R. v. Dick, 2020 NLSC 122

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Dick , 2020 NLSC 122 Date : September 11, 2020 Docket : 201901G2181 Her Majesty The Queen v. Anthony Dick Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: August 12, 2020; September 11, 2020 Appearances: R. Neil Smith Appearing on behalf of the Crown Timothy P. O'Brien Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Dick , 2020 NLSC 104 ; R. v. Grant , 2009 SCC 32 ; R. v. Côté , 2011 SCC 46 ; R. v . Harrison , 2009 SCC 34 ; R. v. Chehill , 2013 SCC 49 ; R. v. M.(A.) , 2008 SCC 19 .

STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] The Accused, Mr. Dick, established that his right to be secure from unreasonable search and seizure under

section 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, (the “ Charter ” ), was violated when the police conducted a search of his luggage at St. John’s International Airport by way of a sniffer dog. [ 2 ] Although not specifically addressed in my decision respecting

section 8 of the Charter , the parties agreed that in finding the

section 8 violation, it also followed that there would have been an arbitrary detention of Mr. Dick, albeit brief, contrary to

section 9 of the Charter . The issue now is whether or not items that were seized from Mr. Dick’s luggage as a result of the sniffer dog search should be excluded from evidence at his trial, per section 24(2) of the Charter . [ 3 ] The circumstances relevant to the search and my findings are detailed in my decision R. v. Dick , 2020 NLSC 104 and will not be repeated, except to the extent they are relevant to the determination of whether the evidence should be admitted.

In addition to the evidence presented in the application initially, the parties filed agreed facts to be considered in the determination under section 24(2). Those facts are appended to this decision.

THE LAW [ 4 ] Section 24(2) of the Charter states: 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. [ 5 ] The Supreme Court of Canada in R. v.

Grant , 2009 SCC 32 established the analytical framework for considering the kinds of circumstances that could result in bringing the administration of justice into disrepute. The analysis involves the well-established threefold test which considers: 1. the seriousness of the state conduct; 2. the impact on Mr. Dick’s Charter rights; and 3. the interest of society in seeing the matter adjudicated on its merits. [ 6 ] In determining whether the administration of justice will be brought into disrepute, the concern is with the long-term reputation of the administration of justice.

The court must “strike” the balance between these above considerations appropriate to the circumstances. There is no “overarching” rule in how the balance must be struck. With this analytical framework in mind, I will consider the circumstances here. The seriousness of the state conduct [ 7 ] In R. v.

Côté , 2011 SCC 46 , at paragraph 47 , the Supreme Court of Canada stated that: The more serious the state conduct constituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct. [ 8 ] Any Charter breach is serious, but not all Charter breaches are so serious that they result in the need to exclude evidence to avoid bringing the administration of justice into disrepute.

The Court must consider whether the conduct of the police in the circumstances is such that it must distance itself from or disassociate itself with such conduct ( R. v . Harrison , 2009 SCC 34 at paragraph 22 ). The more serious the conduct, the more the Court will want to disassociate itself, as it will not want be seen to condone the conduct in question. [ 9 ] In these circumstances, while to have searched the bag by way of the sniffer dog without having established that the evidence in support that Mr.

Dick was involved in criminal activity was objectively verifiable, is a serious breach, I am satisfied that the officers did not set out to deliberately attempt to breach the rights of Mr. Dick. I have no difficulty accepting that they acted in good faith. When

I view their conduct and how they dealt with Mr. Dick in the circumstances, I am satisfied that they in fact tried to ensure they complied with their obligations to respect Mr. Dick’s Charter and legal rights. I accept that Inspector Knight, as the lead investigator, was satisfied he was not acting on a hunch when the impugned search was conducted by the sniffer dog, but honestly believed he had the necessary basis to form a reasonable suspicion that Mr.

Dick was involved in criminal activity. [ 10 ] Further, as the Crown submitted, once the sniffer dog identified that the suitcases may contain contraband, there is no dispute that at that point the officers believed they had reasonable grounds to arrest Mr. Dick. At that point, given this belief and from their perspective they might also have believed they could search the suitcases without seeking a warrant as a search incident to arrest (see R. v. Chehill , 2013 SCC 49 at paragraphs 55 - 57 ).

However, they did not conduct a search incident to arrest but instead sought a warrant to conduct the search of the suitcases. Whether it could be successfully argued they did not legally need to take this additional step, the fact that they took this additional step added a measure of oversight to their investigation. I find this is compelling evidence that the officers acted in good faith, were being cautious, and were trying to ensure they did not overstep their authority. [ 11 ] There is also no complaint that the officers acted inappropriately otherwise in the investigation. They did not pressure Mr.

