Docket: CACR2227 Her Majesty the Queen Appellant - v. –, 2013 SKCA 116

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 116 Date: 2013-10-31 Between: Docket: CACR2227 Her Majesty the Queen Appellant - and – Sandra Golschesky Respondent Coram: Jackson, Ottenbreit & Caldwell JJ.A. Counsel: Wade McBride for the Federal Crown Ivan Frank for the Respondent Appeal: From: 2012 SKPC 160 Heard: May 1, 2013 Disposition: Dismissed Written Reasons: October 31, 2013

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Jackson J.A. I. Introduction [ 1 ] This appeal concerns the reasonableness of a search of a home in North Battleford. At the time of the search, the owner of the home, Sandra Golschesky, was renting an upstairs apartment to one Tania Young. The apartment was a completely self-contained unit within the house owned by Ms. Golschesky, with a separate entrance giving directly onto the street. Ms. Young was using the apartment to store marihuana. [ 2 ] Ms.

Young had been under police surveillance for about three months and her residence—located elsewhere in North Battleford —had been successfully searched. Following the search of Ms. Young’s residence, the police received a tip indicating that Ms. Young had more marihuana stashed at the municipal address associated with Ms. Golschesky’s house. [ 3 ] In executing the warrant on Ms. Golschesky’s home, nine police officers used a battering ram on the exterior door and kicked in another. They entered her kitchen holding their firearms in the “low ready” position. At that moment, Ms.

Golschesky was in the process of calling 9-1-1 as she feared a home invasion. [ 4 ] As the police conducted a sweep search of Ms. Golschesky’s home, they saw a small amount of marihuana and money on her bed. They promptly arrested Ms. Golschesky. Upon being presented with the warrant, she advised the police that they were in the wrong place. Shortly after entry into the house, the police confirmed the existence of an upstairs apartment occupied by Ms. Young. [ 5 ] After conducting a full and productive search of Ms. Young’s upstairs apartment, the police conducted a similar search of Ms.

Golschesky’s home and discovered 224 grams of marihuana and cash in excess of $5000. Ms. Golschesky was ultimately charged with possessing marihuana for the purpose of trafficking and having in her possession proceeds of crime exceeding $5,000. [ 6 ] Ms. Golschesky brought an application under the Constitutional Questions Act and the Canadian Charter of Rights and Freedoms asking to exclude the evidence obtained by the search due to a breach of s. 8 of the Charter . By agreement of the Crown, a voir dire was conducted.

The police officer, who had sworn the Information to Obtain, and six other police officers, plus Ms. Golschesky testified. [ 7 ] O’Hanlon P.C.J. allowed the application to exclude the evidence on the footing that the ITO was insufficient to obtain the search warrant in relation to Ms. Golschesky’s residence and acquitted her (see: 2012 SKPC 160 , 406 Sask. R. 286). [ 8 ] The Crown appeals. For the reasons that follow, I would dismiss the appeal. II. Review of the Evidence 1.

Lead up to the ITO [ 9 ] The following review of the evidence is taken largely from the reasons of O’Hanlon P.C.J. [ 10 ] During the early morning hours of September 30, 2011, the police executed a search warrant pursuant to the Controlled Drugs and Substances Act at Ms. Young's residence located at 1442-108th Street, North Battleford. During the search of that residence, the police seized approximately 10 pounds of marihuana, between $20-$30,000 of Canadian currency and several items of drug paraphernalia. They also arrested Ms.

Young at that residence when she arrived during the course of the search. [ 11 ] Cst. Drabinasty participated in that search. Later that day, he received a call from a confidential source who provided him with second-hand information. This source knew that Ms. Young’s residence had been searched earlier that day. The source advised Cst. Drabinasty that the police had not confiscated all of Ms. Young's marihuana as she also kept some at a “stash house” located at 1491-106 St. in North Battleford and that marihuana could currently be found there.

The source described the house as a “duplex” but was unsure in which unit the marihuana could be found. [ 12 ] Cst. Drabinasty then conducted the following investigations: (

i) at SaskPower, he determined that Ms. Golschesky is the subscriber of power to 1491-106 Supplement A and one Steven Vercoe is the subscriber of power at 1491-106 Supplement B; (ii) at City Hall, he learned that Ms. Golschesky is the owner of the property. Cst. Drabinasty also conducted CPIC and PROS (Police Reporting and Occurrence System) checks on Ms. Golschesky and Mr. Vercoe. From these, he determined that neither had a criminal record, but that on one occasion Ms. Young had called the police on Ms. Golschesky’s behalf with respect to a break in. [ 13 ] Cst. Drabinasty then drove by the residence observing a door on the “north” side as well as on the “east” side. The “north” side

door was at ground level whereas the “east” side door was raised higher and accessed by stairs. He also observed no marking on the residence to distinguish between “suites.” [ 14 ] Cst. Drabinasty also had a conversation that same day with Cpl. Houk of the North Battleford RCMP. Cpl. Houk had been involved in the surveillance of Ms. Young and the Golschesky residence for approximately three months. 2. The ITO [ 15 ] After Cst. Drabinasty had completed his investigation during the day of September 30, 2011, he prepared and swore the ITO to obtain the search warrant to allow him access to Ms. Golschesky’s home. [ 16 ] The ITO begins with a

