Her Majesty the Queen - v. -, 2012 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 056 Date: May 18, 2012 Information: 24428981 & 24428980 Location: Fort Qu ’Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Mills and Katherine Fayant-Mills Appearing: Steven Dribnenki For the Crown Cam McCannell For the Accused RULING ON CHARTER APPLICATION J.D. KALMAKOFF , J INTRODUCTION [ 1 ] This is an application for relief under section 24(2) of the Charter . The accused, Matthew Mills and Katherine Fayant-Mills are husband and wife.

Both are charged with possessing cannabis marihuana and cannabis resin, contrary to section 4(1) and 4(4) of the Controlled Drugs and Substances Act.

[ 2 ] The charges were laid after the police executed a search warrant at their residence in Lebret, Saskatchewan on March 1, 2011. During the course of that search, the police located a total of approximately 40 grams of marihuana and 17 grams of cannabis resin at various places in the residence, in addition to other drug paraphernalia. Katherine Fayant-Mills also had a small quantity of loose marihuana in her purse when she was arrested. [ 3 ] Mr. Mills and Ms. Fayant-Mills argue that the initial search warrant which allowed police to enter their residence was invalid, and as such, the resulting search was unlawful and in violation of their rights under

section 8 of the Charter . Accordingly, they argue that any evidence gained as a result of that search should be excluded. [ 4 ] For reasons which follow, I have determined that there was a violation of the rights of the accused under

section 8 of the Charter . Notwithstanding that, I have determined that the evidence gained as a result should be admitted. FACTS [ 5 ] Mr. Mills and Ms. Fayant-Mills own and operate The Calling Lakes Inn, a bar and hotel located in the town of Lebret. The bar is situated on the ground floor of the building; Mr. Mills and Ms. Fayant-Mills live in a suite in the basement. [ 6 ] The investigation which led to the RCMP discovering marihuana and cannabis resin in the residence did not begin as a drug investigation. In fact, the investigation began because Mr.

Mills was the victim of a robbery while working in the bar. [ 7 ] According to information provided to Cst. Corey Zerie of the RCMP, while Mr. Mills was working on February 22, 2011, two masked men entered the bar and robbed him. One of the robbers was armed with a rifle; the other with a knife. They entered the bar, brandished their weapons, and demanded money. Mr. Mills handed over approximately two hundred dollars from the till. The robbers also took three bottles of liquor, made Mr. Mills get into the walk-in cooler, and left. [ 8 ] On February 22, Cst. Zerie took a statement from Mr.

Mills and a patron of the bar who was present when the robbery occurred. Mr. Mills and the patron were unable to identify the robbers, whose faces were masked. Neither recognized the robbers’ voices, but both were able to describe the robbers’ clothing and weapons. Mr. Mills also told Cst. Zerie that he did not think the robbers were familiar with the bar, based on what they said and did during the robbery. [ 9 ] While speaking to Mr. Mills, Cst. Zerie noticed what appeared to be surveillance cameras in the bar. He asked Mr.

Mills if the surveillance cameras might have captured the robbery on video, and thus be of assistance in identifying the suspects. Mr. Mills told Cst. Zerie that the cameras were just “dummy” cameras, used to fool people, and would not have captured the robbery. [ 10 ] The RCMP continued to investigate. Later that day, other officers (Cst. Mark Oman and Cpl. Tim Sartison) attended to the bar and asked Mr. Mills more questions about the robbery and the video surveillance equipment. Mr.

Mills reiterated that the video surveillance equipment did not work, but this time told officers that he thought the suspects were familiar with either him or the bar, because when he was forced into the walk-in cooler during the robbery, one of the suspects said “your wife will let you out when she comes up from the basement”, suggesting that the suspect knew something of both the building’s layout and Mr. Mills’ living situation. [ 11 ] The officers also asked Ms. Fayant-Mills about the video surveillance equipment.

She is reported to have said “Oh, it was hooked up to a computer but it was old and wouldn’t have gotten anything”. As Ms. Fayant-Mills said this, Cst. Oman observed that Mr. Mills and Ms. Fayant-Mills exchanged a look which made Cst. Oman suspicious about the discrepancy in their description regarding the video surveillance cameras. [ 12 ] Cst. Oman and Cpl. Sartison passed along the information gained from their investigation to Cst. Zerie. As a result of that information, Cst. Zerie concluded that Mr. Mills had not been forthright with him about whether or not video surveillance recordings existed.

