Her Majesty the Queen - v. -, 2013 SKPC 194

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 194 Date: November 27, 2013 Information: 44803281 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mahamad Osman Appearing: C. Carlson For the Crown J. Sawani For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Mr. Osman was charged on June 30, 2011 with having possession of currency believed to be proceeds of crime contrary to s. 354(1) and 355 of the Criminal Code .

In addition, he faces four counts of possession of different drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . Those drugs are: cocaine, cannabis marihuana, nabilone and methylenedioxymethamphetamine.

[ 2 ] Notice was given of an application to have exhibits excluded because of violations of s. 8 and 9 of the Charter . At the outset, counsel for the accused advised the Court that the only issues to be determined are the validity of the search and seizure and the admissibility of the exhibits seized. Further, if possession of the drugs is established, counsel for the accused does not dispute the purpose for that possession; nor does counsel dispute that the money seized was the proceeds of crime.

The entire case hinges on whether the exhibits are admissible. [ 3 ] The Crown evidence was called on a voir dire ; there was no defence evidence. There was agreement between counsel that the evidence on the voir dire would be applied to the trial proper in accordance with the ruling of the Court as to admissibility of the exhibits. Counsel for the accused advised that there would be no defence evidence called on the trial. EVIDENCE [ 4 ] A number of admissions were made at the commencement of the voir dire and are set out in Exhibit P-1. In

summary, admissions were made with respect to jurisdiction, identity of the accused, and the continuity of exhibits. The seized substances were admitted to be cocaine, cannabis marihuana, nabilone and methylenedioxymethamphetamine and Certificates of Analysts were filed to identify those drugs. It was also admitted that there was a total of 66 grams of cocaine; 14 grams of which was soft cocaine in a baggie and the remaining 52 grams packaged in six separate baggies, each weighing between five and ten grams.

It was further admitted that there was 204 grams of marihuana in one baggie, as well as 57 pills of nabilone, and 267 pills of ecstasy (methylenedioxymethamphetamine) in another baggie. In relation to the money seized, it was admitted that a total of $17,730.00 was found. In a black box on the kitchen counter was $14,220.00; $1,000.00 in each of 14 bundles and $220.00 in a separate roll.

Another $2,500.00 was located in the back of a couch, and $1,010.00, bound in an elastic, in a baggie was found on the accused. [ 5 ] Mona Dulle testified that she is an associate manager for Boardwalk Rental Communities and tendered a 12 month lease agreement with the accused which started on July 1, 2010 and ended June 30, 2011. On June 30, 2011 she received an email from Sue O’Neill, the building manager, to the effect that the accused had not yet started to move. She instructed Ms. O’Neill to tell the accused to vacate. A few minutes later, she received information from Ms.

O’Neill that the accused needed one more hour. She instructed Ms. O’Neill to move him out if he had not left by that time. At 2:09 p.m. Ms. O’Neill advised her that a large quantity of marihuana had been found in the accused’s suite when Boardwalk staff began moving his possessions into the public hallway. [ 6 ] In cross-examination, Ms. Dulle agreed that any lease agreement is governed by The Residential Tenancies Act and that in some instances a court order is necessary to evict a tenant. She opined that a landlord could take possession of the premises if there is no longer a valid lease.

She did not agree that a court order was required for an over holding tenant who had given notice to vacate. She agreed that although the accused had given notice to vacate, it was clear that he had not since his possessions remained in the apartment. [ 7 ] Susanne O’Neill testified that she is the building manager or customer service representative for the apartment building in which the accused had rented a suite. On June 18, 2010, the accused entered into a one-year lease agreement for an apartment in a building which she managed.

Although the accused moved into the suite on June 18, the lease did not begin until noon on July 1, 2010 and ended at noon on June 30, 2011. After he moved in, she saw him fairly frequently. She also tendered a business record maintained to keep track of correspondence and dealings with tenants. Her record with respect to the accused revealed, in part, that the accused originally gave notice to vacate on May 30, 2011. On June 3, 2011 he notified Ms. O’Neill that he would remain until the end of June rather than break his lease.

