Her Majesty the Queen - v. -, 2011 SKPC 190

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 190 Date: December 16, 2011 Information: 24388289 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Zabrina Laliberte Appearing: Gerald Perkins For the Crown Andrew Lyster For the Accused Ruling on Charter Application J.A. Nightingale , J [ 1 ] Zabrina Laliberte, of Meadow Lake, Saskatchewan, has been charged with four offences, three of them contrary to the Controlled Drugs and Substances Act and one contrary to the Criminal Code of Canada .

The charges are: (1) unlawful possession of the controlled substance cannabis marihuana in an amount not exceeding thirty grams; (2) trafficking in the controlled substance cocaine; (3) possession of the controlled substance cocaine for the purpose of trafficking it; and (4) breach an undertaking given to a peace officer in that she failed to abstain from the possession and consumption of alcohol and other intoxicating substances. Ms. Laliberte has pled not guilty, and so I have commenced a trial into the charges.

She has also brought an application, pursuant to the provisions of the Canadian Charter of Rights and Freedoms , for the exclusion of some of the evidence which the Crown wishes to adduce at the trial, as the appropriate remedy under s. 24(2) of the Charter for what she alleges is a breach of her right under s. 8 of the Charter to be free from unreasonable search and seizure.

[ 2 ] Having considered the evidence, the submissions of counsel and the law, I have concluded that Ms. Laliberte’s s. 8 Charter right has been violated, but that it is not appropriate to exclude the evidence obtained following that violation. My reasons for these conclusions follow. [ 3 ] In order to resolve Ms. Laliberte’s Charter application I have conducted a voir dire . The Crown agreed that it would call the evidence on the voir dire , which consisted of the testimony of two R.C.M.P. officers who investigated the charges against Ms. Laliberte, in the course of which they conducted the impugned search. Ms.

Laliberte called no evidence on the voir dire. [ 4 ] On the 26 th of October 2010, Ms. Laliberte was bound by an undertaking given to a peace officer at Edmonton, Alberta. Among the terms imposed on her by that document were the requirements that she live at a named address in Meadow Lake and that she not possess or consume alcohol or “other intoxicating substances.” [ 5 ] Several days prior to the events of October 26, the R.C.M.P. at Meadow Lake received confidential information that controlled substances were being sold out of the house at which her undertaking required Ms. Laliberte to live.

The informant was of unknown reliability and the police concede that the quality of the information was insufficient to provide grounds for the obtaining of a warrant to search the residence. One of the investigating officers, Cst. Adema, learned, however, that Ms. Laliberte was the tenant of the premises, and became aware of her bail conditions. He decided to take a colleague and perform a check as to whether Ms. Laliberte was complying with those conditions. [ 6 ] Sometime after 10:00 in the evening, Cst. Adema and Cst.

Nash approached the house in question, knocked on the door, heard a male voice ask, “Who is it?” and a variety of scuffling and running noises from within. Cst. Adema replied, “R.C.M.P., can you open the door?”. After a delay of thirty to forty seconds Ms. Laliberte opened the door. As soon as she did, the officers smelled the odour of burnt marihuana from inside. Ms. Laliberte herself was not noted to exhibit any symptoms of marihuana use. [ 7 ] Cst. Adema told Ms. Laliberte that they were there to check on her bail conditions and asked whether she was complying with them. Ms.

Laliberte appeared nervous but said that she was following the terms of her release. Cst. Adema asked her whether there were other people in the house and she replied that she and her partner had some people over for drinks. Cst. Adema asked Ms. Laliberte whether the officers could come inside and she answered, “Sure.” The officers stepped into the entryway of the home. The residence is a split-level house, and from the vestibule one can apparently go down a flight of stairs into a lower level or up a flight of stairs into the main part of the home, which includes the kitchen and living room. Ms.

Laliberte, after allowing the officers to enter the vestibule, turned around and, without uttering another word, walked up the stairs to the main part of the house. Cst. Adema interpreted her actions and her silence as “more or less” an invitation to proceed further, so, as he testified, he directed Cst. Nash to remain by the door to prevent anyone entering and surprising them, and then walked up the stairs after Ms. Laliberte. At no point did he advise her that it was his intent to search the residence, nor that she had the right to refuse entry or to a search.

He also did not advise her of the potential consequences of allowing the officers into the home. [ 8 ] As Cst. Adema reached the top of the stairs he observed a male person using a computer at a kitchen table and the officer found it odd that this person did not look up or otherwise acknowledge his presence. There were several cellular telephones and a cordless telephone on the table. The cellular telephones rang constantly while Cst. Adema was in the room. [ 9 ] For his part, Cst. Nash seems to have moved downstairs at one point, because he observed Ms.

