Her Majesty the Queen - v. -, 2018 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 063 Date: October 31, 2018 Information: 991045607; 991052592 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sage Andrew Michael Paddy Appearing: Bryce Pashovitz For the Crown Tanis Talbot For the Accused DECISION ON CHARTER VOIR DIRE B.G. MORGAN , J Introduction [ 1 ] On March 23, 2018, Mr. Paddy was wanted for being unlawfully at large, contrary to s. 145(1) (

b) of the Criminal Code of Canada . A Canada Wide warrant was in effect.

[ 2 ] Just prior to that date, members of the Saskatoon Police Service, had received a tip that Mr. Paddy might be staying at 104C - 3110 - 33 rd Street West in Saskatoon. The police, including members of the Guns and Gangs Unit, had that location under observation, when at approximately 1:10 a.m. Mr. Paddy was dropped off in the parking lot, walked to a ground floor patio door, and knocked. The officers noted someone let him into that apartment, leading to the obvious conclusion that there were at least two individuals (and possibly more) inside that unit.

The police had no prior knowledge of any criminal activity being associated with that address. [ 3 ] Members of the police therefore approached the ground floor patio door that Mr. Paddy had gained access through, as well as the interior entrance down a hallway inside the apartment complex, announced their presence, and encouraged Mr. Paddy to come out. There was no response to their requests. [ 4 ] Accordingly, Detective Constable Keleman ensured the area was locked down, and left to obtain a Feeney warrant, which was granted. He returned to the area at approximately 3:00 a.m. with that warrant in hand.

While he was gone, of course, the premises remained under constant surveillance by the police to ensure no one entered or exited. [ 5 ] Armed with that warrant, Detective Constable Keleman tried to gain access through the patio door, but it was jammed. However, he did see that Mr. Paddy, whom he had known since Mr. Paddy was 11 years old; he was 27 at this time. [ 6 ] Apparently having decided that further delay on his part was rather futile, Mr. Paddy stated that he would go to the apartment door in the hallway, which was then opened from the inside, and Mr.

Paddy was promptly arrested and taken to a waiting police car. [ 7 ] Detective Constable Keleman then came around to the interior entrance, went into the apartment, and noted other officers were speaking to a female who was sitting on the couch, with one officer watching for potential danger from within. Detective Constable Keleman was clear that the reason he then entered into the residence and quickly searched the rooms for other individuals was because, in his experience, it s not uncommon for individuals in a house or apartment to be held against their will when there is potential gang involvement.

Further, he was concerned that there may be other individuals hiding in the apartment that could potentially cause danger to the police. Thus, he went through the apartment, satisfied himself that there were no other individuals present, and while he was in the bedroom, noticed a black backpack that he had seen Mr. Paddy wearing a few hours earlier when he was observed going in through the patio door. This backpack was sitting on a pile of clothes in the closet, and when the officer lifted it, he noted it was “much heavier than an empty backpack would be”.

He therefore opened the backpack, and found a semi-automatic rifle and ammunition for that, all of which led to a number of gun charges being levied against Mr. Paddy. [ 8 ] The defence brings an application under the Charter s. 8 arguing that this was an unreasonable search and seizure, and seeks exclusion of all the evidence located.

In essence, there are two issues: 1) Did Detective Constable Keleman, the Feeney warrant having been executed, have any legal authority to enter in and search the apartment? and 2) Assuming he did, was the seizure and search of the backpack appropriate? [ 9 ] Counsel have agreed that Mr. Paddy himself had no privacy interest in the apartment; it was leased to the young woman who was sitting on the couch, who testified that it was her apartment, although the defence argues quite strenuously that Mr.

Paddy had a privacy interest in his backpack. [ 10 ] I will address the issues as above. 1) Did Detective Constable Keleman have authority to be in the apartment at all?

[11] In R v Godoy (SCC), [1999] 1 S.C.R. 311 [Godoy], the Supreme Court reviewed the law respecting policepowers to enter a residence in the context of an uncompleted 911 emergency call.