On February 28, 2011, Cst. Zerie drafted an application for a search warrant, seeking to allow police to enter both The Calling Lakes Inn bar and the Mills / Fayant-Mills residence to search for the recordings or computer equipment containing such recordings. In

the Information to Obtain the search warrant, Cst. Zerie wrote, under the heading “Conclusion”: 4.1 The information provided to Cst. Mark Oman by Matthew John Mills stating that when Mills was put in the cooler and told that his wife would let him out when she came up from the basement suggests the unknown persons had knowledge of the establishment which was stated by Mills at that time.

When interviewed by myself, Mills was saying he felt the unknown persons had no knowledge of the bar and had never been there before and neglected to mention the comments made by the unknown male when Mills was placed in the cooler, stating that his wife would let him out when she came up from the basement as he stated to Constable Oman earlier.

This along with the conflicting opinions of Matthew John Mills and Bernice ( sic) Fayant-Mills in regards to the capabilities of the surveillance cameras in the bar leads me to believe that surveillance footage from the bar does exist and that for reasons known only to Mills he is reluctant to provide this to police.

I believe that the execution of this search warrant will further this investigation and help to identify the unknown persons responsible. [ 13 ] The search warrant was authorized, and on March 1, 2011, members of the RCMP entered the Mills / Fayant-Mills residence to search for the computer equipment and storage equipment described in the warrant. Both Mr. Mills and Ms. Fayant-Mills were home when the police arrived, and cooperated with the officers’ efforts to conduct the search. Upon entering the residence, the officers noticed a prevalent smell of fresh marihuana.

While in the process of identifying and seizing the relevant computer and electronic storage equipment, the officers also observed marihuana and cannabis resin (hash oil) laying about the residence, in plain view, in a number of locations. [ 14 ] Based on that observation, both Mr. Mills and Ms. Fayant-Mills were arrested for possession of a controlled substance. [ 15 ] Ms. Fayant-Mills was arrested by Cst. Jesse Green, then turned over to Cst. Ginette Rochon to be searched and taken to a police vehicle. Upon being advised that she was going to be taken to the RCMP Detachment, Ms.

Fayant-Mills asked if she could bring her purse. Cst. Rochon agreed to allow this, but said that the purse would be searched. Cst. Rochon testified that she searched the purse incidental to arrest, primarily for reasons of safety. She explained that, since Ms. Fayant-Mills was going to be transported to the RCMP Detachment in a police car, and processed upon arrival, it was important to make sure there were no weapons or other dangerous items in the purse. I accept this explanation. In the purse, Cst.

Rochon located sandwich bags containing 3.2 grams of marihuana, along with other drug paraphernalia. [ 16 ] After observing drugs and drug paraphernalia in the residence while conducting the first search, RCMP officers decided to obtain another search warrant, under the provisions of the Controlled Drugs and Substances Act , to search for and seize evidence relating to offences under that Act . A second search warrant was obtained, and executed later on March 1, 2011.

The police located the following drugs, in the following quantities, at the following locations in the residence: • 3 bottle caps, containing a total of 7.1 grams of cannabis resin on an office shelf, above the computer • a bag containing 6 grams of marihuana on a living room end table • a bag containing 30.5 grams of marihuana underneath the living room end table • bottle caps, filters, a plastic bag, a pipe, and a red container with residue, on the coffee table in the centre of the living room, containing 7.2 grams of cannabis resin and 3.9 grams of marihuana • a small green grinder containing 0.5 grams of marihuana on the coffee table in the centre of the living room • bottle caps containing 3 grams of cannabis resin on the coffee table in the centre of the living room. [ 17 ] Other items, including grinders, baggies, butane canisters, rolling papers, pipes and lighters, all of which appeared to be drug paraphernalia, were also located at various locations in the residence, mostly in plain view. [ 18 ] The drug items were seized and analysed, and the corresponding charges laid.

ISSUES

1. Was there a violation of the accused’s rights under

section 8 of the Charter? 2. If so, is the remedy of exclusion of evidence warranted pursuant to section 24(2)? ANALYSIS 1. Was there a violation of the accused’s rights under

section 8 of the Charter? [19]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. [20] In essence,

section 8 protects privacy. It does not provide a guarantee that individuals will never be subject to searches thatimpede upon their privacy; it only protects against unreasonable search or seizure. Searches that are reasonable do not violate

section 8. In order to be reasonable, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must beconducted in a reasonable manner (R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Cornell, 2010 SCC 31, [2010] 2S.C.R. 142). [21] The onus is on the accused to prove a breach of Charter rights on a balance of probabilities. 1.1 The search of the Mills / Fayant-Mills residence pursuant to the Criminal Code search warrant [22] The initial search of the Mills / Fayant-Mills residence was conducted pursuant to a warrant.

