R. v. Price, 2020 NLSC 124

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Price , 2020 NLSC 124 Date : September 17, 2020 Docket : 201906G0099 HER MAJESTY THE QUEEN v. Harvey Murlin Price Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearings: August 19 and 20, 2020 Date of Oral Judgment: September 15, 2020 Appearances: Michael S. Ralph Appearing on behalf of the Applicant P. Cory Binderup Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; R. v. H. (L.), 2008 SCC 49; Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383; R. v. Jackman, 2008 ABPC 201; R. v. Turcotte, 2008 ABPC 16; R. v. Wydenes, 1999BCCA 202; R. v. Liddell, 2008 BCPC 143; R. v. Suberu, 2009, SCC 33; R. v. Mercer, 2018 NLSC 119; R. v. Grant, 2009 SCC 32;Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R v.Parsons, 2017 NLCA 64 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982, (U.K.) 1982, c. 11; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] This is my decision on the Applicant’s application under the Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 (Charter), specifically sections 8, 10(

b) and 24. [2] The Applicant is charged with eight offences arising out of events alleged to have occurred on September 2, 2018: careless useof a firearm, careless storage of a firearm, careless storage of ammunition, pointing a firearm at Edison Avery, pointing a firearm atChristopher Neal, carrying a firearm for the purpose of committing an offence, uttering threats to Edison Avery to cause death, anduttering threats to Christopher Neal to cause death. The Applicant alleges that his s. 10(

b) right to retain and instruct counsel withoutdelay was breached when Cpl. Lynn Ann Gaudet of the Royal Canadian Mounted Police (RMCP) questioned him prior to his receivingthe advice of counsel. He also alleges that his

section 8 right to be secure against unreasonable search and seizure was violated by policewhen they searched his residence without a warrant and when they searched his mother’s residence without a warrant. One firearm wasseized in the search of his residence and one was seized in the search of his mother’s residence. BACKGROUND [3] On September 2, 2018 the RCMP received a call from Edward Avery reporting that the Applicant had fired two shots at himand his boyfriend at a cabin in Hatchet Cove and that the Applicant had left in his truck and lived in Hillview. Cpl.

Gaudet was thesenior officer on duty that day at the RCMP Clarenville detachment. Several off duty officers were called in and a plan was made. TheRCMP considered this a possible active shooter event and their top priority was containing the area for public safety. A number ofofficers made their way towards the area. One of the officers spotted the Applicant’s vehicle at Mill Road by his house. The officersstopped there and began containing the area. [4] Cpl. Gaudet obtained a cellphone number for the Applicant and reached him at that number. The Applicant reported he was inthe back country on his ATV.

He agreed to come meet the police where they were. When he arrived, the Applicant was arrested atgunpoint by Cst. John Collins with Cpl. Gaudet assisting. Cst. Collins read the Applicant his right to counsel and police warning. As Iwill review below, I find that the Applicant indicated that he wanted to speak to counsel. Just over 50 minutes later, he was transportedto the detachment in Clarenville where he did speak to counsel. However, prior to that transport, Cpl. Gaudet engaged in conversationwith the Applicant on the scene. As I will review below, I find that Cpl.

Gaudet questioned the Applicant as to the location of thefirearm. While various answers may have been given, at some point the Applicant told Cpl. Gaudet that the firearm was at his mother’shouse. After further questioning, he told her it was in the attic there. [5] During this time, and based on the information provided by the Applicant that the firearm was there, Cst. Amanda Kennedywas sent to the house of June Price, the Applicant’s mother. Ms. Price gave consent to a search of the house for the firearm. Cst.Kennedy searched, but did not find a firearm. She left the house to go to her patrol car to call Cpl.

Gaudet in an effort to get moreinformation. Cpl. Gaudet advised her that the Applicant had indicated the gun was in the attic. Cst Kennedy returned to the house, andasked Ms. Price to take her to the attic. Cst. Kennedy found a firearm there and seized it. [6] Just following the Applicant’s arrest, Cst. Roy Chappell went to the Applicant’s house and spoke with the Applicant’sgirlfriend who told him that she lived there. He asked for her consent to search the house for firearms. She gave her consent and led himto the bedroom where she indicated firearms would be. Cst.

Chappell located one empty gun case and another gun case with a gun andammunition in it. He seized the case with the gun and the ammunition. ISSUES [7] These are the issues I must decide:

i. Was the Applicant’s s. 10(

b) Charter right to counsel breached? ii. If so, should the statements made by the Applicant be excluded from evidence as per s. 24(2) of the Charter ? iii. Was the Applicant’s s. 8 Charter right to be secure against unreasonable search and seizure breached by Cst. Kennedy’s search of his mother’s residence? iv. If a breach of either the Applicant’s s. 10(

b) or s. 8 Charter right is found, should the firearm seized from his mother’s residence be excluded from evidence as per s. 24(2) of the Charter ? v. Was the Applicant’s s. 8 Charter right to be secure against unreasonable search and seizure breached by Cst. Chappell’s search of his residence? vi. If so, should the firearm and ammunition seized as a result of the search of his residence be excluded from evidence as per s. 24(2) of the Charter ? [ 8 ] For the reasons that follow, I have concluded that the Applicant’s s. 10(

b) Charter rights were breached and that statements he made in response to questioning by Cpl. Gaudet should be excluded from evidence. I have concluded that the Applicant’s s. 8 Charter rights were not breached with respect to the search of his mother’s house because the Applicant failed to establish that he had a privacy interest in the subject matter of that search. Based on the s. 10(

b) breach that lead to its discovery, I have decided that the firearm seized from June Price’s house should be excluded from evidence. I have concluded that the Applicant’s s. 8 Charter rights were breached with respect to the search of his house but that the firearm seized as a result of that search should not be excluded from evidence. ISSUE 1: WAS THE APPLICANT’S S. 10(

B) CHARTER RIGHT TO COUNSEL BREACHED? Facts relevant to the alleged breach of the right to counsel [ 9 ] I will summarize the testimony relevant to this issue. Cst. Amanda Kennedy [ 10 ] Cst. Kennedy searched the home of the Applicant’s mother, June Price. Prior to commencing the search, Cst. Kennedy had been told by Cpl. Gaudet that during the arrest the Applicant had told police that the “12 gauge” was located at June Price’s home in Hatchett Cove. Based on that information, Cst. Kennedy sought and received Ms. Price’s consent to search her residence. Cst.

Kennedy searched the residence but did not find any firearm. She decided to call Cpl. Gaudet again to try and get more information. On this second call, Cpl. Gaudet told her that the Applicant said the gun was in the attic. Cst. Kennedy then asked Ms. Price to lead her to the attic where Cst. Kennedy located a shot gun. She seized it. Cst. Kennedy arrived at Ms. Prices home at 7:30 p.m. and located the firearm at 7:45 p.m. Cst. John Collins [ 11 ] Cst. Collins assisted at the scene. He was stationed by the intersection of the main road and the road leading up to the Applicant’s house.