Laliberte’s partner, Andrew Bear, kneeling next to a toilet in a downstairs bathroom, claiming he was unwell and needing to vomit. Once Mr. Bear was feeling better, Cst. Nash moved him upstairs. In the kitchen Cst. Nash saw several kitchen knives sticking out of an element on the stove and several bags of marihuana on the table. He also saw a scale disguised as a pack of cigarettes and some scissors on which he smelled the odour of marihuana. Wedged between an end table and the wall near the computer user the officer saw a plastic bag containing what he believed was cocaine. He showed this to Cst.

Adema. [ 10 ] At that point Cst. Adema decided to arrest all of the occupants of the residence for possession of controlled substances, call for additional officers to come and secure the house and to return to the local R.C.M.P. detachment to prepare an Information To Obtain a Search Warrant. In preparing that document, which has been exhibited at the voir dire , Cst. Adema referred both to the confidential informant’s disclosure and to what had already been seen in the house. He placed the Information before a justice and received a warrant to search. [ 11 ] Cst.

Adema returned to the house and executed the search warrant, aided by fellow officers and a sniffer dog. A variety of drugs, drug paraphernalia, weapons and cash were seized. [ 12 ] The first issue requiring consideration in this case is whether the conduct of the officers at the residence prior to Cst. Adema arresting the occupants and retreating to obtain a warrant to search amounted to a search.

For reasons upon which I will expand below, I have concluded that it was. [ 13 ] It is by now axiomatic in Canadian Charter law that a warrantless search of a residence is prima facie unlawful and is rendered lawful only where limited exceptions apply. Exceptions such as the presence of exigent circumstances, the hot pursuit of a fleeing criminal suspect or a search incident to arrest clearly do not apply here. For the officers to have conducted this search without violating Ms.

Laliberte’s right under s. 8, permission for it must be found either within the authority they had to check upon her compliance with her bail terms, or in her consent to allow them to enter her home. I will deal with these in order. [ 14 ] The terms of Ms. Laliberte’s undertaking required her to reside at a particular place. They did not impose a curfew on her, nor did they require her to show herself at the door of the residence to a police officer monitoring her compliance. The undertaking, while

requiring her to abstain from the possession and consumption of alcohol and “other intoxicating substances,” also did not bestow uponthe police the right to conduct searches of Ms. Laliberte or her residence. In my view, therefore, the release terms allowed the police togo to the residence, knock on the door and try to learn whether Ms. Laliberte was home. If at the door they were unable to ascertain that,the undertaking provided no authority for them to proceed further into the house. If they had reason to suspect alcohol and/or drug useby Ms.

Laliberte - and I accept that here they did, based on the marihuana aroma detected when she opened the door and her admissionthat friends were over for drinks - that suspicion did not give them authority to enter and to search. Only if the grounds for arrest existedthere on the doorstep, and they decided to effect such an arrest, might a limited search incident to that arrest have been constitutionallypossible. Cst. Adema candidly admitted that he lacked such grounds. [15] While I have found that Ms.

Laliberte’s bail conditions allowed the police to go to her residence and to speak with her, anissue which arises in the circumstances here is whether doing so was a ruse, simply an excuse for the officers to see what they could seein order to further a drug investigation for which they lacked legitimate grounds. Cst. Adema admitted that, while he felt the bailcompliance check was perfectly proper, he wouldn’t have done it was it not for his desire to pursue the anonymous trafficking tip he hadreceived.

He testified that the R.C.M.P. are simply too busy to conduct random bail compliance checks. [16] This issue was considered by the Supreme Court of Canada in its decision in R. v. Nolet, 2010 SCC 24 , [2010] 1S.C.R. 851, on appeal from the Saskatchewan Court of Appeal; 2009 SKCA 8. In that case the accused’s commercial tractor-trailer unitwas pulled over by the R.C.M.P. in a routine traffic stop on the Trans-Canada Highway, the officer seeking to examine whether thedocumentation required under the Provincial Highways and Transportation Act were in order.

When certain documentary irregularitieswere discovered, the officer advised the driver, the accused, that he was going to inspect first the trailer, which was empty, and then theinterior of the tractor unit. The officer neither sought nor obtained any consent from the accused. The officer found a small duffle baginside the tractor unit and when he touched the bag, the contents crackled like paper. He assumed that it contained travel documents orold logbooks, so he opened it. Inside was $115,000.00 in cash, bundled in small denominations.