At para 12 of that decision, reviewing the “acceptedtest for evaluating the common law powers and duties of the police” as set out in R v Waterfield, [1963] All E.R 659 (C.C.A.), the Courtnoted as follows: If police conduct constitutes a prima facie interference with a person’s liberty or property, the Court must consider two questions: First,does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does theconduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. [12] The Court reviewed the powers of the Ontario police as set out in their guiding authority.

In Saskatchewan, the authority isthe Police Act, 1990, SS 1990-91, c P-15.01 at s. 36. Specifically, each member of the police has the powers and responsibilities,among others, to perform all duties that are assigned to constables in relation to the preservation of the peace and the prevention of crimeand offences against the laws in force in the municipality. It also allows the police to execute all warrants and perform all duties andservices under or in relation to them that may lawfully be executed and performed by constables or peace officers. [13] In para 15 of Godoy the Court notes that, citing Dedman v.

The Queen, (SCC), that the preservation of thepeace falls under the common law duties of the police, and notes that “. . . the duty to protect life is a “general duty” . . . and is thus notlimited to protecting the lives of victims of crime.” [14] In my view, the general requirement to preserve the peace did allow Detective Constable Keleman to enter into the premisesfor the limited purpose of ensuring there were no other citizens potentially at risk.

He was very clear, when challenged in cross-examination, that although he had no prior knowledge of any gang affiliation with that particular residence, his experience was that it was“not uncommon” for gang members to take over a residence, and he wanted to enter the residence “to ensure that no one was in anunsafe environment against their will”.

He was equally clear that he was “not going in with the intent of searching for evidence”. [15] In the circumstances of this case, when the police are involved in what is somewhat of a stand off situation, with a knownindividual who was the subject of a warrant, and having no prior knowledge how many individuals may be in the residence, the policehad every right and duty to do a cursory search of the premises to ensure both public safety, and their own safety. [16] The main issue becomes whether or not the seizure of the backpack was reasonable, which I will now turn to. 2) Seizure and search of the backpack [17] The officer was equally clear that, prior to actually finding the weapons in the backpack, he had no reason to believe that Mr.Paddy was armed at the time he was seen entering the patio door with that backpack slung over his shoulder.

There is nothing in theevidence to suggest that Mr. Paddy was armed at any time, or in possession of anything inappropriate. Rather, he was being arrested forbeing unlawfully at large by dint of being a parole violator. [18] There is no evidence that anything was told by any informant who gave the police the information as to where Mr. Paddymight be located, that he might be armed.

[ 19 ] In this case, although I am in agreement with counsel that Mr. Paddy had no privacy interest in the apartment itself, I am satisfied that he had a privacy interest in the backpack. Detective Constable Keleman testified that he was 100% certain that the backpack he came across in the closet was the same backpack that Mr. Paddy wore into that apartment. The backpack in question was a brand called “Jumpman” and carried a distinctive logo that was present both on the backpack being worn into the premises and the backpack found in the premises.

Detective Constable Keleman was absolutely certain that this was in fact Mr. Paddy’s backpack. Whether or not that is in fact true, that was certainly the officer’s belief. The more pressing question is why the officer took it upon himself to firstly seize the backpack, knowing it was Mr. Paddy’s, and then take it upon himself to open it and discover the contents of it. [ 20 ] I am not satisfied with any of the proffered reasons, which I will now review, as to why the backpack was seized and then searched.

I believe that the reason this occurred was because Detective Constable Keleman had a hunch that a search of that backpack would turn up something along the lines of what it did. Good police officers often have hunches; however, that does not mean they can act upon the hunch without their actions attracting scrutiny. [ 21 ] One reason the officer gave for his actions was “I seized the backpack and contents as offence-related property”. As it turns out, what was in the backpack can be defined as offence-related property.

However, the fact that the seizure and search openly revealed offence-related property does not justify the seizure or the search in the first place. The obvious problem with this reasoning is that at the time of seizing the backpack, the officer had no idea what was in the backpack. Nothing was visible except a closed backpack. This reason does not justify the seizure. [ 22 ] A second reason the officer gave was that he grabbed the backpack because he had seen it on Mr. Paddy earlier, that is, when he entered the premises. Again, that does not justify seizing it.

