2010 QCCA 2347, 2010 QCCA 2347

Unofficial English Translation R. c. Manseau 2010 QCCA 2347 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC NO.: 200-10-002444-094 (610-01-004320-077) (610-01-004323-071) DATE: DECEMBER 17, 2010 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

JESSY MANSEAU RESPONDENT – Accused JUDGMENT [ 1 ] THE COURT: - On appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Témiscamingue (the Honourable Judge Richard Laflamme), rendered on September 29, 2009, that acquitted the respondent of the charges against him under the Controlled Drugs and Substances Act and the Criminal Code , after having granted, on May 4, 2009, the respondent’s motion to exclude evidence under sections 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms ; [ 2 ] After having examined the file, heard the parties and on the whole deliberated; [ 3 ] For the reasons of Rochette, J.A., with which Thibault J.A. and Viens J.A. (ad hoc) agree; [ 4 ] ALLOWS the appeal; [ 5 ] OVERTURNS the judgment rendered on May 4, 2009, which granted the respondent’s motion to exclude evidence; [ 6 ] DECLARES admissible the evidence gathered during the search carried out on January 22, 2007, at the respondent’s domicile; [ 7 ] SETS ASIDE the verdict of acquittal; [ 8 ] ORDERS a new trial.

FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Sonia Lapointe CRIMINAL AND PENAL PROSECUTING ATTORNEY For the appellant

Mtre Marc Ouimette For the respondent Date of hearing: November 23, 2010 REASONS OF ROCHETTE J.A. [ 9 ] Charged essentially with having produced cannabis and resin (hashish) and having had such substances in his possession, the respondent was acquitted of the charges brought against him after the evidence gathered during a search of his home on January 22, 2007, was excluded by the trial judge who, at the same time, granted the respondent’s motion to exclude the evidence. [ 10 ] The trial judge gave the following reasons for his decision: [ translation ] [16] It is not contested that the police officers had a valid authorization to cordon off ..., in Belleterre.

At least three police officers had a copy of the telewarrant. Sergeant Larouche ’s mission, among others, was to show it to the accused during the search. He failed to do so. The Court cannot attribute bad faith to him in this regard . [17] The evidence shows that the accused met several police officers at his home at the time of the search. It is clear that several of the police witnesses heard at the hearing were in contact with the accused, but at different times. Not all of the police officers who were in contact with the accused testified.

Those who testified report that they did not hear the accused request the search warrant or they simply had no knowledge of it . Moreover, the accused testified that he asked to see the search warrant . His testimony is credible and was not shaken . He specified his location at the time of the two requests and the sequence of his requests. He was even corroborated as regards the advice requested the next morning from his lawyer. The Court has no hesitation in concluding that he proved, on a balance of probabilities, a violation of one of the conditions required for the execution of a search warrant .

Subsection 29(1) Cr. C . is in no way ambiguous; when the warrant is requested, the officer must produce it. [18] The Court adopts the position of the appellate courts of British Columbia and Alberta regarding the effect of a breach of subsection 29(1) Cr. C . This

section is closely related to the right to protection of privacy and against unreasonable search and seizure, as provided by

section 8 of the Charter . It is not an omission without consequences. Contravention of subsection 29(1) prevented the accused from deciding to verify the legal basis for the entry into his home by the agents of the state. Admittedly, he has difficulty reading and writing. Even so, if he had not been able to understand what was written in the warrant, he would have perhaps decided immediately to exercise his right to counsel or he would have simply asked the police officers to read it to him.

Even if the omission was not made in bad faith, the fact remains that one condition of the validity of the search was not respected . The legislature allows only one exception in order to circumvent subsection 29(1) Cr. C . This mandatory provision may be contravened only where it is not feasible to comply. In this case, there was no emergency or circumstance to justify disregarding the requirements of subsection 29(1) Cr. C. The right of the accused under

section 8 of the Charter was infringed during the search of January 22, 2007. [19] As with the decisions previously cited, the violation is so serious that the only remedy, under subsection 24(2) , is to exclude the evidence obtained as a result of such violation . The Court shares the analysis of the British Columbia Court of Appeal in Bohn , supra at paragraphs 42 et seq . Even though the evidence is non-conscriptive and its admissibility as evidence would not render the trial unfair, it nevertheless remains that the violation is so serious that admissibility as evidence would deprive subsection 29(1) Cr.

C . of all its meaning, in addition to bringing the administration of justice into disrepute. [20] Given this conclusion, it is not necessary to rule on the constitutional nature of the arrest and detention of the accused. [Emphasis added] [Citation omitted] [ 11 ] The Crown argues that that the judge erred in law by concluding that a violation of subsection 29(1) Cr. C. is necessarily equivalent to a breach of the constitutional right protected by

section 8 of the Canadian Charter of Rights and Freedoms [1] [the Charter ]. In its opinion, the search cannot be characterized as unreasonable. In addition, they argue that the judge also erred in law by incorrectly analyzing the criteria for exclusion of evidence by referring to subsection 24(2) of the Charter . [ 12 ] Subsection 29(1) Cr. C. states: 29.

