Her Majesty the Queen - v. -, 2016 SKPC 172

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 172 Date: December 21, 2016 Information: 24448779 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marcia Marie McMahon Appearing: Mr. Brent Slobodian For the Crown Mr. Peter Abrametz Jr. For the Defence _____________________________________________________________________________ DECISION ON VOIR DIRE H.M. HARRADENCE , J _____________________________________________________________________________

INTRODUCTION [ 1 ] On November 16, 2013, police officers entered a residence in the Big River District. Corporal Knock (then Constable) had received information, by telephone, from Mobile Crisis in Prince Albert. An anonymous tip, provided to Mobile Crisis, indicated that children in the residence were not being properly fed and the house was in poor condition. [ 2 ] Corporal Knock attended the residence to do a “welfare check”. She had a discussion with the accused outside the residence, then proceeded to enter the residence without a warrant, immediately noting a smell of burnt marihuana.

Corporal Knock further observed a quantity of marihuana bud on the kitchen counter. After arresting the three adults, and, while apprehending the children in the residence, Corporal Knock discovered marihuana plants in various stages of growth in the basement.

As a result of this discovery by Corporal Knock, she left the residence and applied for a warrant to conduct a search of the residence. [ 3 ] This accused is charged with the following offences, as a result of the search: On or about the 16 th day of November, A.D. 2013, at R.M. of Canwood, in the Province of Saskatchewan, did: Unlawfully produce a substance included in

Schedule II, to wit: cannabis marihuana, contrary to Section 7(1) of the Controlled Drugs and Substances Act ; Unlawfully possess a substance included in

Schedule II, to wit: cannabis marihuana in an amount exceeding 3 kgs for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act ; Without lawful excuse store a firearm, to wit: a Cooey .22, without reasonable precaution for the safety of other persons, contrary to Section 86(1) of the Criminal Code . [ 4 ] Mr. Abrametz, Counsel for the accused, has applied, by notice dated August 17, 2016, to have the evidence seized from the residence excluded under s. 8 and s. 24(2) of the Charter . By agreement of counsel, a voir dire was held on September 12, 2016.

THE FACTS [ 5 ] Corporal Knock testified during the voir dire that on November 16, 2013, about 12:30 p.m. she received a call from her dispatch relaying information from Mobile Crisis.

As a result of this dispatch Corporal Knock spoke directly to Mobile Crisis as indicated in her examination in-chief: A This -- we -- I spoke to a woman named Trish Paidy (phonetic) at Mobile Crisis who said that they’d got an anonymous tip that the -- that the living conditions at the McMahon and Watier residence were -- were poor and that this tipster had also said that the children weren’t being fed properly and that the house was in poor condition.

And since they didn’t have anybody in the area and it was a weekend, they had asked if we could go and just take a look, find out what things were like and report back to them. [ 6 ] Corporal Knock was unfamiliar with the residence referred to in the anonymous tip or its location in the rural area surrounding Big River. Once she had ascertained the location she attended the residence with Constable Shillito at 1:45 p.m. She described her initial attendance at the residence and discussion outside of the residence with the accused in examination in-chief as follows: Q All right.

So you arrived approximately 1:45 in the afternoon? A Yes.

Q Could you describe to the Court what happened next? A We pulled in to the yard and we were met at the door -- outside the door by Ms. McMahon. She -- she came out of the residence to meet us. We approached her and spoke with her outside the house. Outside the house I told her why we were there, that we had gotten -- or that there had -- there had been an anonymous tip and we needed to just check the residence. Like, the conditions in the residence, just to ensure that the kids were safe and that they were being well cared for. And Ms. McMahon then -- she asked if she could have a few minutes to clean up inside.

And I told her that wasn’t really the point of a welfare check to, you know, give time to prepare. It’s kind of a spot check to make sure things are okay when you don’t know somebody’s coming. Q If you could just hold on one moment -- A Sure. Q -- please, officer. All right. So what was her response to that? A She -- she opened the door and entered the residence and we followed in behind her. Q Was anything further said outside? A Not to my recollection. It wasn’t -- it wasn’t a very long conversation outside. Q Could I ask what was going to be a response if she refused entrance?