The officer immediately arrested theaccused for possession of the proceeds of crime and then conducted a far more sweeping search of the tractor and trailer. In a hiddencompartment in the trailer police found 392 pounds of marihuana valued at one and a half million dollars. [17] Writing for the Supreme Court of Canada, Binnie J. upheld the decision of the Saskatchewan Court of Appeal, which hadruled that the sequence of searches had not violated Mr. Nolet’s right to be free from unreasonable search and seizure.

Binnie J. held thata step-by-step analysis must be conducted by the Courts to examine the interactions between the police and the suspect in order todetermine whether the police stayed within their authority, having regard to the information lawfully obtained at each stage of theirinquiry. In Nolet it was held that the random stop was related to legitimate highway enforcement purposes and was therefore valid. Thepower of search bestowed by The Highway and Transportation Act was properly used because it had quickly become apparent that thetruck was being operated in violation of several provisions of the Act.

The search of the cab of the tractor unit was similarly permitted asthe officer searched for further evidence related to the Provincial offences. Once the cash was located, the Supreme Court of Canadaruled that the further search of the trailer, yielding the large quantity of marihuana, was valid as incident to the arrest, despite the passageof approximately two hours between the arrest and the search of the truck in the R.C.M.P. detachment compound.

However the“inventory” search of the truck later the same morning was conducted in furtherance of R.C.M.P. administrative procedures, not asincidental to the arrest, and so violated Mr. Nolet’s s. 8 rights.

The Supreme Court of Canada held, however, that the results of thesearch should not be excluded from evidence under s. 24(2) of the Charter because the officers would have discovered the evidence hadthey continued the proper regulatory search and the violation was deemed technical with minimal impact on Charter-protected interests. [18] For my purposes in resolving this Charter application I apply the words of Binnie J. in Nolet, where he wrote, at paragraph41: I agree with Wilkinson J.A. that the question is not “determining which purpose is predominate or subordinate” (para. 85).

As long asthere is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officer’s searchof the duffle bag infringed the reasonable expectations of privacy of the appellants. I do not think that it did, having regard to the totalityof the circumstances as they had progressed to the time of that search. [19] In the case at bar I have held that the officers had a legitimate purpose in going to Ms. Laliberte’s residence to check on hercompliance with her bail conditions, notwithstanding that they also wanted to pursue a drug investigation.

In light of Nolet, it matters notwhich purpose was subordinate to the other. In my view, however, the authority to search in the present case is qualitatively differentfrom that in Nolet because in this case the authority was circumscribed by the terms of the undertaking itself. Their authority toinvestigate whether Ms.

Laliberte was following her bail conditions, in my opinion, extended only to learning whether she was home andwhether she was possessing or consuming alcohol or “other intoxicating substances.” The aroma of burnt marihuana which greeted themat the door did not, in my view - nor apparently theirs - provide grounds for her arrest. Indeed, Cst. Adema testified that if Ms. Lalibertehad refused him entry to the house, he would likely have simply gone away. Having smelled burnt marihuana he may have had thegrounds to seek a warrant to search the premises in order to pursue an investigation as to whether Ms.

Laliberte was breaching the termsof her undertaking, but not the grounds to enter the home without warrant or without obtaining her consent. Certainly there can be noapplication here of the so-called “plain view” doctrine concerning physical evidence, because there was nothing to be plainly viewed inthe entryway of the residence. [20] Cst. Adema interpreted Ms. Laliberte’s one word answer, “Sure.” and her conduct in retreating up the stairs as consent, not onlyfor him to enter the home, but to conduct a cursory search. Did this word and this conduct amount in law to consent?

In consideringthis question I have been guided by the decision of the Supreme Court of Canada in R. v. Borden, (SCC), [1994] 3S.C.R. 145 and by the Ontario Court of Appeal in R. v. Wills (1992), (ON CA), 70 C.C.C. (3d) 529.

[21] In Wills, supra, the accused had been asked to provide a blood sample during the course of an investigation into a fatal motorvehicle accident in which it was believed he, the driver, had been consuming alcohol. Doherty J.A. for the Ontario Court of Appeal setout, at paragraphs 69 and 70 of his decision, a list of criteria which the Crown must show, on a balance of probabilities, existed when theconsent was given. To paraphrase His Lordship, these are: 1. That consent was present, either expressly or impliedly; 2. That the giver of the consent had the authority to give it; 3.