summary of a report written on January 7, 2010 by Cst. Dust, another member of the RCMP. Cst. Dust recounted his discussions with a source that Cst. Drabinasty called “Source A.” Source A had been a confidential source handled by Cst. Dust for approximately 18 months (ITO, para. 5.1). [ 17 ] Cst. Drabinasty summarized Cst. Dust’s report. While the

summary is lengthy, it is also critical to the proper assessment of the ITO such that I will repeat it here: 5.1(

a) Brett Woolford brings in 40-60 pounds of marihuana into North Battleford at one time every three weeks. (

b) Tania Young sells and stores marihuana for Brett. (

c) Brett will drop off 40-60 pounds of marihuana at 1491-106th Street, North Battleford, Sask . (

d) Brett will carry the marihuana to the house in a large bag described as hockey bag. (

e) Tania will get 20 pounds of marihuana and will distribute it in half pound bags. (

f) Another guy distributes approximately 20 pounds for Brett. (

g) Tania picks up marihuana at 1491-106th Street, North Battleford, Sask, and delivers approximately 2-5 pounds of marihuana between 9-11 p.m. (

h) The marihuana is stashed in the upstairs apartment in the bedroom closet at 1491-106th Street .

i) The lady that lives in the downstairs of 1491-106th Street is Sandy and she works at the Saskatchewan Hospital . (

j) Tania will carry half pound bags in a duffel bag which will be located close to her and inside her vehicle. If Tania is dealing in ounces, she will be carrying the marihuana inside her purse. (

k) Tania drops off marihuana at her customer’s house or meets them in parking lots. (

l) There was a large amount of cash in the upstairs apartment at 1491-106th Street . [emphasis added] Following paragraph 5.1(

j) above, Cst. Drabinasty inserted these words: [I cannot say why the source believes that Sandy lives in the downstairs Suite when the rest of the information received indicates she lives in the upstairs Suite .] [emphasis added] [ 18 ] Paragraph 5.2 states that Cst. Dust spoke with Source A again on January 14, 2010 who told him “Brett would be bringing more marihuana in a black hockey bag and dropping it at 1491-106th Street, North Battleford, Saskatchewan, in the upstairs apartment .” [emphasis added]

[ 19 ] Paragraph 5.3 describes at length the seizure that had taken place earlier on September 30, 2011 at Ms. Young’s home on 1442- 108th Street. It also details a search of Ms. Young's vehicle where the police found an empty bag exuding an overwhelming odour of marihuana and a purse containing five separate bundles of Canadian currency totalling approximately $10,000 in different denominations. Cst. Drabinasty then opines, according to his experience as a drug investigator, that the marihuana and cash seized from Ms.

Young is consistent with her being a dealer of marihuana in the range of half to full pound packets. [ 20 ] Of particular significance to the within appeal is para. 5.4 of the ITO. It describes the conversation that Cst. Drabinasty had with a source that he called “Source B,” someone he had been “handling” for approximately two and one-half months (para. 4.1 of the ITO). It is this information that he had received after the search of Ms. Young’s home that prompted him to conduct his investigations in relation to Ms.

Golschesky and to prepare the ITO leading to the search of her home: 5.4 On September 30, 2011, I spoke with Source B. Source B told me the following:

a) Source B was aware that a CDSA search warrant was executed on the Tania Young’s residence [ sic ] early this morning.

b) Tania Young has a stash house for her marihuana at 1491-106th Street in North Battleford, Saskatchewan .

c) There is currently marihuana at 1491-106th Street .

d) The house is a duplex, but Source B is unsure which unit the marihuana is in . [emphasis added] Cst. Drabinasty then indicates that the information provided by Source B is “second-hand knowledge.” [ 21 ] Paragraphs 5.5 through 5.9 of the ITO detail the various searches at SaskPower and City Hall conducted by Cst. Drabinasty to which I have previously referred. [ 22 ] Paragraphs 5.10 through 5.14 also refer specifically to Ms. Golschesky: 5.10 On September 30, 2011, I completed a PROS check on Sandra Golschesky. I located one PROS file which links Golschesky to Tania Young .

On December 11, 2008, Tania Young reported she received a phone call from Sandra Golschesky who requested her to check out a rental property she owns at 1491-106th Street in North Battleford, Saskatchewan, in regards to a break and enter. Young attended the residence with members to assist the investigation. 5.11 On September 30, 2011, I drove by the residence situated at 1491-106th Street in North Battleford, Saskatchewan I observed the residence to be a duplex or multi-family dwelling unit . There was a door on the north side of the residence as well on the East side.

The North side door was at ground level where is the East side door was raised higher and accessed by stairs. There was no marking on the residence to distinguish between the suites. 5.12 On September 30, 2011, I spoke with Cpl. Wendell Houk a member of the RCMP currently stationed at North Battleford, Saskatchewan, who has conducted surveillance on the residence situated at 1491-106th Street, North Battleford, Saskatchewan. Cpl.

Houk advised me that he has seen Tania Young entering the residence through the West door to the dwelling unit . 5.13 Through investigative means and information from confidential sources, I believe that Sandra Golschesky resides in the upstairs dwelling unit at 1491 – 106th Street in North Battleford, Saskatchewan, that can be accessed through the West door to the residence. I believe the upstairs dwelling unit to be Suite A .

