R. v. Sexton, 2011 NBCA 97

Editor’s Note: Corrigendum released on November 17, 2011. Original judgment has been corrected with text of corrigendum appended. COURT OF APPEAL OF NEW BRUNSWICK 173-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - KEVIN MARK SEXTON RESPONDENT KEVIN MARK SEXTON INTIMÉ R. v. Sexton, 2011 NBCA 97 R. c.

Sexton, 2011 NBCA 97 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’hon orable juge Green Appeal from a decision of the Provincial Court : October 14, 2010 November 23, 2010 December 1, 2010 Appel d’une décision de la Cour provinciale : Le 14 octobre 2010 Le 23 novembre 2010 Le 1 er décembre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 23, 2011 Appel entendu : Le 23 juin 2011

Judgment rendered: October 27, 2011 Jugement rendu : Le 27 octobre 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Richard The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Green Counsel at hearing: For the appellant: Cameron H. Gunn For the respondent: George E. Kalinowski Avocats à l’audience : Pour l’appelante : Cameron H. Gunn Pour l’intimé : George E. Kalinowski THE COURT The appeal is allowed and a new trial ordered.

LA COUR L’appel est accueilli et la tenue d’un nouveau procès est ordonnée. The judgment of the Court was delivered by BELL J.A. I. Introduction [ 1 ] On January 14, 2010 members of the Fredericton Police Force executed a search warrant at the residence of Kevin Mark Sexton which resulted in the laying of numerous charges, including, but not limited to, possession of cocaine, ecstasy, hashish, LSD, a sawed-off shotgun, an operational replica AK-47 assault rifle, three 9 mm handguns and one .22 calibre handgun. […] Relying upon his Charter right to be free from unreasonable search and seizure, Mr.

Sexton challenged the search and seizure of items on two bases: first, he contended the search warrant was improperly issued; and, second, if properly issued, the means employed to execute the warrant violated his Charter right to be secure from unreasonable search. The Provincial Court judge rejected Mr. Sexton’s contention that the warrant had been improperly issued. However, he concluded the means employed to execute the warrant were unreasonable. Following an analysis under s. 24(2) of the Charter , the Provincial Court judge concluded the evidence obtained as a result of the search should be excluded.

As a result, Mr. Sexton was acquitted of all charges. The Crown appeals the findings that the search was conducted in an unreasonable fashion and that the admission of the evidence would bring the administration of justice into disrepute. Mr. Sexton filed a Notice of Contention in which he challenges the finding that the warrant was properly issued.

[ 2 ] It is trite law that an appeal by the Crown from an acquittal may only be brought on a question of law alone: s. 676(1) (

a) of the Criminal Code . Absent an overriding and palpable error, deference is owed to the Provincial Court judge’s findings of fact. The application of the law to the facts, however, constitutes a question of law, for which the standard of review is correctness: R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 43 ; R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 20 ; Black v. R. , 2010 NBCA 36 , 360 N.B.R. (2d) 132 at para. 18 and cases cited therein; R. v. Tran , 2010 ABCA 211 , [2010] A.J. No. 736 at para. 23 (QL) ; R. c. J.M.H ., 2011 SCC 45 , [2011] S.C.J. No. 45 at para. 29 (QL) .

The facts of this case are not in dispute. [ 3 ] For the reasons set out below, I would allow the Crown appeal and dismiss Mr. Sexton’s contention that the Provincial Court judge erred regarding the validity of the warrant. II. Notice of Contention: Validity of the search warrant A. Facts [ 4 ] On January 14, 2010, Detective James Penney of the Fredericton Police Force swore an Information to Obtain a search warrant under the Controlled Drugs and Substances Act , S.C. 1996, c. 19. A warrant to search Mr.

Sexton’s premises located at Apartment 1C, 260 Wetmore Road, Fredericton, New Brunswick was issued that same day. In the Information to Obtain a search warrant, Detective Penney deposed, among other things, that he had spoken with Source A on January 13, 2010, and that Source A advised him and he believed that: Within the last 24 hours, he attended Kevin Sextons [ sic ] apartment at 260 Wetmore Road, Fredericton New Brunswick and observed Kevin Sexton in possession of what Source “A” believed to be cocaine. [Information to Obtain at para. 17] [ 5 ] Mr.