Over the radio he heard that Cpl. Gaudet had made contact with the Applicant and that the Applicant, who had gone behind his residence on an ATV [1] , had agreed to come speak to police. [ 12 ] A while later, Cst. Collins heard an ATV and then saw an ATV coming from the Applicant’s driveway. Cst. Collins started yelling “police” and whistling. The ATV stopped. Cst. Collins yelled at the driver to put up his hands and to get off the ATV. The driver, who was the Applicant, complied. Cst. Collins ordered the Applicant on the ground with arms and legs spread. Cpl. Gaudet, who had been not too far from Cst.

Collins, heard him yelling and joined him. Cst. Collins testified that the Applicant was complying with all directions and demands as he and Cpl. Gaudet advanced toward him. Cst. Collins testified that the Applicant was handcuffed, advised he was under arrest and searched. He was then helped to his feet. During this time, Cst. Collins had a shotgun pointed towards the Applicant and Cpl. Gaudet “maintained police over watch”, meaning that she also had a firearm out and aimed on the Applicant during the arrest. [ 13 ] Cst.

Collins then read the Applicant his rights to counsel and the standard police warning using a prepared police card. The time was 6:43 p.m. Cst. Collins recorded the Applicant’s answers in his notebook. When asked if he understood the reason for his arrest, the Applicant answered “yes”. When asked if he wanted to contact counsel now, the Applicant answered “I will wait and see”. When asked if he understood the police warning regarding the right to remain silent, the Applicant answered “yes”.

When asked to explain what the caution meant to him, the Applicant said “It means I say nothing until I see a lawyer”. [ 14 ] In his direct testimony, Cst. Collins recalled Cpl. Gaudet talking to the Applicant and the Applicant saying that he put the firearm in the family’s cabin. He indicated that he did not remember more than that but that his notes from that evening would be what he recalled from the time. Those notes were put to him on cross-examination: “Cst. Collins heard as Cpl. Gaudet asked Price where the firearm was, Price advised it was in his cabin”. Cst.

Collins confirmed that this would have been the question that Cpl. Gaudet asked the Applicant. He confirmed this was a short time after the Applicant had been given his right to counsel and police warning. [ 15 ] When asked on cross-examination, Cst. Collins did not recall Cpl. Gaudet telling the Applicant during the arrest not to move or she would blow his head off. Cst. Collins did recall other details after the arrest. For example, he recalled the Applicant’s girlfriend coming to the scene, he recalls the Applicant having a cigarette, and he recalled driving the Applicant’s ATV up to his garage to store it.

He recalled that Cpl. Gaudet and Cst. Slobodesky transported the Applicant back to the detachment and he stayed on scene to guard the Applicant’s truck while a warrant to search it was sought. Cst. Curtis Slobodesky

[ 16 ] Cst. Slobodesky assisted at the scene. He was situated in the tree line near the Applicant’s residence. Cst. Slobodesky heard an ATV and then heard Cst. Chappell say he caught a glimpse of one. Next, he heard Cst. Collins yell “stop” so he started running down the road (the Applicant’s driveway) towards Cst. Collins. When he arrived, the Applicant was on the ground in handcuffs. Cst. Slobodesky heard Cst. Collins read the Applicant his right to counsel and police warning.

Although he did not recall the Applicant’s exact answers, he confirmed on cross-examination that he knew that the Applicant wanted to speak to a lawyer. At 7:34 p.m. Cst. Slobodesky transported the Applicant to the RCMP detachment at Clarenville where he arranged for the Applicant to call duty counsel. Cpl. Gaudet accompanied Cst. Slobodesky as a passenger during the transport. They arrived at the detachment at 8:01 p.m. and the Applicant spoke to a legal aid lawyer at 8:05 p.m. [ 17 ] Cst. Slobodesky recalls Cpl. Gaudet speaking with the Applicant on scene after the arrest, but he does not recall what was said.

On cross-examination he was asked about the time between when he understood that the Applicant had requested to speak to a lawyer (just after 6:43 p.m.) and when that happened (8:05 p.m.). Most of this time was spent at the scene. Cst. Slobodesky testified that given the circumstances, and that Cpl. Gaudet was the supervisor on the scene and she was speaking to other officers, there was some delay before they left to transport the Applicant to the detachment. When asked if Cpl. Gaudet directed him not to take the Applicant back to the detachment until she was finished with the other officers, Cst.

Slobodesky answered, “she could, yes”. He also confirmed that he knew that the Applicant wanted to speak to a lawyer. He did not recall hearing Cpl. Gaudet read the Applicant a secondary caution. Cpl. Lynn Ann Gaudet [ 18 ] Cpl. Gaudet was the senior officer on duty when at 4:18 p.m. the RCMP received the complaint. Cpl. Gaudet, Cst. Slobodesky and Cst. Kennedy made a plan at the office for containment of the scene. It was a possible active shooter and they wanted to get to the scene quickly to contain it for public safety. Some off-duty officers were called to assist.

They took patrol carbines and hard body armor and travelled toward Hillview. [ 19 ] They were headed toward Mill Road when Cst. Kennedy saw a truck that matched the description of that of the Applicant. The police then stopped and began to set up containment. This was approximately 5:00 p.m. Cpl. Gaudet testified that they also had information that the Applicant’s truck was across the water by his mother’s house, so Cst. Kennedy was sent to speak to his mother and deal with the scene there. This does not seem to have happened immediately as Cpl.

Gaudet spoke to neighbours, who said they saw the Applicant head toward his mother’s on an ATV, and so it was uncertain as to where the Applicant was. [ 20 ] Once on scene, Cpl. Gaudet started making inquiries for a phone number for the Applicant. Someone, she does not recall who, gave her one and so she started working with RCMP telecoms to ping the number. The cellphone was pinging between towers in Hillview and Clarenville which meant that the Applicant could be moving. At some point, Cpl. Gaudet called the number and spoke to the Applicant.

He said he was in the back country and agreed he would come to speak to police. Cpl. Gaudet called him back more than once. She thought she probably spoke to him three times. During the conversation, Cpl. Gaudet could hear the ATV running and sounds that indicated to her that the Applicant was in the woods so she felt he was being honest and that it was just taking a while for him to arrive from the back country. She said on the last call he was a little agitated. She acknowledged that she did call him a lot but she was concerned about his whereabouts and wanted to make sure he was still coming. Cpl.