Sask Power records indicate Steve Vercoe is the subscriber of power to Suite B believed to be the downstairs dwelling unit. 5.14 I am requesting to search the dwelling unit of Sandra Golschesky which is believed to be Suite A, the upstairs dwelling unit of 1491 - 106th Street, North Battleford, Saskatchewan. Since Golschesky is the owner of the property and suspected of being involved in trafficking marihuana with Tania Young , I could not contact Golschesky and ask her which dwelling unit she occupied. This would compromise the on-going investigation.

I also did not want to contact Steven Vercoe and confirm with him which dwelling unit he lived in as he may notify Golschesky and compromise the investigation. [emphasis added] Cst. Drabinasty presented the ITO to a justice of the peace at 6:30 PM on September 30, 2011. 3. Issuance of the search warrant [ 23 ] The justice of the peace asked Cst. Drabinasty one question, which was whether the police intended to search the premises of Mr. Vercoe. Cst. Drabinasty assured her that they had no intentions in that regard.

The location to be searched was then described as follows: Sandra Golschesky’s dwelling house, garage, vehicles, land, receptacles, situated at Suite A, 1491-106 Street, North Battleford, Saskatchewan. The warrant was issued at approximately 6:45 PM on September 30, 2011.

4. The Search [ 24 ] The search may be summarized in this manner: • At about 7:30 PM on September 30, 2011, nine police officers prepared to enter Ms. Golschesky’s home. They announced their presence, but their actions caused Ms. Golschesky to believe she was about to be the subject of a home invasion. She locked her kitchen door and she called 9-1-1. • Ms. Golschesky was observed by one of the police officers to lock the door and to pick up her phone.

While on the phone, several police officers broke through her outside door using a battering-ram. • The officers then went up the three steps from a landing and opened or broke through a door leading directly into Ms. Golschesky’s kitchen. One officer testified as to having “kicked” in the door. • One officer stayed with Ms. Golschesky while other officers moved through the whole of the main floor and, while doing so, saw a small amount of marihuana and some money on the bed in the master bedroom located on the main floor. • Cst. Drabinasty asked Ms. Golschesky her name and then immediately arrested her.

He then provided her with the search warrant. • Ms. Golschesky told the RCMP that the residence contained three separate living quarters: the upstairs or second floor, the main floor where they were at that moment, and the basement; and that the warrant for Suite A was a warrant for the upstairs suite. She also told them that she had keys for all of the suites and that they need not break down the doors. • After securing the main floor, the officers proceeded through Ms.

Golschesky's living room and into the stairwell leading up to the second level where there were confronted by a locked door, which they broke through with a battering-ram. They discovered that the upstairs apartment is a completely separate living space with a bathroom, a kitchen area with cupboards, sink, stove and fridge, and a living room containing a couch, chair, television and coffee table. No one was present. • The police thoroughly searched the upper floor where evidence of drug activity, including a significant amount of cash, was discovered—all of which the police concluded belonged to Ms.

Young. • By this time, Ms. Golschesky had been removed from the house and taken to the RCMP detachment. • The police then thoroughly searched Ms. Golschesky’s premises.

The following items were seized: the marihuana and money located on the bed in the master bedroom on the main floor, a bag containing 224 grams of marihuana and a plastic cup containing a small electronic scale located in the bottom drawer of the dresser in the master bedroom, various small quantities of marihuana in different containers and different locations, some of which were containers of “roaches,” various relatively small amounts of cash located in different locations throughout the residence, rolling papers, marihuana pipes, a cell phone, various notes containing addresses, a dusty can of bear spray found beside the fridge, $5,500 and a computer. [ 25 ] As a result of what was found in Ms.

Golschesky’s home, she was charged with possession of marihuana in an amount not exceeding three kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and possessing proceeds of crime in an amount exceeding $5000 contrary to s. 354(1) (

a) of the Criminal Code . 5. Application to challenge the search warrant [ 26 ] Counsel for Ms. Golschesky served a “Constitutional Notice under The Constitutional Questions Act ” indicating that she intended to make an application pursuant to ss. 8 and 24 of the Canadian Charter of Rights and Freedoms to exclude the evidence obtained by the search of her residence. The application referred to the following grounds: 1. The information to obtain the Search Warrant specifically referenced the potential evidence to be searched for in Suite A, 1491- 106 Street, North Battleford, Saskatchewan.

The evidence will show that the Justice of the Peace issuing the Warrant of Search specifically pointed out to the Peace Officers that the warrant did not expand past Suite A. 2. In conducting the search the Peace Officers searched the primary residence of the Accused, as well as Suite A. 3.

The Accused alleges that the apparently intentional expansion of the scope of the Warrant by the Peace Officers to include her primary residence is a flagrant breach of her rights. [ 27 ] The notice indicated that the evidence in support of the application will be provided by “Examination and Cross-Examination of Crown witnesses and/or the Accused.” 6. The Voir Dire

[ 28 ] At the opening of the voir dire , counsel for the Crown indicated the procedure that would be followed. The voir dire would be conducted “regarding the search warrant.” All witnesses would be sworn for the purposes of the voir dire and for the trial, and the evidence taken on the voir dire would be used on the trial proper. Counsel also indicated that he would be calling a number of police witnesses beginning with Cst. Drabinasty. [ 29 ] Crown counsel and counsel for Ms.

