R. v. T.W.B., 2012 MBCA 7

Citation: R. v. T.W.B., 2012 MBCA 7 Date: 20120201 Docket: AY 11-30-07497 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Mr. Justice Martin H. Freedman BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler and ) C. T. St. Croix Appellant ) for the Appellant ) ) G. F. Wiebe - and - ) for the Respondent ) ) Appeal heard: B. (T.

W.) ) June 3, 2011 ) (Young Person, Accused) Respondent ) Judgment delivered: ) February 1, 2012 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act , S.C. 2002, c. 1 (see s. 110(1) ). MONNIN J.A. 1 This is an appeal from an acquittal on a number of weapon-related charges. The acquittal followed a voir dire , in which the judge found that the accused’s rights under s. 8 of the Canadian Charter of Rights and Freedoms (the Charter ) had been breached.

The judge ruled that the evidence seized was to be excluded in accordance with an analysis conducted pursuant to s. 24(2) of the Charter . Facts 2 The accused, a 17-year-old young person, was charged with five offences pursuant to the Criminal Code (the Code ).

He was charged with careless storage of a firearm, possession of a firearm without a registration certificate, possession of a firearm without a licence and two counts of possessing a prohibited device without a licence. 3 The offences relate to a loaded nine-millimetre handgun and two 12-round magazines found hidden in a vent in the accused’s bedroom in his mother’s house. 4 At the time of the incident, the accused’s mother was away from the city and his step-grandmother was staying in the house caring for him and his sister. 5 The step-grandmother received a telephone call from the accused’s grandmother, informing her that, the night before, the accused’s aunt had heard the accused and his sister talking about a gun.

As a result of this information, the grandmother asked the step-grandmother to look in the accused’s room to see if she could locate a gun. 6 The step-grandmother located a gun, wrapped in a sock and hidden in an air vent near the door, inside the accused’s room. 7 The grandmother, after the finding of the gun was confirmed to her by the step-grandmother, called Kathleen Kuzak,

who was a close friend of the accused’s mother and who also happened to be a constable with the Winnipeg Police Service. 8 Constable Kuzak reported the matter to Patrol Sergeant Bauer and Sergeant Hay of the Street Crimes Unit. At the time, Patrol Sergeant Bauer was dating Constable Kuzak and was known by the accused’s mother. 9 The accused’s mother called Constable Kuzak and eventually spoke with Patrol Sergeant Bauer. His evidence of that conversation was as follows: Q What, if any, concerns did [the mother] express to you?

A Her concerns that she expressed to me were, were in regards to safety of grandmother … and the fact that [the accused] may return and remove the firearm. Q Did she give you any instructions as to what she wanted you to do? A No, she didn’t. At one point what happened was I spoke to [the mother], I gave her, you know, my concerns in regards to the public safety issue and I advised her -- and then I asked her if there’s any issues in regards to me attending to the residence, and she said no.

Then I told her I was going to go to the residence to get the firearm and she was in agreement that it was important to get that firearm before [the accused] came home. 10 Patrol Sergeant Bauer further testified that he did not get a search warrant because he felt it was important to get to the residence as quickly as possible, before the accused could return home and remove the firearm. He also testified that he believed that s. 117.04(2) of the Code , for public safety reasons, provided him with authority to seize the firearm without a warrant.

Finally, he testified that he believed, following the conversation that he had with the accused’s mother, that he had the consent of the homeowner to enter the house to retrieve the gun from the vent in the accused’s bedroom. 11 The accused alleged that his s. 8 Charter rights had been breached .

Following a voir dire , in which the judge heard from Constable Kuzak, Patrol Sergeant Bauer, another police officer who accompanied Patrol Sergeant Bauer to the mother’s home, and the mother herself, the judge found that, in fact, the accused’s Charter rights had been breached and that the seizure of the gun came as a result of a warrantless search that was unreasonable.

