R.v. Slaunwhite, 2012 NSSC 342

SUPREME COURT OF NOVA SCOTIA Citation: R.v.

Slaunwhite , 2012 NSSC 342 Date: 20120924 Docket: Cr. 323404 Registry: Halifax Between: Her Majesty The Queen against Randy Lee Slaunwhite and Erin Bridget Smith Judge: The Honourable Justice Patrick Duncan Heard: June 4, 28 and September 24, 2012 in Halifax, Nova Scotia Written Decision: October 1, 2012 Counsel: Jeffrey Moors for the Crown Kevin Burke and Noel Fellows, Articled Clerk for the Defence By the Court : (Orally) Introduction [ 1 ] At approximately 4:20 a.m. on March 27, 2009 Erin Smith inadvertently called the 911 emergency phone number from a house owned by Randy Lee Slaunwhite. RCMP Cst.

Tom Livingstone responded to the call and conducted a warrantless search of the house. He discovered a quantity of cannabis marihuana together with equipment to grow cannabis. As a result, Ms. Smith now stands charged with unlawful production of cannabis (marihuana) contrary to s. 7(1) of the Controlled Drugs and Substances Act S.C. 1996. c. 19; and possession of less than three kilograms of cannabis, for the purposes of trafficking, thus committing an offence contrary to s. 5(2) of the CDSA . [ 2 ] Mr. Slaunwhite was not present at the time of search and seizure but is jointly charged with Ms.

Smith with the two offences.

[3] The accused allege that the search and seizure was conducted in violation of their right to be secure from an unreasonablesearch and seizure, as guaranteed by

section 8 of the Charter of Rights and Freedoms. If successful, they seek a remedy pursuant tosection 24(2) of the Charter, specifically that the drugs and paraphernalia seized be excluded from admission as evidence in the trial. The Application Hearing Evidence - preliminary comments [4] Counsel for the Crown and the accused jointly submitted the transcript of Cst. Livingstone's evidence given at thepreliminary inquiry into these charges. [5] This officer was also called as a witness in the application hearing.

Shortly after beginning to testify in direct examination bythe Crown attorney, both counsel sought a brief adjournment. They returned and jointly submitted that the officer would be released as awitness and without further direct or cross examination. I was urged to place no weight on his oral testimony and to consider only hispreliminary inquiry testimony. [6] Having reviewed the officer's testimony at the preliminary inquiry, and his oral testimony before me, I agree with counsel'ssubmissions and will place no weight on the oral testimony given on this application by Cst. Livingstone.

Simply put, the oral evidenceappears to have included detail not previously disclosed to either counsel. I have not been asked to, and do not need to consider why thatmay have occurred since the parties are content to continue the application on the basis agreed to. [7] Cst. James Bennett testified in the application hearing, as did Cst David Lane. The former introduced photographs of theaccused's house and the latter gave opinion evidence as to the significance of the quantity of drugs seized and the role of the seizedparaphernalia in the production of the drugs.

Their evidence, for the purposes of this application, is uncontroversial. Analysis [8]

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that: 8. Everyone has the right to be secure against unreasonable search or seizure. The Crown has not contested the standing of the two accused to advance this argument. Mr. Slaunwhite, as the owner of the residence,and Ms. Smith, as the occupant at the time of the search, both had the authority to grant or withhold access to the home and therefore areable to assert the right secured by

section 8 and the remedy provided by section 24(2). [9] The first question then is to determine whether that right was infringed or denied. [10] Cst. Livingstone's initial search of the house revealed the apparent grow operation and the presence of substances he believed tobe cannabis. Subsequent to this search, he called for assistance and a search warrant was obtained. Only after the warrant was obtainedwere the illegal substances and related paraphernalia seized. It is uncontested then that the search conducted initially by Cst.

Livingstonewas of a private residence and conducted without warrant. [11] A warrantless search of a residence is prima facie unreasonable and the burden shifts from the accused to the Crown todemonstrate reasonableness of the search. See R. v. Feeney, (SCC), [1997] 2 S.C.R. 13 at para. 54. How the Crownmay meet this burden was described by Oland J.A., in R. v. Timmons, 2011 NSCA 39:

[23] Once it has been demonstrated that a search is a warrantless one, the burden is on the Crown to show, on a balance of probabilities,that the search was a reasonable one. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if themanner in which the search was conducted is reasonable: R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at ¶ 23.

