R. v. Singer, 2012 NSSC 238

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Singer 2012 NSSC 238 Date: 20120604 Docket: CRT. 352137 Registry: Truro Between: Her Majesty The Queen v. Cyril Singer Defendant DECISION (Voir Dire Application) Judge: The Honourable Justice Margaret J. Stewart Heard: May 28, 29 & June 4, 2012, in Truro, Nova Scotia Written Decision: June 25, 2012. Counsel: Jill Hartlen, Crown Attorney David Mahoney, Solicitor for the Defendant By the Court : [ 1 ] On the evening of June 24, 2010, the residence of the accused, Cyril Singer (“Singer”) was searched by the police, pursuant to a CDSA search warrant.

Real evidence was obtained which led to five charges of possession of five different controlled substances for the purpose of trafficking. [ 2 ] This is a defence application to exclude the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms based on alleged violations of the accused’s s. 8 and s. 10(

b) Charter rights.

[ 3 ] A voir dire was conducted to examine the grounds, the validity and execution of the search warrant, as it applies to the Charter . Singer alleges his right to be secure against unreasonable search or seizure (s. (8)) and to retain and instruct counsel (s. 10(b)) were breached during his arrest and the search of his home, on June 24, 2010. He alleges that the telewarrant is invalid; the Information To Obtain a Search Warrant (ITO) contains a material omission; the ITO displays insufficient grounds to support the issuance of a search warrant; the search warrant was executed in an unreasonable manner; and that incriminating information was obtained from him in violation of his s. 10(

b) rights. As a result of any one or all of these alleged breaches, he argues that the evidence obtained during the search and the statements made prior to speaking to counsel should be excluded from evidence at trial, pursuant to s. 24(2) of the Charter .

FACTS [ 4 ] Application for the CDSA warrant was supported by an affidavit (ITO) sworn by Detective Constable Ed Cormier, (“Cormier”) of the Truro Police Service Drug Enforcement Unit on June 24, 2010. [ 5 ] The telewarrant, the application process of faxing the warrant to the JP Centre in Dartmouth, Nova Scotia was begun by Cormier minutes before 5:00 p.m. on June 24, 2010. [ 6 ] The ITO contained a statement by Cormier about his grounds for believing that it would be “impracticable to appear personally before a Justice” to make application. [ 7 ] By admission, the parties agreed that Judge John MacDougall sat as the local sitting Provincial Court Judge in Truro until his retirement in mid July 2009, and sat per diem until late November 2009.

On December 1, 2009, Judge Del Atwood commenced sitting as the local Judge in Truro. On June 24, 2010 Judge Atwood sat Court in Truro according to the Court docket from 9:30-3:28 p.m. The ITO [ 8 ] The search warrant for the accused’s home at 60 Brunswick Street, Truro, was acquired on the basis of an ITO sworn by Cormier. He stated that he had reasonable grounds to believe that the accused’s home contained evidence in respect of indictable offences, specifically charges of trafficking, and possession for the purpose of trafficking, in marijuana.

The ITO described the property, and described investigations by way of meetings with informants and research on the usual law enforcement databases. For the purpose of this review, the Crown provided a vetted version of the ITO, with a good deal of information omitted so as to protect the identities of the informants. [ 9 ] Cormier identified three confidential sources – sources A, B, and C – who had provided information to police in respect of the accused’s alleged activities. Source A was a contact of Constable Jeff Tremblett, while Source C was a contact of Sergeant Rob Hearn.

Source B was Cormier’s own contact. Both sources A and C had criminal records, though not for fraud or perjury. Source B had no record. All three had been paid for information. Each had provided information: in relation to illegal drug activity relating to the Controlled Drugs and Substances Act … and other offences pursuant to the Criminal Code , and information obtained from each of them had been used in several search warrants and has led to several arrests of persons involved in trafficking controlled substances.

[ 10 ] In each case, the source’s information had been corroborated in the past, and each officer expressed his belief in the reliability of the source’s information.

Each source was said to have: first hand knowledge of the information contained herein, based upon conversations with and/or observations of people associated to the accused. been corroborated through physical police surveillance, police investigation, and through information provided by other confidential sources. [ 11 ] Cormier went on to describe a report received from Glen Mooney, an employee at Clarence Farm Services, which was located across the street from the accused’s property. On May 5, 2010, Mr. Mooney indicated that there was drug activity taking place across the street at 60 Brunswick Street.

He reported: high traffic activity of cars and people coming and going from the property and alleged that: [s]ome of this drug activity is also taking place in the front parking lot of Clarence Farm Service. [ 12 ] Cormier reported that he went to Mr. Mooney’s office that day, and from there he could “clearly see” the accused’s residence. [ 13 ] Cormier indicated that sometime later, in June 2010, he spoke with source B, who claimed to have gone to 60 Brunswick Street, and to have seen hydromorph and marijuana inside the home. Source B reported buying marijuana from the accused while inside the home.

Source B also reported that the accused was selling hydromorph and was bootlegging. It appears that Cormier also learned from source B that the accused and his wife had a car with a handicap plate; Cormier confirmed this himself, and identified that car as belonging to Geraldine Sutherland, who also lived at 60 Brunswick Street. [ 14 ] In a second conversation, also in June 2010, source B again reported buying marijuana from the accused at his residence, and told Cormier the price per gram.