Trial decision 12 The judge found that the accused had a reasonable expectation of privacy in his bedroom and the vent located in that bedroom in his mother’s house, that neither the mother nor the step-grandmother had the authority to consent to the search, and that even if they did, they had not given an informed consent.

She also found that exigent circumstances as defined in s. 529.3(1) of the Code did not exist and that s. 117.04(2) of the Code also did not apply because to rely on this section, the police would have had grounds to obtain a search warrant, which she found that they did not. 13 The judge then went on to conduct a s. 24(2) Charter analysis, relying on the principles established by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 .

After setting out the test, she came to the following conclusions with respect to each of the three steps set out in Grant . 14 With respect to the seriousness of the infringing conduct she found (at paras. 112-15): Where consent to search is given by a third party with what may be reasonably perceived as apparent authority by police, even if the consent given by a third party turns out not to be valid because it cannot substitute for actual consent of the accused, that apparent authority may be considered in determining admissibility of evidence obtained in doing the s. 24(2) analysis ( R. v.

Barrett , [ [1995] O.J. No. 920 (QL) (C.J.) ].) In this case, both [the mother] and [the step-grandmother] may have reasonably seemed to police to have apparent authority to consent to police searching [the accused’s] room. [The mother] was the homeowner and [the step-grandmother] was someone who seemed to be in charge of the home in [the mother’s] absence.

If police had specifically given [the mother] and/or [the step-grandmother] the requisite information to make an informed decision, including telling them they had a right to refuse the search, and actually asking them if they agreed to the search, even though such consent(

s) would not be valid substitutes for the consent of [the accused], those actions of police, in my view, would have lessened the seriousness of the Charter infringing conduct.

Instead, due to the personal relationships involved, Patrol Sergeant Bauer essentially told [the mother] that he and other officers were going to her residence to get the gun. [The mother] did not object but she was not told that she could object. [The step-grandmother], when she answered the door, was told by Patrol Sergeant Bauer that [the mother] knew he was there to get the gun. [The step- grandmother] was not given any choice in the matter. Accordingly, due to personal relationships, Patrol Sergeant Bauer circumvented what he was required to do in order to protect citizens’

rights against unreasonable search and seizure. He knew the players involved, assumed, without asking them, that they would want himto get the gun at all costs, and accordingly did not take the steps he is required to, by law, of providing the required explanation to requestconsent, or, alternatively of taking steps to get further information and then apply for a search warrant. [The accused] has the same rights under s. 8 of the Charter as do the numerous individuals that Patrol Sergeant Bauer does not knowpersonally and deals with every day.

Those rights of [the accused] must be protected by the law just as closely. The fact [the accused]and his family were friends of Patrol Sergeant Bauer and Constable Kuzak did not justify Patrol Sergeant Bauer treating those Charterrights with any less regard than those of people unknown to him.

Although I have no doubt that Patrol Sergeant Bauer and ConstableKuzak had the safety interests of [the accused], [the step-grandmother] and the public forefront in their minds, the fact is that thepersonal relationships here caused Patrol Sergeant Bauer to take shortcuts and to make assumptions about what [the mother] would want,instead of doing what he would normally do in order to ensure a subject’s Charter rights were protected. Although certainly not drivenby any sort of malicious intent or ill will, the fact is that Patrol Sergeant Bauer disregarded [the accused’s] s. 8 Charter right.

This wasnot a technical breach, but based on deliberate police action. Accordingly the infringement of the right is at the high end of theseriousness continuum. 15 With respect to the impact of the breach on the accused she wrote (at paras. 116-18): This line of inquiry looks at the degree to which an accused’s Charter protected interests were violated. The more significantly thebreach actually undermined the interests protected by the right breached, the more likely admitting the evidence would result in theadministration of justice being brought into disrepute.