Gaudet could not be sure of the time between calls but at 6:33 p.m., she heard the ATV and Cst. Collins told her the Applicant was on the main road. [ 21 ] Cpl. Gaudet ran towards Cst. Collins so that she could provide over watch with her carbine as he was making arrest. Cpl. Gaudet explained that carbines are more accurate than the regular service weapons, and include a laser site, which is a red dot. Cpl. Gaudet testified that they are typically used for high-risk calls when firearms are suspected. [ 22 ] Cpl.

Gaudet was not certain if she witnessed the handcuffing but she recalls the Applicant on the ground and Cst. Collins issuing commands. Like Cst. Collins, she also recalled the Applicant be cooperative. She recalled that Cst. Collins gave the Applicant his right to counsel and police warning but she had no idea as to the time or of the Applicant’s answers. She explained that she was about 10 feet away from them, but that she had a lot on her mind as she was watching Cst. Collins making the arrest but also keeping an eye out for her own back.

Her training included the “one plus one” rule, which is that if there is one gun or one shooter, assume that there may be two guns or two shooters. As I understand it, it is a reminder to police officers to stay vigilant and to not assume that all risks have been identified. She noted that it was not her job at the time to pay attention to the Applicant’s answers as that was the responsibility of the arresting officer. Her job was to look around and keep everyone safe. [ 23 ] Following the arrest, Cpl. Gaudet recalls the Applicant asking for a cigarette, which she allowed.

She says that then there was some “casual conversation” and that they were speaking of next steps and that she said that they needed to find the gun and that the Applicant said it was in an attic at his mom’s house. She testified on direct examination that she does not remember if she asked the Applicant but he told her where the gun was. She referred to the conversation again as “casual”. On cross-examination she said that she did not recall asking “flat out” where the gun was. She said there was no lengthy conversation.

She confirmed that she did not know if the Applicant had requested to speak to a lawyer and she does not recall if she asked Cst. Collins if he had. She said that “typically someone would tell you” if the detained person had asked to speak to a lawyer. When asked if she had initiated the conversation with the Applicant, she said that she did not know and again stated it was a casual conversation. [ 24 ] Cpl. Gaudet could not recall how many times she spoke with Cst. Kennedy that afternoon, but she only recalled one conversation with her about the location of the gun.

During that conversation, she recalls telling Cst. Kennedy that the gun was in the attic because the Applicant had just told her that. [ 25 ] Cpl. Gaudet testified that she read the Applicant a secondary caution from her card at 7:27 p.m. She did not recall if anyone else was present.

She summarized the secondary warning as advising the person that even if they spoke to another police officer, the person does not need to speak to her and anything the person does say to her can be used as evidence. [ 26 ] When asked why the Applicant was kept on the scene for almost an hour while in custody, she testified that she did not know. She noted there was a lot going on, they were speaking to his girlfriend and allowed the Applicant to speak to her, and they had to lock up his ATV.

[27] Cpl. Gaudet denied that during the arrest she shouted at the Applicant not to move his head or she would “blow his brains out”. She said she may have told him to not turn his head and to look away from the police officers. She testified that when taking people intocustody, police officers want the detained person to look away so they cannot observe the police’s actions. Harvey Murlin Price [28] The Applicant testified. He says that on September 2, 2018, he was contacted by police, specifically Cpl. Gaudet, when he wason his ATV in the woods.

She told him she wanted to speak to him and he agreed and said he would be out of the woods shortly. Shewanted to meet him by the cross roads (I take this to be near the main road and the road to his house). A short time later, she calledagain and asked where he was. He said he was on his way. The Applicant says she called three or four more times with the samequestion. Each time he was on his way and that he was getting “sick” of the calls. [29] When he arrived at the location, the Applicant says he did not see anyone there so he stopped his bike and looked around.

Hesaw an RCMP officer hidden behind a truck, yelling commands. He followed the commands of that officer (Cst. Collins) and of Cpl.Gaudet whom he also saw there. The Applicant testified that Cst. Collins put his knee on his back and handcuffed him. The Applicantsays that Cpl.

Gaudet was close enough to him to “kick him in the ribs” and that she told him that she had the “red dot” on the back ofhis head and not to move or she was going to blow the back of the top of his head. [30] After he was handcuffed, the Applicant says he was read his rights and he told the officer that he understood and wanted tocontact counsel. He said Cpl. Gaudet was an arm’s length away from him when his rights were read. He said it was a cigar, not acigarette that he had and they moved the handcuffs in front of him so he could smoke. [31] The Applicant testified that Cpl.

Gaudet asked him where the weapon was and that he did not know what she was asking about. He says she asked where the gun was four or five times. He said that she said, “Where is the fucking gun?” Finally, he told her his gunwas at his father’s. He said that he spoke because she had asked so many times, because of the way she had been when he was on theground and because she seemed pretty demanding and aggressive by her voice.

When asked about what efforts he made to tell her thathe did not want to speak to her, the Applicant said that he did not have much choice that she was up in his face demanding to know wherethe gun was. The Applicant testified that his expectation was that he would speak to an attorney before he had to say anything. He saidit was two or maybe two and a half or three hours before he spoke to a lawyer at the detachment. [32] On cross-examination, the Applicant confirmed that when cautioned, he told the police that he wanted to speak to counsel.

When his answers to the right to counsel and police warning questions as recorded by Cst. Collins were put at him, he could not recallexactly but agreed that they maybe what he said. When he was questioned about saying “I will wait and see” in response to whether hewanted to speak to a lawyer, he said that he was not offered a call until back at the station. The Applicant testified about the discussionwith the police about getting his ATV home and confirmed that it was eventually brought up to his garage. He also recalled asking thepolice about damage they did to his truck. [33] The Applicant recalls that Cpl.

Gaudet questioned him about the gun after he had his cigar. He was pretty sure that it wasbefore they went up to his house with the ATV. He said that the first time he answered that the gun was at his fathers (he also saidmothers at one point) and that after she asked so many times he confirmed he told her that it was in the attic. On direct examination, hewas unsure but testified that the questioning had gone on for up to 20 minutes. Law relevant to the right to counsel [34] The onus is on the Applicant to establish on a balance of probabilities that his s. 10(

b) Charter right has been breached. [35]

Section 10(

b) of the Charter states that everyone has the right on arrest or detention to retain and instruct counsel without delayand to be informed of that right. Once there is an arrest or detention,

section 10(

b) imposes a number of positive duties on the detainingofficer: (

i) the duty to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of legal aid and duty counsel; (ii) if a detainee has indicated a desire to exercise this right, the duty to provide the detaineewith a reasonable opportunity to exercise this right (except in urgent and dangerous circumstances); and (iii) the duty to refrain fromeliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases or urgency or danger) (R.v. Bartle, (SCC), [1994] 3 S.C.R. 173 at 192). [36] The purpose of s. 10(

b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In thecontext of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charterto choose whether to cooperate with the police or not (R. v. Sinclair, 2010 SCC 35 , [2010] S.C.J. No 35 at paragraph 24). Paragraph 10(

b) imposes on the police the duty to cease questioning and to otherwise cease attempting to elicit incriminating evidencefrom the detainee (for example, by interrogation) until they afford the detainee a reasonable opportunity to consult counsel (Sinclair, atparagraph 27). The right to counsel under s. 10(

b) is not absolute. Unless a detainee invokes the right and is reasonably diligent inexercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either notarise in the first place or will be suspended (Bartle, at paragraph 192; Sinclair, at paragraph 27). [37] The standard for valid waiver of a Charter right, including the right to counsel, is “very high” (R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, at paragraph 41).