Source B also provided a physical description of the accused, which Cormier stated matched his own knowledge of the accused’s appearance. In another conversation in June, source B reported on the amounts of marijuana the accused had sold that day and the previous day. [ 15 ] Cormier also referred to a June 2010 debriefing report by Constable Tremblett, who reported that he had been told by source A that: a guy on Brunswick Street close to Exhibition Street is selling cocaine, marijuana and prescription drugs. [ 16 ] Source A also reported observing “the guy” from another location selling hydromorph pills.

He also read a debriefing report dated June 24, 2010, in which Sgt. Hearn reported that source C reported that: within the past week a guy named Cyril from Shubenacadie had purchased something. [ 17 ] Cormier indicated that a JEIN inquiry showed a previous address for the accused in Milford, near Shubenacadie. The Crown does not suggest that the vetted version of the ITO contains any relevant information from source C.

[ 18 ] On June 24, 2010, source B again described going to the accused ’ s residence, within a matter of hours previously, and buying marijuana from the accused. Source B again indicated that marijuana and hydromorph were seen there. That same day Cormier reported Detective Constable Hebb conducted surveillance of 60 Brunswick Street, and provided the following information: a. 14:40 hrs start surveillance; b. 1448 hrs A female wearing all blue attended Cyril Singer ’ s residence; c. 14:49 hrs. Female left residence (same female as 14:48 hrs.); d. 15:24 hrs.

A red car pulls into the driveway and a white heavy set male wearing a black t-shirt went inside Cyril Singer ’ s residence; e. 15:27 hrs. Male exited the residence and left (same male as 15:24 hrs.); f. 15:31 hrs. A white female with black hair, skinny, wearing a white shirt pulls in the driveway in a small silver car. She then enters Cyril Singer ’ s residence; g. 15:34 hrs. Female exits the residence and leaves (same female as 15:31 hrs.); h. 15:46 hrs. A male enters Cyril Singer ’ s residence; [ 19 ] The evidence at the hearing disclosed that Mr.

Singer left the residence about 19 minutes into the surveillance, which would be after the female in blue, who was there for one minute left, but before the other three people arrived.

He did not return during the time period recorded on the ITO. [ 20 ] In interpreting the available information, Cormier stated that, based on his experience as a drug investigator, he knew that; it is common for people involved in the possession and trafficking of controlled substances pursuant to the Controlled Drugs and Substances Act to be in possession of items that are used in conjunction to assist with the trafficking of controlled substances.

These items include score sheets, personal papers, handwritten notes, scales, calculators, currency, photographs, packaging materials, other drug paraphernalia and other offence related items which are related to the offences of the possession and trafficking of marijuana. [ 21 ] He expressed the belief that a search of the accused ’ s residence: would result in the seizure of illegal controlled substances, namely marijuana and the above mentioned offence related property that would further establish the belief that Cyril Singer is selling marijuana to people in the Truro area for profit which would afford valuable evidence pertaining to the offences pursuant to Sections 5(1) and 5(2) of the Controlled Drugs and Substances Act .

He also indicated his belief that the ITO met the requirements of s. 11 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. [ 22 ] The warrant was issued by Justice of the Peace Debbi Bowes in Dartmouth at the Justice of the Peace Centre by the telewarrant process at 5:40 p.m. on June 24, 2010.

Execution of the Search Warrant [ 23 ] The Police executed the warrant by entering the house in the daylight at 7:22 p.m. At that time, the accused and his partner, Geraldine Sutherland and two other males, one a boarder, were at the kitchen table eating dinner. A mentally and physically handicapped adult, a niece of Mrs. Sutherland, who was in Mrs. Suterland’s and Singer’s care, was sitting on the floor.

There was evidence of another boarder in the home not being present at the time. [ 24 ] Singer’s evidence was that the police did not knock before entry and that they entered by bursting through the unlocked door with guns drawn while someone outside the door yelled, “this is the police” and someone inside yelled, “freeze, put up your hands” as Singer dropped his hamburger. He described what would be characterised as a “dynamic entry”. Given the force, he “assumed” the door was kicked open. However, no damage was done to the door.

Seeing plain clothed men, his initial thought was that the intruders were robbers. [ 25 ] The police evidence was that what the members discussed at their briefing sessions and acted upon on arrival at the residence was a knock and announce entry. The police evidence did not establish that there was a knock. Cormier was not sure. Inspector Hearn could not recall.

They described an entry entailing the norm of knocking, then both announcing their authority and purpose, Cormier pushing, without equipment, the unlocked door quickly and sufficiently so it opened wide enough to allow for full entry without hitting the other wall or causing any damage. Hearn said there was always believed to be a possibility of violence due to the presence of drugs. Upon entry handguns were drawn for the few minutes it took to enter and clear the upstairs before arresting, handcuffing and searching Singer.

Cormier, the lead through the door, wore plain clothes with his body armour vest’s flip pocket police insignia out and visible, and his police badge hanging from a gold chain around his neck and visible at mid chest level. They informed Singer of his rights to counsel and of the availability of Legal Aid counsel. Singer indicated that he wanted to speak to a lawyer. Officers continued to question him, however, leading to his disclosure of which bedroom was his, and to the discovery on his person of a key, which, he informed them on questioning, would open the closet in his bedroom.

Another officer then took him to the police station. When he was at the station, Cormier, who was searching the home, called him to find out how to open the safe they found in the closet so that it would not be necessary to break into it. Singer provided the information over the phone. Throughout this time, Singer was not given an opportunity to contact counsel.