Dick to make any statements, nor were they discourteous with him or detained him for any longer than was necessary. In all other aspects of the investigation, the police fully complied with his rights.

They even drove him home. [ 12 ] Thus, while I view the failure to meet the legal standard to authorize the warrantless search serious, when I view the conduct in the totality of the circumstances, including the evidence that supports that the officers acted in good faith throughout, I find the breach at the lesser end of the scale of seriousness. [ 13 ] When I view all of the circumstances in this case, this is not the kind of conduct from which the Court needs to distance itself. The assessment of the seriousness of the breach in these particular circumstances favours admission.

The impact of the breach on the Accused’s rights [ 14 ] Under this criterion, the Court must assess the extent to which the violation “undermines the interests protected by the right” (see Grant at paragraph 77 ). The interests protected by

section 8 of the Charter are the privacy interests held by the individual in the items searched. [ 15 ] In this case, while I agree the circumstances of the unreasonable search were serious insofar as it was a warrantless search, the search was brief and not intrusive. There is no doubt there is an expectation of privacy in the contents of one’s suitcase, but this kind of search is not at the same level of invasiveness as other types of searches, such as a search of a private home or intruding into a person’s bodily integrity.

The use of a trained dog to sniff the outside of an item might be considered one of the less intrusive searches that could be conducted by the state. [ 16 ] Further, as discussed, once the dog conducted its sniffer search, the police did not continue to act without any judicial oversight but immediately sought a warrant to actually open the suitcase. [ 17 ] Counsel for Mr. Dick conceded that the impact of the violation was not as serious as in other situations. [ 18 ] In my view, the assessment of the impact of the breach on Mr. Dick’s protected interests also favours admission of the evidence.

Society’s interest in adjudication on the merits [ 19 ] As pointed out by counsel, this criterion assesses the significance of the evidence and its effect on the truth seeking function of the trial (see Grant at 79-81). There is no dispute that the evidence is critical to the Crown’s case. Without the evidence of the marijuana and hashish seized, there will be no evidence to establish an essential element of the offences charged. [ 20 ] The evidence is also physical evidence, so there is little doubt as to its reliability as proof of Mr. Dick being in possession of contraband.

As pointed out in Grant , the admission of reliable evidence of this kind is unlikely to bring the administration of justice into disrepute. [ 21 ] These considerations favour admission. [ 22 ] Finally, the offence is serious: possession of marijuana and hashish for the purposes of trafficking, and the amount of marijuana and hashish discovered was substantial. The seriousness of the offence, as it relates to having the trial proceed on its merits, does not necessarily favour admission.

However, in these circumstances, the reliability of the evidence and the good faith with which the officers conducted their investigation, when coupled with the seriousness of the offence, in my view favours admission. [ 23 ] I do not agree with counsel for Mr. Dick that because of the legalization of the personal use and possession of this substance, society’s attitude towards these kinds of offences has changed. Possession for the purposes of trafficking is still a serious and illegal activity.

Balancing the factors [ 24 ] In balancing the three factors, as per Grant at paragraph 85 , all three considerations in these circumstances favours admission of the evidence. There is no doubt that the authority of the state to conduct a search without prior judicial authorization is a powerful and necessary tool in the efforts to investigate illegal and criminal activity and that because of the lack of judicial oversight before this kind of search is conducted, it is open to abuse. As we are reminded in R. v. M.(A.) , 2008 SCC 19 , at paragraph 13 , a warrantless search is presumptively an unreasonable search.

At paragraph 14 of M.(A.) , the ability of the police to use sniffer dogs is an “exceptional authority”.

[ 25 ] However, the conduct of the police in these circumstances was not deliberate or flagrant. Their conduct does not suggest that they were abusing their ability to use this tool or any kind of pattern of abuse. To the contrary, the evidence supports that the officers were trying to ensure they complied with their obligations under the Charter . While I agree with Mr.

Dick that the failure to have established that there was an objective basis to support a reasonable suspicion, and to that end the investigation may have been careless, in my view the Court does not need to distance itself from the conduct in these particular circumstances. [ 26 ] In my view, given that the officers honestly believed they had the authority to pursue the search, which was not overly intrusive and was brief, and then sought a warrant when they believed they possessed reasonable grounds to believe that there were illegal substances within the suitcases, and otherwise fully complied with Mr.