The warrant authorized thepolice, on March 1, 2011 between 9:00 a.m. and 9:00 p.m., to search the following “place”: The business premises situated at 11 Ellisboro Trail in Lebret, Saskatchewan, commonly known as The Calling Lakes Inn, including theresidential suite of Matthew John Mills. for the following things: Computer equipment, hard drives, storage devices such as USBs, CDs, DVDs that pertain to the recording and retention of surveillancefootage. on the basis that a robbery had been committed against Matthew Mills. [23] In this case, the reasonableness of the legislative provisions authorizing the search is not in issue. [24] Further, no issue arises with respect to the manner in which the search was conducted, as it was carried out in accordance withthe terms set out in the warrant, and there is no evidence that the officers behaved in anything other than a professional and courteousmanner towards the accused and their property while performing the search. [25] The only real question in this case is whether the search was authorized by law, or more particularly,

section 487 of theCriminal Code. The portions of that

section relevant to this case allow a justice to issue a search warrant to a peace officer if the justiceis:

...satisfied by information on oath...that there are reasonable grounds to believe that there is in a building...or place...anything that thereare reasonable grounds to believe will afford evidence with respect to the commission of an offence... [26] A search warrant issued pursuant to the Criminal Code is presumed to be valid, and the accused bears the burden ofdemonstrating that there was an insufficient basis for its authorization (R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549; Quebec(Attorney General) v.

Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708). [27] The standard to be applied by a Court reviewing the validity of a search warrant is set out in R. v. Morelli, 2010 SCC 8, [2010]1 S.C.R. 253. At paragraph 40, Fish J. wrote: [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [28] This is a review, and not a de novo hearing, and I must keep in mind that the authorizing justice was empowered to make allreasonable deductions and draw reasonable inferences that flowed logically from the evidence before him.

I am not to substitute myview of the evidence for that of the authorizing justice. If I conclude, based on the record, that the authorizing justice could have grantedthe warrant, then I should not interfere (R. v. Wonitowy, 2010 SKQB 346 at para. 22; R. v. Garofoli, (SCC), [1990] 2S.C.R. 1421 at para. 56). [29] In this case that means the warrant in question is valid if the justice was satisfied, on the basis of the information provided byCst.

Zerie, that there were reasonable grounds to believe that: • A robbery was committed against Matthew Mills on February 22, 2011; • Computer equipment, hard drives or other storage devices pertaining to the recording and retention of surveillance footage werelocated in the Mills and Fayant-Mills residence; and • The computer equipment, hard drives or storage devices would afford evidence relating to the robbery (i.e. video surveillancerecordings). [30] The Information to Obtain a Search Warrant (ITO) drafted by Cst.

Zerie and presented to the issuing justice clearly providedreasonable grounds to believe that a robbery had been committed against Matthew Mills by unknown persons on February 22, 2011. TheITO also contained evidence relating to the existence and location of surveillance cameras in the bar where the robbery was alleged tohave occurred.

If the cameras were functioning at the time of the robbery, it would be reasonable to expect that any recordings theyproduced would contain evidence relating to the commission of that offence. [31] The question which I must answer is whether the ITO contained information from which it could be concluded that there werereasonable grounds to believe (1) that the computer equipment and storage devices would be located in the Mills / Fayant-Millsresidence, and (2) that the cameras recorded relevant events such that the equipment and/or storage devices would afford evidence of therobbery. [32] In determining whether the ITO disclosed reasonable grounds to believe that recordings from the surveillance camerasexisted, and if so, that they would be found in the residence of the accused, I must keep in mind that “reasonable grounds to believe” doesnot require proof beyond a reasonable doubt, or even a prima facie case.

The standard to be met is one of reasonable probability (R. v.Debot (1986), (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), aff’d (SCC), [1989] 2 S.C.R. 1140). Areasonable probability must be credibly based. It means that there must be more than a mere possibility that relevant evidence will befound in the place sought to be searched. Suspicion is not enough (Hunter et al v. Southam Inc., (SCC), [1984] 2 S.C.R.145; Baron v. Canada, (SCC), [1993] 1 S.C.R. 416).

