2022 NBPC 12, 2022 NBPC 12

2022NBPC12 Provincial Court Province of New Brunswick Date: July 18, 2022 Docket: 11606005 Her Majesty, The Queen - and - Shawn Kenneth Flemming Decision on an Application Pursuant to the Charter of Rights and Freedoms Appearances: Kathleen Jacobs for Her Majesty the Queen George Kalinowski for Shawn Kenneth Flemming Note: The name of counsel for the accused was incorrect on the original version of this decision INTRODUCTION 1 . On January 25, 2022 members of the Fredericton Police Force entered the residence at 355 Dundonald St. – Basement Apartment.

The entry was made, initially, by members of the Emergency Response Team (ERT) and then followed by a search of the residence led by members of the Drugs and Organized Crime Team. 2 . The accused, Shawn Kenneth Flemming, suggests that the entry into the residence at 355 Dundonald was a violation of his rights under s. 8 of the Charter of Rights and Freedoms and he seeks exclusion of the fruits of the search pursuant to s. 24(2). He alleges that the search was warrantless in that the warrant upon which the police believed they were entering the house was facially invalid.

It authorized a search at 335 Dundonald St. – Basement Apartment. He also alleges that the manner of the search was in violation of s. 8 in that the police had no reason to deviate from the requirement to knock and announce before entry.

3 . The Crown concedes that the initial warrant was facially invalid and that the entry was conducted without a valid search warrant. They suggest, however, that the grounds to enter the residence were clearly and completely set out in the Information to Obtain a Search Warrant which correctly identified the location of the search. They further point to the fact that when the police discovered their error, they immediately left the premises, secured and obtained a second search warrant for the appropriate address from the same judge to whom they applied for the first warrant.

The manner of the search, they suggest, was appropriate based upon the information available to the police. They contend that even if there is a breach that the items should not be excluded under s. 24 (2). ISSUES 4 . This application raises several issues: a. was the initial entry into the applicant’s residence warrantless and thus in violation of s. 8 of the Charter ; b. was the entry conducted in a manner that violated the s. 8 rights of the accused; and c. if any breaches occurred should the evidence be excluded under s. 24 (2) of the Charter . EVIDENCE 5 .

There is no real dispute with respect to the factual matrix here. Constable Rob O’Donnell, a member of the Fredericton Police Force Drugs and Organized Crime Team applied for and obtained, on January 24, 2022 a warrant to search a residence on Dundonald Street along with a 2010 red Mazda 3 series motor vehicle bearing a particular license plate number and vehicle identification number. 6 .

The initial Information to Obtain ( ITO 1 ) clearly and repeatedly describes the target of the warrant for the residence as directed to 355 Dundonald St. – Basement Apartment, in the City of Fredericton, County of York, Province of New Brunswick (in addition to the vehicle). There are some 34 mentions of 355 Dundonald St. including, at paragraph 38, where it is written that police officers attended the residence on December 30, 2021 and spoke to the accused inside the basement apartment at that location. At paragraph 39 the residence is identified and described.

In paragraph 40 the affiant writes that “Civic “355” is posted in black numbers on the front of the residence. It is clear, apparent and uncontested that the intention of the police was to obtain a warrant to search 355 Dundonald St- Basement Apartment. 7 . The Search Warrant issued by Judge Natalie LeBlanc on January 24, 2022 ( SW 1 ) described the place to be searched as 335 Dundonald Street - Basement Apartment. 8 . SW 1 was eventually executed on the afternoon of January 25, 2022.

All of the police officers involved (save Inspector Scott Patterson) signed the back of SW 1 and those that testified indicated that this was an indication that they had read and reviewed SW 1 prior to its execution. None identified the error that lays at the heart of this application. It was not until Cpl. Rene Theriault, a member of the Forensic Identification

Section tasked with photographing items seized in situ arrived and was shown SW 1 by Cpl. Sam McInnis that the error was noted. 9 . Once the error was noted Cpl. McInnis called a halt to the search, had the peace officers who were conducting the search exit the apartment and maintain scene continuity. Cst. O’Donnell drafted a new Information to Obtain ( ITO 2 ) and obtained a second warrant authorizing a search of 355 Dundonald Street- Basement Apartment ( SW 2 ).