A waiver must be “premised on a true appreciation of the consequences of giving upthe right” (L.T.H., at paragraph 43, citing Wilson J. in Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383 at 396). “Aclear and unequivocal waiver is thus essential, but not sufficient: it must be accompanied by a proper understanding of the purpose theright was meant to serve and an appreciation of the consequences of declining its protection” (L.T.H., at paragraph 43).

Analysis of alleged breach of the right to counsel [38] There is no doubt that the Applicant was arrested and informed of his right to retain and instruct counsel without delay and ofthe existence and availability of legal aid and duty counsel by Cst. Collins.

[39] Crown counsel has argued that the Applicant’s answers to Cst. Collins’ questions amounted to a waiver of the right. I do notagree. First, a waiver must be unequivocal and the responses given by the Applicant did not amount to an unequivocal waiver. In thecircumstances of being by the side of a rural road, his answer “I will wait and see” could reasonably have been a statement about waitingto get back to the detachment. His follow up statement, “I say nothing until I see a lawyer”, is a clearer indication that he wished tocontact counsel.

The Applicant filed a number of cases where equivocal statements by the accused were held not to be waivers of theright to contact counsel, see: R. v. Jackman, 2008 ABPC 201, R. v. Turcotte, 2008 ABPC 16, R. v. Wydenes, 1999 BCCA 202 ,1999 BCCA 0202, and R. v. Lidell, 2008 BCPC 143 , 2008 BCPC 0143. [40] Second, none of the officers testified that they understood the Applicant to be waiving his right to counsel. The only officerwho testified on this issue was Cst. Slobodesky who testified that he understood that the Applicant wanted to contact counsel.

Thisunderstanding is confirmed by the fact that upon arriving at the detachment, the Applicant was almost immediately given theopportunity to contact Legal Aid. [41] Once a detained person has indicated a desire to speak to counsel, he should be afforded the opportunity “without delay”, whichaccording to the Supreme Court of Canada in R. v. Suberu, 2009, S.C.C. 331 means “immediately” but “[s]ubject to concerns for officeror public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter” (see paragraph 42).

None of theofficers provided satisfactory information as to why arrangements were not made to give the Applicant an opportunity to contact counselsooner. This may be because the senior officer on the scene, Cpl. Gaudet, was not aware that the Applicant wanted to speak to a lawyer. She testified that she did not know how the Applicant had answered the right to counsel and police warning, and she does not recallasking Cst. Collins or being told what the answers were. Cst. Slobodesky, who was aware, appears to have been waiting for Cpl. Gaudetto authorize the transport of the Applicant back to the detachment.

While I appreciate that there was a lot going on and that Cpl. Gaudetwas no doubt very occupied in coordinating officers and the next steps of the investigation, given that there was a number of officersavailable and a number of police vehicles present, I cannot conclude that a delay of 50 minutes to transport the Applicant from the sceneso he could speak to counsel was reasonable. [42] I do not find that the circumstances were urgent or dangerous at this point. The Applicant was in custody and he was beingcooperative and compliant.

The circumstances were such that he was permitted to smoke a cigar, assist with securing his ATV, andspeak to his girlfriend, none of these suggest urgency or danger. Contact had been made with the Complainant, the Applicant’sgirlfriend and the Applicant’s mother. There was no indication of any disturbance at either the Applicant’s house or his mothers and thepolice had no information that anyone was involved in the shooting incident other than the Applicant. This was confirmed by Cpl.Gaudet under cross-examination.

As will be reviewed shortly in relation to the searches, the Applicant’s mother and girlfriend were bothbeing cooperative with the police. [43] In these circumstances, Cpl. Gaudet had a duty to refrain from questioning the Applicant until he was given the opportunity tospeak to counsel. I find that she did not refrain from questioning. Cst. Collins’ notes from the time indicate that Cpl. Gaudet asked atleast one question to the Applicant. The Applicant testified that Cpl.

Gaudet asked him multiple times about the location of the gun and Ifind the Applicant credible on this point. [44] Multiple questions is consistent with the evidence of Cst. Kennedy who testified that Cpl. Gaudet initially told her that theApplicant said the firearm was at his mother’s. On her second call to Cpl. Gaudet, Cst. Kennedy testified that Cpl. Gaudet advised herthat he said it was in the attic. If the Applicant had told Cpl. Gaudet the first time she asked that the gun was in the attic, then I wouldexpect that Cpl. Gaudet would have given this detail to Cst. Kennedy initially. She did not. Cst.

Kennedy’s evidence on her conversationswith Cpl. Gaudet was fairly detailed and consistent with her actions. For example, she testified that upon arrival she advised Ms. Pricethat she believed that an unsecured firearm had been left in Ms. Price’s home by the Applicant, she then conducted an initial search forthe firearm and then, after speaking with Cpl. Gaudet again, went back in the house and directly to the attic. As a result, I prefer Cst.Kennedy’s evidence of these events to Cpl. Gaudet’s recollection of them. Cpl. Gaudet only recalled speaking to Cst.

Kennedy onceabout the location of the gun. [45] Also, if the Applicant had told Cpl. Gaudet after one question that the gun was in his mother’s attic, I would expect Cst. Collinsto have that information in his notes. It is not there. Cst. Collins’ notes, which reference the Applicant’s cabin and do not reference anattic, are more consistent with the Applicant evidence that he only provided the detail of the attic after persistent questioning. Multiplequestions is also more consistent with the variation in the reported answers. Cst.

Collins testified that he recalled the Applicant sayingthe firearm was at a family member’s residence. His notes indicated the Applicant said it was at his cabin. Cpl. Kennedy testified thatshe was initially told by Cpl. Gaudet that the Applicant said the gun was at his mother’s. The Applicant testified that he initially said itwas at his father’s. [46] Finally, I did not find Cpl. Gaudet’s evidence on her interactions with the Applicant to be reliable. She could not recall whethershe had asked the Applicant a question or whether she had initiated the conversation.