That the consent was voluntary, and not the product of police oppression, coercion or other external conduct negating freedom tochoose not to consent; 4. That the giver of the consent was aware of the police conduct to which he or she was being asked to consent; 5. That the giver of consent was made aware of the right to refuse consent; 6.

That the giver of consent was made aware of the potential consequences of giving consent, including a general understanding ofthe jeopardy resulting from the police conduct about which the consent was being sought. [22] In Borden, supra, the accused was a suspect in several sexual assaults. Under arrest for the second of the two, he made aninculpatory statement to the police and later agreed to a police request that he provide samples of scalp and pubic hair and a bloodsample.

In obtaining these samples the police hoped to establish that the accused was also the perpetrator of the first sexual assault buthe was not told when his consent was obtained. Iacobucci J., writing for the majority of the judges of the Supreme Court of Canadafound that the bodily samples taken from the accused with his consent should be excluded from the evidence at trial because theinformation given to him by the police at the time he gave the consent did not make clear the scope of the consent sought. In reachingthis conclusion, Iacobucci J. cited, with approval, the decision of Doherty J.A. in Wills, supra.

A minority opinion in Borden, supra,written by Lamer C.J.C. confirmed this view, adding that the accused had also not been given the chance to consult counsel again whenthe focus of the investigation shifted to include the first sexual assault. [23] In my opinion, even if I found that Ms. Laliberte’s single word response to the officer’s entry request and her retreat up the stairsamounted to consent for him to enter and look around, such putative consent has not been shown, on a balance of probabilities, to havemet several of the criteria articulated by Doherty J.A. in Wills, supra. While this is Ms.

Laliberte’s Charter application, once the issue ofconsent to search has been joined, it is incumbent upon the Crown to prove the waiver of the s. 8 right. See: R. v. Neilson (1988), (SK CA), 43 C.C.C. (3d) 548, [1988] 6 W.W.R. 1 (Sask, C.A.). It is clear from the evidence that Ms. Laliberte was notmade aware of the whole of the police conduct to which she was being asked to consent; was not made aware of her right to refuse togive her consent; and was not informed of the full extent of the jeopardy in which she would be placing herself by giving her consent.

While the police told her that they were there to check her compliance with the terms of her bail, they were also there to conduct aninvestigation into drug trafficking, and they did not tell her that when they sought her consent to let them in. [24] It follows, in my view, that the entry by the police into the residence; their conduct in walking upstairs and down; and theirexamination of the contents of the kitchen and related areas, was not rendered lawful either by their right to check on Ms. Laliberte’s bailcompliance or by her purported consent.

A question remains, however, as to whether the Information to Obtain a Search Warrant whichwas subsequently placed before a Justice of the Peace, excised so as to exclude reference to the information learned from the unlawfulpreliminary search of the residence, could still provide sufficient grounds for the issuance of the warrant. This “reading down” followsthe procedure recommended in the Supreme Court of Canada’s decision in R. v. Grant, [1993] 3 S.C.R. 13.

To decide this question Ihave examined the Information to Obtain a Search Warrant exhibited at the voir dire. [25] The Information to Obtain a Search Warrant, hereinafter referred to as the “ITO,” makes reference to grounds of belief basedupon the observation that the occupants of the residence at the initial encounter “showed various symptoms of intoxication andnervousness.” This observation could not have been made without the officers entry into both levels of the residence.

The ITO refers aswell to the officers’ observations of “cannabis marihuana, cocaine, drug paraphernalia and numerous cell phones,” also items whichwould not have been seen but for the same entry. All of the ensuing information disclosed to the justice in the ITO is based upon officerobservations and conversations with the occupants of the residence, none of which would have occurred but for the police entry andmovements inside the house.

In my view, when the ITO is read down so as to exclude from consideration all of the information obtainedby the initial police entry, it is incapable of providing a basis upon which a Justice of the Peace, acting judicially, could have issued awarrant to search. [26] The foregoing analysis leads me to conclude that both the initial entry into the house and the consequent search under warrantviolated Ms. Laliberte’s right to freedom from unreasonable search and seizure.

I turn next to consider whether the remedy she seeks -the exclusion of the evidence obtained by means of the Charter breach - should be excluded from the evidence. [27] In considering the question of the exclusion of evidence obtained by a breach of a Charter right I am bound by the decision ofthe Supreme Court of Canada in its decision in R. v.

Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1, which requires me toexamine three matters: (1) the seriousness of the Charter-infringing state conduct, including the concern that admission of the evidencemay convey the message that the justice system condones serious state misconduct; (2) the impact of the breach on the Charter-protectedinterests of the accused, including concern that admission may convey the message that individual rights count for little; and (3) theinterest that society maintains in the adjudication of criminal cases on their merits.