However, he had not paid his rent by June 16 th so after numerous reminders had been given, an eviction notice was posted on his door. The rent was eventually paid on the 21 st of June. [ 8 ] As she understood that the accused would vacate the suite by noon on June 30, she attempted to set up a time for a suite inspection and the return of the keys. This met with no response. On June 30, she spoke to the accused at about 9:00 a.m. and he told her that he would be out shortly. At 11:30 she returned to his apartment as she had not seen anything being moved out of the building.

He told her that he could not get a truck. Since there were new tenants moving in the next day and the apartment needed to be painted and the carpets cleaned before then, she told the accused that he had one hour, or his possessions would be moved into the common hallway of the building. In response, the accused laughed, said that was “fine” and left the building. [ 9 ] By1:30 that afternoon he had not returned, so Ms. O’Neill instructed her staff to start moving the contents of the apartment into the hall. This occurred between 1:30 and 2:00 p.m.

When the living room futon was lifted, they discovered a large baggie of what

appeared to be marihuana. Since she did not believe it appropriate that her staff deal with illegal substances, she directed the employees to return to the suite anything that had been moved into the hall. The apartment was locked and the police were called. They arrived shortly afterward. [ 10 ] The uniformed officers asked who had lawful possession of the apartment and she advised them that the landlord did as the lease had expired. They asked her to unlock the door to the apartment, which she did, and the officers entered while she waited in the hall.

The officers were in the suite about five minutes when the accused came back and asked her what was happening. She left the area. [ 11 ] In cross-examination, Ms. O’Neill confirmed that she was expecting the accused to vacate the premises but that it was clear he had not, nor did it appear that he was ready to leave. She could not say whether there was any discussion with the officers about a search warrant. [ 12 ] Constable Georget, a peace officer with the Saskatoon City Police Service with four years experience, was called at 2:17 p.m. to respond to a call regarding a found bag of marihuana. He met with Ms.

O’Neill at 2:25. She provided the gist of the complaint which was that the lease on the apartment in question had expired and that the accused had been given notice to vacate the suite by noon. As he had not, his property was being moved out of the suite when the bag of marihuana was found. He accompanied Ms. O’Neill to the apartment, knocked but received no answer. They were granted entry by Ms. O’Neill who directed them to the futon. It was raised to reveal a 30 cm. by 30 cm. bag of marihuana that was seized.

Shortly after, the other officer pointed out a shoe box in the kitchen which contained 15 bundles of cash. [ 13 ] At 2:37 p.m. the accused came into the apartment and initially told the officers that he was there to help a friend move; he later admitted that he was the tenant. He was placed under arrest and searched incident to that arrest. A wad of cash comprised of a single 50 dollar bill and 48 - 20 dollar bills was found in his pocket.

The accused was advised of his rights to counsel and was turned over to Constable Rainville. [ 14 ] Constable Georget remained in the apartment and at 3:00 p.m. seized a bag with what later was discovered to be cocaine residue. He returned to the police station where the marijuana, cash and cocaine residue were filed in the exhibit room. Assistance was requested from the Drug Unit and a search warrant was obtained and executed. Exhibits 1-21 inclusive listed on the Drug Exhibit Control Form appended to the Statement of Admissions were seized pursuant to the search warrant.

These include: two cell phones, a grinder, plastic bags, air and bus tickets, plates with residue, several bags of cocaine, ecstasy, scales and baggies. [ 15 ] In cross-examination, the officer confirmed that he received information that the accused was to have vacated the premises by noon. The officer was further advised that the accused had been told that if he did not, the staff would remove his possessions; the officer was also told that the accused acknowledged this by saying “fine”.

The officer conceded that he had no personal knowledge as to whether the tenant had a lawful right to the apartment but was told that he did not because his lease had expired. He agreed that there were no exigent circumstances that prevented him from securing the apartment and obtaining a search warrant. He further acknowledged that he would not have obtained a warrant but for the advice from a member of the Drug Unit.