Sexton argued that 260 Wetmore Road is a 38-unit apartment building and that paragraph 17 is deficient in that it does not precisely identify Mr. Sexton’s apartment. I would note, however, that in paragraph 13, Detective Penney deposed that he was informed by Source A that Mr. Sexton lived with his brother, Greg Robillard, “in a second floor apartment at 260 Wetmore Road, Fredericton, New Brunswick”. Furthermore, in paragraph 26, Detective Penney deposed that he was informed by Constable Jamie Jones and believed that Gregory Robillard resided at Apartment 1C, 260 Wetmore Road. B.

Analysis [ 6 ] In providing his analysis, the Provincial Court judge referred extensively to Arsenault v. R. , 2009 NBCA 29 , 344 N.B.R. (2d) 113 . In that case, Richard J.A. set out a number of criteria which should guide reviewing judges in determining whether a search warrant was properly issued. Of those, I would adopt the following two in responding to Mr. Sexton’s claims: 3. The reviewing court must not assess the substantive quality of the ITO by confining itself to the evidence which is explicitly set out in it.

The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly stated evidence; 4. The assessment of the reviewing court must take into account the totality of the ITO, interpreting its constituent parts in context; [para. 5] [ 7 ] I am satisfied the Provincial Court judge’s analysis is consistent with the law set out in Arsenault . He did not err in this regard. Furthermore, I would observe that paragraphs 13 and 26 conclusively connect Mr. Sexton to Apartment 1C.

[ 8 ] On appeal, Mr. Sexton cites R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 , to support his contention that the Information to Obtain was misleading, albeit unintentionally, about whether contraband could be found at Apartment 1C. He asserts, quite properly, that the affiant must provide full, fair and frank disclosure about all material facts, favourable or not. It would appear that is exactly what occurred in this case.

After quoting extensively from the Information to Obtain, the Provincial Court judge concluded: Quite frankly, my conclusion on reading and re-reading that paragraph is to the effect that Cst. Penney disclosed to the issuing judge information, both in the interest of obtaining the warrant, and also contrary to obtaining the warrant. [Trial transcript, Vol. I at 217] [ 9 ] I would dismiss the claim made in the Notice of Contention. The Provincial Court judge properly applied the law to the facts when he concluded the warrant was properly issued. III. Execution of the Search Warrant A.

Facts [ 10 ] While the facts surrounding the execution of the search warrant are undisputed, the Crown contends certain inferences made by the Provincial Court are speculative. The following

summary will include references to those challenged inferences that I consider relevant to my analysis. [ 11 ] On December 13, 2009, Constable Jamie Jones, a member of the Fredericton Police Force, attended a domestic dispute at Apartment 1C, 260 Wetmore Road . There, he met Gregory Robillard, one of the participants in the dispute. At that time Mr. Robillard informed the police that he lived in that apartment. This information is only relevant because it connects Mr.

Sexton to Apartment 1C and explains the subsequent visit to the apartment by Constable Jones and Corporal Sue Evans. [ 12 ] In the month leading up to January 14, 2010, members of the Fredericton Police Force received information from various sources that Mr. Sexton was trafficking in cocaine and other drugs. Prior to January 14, a plan was put in place to obtain and execute a search warrant at Mr. Sexton’s residence. That plan included what is sometimes referred to as a “no-knock”, “hard” or “dynamic” entry. I will refer to the means of entry as a hard entry.

There were three reasons why the police officers chose to execute a hard entry: they were concerned about officer safety, the safety of those in neighbouring apartments and the preservation of evidence. With respect to the preservation of evidence, officers testified that cocaine dissolves easily and for that reason is easily disposed of. Without the element of surprise, persons in the place to be searched have the opportunity to pour cocaine down the sink or a toilet bowl. With respect to officer safety, the Crown led evidence of Mr.

Sexton’s criminal past, which included convictions for weapons and drug related offences and an outstanding charge of assaulting a police officer. The Canadian Police Information Centre (CPIC) data base, maintained by the Royal Canadian Mounted Police, contained two cautions with respect to Mr. Sexton, one for violence and the other that he is to be considered armed and dangerous. The concern with respect to safety for other occupants of the apartment arose in the event violence should occur in the course of either entering the apartment or conducting the search.

While the Provincial Court judge did not address the potential destruction of evidence or the potential risk to other occupants of the apartment or the building, he had this to say about the CPIC report and its utility in assessing the risk to officer safety: The police also state they were somewhat at risk. They rely on Exhibit P3 [the CPIC report containing the cautions for violence and armed and dangerous] to justify their basis for that risk. Quite frankly, and with all due respect to the police, that suggestion is absolutely comical when one reviews in detail Exhibit P3. It is ripe with numerous errors.