(1) It is the duty of every one who executes a process or warrant to have it with him , where it is feasible to do so, and to produce it when requested to do so . [Emphasis added] * * * [ 13 ] For a search not to be considered unreasonable for the purposes of the application of

section 8 of the Charter , it must be authorized by law, the law itself must be reasonable, and the manner in which the search is carried out must be reasonable. [2] Only the last element is in issue here: was the search unreasonable? In R. v. Cornell , [3] the Supreme Court recently considered an allegation,

based on various grounds, of an unreasonable search of a dwelling house. Cromwell J., writing for the majority, relates as follows thecircumstances of the search and repeats the test from Collins: [1] …The police, who had a valid search warrant, used a “hard entry” — they rammed open the front door without knocking orannouncing their presence — and nine masked officers of the tactical team secured the house. … [11] The tactical team did not have the warrant with them when they entered the house.

Detective Bent, who was in charge of theinvestigation and of the search that started as soon as the house was secured by the tactical team, had a copy of the warrant. He enteredthe residence approximately four minutes after the tactical team went in.

The lone occupant present in the house at the time of entry didnot ask to see the warrant and neither did Lorraine Cornell, although she was shown a copy when she came back to the house not longafter Detective Bent’s arrival. [12] The investigating officers discovered 99.4 grams of cocaine in the corner of the basement bedroom of Jason Cornell, in a boxmarked “Jason’s stuff”. Mr. Cornell was later arrested at his place of employment.

He formally admitted that he possessed this cocainefor the purposes of trafficking.[4] … [16] To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, andthe search must be conducted in a reasonable manner: R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278.

There is nowno dispute that the first two of these conditions are met; the only issue is whether the lawfully authorized search was conductedreasonably. [Emphasis added] [14] In that case, regarding the criticism that the police officers did not have the warrant with them, the Supreme Court found,among other things, that: the primary investigator who was the manager of the operation had a copy of the warrant but his position wassouth of the house, which was not in his line of sight;[5] he was present in the house within four minutes of the entry by the policeofficers;[6] there was no evidence that anyone ever asked to see the warrant; the police did show the warrant to Lorraine Cornell whenshe returned to the residence, shortly after the search began.

Cromwell J. continues and concludes: [42] As noted, s. 29(1) of the Code requires “every one who executes a … warrant to have it with him, where it is feasible to do so,and to produce it when requested to do so”. The trial judge found as a fact that no one requested that the warrant be produced and thatfinding of fact is not challenged. There is no issue therefore as to any failure on the part of the police to produce the warrant whenrequested to do so. The question, therefore, is the meaning of the requirement that “every one” have the warrant “with him, where it isfeasible to do so”.

The trial judge concluded that the

section did not require that each member of the police team executing the warranthave a copy on his or her person. This, in my view, is a sensible

interpretation of the provision. Otherwise, it would be read as requiringall 15 members of the team executing this warrant to have a copy. The trial judge found that it was sufficient that, as he found to be thecase, “the police team had it with them when executing the warrant”. This seems to me to be a purposive and appropriate

interpretationof the provision in the context of a search conducted by multiple officers. [43] I agree with the authors of Search and Seizure Law in Canada (loose-leaf), at p. 17-5, that the purpose of s. 29(1) of the Code isto allow the occupant of the premises to be searched to know why the search is being carried out, to allow assessment of his or her legalposition and to know as well that there is a colour of authority for the search, making forcible resistance improper.

These purposes, inmy view, are fully achieved by insisting that the warrant be in the possession of at least one member of the team of officers executing thewarrant. While I think it is a better practice for someone among the first group of officers in the door to have a copy on his or her person,I would not conclude that the officers failed to have the warrant with them when a copy was in the possession of the primary investigatorwho was in charge of the search and immediately at hand.

Moreover, it cannot in my view be said that the police conduct in relation tothe warrant contributed in any respect to making this search unreasonable. [Emphasis added] [15] The question arises in a somewhat different manner here. One must assume that members of the team of police officers incharge of the search had a copy of the warrant with them when they executed it.

The police officers’ failure to produce the warrant onrequest is in dispute. [16] It should first be recalled that the respondent bears the burden of persuading the court that his Charter rights or freedoms havebeen infringed or denied.[7] He also bears the initial burden of adducing evidence. He must persuade the court, on a balance ofprobabilities, that his rights were infringed.[8] Here, the determination of the trial judge, who concluded that such infringement hadtaken place because the search warrant was not shown to the respondent, is challenged. [17] On the other hand, a breach of subsection 29(1) Cr.

C. does not necessarily lead to the conclusion that a search wasunreasonable. The circumstances of each case must be considered. [18] A warrant was issued in the proper manner, and its validity is not in dispute.