He obtained that advice after he had entered the apartment, looked under the futon and seized the marihuana, cash and cocaine residue. [ 16 ] Constable Rainville testified that at 2:15 p.m. he was asked to attend at an apartment building with respect to some marihuana that a building employee had found. He met with Constable Georget and Ms. O’Neill. This officer confirmed the evidence of Cst Georget as to the information received from Ms. O’Neill and their subsequent actions. When allowed access to the apartment by Ms. O’Neill, the officers checked each room to ensure that no one was present.

It appeared that preparations to leave had been made, as there were boxes and a suitcase packed in the living room. After the bag of marihuana was located, Constable Rainville noticed a shoe box on a kitchen cabinet. When he opened the box at 2:34 p.m., he found 15 bundles of cash. Shortly after this, the accused came into the apartment and initially introduced himself as someone helping with the move. He then admitted that he lived in the suite and asked that the officers accompany him to the office as they had no right to be in his apartment.

He was arrested by Constable Georget and turned over to another officer who was called to transport the accused to the police station. Constable Rainville remained at the apartment until 6:00 p.m. when he was relieved by other officers. [ 17 ] In cross-examination, Constable Rainville expressed the view that the accused had vacated the apartment and abandoned his possessions. He also was advised that the accused had been told that if his possessions were not out by noon, they would be removed for him. He agreed that there was no authority to evict an over holding tenant or one in arrears of rent.

The landlord was asking for police

assistance to deal with the marihuana as there were new tenants coming into the suite. It was not until the initial items were located that he considered the possible need for a warrant or further direction on how to proceed. The officer agreed that the accused, upon returning to his suite, objected to the police presence there. He did not recall the accused asking whether they had a warrant but did recall him asking them to go to the office. He confirmed that the incident occurred over a very short period of time: they entered at 2:30, found the marihuana and cash by 2:34 and the accused entered at 2:37.

He also acknowledged that there were no safety concerns once the apartment was cleared, and no concern for the destruction of possible exhibits. DEFENCE POSITION [ 18 ] Counsel for the accused takes the position that the search and seizure effected in the residence of the accused was unreasonable and constituted a violation of his rights pursuant to s. 8 of the Charter . Further, this breach warrants exclusion of all of the exhibits pursuant to a Grant analysis as the search warrant subsequently obtained was tainted by the initial unlawful search and seizure.

Further, counsel argues that the accused maintained an expectation of privacy in the suite as an over holding tenant within the meaning of The Residential Tenancies Act, S.S. 2006, c. R-22.0001 . Pursuant to s. 65 of that Act , the landlord is entitled to enter only after having obtained a court order for possession. Finally, counsel argues that the arrest of the accused, in his home, without a Feeney warrant, constitutes a violation of his right to be free of arbitrary detention pursuant to s. 9 of the Charter .

Further, counsel contends that the arrest was unlawful as it was based upon unlawfully obtained evidence. CROWN POSITION [ 19 ] Counsel for the Crown argues that at the time that the police entered the suite, the accused did not have a reasonable expectation of privacy in the apartment. He had expressed his intention to vacate and had granted permission to the landlord to move his possessions into the hallway. Thus, he was not an over holding tenant within the meaning of The Residential Tenancies Act . Therefore, the warrantless search was authorized by the consent of the landlord.

Finally, even if there was a Charter breach, the nature of the breach does not warrant exclusion of the real evidence. ISSUES 1. Was there a violation of the rights of the accused pursuant to s. 8 and 9 of the Charter? 2. If there was a violation, is exclusion the appropriate remedy? 3. If the evidence is admissible, has the Crown established all of the elements of the offences alleged beyond a reasonable doubt? ANALYSIS 1.