The assessments under each of these lines of inquirymust be balanced to determine whether, considering all of the circumstances, admission of the impugned evidence would bring theadministration of justice into disrepute.

[28] In considering the seriousness of the impugned state conduct I am to examine whether the state conduct was a deliberateviolation of the Charter right, and also the severity of the violation. The more deliberate and the more severe, the greater the need forCourts to dissociate themselves from the fruits of such conduct. Within that inquiry, ignorance of the police of Charter standards, ornegligence or wilful blindness in respecting Charter rights cannot be equated with good faith. Here, I am satisfied that Cst. Ademahonestly believed that his authority to conduct a virtue check on Ms.

Laliberte, concerning her compliance with her release conditions,extended so far as to allow him to speak with her, enter the home and conduct a cursory search, all without first obtaining a searchwarrant. I have found that he was wrong in that belief, but I cannot say that the belief amounted to negligence or wilful blindness. [29] The officer did not rely entirely upon his authority to check bail condition compliance to gain entry into the home; he resorted aswell to the obtaining of Ms. Laliberte’s consent. In doing so, Cst.

Adema’s approach again fell short of constitutional requirements, andthis failure was, in my view, closer to the unacceptable. Wills, supra and Borden, supra, were decided some years ago and the lawconcerning consensual searches is well settled; the officer should have known better. This is of particular concern given the strongprivacy interest Ms. Laliberte enjoyed about her residence. Intrusion into a private home, without warrant or informed consent, is aserious societal concern.

The officer clearly believed that he required consent before he entered, and in that belief ought to have knownwhat was required of him in getting and receiving it. I view the breach as relatively serious, which militates somewhat in favour of theexclusion of the evidence. On the other hand, I find the officer’s conduct was careless at most, rather than deliberate or cavalier. [30] Concerning the question of the impact of the breach on the Charter protected interests of Ms.

Laliberte I observe that this breachwas not merely fleeting or technical, but involved an intrusion into her home by several R.C.M.P. officers. On the other hand, theofficer, having smelled the odour of freshly burnt marihuana, could have arranged to secure the premises and retreated to obtain a searchwarrant in relation to a suspected offence of bail violation, though not for drug offences per se.

Put another way, the evidence was likelydiscoverable without the breaching of a Charter right, suggesting that the infringement of the Charter right had a lesser impact than if itcould not have been discovered without the breach. [31] As to the third area of inquiry, society’s interests in adjudication of the charges on their merits, I observe that the allegations arevery serious, involving as they do charges of trafficking in cocaine and breach of an undertaking given in relation to earlier allegations ofdrug trafficking in Edmonton.

The evidence obtained through the tainted search is reliable in the sense that it is physical, real evidenceand, of course, its admission is critical to the Crown’s case. I am aware that, according to the Supreme Court of Canada, as held in Grant(2009), supra, as well as in that Court’s decision in R. v. Harrison (2009), 2009 SCC 34 , 245 C.C.C. (3d) 86, the seriousness ofthe charges is not conclusive and that I must consider the long-term effects of admission or exclusion of the evidence on the reputation ofthe administration of justice.

I cannot appear to condone a willful and flagrant Charter breach or compare the seriousness of such abreach with the seriousness of the charges to reach my conclusion concerning admission or exclusion of the impugned evidence. [32] Having conducted an analysis in keeping with the foregoing Grant principles I conclude that Cst. Adema acted in good faith butwas somewhat careless in his obtaining of Ms. Laliberte’s consent to his entry into her home and to the cursory search he and hiscolleague made before affecting arrests and seeking judicial authority to conduct a more thorough search.

On balance, in my opinion,the reputation of the administration of justice would suffer greater harm in this case by the exclusion of the evidence than by itsadmission. [33] My decision, unless it is successfully appealed and some different outcome is substituted, will render it clear that the authority inthe police to monitor an accused person’s compliance with bail conditions does not include the authority to conduct a search of the person’s residence unless the bail document expressly provides such authority. In dealing with the situation he encountered on the 26th of October 2010, Cst.

Adema clearly assumed that his conduct amounted to full compliance with constitutional requirements about theobtaining of consent from Ms. Laliberte to allow him to enter her home, and he and other officers will henceforth know that thisassumption was wrong. [34] The application for the exclusion of evidence is dismissed. [35] DATED at the City of Meadow Lake, Saskatchewan this 16th day of December 2011. J.A. Nightingale J.