(1) Was the search authorized by law? [12] The Timmons case also turned on the reasonableness of a search conducted by police, without warrant, and consequential to a911 call. Justice Oland's comments at para. 24, equally apply in this case. She stated: [24] It is undisputed that here the police activity following entry and before the issuance of the search warrant amounted to a warrantlesssearch and thus was prima facie unreasonable. It is not suggested that exceptions to the expectation of privacy in a home, such as hotpursuit, exigent circumstances, or statutory authorization, are applicable.

In order to be lawful, the search had to have been conductedpursuant to common law police powers. If it was not lawful, it is then necessary to consider whether the evidence obtained as a resultshould be excluded under s. 24(2) of the Charter. [13] The Crown points to the decision of the Supreme Court of Canada in R. v. Godoy (SCC), [1999] 1 S.C.R. 311as affirming that the police, in responding to 911 calls, are acting in a manner consistent with their common law duty to protect life.

TheCrown is correct in this, but the extent to which this common law authority will justify the lawfulness of the police conduct is carefullycircumscribed. Lamer C.J. wrote: 8 …. Giving aid to persons in distress is the very essence of the police duty to "protect life". 11 In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they mayenter dwelling houses in the course of such an investigation depends on the circumstances of each case. … 16 A 911 call is a distress call -- a cry for help. ….

The police duty to protect life is therefore engaged whenever it can be inferred thatthe 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can bedetermined. ... 18 … In the case at bar, it was necessary for the police to enter the appellant's apartment in order to determine the nature of thedistress call.

There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timelymanner. … 19 … Therefore, the interest of the person who seeks assistance by dialing 911 is closer to the core of the values of dignity, integrityand autonomy than the interest of the person who seeks to deny entry to police who arrive in response to the call for help. 20 … Assuming a resident can actually make the 911 call, he or she might answer the door to the police under a threat of bodily injuryshould the police be allowed to enter.

On the other hand, the person who answers the door might well be the intruder. I see no other usefor an emergency response system if those persons who are dispatched to the scene cannot actually respond to the individual caller. Icertainly cannot accept that the police should simply take the word of the person who answers the door that there is "no problem" inside.

… 22 Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller . The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety.

The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there . They do not have further permission to search premises or otherwise intrude on a resident's privacy or property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable .

A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances . (Emphasis added) [ 14 ] There is an important point to note. When one looks at Chief Justice Lamer's comments in paragraphs 16, 19, 20 and 21, the focus is consistently on ascertaining the safety of the 911 caller. [ 15 ] In this case it was Ms.

Smith who made the call, who immediately reported that the call was made in error, and who responded to the officer at the door, at which point she was seen to be in no distress or apparent danger. [ 16 ] The question in this case is whether the underlying logic from Godoy should apply to this fact situation. The answer turns on the circumstances. [ 17 ] Constable Livingstone testified that he was dispatched to a "911 hangup call". "Within a minute and a half" he was advised that it was a 911 misdialed call.

Notwithstanding this information, he attended at the subject residence located at 1281 Terrance Bay Road, Halifax Regional Municipality. He was accompanied by a Cst. Bergevin. [ 18 ] Police records indicate that the initial call had been received by police dispatch at 4:14 a.m. and that the officers were dispatched at 4:20 a.m. Erin Smith was identified as the caller who initiated the 911 hangup. The records also reflect that she then spoke with and advised dispatch that her intention had been to call 411. The officers were advised that the call was assigned a priority 3, which is the lowest priority response.

They arrived on scene at 4:42 a.m., some 28 minutes after the 911 call. There was no apparent urgency attached to the call by the police. [ 19 ] Upon arrival the officers were greeted at the door by the accused, Erin Smith. She advised that she was the caller and that she had intended to call 411 but instead misdialed to 911. [ 20 ] Cst. Livingstone agreed that there was nothing visible from outside the house to cause concern. Once the door was open, he and Cst. Bergevin stepped in to the kitchen without asking for permission. He was told by Ms.

Smith that she "lived there by herself … [and ] that everything was fine". When asked whether, in looking around the room or in considering Ms. Smith's demeanor or appearance, he saw anything to indicate "a struggle, distress, anything that's out of the ordinary … ?," he replied that there was nothing that he could recall that stood out in his mind. [ 21 ] If one considers what Chief Justice Lamer said in Godoy , the officer should have stopped at that point.

He had identified the 911 caller, ascertained that she was safe and in good health, that there was nothing to suggest the commission of a crime, or that she was under any threat or duress. He was advised that she lived alone, and she spontaneously provided an explanation as to why the call was placed initially, the same explanation that was given to dispatch immediately after the error was made. He had no basis to fear for her health or safety.