The impact of the breach is that police went into [the accused’s] bedroom, in which he had a high expectation of privacy against stateintrusion, and found a gun, without either consent or a search warrant, and when circumstances were not exigent. The impact is significant as a gun and magazines, potentially extremely incriminating evidence, was found. 16 With respect to society’s interest in adjudicating on the merits she concluded (at paras. 121-23): The evidence of the search in this case is highly reliable. It is physical evidence that can be testified about and, if necessary, produced incourt.

The evidence is critical to the prosecution’s case. The offence is serious, since it involves a firearm, and in particular, a firearmbeing in a residence. Society has an interest in having cases involving firearms adjudicated, given the danger firearms pose to our communities. The facts that evidence obtained in breach of a Charter right is reliable, and is tendered on a serious charge do not necessarily meansuch evidence will not be excluded. In the R. v.

Harrison (B.) case (2009 SCC 34 , [2009] 2 S.C.R. 494; 391 N.R. 147; 253O.A.C. 358), a large amount of cocaine was seized as a result of a breach of the accused’s Charter rights.

Even though that evidencewas highly reliable and was tendered on a very serious charge, the court excluded it pursuant to s. 24(2) of the Charter, finding that theseriousness of the offence and the reliability of the evidence did not in that case outweigh the factors in favour of exclusion. 17 She then went on to balance all of the three criteria, which is the last step required by Grant, and concluded that theevidence should be excluded.

She stated (at para. 124): The gun and magazines were found as a result of [the accused’s] right to unreasonable search and seizure guaranteed by s. 8 of theCharter being breached. When the three step inquiry mandated by R. v. Grant is applied to the facts of this case, a balancing of thefactors favours exclusion of the evidence of the search.

Although the gun and magazines are reliable evidence on a very serious charge,and are critical to the prosecution’s case, and although members of the community have an interest in having serious offences such asthose involving firearms found in residences adjudicated on their merits, the long-term repute of the administration of justice is moreimportant. Admitting the evidence would condone police taking short cuts and treating the Charter rights of certain accused with lessconsideration than others and than required by law.

Even though a police officer may be motivated by intentions related to ensuringpublic safety and getting guns out of the hands of people who should not have them, the fact he may have a personal relationship with anaccused or his family, cannot be seen, in the public’s eyes, to permit any sort of “watering down” of the diligence with which anaccused’s Charter rights must be safeguarded. Although it may be understandable that Patrol Sergeant Bauer would rely on the apparent

authority of [the mother] and/or [the step-grandmother] to consent to the officers searching [the accused’s] bedroom, even though legallyno consent could be substituted for [the accused’s] consent, [the mother] and [the step-grandmother] were not asked for their consent, nortold police needed consent to enter the residence, and no information that could justify informed consent was provided. No steps weretaken to apply for a warrant, even though there were clearly not exigent circumstances, because Patrol Sergeant Bauer assumed, knowing[the mother] as he did, that [the mother] would want him to get the gun.

Although he did not ask to be put in that position, the fact PatrolSergeant Bauer had a personal relationship with the accused’s family resulted in his treating the accused’s Charter rights with lessregard than they otherwise would be. The repute of the administration of justice depends on members of the public, who are fullyinformed, being confident that the protection of his or her Charter rights does not in any way depend upon personal relationships, and isprotected to an independent standard.

To admit evidence obtained in a way that circumvented that independent standard wouldnegatively impact on the long-term repute of the administration of justice. 18 Although the Crown has not appealed the judge’s finding that the accused’s s. 8 Charter rights were breached, I am farfrom convinced of the correctness of that decision in as far as the accused’s expectation of privacy is concerned. Notwithstanding myreservations, I respect the Crown’s decision not to appeal that portion of the judge’s decision and, accordingly, will deal only with theexclusion of the evidence under s. 24(2) of the Charter.