[ 33 ] In Mugusera v.

Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100, at paragraph 114 , Chief Justice McLachlin described the applicable standard as follows: ...the ‘reasonable grounds to believe’ standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities...reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. [ 34 ] A determination of whether reasonable grounds exist requires consideration of the totality of the circumstances.

The ITO must be examined as a whole, and not one piece of evidence at a time ( R . v. Whitaker , 2008 BCCA 174 ; R. v. Brachi , 2005 BCCA 461 ; Re Church of Scientology & the Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) ). The assessment of the facts relied upon to establish reasonable grounds to believe must be done on a practical, non-technical and common sense basis (R. v. Sanchez (1994), 93 C.C.C. (3d) 537 (Ont.Gen.

Div.)). 1.1.1 Grounds for the belief that the computer equipment or storage devices would be located in the Mills / Fayant-Mills residence [ 35 ] I focus on “residence” in this analysis, because although the robbery occurred in the business premises, and the surveillance cameras in question were located in the business premises, the search warrant authorized a search of both the business premises and the residential unit for the computer equipment or storage media believed to contain the video recordings.

As it turned out, the police searched only the residential unit, and that is where they ultimately located the incriminating evidence relating to the drug charges. [ 36 ] I draw a distinction between the business premises at 11 Ellisboro Trail (The Calling Lakes Inn), and the residential suite occupied by Matthew Mills and Kathy Fayant-Mills because even though both are part of the same building, and owned and operated by the same people, they are separate places and the reasonable expectation of privacy with respect to each is different. [ 37 ] The business premises, which is on the main floor, includes a bar.

I can infer that it operates on the basis of an implicit invitation for anyone of legal age to enter during business hours. In most of the areas of the bar to which the public has access, the expectation of privacy would be low. That, of course, is much different than the residential suite, which is in the basement. The residential suite, while in the same building, and connected to the business premises, is also separate. The public does not have access to the residential suite of Mr. Mills and Ms. Fayant-Mills.

It is a place in which the accused enjoy a much greater expectation of privacy. [ 38 ] In my view, the evidence before the issuing justice regarding the location of the things to be searched for (the computer equipment and storage devices) gives rise to a credibly-based probability that those things would be in the residential unit of Matthew Mills. The ITO disclosed that the surveillance cameras were located in the business premises of The Calling Lakes Inn (one was near the till, the other in the VLT area). Both Mr. Mills and Ms.

Fayant-Mills owned and operated The Calling Lakes Inn, and lived in the residential unit in the basement. Both places are in the same building, and in close physical proximity. The evidence in the ITO suggests that regular passage between the business and residential unit by both accused occurred.

It is a reasonable inference that the computer system to which the surveillance cameras were connected, if they were in fact connected, would be located either in the business premises or the residential suite, given the close connection between the business and the residential unit physically, geographically, and operationally. 1.1.2 Grounds for the belief that the computer equipment or storage devices would afford evidence of the offence [ 39 ] A business such as a bar may have surveillance cameras installed for a number of reasons, including actually recording events and potentially providing evidence in the case of incidents such as robberies.

I must look at all the evidence presented to the issuing justice, and determine whether it could support the conclusion that there were reasonable grounds to believe that the cameras in question were live and recording at the time of the robbery. [ 40 ] In that regard, the police spoke to the two people who were in a position to say whether the cameras were working: Mr. Mills

[40] In that regard, the police spoke to the two people who were in a position to say whether the cameras were working: Mr. Millsand Ms. Fayant-Mills. Their descriptions were slightly different, but were consistent in saying that the surveillance cameras would nothave recorded the relevant events. According to the ITO, Mr. Mills told Cst. Zerie that “the cameras are only dummies used just to foolpeople”, and told Cpl. Sartison that “there was no video footage as it did not work.” Ms.

