Her Majesty the Queen - v. -, 2017 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 035 Date: May 3, 2017 Information: 90122290 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dorothy O ’Dell Appearing: Shane Wagner For the Crown Richard Leland, Q.C. For the Accused DECISION ON SECTION 24(2) CHARTER APPLICATION R. GREEN , J I. INTRODUCTION [ 1 ] Dorothy O’Dell is charged with trafficking fentanyl on May 12, 2016 at Yorkton contrary to section 5(1) of the Controlled Drugs and Substances Act (CDSA) . On that date, Cst. Jeffery Nelson and Cst.

Filipe Vincente, of the RCMP, went to the postal outlet at Shoppers Drug Mart in Yorkton and seized a package that Ms. O’Dell had recently mailed. That seizure was made without the officers having a warrant or having taken any other steps, in advance, to obtain the package through Canada Post. Cst. Nelson then quickly sought and obtained a warrant to open the package, which contained fentanyl. The next day, Cst. Vincente arrested Ms. O’Dell for this offence and took a statement from her.

[ 2 ] The defence claims that the seizure of this package from the postal outlet at Shoppers Drug Mart constituted a violation of Ms. O’Dell’s right against unreasonable seizure under

section 8 of the Charter of Rights and Freedoms [ Charter ]. As a result, the defence seeks under section 24(2) of the Charter to exclude all evidence related to the drug seized, including the Certificates of Analyses, the pictures taken of the fentanyl after the package was opened, and the statement given by Ms. O’Dell to Cst. Vincente. [ 3 ] This application proceeded by way of voir dire , with an agreement that admissible evidence heard during it will be applied to the trial. Five witnesses testified for the Crown: both police officers, two employees of Shoppers Drug Mart connected to its postal outlet and a postal inspector from Canada Post. [ 4 ] The issues to be determined are:

(1) Did Ms. O’Dell have a reasonable expectation of privacy in this package so as to engage protection for her under

section 8 of the Charter ?

(2) If so, was the seizure unreasonable and a violation of Ms. O’Dell’s rights under

section 8? and

(3) If so, should the evidence be excluded under section 24(2)? II. BACKGROUND [ 5 ] Cst. Nelson , a four year member of the RCMP, said he received information that Ms. O’Dell was sending fentanyl through the mail to a relative in Manitoba, near Winnipeg. He was not sure which post office the package had been dropped off at but he and Cst. Vincente attended to the postal outlet at Shoppers Drug Mart this day at 5:30 p.m. There, he spoke to an employee named Sheri Leefe and asked whether a package had been mailed by Ms. O’Dell. Ms. Leefe went into the back and returned with a package mailed by Ms.

O’Dell. [ 6 ] Cst. Nelson then asked Ms. Leefe what she needed from him in order to seize the package. Ms. Leefe said she needed nothing from the officer and he could take it. Ms. Leefe, however, did call over her supervisor, Tracy Jarvais. Cst. Nelson told Ms. Jarvais he believed there was contraband in the package and Ms. Jarvais said there was nothing else she needed from the officer before he took the package. Cst. Nelson took the package, left his business card with the two employees and told them to call if they had any questions. [ 7 ] Cst.

Nelson took the package to the Yorkton RCMP detachment, and applied for a warrant to open the package. That warrant was granted by a Justice of the Peace in Yorkton the same day (Exhibit P-2). Cst. Nelson, with Cst. Vincente in attendance taking pictures, then opened the package, which contained patches of fentanyl. [ 8 ] When seizing the package at Shoppers Drug Mart, Cst. Nelson asked for a copy of the security footage from the post office for that day. That footage (Exhibit P-1), which he received on a subsequent day, showed Ms.

O’Dell attending at the post office around 4:00 p.m. on May 12, 2016 and mailing the package. [ 9 ] As well, on a subsequent day, Cst. Nelson spoke with Postal Inspector Dennis McKay by telephone, and learned the process that he should have followed in seizing a package that was already in the mail. Cst. Nelson had never seized a package from a post office before, but said there was a priority in getting this package as it had fentanyl in it.

He did not have a search warrant, but thought Canada Post might have regulations governing this; and that is why he asked the employee at the postal outlet whether she needed anything from him before he took the package.