Dick’s rights, the admission of the evidence would not bring the administration of justice into disrepute. Mr. Dick has not established that the evidence should be excluded. The evidence obtained – that is the items seized as a result of the search warrant which was predicated on the sniffer dog search - is admissible at trial. [ 27 ] Judgement accordingly. _____________________________ Frances J. Knickle Justice APPENDIX Court No. 2019 01G 2181 CR IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION BETWEEN: HER MAJESTY THE QUEEN RESPONDENT AND: ANTHONY LUKE DICK APPLICANT AGREED STATEMENT OF FACTS

SUMMARY OF CURRENT DOCUMENT Court File No. 2019 01G 2181

Date of Filing of Document August 12, 2020 Name of Filing Party or Person Neil Smith, Public Prosecution Service of Canada for Her Majesty the Queen Application to which Document Relates Mr. Dick’s ss. 8, 9 and 24 Charter Application Statement of purpose in filing Additional Evidence for s. 24(2) Hearing Timothy P. O’Brien Legal Aid NL Suite 200, 51 Empire Avenue St. John’s, NL A1C 3H9 Tel: (709) 753-7863 Fax: (709) 753-6226 Counsel for the Applicant, Anthony Dick R. Neil Smith Public Prosecution Service of Canada Suite 812, 8 th Floor Atlantic Place 215 Water Street St.

John’s, NL A1C 6C9 Tel: (709) 772-8037 Fax: (709) 772-8055 Counsel for the Respondent Her Majesty the Queen 1. In its decision dated July 24, 2020, this court has made detailed findings of fact. In addition to the facts as found by the court so far, the following additional facts are agreed to by the parties: 2. After he had picked up the suitcases and as he was walking out of the baggage claim area, Mr. Dick was approached by Inspector Knight and two other officers and arrested at 12:22 a.m. on February 3, 2018.

He was escorted to the Canadian Border Services area of the airport by Inspector Knight, who advised him while they walked that he was under arrest for possession for the purpose of trafficking. He also provided Mr. Dick with a police caution and his right to counsel, from memory. Mr. Dick indicated that he understood and wanted to speak to a lawyer. 3. At 12:30 a.m., after airport security personnel provided access to the CBSA area, Inspector Knight once again advised Mr.

Dick of his Charter rights and police caution by reading them from his police-issued card and satisfied himself that he understood by having Mr. Dick explain it back to him. 4. Between 12:35 and 12:40 Mr. Dick spoke to legal counsel by telephone in a private room. Inspector Knight had already advised counsel that Mr. Dick would be released without charges as police would be seeking a warrant to search the bags, and charges would hinge on the results of the search. 5. Mr. Dick had produced a NL driver’s licence however he advised police that he did not live at the address shown on the licence.

In order to ensure that he was properly identified, he was driven to his residence in Mount Pearl where he was identified by his brother. They left the airport at 12:55 a.m. and Mr. Dick was dropped off at his residence in Mount Pearl at 1:13 a.m. 6. At the time of Mr. Dick’s arrest, in addition to the two suitcases and grey backpack, police seized an iPhone 6 cell phone from Mr. Dick when he was patted down incident to his arrest for officer safety. There was no further search for evidence at the scene. Instead, the phone, backpack and two suitcases were taken to the CFSEU office in St.

John’s and held securely until search warrants could be obtained to search them further. 7. A search warrant authorizing the police to open and search the two suitcases pursuant to s. 11 of the Controlled Drugs and Substances Act was issued by Provincial Court Judge Colin Flynn on February 7, 2018, based on an Information to Obtain (ITO) sworn by Cst. Paul Burke of the CFSEU. The contents of the two suitcases, as found by the police when the warrant was executed, are reflected in paragraph 22 of this court’s decision of July 24, 2020. 8. Cst.

Burke’s ITO contained essentially the same information as Inspector Knight provided in his testimony, except that in his ITO Cst. Burke swore that Anthony Dick was observed by police on the stairs of the arrivals area of the airport approximately two minutes before the luggage from his flight was sniffed by PSD Edge. The positive indication on the blue suitcase by PSD Edge and the retrieval of both suitcases by Anthony Dick was also included in the ITO. A copy of the Warrant and ITO are attached as Appendix A. 9.

Other judicial authorizations were granted during the ongoing investigation subsequent to the search warrant issued on February 7, 2018, but the parties agree that this Court does not need to address those authorizations at this time.

THE ABOVE Agreed Statement of Facts has been reviewed by Anthony Luke Dick this _____ day of August, 2020 with his counsel, Timothy P. O’Brien and it is accepted as being correct. _________________________ ________________________ Timothy P. O’Brien Anthony Luke Dick DATED at St. John’s, Newfoundland and Labrador this 12 th day of August, 2020. _________________________ R. Neil Smith Crown Counsel and Agent for the Attorney General of Canada