Young v. Ewatski et al., 2012 MBCA 64

Citation: Young v. Ewatski et al., 2012 MBCA 64 Date: 20120615 Docket: AI 11-30-07491 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes BETWEEN : LANA YVONNE YOUNG ) ) (Plaintiff) Appellant ) - and - ) R. I. Histed ) for the Appellant JACK EWATSKI ) ) (Defendant) Respondent ) ) D. A. M.

Pambrun A N D B E T W E E N : ) for the Respondents ) LANA YVONNE YOUNG ) ) (Plaintiff) Appellant ) Appeal heard: - and - ) June 17, 2011 ) CHRISTOPHER EDWARD PATTS, ) RICHIE MILLER, DAVID PRIESTLY, ) DERIK CHWARTACKI, KEN MASSE, ) Judgment delivered: SHEREE HANYSH, JOHN DOE and ) June 15, 2012 RICHARD DOE ) ) (Defendants) Respondents ) BEARD J.A. I. THE ISSUE 1 This appeal involves a civil claim for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ).

The appellant, Lana Young (the plaintiff), alleges that the respondents (defendants) except Jack Ewatski (the police officers), all members of the Winnipeg Police Service, breached her rights under s. 8 of the Charter by conducting a warrantless and unreasonable search of her home when they entered and searched her home looking for Darcy Berens, a friend of her son.

The defendants’ position is that the search, while warrantless, was not unreasonable because they had the prior consent of the plaintiff’s adult daughter, Candace, who was residing at the house with the plaintiff, to carry out the search. 2 The defendant Jack Ewatski has been sued in his representative capacity as Chief of the Winnipeg Police Service at the time of the search. He had no personal involvement in the search. 3 The plaintiff has set out the grounds of appeal as follows: (

i) the trial judge erred in law in finding that Ms Young’s right to be secure against unreasonable search and seizure was not violated by the defendants; (ii) the trial judge erred in law in finding that Ms Young’s right to privacy could be waived by a third party without her knowledge or consent; (iii) the trial judge erred in law in finding that there was a valid third-party waiver of Ms Young’s right to privacy; and (iv) the trial judge erred in fact in finding that there was consent to search her dwelling.

4 The defendants restated the grounds of appeal as follows: (

i) Did Candace consent to the entry of the officers into the residence? (ii) Did Candace have the authority to consent to the entry of the officers into the residence? (iii) Was the consent informed? II. THE FACTS 5 The police were attempting to locate and arrest Darcy Berens pursuant to an arrest warrant that was issued by the court when Mr. Berens, who was charged with second degree murder, failed to appear for a scheduled court appearance.

The trial judge found, and in fact the defendants agreed, that the police did not have enough evidence to obtain a warrant to enter the premises at 210 Young Street to search for Mr. Berens, but they did have enough information to believe that this was the most likely place where he would be. The police were aware that Mr. Berens was at least an associate of a street gang, if not a full member. 6 The plaintiff was living at 210 Young Street with her boyfriend, her two adult daughters, Candace, who was 21 years old, and Trisha, who was 20, and her son, who was 16. Cst.

Patts knew the plaintiff from an earlier involvement which related to her son. On that occasion, Cst. Patts had expressed a concern that the plaintiff’s son was involved with a street gang and asked to come into her house to look for firearms, which she permitted him to do. This search led to the plaintiff’s son being arrested and charged. 7 The search now at issue occurred on November 22, 2005, at around 8:00 a.m. Cst. Patts knocked on the front door, which woke Candace up. She answered the door and was facing eight uniformed police officers.

While there was conflicting testimony between Candace and the police officers as to what occurred at the door, the trial judge made strong credibility findings against Candace and accepted the version of events as related by the police officers. 8 The trial judge found that, when Candace answered the door, Cst. Patts told her that they were looking for Mr. Berens. When she said that he was not there, Cst. Patts asked if they could check the house and she told him to go ahead – in a flippant manner that the officer described as indicating that they were wasting their time.

This entire exchange took less than a minute. Cst. Patts acknowledged that he could not recall any discussion with Candace regarding her right to refuse them entry to search the house. 9 Several officers entered the house, some going into the basement and others going upstairs. The search took, at most, a couple of minutes and did not cause any damage to the residence. As the search was concluding, the plaintiff arrived home from work and immediately began shouting at the police, possibly swearing, and demanded that they leave, which they did. Cst. Patts remained in the house to speak to her.

She advised him that her son had trashed her house during the prior evening and that he was out of control. Cst. Patts advised her that she could charge her son with mischief, but she should think about it. When he returned later, she gave him a statement and her son was charged with mischief. III.

THE TRIAL JUDGE’S DECISION 10 The trial judge described the issues as follows: Whether [Candace] waived her or the plaintiff’s rights to be secure against unreasonable search and seizure and, if so, whether the waiver was voluntary, informed or effective, were the main issues at the trial that I heard for some three-plus days. 11 Relying on the law as set out in the just-released decision of Vancouver (City) v.

Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28 , the trial judge stated that the Supreme Court of Canada held that a trial court is authorized to grant remedies under s. 24(1) for infringements of Charter rights as it “considers appropriate and just in the circumstances.” He then noted that the court established a four-step process to be followed in such cases, those steps being as follows: (

i) establish whether there has been a Charter breach; (ii) show why damages are a just and appropriate remedy, having regard to the related functions of compensation, vindication of the right (in question), and/or deterrence of future breaches; (iii) if the plaintiff is successful in meeting these two steps, the state then has the opportunity to demonstrate that damages are inappropriate or unjust; and (iv) if the state is unsuccessful, assess the quantum of damages. 12 Beginning with the first step, the trial judge further described the issues as follows: The issues that are in dispute relate primarily to the issue of consent, whether Candace Young consented to a search by the City of Winnipeg Police Service members, whether Candace Young was entitled to consent to the search of the plaintiff’s private areas in the home, including her bedroom, whether the consent, if given by Candace Young, was informed. 13 He found that, given that the police did not have a warrant to search the premises, it was for the defendants to establish, on a balance of probabilities, that there was consent and that the consent was voluntarily given by someone in a position to do so who was aware of the consequences. 14 The trial judge stated, early in his oral reasons, that the case was also about credibility and findings of fact.

After reviewing the plaintiff’s evidence in some detail, the trial judge concluded that it was “contradictory, confused, and her direct testimony was simply tailored to suit the action.” He found that Candace was following cues from the plaintiff and he concluded that both Candace and Trisha, as well, were tailoring their evidence to the lawsuit. On points where the evidence of these witnesses contradicted that of the police officers, the trial judge accepted the evidence of the police officers.

With one exception that forms the plaintiff’s fourth ground of appeal, these findings have not been challenged in this court.

15 The trial judge found that Candace, an adult in the house, let the police officers in to search for Mr. Berens. He found thatshe had privacy rights in that home to the point that she legally had the ability to admit the police for the purpose that they stated.

Henoted that the search was limited to places where a person might hide, was of short duration and that the police were not gaining entry toarrest or implicate anybody who lived at the residence, so none of the residents were at risk or jeopardy as a result of the search. (Whilethe correctness of this statement is not a ground of appeal, the statement does not take into account any jeopardy arising out of the “plainview” doctrine or s. 489(2) of the Criminal Code.) Further, he found that it would defy logic, if they were searching for a person, toconfine the search to two or three rooms.

Finally, he noted that the police left when the plaintiff asked them to leave. 16 The trial judge concluded that, having found that the police officers had a valid consent to search and that they compliedwith the plaintiff’s request to leave, there was no Charter breach and, therefore, no need to consider the remaining three steps in Ward. IV. THE POSITIONS OF THE PARTIES The Appellant’s (Plaintiff’

s) Position 17 Regarding the plaintiff’s first and second grounds of appeal dealing with the plaintiff’s privacy rights and Candace’s waiverof those rights, the plaintiff argues that she had a reasonable expectation of privacy in her home and that Candace did not have the rightto give up or waive her mother’s right to privacy and to consent to a search simply by being an adult living in the same home. For thisproposition, she is relying on R. v. Demchuk (R.M.), 2003 MBCA 152, 180 Man.R. (2d) 130, and R. v. Cole, 2011 ONCA 218, 105 O.R.(3d) 253.

She argues that the police officers did not ask Candace whether she had her mother’s authority to allow them in and there wasno evidence that could have satisfied the onus on the defendants to prove that Candace had her mother’s permission to consent on herbehalf. She takes the position that a consent to search requires the consent of all persons who had a privacy interest in the premises,whether or not they were present at the time of the search. 18 The plaintiff also argues that she had a reasonable expectation of privacy in her bedroom, including in her closet and underher bed.

By searching in her bedroom, the police further contravened her privacy rights, which Candace had no authority to waive. 19 The plaintiff refers to several cases, all with very different fact scenarios, in which the courts have declared invalid a waiverof a privacy right/consent to search by a third party, even though that person had an interest in a property or apparent authority toauthorize a search, those being: R. v. Duarte, (SCC), [1990] 1 S.C.R. 30 at paras. 47-48, 57, regarding one-partyconsent to police interception of private telephone calls; R. v.

Wong, (SCC), [1990] 3 S.C.R. 36, regarding a hotelmanager’s consent to the installation of a hidden video camera in a hotel room; R. v. Blinch (R.J.) (1993), (BC CA),31 B.C.A.C. 131, regarding a neighbour/house-sitter consenting to the police searching a house; R. v. Edwards, [1999] O.J. No. 3819(QL) (S. Ct.

J.), regarding a resident consenting to the search of a vehicle parked in a spot that she had loaned to another person; R. v.Woldrich (C.J.) (1997), (MB KB), 122 Man.R. (2d) 231 (Q.B.), aff’d (MB CA), 126 Man.R. (2d)157 (C.A.), regarding a mother consenting to the police searching both the common areas and her adult son’s bedroom in her house; andR. v. DiPalma (M.), 2008 BCCA 342, 259 B.C.A.C. 93, regarding a consent to search a building by a person that the police could notlater identify. 20 The plaintiff also refers to the decision in R. v.