Golschesky then proceeded to explore all aspects of the investigation, the preparation of the ITO, the search warrant and the search. [ 30 ] Of the nine officers who entered Ms. Golschesky’s home on the evening of September 30, 2011, Crown counsel called five to testify. One officer took extensive photographs of the exterior of the structure. The exact nature of the structure formed an important part of the voir dire , and the trial judge’s reasons. As the evidence unfolded, it became clear that Ms. Golschesky’s house, where she and Mr.

Vercoe lived, was a conventional two-story home with two entrances and a well-defined basement including large windows indicative of a basement suite. [ 31 ] Cst. Drabinasty testified at length about what he did by way of searches during the afternoon of September 30, 2011 and about his preparation of the ITO. Through him, defence counsel introduced a letter from SaskPower indicating that there were in fact three meters for the premises: one for the basement, one for the main floor and one for the upstairs. Cst.

Drabinasty indicated that he had asked SaskPower for all pertinent information in relation to the Golschesky property but, for whatever reason, SaskPower had not given him that information. [ 32 ] In cross-examination, it was determined that Ms. Golschesky’s phone and computer had been sent away and subjected to a “tech expert exam,” but “there was no evidence of drug trafficking in the information at all” (Transcript, p. 124). A search of her truck, including a search regarding its provenance, revealed no evidence of drug trafficking (Transcript, p. 124). [ 33 ] Crown counsel also called Cpl.

Houk who described the surveillance that he had conducted in relation to the Golschesky residence. He indicated that he had been watching that home for three months and, contrary to the impression that was left by the ITO, he had observed Ms. Young using the West door, where the police ultimately entered, on one occasion only. [ 34 ] Ms. Golschesky testified at length. She indicated that she and her husband live on an acreage about two hours by car from North Battleford. They own the home at 1491-106 Street to allow her to work long shifts at the Saskatchewan Hospital. Ms.

Golschesky offered explanations regarding the various items that had been seized from her home. She testified that, at the time of the search, she was seriously addicted to marihuana use and completely habituated to consuming an excessive amount of the drug on a daily basis. [ 35 ] Ms. Golschesky knew that Ms. Young trafficked in marihuana, and indeed she bought her supplies from her—but not at 1491-106 Street. She testified that she bought marihuana from Ms. Young at the latter’s home i.e. , 1442-108th Street. She admitted that she and Ms. Young were on friendly terms and that they would have coffee together.

Ms. Young had approached her to rent the upstairs apartment as Ms. Young enjoyed having affairs with men and preferred to keep such matters private. The upstairs apartment suited Ms. Young perfectly for that purpose because it could be reached by a separate entrance directly from the street. [ 36 ] Ms. Golschesky stated that she had expressly forbade Ms. Young from storing marihuana at 1491-106 Street and she had no idea that Ms. Young had disobeyed her in that regard. [ 37 ] When the police were at the West door of her house, Ms. Golschesky believed them to be “goons”.

According to her, she did not hear them announce who they were. When she peered outside she did not see any uniforms as the men she saw were wearing ball caps turned backwards. As she was afraid, she retreated into her kitchen and called 9-1-1. When the police “rushed” into her kitchen, the phone flew out of her hand and she was forced to the ground. She was not given the search warrant until she asked for it, and then she told the police they were in the wrong place. [ 38 ] The trial judge reserved his decision on the Charter application. 7.

Decision of the trial judge [ 39 ] Based on the pictures taken by the police of 1491-106 Street and the testimony of the officers, the trial judge concluded that Ms. Golschesky’s house contains a basement suite and an upstairs apartment. Both are self-contained units. The upstairs apartment has its own entrance from the street, which is plainly visible from the exterior. It is, however, possible to gain access to the stairs leading to the upstairs apartment from Ms.

Golschesky’s living room, which the police found unlocked on the night of September 30. [ 40 ] The trial judge found the ITO wanting in several respects. First, he referred to what was missing from the ITO, i.e. , the true nature of the home as a three-level structure with a basement, a main floor and an upstairs. With the nature of the structure firmly in mind, he concluded that the justice of the peace would have been as concerned about the search of the main floor as she was about what Cst.

Drabinasty called Suite B, if she had known that Suite B was not in fact a lower level or part of a two-part structure, but the basement of a two-story house. The trial judge stated: [29] … Had the Justice of the Peace known there were three levels to this house, I must consider that she would have questioned which level or levels were to be searched, just as she had questioned whether the RCMP would be searching the downstairs suite. [ 41 ] Second, the trial judge was concerned about the ways in which the ITO was misleading or erroneous. He found that no evidence existed to support Cst.

Drabinasty’s statement that Ms. Golschesky lived in the “upstairs” apartment. He held “[i]t is obvious from the evidence presented on the voir dire that the person described by the confidential source as Sandy is the accused, Sandra Golschesky” (para. 17).

[ 42 ] Third, the trial judge found the statement in the ITO to the effect that “Golschesky is suspected of being involved in trafficking marihuana with Tania Young” (para. 27) completely erroneous and without foundation. He wrote: “the single report noted on PROS [Police Reporting and Occurrence] is not an evidential basis to state that Ms. Golschesky is suspected of trafficking marihuana” and “[n]or is Cpl. Houk’s evidence” (para. 27). Cpl. Houk testified on the voir dire that he had seen Ms. Young enter through Ms. Golschesky’s front door on one occasion only notwithstanding that Ms.