ITO 2 replicates ITO 1 save and except the addition of a paragraph that describes the entry into the apartment, the presence of the accused, the seizure of a firearm, the seizure of cocaine and methamphetamine and efforts to confirm the initial error was a typo and not confusion about the location. The same judge who granted SW 1 also granted SW 2. 10 . SW 2 was executed and various items including a Savage .32 calibre semi-automatic firearm, cocaine, crystal methamphetamine, methamphetamine, clonazepam, Xanax and hydromorphone were located and seized.

The firearm and the most significant amount of the drugs were located and seized (though not taken from the residence) prior to the discovery of the error in SW 1. 11 . The first warrant, SW 1 , was, as indicated, executed with entry by ERT. The use of that team was requested by the Drugs and Organized Crime Team and approved by Inspector Robert Scott Patterson. He is the Inspector in charge of support services and is a Critical Incident Commander. He authorized the use of ERT based upon the accused having an extensive history of firearms, including 19 charges relating to firearms.

The use of ERT included the approval of a dynamic or no-knock entry. This was informed by an operational policy that means that ERT will always be used where there is a history of firearms unless mitigating factors were present. To deviate from the policy, Inspector Patterson would have needed to go to superiors. 12 . The actual dynamic entry, though it weas to involve a door breach, changed when the first member in, Det. Cst. McLaggan noted the front door to be open, saw someone who said, “Oh shit” and started to run. ERT made entry and Det. Cst. McLaggan noted something in the hand of the person.

His demands to stop by yelling “police stop” were not heeded. The accused was arrested after complying with demands to show his hands. Another individual was located hiding. Distraction devices were thrown during the search of the upstairs after the accused had been arrested.

THE LAW AND ANALYSIS The Wrong Address 13 .

Section 8 protects unreasonable search and seizure. The burden in a Charter voir dire is on the applicant on a balance of probabilities and “discharging that burden typically requires the claimant to present evidence.” [1] This burden is subject to exceptions, however, one being in relation to s. 8. Once it has been established that an accused has standing and that a search was warrantless, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable. [2] 14 .

The accused testified that he was living in the searched apartment for 8 months and the Crown takes no issue with standing in this case. 15 . The mistake in the first warrant, SW 1 is fundamental. A warrant to search is a judicial authorization where specificity as to location is critical. In The Law of Search and Seizure in Canada [3] the authors note vagueness invites searches or wrong places or premises. A warrant that does not adequately describe the place to be searched is invalid. [4] 16 .

SW 1 authorized a search at an address other than was intended, other than that which was entered and one that, I accept on the evidence, does not even exist. The search warrant was invalid, and the search conducted ostensibly pursuant to that warrant was, in fact, warrantless. As it was not otherwise authorized by law, it was unreasonable and a violation of Mr. Flemming’s s. 8 Charter rights. The Dynamic Entry 17 .

Reasonableness under s. 8 requires that a search be authorized by law, the authorizing law must itself be reasonable, and the search conducted in a reasonable manner. [5] In addition to challenging the warrant’s facial validity, the accused has also suggested the search was not conducted in a reasonable manner . 18 . Normally for a search to be conducted in a reasonable manner, police officers must make an announcement before forcing entry into a dwelling house.

The Supreme Court of Canada has said that police should give: a. notice of presence by knocking or ringing the door bell; b. notice of authority, by identifying themselves as law enforcement officers; and c. notice of purpose, by stating a lawful reason for entry. [6] 19 .