T.W.B., 2010 MBPC 57, 261 Man.R. (2d) 199, in which the court found abreach of s. 8 and excluded the evidence found during the search. It should be noted that the order to exclude the evidence was appealedand this court (2012 MBCA 7, 275 Man.R. (2d) 157), in a decision released after this matter was argued in this court, expressed doubtabout the correctness of the finding of a breach of s. 8, but made no finding because that issue was not appealed.

This court overturnedthe order in T.W.B. to exclude the evidence and ordered a new trial. 21 Regarding the plaintiff’s third ground of appeal dealing with the validity of Candace’s consent to the search, the plaintiffargues that, in order to be valid, any consent must meet the test in R. v. Wills (1992), (ON CA), 7 O.R. (3d) 337(C.A.), to which the trial judge made no reference.

She argues that, in this case, any consent that Candace gave did not meet several ofthe Wills criteria, specifically: Candace did not have authority to give the consent; the consent was not voluntary; and Candace was notaware of her right to refuse to permit the police to search either the house or her mother’s bedroom. 22 Finally, on the plaintiff’s fourth ground of appeal, the plaintiff argues that Candace did not, in fact, consent.

She argues thatCandace “steadfastly denied during cross-examination that she let the police in and she was not mistaken on that point.” She argues that,according to the evidence of the police officers, both Candace and her sister were detained as soon as the police officers entered theliving room.

She takes the position that, if this were truly a consent search, there would have been no need to detain them, and the fact ofthe detention proves that Candace did not consent to the police entering the house. 23 The plaintiff also argues that, if Candace could consent to a search, then Trisha could call off the search. She argues thatTrisha tried to assert her right to privacy, but was ordered to stay put by one of the police officers.

The Respondents’ (Defendants’) Position 24 Regarding the first ground of appeal as restated by the defendants, they agree that the law of informed consent/valid waiverof Charter rights is set out in the Wills decision. They argue that the trial judge made a finding of fact that Candace consented to thementering the residence to search for Mr. Berens and that that finding is supported by the evidence that the trial judge accepted.

Theyargue that the standard of review to overturn a factual finding, being a very high standard of deference to the decision of the trial judge,has not been met in this case. 25 Regarding the second ground of appeal as restated by the defendants, they are relying on the decision of this court in R. v.Guiboche (G.F.), 2004 MBCA 16, 180 Man.R. (2d) 276, leave to appeal to S.C.C. denied, [2004] S.C.C.A. No. 177 (QL), in which ahomeowner permitted the police to enter to search for his son.

In that case, the issue was the lawfulness of the arrest, given that thepolice did not have either a warrant to arrest the accused or a warrant to enter the premises to search for him. The court found that thehomeowner had given the police consent to enter the house, with the result that the search and arrest were not unlawful.

26 On the question of consent to enter and search in Guiboche, the defendants agree that the evidence was that the homeownerdid not give a verbal consent to enter and search. This court found that the actions and words of the homeowner, even though he did notvoice his consent in so many words, signified his consent for the police to enter and conduct the search. To come to that conclusion, thecourt looked at all of the facts, the totality of the conversation and the homeowner’s actions in coming to its decision. 27 The defendants argue that the trial judge considered the test in R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128,regarding the criteria to establish a reasonable expectation of privacy. They state that the trial judge considered those criteria whenassessing Candace’s authority to consent. They argue that the judge made findings of fact in coming to the conclusion that Candace hadsufficient privacy rights in the residence to have the authority to consent to the police officers entering and searching for Mr. Berens, asearch that would be relatively non-invasive.

They also argue that the standard of review of those findings is, again, very high and hasnot been met in this case. 28 Regarding the third ground of appeal, the defendants argue that Guiboche is authority for the proposition that it is notnecessary for the police to expressly indicate to the would-be consenter that he or she has the option not to do so; rather, thatunderstanding may be gleaned from the context of the conversation.

Their position is that it is evident that Candace clearly understoodthe option to refuse to consent without it having to be spelled out to her. 29 They argue that the consent provided by Candace to enter the residence was clearly informed. They state that this was afinding of fact by the trial judge that is to be given a great deal of deference, and that the test to overturn that finding has not been met inthis case. V.

STANDARD OF REVIEW 30 The plaintiff argues that her first three grounds of appeal all raise questions of law for which the correct standard of review iscorrectness, while the fourth ground of appeal raises a question of fact for which the correct standard of review is palpable andoverriding error. 31 The defendants argue that their first ground of appeal raises a question of fact for which the standard of review isunreasonableness. Regarding their second ground of appeal, they argue that the trial judge made findings of credibility and fact, towhich he applied the correct law.

They state that this is a question of fact, for which the standard of review is reasonableness. Finally,they argue that their third ground of appeal raises a question of fact, for which the standard of review is unreasonableness. 32 The determination of the appropriate standard of review can be difficult, as it depends on the type of case underconsideration – there can be a difference in the standards of review depending on whether the case is one of criminal law, civil law oradministrative law.

Further, the standard of review will also be determined by the nature or characterization of the real question raisedby the specific ground of appeal under consideration.

The questions raised by the grounds of appeal are categorized as follows: - questions of law, being whether the trial judge correctly stated the legal principles and there was no misdirection in theirapplication; - questions of fact, being whether the trial judge made any errors in relation to the factual foundation that forms the basis of his orher decision; and - questions of mixed fact and law, being whether the trial judge made any errors in the application of the legal principles to the factsof the case where there is no extricable question of law. 33 In this matter, we are dealing with a civil action alleging a breach of the Charter.