That reason more closely aligns with my belief that he seized it because he had known Sage Paddy since the latter was a youth, and obviously was of the opinion Mr. Paddy was a seasoned criminal. Again, that certainly doesn’t justify seizure. [ 23 ] A third reason given was that he grabbed the backpack because it was in plain view. The problem with this line of reasoning is that the backpack was most certainly in plain view, but there was no contraband or illegal substances that were in plain view. Those items were inside the backpack.

The plain view doctrine was recently reviewed in R v Kossick , 2018 SKCA 55 , at para 44 [Kossick] of that case, citing R v Jones , 2011 ONCA 632 . Our Court of Appeal states: [56] The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however: (

i) the officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of the authorities); (ii) the nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) the evidence must have been discovered inadvertently; (iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes. [ 24 ] In this case, I am accepting for the purposes of this s. 8 argument that the officer was lawfully in the place where the search was being conducted, for the limited purpose stated earlier.

That is, whereas he had no right to enter those premises pursuant to a warrant, and in fact did not even ask the occupant of the premises if he could search, the officer’s stated purpose and obvious reason to be inside that residence was to ensure there was no public danger to any other citizen, and to ensure officer safety of those officers in the apartment.

[ 25 ] However, I cannot determine that “the nature of the evidence” was “immediately apparent as constituting a criminal offence”. He saw a backpack that he had seen earlier that evening, and there was no suggestion anywhere in the evidence that that backpack might contain anything that might “constitute a criminal offence”. That evidence was inside the backpack. [ 26 ] Further, I cannot conclude that the evidence was discovered inadvertently. While going through the house looking for people, this officer saw a backpack he recognized as having been worn earlier.

I do not accept any suggestion by the police officer that there was anything inadvertent about this discovery. Rather, I am satisfied that the officer was looking for the backpack, because he was curious about what might be in it, despite what he says. [ 27 ] Further, the fourth test cannot possibly be met in these circumstances. Even if one were to find that the backpack was validly seized, there is simply no reason for this officer to have searched the backpack. For the purposes of this decision, I need not get into details about what else was in the backpack that might be used to suggest that Mr.

Paddy did or did not himself “possess” the contents of that backpack. The point I make here is that, as indicated in the cited case from the Court of Appeal, the plain view doctrine “confers a seizure power not a search power . . . it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes”. Here, that is exactly what the officer conducted; an exploratory search to find out what was in Mr.

Paddy’s (in his view) backpack. [ 28 ] The Kossick case also refers to the case of R v Spindloe, 2001 SKCA 58 [Spindloe] , in which the Court clearly states (at para 42): ...The plain view seizure power cannot be exercised as a pretext for a planned warrantless seizure, but if the police are lawfully present in premises, they may seize property in plain view as long as there is probable cause to associate the discovered property with criminal activity. [ 29 ] The Court goes on to say at para 50 of Spindloe : “The plain view doctrine confers a seizure power not a search power.

It does not permit an exploratory search to find other evidence”. [ 30 ] In this case, the officer has done exactly what he was prohibited from doing. Even if one could stretch the plain view doctrine to cover the backpack itself, there was simply no reason for the officer to do a “exploratory search to find other evidence”. He testified that he had known Mr. Paddy for some 16 years, clearly intimating that, in the officer’s experience, Mr. Paddy was a seasoned criminal. I believe the officer seized and then searched the backpack as he was curious what might be in it, having personal knowledge of Mr.

Paddy’s criminal background. I find this is a breach of Mr. Paddy’s s. 8 Charter right. [ 31 ] Prior to going through the Grant analysis, I do want to address the argument that perhaps the seizure of the backpack falls under the rubric of search incident to arrest. I find it was not. There was nothing in that search that can in any way be connected to the execution of the Feeney warrant. Mr. Paddy was, by the time the officer entered, in the police car and presumably had been searched for any weapons. He had no access to anything in the apartment.