And states “Caution – this is not a criminal record”. Furthermore, when you review the alleged crimes previously committed by Mr. Sexton, and in particular, the various sentences handed down for those crimes, it is obvious that Mr. Sexton could not be considered a risk of violence under Exhibit P3. [Underlining is mine.] [Trial transcript, Vol. II at 160] [ 13 ] The Crown challenges the Provincial Court judge’s inference that the police reliance upon the CPIC report “is absolutely comical”.

While I will have more to say about this further in these reasons, I pause to say that I agree with the Crown position in this regard. Those comments by the Provincial Court judge are purely speculative and, frankly, wrong. [ 14 ] I now return to the events of January 14. Because of the concerns for officer and civilian safety and the potential destruction of evidence, the police implemented the following plan. The emergency response team would wait outside the

apartment building. Corporal Sue Evans and Constable Jamie Jones, who had attended the domestic dispute at Apartment 1C on December 13, would enter the building in full uniform and knock on the door to Apartment 1C. Corporal Evans and Constable Jones would pretend to be looking for Mr. Robillard in order to follow-up on the domestic dispute matter. Their real purpose was to determine whether Mr. Sexton was present at the apartment. In the event Mr. Sexton was present, the officers would leave a card, request Mr. Sexton have Mr.

Robillard contact them and, as they were exiting the building, advise the Emergency Response Team of Mr. Sexton’s presence. Events unfolded as planned. Corporal Evans and Constable Jones, both in full police uniform, knocked on the door which was equipped with a peep-hole. Mr. Sexton answered the door. He stood at the entrance to the apartment while the police officers stood in the hallway. The police officers advised Mr. Sexton they were doing a follow-up to the domestic dispute, enquired as to whether Mr. Robillard was present, learned he was not, and left a card with instructions for Mr.

Robillard to call them. As they were leaving the apartment building they signalled to the awaiting Emergency Response Team that Mr. Sexton was present in the apartment. [ 15 ] The team of 4 police officers, each armed with tactical rifles, wearing helmets and goggles over balaclavas and dressed in emergency response uniforms with the word “POLICE” inscribed on the front and back of their vests, entered the apartment without notice. In doing so they used a battering ram, which is approximately 5 inches in diameter, weighs approximately 40 pounds and is equipped with two handles.

Upon gaining entry the police arrested Mr. Sexton, executed the search warrants, seized items and laid charges under the Criminal Code and the Controlled Drugs and Substances Act . [ 16 ] In concluding the hard entry was unreasonable in the circumstances, the Provincial Court judge relies principally upon three factors:

(1) The reliance by the police upon the CPIC cautions was “absolutely comical”;

(2) Because Mr. Sexton was perfectly reasonable in his interactions with the two uniformed police officers who made enquiries about his brother, the police should have known he was not a threat, thereby eliminating the need for a hard entry; and

(3) The police officers wore balaclavas. [ 17 ] The trial judge rejected the Crown’s assertion that one’s response to a police enquiry about a month-old domestic dispute involving one’s brother might be much different than one’s response to police who attend to execute a search warrant and effect an arrest. The Crown’s position in this regard is captured in the following exchange between Constable Haines and defence counsel: Q. Wasn’t officer safety a concern when they went to the door? A.

It is, however there’s two armed police officers knocking on the door and the threat of – risk of encountering violence doing a follow up investigation and effecting arrest are two highly different things. When you’re arresting someone the risk level goes up greatly. […] Q. So, they weren’t in any danger. What’s the diff – why couldn’t they have said, “We also have a warrant?” A. Because there was still also the unknown of what was in that apartment, whether there was other people involved inside that apartment at that time. They weren’t able to relay that information.

And if a confrontation ensued then their safety’s in jeopardy and also possibly the tenants above or below would be in jeopardy. [Trial transcript, Vol.

II at 50-51] [ 18 ] The trial judge’s speculative response to the officer’s professional assessment of the situation is captured in the following excerpt: With all due respect, if the waiting Emergency Response Team had asked the two police officers what was Sexton’s attitude on their entry they would have learned that he was perfectly reasonable, and as a result the hard or forced entry or dynamic entry as the case law describes it, was not justified. [Trial transcript, Vol.