The standards of review regarding thediffering questions raised by the grounds of appeal in a civil action were set out by Iacobucci and Major JJ. in their majority decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. They stated that, where the error involves a pure question of law, an appellatecourt is free to replace the opinion of the trial judge with its own; thus, the standard of review is that of correctness (at para. 8).

Wherethe error involves a question of fact, the findings are entitled to deference and are not to be reversed unless it can be established that thetrial judge made a “palpable and overriding error” (at para. 10) – they described a palpable error as one that is “clear to the mind or plainto see” (at para. 5).

Where the question involves the application of a legal standard to a set of facts, the question is one of mixed fact andlaw, which is also subject to a standard of palpable and overriding error unless there is an extricable error in principle with respect to thecharacterization of the standard or its application, in which case, the error may amount to an error of law (at para. 37). 34 The standards to be applied in a criminal case where there is either a question of law or fact are the same as in a civil case. (See, for example, R. v.

Farrah (D.), 2011 MBCA 49 at para. 7, 268 Man.R. (2d) 112, regarding questions of law, and R. v. Clark, 2005SCC 2 at para. 9, [2005] 1 S.C.R. 6, regarding questions of fact and factual inferences.) 35 However, where the question involves the application of a legal standard to the facts of the case, i.e., a question of mixed factand law, the standard of review is different, depending on whether the matter is civil or criminal in nature.

In a criminal case, theapplication of the facts to the law is deemed to be a question of law and the standard of review is that of correctness. (See R. v.Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527.) The adoption of this standard for criminal matters may relate to the fact that,in some cases, the Crown has a right of appeal only in relation to questions of law. (See R. v. Ewanchuk, (SCC), [1999]1 S.C.R. 330 at para. 21, and Belyea v.

The King, (SCC), [1932] S.C.R. 279 at 296.) That said, in some cases, forexample whether to exclude evidence under s. 24(2) of the Charter, considerable deference is still owed because of the degree ofdiscretion that must be exercised by the trial judge. (See Shepherd at paras. 18, 20, R. v. Grant, 2009 SCC 32 at para. 86, [2009] 2S.C.R. 353, R. v.

Beaulieu, 2010 SCC 7 at para. 5, [2010] 1 S.C.R. 248, and Farrah at para. 7.) 36 This raises the question of which standard is to be applied to the determination of questions of mixed fact and law regardingan alleged breach of the Charter in the context of a civil case. There appear to be three approaches to this question. The first approach

applies the civil standard of review. For example, in Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473,[2004] 2 F.C.R. 108, Rothstein J.A. (as he then was), for the court, stated as follows (at para. 16): Housen applies to Charter cases in the same way as to other cases …. The proper application of

section 15 is a question of mixedfact and law. HRDC has not argued that Lemieux J. incorrectly set out the relevant principles; rather, its concern was with hisapplication of those principles to the facts. As a result, his decision should be reviewed on a palpable and overriding error standard. (See also Pilette v. Canada, 2009 FCA 367 at para. 17, 319 D.L.R. (4th) 369.) 37 Other cases suggest that there may be a broader standard of review. The Nova Scotia Court of Appeal made what appear tobe conflicting statements of the law in Hartling et al. v.

Nova Scotia (Attorney General et al.), 2009 NSCA 130, 286 N.S.R. (2d) 219. MacDonald C.J.N.S., for the court, stated as follows, citing Housen as his authority (at para. 29): Before moving on to my analysis, let me address the standard upon which these issues should be reviewed. Findings of fact areentitled to deference and we will interfere only if they reflect palpable and overriding error. On the other hand, the judge must be correctwhen stating the law. Often blended questions of mixed fact and law are engaged.

These findings are also entitled to deference unlessan obvious error of law can be extracted. …. 38 He then goes on to make the following statement (at para. 31): All this said, as I understand the appellants’ oral submissions, they allege no errors of fact with the s. 15 issues. Instead they relyon what they assert as extractable errors of law arising from the judge’s handling of the relevant constitutional principles.

Specifically,they say that whether or not a certain set of facts (as found by the trial judge and not under challenge) amounts to discrimination underthe Charter represents a constitutional question of law to be reviewed on the correctness standard. I agree. …. 39 For this, he cites the decision of Morrow et al. v. Zhang et al., 2009 ABCA 215 at paras. 46-49, 454 A.R. 221. Thoseparagraphs in Morrow make no reference to this particular standard.

Morrow only says that the standard of review for questions of law iscorrectness, for findings of fact is palpable and overriding error and that the appeal (in Morrow) raises primarily questions of law. 40 It is difficult to determine how the question referred to in para. 31 of Hartling differs from an application of the law to thefacts as set out in Ardoch and Pilette.

Hartling seems to be more in line with the standard being applied to the questions regarding theapplication of the law to the facts in criminal cases. 41 A third standard of review, being the civil standard set out above with a particular view to constitutional cases, was recentlyapplied by the Federal Court of Appeal in Toussaint v. Canada (Attorney General), 2011 FCA 213, 420 N.R. 364, wherein Stratas J.A.,for the court, stated as follows (at paras. 51-55): What is the standard of review of the Federal Court’s decision on the constitutional issues?