[ 10 ] Sheri Leefe is a clerk at Shoppers Drug Mart who, as part of her duties, works in the postal office. She had received no training from Canada Post but had some in-store training from the staff at Shoppers. On this date, two police officers attended to the postal outlet and asked her if Ms. O’Dell had mailed a package. She went and located the package in their storage room. The police said they were going to seize the package and did so. She said there was no discussion regarding paper work, but she asked her supervisor Tracy Jarvais about this. Her supervisor then spoke to the police officers. [ 11 ] Ms.

Leefe was not aware of any requirements under the Canada Post Corporation Act regarding the taking of packages outside of the mail service. In cross-examination, she admitted that she did what the police officers told her to do and gave them the package after they spoke to Ms. Jarvais. [ 12 ] Tracy Jarvais has worked at Shoppers Drug Mart for six and one-half years, and is the cash manager and supervisor at the front of the store. She had no special training regarding the post office. On this date, Ms. Leefe called her to the postal outlet.

Two police officers were there and were about to take a package from the store. She said they could take it and admitted that she had not been trained on any procedure on behalf of Canada Post. The police officer asked her if she needed anything from them and she said she had no idea. She did ask the officer if there were any safety concerns with the package and was told “no”. Later, she discovered that there was a process set out by Canada Post for taking mail out of the system after it was mailed. [ 13 ] Cst. Vincente , a seven year member of the RCMP, said his police partner Cst.

Nelson received information regarding a package containing fentanyl patches being sent. He said he had an idea who was sending this. Both officers went to the postal outlet at Shoppers Drug Mart and spoke to Sheri Leefe and asked about a package sent by Ms. O’Dell to Manitoba. She came back with the package, and asked if she should be concerned about the package. He responded “no”, that the concern was if the package was opened but, in his words, there was “hardly no risk”, which from the context of his evidence, appears to have meant there was little risk. Cst. Vincente told Ms.

Leefe that the package contained contraband and they intended to seize it. Both Ms. Leefe and her supervisor Tracey Jarvais said there was nothing for either officer to sign. [ 14 ] Regarding the seizure, Cst. Vincente said the fact they believed it was fentanyl in this package was a factor in how they seized the package. He said they acted quickly without getting a warrant because they were concerned that a package containing fentanyl would start moving in the mail and they would not be able to retrieve it. He was clearly motivated by a concern for public safety. [ 15 ] Cst.

Vincente was asked whether the officers then went to the first post office they could think of and got lucky and he admitted this was true, although he said he thought there was only one other place in Yorkton where a package could be mailed from. He admitted that he was going to seize the package if it was at the Shoppers Drug Mart postal outlet and that he had never before been involved in a mail seizure at a postal outlet. [ 16 ] Cst. Vincente subsequently took pictures of the package, unopened and opened with its contents displayed (Exhibit P-3) and a statement from Ms.

O’Dell after she was arrested (Exhibit P-6 is the DVD and Exhibit P-7 is a transcript of the statement). He said, following the seizure and search of the package, he discovered that Canada Post has a process which is to be followed in opening a package already in the mail. [ 17 ] Dennis McKay is a postal inspector for Canada Post in the Prairie Region. He is responsible for the security of the mail under the Canada Post Corporation Act [ Act ]. He described the procedure by which so-called “non-mailable” items can be taken out of the mail.

There are two ways that this can happen. [ 18 ] The first is when a mail item is brought forward within the postal system by an employee within that system. He said that, if brought forward, a postal inspector reviews the item, takes the information about the concern, and makes an assessment regarding the mail item. That assessment may include an x-ray of the item. If there are sufficient grounds, a postal inspection supervisor can approve the inspection of an item, which must be done by a postal inspector under section 41(1) of the Act.

Alternatively, under the Act , the inspection can be done by a person in the undelivered mail department of Canada Post in Scarborough, Ontario. Regarding a package from Yorkton, he said he, as a supervisor, would have assigned a postal inspector to the package in Yorkton to consider the package. [ 19 ] The second way in which the concern about an item of mail could be raised is by a police officer. When such a concern

exists, the process is for the police officer to fill out a form (Exhibit P-5) which applies to any item which is already in the course of the post. If notified in this way by the police, a postal inspector would review the package and the information from the police and make a decision on whether the package is a “ non-mailable” item. The inspector’s supervisor can then make a decision on whether or not the package can be inspected. When asked whether an employee at a postal outlet had the authority to give a package back after it was mailed, Mr.