Was there a violation of the rights of the accused pursuant to s. 8 and 9 of the Charter? [ 20 ] An analysis of this issue requires consideration respecting the following: the validity of the search and seizure before the warrant was obtained, the validity of the search pursuant to the warrant and the validity of the arrest. [ 21 ]

Section 8 of the Charter articulates the broad right to be free from unreasonable searches and seizures in order to protect an individual’s right to privacy from unjustified state intrusion: see Hunter v. Southam Inc. , [1994] 2. S.C.R. 145. In this case, any complaint that the accused might have about the conduct of Ms. Dulle and Ms. O’Neill are for another forum. The issues before this Court must centre on the conduct of the police. The protection of the Charter does not extend to the landlord unless it can be shown that she was an agent of the state, which she clearly was not.

[22] The initial search of the apartment was a warrantless search and therefore, prima facie unreasonable. That search can only beconsidered reasonable if (

i) it was authorized by law; (ii) the law itself was reasonable; and (iii) the manner in which the search wasconducted was reasonable: see R. v. Collins, (SCC), [1987] 1 S.C.R. 265 (SCC). Whether a search of any location isultimately reasonable is inextricably tied to the expectation of privacy which attaches to the area searched. [23] As indicated in R. v.

Edwards (1996), (SCC), 104 C.C.C. (3d) 136 (SCC) at para. 33: It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must be madewithout reference to the conduct of the police during the impugned search. There are two distinct questions which must be answered inany s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was anunreasonable intrusion on that right to privacy. See Rawlings v Kentucky, 448 U.S. 98 (1980).

Usually, the conduct of the police willonly be relevant when consideration is given to the second stage. [24] Any analysis of the expectation of privacy in any particular place is contextual and must be determined on the facts of eachcase: see R. v. Buhay, 2003 SCC 30, at para. 22. In that case, security officers at a bus depot detected the smell of marihuana emanatingfrom a locker which the accused had rented for a 24 hour period which had not yet lapsed. As a result, they opened the locker with amaster key and located a substantial amount of the drug.

They put the package back in the locker which was again secured. Police werecalled, the locker was opened for them and the marihuana was seized without benefit of a warrant. The Supreme Court of Canada heldthat the accused maintained an expectation of privacy as the rental of the locker had not expired, and there were no exigentcircumstances which prevented the officers from obtaining a search warrant. The Court found that the search was therefore unreasonable,and excluded the evidence after a s. 24(2) analysis. [25] In R. v. Kenny (1992), (ON CA), 70 C.C.C. (3d) 180 (Ont.

C.A.) the accused rented a suite at a hotel andleft a “Do Not Disturb” sign on the door. A chambermaid entered the suite after receiving no response to her knock. Inside, she realizedthat one of six pillows was missing from the bed so she looked for it. She found it in a storage closet in the suite that was utilized by thehotel to store tables and chairs used to convert the suite’s living room to a boardroom if need be. Upon putting her hand into the pillowslip, she discovered a dark coloured waxy brick and some money. She reported what she had found to the police and said that shethought it “suspicious”.

The police attended and entered the room with the hotel manager. The pillow case was found to contain whatultimately was proven to be a block of cannabis resin and $6,900.00 cash.

The Court considered the question of searches conducted onthe strength of a third party consent and concluded, at para. 23: The warrantless and surreptitious search of a hotel room, upon mere suspicion of criminal activities, when the registered guests areabsent and have left a “Do Not Disturb” sign on their door, constitutes an impermissible intrusion by the state on a legitimate andreasonable expectation of privacy and, therefore, constitutes a violation of s. 8 of the Charter.

However, the fruits of that search were admitted after a s. 24(2) analysis. [26] The case at hand is markedly different than Buhay and Kenny in circumstance. Although “there is no place on earth wherepersons can have a greater expectation of privacy than within their dwelling house” (see: R. v. Silveira (SCC), 1995S.C.J. No. 38 at para. 140), this high expectation of privacy cannot continue simply because personal items remain within a dwelling. Here, it is clear that the lease held by the accused had expired, his intention was to vacate, and he would not spend another night in thepremises.