Since the Director did not considerthe constitutional issues, we must look to the law concerning appellate standards of review, not administrative law standards of review. The normal rule on appeals is that on pure questions of law or questions of mixed fact and law where the law predominates or is“extricable”, the standard of review is correctness. On questions of fact, or questions of mixed fact and law that are primarily factual innature, the standard of review is palpable and overriding error. See Housen v.

Nikolaisen et al., 2002 SCC 33 , [2002] 2 S.C.R.235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33; H.L. v. Canada (Attorney General) et al., 2005 SCC 25 , [2005]1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25. On occasion, the Supreme Court has stated that the appellate standard of review on decisions in constitutional cases is correctnessand has used language to suggest that there can be no deference on any question, factual or legal, in a constitutional case: see, e.g.,Doucet-Boudreau et al. v.

Nova Scotia (Minister of Education) et al., 2003 SCC 62 , [2003] 3 S.C.R. 3; 312 N.R. 1; 218N.S.R. (2d) 311; 687 A.P.R. 311; 2003 SCC 62, at paragraph 36 (“[d]eference ends, however, where the constititutional rights that thecourts are charged with protecting begin”). I do not take these statements to mean that in a constitutional case an appellate court can readily interfere with factual findingsand exercises of discretion that are heavily suffused with facts. There are many Supreme Court decisions that confirm that deference onsuch matters is still warranted: see, e.g., Lake v.

Canada (Minister of Justice), 2008 SCC 23 , [2008] 1 S.C.R. 761; 373 N.R.339; 236 O.A.C. 371; 2008 SCC 23, at paragraph 34; R. v. Buhay (M.A.), 2003 SCC 30 , [2003] 1 S.C.R. 631; 305 N.R. 158;177 Man.R. (2d) 72; 304 W.A.C. 72; 2003 SCC 30, at paragraphs 44-45; R. v. Stillman (W.W.D.), (SCC), [1997] 1S.C.R. 607; 209 N.R. 81; 185 N.B.R. (2d) 1; 472 A.P.R. 1, at paragraph 68; R. v. Belnavis (A.) and Lawrence (C.),(SCC), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; Canadian Broadcasting Corp. v. Dagenais et al., (SCC),[1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, at paragraphs 188-189.

In other words, the normal appellate standards of review discussed in Housen and H.L. apply in constitutional cases.

However,as a practical matter, it is fair to say that correctness review probably happens more frequently in constitutional appeals because of thecentrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions ofmixed fact and law that arise. 42 While there appears to be some inconsistency as to the appropriate standard of review in a civil case dealing withconstitutional issues for a question involving the application of the law to the facts where there is no extricable error of law, the weight ofthe authority favours the civil standard of review, being that of palpable and overriding error.

43 Reasonableness and unreasonableness, as a standard of review, usually arise in relation to administrative law, which is notrelevant to this appeal. VI.

SECTION 8 OF THE CHARTER, WARRANTLESS SEARCHES AND THE BURDEN OF PROOF 44 Consent to search the house was a central issue in this case.

The plaintiff asserted, at para. 7 of her statement of claim, that“[a]t no time did any member of the Winnipeg Police Service seek or obtain the consent of the plaintiff to conduct a warrantless search ofher dwelling.” Jack Ewatski asserted, at para. 4 of his statement of defence, that “[a]t the first attendance to the plaintiff’s home, twoofficers requested permission of the plaintiff’s adult daughter to search the residence for a murder suspect and were granted thatpermission.” The police officers stated, at para. 3 of their statement of defence, that “[t]hey were greeted at the door by the plaintiff’sadult daughter who allowed these defendants entry to search for the suspect.” Further, at para. 6(c), they stated that “these defendantsentered the plaintiff’s home with the permission of the plaintiff’s adult daughter.” 45 This case raises the issue of which party has the burden of proving consent – does the plaintiff have to prove that there wasno valid consent, or do the defendants have to prove that there was valid consent? 46 Consent in the context of an alleged breach of the Charter is an issue that almost always arises in the context of criminalcases, with the result that most of the decisions are from the area of criminal, rather than civil, law.

The principles related to the onus orburden of proof are often different in those two areas, which means that one must take care in applying the principles from criminal casesto those involving civil claims. In the context of this case, this raises the question of which party, in a civil case, has the burden ofproving that there was a valid consent to a search that would otherwise be a breach of s. 8 of the Charter. 47 The basic principles underlying s. 8 of the Charter were set out by the Supreme Court of Canada in Hunter et al. v.

SouthamInc., (SCC), [1984] 2 S.C.R. 145, in which Dickson J. (as he then was), for the court, found as follows: - The guarantee of security from unreasonable search and seizure protects a reasonable expectation of privacy, to protect individualsfrom unjustified state intrusions upon their privacy (at pp. 159-60). - This protection can only be accomplished by a system of prior authorization, usually in the form of a valid warrant.