Fayant-Mills told the police that the camerasystem “was hooked up to a computer but it was old and it wouldn’t have gotten anything.” The only piece of evidence disclosed in theITO which suggested otherwise is Cst. Zerie’s recounting of Cst. Oman’s opinion that Mr. Mills was attempting to prevent Ms. Fayant-Mills from saying anything more about the surveillance cameras when the topic arose. Cst. Oman’s opinion was apparently based uponhis

interpretation of a look exchanged between Mr. Mills and Ms. Fayant-Mills when police asked about the cameras. [41] Is there a credibly-based probability that the surveillance cameras in The Calling Lakes Inn were recording events at the timeof the robbery, notwithstanding Mr. Mills’ and Ms. Fayant-Mills’ assertions to the contrary, and taking into consideration all theevidence before the issuing justice? Mr. Mills and Ms. Fayant Mills were the only two people in a position to know for certain whetherthe cameras recorded the relevant events, and both said they did not.

In light of that, reasonable grounds to believe that the cameras wererecording at the relevant time would require a reasonable basis upon which to disbelieve that Mr. Mills’ and Ms. Fayant-Mills’ assertionsto the contrary. [42] Cst. Zerie based his belief that the accused were lying about the non-existence of the video recording upon what he viewed asdiscrepancies in Mr. Mills’ and Ms. Fayant-Mills’ descriptions about the surveillance cameras, coupled with Cst. Oman’s

interpretationof the look exchanged between the two when being questioned. He thus concluded that for unknown reasons, the accused were notbeing forthright about whether the cameras were operating and producing recordings of the relevant events. There is no evidence in theITO, and none before the Court, as to what, if any, reason existed at the time of seeking the warrant for believing that Mr. Mills and Ms.Fayant-Mills had a motive to falsely deny the existence of the video recording. There was no other observation by Cst.

Zerie, or anyother officer, to suggest that the surveillance cameras were, in fact, working at the relevant time (i.e. - no lights or display screensindicating they were turned on or functional, no mention of any wires observed leading from the cameras to any sort of recording system,no mention of having seen surveillance video from The Calling Lakes Inn on previous occasions, etc.). [43] On the evidence presented to the issuing justice, there was, in my view, no objective basis to disbelieve the assertions of theaccused regarding the non-existence of any video recording. While I accept that Cst.

Zerie honestly suspected that the accused were notbeing truthful, the evidence presented to the issuing justice did not, in my view, rise to the level of a credibly-based probability; itamounted to no more than suspicion. Suspicion is not enough to override individual privacy in the name of furthering an investigation. [44] I am satisfied on a balance of probabilities that the original warrant was improperly issued, and the resulting search was notauthorized by law, and as such was a violation of the Mr. Mills’ and Ms. Fayant-Mills’ rights under

section 8 of the Charter. 1.2 The search of Katherine Fayant-Mills’ purse by Cst. Rochon, incidental to arrest [45] I accept the evidence of Cst. Rochon, in that she conducted the search of Ms. Fayant-Mills’ purse incidental to her arrest, forreasons of safety. In doing so, she was attempting to achieve a valid purpose connected to the arrest, and the search was conducted in areasonable, professional, and respectful fashion. Therefore, if the arrest was lawful, so too was the search (R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; Cloutier v.

Langlois, [1990] 1 S.C.R. 607). [46] Ms. Fayant-Mills was arrested for possession of a controlled substance. The only lawful basis for the arrest was that theofficers observed drugs in plain view while searching the Mills / Fayant-Mills residence. [47] I have determined that the warrant which authorized the police to enter the residence was not properly issued. The onlygrounds to arrest Ms. Fayant-Mills were gained through observations made during the search conducted under authority of that warrant,and thus in violation of Ms. Fayant-Mills’ rights under

section 8 of the Charter. The arrest was so closely connected to the violation thatI am satisfied that its lawfulness cannot be sustained. The resulting search was therefore not authorized by law, and was also a violationof Ms. Fayant-Mills’ rights under

section 8 of the Charter. 1.3 The search of the Mills / Fayant-Mills residence pursuant to the warrant issued under the Controlled Drugs and Substances Act

[48] Upon observing what appeared to be marihuana and cannabis resin (hash oil) at various places in the residence during theinitial search, police arrested both Mr. Mills and Ms. Fayant-Mills for possession of a controlled substance. They then secured theresidence, and transported the accused to the RCMP Detachment in Fort Qu’Appelle. A search warrant was prepared, pursuant to theprovisions of the Controlled Drugs and Substances Act (CDSA), seeking to gain further access to the residence to search for drugs anddrug-related items. [49] The provisions of

section 11 of the CDSA are similar to those in

section 487 of the Criminal Code, in that they require ajustice to be satisfied that there are reasonable grounds to believe that an offence has been committed against the CDSA, and thatevidence relating to that offence will be found in a certain place before issuing a search warrant. [50] I have ruled that the original warrant in this case was improperly issued, and the resulting search violated the rights of theaccused under