Golschesky’s home had been under surveillance for three months prior to September 30, 2011 (para. 27). [ 43 ] The trial judge summarized the controlling authorities and referred particularly to paras. 14-15 of R. v. Campbell , 2011 SCC 32 , [2011] 2 S.C.R. 549.

Based on his review of those authorities, he reminded himself that the test is not whether he would have issued the warrant, but rather “whether the Justice of the Peace could have issued the warrant” (para. 35). [ 44 ] In making this determination, the trial judge again noted those aspects of the ITO that contained factually inaccurate or misleading statements or lacked critical information.

He then stated he had to consider the record that was before the justice of the peace excluding the erroneous information and adding the “amplification evidence” received on the review (para. 35). [ 45 ] The trial judge excised the reference to Ms. Golschesky living in the “upstairs” apartment and the statement that she was suspected of being involved in trafficking marihuana with Ms. Young. He added to the ITO these facts: (

i) the house has three floors; (ii) Cpl. Houk conducted surveillance of the Golschesky residence over a three-month period and had only seen Ms. Young walking up to the West door on one occasion (para. 36). [ 46 ] Once these changes were made to the ITO, the trial judge was “satisfied that the Justice of the Peace could not have issued the warrant” (para. 37). [ 47 ] The trial judge then weighed the factors referred to in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 and excluded the evidence under s. 24(2).

When Crown counsel called no other evidence for the purposes of the trial proper, the trial judge acquitted Ms. Golschesky which prompted the within appeal. III. The Crown Appeal [ 48 ] Crown counsel has placed the following points in issue on this appeal: 59. The trial judge erred by considering Charter issues that had not been raised and by admitting irrelevant evidence on the voir dire . 60. The trial judge erred in law in finding there were not sufficient reasonable grounds upon which the issuing justice could have granted the Search Warrant. 61.

In the alternative, if the trial judge erred in law in failing to find that the search or seizure of evidence from the main floor of the respondent’s residence was valid for the following reasons: 1. The police were entitled to conduct a “sweep search” of that floor for officer safety reasons and concern for the possible destruction of evidence. During that legitimate “sweep search”, marihuana was discovered in plain view. 2. The discovery of this marihuana in plain view justified its seizure and provided the grounds for the arrest of the respondent. 3.

A complete search of the main floor of the residence was then justified as incidental to the respondent’s arrest or on the basis of exigent circumstances or pursuant to subsection 11(8) of the Controlled Drugs and Substances Act . 62. In the further alternative, if there was a breach of the respondent's rights, the trial judge erred in excluding the seized evidence under section 24(2) of the Charter . (Crown factum, p. 14; emphasis in original) IV. Analysis A. Did the trial judge err with respect to the conduct of the voir dire ? [ 49 ] As I have indicated, Crown counsel called Cst.

Drabinasty and a number of police officers to testify on the voir dire . Crown counsel examined them and allowed them to be cross-examined. Both the examination and cross-examination were far ranging―going far beyond the original “Constitutional Notice under The Constitutional Questions Act ” which appeared to be limited to an allegation that

the police officers had searched a location not described in the search warrant rather than calling into question the sufficiency of the ITO. [50] Crown counsel states that as a result of the flawed procedure employed during the Charter voir dire, the affiant of the ITO wasimpermissibly cross-examined and evidence was adduced that was irrelevant to the single, narrow Charter issue raised. According toCrown counsel on appeal, there was no challenge to the facial validity of the search warrant or the ITO or to the sufficiency of thegrounds in the ITO.

Crown counsel asked us to set aside the acquittal and order a new trial based on the flawed procedure followed inthis case and to adopt the procedure outlined by Justice Frankel in R. v. Wilson, 2011 BCCA 252 at paras. 61-68, 272 C.C.C. (3d) 269for future cases. [51] While it is quite clear that the “Constitutional Notice under The Constitutional Questions Act” did not form the basis of theprocedure followed by the trial court, it appears from the record that Crown counsel at the trial and Ms.

Golschesky’s counsel had anagreement as to how to proceed. [52] Questions were asked by both the Crown and the defence regarding the sufficiency of the ITO and indeed that became the onlyissue. At no point did Crown counsel object to considering the sufficiency of the ITO. Crown counsel on appeal may have had anargument with respect to the procedure on the voir dire if matters had played out differently, and in particular, if objections had beenmade at trial.

That is simply not the situation on this occasion. [53] Following the voir dire, counsel for the Crown made submissions almost exclusively in relation to the sufficiency of the ITO.

After receiving those submissions, the trial judge even went so far as to clarify with counsel the nature of the issues that he had to decide.He said the first issue is the Garofoli application to exclude the evidence on the basis of the validity of the search warrant issued by thejustice of the peace and secondly, if the warrant were valid, did it lose that status as a result of the information acquired by the policeofficers when they discovered the existence of an upstairs locked apartment rented to Ms. Young.

Crown counsel did not correct the trialjudge as to his understanding of what was at issue on the voir dire. [54] Thus, in the circumstances of this case, I can see no merit to Crown counsel’s submissions on this point. B. The sufficiency of the ITO [55] The trial judge correctly stated the law in relation to his authority to review the ITO. As he noted, the controlling authority is R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421 at p. 1452, where Sopinka J. wrote for the Court: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [emphasis added] He referred to R. v.