Where it isfeasible to obtain prior authorization, such authorization is a precondition for a valid search and seizure (at pp. 160-61). - A warrantless search is, prima facie, unreasonable under s. 8 and the party seeking to justify a warrantless search must rebut thepresumption of unreasonableness (at p. 161). 48 A significant body of law has developed since Hunter to give further meaning to these principles. Some of these principleswere recently summarized by this court in Farrah (at paras. 27-28): When determining whether there has been a s. 8 breach, all of the surrounding circumstances must be kept in mind.

Thisdetermination essentially involves a two-step process (see R. v. Edwards (C.), (SCC), [1996] 1 S.C.R. 128; 192 N.R.81; 88 O.A.C. 321, at para. 33). First, the accused must satisfy the judge, on a balance of probabilities, that he had a reasonableexpectation of privacy with respect to suite 16. If satisfied, the judge will then proceed to the second step and inquire as to whether thesearch was reasonable. Normally, the onus falls on the accused to prove a Charter violation.

However, because warrantless searches are presumptivelyunreasonable, it is the Crown that bears the burden of establishing, on a balance of probabilities, that the search was reasonable (see R. v.Nolet (R.) et al., 2010 SCC 24 , [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51, 2010 SCC 24, at para. 21). The search will be reasonable if the police are authorized by law (either through statute or common law) to conduct the search, if the lawauthorizing the search is reasonable and if the search is conducted in a reasonable manner (see R. v.

Collins, (SCC),[1987] 1 S.C.R. 265; 74 N.R. 276, at 278, and R. v. Gomboc (D.J.), 2010 SCC 55 , [2010] 3 S.C.R. 211; 408 N.R. 1; 490 A.R.327; 497 W.A.C. 327; 2010 SCC 55, at paras. 18-20). 49 As already stated, the majority of cases that have considered s. 8 have been criminal in nature, in which damages and the civilburden of proof are not at issue.

The proceeding in Hunter did not involve a claim for damages; it was a claim between an agency of thegovernment, the Director of Investigation and Research of the Combines Investigation Branch, and a private newspaper, in which thelatter was challenging the constitutionality of the search provisions of a federal statute. As noted above, the court in Hunter mandatedthat, once a party has proved that there was a warrantless search, the burden of proof shifts to the party seeking to establish thereasonableness of that search.

Where the proceeding involves a civil action that includes a claim for damages, this shifting of the burdencould be seen as being in conflict with the general burden of proof in civil actions, being that the plaintiff has the burden of proving itsclaim. 50 For the most part, the civil cases that deal with a claim for damages arising out of a breach of s. 8 make no reference to thequestion of the burden of proof. Those few that do assume, without any discussion, that the shifting burden in Hunter applies. (SeePersaud v. Donaldson (1995), (ON SC), 25 O.R. (3d) 270 at 274 (Gen.

Div.) (appealed on other grounds), ThunderBay (City) v. Kasstan Estate (1999), (ON SC), 43 O.R. (3d) 703 at 714 (Gen. Div.), and Oughton v. Insurance Corp.of British Columbia, 2004 BCSC 1567 at paras. 4, 14, 20 C.C.L.I. (4th) 214.) This issue was raised in argument at the trial in this matterand the trial judge determined, without any analysis, that the defendants had the burden of proving consent.

For the reasons that follow,I have concluded that this assumption is reasonable when one considers the purpose of s. 8 of the Charter and the nature of civilproceedings. 51 According to Hunter, the purpose of s. 8 is (at p. 160): …. … to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing

unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. 52 As Dickson J. stated, such a system arises in the common law (also at p. 160): A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid searchand seizure both at common law and under most statutes.

Such a requirement puts the onus on the state to demonstrate the superiority ofits interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right ofthe individual to be free from state interference to the interests of the state in advancing its purposes through such interference. 53 This led him to conclude as follows (at p. 161): …. … [I]n Katz, [Katz v.

United States, 389 U.S. 347 (1967)] Stewart J. concluded that a warrantless search was prima facie“unreasonable” under the Fourth Amendment. …. … I would in the present instance respectfully adopt Stewart J.’s formulation asequally applicable to the concept of “unreasonableness” under s. 8, and would require the party seeking to justify a warrantless search torebut this presumption of unreasonableness. 54 While having a valid warrant is one way of rendering a search and/or seizure reasonable, the reasonableness of a warrantlesssearch can be established in several other ways, as stated by Chartier J.A. in Farrah (at para. 31): The sources of legal authority for police to conduct warrantless searches will arise through statute or common law.

The commonlaw will typically provide the legal basis for warrantless searches when: (

a) there is consent to the search; (

b) the police come upon evidence in the course of their duties or unexpectedly and that evidence is in plain view (under the “plainview doctrine”); (

c) the search is incident to arrest; (

d) the search is incident to detention; or (

e) the search is ancillary to the common law police powers and duties to keep the peace and preserve life pursuant to theWaterfield/Dedman test (R. v. Waterfield, [1963] 2 All E.R. 659 (C.A.); R. v. Dedman, (SCC), [1985] 2 S.C.R. 2; 60N.R. 34; 11 O.A.C. 241). 55 Given that there are a number of different ways in which a warrantless search and/or seizure can be rendered reasonable, thatjustification is more succinctly dealt with as a defence to be pled and proved by the defendant, rather than as part of the plaintiff’s claim.