The Court has also recognized that the principle above is not absolute, but where the police deviate from this approach “there is an onus on them to explain why they thought it necessary to do so.” [7] The Crown may show the search to be reasonable if “the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence.” [8] The Court further held that the evidence to justify an entry that deviates from the norm “ must be apparent in the record and available to the police at the time they acted.” [9] 20 .

Our Court of Appeal has dealt with the issue in R. v. Sexton , [10] where they reversed the findings of the trial judge that a search in circumstances similar to this one was unreasonable. In holding that the execution by the police of the warrant by the ERT team was, in fact, reasonable, the Court said this: 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. [11] 21 . The record here reveals a number of relevant considerations: a. The police had 19 firearms related charges recorded for the accused; b.

The record reproduced from the Canadian Police Information Centre (CPIC) and found at paragraph 31 of both ITO’s indeed shows that the accused had been convicted of 19 offences relating to firearms, including unlawful possession, possession of a prohibited firearm, carrying a concealed weapon, point a firearm, possession of a loaded prohibited or restricted firearm, amongst others; c. That same record reveals three charges for trafficking or possession for the purpose of trafficking drugs;

d. The police concerns here were the safety of police, the public and the accused; e. The decision was made by a senior officer after an operational plan was presented to him based upon the information available to them and in consultation with their operational policy; and f. While the policy dictated the use of ERT where there is a history or threat of weapons, the policy can be deviated from which would require a Critical Incident Commander to seek authority from someone higher than him. 22 . In discussing the basis for the dynamic entry here, Inspector Patterson described this as a “no-brainer”.

While I would not use this language, I understand the basis of his sentiment. The extensive history of firearms and drug trafficking or possession for the purpose of trafficking makes the use of the Emergency Response Team and the no-knock entry reasonable. The search here was conducted in a reasonable manner and there was no breach of s. 8. Section 24(2) 23 . Having found that the initial entry into the residence was warrantless, I turn to what, if any, remedy should be granted to the accused.

Section 24(2) is not an automatic exclusionary rule and the accused bears the burden of “establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.” [12] 24 .

Section 24 of the Charter reads: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 25 . The Supreme Court of Canada’s guidance in R. v. Grant [13] is well known but bears repeating as it forms the analytical framework which I must apply.

At paragraph 71 the Court wrote: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [14] 26 . Before proceeding to the factors described in Grant a preliminary issue arises. Section 24(2) applies only to evidence “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter ”.

Here, the initial search involved the location and detention of several items of evidence, but not their removal from the home before the error in SW 1 was discovered. Those items of evidence were left in the residence, the residence was cleared, and SW 2 was obtained. That warrant was executed and all of the evidence, including the items located pursuant to SW 1 were detained and removed from the residence. The applicant seeks the exclusion of all of the evidence. 27 . SW 2 was not facially invalid.

The applicant has not specifically challenged any sub-facial aspect of that warrant nor the sufficiency of the grounds to issue that warrant. 28 . SW 2 was obtained by the swearing of ITO 2 . As indicated above ITO 2 replicates ITO 1 save and except the addition of a paragraph that describes the entry into the apartment, the presence of the accused, the seizure of a firearm, the seizure of cocaine and methamphetamine and efforts to confirm the initial error was a typo and not confusion about the location. The same judge who granted SW 1 granted SW 2 . 29 .

There might have been an argument that the police should have revealed their error, but not what discovered as a result of that error in ITO 2 . That argument has not been advanced, and, in any event, the excision of that information would, based upon the judge’s granting of the initial warrant on the basis of ITO 1 , would make the over inclusion inconsequential. 30 . This then leaves the question of whether Exhibit DH 7 to DH 17 were “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter ”. 31 . In R. v.