section 8 of the Charter. The police came to know about the drugs only because of observations they made in the Mills /Fayant-Mills residence as the result of that violation of

section 8 of the Charter. It is clear that, without the evidence gained in thecourse of that violation, they would not have had the grounds to support the CDSA search warrant. Consequently, I am satisfied that thesearch and seizure under the CDSA warrant was also a violation of the rights of the accused under

section 8 of the Charter (See R. v.Feeney, (SCC), [1997] 2 S.C.R. 13). 2. Is the remedy of exclusion of evidence warranted pursuant to section 24(2)? [51] I have concluded that all the incriminating evidence in this case was obtained in a manner that infringed the rights of theaccused under

section 8 of the Charter. [52] To be more specific, the original plain-view observations of drugs and drug paraphernalia in the residence of the accused weremade during a search conducted pursuant to a warrant which I have concluded was not properly authorized. [53] All other evidence obtained flowed directly from that breach. That includes the evidence gathered as part of the searchincidental to the arrest of Ms. Fayant-Mills, and the evidence seized pursuant to the second search warrant, issued under the CDSA. Eachpiece of incriminating evidence is thoroughly linked to, and intertwined with, the initial search.

Therefore, section 24(2) is engaged withrespect to all of it. [54] Exclusion of evidence is, of course, not automatic upon concluding that the evidence was obtained in a manner that violatedthe Charter rights of the accused. Nor is the evidence prima facie inadmissible. Section 24(2) of the Charter requires the Court toexclude the evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration ofjustice into disrepute. The accused bear the burden of establishing this, on a balance of probabilities (R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; R. v.

Sandhu, 2011 ONCA 124; R. v. Collins, supra). [55] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court laid out the three avenues of inquiry to be undertakenand the factors to be balanced in determining whether the administration of justice would be placed in disrepute by the admission of theevidence. They are: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protectedinterests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

The Court in Grant noted that this requiresattention to whether the overall repute of the justice system, viewed in the long term, and objectively speaking, will be negativelyaffected by the admission of the evidence, taking into account all the circumstances. 2.1 The seriousness of the Charter-infringing state conduct [56] In considering this first factor, it is important to focus on the seriousness of the offending conduct by state authorities. Themore severe and deliberate the conduct by the state, the greater the need for the Court to dissociate itself from that conduct, and favour

exclusion of the evidence. Inadvertent breaches of Charter rights, committed in the course of “good faith” conduct will reduce the need for the Court to dissociate itself, and may tend to tilt the balance in favour of admission of evidence. It should be noted, however that ignorance of Charter standards must not be rewarded or encouraged, and that negligence and/or wilful blindness do not amount to good faith (See Grant , supra , at para. 75 ). [ 57 ] In this case, I am satisfied that Cst. Zerie was honestly and legitimately pursuing the investigation of a very serious armed robbery.

I accept that he honestly believed Mr. Mills and Ms. Fayant-Mills were not being forthright in their assertion that the video surveillance recordings did not exist. Cst. Zerie’s actions in obtaining a search warrant demonstrated that he was attempting to conduct his investigation in a lawful fashion, respecting the privacy interests of the accused. [ 58 ] Although I have determined that Cst.

Zerie did not have an objectively reasonable basis, at least on the strength of the information disclosed in the ITO, for obtaining a search warrant, I am satisfied that his actions in obtaining the warrant were not knowingly or intentionally wrong. He sought, and obtained, judicial authorization before embarking on the search. There is no suggestion that he misled the issuing justice or concealed relevant facts. In my view, Cst. Zerie’s actions do not demonstrate flagrant disregard for Charter standards, or even negligence or wilful blindness.

It is also significant that the RCMP obtained further judicial authorization, in the form of a search warrant under the CDSA , before searching the residence and seizing the drugs and drug paraphernalia. This, in my view, confirms that the officers involved were concerned with acting lawfully and making efforts to conform with Charter standards. [ 59 ] In short, while Cst. Zerie’s actions may not, in the strictest sense, amount to “good faith”, given the absence of objectively reasonable grounds for obtaining the initial warrant to search (see R. v.