When asked directly on cross-examination, she didnot deny asking the Applicant questions. Rather, she kept referencing it as a “casual conversation”, which is a vague statement, andcould not provide any details. [47] Although Crown counsel has acknowledged that, if the Applicant did not waive his right to counsel, then Cpl. Gaudet’squestioning would be in breach of that right, I want to address questioning related to officer safety. In R. v. Mercer, 2018 NLSC 119, Marshall J. concluded that officer safety questions are permissible prior to an accused being advised of his or her s. 10(

b) Charter rightprovided that such questions are for “legitimate self-protection” and due to an “apprehension of immediate danger” (see paragraph 49). There is no evidence here that Cpl. Gaudet or any police officer or member of the public was in immediate danger. As I have alreadynoted, the accused was in custody and there was no indication that anyone else was involved in the shooting incident. Cst. Chappell hadalready or was in the process of searching the Applicant’s home, alone except for the company of the Applicant’s girlfriend. CstKennedy had been dispatched, solo, to the Applicant’s mother’s home.

The police wanted to locate a firearm as evidence of the offenceand to ensure it was secure but there was no indication that the firearm posed any immediate threat to anyone at this time. [48] For the foregoing reasons, I find that the Applicant’s 10(

b) Charter right to counsel was breached.

ISSUE 2: SHOULD THE STATEMENTS MADE BY THE APPLICANT BE EXCLUDED FROM EVIDENCE AS PER S. 24(2)OF THE CHARTER? Law relevant to Charter s. 24(2) [49] Section 24(2) of the Charter provides that were a court concludes that evidence was obtained in a manner that infringed ordenied any Charter rights or freedoms, the evidence shall be excluded if it is established that, having regard to all circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [50] The onus is on the Applicant to establish on a balance of probabilities that the evidence should not be admitted.

The inquiry isan objective one, which 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 (R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paragraph 67-68). [51] In Grant, the Supreme Court Canada stated that in applying s. 24(2), courts must assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to: a. the seriousness of the Charter infringing state conduct; b. the impact of the breach on the Charter protected interests of the accused; and c. society’s interest in the adjudication of the case on its merits (see paragraph 71).

Analysis of whether the Applicant’s statements to the police should be excluded from evidence [52] There is no question that the Accused’s statements were obtained as a direct result of a breach of his s. 10(

b) Charter rights. Assuch, I must assess and balance the three factors enunciated in Grant. [53] The first factor is the seriousness of the Charter infringing state conduct. As stated in Grant, at paragraph 73, “[i]n order todetermine the effect of admission of the evidence on public confidence in the justice system the court...must consider the seriousness ofthe violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold therights guaranteed by the Charter”. [54] In assessing the seriousness of the breach, I have considered that Cpl.

Gaudet does not recall making any effort to determinewhether the Applicant had indicated that he wished to speak to counsel and she did not know whether he had or not. Even when shedecided to give him a secondary caution, she apparently still did not know whether he was seeking to speak to counsel. Her evidencethat the Applicant did not tell her that he wished to speak to counsel does not remedy the situation. Nor does her expectation thatsomeone would have told her if the Applicant had exercised his 10(

b) right. Cpl. Gaudet knew the Applicant had been read his rights tocounsel and police warning. That she did not determine what answers he had given in response, and proceeded to question him, adds tothe seriousness of the breach as it evidences a willful or reckless disregard for those important Charter rights.

As noted in paragraph 74of Grant, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated withgood faith. [55] I have also considered that the Applicant was kept at the scene for approximately 50 minutes after having indicated that hewished to speak to counsel. As I have already stated, no satisfactory explanation for this delay has been provided and, again, I find that itevidences a willful or reckless disregard for the Applicant’s rights. [56] I find that Cpl.

Gaudet repeatedly questioned the Applicant because she wanted his assistance in finding the gun. Her actionswere deliberate. The breach is not merely a technical breach or one made by inadvertence, it is serious. [57] The second Grant factor is the impact of the breach on the Charter protected interests of the Applicant.

Generally, “[t]he moreserious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public thatCharter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administrationof justice into disrepute” (Grant, at paragraph 76).

To determine the seriousness of the limitation on the accused’s Charter protectedinterests, it is necessary to look to the interests engaged by the limited right, and then examine the degree to which the limitationimpacted on those interests (Grant, at paragraph 77). [58] I have already discussed the connection between s. 10(

b) and s. 7 of the Charter which includes a person’s right against self-incrimination. At paragraph 95 of Grant, the Supreme Court of Canada wrote: The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, thepotential to harm the repute of the justice system varies with the seriousness of the impingement on the individual’s protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b).

The failure to advise of theright to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence,and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty andautonomy.

Violation of these fundamental rights tends to militate in favour of excluding the statement. [59] The third Grant factor considers society’s interest in an adjudication on the merits and asks whether the truth-seeking functionof the criminal trial process would be better served by admission of the evidence, or by its exclusion (Grant, at paragraph 79). I mustconsider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact offailing to admit the evidence (Grant, at paragraph 79).

Further disrepute will result from admitting evidence that has the effect of

depriving the accused of a fair hearing, or "from judicial condonation of unacceptable conduct by the investigatorial and prosecutorial agencies”. At the same time, disrepute may also result from the exclusion of evidence and this, too, must be considered.

Indeed, “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the criminal justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute” ( Grant , at paragraph 81 ). [ 60 ] Having considered and balanced the above factors, I have determined that the Applicant’s statements should be excluded from evidence.

It would do more harm to the administration of justice to condone the police officer’s willful or reckless disregard for the Applicant’s right to counsel and right against self-incrimination and allow the evidence in that it would to exclude the evidence. When Cpl. Gaudet questioned the Applicant, there was no immediate concern for officer or public safety and there was nothing to indicate any reasonable risk of evidence being destroyed. The circumstances did not justify a complete disregard for the Applicant’s right to counsel and right not to be questioned until he had spoken to counsel.

ISSUE 3: WAS THE APPLICANT’S S. 8 CHARTER RIGHT TO BE SECURE AGAINST UNREASONABLE SEARCH AND SEIZURE BREACHED BY CST. KENNEDY’S SEARCH OF HIS MOTHER’S RESIDENCE? Facts relevant to the search of his mother’s residence [ 61 ] I will summarize the testimony relevant to this issue. Cst. Amanda Kennedy [ 62 ] Cst. Kennedy was sent to secure the scene of the shooting in Hatchett Cove with another officer. She then proceeded to June Price’s residence. Cpl. Gaudet had told Cst. Kennedy that the Applicant had told them during his arrest that the 12 gauge was located at June Price’s residence in Hatchett Cove. [ 63 ] Cst.