McKay said it would only be either if the procedure under the Act was followed or when a sender was claiming they had been defrauded and had filed a report with the police. [ 20 ] In cross-examination, Mr. McKay admitted that whether a concern came from inside the postal system or from a police officer, a postal inspector would have to make a decision on whether the package could be inspected based on reasonable and probable grounds that the package was sent in contravention of the Canada Post Corporation Act or its Regulations.

As a result, it is only after a postal inspector accepts that there are reasonable and probable grounds to believe that the package is non-mailable or in the case that a police officer has a warrant, that the package should be given up by an employee of the postal system after it is mailed. III. DID MS. O ’DELL HAVE A REASONABLE EXPECTATION OF PRIVACY IN THIS PACKAGE SO AS TO ENGAGE

SECTION 8 OF THE CHARTER ? [ 21 ] To be protected from unreasonable seizure under

section 8 of the Charter , Ms. O’Dell must have had a reasonable expectation of privacy in this package after she mailed it and at the point it was seized by Cst. Nelson. [1] The prosecutor argued that she did not have such an expectation of privacy at this point. I disagree. [ 22 ] Mr. Wagner submitted that Ms. O’Dell had no privacy interest in this package after it was mailed because she could not, at that point, retrieve it from Canada Post.

While I agree that she would not have had a privacy interest once the package was delivered to the addressee, I do not agree that she had no privacy interest in a package just mailed and in the custody of Canada Post. [ 23 ] In considering the issue of privacy, it is important to distinguish between the information Cst. Nelson obtained from the postal outlet employees and the actual seizure of this package. Prior to seizing the package, the officer learned from Ms. Leefe that Ms. O’Dell had been at the postal outlet that day and had mailed a package. I am not satisfied that Ms.

O’Dell had a reasonable expectation of privacy in that information. In drawing that conclusion, I apply the standard set by the Supreme Court of Canada in R v Plant [2] [ Plant ], which was that only information of a "personal and confidential" nature can attract s. 8 protection. The Court, in Plant , further explained: . . .

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [3] [ 24 ] The fact that Ms.

O’Dell attended to a public place and mailed a package was not in my view personal and confidential information, nor do I accept that this information would reveal intimate details of Ms. O’Dell’s lifestyle and personal choices. As a result, I do not accept that Ms. O’Dell had a reasonable expectation of privacy in that information. [ 25 ] However, in contrast to that information, I accept that a reasonable person would expect a package just mailed at a Canada Post outlet to be secure from interference, except as authorized by law, until the package is delivered to the addressee.

That point was made by the Newfoundland District Court in R v Crane and Walsh [4] , a case where the police seized mail, which turned out to contain cocaine, from a postal box without a warrant. In that decision, Judge Riche stated: The search and seizure of private mail is in my opinion a most serious matter. The privacy of one's mail is a most important and highly- protected element of our society. Should it then be less protected than our right to make communication with another by using the telephone?

If I write a letter to someone and post it, should it be less protected than if I use the telephone for that purpose? Except for normal postal inspection of packages, should there be a right in the police to seizure and search items in the mail without prior authorization? [5]

[ 26 ] Indeed, the Canada Post Corporation Act clearly underscores the importance of the security of the mail once in the postal system and until delivered, in a number of sections: (1) Section 40(3) provides, in effect, that regardless of any Act or law, but only subject to this Act and its regulations, or to the Canadian Security Intelligence Service Act , the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act , nothing that has been mailed and not delivered is liable to demand, seizure, detention or retention;

(2) Section 41 of this Act sets out the limited ways that Canada Post can open a package which has been mailed and not yet delivered which, relevant to this case, are: (

a) to determine whether a package is “non-mailable matter”; or (

b) in the event that mail cannot be delivered to the addressee. Mr. McKay said that a police officer can make a request to a postal inspector to determine whether a package contains non-mailable matter by submitting a form to Canada Post (Exhibit P-5); and

(3) Section 48 of this Act makes it an offence to knowingly open, keep, secrete, delays or detain mail, except where expressly authorized by or under this Act , the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act . [ 27 ] In R v Buhay [6] [ Buhay ] the Supreme Court adopted a liberal approach to the protection of privacy [7] .

The Court in Buhay stressed that privacy is contextual and “does not have to be of the highest form of privacy to trigger the protection of s. 8"; for example the expectation of a hotel guest in their belongings kept in the hotel room may be less than in a house they own, but there is nevertheless a reasonable expectation of some privacy. [8] Taken together with the noted provisions of the Act , I am satisfied that, while perhaps not to same level as if the package was in Ms. O’Dell’s residence and not in the mail, Ms.