He did not speak to a lawyer until later that evening. [ 26 ] Inside the locked closet, the police located and seized numerous score sheets (notebooks), a bag containing 16 grams of powdered cocaine and two digital scales with residue of marijuana and cocaine. They also found bottles of beer and liquor, 34.3 grams of psilocybin, a bottle containing 27 hydromorphone pills ( 24 mgs), packaging baggies, Singer’s wallet with $100.00 Canadian cash, a zipper sealed bag with white powder, coins, a bottle of marijuana, some $810.00 in Canadian dollar bills, and a calculator.

Inside the locked safe in the closet, the police located more score pads, a bag of marijuana, money, a handcuff key and another key. On the computer desk they located and seized further notepads and digital scales. [ 27 ] Singer was charged with possession for the purpose of trafficking in five different types of substances and was released on an undertaking.

Exhibits [ 28 ] Admitted into evidence by consent, as Exhibit #1, was an unsigned document on Nova Scotia Truro Justice Centre letterhead dated April 12, 2002 addressed to “ALL PEACE OFFICERS IN TRURO AND SURROUNDING AREAS” from the TRURO JUSTICE CENTRE , addressing under “RE:” the topic of “POLICY REGARDING APPLICATIONS FOR SEARCH WARRANTS, ARREST WARRANTS AND OTHER WARRANTS, AND APPLICATIONS REGARDING JUDICIAL INTERIM RELEASE.” The document went on to state as follows: Attached is a copy of a policy directive that is currently in effect for the Antigonish and Port Hawkesbury Justice centres.

A similar policy is also in effect in Pictou County. In the interests of uniformity this policy will also apply to the Truro Justice Centre.

It is anticipated that requests for general warrants and DNA analysis warrants will normally be made during normal business hours. Otherwise the exigent circumstances rule will apply. [ 29 ] This document was unsigned, as noted, and gave no indication of whose authority it was issued under . ISSUES 1. Was there a violation of the accused ’ s rights under s. 8 of the Canadian Charter of Rights and Freedoms ? 2. Was there a violation of the accused ’ s rights under s. 10(

b) of the Canadian Charter of Rights and Freedoms ? 3. If there was a violatoin of ss. 8 or 10 (b), is the remedy of exclusion of evidence warranted, pursuant to s. 24(2) ? 1. Was there a violation of Cyril Singer ’ s rights under s. 8 of the Charter ? [ 30 ]

Section 8 of the Charter provides that everyone “has the right to be secure against unreasonable search or seizure.” [ 31 ] One of the core values protected by s. 8 of the Charter is privacy.

Section 8 does not provide a guarantee that individuals will never be subject to searches that hamper their privacy. Searches that are reasonable do not violate s. 8 . The purpose of s. 8 is to prevent unreasonable searches or seizures before they occur rather than to remedy them ex post facto . In order to be reasonable, a search must be authorized by law, the authorizing law must itself be reasonable and the search must be conducted in a reasonable manner. ( R v. Cornell 2010 SCC 31 ) [ 32 ] The onus is on the accused to prove a breach of Charter rights on a balance of probabilities. Search Warrant Validity

a) The Telewarrant [ 33 ] Singer contends the search was unlawful because the police failed to meet the requirements of a telewarrant under s. 487.1 of the Criminal Code . [ 34 ] Where a police officer believes that an indictable offence has been committed and it would be impracticable to appear personally before a Justice to make application for a warrant, he or she may apply on oath for a “telewarrant”, pursuant to s.487.1 of the Criminal Code .

When a s. 8 violation is alleged based on the failure of police to attend personally before a Justice to obtain a warrant, the claimant must demonstrate that the standard of impracticability was not met. A telewarrant is invalid when the “impracticability” condition is not proved by a proper factual foundation in the supporting documentation. The Affiant must have a subjective belief that it would be impracticable to appear personally before a Justice and this belief must be objectively reasonable (R. v. Farewell, 2006 BCSC 372 at paras. 26 and 27 ; R. v.

Ling, 2009 BCCA 70 , application for leave to appeal dismissed, [2009] 2 S.C.R. ix (note); R. v. Scott , 2012 BCCA 99 ). [ 35 ] The evidence on the amplified review established Cormier has always proceeded by way of telewarrant. Since his 2008 training, he has consistently used the same boiler plate wording in the mandatory statement of circumstances

section of the ITO. Variations occur in the form of additional information. For example, as here, when appropriate, he also includes time of day explanations. The consistent use of this template was also true for Constable Hebb. Unlike Inspector Hearn, Cormier had not seen any written documentation regarding applications for search warrants from the “Truro Justice Centre”.

[36] It is clear that the officers concerned believed in good faith that they were following a policy of the local Provincial CourtJudge. They do not appear to have been directly acquainted with the specific language of any such policy. It appears that the originalsource of this policy was a notice dated April 12, 2002, directed to peace officers in Truro and surrounding areas, from the “Truro JusticeCentre”, which was admitted as Exhibit #1. There was no signature or indication of a specific Judge’s direction.

Attached to this noticewas a detailed directive of the Provincial Court, under the signature of Judge John Embree, that had taken effect from March 31, 2002, inthe Port Hawkesbury and Antigonish areas. Judge Embree directed that in view of the existence of the Dartmouth “J.P.

Centre”, theJudge (i.e.; Judge Embree himself) would not be available to consider, inter alia, applications for search warrants under s.487 of theCriminal Code and s.11 of the Controlled Drugs and Substances Act, except in exigent circumstances. [37] The notice from the Truro Justice Centre attaching Judge John Embree’s directive simply indicated that a “similar policy isalso in effect in Pictou County. In the interests of uniformity this policy will also apply to the Truro Justice Centre.” [38] There was no indication that the Truro documentation originated with a Judge or, for that matter, with the Court.