At least three police officers had taken a copy ofit with them for the purposes of the search: Constable Martin Guèvremont, the declarant on the application for the warrant, who was tosecure the premises and control the suspects, Sergeant Dominic Larouche, who was to arrest the respondent in the event that narcoticswere found, and Sergeant Stéphane Vanasse,[9] who accompanied his colleague Larouche for the purposes of the arrest. [19] The entry was deemed to be “dynamic” and without doubt was impressive, but the officers were not masked[10] and nothingindicates that they used excessive force.

The door was not locked, and the police officers entered in an expeditious manner. Therespondent and his uncle, Roland Charbonneau, were arrested on the second floor. Sergeant Tessier informed the accused that a search

warrant had been issued. [11] He was asked to take his dog out of the house and he complied. The respondent asked Constable Guèvremont to [ translation ] “unplug the slow cooker used to make hash”. [12] [ 20 ] The judge continued: [ translation ] 4 …Sergeant Larouche was informed that there was cannabis on the second floor. The accused was therefore arrested and informed of his constitutional rights. The accused was cooperative.

According to Sergeant Larouche, the accused did not make any specific request at that time. [ 21 ] On the basis of the evidence, however, the judge found that the respondent asked to see the search warrant. [13] The respondent’s testimony is credible and was not shaken, according to his assessment. The judge added that the respondent specified where he was when he made two requests, the first time in the kitchen of his house, on the first floor, and the second time at the police station, in the isolation room. The first request is crucial.

Regarding the episode in the kitchen, the judge wrote: [ translation ] …He says he was handcuffed when he was on the second floor. He was advised to keep quiet and then taken to the first floor, to the kitchen. He was asked to take his dog out, which he did without delay. Then he asked one of the police officers to show him the search warrant. He was told they didn’t have it . No one showed him the warrant.… [14] [Emphasis added] [ 22 ] Here, the judge made a palpable and overriding error. The respondent did not state anywhere that the police officers answered him; in fact, he asserted the contrary.

He even acknowledged, under cross-examination on the voir-dire, that perhaps his request was not understood: [ translation ] Q So, Mr. Manseau, just now you told us that the first time you asked to see the search warrant was in your kitchen. Is that correct? A Yes. Q And how did you ask for it? A I asked them if they had the warrant. Q You’re there, you’re what, you’re sitting in the kitchen, in the living room? A No, I was leaning against the wall, I was by the wall when I asked them. Q Whom did you ask? A The officers. Q O.K., in general? A Yes, yes, in general.

Q You’re leaning against the wall and you say: do you have a warrant? A Yes, do you have a search warrant? Q And nobody answered you? A No [inaudible]. Q Did you ask in a loud voice? A Well, pretty loud. Q Loud enough – do you have a warrant and... A They didn’t say anything . Q Did you speak to one officer in particular? A No, not really. Q O.K. You just said it at large ? A Yes, aloud . Q Did anyone understand you? Maybe no one heard you ? A Well…maybe . … Q That’s before, O.K. So when you saw that nobody was answering you, did you ask again? A Yes, at the police station.

Q But between those two (2) times, you didn’t ask for it ? A No . Q Not in the vehicle ? A No . [Emphasis added] [ 23 ] Not only do these words fail to convince me that there was an infringement of subsection 29(1) Cr. C. , but the respondent acknowledges the possibility that the police officers did not hear his request. During examination in chief, the respondent had, it is true, answered his lawyer’s questions as follows: [ translation ] Q Did you ask the police officers for anything specific? A Yes, the warrant.

Q You asked for the warrant? A Yes. Q Did the police officers have the warrant? A No. Q They had no warrant? A No warrant. [ 24 ] But the clarification provided under cross-examination no longer makes it possible to give this version of the facts the determinative weight attributed to it by the judge. [ 25 ] The police officer’s obligation to produce the warrant arises “when [he is] requested to do so”. There is nothing to suggest that, if a clear request had been made to show the warrant, the police officers would not have met it then and there.

Moreover, the judge concluded that he cannot attribute bad faith to Sergeant Larouche. [15] [ 26 ] The judge also wrote: [ translation ] [17] The evidence shows that the accused met several police officers at his home at the time of the search. It is clear that several of the police witnesses heard at the hearing were in contact with the accused, but at different times. Not all of the police officers who were in contact with the accused testified.

Those who testified report that they did not hear the accused request the search warrant or they simply had no knowledge of it.... [16] [ 27 ] The respondent had to do more than raise a doubt about this issue. He had to prove a violation on a balance of probabilities. Clearly, this was not done here.

Moreover, the respondent has not shown that the conduct of the police officers in the execution of the warrant contributed to rendering the search unreasonable. [ 28 ] I would therefore allow the appeal, overturn the decision rendered on May 4, 2009, which granted the respondent’s motion to exclude evidence, declare admissible the evidence gathered during the search conducted on January 22, 2007, at the respondent’s domicile, set aside the verdict of acquittal handed down on September 29, 2009, and order a new trial. LOUIS ROCHETTE, J.A.