He had been advised that the owner needed to work on the apartment to make it ready for a new tenant who was moving inthe next day. More significantly, he was told that if he did not remove his possessions, they would be removed for him. The onlyevidence before this Court was that he acquiesced to that notion by saying “fine”. Under these circumstances, the Court cannotreasonably conclude that he had the same expectation of privacy as if he was a valid leaseholder.

Rather it is my view, in the absence ofany other evidence, that having acquiesced to his possessions being removed by the landlord, he surrendered any expectation of privacyhe previously enjoyed. [27] Having found that the accused, on the facts before the Court, reasonably could not have an expectation of privacy, it isunnecessary to consider whether the search was an unreasonable invasion of that privacy. At the very least, any expectation of privacy

was so diminished as to render the subsequent search reasonable. [28] Counsel also argued that the arrest of the accused in the apartment, without warrant, was also a violation of his rights pursuantto s. 9 of the Charter as no Feeney warrant had been obtained and there was no evidence of hot pursuit. This argument is predicated on afinding that the officers were not lawfully in the apartment and that the grounds for the arrest were based on unlawfully seized evidence. Section 495(1) of the Criminal Code says: A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed...anindictable offence. In this instance, the police officers entered the apartment at the behest of the landlord after being told that the accused was no longerentitled to inhabit the suite. The officers were directed to evidence of an indictable offence.

Having found that the officers were lawfullyin the premise and that the evidence was properly seized, it follows that the arrest was also lawful. [29] Having concluded that the initial entry and search of the apartment did not offend any expectation of privacy and that thesearch was reasonable, it follows that the grounds to obtain the subsequent search warrant were valid and seizure of the items pursuantto that warrant was also lawful.

However, in the event that I am in error with respect to the expectation of privacy and the lawfulness ofthe search and the arrest, I will embark upon an analysis pursuant to s. 24(2) of the Charter and a determination of whether any of theevidence should be excluded in the event that conduct of the police was in violation of the Charter rights of the accused. 2. If there was a violation, is exclusion the appropriate remedy? [30] As set out in R. v. Grant, 2009 SCC 32 , 2009 S.C.J. No. 32, any determination with respect to exclusion of evidencerequires an inquiry along three lines: (

i) the seriousness of the state conduct which infringed the Charter; (ii) the impact on the Charter-protected interests of the accused; and (iii) the interests of society in having the matter adjudicated on the merits. [31] With respect to the issue of the seriousness of the Charter-infringing state conduct, Grant, supra at para. 74 defined the rangeof seriousness in the following way: At one end of the spectrum, admission of the evidence obtained through inadvertent or minor violations of the Charter may minimallyundermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful orreckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringingthe administration of justice into disrepute. [32] Therefore, the more serious and deliberate the state conduct, the more inclined the courts should be to disassociate from thatconduct by weighing in favour of exclusion. In this instance, I find that the conduct of the police did not amount to a flagrant disregardof the rights of the accused.

The evidence is uncontradicted that although they did not initially consider a search warrant, they were aliveto the issue of who had lawful possession and control of the apartment. Having been advised that the lease had expired, and that theaccused had been told that the landlord would be entering the suite and removing its contents, they entered with the permission of thelandlord. The officers subjectively believed that they were entitled to enter based on their inquiries of Ms. O’Neill.

Based on all of thecircumstances, it is the opinion of this Court that belief was objectively reasonable; the conduct of the officers did not amount to ablatant or wilful disregard of the rights of the accused. Indeed, their subsequent request for advice and the resulting search warrantindicates their continued concern that they were acting properly. [33] In Kenny (supra) the Court, after conducting a s. 24(2) analysis, found that the exhibits seized should not be excluded. Atpara. 32, the Court said:

...the police in this case were operating in an area with little statutory or judicial guidance. In my opinion, they made a reasonable mistake in law, in good faith, as that term is presently understood in Charter jurisprudence. The police error here is perhaps all the more reasonable because it is not solely an error as to the criminal law or constitutional requirements of the search, but is in part an error as to the private law governing the relationship between hotel management and guests.