It is onProvincial letterhead and appears to be no more than an administrative directive, whereas Judge Embree’s directive is headed “ProvincialCourt”. [39] It must also be noted that the ITO does not mirror the language of the Truro directive. Cormier wrote in the box below para.26 of the ITO: My grounds for believing that it would be impracticable to appear personally before a justice to make application for this warrant inwriting are as follows: Instructions received from the local Justice is to contact the Justice of the Peace (JP) Centre in Dartmouth, Nova Scotia.

There is onlyone Judge of the Provincial Court in this area and he has requested the Police Officers seeking warrants do so by contacting the JPCentre in Dartmouth to obtain warrants. This is a preventative measure to avoid the permanent local Judge from being disqualified fromhearing trials on matters in which he signed the Search Warrant. Also due to the time of day, it would not be possible to drive from Truroto Dartmouth in a timely fashion. [40] What is concerning is the lack of clarity as to the source of the supposed request.

The local judge when Cormier prepared theITO was Judge Del Atwood, who had succeeded Judge John G. MacDougall in 2009. If Cormier, as stated, was relying on informationderived from his training several years earlier, he would have no basis to believe that Judge Atwood had made a similar request. Further,the ITO did not refer to the 2002 directive. As such, it is not at all clear that there was a concrete reason to believe that the localProvincial Court Judge would refuse to hear the application.

The officers concerned undoubtedly believed in good faith that such adirective existed, but this does not relieve the necessity of ensuring that “impracticability” has been established. All that would have beenrequired would have been to confirm with Judge Atwood’s office that this was indeed the position of the local judge.

Certainly whenthere are structural issues arising from the number of judges or JP’s available locally, the police are entitled to rely on existing policies.But those policies must be clear, and the police must be able to specifically point to some clear and reliable authority for seeking atelewarrant without a prior attempt at a conventional in-person application. [41] I conclude there is merit in the defence's attack on the validity of the telewarrant. Preconditions for issuing a telewarrant, pursuant to s.487 were not met. As noted by Judge Meyers in R. v. Ho 2011 BCPC 186, at para. 58, after quoting R. v.

Dellapenna(1995), (BC CA), 62 B.C.A.C. 32 (B.C.C.A.) at para. 37, and R. v. Hill, 2006 NSSC 401 at para. 31, the lack of badfaith or callousness aside, the breach is not simply a technical or unimportant one, it is a significant omission.

b) Sufficiency of the Information ( ITO) [42] Singer contends the search was unlawful because the ITO was misleading in its omission of material fact, and that it failed toset out sufficient reliable information to support the issuance of the warrant.

[43] A search warrant issued pursuant to s.487 of the Criminal Code is presumed to be valid and the accused bears the burden ofdemonstrating there was an insufficient basis for its authorization ( R. v. Campbell, 2011 SCC 32). [44] The authorizing Justice decides whether or not to issue the search warrant on the basis of the sworn ITO.

There must be atleast some evidence in the ITO sufficient as a matter of law to provide reasonable grounds to believe the underlying information willafford evidence that an offence has been committed and that there is evidence of the offence to be found in the place of search. ( R. v.Morris, 1998 NSCA 229 , [1998] N.S.J. No. 492 (C.A.); R. v. Durling 2006 NSCA 124; R. v. Araujo, 2000 SCC 65 ,[2000] 2 S.C.R. 992).

Specific principles respecting the existence of “credibility-based” probability that an offence has been committedand that there is evidence of it to be found in the place of search are outlined by Cromwell, J.A. in R. v. Morris, supra, inclusive of anaffiant’s reliance on information obtained from a police informer. [45] A justice’s ability to assess the reliability of a source in the totality of the circumstances is a task central to the considerationof issuing a search warrant based in large part on a tipster’s information (R v. Garofoli, (SCC), [1990] 2 S.C.R. 1421;R. v.

Ling, 2009 BCCA 70, leave to appeal refused, [2009] 2 S.C.R. ix (note)). The authorizing Justice is empowered to make allreasonable deductions and draw reasonable inferences that flow logically from the evidence before him . [46] The standard of review to be applied by a reviewing Court to determine the sufficiency of the ITO underlying a search warrantis set out in R. v. Morelli, 2010 SCC 8.

At para. 40, Fish J. writes: [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” ( R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [47] As elaborated by Neilson, J. A. in R. v.

Scott, 2012 BCCA 99, at para. 42: [42] Ultimately, the reviewing judge must examine the record submitted to the authorizing justice, including any exclusions andadditions arising from proper amplification on review, and decide whether on a “practical, non-technical, and common sense basis” thetotality of the circumstances demonstrate reasonable grounds for the belief the appellant was committing the stated offences, and couldsupport the issuance of a warrant: R. v.

Wilson, 2011 BCCA 252 (B.C.C.A.) at para. 52, (2011), 272 C.C.C. (3d) 269 (B.C.C.A.); R. v.Saunders, 2003 NLCA 63, 181 C.C.C. (3d) 268 (N.L.C.A.) at para. 15, aff’d 2004 SCC 70 , [2004] 3 S.C.R. 505 (S.C.C.). [48] In the review process, the court stated in Garofoli, supra, at para. 56: “The existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite toreview, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing Judge.” [49] Detective Constable Hebb’s handwritten surveillance notes disclose that during the 66 minute portion of his four hour physical surveillance of the residence on June 24th (14:40-15:46) which formulated the basis for para. 20 of Cormier’s ITO, Singer was presentfor nineteen minutes before he left the residence by vehicle, and did not return during the remainder of that time.