II at 161-162] [ 19 ] That conclusion disregards the CPIC caution, which, of course, the Provincial Court judge found “comical” and disregards the fact that Corporal Evans and Constable Jones testified they could not see into the apartment to determine whether

weapons or other people were present. [20] In assessing the reasonableness of the search, the Provincial Court judge appears to direct his most forcefulcriticism toward the police because of their attire. He said this: As well, I must make some comment with respect to the use of balaclavas. A police officer in this case testified to the effect that thepolice were wearing balaclavas for their own safety. I do note that they were also wearing helmets and goggles over the balaclavas and Ihave great difficulty accepting that the evidence available to the police justified use of the balaclavas.

This court has an innate distasteand dislike for anonymity in anything whatsoever. I am a firm believer that any member of our society should clearly admit to what he orshe did or is doing. [Trial transcript, Vol. II at 162] [21] Thereafter, the Provincial Court judge quotes extensively from the dissent in R. v. Cornell, 2010 SCC 31,[2010] 2 S.C.R. 142, concludes the dissent is applicable to the facts of this case and opines that “there was no justification whatsoeverfor the use of balaclavas based on the evidence.” B.

Analysis [22] For a search to meet the test of reasonableness set out in s. 8 of the Charter, the search must be authorized bylaw, the authorizing law must be reasonable and the search must be conducted in a reasonable manner: R. v. Collins, (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15 at 278 (QL); Cornell at para. 16. Given my opinion regarding the lawfulness of thesearch warrant, the only issue is whether the search was conducted in a reasonable manner. [23] In R. v. Perry and Richard, 2009 NBCA 12, 341 N.B.R. (2d) 325, this Court recently discussed the knock andannounce rule as summarized in Eccles v.

Bourque, (SCC), [1975] 2 S.C.R. 739. In the ordinary course of events,police officers are required to make an announcement before forcing entry into a dwelling house. This is accomplished by giving“(

i) notice of presence by knocking or ringing the doorbell; (ii) notice of authority, by identifying themselves as law enforcement officersand (iii) notice of purpose, by stating the lawful reason for entry”: Eccles v. Bourque at 747; Cornell at para. 18. [24] Authorities may abrogate from the knock and announce rule in circumstances where they have reasonablegrounds to be concerned about their safety, the safety of others or the destruction of evidence. These exceptions are discussed in Perryand Richard and Cornell.

Where authorities depart from the knock and announce rule they must, when challenged, explain why theythought it was necessary to do so. The proper approach to follow in such cases is succinctly summarized by Cromwell J. in Cornell: 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 to puttheir lives or safety on the line if there is even a low risk of weapons being present […] The main question is whether the police had reasonable grounds for concern to justify use of an unannounced, forced entry while maskedin this case.

The trial judge is required to assess the decision of the police to act as they did and the appellate court is required to reviewthe trial judge’s conclusions. Three things must be kept in mind throughout these reviews. First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light ofhow things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how toconduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v.

DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction ofevidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45. Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be

expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah , 2003 SCC 38 , [2003] 2 S.C.R. 3 , at para. 73 ; Crampton , at para. 45 . It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances.

The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback. Third, the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference on appellate review. [Underlining is mine.] [paras. 20, 23-25] [ 25 ] In applying the law to the facts the Provincial Court judge failed to respect the first and second component of the test outlined above.

(1) Provincial Court judge’s finding that reliance on CPIC was “comical” [ 26 ] In deconstructing the Provincial Court judge’s reasoning, I would first consider his observation that police reliance upon CPIC cautions that Mr. Sexton was violent and armed and dangerous was “absolutely comical”. In addition to judicial and legislative dictates, there are two very practical reasons why police must take very seriously the search of someone else’s residence. First, it is highly likely that suspects will know the layout of the place being searched much better than the authorities.

They will know potential means of escape and potential sources of weapons. Second, the person whose residence is being searched will, in most cases, have a better knowledge of who is present in the premises. The two unknowns of layout and occupancy provide a practical advantage to the person whose residence is being searched in the event that person wishes to destroy evidence or obstruct, evade or cause injury to police. Those two very practical observations were at play on the day Mr. Sexton’s residence was to be searched. In addition to those factors, police knew Mr.

Sexton possessed a criminal record for weapons and drug offences and was awaiting trial on a charge of assaulting a peace officer. Information appearing in CPIC, a national database, maintained by the Royal Canadian Mounted Police, constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it.

While the Provincial Court judge was correct to state that the CPIC report does not constitute a criminal record, that fact does not render the cautions contained therein unreliable. Furthermore, even if Mr. Sexton had established that the CPIC cautions were unreliable, that fact would have had no impact upon the right of police officers to use the information unless they had doubts about its reliability.

