission, or not. [46] Accordingly, whether Ms.

Jacques gave valid legal consent[18] need not be addressed in the circumstances, nor the issue as towhether such third-party consent would be valid as addressed in R v Reeves at paras. 25 and 26: [25] Several provincial appellant courts have concluded that a resident has the right to permit police entry into common areas of thehome without the consent of all other residents (R v T. (R.M.J.), 2014 MBCA 36, 311 C.C.C. (3rd) 185, at paras. 41-52; R v Clarke, 2017BCCA 453, 357 C.C.C. (3rd) 237, at paras. 55-56 and 62-63; R v Squires, 2005 NLCA 51, 199 C.C.C. (3rd) 509, at para. 34).

However,without deciding the issue, police entry into a shared home with the consent of only one resident raises a number of important questions.Would police also be authorized to search common areas of the home? Should the privacy interests of other residents affect the authorityto seize evidence, even if in plain view? Could another resident who is present object to the police entry?

What if the officers seek entryfor the specific purpose of investigating one of the other residents? [26] In short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raisescomplex questions that require a considered response. They are best answered in a case that directly turns on this issue, with the benefit

of full submissions. [ 47 ] As noted in Reeves , this matter is best left to a time when it is a live and material issue before the Court. (

d) If police entry was lawful, were the items in the residence lawfully seized as being in plain view? [ 48 ] When engaged lawfully in their duties, police are entitled to validly seize clear evidence of wrongdoing that is in plain view. [19] However, the plain view doctrine does not extend to form the basis of a wide-ranging extended search or “fishing expedition”. [20] [ 49 ] In the present case, the officers testified that their specific purpose for entry into the premises was in relation to the 911 call and nothing more.

They were aware, however, of certain items of interest reported stolen in regard to the robbery charge against the accused, Evanchuk. Clearly, had the sole purpose of entry been in relation to gathering evidence for this offence, such search would have been unlawful unless authorized by warrant. [21] [ 50 ] Ms. Jacques testified that the police searched through dresser drawers and personal jewelry boxes.

This evidence is directly contradicted by all of the police officers who emphasized that the search was carried out solely for the purpose of clearing the residence, and that no other search methods were employed, including specifically going through dresser drawers or personal storage areas. [ 51 ] Apart from the reliability issues concerning Ms. Jacque’s recollection and condition, the evidence is uncontradicted that all items seized in the residence were in plain view of the police, located in areas required to be cleared: Firearm Ms.

Jacques led police to the firearm, the subject of the 911 call, which was leaning openly against the bed in the main bedroom. Duffel Bag This bag was laying out in the open at the top of the stairs leading into the residence. Not only did it match the description in the robbery report, on top of the bag was a copy of a court undertaking bearing the name of Reagan Night, the robbery victim. Cst. Martin testified this could be readily observed by simply inclining his head slightly toward the bag.

JBL Speaker The speaker also matched a robbery item and was sitting on top of the bed frame where the gun was found leaning against. Celtic Hat When Cst. Martin opened the walk-in closet, this hat, identified as a distinctive make and colour matching the robbery report, was sitting on the ledge at eye level at the front of a row of similar sport hats. Cst. Martin stated specifically that he did not move or search through any hats in the row and only seized this one, as it matched the description and was at the front row, plainly visible.

Folding Knives Two folding knives were located beside the Celtic hat at the front of the shelf, which were also seized. Red Nike Sandals These sandals also sat out in the open on the stairwell leading up the stairs into the residence. As they matched stolen items from the robbery, they were seized as well. [ 52 ] In

summary, the police were lawfully in the execution of their duties at the time the items were seized. Further, no seizure was

made of anything not in plain view and which did not match the robbery report of stolen items. The search was of short duration and executed for the purposes of clearing the residence for any victims, weapons, or assailants still possibly inside the residence. [ 53 ] The fact the police were aware that the accused was arrestable on a robbery warrant and knew of the nature of the stolen items is of no consequence, unless the search had been unlawful from the outset.

Locating these items in plain view coincidental with the lawful search of the subject premises was fortuitous and did not exceed their lawful duties in so doing. As noted in Crowe , at para. 34 , the Court of Appeal stated: [34] Finally, in my view, police officers’ authority to apprehend offenders engaged in criminal activity unrelated to a 911 call is not displaced by their duty to respond to such a call. Those two things co-exist.

Obtaining evidence of another crime would similarly apply in the Court’s view. [ 54 ] Further, as noted in R v Caprara , [22] even in circumstances where two purposes co-exist for executing a search, so long as one of the purposes was proper, the search is lawful. [ 55 ] Finally, rings and jewelry removed from the accused in SPS Detention are not subject to this application, being seized incident to lawful arrest and thereby admissible in these proceedings. (e) Section 24(2) analysis. [ 56 ] No section 24(2) analysis is required, as the Court has determined that the accused has not established a breach of his s. 8 Charter rights.

IV. RESULT [ 57 ] The accused’s Charter application is dismissed, and accordingly, all seized items entered on the voir dire shall become full exhibits on the trial proper. _______________________________ R.D. Jackson, J