Morelli, 2010 SCC 8 at para. 40, [2010] 1 S.C.R. 253 where Fish J. for the majority wrote: [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. [41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace.Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to "amplification" evidence – that is, additional evidence presented at the voir dire to correct minorerrors in the ITO – so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. See also Campbell at paras. 3 and 14. [56] Garofoli addresses the standard of review that a reviewing judge applies. In the within appeal, it is also necessary to consider thestandard of review that an appellate court should apply to the reviewing judge’s decision.

I note that the Supreme Court of Canada inCampbell has, at least inferentially, addressed that issue as well. [57] In Campbell, the Supreme Court of Canada affirmed the Court of Appeal’s decision (2010 ONCA 588, 261 C.C.C. (3d) 1) whereinJuriansz J.A. adopted an earlier statement of the standard of review taken from R. v. Grant (1999), (ON CA), 132C.C.C. (3d) 531(Ont. C.A.) at para. 18: … [T]he usual deference is owed to the findings of the trial judge in her assessment of the record “as amplified on the review” and herdisposition of the s. 8 application.

In the absence of an error of law, a misapprehension of the evidence or a failure to consider relevantevidence, this court should not interfere with the trial judge’s conclusion. See: R. v. Ebanks (2009), 2009 ONCA 851 , 249 C.C.C. (3d) 29 (Ont. C.A.) at para 22. [58] In Campbell, the Ontario Court of Appeal found that the trial judge had misapprehended the evidence and failed to considerrelevant evidence. In the result, the majority set aside the reviewing judge’s decision, which had found the search to be unreasonable

based on the trial judge’s review of the sufficiency of the ITO in that case. [59] On appeal to the Supreme Court of Canada, Charron J., speaking for the Court, stated that since the trial judge had misapprehendedsome of the evidence and had failed to consider the entirety of the ITO “the usual deference could not be afforded to the trial judge'sfindings and it fell to the Court of Appeal to determine whether there was a basis upon which the warrant could issue” (at para. 2). [60] In this Court, Crown counsel makes two main arguments regarding the sufficiency of the ITO.

First, the Crown argues, as didCrown counsel in Campbell, that O’Hanlon P.C.J. misapprehended the evidence and failed to consider the entirety of the ITO. Second,the Crown argues that the standard of review this Court should apply to the decision of O’Hanlon P.C.J. is one of “correctness,”submitting that the question of “whether the warrant could issue” is a legal standard, the application of which merits no deference. Onthis point, he relies upon: R. v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527 and R. v. Araujo, 2000 SCC 65 at para. 18,[2000] 2 S.C.R. 992.

While I question Crown counsel’s assertion in this regard in light of Campbell, nothing much turns on the point as Ifind that, even on a review based on correctness, I agree entirely with the conclusion of the trial judge. It is quite clear that O’HanlonP.C.J. did not misapprehend the evidence or fail to consider the entirety of the ITO. [61] Much of the analysis that the Court must bring to bear in the within appeal is influenced by the location the police sought tosearch, i.e., someone’s home. While the police did not know the exact relationship between Ms. Young and Ms.

Golschesky’s residence,they were under no misapprehension regarding the fact that Ms. Golschesky and Mr. Vercoe “lived” at 1491-106 Street. [62] The Supreme Court of Canada has repeatedly emphasized the legitimacy of an individual’s high expectations of privacy in one’shome. In R. v. Silveira, (SCC), [1995] 2 S.C.R. 297 Cory J. for the majority stated the following: [141] [The home] must be the final refuge and safe haven for all Canadians.

It is there that the expectation of privacy is at its highestand where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are dulyauthorized. This principle is fundamental to a democratic society as Canadians understand that term. In R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13 at para. 43, Sopinka J. for the majority stated “the legal status of the privacyof the home was significantly increased in importance with the advent of the Charter.” Recently, Fish J. for the majority in Morellistressed the importance that must be attached to the privacy expectations of an individual in his or her home. [63] These expectations translate into an obligation on the person seeking to obtain a search warrant of a person’s home—including inrelation to an apartment or unit within a multiple family dwelling—to clearly set out reasonable and probable grounds for each unit to besearched.

In Campell, Charron J. stated: [15] It is important to stress, as Juriansz J.A. rightly acknowledged, that Mr. Campbell’s expectation of privacy in his room within thetownhouse is just as high as that of a resident of a single dwelling unit. In drafting ITOs proposing to search more than one unit within amulti-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to besearched…. [64] When Cst. Drabinasty set out to draft the ITO, one crucial fact was missing: the link between Ms. Young and Ms.

Golschesky thatwould allow him to search the latter’s home to find drugs belonging to Ms. Young. Cst. Drabinasty could not get a warrant to search Ms.Golschesky’s home without clearly setting out grounds that the two were linked in some fashion or Ms. Golschesky was herselftrafficking in marihuana—so as to give rise to sufficient grounds that Ms. Golschesky was storing marihuana on her own premises. [65] All of the known information placed the drugs in the “upstairs” apartment and Ms. Golschesky in the “downstairs” apartment: 1. At para. 5.1(h), Cst. Drabinasty quoted from the January 7, 2010 report of Cst.