A We were going to just go back -- back to the office and talk to Mobile Crisis and they would have to do the appropriate paperwork themselves to come out and do the checks as necessary. [ 7 ] In cross-examination Corporal Knock recalled that the anonymous tip also referred to the residents as drug users. She was questioned by Mr. Abrametz as to her conversation with the accused outside of the residence: Q Okay. Fine. I’d like to know, if you could tell us, please, the exact words you used when you first confronted Ms. McMahon. And I understand it was outside the house, right? A Yes. Q Good.

And did she -- did you see her exit the house when you -- A Yes. Q Okay. Very good. And can you tell us, please, the exact words you used? A I can’t. It was nearly three years ago. I can’t recall the exact words I used to speak with her. Q Okay. So you didn’t record notes then is what you’re saying? A At the time I had no ability to record notes. I was speaking with her and then we were going inside to do a welfare check on the children, which turned into what I described before. Q Yeah. Okay. All right. All right. Well, I’m -- I’m just wondering, can you tell us the exact words that Ms. McMahon told you?

A I can’t remember the exact words, no. Q Okay. Did you ever use the words, we can do it the easy way or the hard way?

A I don’t recall. Q All right. Corporal, you were in uniform, right, with a marked police cruiser with a side-arm on you right? A Yes. Q Right. Okay. A In uniform. Q So, I mean, you were -- you were an authority figure obviously, right? A In uniform, yes. Q Okay. And did you tell Ms. McMahon, why -- for example, did you say, hey, look, that some unknown agency in Prince Albert had an anonymous tip and that’s why I’m here? Did you do that? A I told -- I believe I told her that we were there to do a welfare check because of an anonymous tip. Q Okay. Okay. All right. Okay.

And did you give her any warnings or cautions? A I don’t know in what respect you mean. Q Okay. Well, did you tell her -- now, at one point you said that if she refused entry you would have turned around and left, right? A I would have. It would have been up to Mobile Crisis at that point to get the paperwork in order. Q Okay. Fine. Did you convey that to her? A I don’t recall. Q Okay. All right. All right. Would you agree that you were there and you conveyed that you had the right to do this and this had to be done?

A I -- I that -- I were to -- I -- yes, that this was something that PA -- or Mobile Crisis would want us to do. As we’re here -- this is what -- this is why we’re here. This is the purpose of our -- excuse me, of our visit. [ 8 ] At the conclusion of her testimony the Court asked Corporal Knock if she had ever made notes of this conversation: THE COURT: So you entered this residence and the basis on which you entered the residence is the conversation that you had at the door with Ms. McMahon? THE WITNESS: Yes.

THE COURT: And you didn’t think to go back and make a note of that conversation of what you said and what she said and, you know, after you saw what was in their residence, you didn’t think to go back and make a note of that conversation? THE WITNESS: That is my error. It was a -- it was a busy day and my -- there was a lot of adrenaline, a lot of things going on and that I -- yeah, I failed -- I failed to write the notes on it when I had the chance.

[9] Immediately upon entry into the home Corporal Knock smelled burnt marihuana and saw a mason jar containing marihuanabud on the kitchen counter. The three adults who were in the residence, including this accused, were arrested. [10] There is no evidence to suggest the children were in immediate need of care due to the neglect.

Corporal Knock made thedecision to apprehend the children on the basis that she had arrested all of the accused and she needed, “to get the children somewherewhere they could be watched by responsible adults at least until such time we could deal with what these parents were up against”. [11] As part of taking the children from the home, Corporal Knock went downstairs with one of the children to retrieve a sock. Inthe basement she saw several marihuana plants growing in plastic buckets.

By consent, the Crown filed the report of Corporal JeremyKnodel which indicated there were 52 plants in the basement. [12] Corporal Knock secured the residence and returned to the Big River R.C.M.P. detachment. She drafted a search warrantapplication based on the Mobile Crisis information and on her observations in the residence. A search warrant was granted for theresidence and out buildings. A search was done not only of the residence but also of a trailer located on the property.

Corporal Knodel’sreport indicates that there were 139 plants “in the drying stage” in the trailer. [13] Corporal Knodel’s report indicates that 191 marihuana plants were located. He believes, based on certain assumptions thatthis number of plants could potentially yield $71,620.00 to $107,430.00 if sold by the pound in the Saskatchewan market. ANALYSIS [14] Legitimate issues of child safety require a prompt, fair and lawful response.