[22] The officers did not stop at that point. Instead, they searched the house. Before turning to that series of events, it is useful toconsider what Cst. Livingstone's understanding of his legal authority is when responding to a 911 call. He testified that it was the RCMPtraining and practice to look around for signs of a struggle or anyone in danger.

They make no distinction between a call apparentlymade in error from a valid 911 emergency situation. [23] When asked whether he needed permission to check the house, he initially indicated that: It's not a necessary … because I'm conducting an investigation, so, no, I don't have to actually have permission to check the house. I'minvestigating a 911 call, which could be anything. (at p. 37; lines 1-4) This reflects a very incomplete understanding of the law.

However, when asked later what legal authority he had to enter a house in suchcircumstances he stated that "to be honest" he would not do so without a warrant or permission and that in this case he did ask for andreceive permission from Ms. Smith to conduct the search. I turn now to that evidence. [24] Constable Livingstone testified that while in the kitchen he informed Ms. Smith that "the police have a duty to ensure thateverything was all right". He asked if it would be all right to check around the house to make sure that everything was okay. He saysthat he is "pretty sure" that Ms. Smith replied "sure".

His notes simply indicated that "Smith granted permission". In cross examinationthe officer agreed that he did not inform Ms. Smith that she had the right to refuse permission to search. He also acknowledged that shehad that right. Relying on this "consent" the officers conducted a search of the ground floor of the house. [25] In R. v.

Wills,(1992) (ON CA), 52 O.A.C. 321 Doherty J.A. set out the now well established statement ofwhen a “consent” is valid in such circumstances: 69 In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what wouldotherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

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

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and, (vi) the giver of the consent was aware of the potential consequences of giving the consent. I am not satisfied on the evidence that the Crown has met its burden to show that Ms. Smith was aware of her right to refuse to permit thepolice to engage in the conduct requested. The officer admits that she was not told of this right. Further, the officer's language that is

was his "responsibility" or "duty" to make sure that everything was all right would easily leave the impression that he was required to conduct the search. Looking at the totality of the circumstances leading up to the point of her granting this "consent", I conclude that Ms Smith did not make a valid waiver of her right to be secure from the warrantless search of the premises over which she exercised control. [ 26 ] After completing the search of the ground floor and finding nothing to suggest a threat to the health or safety of Ms. Smith, and no evidence of other occupants, Cst.

Livingstone approached the base of the stairs to the second story of the house. At that point Ms. Smith stepped forward and said "everything's fine up there". Constable Livingstone testified that he asked her "what's fine?" to which she replied "everything's fine upstairs. He's fine". When asked who is fine she said "he's fine. He's a bit freaked out". [ 27 ] Constable Livingstone informed Ms. Smith that "I'm going to have to speak to him to make sure he's alright". Ms. Smith told the officers that they would have to "hang on" and then she went upstairs.

She appeared to the officers to be trying to talk to somebody through a door but they could hear no answer. She came back downstairs at which point Constable Livingstone told her that he was "going to have to speak to him, you know, just make sure everything is all right. This is a 911 call." [ 28 ] Ms. Smith went upstairs a second time and again there was no response to her. At this point, the two police officers went upstairs and called out "police". Constable Livingstone also called out that he was going to have to speak to the occupant but received no answer.

He then announced that he was going to force the door open. Again there was no response and so he kicked open the door whereupon he discovered the paraphernalia associated with the marijuana grow operation together with some apparent cannabis product. There was no one in the room. A complete check of the house showed that Ms. Smith was the only person in the house. [ 29 ] Ms. Smith was arrested, provided the police caution and advised of her

section 10 rights under the Charter . A supervisor was called; a search warrant obtained and drug unit members attended at the residence to complete the search and seizure. Conclusion [ 30 ] The common law protection afforded officers responding to a 911 call where the officers are acting to protect the safety of the public has been determined to be a reasonable one. However, that law does not afford an unfettered right for the police to enter into and search a dwelling house in every case where a 911 call is made.

The facts of this case test the limits of what is reasonable for the police to do when responding to the call. [ 31 ] When looking at the totality of the evidence, it is not clear to me that Cst. Livingstone understood the limits of his authority to search incidental to a 911 call, notwithstanding his comment that he would not have conducted the search without permission or a warrant. It is not clear that he understood what constituted a valid consent by Ms. Smith, or a valid waiver of her right. [ 32 ] Ms. Smith was the 911 caller.