This is particularly significant here where the search was not initiated by the police but was conducted in response to a specific request by the hotel manager. (Emphasis mine) The Court found this to mitigate the seriousness of the state conduct. A similar situation existed in the case at hand, and I find that the seriousness of the impugned state conduct is at the lower end of the spectrum and would weigh in favour of admission of the evidence. [ 34 ] The second line of inquiry concerns the impact on the accused of any breach of a Charter- protected interest.

At para. 76 of Grant , supra , the Supreme Court of Canada gave this guidance: The impact of the Charter breach on the Charter -protected interests of the accused may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

And later at para. 78: Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 35 ] In the case at hand the accused, at best, had a very diminished expectation of privacy given that his tenancy had expired and given his knowledge that the landlord intended to enter and to remove his possessions to make ready for the incoming tenant.

Further, the officers were present for minutes and the search was an orderly one which involved lifting a futon to reveal the marihuana and lifting a box lid to reveal the rolls of cash. The baggie of cocaine was noted lying on the floor in plain view. It cannot be said that this search intruded in an area where the accused had the same high expectation of privacy to which he was entitled before his lease expired, nor can it be said that the search demeaned his personal integrity or dignity.

An analysis of this arm favours inclusion. [ 36 ] With respect to the third line of inquiry, society’s interest in the adjudication of the case on its merits, the Supreme Court in Grant explained at para. 79 : Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law...” Thus the Court suggested in Collins that a judge on a 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [ 37 ] The reliability of the evidence sought to be excluded and its importance to the prosecution are very relevant to the truth seeking function of the trial process.

In Grant (supra) , the Court in considering non-bodily physical evidence said, at para. 115: The third inquiry, whether the admission of the evidence would serve society’s interest in having a case adjudicated on its merits, like the others, engages the facts of the particular case. Reliability issues with physical evidence will not generally be related to the Charter breach.

Therefore, this consideration tends to weigh in favour of admission. [ 38 ] In the case at hand, the evidence is real, non-conscripted evidence which is highly reliable and its exclusion would end any prosecution or ability to adjudicate the matter on the merits. Admission of such evidence is not apt to bring the administration of justice

into disrepute but rather would serve to enhance it by having the allegations before the Court adjudicated on all of the available evidence. Accordingly, an assessment on this branch would militate in favour of inclusion. [ 39 ] Overall, I am satisfied that the exclusion of the evidence would bring the administration of justice into disrepute. Accordingly, even if I am in error with respect to the expectation of privacy and the lawfulness of the search, I would admit the evidence after considering s. 24(2) of the Charter in the context of Grant ( supra ). 3.

If the evidence is admissible, has the Crown established all of the elements of the offences alleged beyond a reasonable doubt? [ 40 ] The only evidence before this Court is that the accused was the sole tenant of the apartment searched throughout the tenancy agreement and thus in possession and control of the items seized. Defence counsel concedes that if the exhibits were found to be admissible, possession by the accused has been established.

The drugs seized during a search of that apartment have been proven, by certificate and admission, to be the controlled substances cocaine, marihuana, nabilone and methylenedioxymethamphetamine. Given the quantity and variety of the drugs found, the total amount of cash and the other evidence which speaks to trafficking, counsel for the accused concedes that if the exhibits were found to be admissible, the elements of possession for the purpose of trafficking have been made out.

The Court is also satisfied beyond a reasonable doubt that the purpose of the possession was for trafficking and that the cash seized was derived from that conduct. [ 41 ] Therefore, the exhibits having been admitted and consideration having been given to all of the evidence and admissions before me, I am satisfied, beyond a reasonable doubt that the Crown has established all of the elements of each of the allegations before me and the accused is found guilty as charged on all counts. ___________________________ M.L. Gray J