In Saskatchewan, The Child and Family ServicesAct authorizes an officer appointed under the Act, or a peace officer, to investigate if reasonable grounds exist to believe a child is in needof protection.

The Act further permits a justice of the peace to issue a warrant for access to a child in need of protection, if satisfied, thata person is refusing access to the child and access is necessary to determine if the child is in need of protection. [15] In R v Noftall, 2016 NLCA 48 [Noftall], the Newfoundland Court of Appeal concluded that police officers were lawfully in aresidence when they discovered a marihuana grow op. Justice Welsch noted that the police had entered the residence assisting childwelfare officers who believed children were in need of protective care.

The Newfoundland Child and Youth Care and Protection Act,authorizes a warrantless entry by a social worker who believes a child is in immediate risk. Recognizing that the police entered the hometo assist social workers acting under the authority of this Statute, Justice Welsch concluded that the police exceeded their authority bysearching the residence contrary to s. 8. He admitted the evidence pursuant to s. 24(2) given the lawfulness of the initial police entry. [16] Unlike Noftall, Corporal Knock was not assisting a child welfare officer who was acting under the authority of theSaskatchewan legislation.

Corporal Knock’s purpose in attending the residence was to inquire into the well-being of the children. Theevidence satisfies me that her actions were motivated by a willingness to assist Mobile Crisis and make inquiries concerning the children. [17] The anonymous tip by itself is not sufficient to constitute reasonable grounds to investigate. Corporal Knock’s attendance atthe residence to make inquiries is permissible as part of the implied licence to knock principle. Once Corporal Knock decided to enterthe residence she exceeded the implied licence and was an intruder conducting a search of the residence.

Justice Lebel in R vMacDonald, 2014 SCC 3, refers to the applied licence to knock principle as follows: [26] There is no question that individuals have a reasonable, indeed a strong, expectation of privacy in their homes (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, at para. 19; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297), as well as in the approaches to their homes (Evans, at para. 21). However, Evans alsoestablished that the police have an implied licence to approach the door of a residence and knock.

Doing so will not be considered aninvasion of privacy constituting a search if the purpose of the police is to communicate with the occupant. But “[w]here the conduct ofthe police . . . goes beyond that which is permitted by the implied licence to knock, the implied ‘conditions’ of that licence haveeffectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder” (Evans, at para.15). In such circumstances, the police action constitutes a “search”. (see also R v Rogers 2016 SKCA 105)

[18] Given that Corporal Knock proceeded without a warrant, I must scrutinize the evidence from the perspective of a warrantlesssearch. The search is presumptively unreasonable unless it is authorized by law, the law itself is reasonable and the manner of the searchis reasonable. [19] The Crown argued that Corporal Knock obtained permission to enter the residence. Corporal Knock did not testify that shehad the accused’s consent to search the residence. To the contrary, the officer’s evidence gives me the impression she entered the homeover the objection of the accused.

Nonetheless, I must consider whether this accused consented to the search or simply acquiesced to theinevitable [20] The ingredients of a valid consent search are concisely stated by Justice Fish in R v Cole, 2012 SCC 53, [2012] 3 SCR 34, atpara 78: “for consent to be valid, it must be both voluntary and informed.” [21] Corporal Knock testified that her intention was to perform a welfare check or spot check.

While the accused asked for a fewminutes, Corporal Knock refused saying “it is kind of a spot check to make sure things are ok when you don’t know somebody iscoming.” There is no evidence that any effort was made to ensure the accused’s “consent” was either voluntary or informed. At best,this circumstance is similar to R v Bigsky, 2016 SKPC 106 [Bigsky], where Judge Kovatch used the phrase “forced consent.” [22] The Crown argues that the police were acting within their common-law authority to protect the public.

In argument, theCrown refers to R v Gulbranson, (SK PC) [Gulbrabson], a decision of Judge Whelan. [23] In Gulbranson Judge Whelan relies on the Supreme Court of Canada’s decision in R v KLW , 2000 SCC 48, and R v Godoy, (SCC), 1999 1 SCR 311 [Godoy]. [24] The facts in Gulbranson are markedly different from the facts before me. In Gulbranson, two police officers met the motherof two boys on the street in front of a house where the boys and their father were located. The mother told the police that the father wasintoxicated and when he is in that state he becomes violent.