Dust, that Source A advised the marihuana is stashedin the upstairs apartment in a bedroom closet at 1491-106th Street; 2. At para. 5.1(i), citing the same report, Cst. Drabinasty stated: “[t]he lady that lives in the downstairs of 1491-106th Street is Sandyand she works at the Saskatchewan Hospital.” 3. At para. 5.1(l), again citing Cst. Dust’s report, Cst. Drabinasty stated: “[t]here was a large amount of cash in the upstairs apartmentat 1491-106th Street”; 4. Then at para. 5.2 (

b) of the ITO, quoting from Cst. Dust’s report of January 14, 2010, it is stated: “Brett will be bringing themarihuana in a black hockey bag in the vehicle and dropping off at 1491-106th Street, North Battleford, Saskatchewan, in the upstairsapartment.” All of this information came from the “reliable” source with whom Cst. Dust had been working for approximately 18 months.

No otherinformation existed to allow the issuing justice of the peace to think that marihuana was being stored anywhere other than in the upstairsapartment—or that the house did not have an “upstairs” apartment. [66] Source B described the home as being a “duplex.” As was demonstrated on the voir dire, the home at 1491-106 Street is decidedlynot a duplex. It is a two-story home with a clearly visible upper story, main floor and basement. Cst. Drabinasty knew this, as he haddriven by the premises, but he did not advise the issuing justice of the peace of this fact. In the ITO, Cst.

Drabinasty did not accept thatthe house was a duplex as he added the qualifier that it was “a duplex or multi-family dwelling unit.” [67] The nature of the house was a troubling issue because Cst. Drabinasty had obtained the SaskPower records that showed only twopersons paying for electricity, yet Ms. Young was supposed to have her stash in the “upstairs” apartment. If “Sandy” did not live in the“upstairs” apartment and if the main floor was not the “upstairs” apartment or at least part of it, then the warrant could not issue forSandra Golschesky’s premises at 1401-106 Street.

[ 68 ] Cst. Drabinasty testified—in the face of overwhelming evidence to the contrary and to the point of being disbelieved by O’Hanlon P.C.J.—that everything above the basement was “upstairs.” He then tried to rely on the SaskPower records to support a theory that went something like this. The SaskPower records show two occupants only: Ms. Golschesky and Mr. Vercoe. No tie between Mr. Vercoe and Ms. Young exists, but a slim connection between Ms. Young and Ms. Golschesky exists. Therefore, the drugs must be in the possession of Ms. Golschesky.

The problem with this theory is that Source A—the only source that had spoken about the location of the drugs—stated the drugs are in the “upstairs” apartment and 1491-106 Street has a clear, visible “upstairs.” [ 69 ] But having Ms. Golschesky living in the downstairs and the drugs in the upstairs would not permit a search of Ms. Golschesky’s premises. Hence, the importance of Cst. Drabinasty’s disclaimer after 5.1(

i) of the ITO, to the effect that, “I cannot say why the source believes that Sandy lives in the downstairs suite when the rest of the information received indicates she lives in the upstairs suite.” [ 70 ] In point of fact, no other information indicated that Ms. Golschesky lived in the “upstairs apartment.” The second-hand information from Source B did not change, modify or cast doubt upon Source A’s opinion that the drugs were in the “upstairs” apartment and “Sandy” lived in the “downstairs.” [ 71 ] Cst.

Drabinasty describes the home as having a “North” side door at ground level and an “East” side door raised higher and accessed by stairs. He then introduces the notion of the West door and states Cpl. Houk had advised him that he has seen Ms. Young entering the residence through the West door to the dwelling unit. [ 72 ] The evidence on the voir dire demonstrated that the reference to the North side should have been, at least for consistency’s sake, a reference to the West door. Further, Cpl. Houk had seen Ms. Young entering the residence through the West door on one occasion only .

More importantly, the police did not know where that door led—it could have led, and in point of fact did lead, to Mr. Vercoe’s basement suite and was the only entrance for that suite. [ 73 ] Cst. Drabinasty draws a nefarious connection between Ms. Golschesky and Ms. Young in several misleading ways. First, Cst. Drabinasty contrasts who he believes are the only two occupants, Mr. Vercoe and Ms. Golschesky, by stating that he completed a PROS check on Mr. Vercoe and found that “Vercoe does not have any reports related to drug trafficking and no reports linking Vercoe to Tania Young” (para. 5.9 of the ITO).

On the other hand, in relation to Ms. Golschesky, he located one PROS file “which links Golschesky to Tania Young” (para. 5 .10 of the ITO). [ 74 ] The PROS report refers to an incident that took place on December 11, 2008, when Ms. Young reported that she had received a phone call from Ms. Golschesky asking her to check out the rental property that she owns at 1491-106 Street in regards to a break and enter (Para. 5.10 of the ITO). During the voir dire , it was determined that this was an entirely innocent fact—but one which is said to “link” the two. Cst.

Drabinasty would have known precisely what the PROS check had revealed. Nonetheless, the juxtaposition of the differing treatment of Mr. Vercoe and Ms. Golschesky—with Mr. Vercoe having no link to drug trafficking―leads the reader to think that Ms. Golschesky must be trafficking in marihuana because Ms. Young is clearly engaged in such an activity. [ 75 ] Second, Cst. Drabinasty gives the impression that Ms. Young regularly used the West door—which is the door at ground level—as opposed to the East door—which was raised above the ground and gave direct access to the “upstairs” apartment from the outside.