Tim [15] the Court synthesized its guidance on this issue: This Court has provided guidance as to when evidence is "obtained in a manner" that breached an accused's Charter rights so as to trigger s. 24(2) : 1. The courts take "a purposive and generous approach" to whether evidence was "obtained in a manner" that breached an accused's Charter rights (R. v. Wittwer, 2008 SCC 33 , [2008] 2 S.C.R. 235 , at para. 21 ; R. v. Mack, 2014 SCC 58 , [2014] 3 S.C.R. 3 , at para. 38 ). 2. The "entire chain of events" involving the Charter breach and the impugned evidence should be examined (R. v. Strachan, 1988

25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6). 3. "Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course ofconduct" (Mack, at para. 38; see also Wittwer, at para. 21). 4. The connection between the Charter breach and the impugned evidence can be "temporal, contextual, causal or a combination of thethree" (Wittwer, at para. 21, quoting R. v. Plaha(2004), (ON CA), 189 O.A.C. 376, at para. 45). A causal connectionis not required (Wittwer, at para. 21; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; Strachan, at pp. 1000-1002). 5.

A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2) (Mack, atpara. 38; Wittwer, at para. 21; R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Strachan, at pp. 1005-6). Suchsituations should be dealt with on a case by case basis. There is "no hard and fast rule for determining when evidence obtained followingthe infringement of a Charter right becomes too remote" (Strachan, at p. 1006). See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377, at para.57; R. v.

Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 75-76, aff'd 2021 SCC 38; and Hill, Tanovich and Strezos, at §19:22.[16] 32. While there is clearly a temporal connection to the breach, the evidence (DH 7 to DH 17) was clearly not obtained in a manner thatinfringed or denied any rights or freedoms guaranteed by the Charter. The police stopped their warrantless search, exited the residence,sought and obtained another warrant that has not been specifically challenged. Items DH 7 to DH 17 were seized pursuant to a validwarrant. 33.

In case I am wrong about this, the s. 24(2) analysis that I conduct below would apply to items DH 7 to DH 17 as they would to itemsDH 1 to DH 6 which were obtained in a manner that infringed the rights of the accused and are subject to exclusion. I move then to the24(2) analysis. The Seriousness of the Charter Breach 34. In the Grant analysis, the Supreme Court, in considering the first criteria, noted that violations vary in seriousness from “evidenceobtained through inadvertent or minor violations of the Charter” to “evidence obtained through a wilful or reckless disregardof Charter rights”.

The former may have a limited impact on confidence in the rule of law, while the latter will risk bringing theadministration of justice into disrepute.[17] The purpose of this line of inquiry is to preserve confidence in the administration ofjustice.[18] 35. The circumstances here are rather unusual. The police obtained a warrant to search a residence in which they reasonably believedevidence of an offence existed. They searched that residence.

Unfortunately, through a typographical error that eluded the detection ofthe affiant, his supervisor, his supervisor’s supervisor, over a dozen other police officers and the Provincial Court Judge who issued thewarrant, the warrant in hand was for a non-existent residence. 36. The applicant has not suggested that the contents of ITO 1 (nor the other ITO) were insufficient for the judge to grant a warrant tosearch. A review of ITO 1 establishes significant information that could have justified the issuance of a search warrant for the residencethat the police entered. 37.

This cannot be characterized as the type of “wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringingconduct, or a major departure from Charter standards”[19] from which courts should dissociate themselves. On the other hand, theSupreme Court has said that good faith cannot be claimed “if the Charter breach arises from a police officer's negligence, unreasonableerror, ignorance as to the scope of their authority, or ignorance of Charter standard.”[20] 38. This is, I believe, best characterized as human error.

The police were trying to follow Charter informed practices of prior judicialauthorization, they had ample grounds to justify their request to search the residence of the applicant, they followed a course ofprocedure that is clearly meant to avoid the problem that occurred (the signing of the warrant by the executing members) though thisfailed, and they sought and obtained the approval of a senior officer to use ERT. 39.

The veracity of the account of the police, and the best evidence that this was an inadvertent error, is their reaction to its discovery.They immediately ceased the search, drafted a new ITO and obtained a new warrant. 40. This is the very course of conduct that the Ontario Court of Appeal suggested should have occurred in R. v. Ting[21]. There thepolice, acting on incorrect information about the layout of a premises, entered the respondent's basement apartment, mistaking it for anentrance to a landing that would lead to the target apartment.