One of the officers knew the father and 15 years earlier had dealt with himwhen he had become very violent. When the officers attended the house the father was initially calm and cooperative but then becamebelligerent and angry and began to swear. It was apparent to the officers that he was intoxicated and the child was in need of protection. [25] Given these facts Judge Whelan concludes the following: 27 It is unnecessary to decide whether the Officers had or had not entered the dwelling house given the placement of the Officer'shand on the door jam.

It is sufficient that they made their intention clear and the Accused understood their intention, which was to enterthe dwelling to apprehend the child. This was prima facie interference with the Accused's liberty and property. 28 The Officers were acting within the general scope of a duty to protect and prevent crime. In this situation, they might have actedunder the authority of The Child and Family Services Act, The Police Act or their common law power to protect and prevent crime. 29 The Officers' conduct did not involve an unjustifiable use of the powers associated with the duty.

They acted to protect a child in adomestic situation. In this setting the child was very vulnerable. When they announced their intention to apprehend the child his fatherwas intoxicated and he had been behaving in a threatening manner… [26] This is a similar conclusion to that reached by Judge Kovatch in Bigsky where he indicated that where the evidence establishesa child is “actively abused and in need of protection” the police should be permitted to enter a residence to investigate and apprehend. [27] Godoy considers the police response to a disconnected 911 call.

Chief Justice Lamer employs the Wakefield test to evaluatewhether police have the common-law power to enter a residence, after a disconnected 911 call. This test poses two questions: 1) does thepolice conduct fall within the general scope of a duty imposed by a statute or common law? 2) does the police conduct involve anunjustifiable use of their power?

[ 28 ] Recognizing that “giving aid to persons in distress is the very essence of the police duty to protect life”, ( Godoy , at para 8 ) Chief Justice Lamer extrapolates an obligation on the police to enter a dwelling house, including by force where necessary, and investigate. This duty does not provide limitless police powers.

In order to achieve the balance between the sanctity of a dwelling house and provide an effective means of investigating familial abuse the power of the police must be circumscribed. [ 29 ] Firstly, according to Godoy , without more than a disconnected 911 call, the police duty to protect life justifies forced entry into a dwelling house only to determine the health and safety of the caller. Secondly, the entry must be necessary to protect life and safety.

Chief Justice Lamer recognizes this limitation in paragraph 22 of Godoy where he states: [22] … However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required.

The police authority for being on private property in response to a 911 call end there… [ 30 ] The test outlined in Godoy applies to this situation to determine whether the police acted within their common-law powers when entering the residence to check on the children. Given the fact sensitive nature of the inquiry, I must examine the totality of the circumstances known to Corporal Knock in light of the framework set out in Godoy . Corporal Knock’s testimony satisfies me that she did not believe the lives or safety of the children were in danger.

The only basis for her entry into the home was a vague anonymous tip: the children were not being properly fed and the house was in poor condition. Without more, I have concluded that Corporal Knock was not acting in the course of her duty to protect life when she entered the accused’s residence to conduct a welfare or spot check.

Failing the consent of the accused, as Corporal Knock recognized, she should have advised Mobile Crisis to attempt entry to the house lawfully, by applying for a warrant. [ 31 ] Given the testimony of Corporal Knock, I find that she did not have evidence that the lives or safety of the children was endangered, nor did she have a valid consent nor a warrant when she initially entered the home of the accused. She was acting in excess of her powers as a police officer. In these circumstances the entry was not authorized by law.

It was an unreasonable search and seizure and violated s. 8 of the Charter . [ 32 ] An examination of the Information to obtain the search warrant which was subsequently granted reveals that the grounds relating to this residence arose from Corporal Knock’s initial entry. (See para 3.1 and 3.2 of P6) [ 33 ] As stated in R v Wiley , 1993 3 SCR 203 , the police cannot rely on evidence obtained in violation of the Charter to support an application to search or to justify an arrest.

I have concluded that the search and seizure conducted by warrant subsequent to Corporal Knock’s entry and the arrest of the accused cannot ex post facto rectify an otherwise unreasonable search. SECTION 24(2) [ 34 ] A section 24(2) analysis involves a consideration of the three factors outlined in R v Grant , 2009 SCC 32 . Mr.