Standard of review 19 The first issue to be considered is the applicable standard of review. The Crown appeals pursuant to s. 676(1)(

a) of theCode. That

section limits the Crown to an appeal on questions of law alone. See R. v. R.G.B., 2012 MBCA 5. 20 On a question of law, the standard of review is normally one of correctness. However, in its factum, the Crown alleges,on the strength of Grant, that the standard in this case is one of correctness, but with an element of deference. 21 In argument, the Crown refined its position to argue that there can exist a deferential standard applied to one ofcorrectness. As stated earlier, it relied on Grant and, in addition, also relied on R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, and R.v.

Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, to advance that proposition. Further, it argued that such a standard was similar to the onerelied upon when a sentence is being reviewed by an appellate court, namely that deference must be given a sentencing judge, butappellate interference is allowed if the sentence is outside of an acceptable range.

Thus, it argues, if a s. 24(2) decision is made that isnot consistent with other previously decided cases, it is still open for an appellate court to intervene, even allowing for deference to thedeciding judge. 22 Counsel for the accused took the position that the standard of review is one of deference, but also argued that even on astandard of correctness, the judge had not erred.

She also takes issue with the Crown’s allegation that the judge’s decision wasinconsistent with other similar cases. 23 Two recent decisions, one from this court and one from the Supreme Court of Canada, released after the hearing of thisappeal, have dealt with this issue in relatively definite terms. 24 In R. v. Farrah (D.), 2011 MBCA 49, 268 Man.R. (2d) 112, Chartier J.A. wrote (at para. 7): By which standard is this court to review the issue of whether there is a Charter breach? There are several components to this question. They are as follows:

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensure thatthe correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and thestandard of review is correctness.

b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether therewas an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, thefacts as found by the judge should not be disturbed (see Grant, at para. 129).

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by thejudge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (see R.v. Shepherd (C.), 2009 SCC 35 , [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, at para.20).

d) The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is a question of law. However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s.24(2) assessment when the appropriate factors have been considered (see Grant, at para. 86, and R. v. Beaulieu (G.), 2010 SCC 7

, [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, at para. 5). 25 In R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, Cromwell J. stated (at paras. 44-48): A. Standard of Review The standard of review of a trial judge’s s. 24(2) determination of what would bring the administration of justice into disrepute havingregard to all of the circumstances is not controversial. It was set out by this Court in Grant and recently affirmed in R. v. Beaulieu, 2010SCC 7, [2010] 1 S.C.R. 248.

Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or herdetermination is owed considerable deference on appellate review (Grant, at para. 86, and Beaulieu, at para. 5). B. The Grant Analysis This Court established a revised approach to the exclusion of evidence under s. 24(2) in Grant. It explained that s. 24(2) was generallyconcerned with “whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of theevidence” (para. 68).

As noted earlier, this Court held that three avenues of inquiry were relevant to an assessment of whether theadmission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. A court’s role whenaddressing an application to exclude evidence under s. 24(2) is to balance the assessments under each of these lines of inquiry anddetermine, based on all of the circumstances, whether the admission of the evidence would bring the administration of justice intodisrepute.

In setting out this new framework, this Court made it clear that while these lines of inquiry did not precisely track the categories ofconsiderations set out in the earlier jurisprudence, they did capture the factors relevant to the s. 24(2) determination that had been set outin the earlier cases. In Beaulieu, Charron J., writing for the Court, emphasized this point, noting that Grant did not change the relevantfactors in the s. 24(2) analysis. The first line of inquiry involves an evaluation of the seriousness of the state conduct.

The more serious the state conduct constitutingthe Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to theconduct. The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter-protected interestsof the accused. The impact may range from that resulting from a minor technical breach to that following a profoundly intrusiveviolation. The more serious the impact on the accused’s constitutional rights, the more the admission of the evidence is likely to bringthe administration of justice into disrepute.

The third line of inquiry is concerned with society’s interest in an adjudication on the merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence.The reliability of the evidence and its importance to the prosecution’s case are key factors. Admitting unreliable evidence will not servethe accused’s fair trial interests nor the public’s desire to uncover the truth. On the other hand, excluding reliable evidence mayundermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective.