Despite this, they concluded that though they were wrong about thelocation and layout, that the respondent, and not the occupant of the rear apartment, was person they believed was selling drugs. 41. They continued to search for an hour and forty minutes, but then stopped to obtain a second warrant. The first warrant was clearlyinvalid and the second was also held to be so as it did not fix the problem with the precision of the description and the police did notvacate the apartment while they sought the second warrant. 42.

In upholding the trial judge’s decision, the Ontario Court of Appeal said this about the seriousness of the breach factor:

80 Knowing that they were in premises not authorized by the search warrant, and in the absence of exigent circumstances, the police ought to have left the premises immediately and sought a further warrant. Contrary to the Crown's characterization of events, this is not what occurred; up to seven police officers continued to search a small apartment for one hour and forty minutes before discontinuing. [22] 43. What the Ontario Court of Appeal suggested should have happened is exactly what occurred here.

The Court found the continued search without seeking the second warrant to be the serious conduct in that case as opposed to the “initial and modest infringement”. [23] Here the police, immediately upon discovering their error, stopped the search, left the residence, protected it, sought and obtained a second warrant revealing what had occurred, and only commenced the second search upon the issuance of SW 2 . 44. Based upon all of these considerations I would situate conduct at the less serious to moderately serious end of the scale of culpability. This factor favours inclusion.

The Impact on the Applicant’s Charter Protected Interests 45. The second area of inquiry considers the impact of the breach on the accused's Charter-protected interests. I must evaluate the extent to which the breach undermined the interests of the applicant. The impact may range from “fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” [24] 46. Here the breach led to the forcible entry by ERT members in tactical gear and with drawn weapons.

This is, as courts have long noted, a significant intrusion in the privacy interests of the applicant. 47. Weighed against this is the clear indication that there existed significant grounds to search the residence of the accused and, but for the typographical error and failure of the police and the issuing judge to note it, a presumptively valid warrant would have issued. Discoverability is a relevant consideration. As the Alberta Court of Appeal said in R. v.

Keller [25] the “more likely the evidence could have been obtained without the Charter -infringing state conduct, the lesser the impact on the underlying interests protected by the Charter right.” [26] 48. That there may have been cause in the ITO and that a warrant could have been validly granted does not significantly lessen the impact of the breach. 49. The search here was for a residence occupied by the accused and there is a higher expectation of privacy in a residence than other “places”.

The use of the ERT adds to the intrusiveness of the breach, though, on the other hand there is no evidence to suggest that there was anything done in respect of this search which would have had a significant impact on Mr. Flemming’s dignity. He was not, for example, subjected to an invasive personal search. If I am wrong in this it would do nothing to change my ultimate decision. 50. The fact that this was a residence weighs towards exclusion of the evidence. Societies Interest in the Adjudication of the Case on its Merits 51.

With respect to the third Grant factor the Supreme Court held “public interest in truth-seeking” is relevant and “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.” [27] 52. Would the exclusion of the evidence here exact too great a toll on the truth-seeking goal of the criminal trial”. [28] The impact on the Crown’s case is part of this consideration.

Specifically, the “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.” [29] 53. Here the evidence seized — drugs and firearms and other physical items ---are all real, physical evidence seized at the residence of the accused while he was in the residence. There may be arguments about possession and other issues in the trial proper, on the evidence before me the evidence is highly reliable. It’s exclusion would gut the prosecution. This factor weighs heavily in favour of inclusion. CONCLUSION 54.

Based upon the above, I am of the view that inclusion of the evidence seized by police would not bring the administration of justice into disrepute. To exclude it would entirely undermine the truth-finding function of the criminal justice system and would over-correct for the breaches in this case. I deny the application for the exclusion of the evidence obtained. ______________________________

Cameron Gunn Judge of the Provincial Court