R. v. Richards and MacLean, 2012 NSSC 254

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Richards and MacLean , 2012 NSSC 254 Date: 20120704 Docket: CRAT-356385 and CRAT-356383 Registry: Antigonish Between: Her Majesty the Queen v. Wynne Dawson Richards and Hugh Boyd MacLean Judge: The Honourable Justice N.M. Scaravelli Heard: June 12, 2012 in Antigonish, Nova Scotia Counsel: Wayne MacMillan, for the Crown Kevin Burke, Q.C., Defence Counsel for Wynne Richards Gregory MacIsaac, Defence Counsel for Hugh MacLean By the Court : [ 1 ] Wynne Dawson Richards is jointly charged with Hugh Boyd MacLean for unlawfully producing cannabis marihuana, contrary to

Section 7 of the Controlled Drugs and Substances Act (CDSA) . Mr. Richards is also charged with unlawful possession of cannabis resin (hash oil), contrary to Section 4(5) of the CDSA . [ 2 ] This is a voir dire decision on the application of Mr. Richards who alleges a breach of his

Section 8 Charter right against unreasonable search and seizure. He seeks to exclude the evidence seized during the search, pursuant to Section 24(2) of the Charter of Rights and Freedoms ( Charter ). Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure.

Enforcement 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 3 ] At the hearing of the application, both crown and defence counsel agreed the transcript produced following the Preliminary Inquiry would serve as the evidence on the Charter voir dire .

This evidence consisted of testimony of the two R.C.M.P. officers involved in the search. Counsel filed briefs and made oral submissions based on the transcript evidence. Background Facts [ 4 ] While on patrol duty in Antigonish on July 18 th , 2010, Constable Michael Thompson and Constable David Astephen received a complaint from dispatch at approximately 4:00 a.m., of a possible assault in a taxi cab that was heading towards Havre Boucher, Antigonish County. The complaint received from the cab driver revealed a possible assault by a female passenger upon a male passenger, after picking them up at a bar.

Constable Thompson obtained the contact number of the cab driver from dispatch and spoke to him. He obtained the name of the male passenger, Danny Kennedy, and a description of the location of the residence in the Havre Boucher area where Mr. Kennedy and an unnamed female were dropped off. Dispatch ran Kennedy ’ s name through the police database, revealing that he resided in Port Hawkesbury, and was “ involved in a prior domestic ” . There was a no contact order with a named female. [ 5 ] The police travelled around the rural area of Havre Boucher attempting to locate the premises described by the cab driver.

After approximately one hour, they drove up to a white bungalow on top of a hill, at the end of a long laneway. Although it was dark at the time, the police were satisfied they found the residence described by the cab driver. As the police vehicle approached the house, a man later identified as the co-accused, Hugh Boyd MacLean, was standing on the step outside the house having a cigarette. He went inside the house as the police vehicle approached. [ 6 ] The police knocked on the door. Mr. MacLean came to the door and spoke to them through the partially-opened window of the door.

He was asked to step outside, which he did. Before the police explained why they were there, Mr. MacLean stated “ there was no violence ” . When questioned, he told the police Mr. Kennedy left on foot and the female left in a grey vehicle. He stated the female lived in Grant ’ s Pond. Looking through the window, the police observed a beer bottle on the kitchen table and could hear loud music. Mr. MacLean told the police the house was the residence of Dawson Richards, who was not at home. According to Constable Thompson, MacLean initially stated that he was renting the property.

He also told Constable Astephen that he resided in Port Hawkesbury. [ 7 ] Over the course of the conversation, the police felt Mr. MacLean was being evasive in his answers and was acting a “ little bit suspicious ” . He was asked if they could enter the residence to see if there was anyone else there. The bungalow consisted of a main level and a separate outside entrance to the basement. “ Eventually ” Mr. MacLean agreed to allow the two officers into the home where they searched all the rooms on the main level. They noticed a side door to the house was opened.

The police then decided to search the outside perimeter of the house and to look for any movement through the basement windows, as they were told the outside basement door was locked. While outside the house Constable Thompson flashed his flashlight around the side of the house and observed several buckets close to the side of the house containing marihuana plants. The police further observed plastic covers over the basement windows. The police decided to obtain a search warrant and ultimately seized the marihuana plants. [ 8 ] Under cross-examination, Constable Astephen testified that when he heard Mr.

Kennedy ’ s name from dispatch he believed Mr. Kennedy was a person known to be involved in drugs and other criminal activity. He acknowledged that in addition to investigating the reported assault by a female upon Mr. Kennedy in the cab, they were also investigating a possible breach of a condition by Mr. Kennedy. Even though Mr. MacLean appeared to be acting suspicious, Constable Astephen acknowledged that he eventually answered all police questions.

Section 8 Analysis [9] This case involves police intrusion upon a private home without the prior authorization of a warrant. Given the expectationof privacy, a warrant to search under these circumstances is prima facie unreasonable. Accordingly, the onus is on the crown to rebut thepresumption of unreasonableness., Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. A search will be reasonable ifit is authorized by law, if the law itself is reasonable, and if the manner in which the search was conducted is reasonable, R. v. Collins, (SCC), [1987] 1 S.C.R. 265.