O’Dell still had a reasonable expectation of privacy in this package at the point it was seized. IV. WAS THE SEIZURE UNREASONABLE AND A VIOLATION OF MS. O ’DELL ’S RIGHTS UNDER

SECTION 8? [ 28 ] As I have determined that

section 8 of the Charter applies to the seizure of this package by Cst. Nelson, the Crown has the onus of showing that this warrantless seizure was reasonable. Applying the test for a reasonable search set by the Supreme Court in R v Collins [9] [ Collins ], a seizure will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the seizure was carried out is reasonable. Because, as in Collins , no challenge was taken by the defence to the reasonableness of any law claimed by the Crown to authorize the seizure, the questions that remain are: (

a) was the seizure of the package at Shoppers Drug Mart authorised by law?; and (

b) was the manner in which the seizure was carried out reasonable? (

a) Was the seizure authorized by law? [ 29 ] I am satisfied that this warrantless seizure could have potentially been authorized by law in three ways: (

i) by s. 11(7) of the Controlled Drugs and Substances Act ; (ii) by s. 489(2) of the Criminal Code ; or

(iii) pursuant to the Canada Post Corporation Act. (

i) Was the seizure authorized by section 11(7) of the CDSA? [ 30 ] Section 11(7) provides that a police officer may exercise the powers of seizure and search described in subsections 11 (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

Relevant to this case is section 11(1), which would allow a justice to issue a warrant to search a place, if satisfied on reasonable grounds that a controlled substance or package containing such a substance was in that place. [ 31 ] The meaning of “exigent circumstances” was recently explained by the Supreme Court of Canada in R v Paterson [10] , where Justice Brown stated: 33 The common theme emerging from these descriptions of "exigent circumstances" in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety . . . 34 Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7).

Those circumstances must render it "impracticable" to obtain a warrant. [ 32 ] In this case, the officers made no inquiry as to when mail would be taken from the postal outlet that day, nor did they ask the employees there to delay departure of the package while they got a warrant. Given:

(1) Cst. Vincente’s statement to Ms. Leefe that the unopened package presented “hardly no risk” together with Ms. Jarvais’s statement that one of the officers told her there was no safety concern associated with the package; and (2) that a search warrant was obtained without delay by Cst.

Nelson after the package was seized, I do not accept that there were exigent circumstances when the officers attended to Shoppers Drug Mart, if in fact the officers had the grounds to obtain a warrant under section 11(1) of this Act when they attended. [ 33 ] During argument, the Crown prosecutor asked what the police would do if they believed there was a bomb in the package. If the officers had reasonable grounds to believe a package at the postal outlet had a bomb in it, clearly this would be exigent circumstances that would allow seizure of the package.

That, however, is a markedly different situation that what we have here, for the reasons I have stated in the above paragraph. (ii) Was the seizure authorized by section 489(2) of the Criminal Code ? [ 34 ] Section 489(2) of the Code provides that every peace officer who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds: (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or

(

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [ 35 ] A discussion of the application of section 489(2) can be seen in R v Baker [11] [ Baker ]. In that case, an airline baggage agent opened two suitcases at an airport and contacted police to advise of his discovery of a significant quantity of marihuana. The police then seized the bags without a warrant and later obtained a warrant to search them.

The Court determined there had been no Charte r violation. [12] That was because: (1) the baggage agent was acting within the scope of his authority in opening the bags; (2) the baggage agent was not acting as an agent of the police in doing so; and (3) the information provided by the baggage agent and the fact that a police officer who attended to the airport smelled marihuana coming from the suitcases amounted to reasonable grounds for the police officer to believe that the suitcases contained an illegal drug and that the suitcases constituted evidence in respect of an offence. [13] [ 36 ] In my view, the facts in Baker are distinguishable from this case.

Here, the Information To Obtain, used later to obtain the search warrant for the package was not filed in evidence, and I do not know the totality of the information that led the Justice of the Peace to grant the warrant, after the package was seized. Cst. Nelson only said he received information that Ms. O’Dell had mailed fentanyl to a relative in Manitoba that day. No other information was provided to the court, including where the item had been mailed from or the reliability of the source of the information. [ 37 ] Given Cst. Nelson’s description of the information they had and Cst.