The fact that Singer, thetarget, left the residence at 14:59 (2:59), is a material fact not disclosed to the Justice. Prior to his leaving the only physical activityrecorded in para. 20 was the observation that a female attended Singer’s residence and left a minute later. [50] While the evidence at the hearing did not establish that the omission at paragraph 20 was done deliberately or with an intention

to mislead the JP, the effect could only be to mislead the JP by leaving the impression that Singer was present during the entire period ofsurveillance. It is true that the people coming and going from the home might have been looking for Singer. It is also the case, however,that there were several residents of the home in addition to Singer, his spouse and her niece. This was not disclosed in the ITO, but wasin evidence on the review. As such, paragraph 20 becomes even less probative. In any event, the paragraph is fundamentally defectivebecause of its tendency to mislead the justice on a material fact.

The ability to assess the reliability of the confidential sources iscompromised as the physical police surveillance, pursuant to paragraphs 9 (a), (b), and (

c) was specifically meant to be corroborative ofthe information provided by each source. Sufficient context for the justice to conduct a meaningful assessment of the sufficiency of theITO was lacking. [51] Once paragraph 20 is omitted, on account of the missing information that was not made available to the JP, all the reviewingcourt is left with is the redacted evidence of source B, without corroboration. This amounts to information from an anonymous paidinformant that the accused was selling marijuana, and that hydromorphone pills were in the house.

There is little in the ITO that wouldprovide comfort as to the reliability of source B; certainly Cormier vouched for it, but besides that, there is only the statement thatinformation from source B had led to arrests in the past. In keeping with the criteria, the police apparently felt that the informant'sclaims should be backed up by surveillance. Whether those arrests led to charges or convictions is not indicated. Since a bare arrest maywell be incidental to a search (as was the initial arrest of Singer) this is not particularly strong evidence of reliability.

Where the policerely entirely on the reliability of a single anonymous informant, coupled with the fact that the warrant was sought not by a full in-personapplication but by telewarrant, there should be more robust indicia of the reliability of that informant. [52] Ultimately, I am satisfied that the ITO stripped of its defective passages, and in the redacted form provided to the court in orderto protect the identity of the informants, could not support the issuance of a search warrant for Singer's home. I am unable to concludethat the authorizing justice could have granted the warrant.

I conclude the warrant is invalid. The ensuing search of Singer’s home wastherefore a violation of his rights under s. 8. Execution of the Search Warrant - Forced Entry and the “Knock and Announce” Rule [53] The manner in which a warrant is executed is relevant to the overall reasonableness of the search. At issue is whether thesearch was conducted reasonably. Singer submits that in making a hard entry into his premises, the police acted unreasonably, therebyviolating his s. 8 Charter rights. [54] The law with respect to the “knock and announce” rule as set out in Eccles v.

Bourque, (SCC), [1975] 2S.C.R. 739, at para. 746 was recently reviewed by the Court in R. v. Cornell, supra at para. 18. Where there is no cause for a dynamicentry into a private dwelling the police, before forcing entry are required to give: 1) notice of presence by knocking or ringing a doorbell;2) notice of authority by identifying themselves as law enforcement officers; and 3) notice of purpose by stating a lawful reason forentry.

The only time this principle can be ignored is in “exigent circumstances”. [55] Basically, unless there are exigent circumstances, such as information to suggest the police are at some risk or dangerparticular to the residence, or concern for the destruction of evidence, the police cannot enter residences by force without complying withthe knock and announce or knock and notice rule. The general concern of the police about risks associated with the execution of thesearch warrant is not sufficient to justify a forced entry without adequate warning. The principle is not a formality.

It is necessary toensure the personal safety of the residents and the police and protect the dignity and privacy interests of the occupants. Where there is afailure to knock or announce their presence, the crown bears the onus of establishing that the police had reasonable grounds to beconcerned about the possibility of harm (Cornell, supra para. 20). Here, as the officers stated there is no evidence that any of them werein possession of any information suggesting safety concerns specific to Singer’s residence.

They had no specific information aboutweapons or information supporting a need for surprise equating to a requirement of exigent circumstances (R v DeWolfe, 2007 NSCA79). They noted the risk of violence associated with drugs generally when a search warrant is executed. They were aware of thepresence of dogs. [56] The unlocked door afforded entry after it was thrown open and the first two officers entered with guns drawn, pointing, inCormier’s case at Singer, but below his hands, and, in Inspector Hearn’s case, “down ready” at the floor.

The force exerted on the doorcaused it to fly open abruptly and hard enough to make sure it opened all the way. No equipment was used and no damage was done. Ifind their presence was unannounced as the evidence suggests the probability that Cormier did, in fact, fail to knock in circumstances

where the officer testified to believing there were no exigent circumstances to do otherwise. Singer did not hear a knock. Cormier wasnot sure he knocked, although it was his normal practice. His stated practice of addressing the issue of entry by noting no more than thewords “made entry” along with the specific time is not in keeping with his recording of other Charter rights like those incidental toarrest. Inspector Hearn, unable to recall whether a knock was or was not made, testified to Cormier opening the door as Hearn yelledloudly “Police, Search Warrant”.