There is no evidence of any such doubts. [ 27 ] I am of the opinion the Provincial Court judge made a palpable and overriding error when he concluded that police reliance upon the CPIC cautions was “comical” to any degree. As noted by Justice Cromwell in Cornell , after the fact assessments are unfair and inappropriate when applied to situations like this where officers must exercise discretion and judgment in difficult and fluid situations.

(2) Provincial Court judge’s finding that Mr. Sexton’s demeanour prior to the search obviated need for a hard entry [ 28 ] The Crown challenges the Provincial Court judge’s inference that Mr. Sexton’s reasonable demeanour in the presence of Corporal Evans and Constable Jones just prior to the search obviated any need for a hard entry. While one might debate whether speculation regarding the human reaction to any particular circumstance has any place in either this Court or the Provincial Court, that is not the question that arises as a result of the Provincial Court judge’s finding.

The only question that must be addressed is whether the police, following the uneventful visit at Mr. Sexton’s door, continued to reasonably hold the view that a hard entry was required. The event at the door changed nothing about Mr. Sexton’s criminal record, outstanding charges or the CPIC cautions. It changed nothing about the police knowledge or lack thereof about the layout of the premises or the occupants of the apartment. The police are owed deference to their conclusion that Mr.

Sexton’s response to a search of his premises for cocaine and other drugs might not be the same as when responding to police questions concerning an unrelated matter. To the extent the Provincial Court judge disagreed with the police regarding the

interpretation to assign to Mr. Sexton’s conduct, he erred. As Justice Cromwell so aptly stated, the courts are not to be “Monday morning quarterbacks” on these sorts of questions. In my view the visit at the door was, at best, a neutral event regarding the need for a hard entry. Contrary to the inferences made by the Provincial Court judge, it did not detract from that need.

(3) Provincial Court judge’s finding regarding police uniform and equipment

[ 29 ] In assessing the reasonableness of the search, the Provincial Court judge expresses particular disdain because the police officers were dressed in full emergency response gear, including tactical weapons, goggles, helmets and balaclavas. I would note the police officers executing the search in Cornell wore virtually the same type of equipment. Justice Cromwell’s observations in Cornell are instructive: The appellant objects to the use of masks by the police. My view, however, is that the question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate.

The question for the judge, and the question the judge in this case answered, is whether the search overall, in light of the facts reasonably known to the police, was reasonable. Having determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment. [para. 31] [ 30 ] With respect to the use of masks, Constable Haines testified their purpose was to protect police officers “if there happens to be any glass, shattering of glass for whatever reason, or flame, it’s flame retardant.

It’s basically to protect, give our faces some protection if we happen to encounter anything.” As Justice Cromwell observed, courts should not be micro-managing the police force’s choice of equipment. To the extent the Provincial Court judge relied upon the presence of balaclavas to conclude the search was conducted in an unreasonable fashion, he erred. [ 31 ] Before concluding my analysis regarding the reasonableness of the search I wish to comment upon the Provincial Court judge’s criticism about police anonymity. The vests worn by the police officers contained the inscription POLICE on the front and the back.

Furthermore, after securing the premises, Constable Haines removed his balaclava and identified himself to Mr. Sexton. His evidence is as follows: THE COURT: So, if I’m inside the apartment in this case, I wouldn’t know the identity of the people who are coming through the door? HAINES: Not at that time, no. THE COURT: When would you know it? HAINES: When would you know it? I removed my balaclava when I was dealing with Sexton and so did Constable Penney, removed the helmet, balaclava. After the room and the apartment was secured, my helmet and equipment went back with them and I remained at the apartment.

I talked with Kevin. My balaclava was off. THE COURT: How long, Det. Haines, before you removed the balaclava? HAINES: Within a few minutes after the apartment was secured. […] [Trial transcript, Vol. II at 80-81] [ 32 ] The Provincial Court judge’s conclusion that the police were operating anonymously is inconsistent with the evidence. [ 33 ] The determination of whether a search is reasonable is a question of law. For all of the above reasons, I am satisfied the Provincial Court judge erred in law when he concluded the search of Mr. Sexton’s premises was carried out in an unreasonable manner.