It would be unwieldy to require that a plaintiff negative every possible justification, not to mention the difficulty of proving a negative,that is, that each justification did not apply. As well, much of the evidence in support of the justification would be in the possession ofthe defendant and not accessible, or not readily accessible, to the plaintiff. 56 Further, if the burden of proof remains with the plaintiff throughout, those acting on behalf of the state would not be requiredto justify their intrusions upon that plaintiff’s privacy.

This would not accord with the purpose of s. 8, being to require the state todemonstrate the superiority of its interest to that of the individual. 57 It is also instructive to look at the tort of trespass. As Dickson J. stated in Hunter, “[h]istorically, the common lawprotections with regard to governmental searches and seizures were based on the right to enjoy property and were linked to the law oftrespass” (at p. 157). If one looks at the elements of the tort of trespass, consent is a defence and the burden of proving that defence ison the person who asserts it. (See G.H.L.

Fridman, Q.C., The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters CanadaLimited, 2010) at pp. 48-49.) 58 Thus, I am satisfied that, in accordance with Hunter, once the plaintiff has proved that there was a warrantless search, theburden of proof should shift to the defendant to prove the reasonableness of that search as part of its defence to a civil claim alleging abreach of the plaintiff’s rights under the Charter and asking for damages under s. 24(1) of the Charter. VII.

THE CLAIM AGAINST THE POLICE OFFICERS 59 The plaintiff filed two separate statements of claim, the first being against Jack Ewatski and the second being against thepolice officers who participated in the search. In para. 1 of the statement of claim against the police officers, the plaintiff claims generaldamages, punitive damages, an action joining that action with Young v. Ewatski, CI 05-01-45161 (the action against Jack Ewatski) andcosts.

The causes of action that are raised against the police officers are set out in paras. 8-10 of the plaintiff’s statement of claim againstthem, being as follows: - the actions of the defendant officers aforesaid violated the right assured to the plaintiff by s. 8 of the Charter; - the actions of the defendant officers aforesaid constituted an invasion of the plaintiff’s privacy within the meaning of s. 2(1) of

The Privacy Act , C.C.S.M., c. P125; and - the actions of the defendant officers amounted to a trespass to the plaintiff’s real property. 60 The plaintiff clarifies her claim at para. 12 of her statement of claim as follows: The plaintiff claims general and punitive damages as the just and appropriate remedy pursuant to ss. 24(1) of The Canadian Charter of Rights and Freedoms . 61 While the plaintiff set out three separate causes of action in her statement of claim, the trial was argued only on the basis of the breach of the plaintiff’s s. 8 rights.

The plaintiff did not formally discontinue or withdraw the other causes of action, but she also did not advance any arguments about the elements of trespass or suggest the lack of any defences, such as consent. Similarly, she did not comment on the elements of the claim arising out of The Privacy Act .

For example, s. 2(1) states that “[a] person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person,” yet she advanced no argument as to what might constitute an “unreasonable violation” or a “claim of right.” The trial judge did not rule on these claims or even consider them in his reasons and the plaintiff did not appeal his failure to do so. 62 The reason for this may be seen, at least in part, in the reasons of Schulman J. in relation to the defendants’ motion for

summary judgment in this matter ( 2008 MBQB 148 , 234 Man.R. (2d) 293 , aff’d 2008 MBCA 150 , 62 C.P.C. (6th) 246 ), wherein he stated as follows (at para. 1): …. Can a homeowner whose house has been entered and searched by police without a search warrant in order to look for a murder suspect recover punitive damages from the officers?

In the circumstances of this case, I have found that, if the sole cause of action had been trespass, the answer would be no, but as the pleading seeks damages under the Charter , there is a genuine issue for trial on the claim for punitive damages. (See also paras. 10, 13.) 63 Punitive damages were very important to the plaintiff’s claim, as she argued at trial that she should be awarded damages in the range of $100,000 for the invasion of her privacy in her bedroom, a place where she argued that she had an enhanced right and a very high expectation of privacy.

She argued that this is among the most severe kind of loss that can occur under s. 8 of the Charter . 64 I am satisfied that the plaintiff abandoned her claims for damages for trespass and a violation of The Privacy Act and proceeded only with her claim related to the breach of her s. 8 rights. 65 This matter was argued three months before the Supreme Court of Canada released its decision in Ward . In that case, Mr.

Ward brought an action in tort and for breach of his s. 8 Charter rights against several Vancouver police officers, corrections officers, the City of Vancouver and the Province of British Columbia for his arrest, detention, strip search and car seizure. The court acknowledged that civil claims for damages under s. 24(1) of the Charter were relatively rare and that the principles relevant thereto are being developed incrementally.

Of particular importance to the claim against the individual police officers in this case, McLachlin C.J.C., for the court, stated as follows (at para. 22): The term “damages” conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. As Thomas J. notes in Dunlea v.

Attorney-General , [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81, a case dealing with New Zealand’s Bill of Rights Act 1990 , an action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable”. In accordance with s. 32 of the Charter , this is equally so in the Canadian constitutional context.

The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights. An action for public law damages – including constitutional damages – lies against the state and not against individual actors.