His notes, however, describe an entry sequence that is specific in other criteria incidental to entryinvolving himself and are inclusive of particulars performed by Cormier but made no reference to knocking having occurred. Theyindicate: 19:22 hours entry made to house. I yelled “Police, Search Warrant” as Detective Constable Cormier opened the back door. [57] Furthermore, if indeed there was a knock, no response time was afforded to the residents before the door knob was turned anddoor was forced to fly open.

According to Inspector Hearn’s evidence ,there was approximately ten seconds, from arrival at theresidence to opening the door, and announcing their authority and purpose while both officers unholstered their guns. As in R. v. Brown,2003 BCPC 236, and R v. Mai, 2005 BCSC 29, the officers failed to provide the residents with a reasonable amount of time to prepare,to respond verbally or to comply and open the door voluntarily. The requirement in law to knock and announce in circumstances wherethe officers believed no exigent circumstances existed was ignored or treated as a mere formality. As in R. v.

Mai, supra, the entry intothe residence by itself constitutes a breach of s. 8. The privacy rights of those inside at the time of the entry were undermined. Thesearch overall, in light of the facts reasonably known to the police was unreasonable (R v Cornell, supra at para 31). [58] As a consequence, I conclude the manner in which the search was conducted was unreasonable and contrary to s.8 of theCharter . 3. Was there a violation of Singer’s rights under s.10(

b) of the Charter? [59]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. [60] The implementational duties imposed on the police by this provision are elaborated upon by Lamer J. (as he then was) in R.v. Manninen, (SCC), [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, at para. 23: ...s.10(

b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has hada reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to beinformed of his rights and obligations under the law but equally, if not more important, to obtain advice as to how to exercise thoserights. ...

For the right to counsel to be effective the detainee must have access to this advice before he is questioned or otherwise required toprovide evidence...” A person who is detained is entitled to immediate legal advice in order to protect his rights against self incrimination and to assist him inregaining liberty (R. v. Clarkson, (SCC), [1986] 1 S.C.R. 383, [1986] S.C.J. No. 20). [61] In the case at bar, there is no dispute that Singer was arrested at his residence and later taken to Truro Police Station.

There isalso no dispute that the police fulfilled the informational component of s. 10(b). [62] In considering the evidence before me, I find that there was a clear breach of the implementational component of Singer’s s.10(

b) Charter right by the police not refraining from eliciting incriminating evidence from Singer until he had a reasonable opportunityto reach a lawyer. Having expressed his wish to speak to a lawyer, he made incriminating statements to the police concerning

identification of his bedroom, identification of keys and the combination to the safe in response to questions from the police while underarrest and warned. There was no emergency to act immediately to gather evidence. The atmosphere and tone of the parties was calm,cooperative and respectful.

The fact the request was made of Singer with respect to the safe combination to avoid the necessity ofdestroying it and to keep it in tact does not negate the violation. [63] The breach must be considered in light of other evidence relevant to the inquiry under s. 24(2) of the Charter, inclusive ofnonconscriptive evidence, as it occurred in the course of what I have concluded was an unreasonable search contrary to s. 8 of theCharter. [64] Having concluded that the accused’s rights under the Charter have been infringed, I turn now to the question of whether theremedy of the exclusion of evidence is warranted pursuant to s.24(2) of the Charter. 3.

Is the remedy of exclusion of evidence warranted pursuant to s. 24(2)? [65] The accused claims and I have found that his Charter rights have been violated. The remedy he seeks is exclusion of the evidenceobtained as a result of the breaches, pursuant to s. 24(2) of the Charter. Exclusion is not automatic upon proof of a breach. The accusedmust establish that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice intodisrepute. [66] The analysis under s. 24(2) is set out in R v. Grant, (SCC), [1993] 3 S.C.R. 223, which was recently restatedin R v.

Côté, 2011 SCC 46, per Cromwell J, for the majority: 45 This Court established a revised approach to the exclusion of evidence under s. 24(2) in Grant. It explained that s. 24(2) wasgenerally concerned with "whether the overall repute of the justice system, viewed in the long term, will be adversely affected byadmission of the evidence" (para. 68)…. [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. 46 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 [R v.

Beaulieu, 2010 SCC 7], Charron J., writing for the Court, emphasized this point, noting that Grant did notchange the relevant factors in the s. 24(2) analysis. [67] I will now review the three lines of inquiry identified by the Supreme Court of Canada. 1. Seriousness of the state conduct. [68] In Côté, Cromwell, J. went on to discuss the specifics of the three factors to be considered in determining whether exclusionof evidence was called for. With respect to the first factor, he said: 47 The first line of inquiry involves an evaluation of the seriousness of the state conduct.

The more serious the state conductconstituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked tothe conduct…. [69] As the majority noted in Grant:

the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociatethemselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure stateadherence to the rule of law. (para 72). [70] In terms of degrees of seriousness, the majority said: [A]t one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimallyundermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful orreckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringingthe administration of justice into disrepute. (para 74). [71] There can, however, be extenuating circumstances, such as the need to preserve evidence. Furthermore, the majority noted,police good faith will reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not berewarded or encouraged and negligence or wilful blindness cannot be equated with good faith…. Wilful or flagrant disregard of theCharter by those very persons who are charged with upholding the right in question may require that the court dissociate itself fromsuch conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of theevidence. (para 75.) [72] There is authority suggesting that where the law is unsettled – as may be the case with respect to the

interpretation of“impracticability” in seeking a telewarrant – the seriousness of the breach may be lessened: R. v. Ngai, 2010 ABCA 10, at para 40. [73] In this case, the officer sought and obtained a search warrant demonstrating that he was attempting to conduct his investigationin a fashion that was respectful of privacy interests. He sought and obtained judicial authorization in the form of a search warrant beforeembarking on the search. It was an effort to act lawfully and conform with Charter standards.