Kennedy arrived at June Price’s at 7:30 p.m. Upon arrival, Cst. Kennedy states that Ms. Price invited her into her home. There was no one else present. Cst. Kennedy explained to Ms. Price the circumstances and that it was believed that an unsecured firearm had been left in her home by her son. Ms. Price explained that she had no knowledge of this. Cst. Kennedy explained to Ms. Price that she was seeking her consent, meaning her permission, to search. She explained that Ms. Price could stop the search at any time and that Ms. Price could go with her in each room as she searched. Cst.

Kennedy then got consent from Ms. Price to conduct the search. [ 64 ] The consent was recorded in Cst. Kennedy’s notebook and a copy was entered as an exhibit on the voir dire . The relevant portion reads: June Price, I hereby do consent to a search of residence [signature of June Price] Witness by [signature of Amanda Kennedy] Cst. A. Kennedy [ 65 ] Cst. Kennedy then proceeded to search the house in the company of Ms. Price. She did not find a gun. Cst. Kennedy decided to call Cpl. Gaudet again and she explained to Ms. Price that she had to call her supervisor. Cst. Kennedy had to leave Ms.

Price’s house to do this as there was no cell service and had to use the satellite phone in her police vehicle. On this call with Cpl. Gaudet, Cpl. Gaudet told Cst. Kennedy that the Applicant told her that the shotgun was hidden in the attic. [ 66 ] Cst. Kennedy returned inside the home and told this information to Ms. Price. Ms. Price then led Cst. Kennedy to the attic. The attic was accessible by a pull-down staircase from a hatch in the ceiling located above the basement stairwell. Cst. Kennedy climbed the ladder and looked around.

She was able to see the barrel of a shotgun which she retrieved, seized and secured. She located the firearm at 7:45 p.m. Cst. Kennedy described Ms. Price as welcoming. [ 67 ] On cross-examination, Cst. Kennedy confirmed that when she arrived at Ms. Price’s she was aware that the Applicant was in custody. She confirmed that there was no disturbance or anything untoward at Ms. Price’s residence and that Ms. Price was cooperative. She confirmed that the RCMP has prepared written forms for consent searches. Cst.

Kennedy confirmed that she did not use one of the forms as she was in an isolated area and did not have the form available. In her experience as a police officer she stated she has often obtained written consent using her notebook. She agreed that the written consent in her notebook did not address that Ms. Price had the right to withdraw consent or the right to refuse consent, nor that she was aware of the potential consequences of the search. Cst. Kennedy testified that she confirmed with Ms.

Price that she resided in the residence and could give consent but acknowledged that this was not recorded in her notebook either. [ 68 ] Cpl. Kennedy confirmed that she had two conversations with Cpl. Gaudet. The first was prior to her entering the residence. In this conversation, Cpl. Gaudet told Cpl. Kennedy that the Applicant had said he placed the firearm at June Price’s residence. The second was after Cst. Kennedy had searched the house and not found a firearm. This was the call in which Cpl. Gaudet told her that the Applicant said the gun was in the attic. Cst.

Kennedy considered her actions all as part of one search. She considered that she had not

finished her search when she called Cpl. Gaudet, but that she was just making the phone call to get more information. She confirmedthat if she had not been able to reach Cpl. Gaudet for the second conversation that would have been the end of her search. When it wasput to her that she would not have found the firearm but for the information from Cpl. Gaudet that the gun was in the attic, Cst. Kennedyagreed. She then retracted a bit saying that she guessed that she could not make that determination, but “that is how it happened”. [69] Cst. Kennedy confirmed that she did not consider getting a search warrant.

She believed that there was an unsecured firearmused in the commission of an offence in Ms. Price’s home and she had Ms. Price’s written consent to search. Harvey Murlin Price [70] When asked under cross-examination why he left his gun in his mother’s attic, he testified that his mother was not a strangerand that he lived there (in her house) for thirty years. Mr. Price did not give any other testimony with respect to his relationship with hismother’s home or the firearm that was seized. Law relevant to the search of June Price’s home [71]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

Section 8protects people, not places, against unjustified intrusions on their privacy interests (Hunter v. Southam Inc., (SCC),[1984] 2 S.C.R. 145 at 159). [72] In R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, the Supreme Court of Canada considered the accused’schallenge of a search of his girlfriend’s apartment. The majority gave the following

summary of the relevant law at paragraph 45: A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable tothe situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure againstunreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2.

Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra. 5.

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, atp. 54, and Wong, supra, at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256. 7.

If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner. [73] In Edwards, the court found that the accused had not established a privacy interest in his girlfriend’s apartment despite evidencethat he had a key and was a regular visitor. The court also considered the accused’s argument that he had a privacy interest in the drugsseized during the search.

Although the court decided that the accused could not now rely on this position having denied ownership ofthe drugs at trial, it did recognize that it is possible, in certain circumstances, to establish an expectation of privacy in the goods that areseized (see paragraph 44). [74] It is possible for what would otherwise be an infringement of s. 8 to be constitutional if the person concerned waives theirconstitutional right to privacy. Marshall J. reviewed the law of consent at paragraph 72 of Mercer: To establish that Ms.

Mercer’s consent was valid, the Crown must prove on the balance of probabilities that her consent was voluntaryand informed, as described in R. v. Wills (1992), (ON CA), 7 O.R. (3d) 337 (Ont. C.A.) at paragraph 69, as follows:

69 In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and, (vi) the giver of the consent was aware of the potential consequences of giving the consent . Analysis of the search of June Price’s home [ 75 ] The Applicant has not established that he had a privacy interest in his mother’s house. The evidence establishes that he was not living there at the time of the search.

His evidence that his mother is not a stranger and that he lived in the house for 30 years is not enough to establish a privacy interest. [ 76 ] Under cross-examination, the Applicant did testify that the gun in the attic was his. As per Edwards , a person may establish an expectation of privacy in the goods that are seized. The onus is on the Applicant to establish this expectation of privacy and I find that he has not met this onus. Ownership is one factor to consider but the inquiry requires an assessment of the totality of the circumstances.

The Applicant did not put forward any evidence as to his subjective expectation of privacy in the gun. Firearms are highly regulated items and the Applicant’s was stored in the house of a third party. In these circumstances, I do not find that objectively there was an expectation of privacy. As such, I find that the Applicant has not established a breach of his s. 8 right in relation to the search of his mother’s home. ISSUE 4: IF A BREACH OF EITHER THE APPLICANT’S S. 10(

B) OR S. 8 CHARTER RIGHT IS FOUND, SHOULD THE FIREARM SEIZED FROM HIS MOTHER’S RESIDENCE BE EXCLUDED FROM EVIDENCE AS PER S. 24(2) OF THE CHARTER ? Law relevant to the exclusion of the firearm [ 77 ] The firearm is “derivative evidence”, which is physical evidence discovered as a result of an unlawfully obtained statement ( Grant , paragraph 116 ). In Grant , the Supreme Court of Canada revisited the law surrounding the admissibility of such evidence.