There is simply nothing in the evidence to justify this search for reasons of officer or public safety. Even if that were to be the case, that might justify seizure of the backpack, but it certainly could not justify looking inside it. [ 32 ] I also wish to comment on the evidence of Ms. Henney, who was a defence witness called to speak to the observations she had. I accept her evidence generally in that she was the lessee of the lease (co-signed with her grandmother) and that she let people stay off and on. She agreed that her residence was a “bit of a crash pad”. As to what occurred the night Mr.

Paddy was apprehended at her residence, I think she described her role and attitude accurately when she said “I was scared shitless”. That fear was based on her being “scared of everything”; as she explained, she was not frightened of Mr. Paddy, but she was obviously concerned that she herself might be arrested. I also accept her evidence that police did not ask if they could come in, and that she essentially couldn’t recall what they may have said to her.

None of this changes the basic template that I have laid out, in which I have found that Detective Constable Keleman went into the house for the limited purpose for ensuring public safety. [ 33 ] As explained in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] exclusion may be allowed if to do otherwise would “bring the administration of justice into disrepute.” At paragraph 68 of Grant , the Court notes that this is a long-view analysis:

[68]...But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances, and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. [ 34 ] I will go through the three-pronged test against that background: 1.

The seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct). [ 35 ] The general question under this heading is whether or not, if the evidence was admitted, it would bring the administration of justice into disrepute by sending a message that the Court condones such behaviour.

As a general rule, the more severe or deliberate state conduct that led to the Charter violation, the greater the need for the courts to dissociate itself from such action. [ 36 ] I find that the seriousness of the state conduct that led to the breach is on the higher end of the scale. Detective Constable Keleman said himself that he did not enter the apartment for the purposes of finding evidence; rather, he was adamant that his purpose was to ensure both police safety and the safety of potential members of the public who may have been held against their will.

That type of search does not require the seizure and search of a backpack. Detective Constable Keleman had the right, as I have found, to do a brief run through of the property for limited purposes. He chose to satisfy his curiosity by seizing and looking into the backpack when there was simply no reason whatsoever to do that. This breach was quite egregious. In this case, and under this heading, I find that it is particularly important for the Court to exclude the evidence. 2.

The impact on the Charter -protected interests on the accused. [ 37 ] As noted in Grant , this examination “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”. In my view, this search was profoundly intrusive. What Detective Constable Keleman chose to do was look in a backpack, certainly as private as a wallet or a woman’s purse. Although Detective Constable Keleman’s hunch turned out to be right, that does not justify his actions. The backpack, even by Detective Constable Keleman’s view, was the personal property of Mr.

Paddy and the officer had to know it could contain personal effects of Mr. Paddy. I am very concerned that if this evidence was admitted, it would bring the administration of justice into disrepute. 3. Society’s interest in an adjudication on the merits. [ 38 ] The question here is whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence than by exclusion of that evidence. [ 39 ] Obviously, the impact of failing to admit the evidence would be devastating, if not fatal, to the Crown’s case.

On that basis alone, it is obvious that the fact finding process of a trial would be severely hampered if the evidence was excluded. This is real evidence that existed irrespective of anything done by the police.

However, in balancing the impact of the admission of the evidence and the failure to admit the evidence, on the question of the effect on the administration of justice, I have determined that admitting it in this case would bring the administration of justice into disrepute. [ 40 ] Crown counsel argued that this particular matter did start out with a Feeney warrant, and that the search was, in Crown counsel’s view, both lawful and reasonable, arguing that the Grant analysis should lead to inclusion. On the facts of this case, I cannot agree.

[ 41 ] On all the circumstances of this case, and in looking at the Grant analysis as per the above, I determine that any evidence located in the backpack should not be admitted into the trial proper. In sum, whereas I am satisfied that the officer had the right and duty to do a quick search of the premises, I am satisfied that the officer went well beyond that, and used that excuse as a pretense to search for evidence, which is precisely what the officer said he was not going into the premises to do.

In my view, it is required that the Court dissociate itself from this type of conduct by the police. [ 42 ] In conclusion, the evidence found in the backpack shall not be admitted in the trial proper. ______________________ B.G. Morgan, J