There was not a “willful or recklessdisregard of Charter rights,” but there was a cumulative failure to abide by Charter standards that is more than inadvertent or minor.The failure to confirm that the telewarrant process remained in place was not, in itself, a major violation. The officers believed in goodfaith that the local judge had mandated the use of the Justice of the Peace Centre. However, the officers’ understanding of the policywas vague, and the language used in the ITO did not reflect the language in the policy issued by the Justice Centre in 2002.

This evincesa lack of attention to detail, and the apparent assumption that the telewarrant process is a routine matter rather than an alternative toapplication in person that must be justified on a standard of “impracticability.” (emphasis added) [74] As to the content of the ITO itself, the omission of the fact that the accused – who was the target of the search – had left thehouse during the course of the police surveillance, was a material omission that should have been known to a Justice of the Peacereviewing the ITO. This was a serious omission.

Viewed in the context of the sparseness of the rest of the ITO’s particulars relating tothe sources which the surveillance was meant to corroborate, it is an omission that seriously effects the Justice’s ability to assess thecredibility of the sources and, in particular, source “B”, something fundamental to the search warrant authorization process. Anobjectively reasonable basis for obtaining a search warrant justifying entry into a private residence was lacking. Police entry into aprivate residence is a serious matter because of the high degree of privacy accorded a home owner.

No grounds for doing sameaggravates the seriousness of the breach (R. v. Nguyen, 2002 BCPC 405, at para. 37). While it could be said that the evidence that therewere frequent visitors who came and went quickly would be relevant to the charge in any event, even that observation was undermined inevidence on the voir dire. [75] The evidence is non-conscriptive. The manner of entry into the home was a further violation that was more than inadvertent. Indeed, an improper intrusion into a private home is a serious matter. With respect to the issue of good faith, Justice Ryan’s words atpara. 38 of R. v.

Lau (2008), 2003 BCCA 337 , 175 C.C.C. (3d) 273 are adopted, “I am of the view that once the trial judgeconcluded there were no exigent circumstances, it was not open to him to find good faith on the part of the police.” [76] Similar to the officers in R. v. Mai, supra Cormier, the lead investigator and the officer in control, knew he should knock, andknew that the purpose of knocking entailed pausing a reasonable time to allow for a response while announcing both authority and

purpose. He and the other officers determined there were no exigent circumstances requiring them to proceed otherwise. They did not take the steps of knocking and waiting. Nothing occurred to change their opinion of the circumstances, thereby creating a heightened risk upon which an assertion of good faith for their conduct could be founded. The continued questioning of the accused at the residence and the police station after he indicated that he wanted to speak to counsel was more than trivial. The officers do not appear to have ignored Singer’s Charter rights with any malice or ill intent.

They nonetheless disregarded them without any apparent understanding of the seriousness of doing so. [ 77 ] The police conduct was not consistent with the statutory requirements of the Criminal Code for the proper issuance of a search warrant and was inconsistent with the Charter-protected right to be free from unreasonable search or seizure and right to instruct counsel. [ 78 ] I have concluded the police broke into a home to search for drugs on the basis of a search warrant not authorized by law due to an invalid telewarrant and defects in the warrant, and on the basis of a search not conducted in a reasonable manner.

In the process, the accused’s s. 10 (

b) rights were breached. I paraphrase and transpose Judge Bruce’s (as she then was) analysis and wording at para. 74 in R. v. Brown , 2003 BCPC 236 , to the case at bar. Every time the police enter a residence, it is a serious matter because of the high expectations of privacy accorded to persons in their homes. In this case, not only was the entry unsupported by a search warrant, but police failed to knock and thereby afford the residents the opportunity to respond.

Once inside the residence, the officers continued to breach the rights of the accused by eliciting incriminating evidence from him prior to providing him with the opportunity to discuss with counsel. The violation of the accused’s right to counsel continued after he left the residence and upon his arrival at the police station as he responded to questions that the police continued to ask. [ 79 ] Given the multiplicity of infringements, I find the evidence shows a pattern of disregard for the rights of the accused in circumstances where it is impossible to conclude that the police were acting in good faith.

The cumulative effect of police conduct as well as the singular conduct of the entry would be likely to undermine public confidence in the rule of law. In my view, analysis of these factors weigh in favour of exclusion of the evidence. 2. Impact of the Charter violation. [ 80 ] As to the second factor, Cromwell, J. said, in Côté : 47 … The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charte r-protected interests of the accused. The impact may range from that resulting from a minor technical breach to that following a profoundly intrusive violation.

The more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute. [ 81 ] The majority in Grant wrote that the second factor calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact … may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. (para 76). It is necessary to look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. (para 77). For example:

[A]n unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, humandignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or thatdemeans his or her dignity, is more serious than one that does not. (para 78). [82] The most serious aspect of the police conduct in this case is the improper intrusion into a private home, relating both to thedeficiencies in the search warrant application process and the manner of entry.