The importance ofthe evidence to the Crown’s case is corollary to the inquiry into reliability. Admitting evidence of questionable reliability is more likelyto bring the administration of justice into disrepute where it forms the whole of the prosecution’s case, but excluding highly reliableevidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” the prosecution’scase. After considering these factors, a court must then balance the assessments under each of these avenues of inquiry in making its s. 24(2)determination.

There is no “overarching rule” that governs how a court must strike this balance (Grant, at para. 86). Rather, “[t]heevidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admissionof the evidence would bring the administration of justice into disrepute” (Harrison, [2009 SCC 34, [2009] 2 S.C.R. 494] at para. 36). Noone consideration should be permitted to consistently trump other considerations.

For instance, as this Court explained in Harrison, theseriousness of the offence and the reliability of the evidence should not be permitted to “overwhelm” the s. 24(2) analysis because this“would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under theCharter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’” (para. 40, citing 2008 ONCA85, 89 O.R. (3d) 161, at para. 150, per Cronk J.A., dissenting). In all cases, courts must assess the long-term repute of the administrationof justice.

Crown’s position 26 The Crown argues that the judge made an error in law with respect to her analysis and finding on the second Grantcriterion, namely the impact of the breach on the Charter-protected rights of the accused. It argues that she properly set out the test to bemet in para. 116 of her reasons, but then went on to err in para. 118 when she tied the interests of the accused to the finding of the gunitself. The Crown argues, and that is conceded by the accused, that it is immaterial whether evidence is found or not. In fairness to the

accused, however, he argued that such error bears little consideration when the three elements of the test are balanced together and that,notwithstanding the error, the judge was fully aware of what the test in fact was. 27 As to the first leg of the Grant test, the Crown argues that the breach was not as serious as the judge found it to be,based on many misapprehensions by her, starting with the accused’s expectation of privacy.

This, the Crown alleges, she found not onthe basis of evidence before her, as the accused did not testify, but on the basis of evidence that was not before her, such as the rules ofthe house as between the accused and his mother. 28 The Crown also argues that the judge erred in finding that the accused’s expectation of privacy extended to the houseventilation system. 29 Furthermore, the Crown argues that, contrary to what the judge found, the police did have a reasonable and probableground to obtain a warrant, that they believed that they had consent to conduct the search that they did.

This and the above shouldmilitate in favour of a finding that the breach was a less serious one and that the judge erred when she came to a contrary conclusion. 30 As to the third leg of the test, the Crown argues that the judge properly considered the elements of the test, but was inerror when she equated the facts of this case to those in R. v.

Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, where the weapon wasexcluded. 31 Finally, on the issue of balancing the Grant factors, the Crown argues that the judge failed to properly consider theposition which the Supreme Court of Canada has taken when considering the exclusion of guns, in that she failed to consider cases whereguns were not excluded in the face of more serious Charter breaches. In

summary, the Crown argues that the judge’s errors are soserious that her decision deserves no deference and that it should be set aside and a new trial ordered. Accused’s position 32 The accused’s position, seen as a whole, is that the Crown is seeking a change in the judge’s findings of fact and that itis not open for appellate intervention.

This court, the accused argues, is being invited to revisit the findings of fact made by the judgeand it should decline to do so and dismiss the appeal. 33 The accused argues that the Supreme Court has not stated that a gun should never be excluded and that the breach inthis case was of such a serious nature that this is very much a case that warrants exclusion.