If he was concerned for her health and safety, he could have requested that she step outside the house with him to discuss the call. If she was in danger, that would have removed her from the danger and into an environment where she could feel or would feel more secure in telling him of any threat she felt. He could then assess her physical state and her demeanor. If she did not want to leave the house, he could then make an assessment of options - ask permission to enter; force his way into the house; abandon the call as requiring no further investigation; or wait outside while seeking a warrant.

This latter step would require him to specify what evidence he was relying upon to justify entry into a dwelling house. [ 33 ] He did none of these. Once in the house he conducted an intrusive search of the main floor without the informed consent of Ms. Smith. He did this even though there was no evidence upon which to conclude that Ms. Smith was at risk; no evidence that a crime had been or was about to be committed; and no evidence that there was anyone else in the house that could be at risk.

[ 34 ] It was only when the officers decided to search the upstairs that Ms. Smith balked and showed the officers that she did not want them to go upstairs. When Ms. Smith suggested the presence of another person - one who was a "bit freaked out" and who wouldn't or couldn't answer her calls or those of the police - it was then that some nexus arose for the police to extend the search under the auspices of the duty to protect the life and security of the public. The problem is that Ms.

Smith should not have found herself in a position to have to create an artifice to dissuade the police from continuing a search that they were not authorized to make in the first place. [ 35 ] It has been suggested that I may parse out the various stages of the entry to the house, the search of the downstairs and the search of the upstairs, in assessing the lawfulness of the search. [ 36 ] I have concluded that the entry to the house and the search of the downstairs were not justified in law. I see no reason to differentiate the search of the upstairs.

The officers completed the search of the downstairs and then approached the stairs to go up and continue their unlawful search. When they demonstrated the intention of going to the second floor Ms. Smith suggested the presence of a man upstairs. It is clear that her intention was to stop them from going upstairs. It is also clear that she did not realize that all she had to do was to tell them to leave and without any further explanation necessary. [ 37 ] The officers' decision to search the upstairs was made before Ms. Smith suggested the presence of a person upstairs.

The police had no better information to justify the search of the second floor than they did for the downstairs. [ 38 ] Once the false story of the man upstairs unfolded it finally provided some justification for the officers to act as they did, but while their reasons for breaking down the upstairs door may go to the officers' good faith in acting as they did, I am not prepared to say that it rendered any part of the search lawful.

The ends should not justify, on these facts, the means in assessing compliance with the law. [ 39 ] As I have concluded that the search was not justified by law, it is unnecessary at this stage to consider whether the search was conducted in a reasonable manner. [ 40 ] I conclude that the search was not reasonable, and that the

section 8 Charter right of the accused persons was denied. Remedy [ 41 ] Having concluded then that the rights of the accused as secured by

section 8 of the Charter were denied, the question becomes what is the appropriate remedy to respond to these violations? [ 42 ]

Section 24 of the Charter provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The framework for exclusion has been articulated by the Supreme Court of Canada in the case of R. v. Grant , 2009 SCC 32 . The inquiry

is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. The focus is not only long term but also prospective. [ 43 ] Section 24(2) begins with the proposition that a breach causes damage to the administration of justice and so the remedy is intended to ensure that evidence obtained through the breach does not cause further damage to the justice system.

The focus is societal systemic concerns and does not aim to punish the police or provide compensation to the accused.

In considering section 24(2), the court must have regard to the following: (1) the seriousness of the charter-infringing state conduct (i.e., admission may send the message that the justice system condones serious misconduct); (2) the impact of the breach on the charter protected interests of the accused (i.e., admission may send the message that individual rights count for little); and (3) society's interest in the adjudication of the case on its merits. [ 44 ] The court must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. 1.

Seriousness of the Charter Infringing Conduct [ 45 ] The more severe or deliberate the state conduct that led to the violation the greater the need for the courts to dissociate themselves from the conduct through exclusion. State conduct varies on a spectrum from inadvertent or minor violations to evidence obtained through willful or reckless disregard of Charter rights. [ 46 ] Cst. Livingstone was a relatively new officer at the time of this incident, having been on the job for approximately 3 years.

His understanding of his authority to conduct searches incidental to a 911 complaint appeared to be imperfect although admittedly the evidence on this question is limited. I have no evidence to indicate whether his partner that evening, Cst.

Bergevin, had any greater experience or understanding of their authority in these circumstances. [ 47 ] The police are expected to know their obligations under the Charter and to fulfill them. [ 48 ] In this case the officer was clearly motivated by his belief that he had a duty to conduct an investigation that eliminated the possibility of any person being at risk of danger to their health or safety. He was aware that there were limits on his legal authority to enter and search. However, he failed to consider any alternatives to the course of action he undertook.