Vincente’s admission that they went to the first postal outlet they could think of and got lucky, I am satisfied that these police officers had a reasonable suspicion that this package contained drugs, but did not have reasonable grounds to believe the offence of trafficking had been committed. Neither officer said that anything in the appearance or smell of the package indicated to him the package contained fentanyl.

This is in contrast to Baker , where the police had credible evidence that marihuana had been seen in the seized suitcases by a baggage handler and smelled coming from the suitcases by a police officer. As a result, I am not satisfied that this seizure was authorized under section 489(2). (iii) Was the seizure authorized pursuant to the Canada Post Corporation Act ? [ 38 ] As per Mr. McKay’s evidence, and the provisions of the Canada Post Corporation Act , outlined above, it is clear that the seizure of this package by Cst. Nelson, in this manner, was not authorized by this Act. (

b) Was the manner in which the seizure was carried out reasonable? [ 39 ] Because I have found that this warrantless seizure of the package was not authorised by law, I am further satisfied that this seizure was unreasonable and a violation of Ms. O’Dell’s right to be free from unreasonable seizure under

section 8 of the Charter . V. SHOULD EVIDENCE BE EXCLUDED UNDER SECTION 24(2) OF THE CHARTER ? [ 40 ] Given my finding that Ms. O’Dell’s right to be free from unreasonable seizure under

section 8 of the Charter was violated by the manner in which Cst. Nelson seized her package at the Shoppers Drug Mart postal outlet, the question becomes whether admission of the evidence that flowed from this breach - pictures of the package and the fentanyl patches found in it, the Certificates of Analyses, and Ms. O’Dell’s statement - would bring the administration of justice into disrepute, based on a balancing of:

(1) the seriousness of the breach; (2) the impact of the breach on the Charter-protected rights of Ms. O’Dell; and (3) society’s interest in the adjudication of the case on its merits.[14] [41] Regarding the seriousness of this breach, I conclude that this was at the middle-of-the-range. While some furtherinvestigation into how a package was to be seized by the police from Canada Post would have avoided this breach, I think it issignificant that both police officers were in my view acting in good faith.

The speed with which they acted was as a result of theirconcern for public safety given the information they had received that Ms. O’Dell was mailing fentanyl. As well, neither officer wasexperienced in seizing a package from Canada Post, but nevertheless they asked the postal outlet employees whether anything furtherwas required from them before taking the package. Finally, Cst. Nelson obtained a warrant before he opened the package. [42] Similarly, I do not view the impact of this breach on Ms. O’Dell’s Charter-protected rights to be at the upper end of the scale.

While she had a reasonable expectation of privacy in the mailed package, I have noted that this was a reduced expectation compared towhat she might have expected had the package been in her residence and not in the mail. As well, I have to consider that she could notlegally have retrieved the package from Canada Post at the point it was seized. Lastly, regarding her statement to Cst.

Vincente, otherthan the reality that it followed her arrest for this offence, the statement was not taken in a way that violated any of her rights under theCharter. [43] Regarding society’s interest in the adjudication of the case on its merits, there is no doubt that the evidence the defence seeksto exclude is relevant and reliable, or that society has a compelling interest in detecting and deterring the trafficking of a drug such asfentanyl.

These factors weigh in favour of admitting the evidence. [44] Taken together, I am not satisfied that admission of the impugned evidence in this case would bring the administration ofjustice into disrepute. As a result, I dismiss the defence application to exclude this evidence under section 24(2) of the Charter. R. Green, J [1] R v Edwards, (SCC), [1996] 1 SCR 128 at p 140 [2] (SCC), [1993] 3 SCR 281 [3] At para 20.

See, as well, R v Saciragic, 2017 ONCA 91 at para 27 - 30, regarding what constitutes a reasonableexpectation of privacy in information [4] (NL SC), 45 CR (3d) 368 [5] At para 35 [6] 2003 SCC 30, [2003] 1 SCR 631 [7] At para 24, and referring in part to the words of Bastarache J in R v Law, 2002 SCC 10, [2002] 1 SCR 227 at par 16 [8] At para 22 [9] (SCC), [1987] SCJ No 15 (QL)

[10] 2017 SCC 15, [2017] SCJ No 15 (QL) [11] 2017 NLTD(G) 31, [2017] NJ No 60 (QL) [12] This

summary is taken from the headnote [13] At para 46 [14] R v Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1 at para 72