The court moved away from the doctrine of “discoverability” which had been developed in order to distinguish those cases in which the accused’s conscription was necessary to the collection of the evidence, from those cases where the evidence would have been obtained in any event.

In the former cases, exclusion was the rule, while in the latter, admission was more likely (see paragraph 119). [ 78 ] The revised approach for the application of s. 24(2) was set out at paragraphs 122 to 127 of Grant : Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter infringing self-incrimination and the resultant evidence.

The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.

To determine whether the admission of derivative evidence would bring the administration of justice into disrepute under s. 24(2), courts must pursue the usual three lines of inquiry outlined in these reasons, taking into account the self-incriminatory origin of the evidence in an improperly obtained statement as well as its status as real evidence. The first inquiry concerns the police conduct in obtaining the statement that led to the real evidence.

Once again, the extent to which this inquiry favours exclusion will depend on the factual circumstances of the breach: the more serious the state conduct, the more the admission of the evidence derived from it tends to undermine public confidence in the rule of law. Were the police deliberately and systematically flouting the accused’s Charter rights? Or were the officers acting in good faith, pursuant to what they thought were legitimate policing policies? The second inquiry focusses on the impact of the breach on the Charter protected interests of the accused.

Where a statement is unconstitutionally obtained, in many cases the Charter right breached is the s. 10 (

b) right to counsel, which protects the accused’s interest in making an informed choice whether or not to speak to authorities. The relevant consideration at this stage will be the extent to which the Charter breach impinged upon that interest in a free and informed choice. Where that interest was significantly compromised by the breach, this factor will strongly favour exclusion. In determining the impact of the breach, the discoverability of the derivative evidence may also be important as a factor strengthening or attenuating the self-incriminatory character of the evidence. If the derivative

evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely. The third inquiry in determining whether admission of the derivative evidence would bring the administration into disrepute relates to society’s interest in having the case adjudicated on its merits. Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence. Thus, the public interest in having a trial adjudicated on its merits will usually favour admission of the derivative evidence.

The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2).

On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable. Analysis of whether the firearm found at June Price’s house should be excluded from evidence [ 79 ] I have already considered the police conduct in obtaining the statement that led to the real evidence. I found that there was a willful or reckless disregard for the Applicant’s rights. I found that Cpl. Gaudet deliberately and repeatedly questioned the Applicant because she wanted his assistance in finding the gun.

She did this when she knew or ought to have known that he had exercised his right to counsel and during a period of time that he was being kept at the scene for a prolonged period. The breach is very serious and it weighs heavily in favour of exclusion of the firearm from evidence. [ 80 ] I have also already considered the impact of the breach on the Applicant’s Charter protected rights. The questioning by Cpl. Gaudet significantly impinged upon the Applicant’s ability to make a free and informed choice about whether to speak to police. I also consider that based on the evidence of Cst.

Kennedy, she would not have found the firearm without the repeated infringement of the Applicant’s right. I have found that it was multiple questioning of the Applicant that resulted in him indicating that the firearm was in the attic. I find that after her initial search, if Cst. Kennedy had not been able to reach Cpl. Gaudet or if Cpl. Gaudet had not provided her with additional information, she would not have found the firearm. Cst. Kennedy testified that she did not notice the attic in her initial search of the home and that if she had not reached Cpl.

Gaudet that would have been the end of her search. [ 81 ] It is difficult to speculate as to whether the firearm would have been found without questioning the Applicant. Given that the Applicant had been seen headed towards his mother’s after the alleged shooting, possibly the police could have: interviewed his mother, obtained her consent and searched without using information obtained by questioning the Applicant, relied on s. 487.11 of the Criminal Code (search in exigent circumstances), or obtained a search warrant.

These were all potential avenues of investigation but I am not willing to find that the RCMP would have found the firearm had they chosen to follow these other routes. There are too many unknowns and it is too speculative an analysis. [ 82 ] Considering the above, I find that the second Grant inquiry strongly favours the exclusion of the evidence. [ 83 ] The third Grant inquiry favours admission. The third inquiry, which is whether admission of the derivative evidence would bring the administration into disrepute, relates to society’s interest in having the case adjudicated on its merits.

The firearm is physical and reliable evidence. It is also important evidence for the Crown’s case, although, there is nothing to suggest that the Crown’s case in respect of all eight charges would be entirely gutted in the absence of this gun. Some of the charges may relate to the other firearm and presumably the complainants will offer eye witness testimony at trial. [ 84 ] In the final analysis, weighting and balancing all of the Grant factors, I find that the admission of the evidence would bring the administration of justice into disrepute.

The deliberate police conduct in willful or reckless disregard of the Applicant’s rights severely impacted the Applicant’s Charter protected interests and, notwithstanding that the firearm is reliable evidence, it should be excluded. ISSUE 5: WAS THE APPLICANT’S S. 8 CHARTER RIGHT TO BE SECURE AGAINST UNREASONABLE SEARCH AND SEIZURE BREACHED BY CST. CHAPPELL’S SEARCH OF HIS RESIDENCE? Facts relevant to the search of the Applicant’s residence [ 85 ] I will summarize the testimony relevant to this issue. Cst. Roy Chappell [ 86 ] Cst. Chappell assisted with containment and when Cpl.

Gaudet made contact with the Applicant by cell phone, he stationed himself near the Applicant’s house. Cst. Chappell saw an ATV coming down towards the road, he radioed and yelled out this information. A short time later he heard Cst. Collins say over the radio that the Applicant was in custody. [ 87 ] After that, Cst. Chappell went to the door of the house and spoke to a Jackie Cooper. He was uniformed. He told her the police were there because of a shots fired complaint and that they were doing the investigation. He asked her if she lived there and she said that

she did. He then asked her if it was okay if he searched the house for firearms. She said okay and then she walked him through the house. [ 88 ] Cst. Chappell testified that he did not search the whole house because Ms. Cooper told him that the guns would be in the bedroom. They went to the bedroom and Cst. Chappell did a quick visual sweep, including looking under the bed. He then went to a closet in the bedroom. There Cst. Chappell found an empty soft fabric gun case, and also a hard plastic gun case with a long gun inside with a magazine containing three bullets. He seized the hard gun case and its contents.

He then returned to the detachment with it. [ 89 ] On cross-examination, Cst. Chappell confirmed that he was aware that this was the Applicant’s residence and that when he sought Ms. Cooper’s permission, he knew the Applicant was in custody. He does not recall speaking to a supervisor prior to the search but testified that it came to light to him somehow to search the residence for firearms, just in case, as the police did not want any unsecured or available firearms around and at that time they had no idea where the firearm was. He did not recall considering getting a search warrant.