He crossed the threshold of the house without invitation, without asking permission and without grounds to believe that the 911 caller was in any danger. [ 49 ] Once inside the house he conducted a visual survey and conducted a short interview with Ms. Smith. This information should have reinforced the conclusion that there was no risk to Ms. Smith. Instead of dissuading the officers from a further intrusion to the privacy of the dwelling they asked consent to continue to search the house. She did not give a valid waiver of her right to refuse their attempts to search.

They failed to inform her that she could refuse consent. Her consent was further vitiated by the assertion made by the police that they were under a duty or had a responsibility that required them to search the house. This was not true, based on the information that they had at that time. There was no basis to extend the search. [ 50 ] The officers either did not know or disregarded the legal requirements of a valid "consent search".

[ 51 ] The legal principles expressed in Feeney and in Wills , are not new and have been subject to extensive litigation. It is difficult to imagine that the officers were unaware of the extent of their legal authority. Cst. Livingstone's comment that he would not enter without a warrant or permission is troubling.

It suggests that he did know the limits of his authority. [ 52 ] The officers were not discrete in their assessment of the circumstances to consider whether sufficient evidence existed to warrant the entry to the house and search, solely on the basis of a misplaced 911 call. [ 53 ] In my view, the officers decided that the mere fact of a 911 call, irrespective of the presenting circumstances, trumped the

section 8 rights of Ms. Smith. This was incorrect. It lead to a significant overreach under the purported desire to protect the life and security of the public, and in this case in particular, Ms. Smith. [ 54 ] I conclude that the Charter violation is serious. This factor favours exclusion of the evidence. 2. Impact on the Charter Protected Rights of the Accused [ 55 ] The next question is to assess the degree to which the violations actually undermined the accused's interest protected by the

section 8 rights. [ 56 ] There is a high expectation of privacy in the home. See Grant supra at paras. 76-78 . This was a highly intrusive entry and search into an occupied dwelling. It was not fleeting and the Charter violation underpinning the search was not technical. [ 57 ] I acknowledge that there was nothing that could be construed as demeaning to the personal dignity of the applicants apart from the search itself. see, R. v. Harrison at para. 30. [ 58 ] This factor favours exclusion. 3.

Society's interests in adjudication on the merits [ 59 ] The question to be answered is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. [ 60 ] Reliability of the evidence is an important factor in this inquiry. The more reliable the evidence, the more this militates in favour of admission, and the converse is also true.

In this case the seized substances constitute real evidence that pre-existed the Charter violation. It was not the product of the violation. It is reliable evidence. [ 61 ] The charges are serious and the impact of an order to exclude the physical evidence of funds, drugs and paraphernalia would result in terminating the prosecution. Cst. Lane described the evidence as consistent with a mid-level for profit cannabis trafficking operation. He described it as not the biggest nor most sophisticated operation. The amount seized was under 3 kg.

The valuation varies according to the quantities in which the drug was sold. There was some capital outlay to obtain the growing equipment. There was only $170 cash seized.

[ 62 ] It is apparent that the truth-seeking function of the criminal trial process is better served by admission of the evidence. This would favour admission of the evidence. [ 63 ] However, there are reasons to believe that the admission of the evidence would bring the administration of justice into disrepute. [ 64 ] There is a very important public interest that is undermined by what occurred here.

The integrity of the 911 response system depends upon public confidence that the police will answer a call for distress, and do so responsibly and within the limits set by law. [ 65 ] A decision that approves of the police carrying out an unfettered search of a home incidental to such a call, even where there are no apparent circumstances to believe there is a threat to the safety of the caller, would reasonably be seen to instill reluctance on the part of the public to call 911. [ 66 ] The abuse of the extraordinary power granted by the common law to the police ( see Godoy ) would undermine the reputation for integrity of the 911 system.

It should never be perceived by the police or by the public as a tool that the police can use to gain entry to a house that they otherwise would have no authority for. [ 67 ] This consideration would favour exclusion of the evidence and counteracts to some considerable degree the concern for the truth seeking function of the trial in this case. 4.

The final step is to balance the three inquiries . [ 68 ] Overall, having considered and balanced the three Grant factors, in my view it favours an order to exclude the seized drugs and related paraphernalia seized from the home of the accused. [ 69 ] The 24(2) application is granted. J.