Slobodian, on behalf of the Crown, quotes paragraph 71 of Grant in his brief: [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

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. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [ 35 ] The Crown argues Corporal Knock acted with good faith. It is my conclusion that she testified candidly.

She testified to having some experience in drug investigations over her five years as an R.C.M.P. member. She was able to distinguish, given this experience, between fresh and smoked marihuana. She also testified that, in the past, she has accompanied Mobile Crisis to ensure the peace, similar to the facts in Noftall , but she has never been asked to investigate whether a child is in need of protection.

[36] Mr. Slobodian refers to the Saskatchewan Court of Appeal decision in R v Shinkewski, 2012 SKCA 63. Shinkewski indicatesthat in considering the seriousness of the Charter breach the Court should take steps to “ascertain and impose a definitive degree of faulton the state for its misconduct.” It is a factor in this assessment that Corporal Knock testified honestly at the voir dire, however, it is notthe only factor. Corporal Knock testified at the voir dire, almost three years after the fact, and had the benefit of hindsight andexperience.

In my view, the following factors elevate the seriousness of this breach: 1. The subject of the search was a dwelling house. Unlike Noftall, Corporal Knock did not lawfully enter the house. (See Noftall at para46 & 47) 2. The search was conducted on the basis of a vague anonymous tip that was based on third hand information. Corporal Knock didnothing to ascertain more information about this tip and the tip does not suggest the children were in serious or immediate danger. 3.

Corporal Knock made no inquiry as to the well-being of the children prior to proceeding with the entry to the house, includingquestioning the accused outside of the residence. 4. There is no evidence that Corporal Knock provided rights to counsel or made any effort to obtain informed or voluntary consent fromthe accused. 5. Corporal Knock was aware at the time that if the accused did not provide permission to enter the residence, that she should adviseMobile Crisis to apply for a warrant before she could lawfully enter the residence. 6.

Corporal Knock made no notes of her conversation with the accused despite knowing the importance of note taking and even afterrealizing the amount of marihuana located in the residence. [37] In the absence of a threat to life or safety, police, no matter how well intended, do not have the power to conduct awarrantless, nonconsensual, non-urgent search of a residence under the guise of a spot or welfare check.

Ignorance of this fundamentallimit on police powers cannot be equated with good faith. [38] The second factor in the Grant analysis is to consider the impact of the breach on the accused’s Charter protected interests. In Grant Madam Justice Charron states at para 113 as follows: [113] With respect to the second inquiry, the Charter breach most often associated with non-bodily physical evidence is the s. 8protection against unreasonable search and seizure: see, e.g., Buhay. Privacy is the principal interest involved in such cases.

Thejurisprudence offers guidance in evaluating the extent to which the accused’s reasonable expectation of privacy was infringed. Forexample, a dwelling house attracts a higher expectation of privacy than a place of business or an automobile. An illegal search of a housewill therefore be seen as more serious at this stage of the analysis. (Emphasis added) [39] In this case, the accused’s house was searched, she was arrested, and she was separated from her children all on the basis of ananonymous tip. In my view, this represents a significant impact on the Charter protected interests of the accused.

Referring to R vPlant, (SCC), [1993] 3 SCR 281, Chief Justice Lamer stated at paragraph 19 of Godoy: “there is unquestionably arecognized privacy interest that residents have within the sanctity of the home.” [40] The final factor in the Grant analysis is society’s interest in adjudication of this case on its merits. In this case, exclusion ofthe results of the search effectively terminates this prosecution.

I find, given the quantity of marihuana seized, that this factor militates infavour of inclusion. [41] In balancing the three Grant factors, I am satisfied this evidence should be excluded pursuant to s. 24(2) of the Charter. Inreaching this conclusion I rely upon the conclusion of Justice Fish in R v Morelli, 2010 SCC 8: [110] Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants.

But justice receives ablack eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices. [111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.

[ 42 ] In conclusion, the evidence obtained as a result of the search of this residence and out buildings will be excluded pursuant to s. 24(2) of the Charter . Dated this 21 st day of December, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ________________________ H.M. Harradence, J