They do not amount to a deliberate flouting of thecharter-protected interests of the accused, but they are more than mere technical violations. Similarly, the violation of the right tocounsel, though not malicious, was not inadvertent. In assessing the impact of the search on the accused’s charter-protected interests it isimportant to remember the search could not have occurred legally (Côté, supra at para. 73). Here, the charges against Singer are seriousand carry the potential for a substantial penalty. The violation of the right to counsel, though not malicious, was not inadvertent.

Thestatements provided to the police are highly incriminating and could be used as evidence to convict him of the offences. These are realand significant impacts on the Charter-protected interests of the accused. The analysis of this factor weighs in favour of exclusion of theevidence. 3. Society’s interest in adjudication on the merits. [83] Finally, on the third factor, Cromwell, J. said, in Côté: 47 … The third line of inquiry is concerned with society's interest in an adjudication on the merits.

It asks whether the truth-seekingfunction of the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence andits importance to the prosecution's case are key factors. Admitting unreliable evidence will not serve the accused's fair trial interests northe public's desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of thejustice system and render the trial unfair from the public's perspective. The importance of the evidence to the Crown's case is corollary tothe inquiry into reliability.

Admitting evidence of questionable reliability is more likely to bring the administration of justice intodisrepute where it forms the whole of the prosecution's case but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to "gut" the prosecution's case. [84] Appreciation of the public perception on drug offences mitigating against exclusion and the need not to allow Charter rightsto be eroded has been addressed and

summary of case law provided in a number of cases such as R. v. Ling, supra at 53-55; R. v.Nassar, 2009 NBBR 83 , 2009 NBQB 83; R. v. Blais, [2009] O.J. No. 3093 (Ont Sup. Ct.). Reference is often made to thecomments of Iacabucci, J. in R. v. Burlingham, (SCC), [1995] 2 S.C. R. 206, at para. 50. ...we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he orshe actually committed those crimes, is entitled to the full protection of the Charter.

Short-cutting or short-circuiting those rights affectsnot only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving theintegrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance inapplying s. 24(2). [85] In R. v. Lauriente, 2010 BCCA 72, the police obtained a warrant after committing an inadvertent trespass, which wasdisclosed in an ITO that was confusing and erroneous.

Nevertheless, the ITO disclosed sufficient grounds for a warrant even afterexcising the defective material. However, the evidence was excluded under s. 24(2). On a Crown appeal, the British Columbia Court ofAppeal said: … This case involved one investigation in which the police overstepped the law in several instances evidencing a pattern of disregard ofCharter rights which the trial judge found to be serious. She specifically found that each of the individual Charter breaches wereserious, albeit not at the extreme end of the range, or reflecting bad faith on the part of the police.

If she had considered the breachesindividually, as if they had occurred in a vacuum, or in circumstances which were otherwise unremarkable, she may have concluded thatthe serious remedy of the exclusion of evidence was not warranted; that is, that the admission of the evidence obtained thereby could nothave brought the administration of justice into disrepute. But these breaches did not occur in a vacuum, they occurred in the context of a

relatively brief investigation where each step in the investigation followed and built on the prior step, ultimately culminating in the obtaining and execution of the search warrant which led to the respondents' (and Ms. Lauriente'

s) arrest, and the further breach of Mr. Catalano's right to counsel. In my view, the trial judge was entitled to have regard to all of these breaches, both in placing the seriousness of the individual breaches in context, and, more particularly, in determining whether this pattern of disregard of the Charter by the authorities could bring the administration of justice into disrepute. [ 86 ] In the present case, a good deal of the evidence consists of physical evidence, such as drugs and alleged drug paraphernalia, which must be considered quite reliable and highly probative.

It is essentially physical evidence, which existed independent of the breaches. Certainly the effect of exclusion here would be to eliminate the foundation of the Crown ’ s case. The breaches of the Charter were each individually serious, though not at the extreme end of the range, nor, with the exception of the no-knock entry which could not be said to be in good faith did they exhibit cumulatively bad faith as much as an absence of good faith. Their cumulative effect, however, was to violate the right to be secure against unreasonable search in seizure in multiple ways, as well as the right to counsel.

Balancing the Grant factors [ 87 ] As to the balancing of factors required, Cromwell, J. said in Côté : 48 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]he evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute" ([ R v Harrison , 2009 SCC 34 ], at para. 36). No one consideration should be permitted to consistently trump other considerations.

For instance, as this Court explained in Harrison , the seriousness 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 the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'" (para. 40, citing 2008 ONCA 85 , 89 O.R. (3d) 161 (Ont. C.A.), at para. 150 , per Cronk J.A., dissenting).

In all cases, courts must assess the long-term repute of the administration of justice. [ 88 ] The state conduct, while not carried out in a deliberate and flagrant attempt to disregard the accused ’ s Charter rights, was nevertheless serious, the more so when the individual violations are considered cumulatively. They were part of a single process, with each step building on the last. The impact of the violations on the Charter -protected interests of the accused was real and significant.

On the other hand, there is no doubt that the evidence that would be excluded is fundamental to the Crown ’ s case, and that its exclusion would therefore seriously impact the public interest in seeing the charges adjudicated on their merits.

In these circumstances, however I do not believe that this risk can outweigh the other factors. [ 89 ] I find, if not singularly, the cumulative effect of the breaches, in the context in which they occurred, was serious and in my view, in this case, to admit the evidence gathered pursuant to this search warrant, given the pattern of disregard of the Charter would bring the administration of justice into disrepute. The evidence obtained through the search and statement elicited are excluded. J.