Although a worthwhile endeavour, the needfor keeping guns off the streets is not a sufficient reason to lower the standards required to obtain a search warrant. 34 The accused argues that the police abused their relationship with his family and, because of that relationship, proceededas they wished without any consideration for his rights. 35 The accused argues that the judge was correct in finding that he had an expectation of privacy in his bedroom based onthe evidence of his step-grandmother, that the police conduct was egregious and that there were no exigent circumstances to justify thewarrantless search. 36 Finally the accused argues that the judge’s decision was not inconsistent with other gun search cases, that each case hasits own particular set of facts, that the trial judge’s findings as to those facts should be respected and that not all guns seized inwarrantless searches require admission into evidence.

Decision 37 There was no evidence before the judge, either from the accused or from his mother, as to the expectation of privacythat a young person generally and this accused, in particular, had with respect to the venting system in the mother’s home. The judge’sconclusion that there was a high expectation of privacy is not, in my view, derived from the evidence before her and, because of that, herdecision as to the expectation of privacy is entitled to less deference than it otherwise might be.

I consider her conclusion to bespeculative at best and informed by the judge’s own view of what that level of privacy should be. It is not one that I share and I do notfeel bound to accept it. 38 Dealing specifically with the expectation of privacy as it applies to the venting system, which I consider to be part ofthe general infrastructure of the house, there is guidance to be had from the words of Krindle J. in R. v. Woldrich (C.J.) (1997), (MB KB), 122 Man.R. (2d) 231 (Q.B.),where she wrote (at para. 22): When it comes to the rest of the house, however, the situation is quite different.

Ordinarily a resident home owner can choose to admit orexclude individuals from her home or at least from the public areas of her home. Ordinarily recreation rooms, laundry rooms, workrooms and washrooms are public areas of a home which any resident home owner would be able to use, to invite others to use, to admitothers, to exclude others. There is no evidence before me that the situation in this home differed in any way from the situation thatordinarily pertains where an adult child lives in a home owned and occupied by a parent.

I cannot assume the existence of an expectationof privacy by the accused insofar as public areas of the house are concerned and there is no evidence before me that would tend toestablish the existence of such an expectation. 39 Also, I do not view the seriousness of the breach in the same light as the judge did. The judge’s conclusion that thepolice conduct was skewed because of a personal relationship between a police officer and the accused’s mother again has littlefoundation in the evidence and certainly does not, in my view, raise the seriousness of the breach to the level which the judge ascribed toit.

It is clear that what the adult family members involved in this episode wanted was the removal of the firearm from the house. See

para. 9. In achieving this, the conduct of the police is certainly far from being egregious and, in my view, was reasonable in the circumstances of this particular case. 40 Furthermore, I have little doubt that if the police officers involved in this incident believed that obtaining a warrant was necessary, they had, contrary to the judge’s view of it, more than ample reasonable and probable grounds on which to obtain it.

In the circumstances, I cannot conceive that an issuing magistrate would deny granting it. 41 With respect to the judge’s analysis under the second leg of Grant , I agree with the Crown’s argument that the finding of a gun in the accused’s bedroom should have been of very little relevance to the judge’s decision, which appears not to have been the case. I also consider her analysis to be flawed because, as was her decision as a whole, it is based on the accused having a high expectation of privacy in the duct work of his mother’s house.

Finally, on this leg of the analysis, it is also noteworthy that the police search of the accused’s bedroom was limited to the duct work and not other parts of the bedroom, which suggests that any impact on the accused’s rights was minimal. 42 This is not, in my view, a case of impermissible short-cuts by the police. This is a case where an accused had a minimal expectation of privacy in the location where he hid a weapon and the hiding place was being investigated by the police when they honestly and rightfully, in my view, were doing so with the consent of the homeowner.

To exclude the evidence found would, in my view, bring the administration of justice into disrepute. 43 On the whole, I consider the judge’s conclusion to exclude the gun unreasonable; to do so would bring the administration of justice into disrepute. That offends the principle set out in Grant and reinforced in Côté and, in my view, the judge erred in her assessment of that consideration. 44 Accordingly, I would allow the appeal and order that the matter proceed to a new trial. J.A. I agree: C.J.M. I agree: J.A.