Actions against individual actors should be pursued in accordance with existing causes of action. …. [emphasis added] 66 This direction as to the proper defendant for a claim for damages under the Charter was acknowledged by Professor Kent Roach in his text entitled Constitutional Remedies in Canada , loose-leaf (Toronto: Thomson Reuters Canada Limited, 2011), wherein he stated as follows (at para. 11.545): The Supreme Court of Canada in Ward v.

Vancouver (City) helpfully recognized that Charter damages under s. 24(1) should be sought against the state and not against private officials. …. 67 The decision in Ward was released on July 23, 2010, and the trial judge did not give his decision in this matter until almost three months later, but the plaintiff did not make any motions in that intervening period to present further arguments dealing with the other two causes of action against the police officers. 68 The comments in Ward apply to the plaintiff’s claim against the individual police officers who carried out the search, with the result that they cannot be sued for damages under s. 24(1) of the Charter arising out of the alleged breach under s. 8 .

As this is the only part of the claim against these defendants that the plaintiff pursued at trial and on appeal, the claim against them must be dismissed. VIII. THE CLAIM AGAINST JACK EWATSKI 69 Jack Ewatski was sued in his representative capacity as the Chief of Police for the Winnipeg Police Service. His liability

arises under s. 21 of The Provincial Police Act , C.C.S.M., c. P150 (which was repealed, effective June 1, 2012, and replaced by The Police Services Act , C.C.S.M., c. P94.5).

The relevant portions of s. 21 of The Provincial Police Act state as follows: Liability for torts 21(1) The chief of police of a municipality is liable in respect of torts committed by members of the police force under his direction and control in the performance or purported performance of their duties in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such torts be treated for all purposes as a joint tortfeasor. . . . . . Payment of municipality 21(4) The municipality shall pay, (

a) any damages or costs awarded against the chief of police in any proceeding brought against him by virtue of this

section and any costs incurred but not recovered by him in the proceeding; and (

b) subject to the approval of the council of the municipality, any sum required in connection with the settlement of any claim made against the chief of police by virtue of this

section . . . . . . [emphasis added] 70 At common law, there was no vicarious liability against an employer for the torts of police officers due to the nature of police duties; however, the imposition of the strict liability that would otherwise be imposed on an employer has been imposed by way of statute, creating a statutory vicarious liability. (See Lewis N.

Klar, Q.C., Tort Law , 4th ed. (Toronto: Thomson Canada Limited, 2008) at 666.) By this legislation, Jack Ewatski and, through him, the City of Winnipeg are statutorily vicariously liable to pay any damages and costs assessed against an individual police officer who is found to have committed a tort and ordered to pay damages. 71 Vicarious liability has been explained by Fridman as follows (at p. 252): In contrast, the second way in which someone can be held responsible for

an act committed by another person does not involve the commission of any tort by the defendant. Instead, the defendant is held liable when someone else has committed a tort, provided two requirements are met: first, the relationship between the tortfeasor and the defendant is sufficiently close so as to make the claim appropriate; second, the tort is sufficiently connected to the conduct authorized by the defendant. Liability of this form is truly vicarious. It is also strict.

It arises and exists solely because the law holds one party responsible for what has been done by another, even though the one so held responsible is totally “innocent,” in a personal sense, of any wrongdoing. The latter is liable because of the tort committed by the former. …. 72 It is axiomatic that, if the defendant’s liability is only vicarious pursuant to the statute and arises solely on proof of the tort of another, then the defendant will have no liability if that other person has not committed any tort. 73 It is clear from Ward that a claim for a remedy under s. 24(1) is not a tort claim at all.

McLachlin C.J.C., for the court, stated as follows (at paras. 22, 36, 68): …. … [A]n action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable”. …. …. Tort law and the Charter are distinct legal avenues. …. …. Mr. Ward sued the officers for assault, as well as the City and the Province for negligence. These claims were dismissed and their dismissal was not appealed to this Court. While this defeated Mr.

Ward’s claim in tort, it did not change the fact that his right under s. 8 of the Charter to be secure against unreasonable search and seizure was violated. No tort action was available for that violation and a declaration will not satisfy the need for compensation. Mr. Ward’s only recourse is a claim for damages under s. 24(1) of the Charter . …. (See also paras. 43, 55.) 74 It therefore follows that a claim for damages under s. 24(1) of the Charter cannot be a claim for which there is liability under s. 21 of The Provincial Police Act .

The Supreme Court described it as an action for constitutional damages which lies directly against the state. Thus, this type of claim under the Charter must be advanced against the state rather than against Jack Ewatski. 75 In this case, Jack Ewatski is only liable on a statutory vicarious basis for the torts of the individual police officers; therefore, if, as in this case, they have not committed any torts, he has no liability. The result is that the claim against Jack Ewatski must also be dismissed. IX.

CONCLUSION 76 For the reasons set out above, the claims of the plaintiff against Jack Ewatski and the individual police officers are dismissed.

X. DISPOSITION OF THE APPEAL 77 I would dismiss the plaintiff’s appeal against all defendants. Given that the dismissal arises out of the Supreme Court’s decision in Ward , which was released after this matter was argued at trial, I would order that neither party pay any costs. __________________________ J.A. I agree: ________________________ C.J.M. I agree: __________________________ J.A.