Caron , 2011 BCCA 56 ), I am satisfied that he and the other RCMP officers honestly believed that they were acting lawfully in obtaining the warrant and conducting the search. I also keep in mind the fact that Cst. Zerie did not seek the warrant for the purpose of gathering incriminating evidence against the accused. The warrant was part of an investigation in which Cst. Zerie and the other police officers honestly and reasonably believed that Mr. Mills was the victim of an extremely serious offence.

While they were involved in a diligent and thorough investigation of that offence, incriminating evidence against Mr. Mills and Ms. Fayant-Mills was discovered as a by-product.

The police conduct in this case, if not absolute good faith, falls just short of it, and as such reduces the need for the Court to dissociate itself. [ 60 ] In my view, analysis of this factor weighs in favour of admission of the evidence. 2.2 The impact of the breach on the Charter-protected interests of the accused [ 61 ] This stage of the inquiry requires an evaluation of the extent to which the breach undermines the interests protected by the right which was infringed.

The more serious the impact of the breach, the greater the chance that admission of the evidence would risk sending the message that guarantees under the Charter , in reality, count for very little ( Grant , supra , at para. 76 ). [ 62 ] In Grant , supra , at paragraph 78 , the Supreme Court of Canada noted that “...an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.” [ 63 ] In this case, the unreasonable search occurred in the home of the accused, where they would enjoy a significant expectation of privacy.

While the search was conducted pursuant to a warrant, by officers who were acting honestly and in the belief that they were doing so lawfully, and who conducted the search in a fashion that was respectful of the dignity of the accused, I am nonetheless of the view that the impact of the unlawful search on the accused must be given its proper consideration. As noted by the Supreme Court of Canada in R. v.

Cote , 2011 SCC 46 , [2011] 3 S.C.R. 215 at paragraph 73 : ...The seriousness of the impact on the accused’s Charter -protected interests will not always mirror the seriousness of the breach, i.e. the Charter- infringing state conduct.

For instance, where the police acted in good faith in obtaining a warrant that was found on review not to disclose reasonable and probable grounds to believe that a crime had been committed and that there was evidence to be found at the place of the search, the seriousness of the Charter -infringing state conduct is reduced but the impact of the search on the accused’s Charter- protected interests is greater because the search could not have occurred legally.

[ 64 ] Even keeping in mind this passage from Cote , I note that the police in this case did not attend to the residence of the accused in an effort to gather evidence against them. In fact, the police were investigating an offence in which Mr. Mills was the victim. The search conducted by the officers was not overly intrusive, nor was it extensive.

It did not seek to gather any personal, sensitive or biographical information about the accused. [ 65 ] Once the police were inside the residence of the accused, the incriminating evidence in relation to the drug charges was observed in plain view, almost inadvertently. I accept the testimony of the officers that the smell of marihuana was pervasive in the residence of the accused, and marihuana was easily visible in a number of places. It could well have been detected and observed through the police simply attending the residence to make routine inquiries.

Further, once they made observations of the drugs and drug paraphernalia during the initial search, the police stopped and obtained judicial authorization before embarking on a search for incriminating evidence against the accused. [ 66 ] In my view, even in light of the high expectation of privacy the accused were entitled to enjoy in their home, analysis of this factor weighs in favour of admission of the evidence. 2.3 Society ’s interest in adjudication of the case on its merits [ 67 ] The public interest in truth-finding remains a relevant consideration in the section 24(2) analysis.

It is important to consider not only the negative impact that admitting the evidence would have on the repute of the administration of justice, but also the impact of failing to admit the evidence. Analysis of this factor suggests that the scale tips toward the admission of evidence which is reliable and highly probative, and towards the exclusion of evidence which is inherently unreliable or is rendered unreliable by the Charter breach involved (see Grant , supra , at paras. 79 - 84 ). [ 68 ] In this case, the evidence in question is highly reliable, and is the centre of the Crown’s case.

It is essentially physical evidence, which existed independent of the breach. None of the evidence was obtained by any violation of the bodily integrity or dignity of the accused. The violation does not impact in any way on the reliability of the evidence. [ 69 ] Analysis of this factor weighs in favour of admission of the evidence. CONCLUSION [ 70 ] I am satisfied, on a balance of probabilities, that the accused have established that the search of their residence which led to the marihuana and cannabis resin being discovered was a violation of their rights under

section 8 of the Charter . However, I am not satisfied that admission of the evidence would bring the administration of justice into disrepute. The evidence in question will be admitted as evidence on the trial. J.D. Kalmakoff, J