The principle of expectation of privacy in an individual’s home is not without exceptions. Intrusion of a home owner’s privacy rights may be justified where there are hot pursuit circumstances, exigent circumstances or statutoryauthorization. R. v. Timmons, [2011] N.S.C.A. 39. [10] The crown does not suggest that any of the exceptions are applicable in this case. The crown submits the warrantless searchconducted by the police fell under the common law police powers to protect life or safety of occupants and, therefore, did not violateSection 8 of the Charter. The crown relies on R. v.

Godoy, (SCC), [1999] 1 S.C.R. 311 where it is acknowledged thatpolice have a common law duty to respond to distress calls relating to a dwelling. In Godoy the police responded to a 911 call from theaccused’s apartment. The accused opened to door and tried to shut the door when police tried to investigate. The police entered forciblyand found the accused’s injured wife.

With respect to the policy duty to protect life and prevent injury, the court stated: “...the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health andsafety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough tomerit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited to the protection of lifeand safety.

The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons formaking the call and provide such assistance as may be required. The police authority for being on private property in response to a911 call ends there.

They do not have further permission to search premises or otherwise intrude on a resident’s privacy orproperty...” (Emphasis added) [11] It is not necessary that a call originate as a 911 call from the particular residence being investigated, as long as appropriatecircumstances of distress relative to the residence are communicated to the police, R. v. Timmons. [12] In the present case the crown submits that following the call from dispatch, the police were concerned with the safety of themale passenger in the taxi cab.

Upon arriving at the residence where the passengers were dropped off, the police were attempting tolocate the possible victim. Mr. MacLean acting suspiciously coupled with loud music from within the house justified the police beliefthat a potential victim could be inside, thereby, providing a valid reason to conduct a warrantless search. [13] I find the police acted reasonably by driving to the property and making inquiries. Knocking on someone’s door for alegitimate purpose does not constitute a search, R. v. Hope, [2007] N.S.C.A. 103.

However, examining the substance of the informationas a whole, I am not satisfied the police entry into the home and warrantless search of the property was justifiable. Unlike Godoy andother distress call cases, there was no evidence of a disturbance or a danger inside the home or on the property. There was noinformation provided to police that the passengers in the cab entered the house or resided there. Even though the police spoke to the cabdriver, there was no evidence that the alleged common assault in the cab by a female against a male was a continuing one or evenserious.

Having arrived an hour after the call, the occupant of the house spoke to the police for some time and provided information as tothe whereabouts of the two passengers, the ownership of the property and his personal information. Although Mr. MacLean eventuallypermitted the police to enter and search the house, the crown acknowledges there was no informed consent. Further, the police werealive to the fact that the male passenger in the cab had a history of drug activity and the property where he was dropped off was locatedin a remote area.

They were also alive to a possible breach of his undertaking to stay away from a named female. In my view, the factsdo no support a situation of urgency relative to the accused’s home. Certainly, suspicious circumstances are insufficient to authorize awarrantless search of the private home and property. [14] As a result, I am not satisfied the crown has rebutted the presumption that the warrantless search of the private home andproperty of the accused was unreasonable. Accordingly, I find the warrantless search and subsequent search under the authority of asearch warrant violated the accused’s

Section 8 Charter rights. Section 24(2) - Admissibility of Evidence

[15] Evidence obtained from a Charter breach is prima facie admissible. The burden is on the accused to establish on a balance ofprobabilities that the admission of the evidence would bring the administration of justice into disrepute, R. v. Collins. [16] The analysis is dictated by R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, requiring the court to undertake andbalance three avenues of inquiry: [85] To review, the three lines of inquiry identified above—the seriousness of the Charter-infringing state conduct, the impact of thebreach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits—reflect what the s.24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice.

Havingmade these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [17] The crown submits the Police Charter-infringing conduct was inadvertent and taken in good faith. In my view, the Charter-infringing conduct in this case was serious. Conducting a warrantless search of the accused’s home and property without reasonablegrounds and without a valid consent, does not demonstrate good faith.

Ignorance of Charter rights, negligence or wilful blindness cannotbe equated to good faith, R. v. Grant. This line of inquiry favours inadmissibility. [18] A person’s home is accorded the highest expectation of privacy. R. v. Feeney, (SCC), [1997] 2 S.C.R. 13. The crown concedes the

Section 8 breach in this case would have had a serious impact on the accused’s privacy rights. I would add, theintrusion into the home was not minimal. The police searched all of the rooms in the main living area of the home, as well as theperimeter of the house. These circumstances favour inadmissibility. [19] The reliability of the evidence as well as importance to the crown’s case weigh in favour of admitting the evidence as part ofthe truth-seeking function of the criminal trial process.

The search for truth, however, is only one of the considerations under Section24(2). [20] In determining whether to exclude the evidence, the court must look at the long-term effect that non-compliance would have onthe reputation of the justice system, as opposed to the immediate impact. Considering all of the circumstances of this case and weighingall the factors, I find, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justiceinto disrepute. J.