The judge therefore erred in finding a Charter violation and in excluding the evidence. His decision must be set aside and it follows that a new trial must be ordered. IV. Section 24(2) analysis [ 34 ] Because I am of the view the search was reasonable in the circumstances, it is unnecessary to review the Provincial Court judge’s s. 24(2) Charter analysis in which he concluded the admission of the evidence would bring the administration of justice into disrepute. However, the approach adopted by the Provincial Court judge to his assessment of this question merits some

comment. [35] After citing R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and referring extensively to the dissent in Cornell,the Provincial Court judge excluded the evidence. Interestingly, he excluded the evidence without knowing what it was. He said: I accept the constitutional guidance provided by the Supreme Court of Canada. As a result, I am excluding the impugned evidence,giving meaningful effect to s. 24(2) of the Charter.

Now, I have no knowledge as to what the evidence was obtained by the search, orwhether the Crown has other evidence which they wish to present in support of the charges. [Underlining is mine.] [Trial transcript, Vol. II at 203] [36] It is commonly accepted that Grant imposes a three-part framework for the assessment of whether theadmission of evidence obtained in violation of Charter rights should be excluded. Trial courts are to take into consideration:

(1) Theseriousness of the Charter-infringing state conduct;

(2) The impact of the breach on the Charter-protected interests of the accused; and,(3) society’s interest in the adjudication of the case on its merits. [37] With respect, I fail to see how any assessment of the criteria can be undertaken by a trial judge without thevery information the Provincial Court judge said he was lacking. Knowledge of the nature of the evidence to be excluded is essential todetermining society’s interest in the adjudication of the case on its merits.

Information about whether the Crown can prove its case viaother evidence would, depending upon the circumstances of the case, be important in assessing the impact of the Charter breach andsociety’s interest in the adjudication of the case on its merits. [38] Consideration of the nature of the challenged evidence is an integral part of the Grant test. In virtually allcases where the Grant analysis has been applied to exclude evidence, the nature of the evidence was considered by the trial judge: R. v.Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v.

Kelly, 2010 NBCA 89, 367 N.B.R.(2d) 1, R. v. Way, 2011 NBCA 92, [2011] N.B.J. No. 335 (QL). This is nothing new. Consideration was given to the nature of evidenceunder the previous test as well: see R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34 (QL). It followsthat the trial judge erred in making an order for the exclusion of evidence without first knowing the nature of the evidence and theimpact of its exclusion upon the Crown’s case. V.

Conclusion [39] Based upon all of the above, I am of the view the Provincial Court judge erred when he concluded the policeconducted themselves unreasonably in carrying out the search of Mr. Sexton’s home. Furthermore, the Provincial Court judge’s s. 24(2)analysis is flawed given his lack of knowledge about the nature of the evidence he excluded and the impact of its exclusion upon the Crown’s case. I would allow the appeal, dismiss the notice of contention and order anew trial. _____________________________ B. RICHARD BELL, J.A. WE CONCUR:

_______________________________ J.C. MARC RICHARD, J.A. _______________________________ BRADLEY V. GREEN, J.A. COURT OF APPEAL OF NEW BRUNSWICK 173-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - KEVIN MARK SEXTON RESPONDENT KEVIN MARK SEXTON INTIMÉ R. v. Sexton, 2011 NBCA 97 R. c.

Sexton, 2011 NBCA 97 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’hon orable juge Green Appeal from a decision of the Provincial Court : October 14, 2010 November 23, 2010 December 1, 2010 Appel d’une décision de la Cour provinciale : Le 14 octobre 2010 Le 23 novembre 2010 Le 1 er décembre 2010 History of Case: Historique de la cause :

Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 23, 2011 Appel entendu : Le 23 juin 2011 Judgment rendered: October 27, 2011 Jugement rendu : Le 27 octobre 2011 ERRATUM : November 17, 2011 ERRATUM : Le 17 novembre 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Richard The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Green Counsel at hearing: For the appellant: Cameron H. Gunn For the respondent: George E. Kalinowski Avocats à l’audience : Pour l’appelante : Cameron H. Gunn Pour l’intimé : George E.

Kalinowski THE COURT The appeal is allowed and a new trial ordered. LA COUR L’appel est accueilli et la tenue d’un nouveau procès est ordonnée. ERRATUM

With respect to the above-mentioned judgment rendered by this Court on October 27, 2011, the first line of paragraph 1 should read as follows: On January 14, 2010 members of the Fredericton Police Force executed a search warrant at the residence of Kevin Mark Sexton which resulted in the laying of numerous charges, including, but not limited to, possession of cocaine, ecstasy, hashish, LSD, a sawed-off shotgun, an operational replica AK-47 assault rifle, three 9 mm handguns and one .22 calibre handgun. […]