When asked why he did not get a written consent, he said it was due to the nature of the offence and it was better to be expedient in his mind. [ 90 ] Cst. Chappell agreed that he did not know if Ms. Cooper had any authority or control over the property other than living there. When asked if he had advised Ms. Cooper of her right to refuse, he said that he did not recall saying anything to her that said she could refuse, he just asked her if it was okay with her if he searched.

He confirmed that he did not advise her of the consequences of giving consent but he did tell her the reason for being there and what they were investigating. He did not recall telling her that she could cancel or end the search at any time. Law relevant to the search of the Applicant’s residence [ 91 ] I have already reviewed law relevant to search and seizure in relation to the search of June Price’s evidence. Further law is engaged in the search of the Applicant’s home because a co-habitant consented to the search.

A co-habitant’s consent to search dwelling house was recently considered by our Court of Appeal in R v. Parsons , 2017 NLCA 64 , where the court wrote at paragraphs 40 to 42: The issue in this case arises from the facts that Mr. Parsons was cohabiting with Ms. Jennings and it was she who gave the police permission to search the apartment. Mr. Parsons submits that she could not give permission for the search on his behalf. The decision in R. v. Reeves , 2017 ONCA 365 (Ont.

C.A.), provides a useful analysis of the scope of and limitations on permission to search a residence where the permission is given by a cohabitant. LaForme J.A., for the Court, wrote: [46] ...In the case of joint residents, the question is not whether one resident can waive the constitutional rights of another. Of course they cannot.

Rather, the question is what, if any, impact the fact of joint residency has on one's expectations of privacy, assessed in the totality of circumstances. [47] In Search and Seizure Law in Canada (loose-leaf), vol. 1 (Toronto: Thomson Reuters, 2016), Hutchison et al. write, at 7-12.7 to 15, [i]n order to determine who may consent to a search, the guiding principle must be the 'reasonable expectation of privacy' referred to by the Supreme Court in Hunter v. Southam Inc. If an individual would not reasonably expect another person to be able to authorize a search, then that person cannot consent to a search.

Drawing a distinction between shared and private areas of a residence, LaForme J.A. recognized that the nature of the living arrangements may affect the reasonable expectation of privacy. He continued: [50] Therefore, in my view, the inquiry is two-staged: (

a) would the accused reasonably expect that his or her co-resident would have the power to consent to police entry into a common space, and (

b) if so, did the co-resident actually consent? Of course, the specific facts and circumstances will drive the answer to both of those questions. [51] Before moving on, two final notes about consent. First, an accused does not reasonably expect the police to be able to enter without the valid, voluntary and informed consent of a co-resident. Nor does an accused reasonably expect police to go beyond the scope of consent provided by the co-resident in entering the space. ... [ 92 ] In Parsons , the Court of Appeal upheld the trial judge’s finding that the co-habitant gave valid, voluntary and informed consent.

Analysis of the search of the Applicant’s home [ 93 ] There is no doubt that the Applicant had a privacy interest in his own home and that the expectation of privacy in one’s home is high. Although more investigation on the question of her authority by Cst. Chappell would have been desirable, given that there is no evidence to suggest otherwise, I find that Ms. Cooper had a reasonable expectation of privacy in her residence and could have authorized the search. However, to do so validly she would have to have been better informed. I find that the Crown has not established on a balance of probabilities that Ms.

Cooper was aware that she had the right to refuse Cst. Chappell entry or that she was aware of the potential consequences of giving her consent, namely that evidence found could be used against the Applicant. [ 94 ] I found Cst. Chappell to be a candid witness who was forthright in his testimony. He readily acknowledged that he did not advise Ms. Cooper of her right to refuse nor of the consequences of her giving consent. There is nothing to suggest that Cst.

Chappell’s demeanor was coercive or oppressive, however, the average person finding a police officer at their door asking to come in to look for a firearm, cannot be presumed to understand that they have the right to say no or to change their mind and end the search at any time. Cst. Chappell did not take sufficient steps to ensure that Ms. Cooper’s consent was informed and, as a result, I find that it was not. [ 95 ] As a result, Cst. Chappell’s search was a warrantless search without valid authorization and it was in breach of the Applicant’s s. 8 Charter rights.

ISSUE 6: SHOULD THE FIREARM AND AMMUNITION SEIZED AS A RESULT OF THE SEARCH OF HIS RESIDENCE BE EXCLUDED FROM EVIDENCE AS PER S. 24(2) OF THE CHARTER ? Analysis of whether the firearm and ammunition found at the Applicant’s house should be excluded from evidence [ 96 ] In assessing the first Grant factor which is the seriousness of the state conduct, I find that Cst. Chappell acted in good faith. At the time, he believed that Ms. Cooper was consenting to his actions and he was in the house with her authority. I note that he explained to Ms.

Cooper why he was there and what he wanted to do and he asked for her permission. I also consider that Cst. Chappell was investigating a serious charge and he considered that he should act expediently in the circumstances. I have considered that Cst. Chappell did not conduct an overly evasive or prolonged search. He told Ms. Cooper he was looking for firearms, she directed him to where those would be, and he largely limited his search to that area. This was not a flagrant breach of the Applicant’s Charter rights by police.

I find that this factor weighs in favor of including the evidence. [ 97 ] The second Grant factor requires me to consider the impact on the Applicant’s Charter protected interest. This was a serious impact to the Applicant’s rights. His expectation of privacy in his home was high and this was an unauthorized search. This factor weighs in favor of excluding the evidence. [ 98 ] Finally, the third Grant factor requires me to consider whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

The gun case and its contents are physical and reliable evidence. This is critical evidence to the Crown’s case for the charges related to storage of a firearm and storage of ammunition. The third factor weighs heavily in favor of admitting the evidence. [ 99 ] In the final analysis, weighing and balancing all of the Grant factors, I find that the evidence should be admitted. The police officer was acting in good faith and the evidence is real, reliable and necessary for two of the charges.

Although the Applicant’s privacy interest was high and significantly impacted by the breach, on whole the administration of justice is better served by admitting the evidence. DISPOSITION [ 100 ] The Applicant has established a breach of his s. 10(

b) Charter right to counsel and a breach of his s. 8 Charter right against unreasonable search and seizure in relation to the search of his home. Statements made by the Applicant to the police in response to questioning in violation of his s. 10(

b) Charter rights are not admissible into evidence pursuant to s. 24(2) of the Charter . The firearm seized from his mother’s home, which was obtained as a result of the s. 10(

b) breach, is not admissible into evidence pursuant to s. 24(2) of the Charter . Although it was obtained in a manner that infringed the Applicant’s s. 8 Charter right, the Applicant has not established that the admission of the gun case and contents seized from his home would bring the administration of justice into disrepute. As such, that evidence is admissible. _____________________________ Katherine O'Brien JUSTICE