In point of fact, Ms. Young had been seen on only one occasion using the West door. [ 76 ] Third, Cst. Drabinasty draws a connection between the two by the direct statement that on the basis of his investigation Ms. Golschesky is “suspected of being involved in trafficking marihuana with Tania Young” (para. 5.14 of the ITO). This highly damaging statement is clearly false. Not even Cst. Drabinasty believed at the time he prepared the ITO that Ms. Golschesky was suspected of being involved in trafficking marihuana.

In cross- examination, he stated that what he meant was that she was a “suspect” because she “would have had knowledge” of what was happening at 1491–106 Street: Q Sandra Golschesky was not targeted to be searched or–as a suspect or anything like that at that time? It was Tania Young’s stuff you were looking for? A It was Tania Young’s stuff that we were looking for, although the accused was a suspect at that time. Q Okay. And what made her a suspect at that point in time? A As the—as we believed that the marihuana was inside the residence and the accused would have knowledge of that.

Q Okay, so your assumption that she must have knowledge of it would have made her a potential suspect? A Yes. [Transcript, Vol. 1, p. T37] [ 77 ] Finally, it should be noted that much of the ITO pertains to Ms. Young, the surveillance of her, the search of her home, and what that search had produced. Only a small fraction of the ITO pertains to Ms. Golschesky. There is nothing inherently wrong with such an approach but, in this case, the crucial facts of where the drugs were located, and who lived where, were further obscured by the welter of information pertaining to Ms. Young.

When one adds to all of this information the statement that Ms. Golschesky was suspected of being involved with trafficking with Ms. Young, the issuance of a warrant became inevitable. [ 78 ] Crown counsel argued that the trial judge misapprehended the evidence. In particular, he drew this Court’s attention to this paragraph: [34] In Ms. Golschesky's case, she was living on the main floor of her own house. She had tenants living in suites above and below her . The Justice of the Peace could not have known this because she was given no information about the structure of the house. Given that Cst.

Drabinasty had driven past the house before applying for the search warrant, I find it unusual that he did not turn his mind to the

possibility that Tania Young lived on the upper floor and Sandra Golschesky lived on the main floor . Instead, he placed a disclaimer in the ITO that had no merit as there was no other evidence placing Sandra Golschesky on the upper floor. [emphasis added] Crown counsel asserts that the reference to Cst. Drabinasty turning his mind “to the possibility that Tania Young lived on the upper floor” is clearly wrong because Ms. Young lived elsewhere. The police had searched Ms. Young’s “home” earlier that day and she could have no other “home.” [ 79 ] I do not read para. 34 in the way that Crown counsel suggests.

Read in light of the whole of the judgment, I take the trial judge as saying that the structure of the house should have led Cst. Drabinasty to consider whether the Golschesky house had three distinct premises. While the trial judge did not mention it, there was other evidence that might have led to this belief. The SaskPower records, which Cst. Drabinasty obtained, did not show two “suites” as he said; what SaskPower gave him were two separate accounts showing a “Supplement A” and a “Supplement B.” The notion of suites came entirely from Cst. Drabinasty.

And as we know, the SaskPower records produced by the defence on the voir dire actually showed “three” not “two” meters. [ 80 ] The trial judge’s comments in para. 34 of his reasons are, however, essentially irrelevant, as the question he had to answer was whether the issuing justice of the peace “could have” issued the warrant. After excising the misleading and erroneous information and adding what Cst. Drabinasty clearly knew, all that remains of the parts of the ITO of crucial application to Ms. Golschesky is the following: • a statement from a “reliable” informant that Ms.

Young stores marihuana in an upstairs apartment in 1491-106 Street; • a statement that “Sandy” lives “in the downstairs” at 1491-106 Street; • a second-hand statement from a second informant that Ms. Young is still storing marihuana at 1491-106 Street; • knowledge that 1491-106 Street is a three-level structure with an East door, which is raised higher than street level and is accessible by stairs, and a West door, which is at ground level; • knowledge that Ms. Golchesky had asked Ms. Young to call the police to check out a break and enter at her “rental” property; • knowledge that Ms. Golschesky and Mr.

Vercoe “live” at 1491-106 Street and no knowledge as to who occupies which level or indeed where the two entrances go; and • a statement from Cpl. Houk, who had the premises under surveillance for three months, that he had seen Ms. Young enter the West door on one occasion. [ 81 ] None of this implicates Ms. Golschesky in the drug activities under investigation any more than it implicates Mr. Vercoe. Indeed, since Cst. Drabinasty believed Mr. Vercoe lived in the basement, which was accessed by the West door only , it might have been more logical for him to have asked for the warrant in relation to Mr.

Vercoe’s premises. It is only because the police searched Ms. Golschesky’s premises that we know she had 224 grams of marihuana. While Mr. Vercoe is not implicated in these proceedings in any way, we do not know what a search of his premises would reveal. We do know, however, that the justice of the peace refused to issue a warrant for Mr.

Vercoe’s premises on the basis of the equivalent of the above pared-down information as it pertained to him. [ 82 ] Thus, I conclude, as did the trial judge, that a search warrant in relation to “Sandra Golschesky Suite A 1491-106 Street” could not have issued—in the same way that a search warrant could not have issued for “Steve Vercoe Suite B 1491-106 Street.” And, unlike many cases of this nature, we know that the issuing justice of the peace not only could not have issued a warrant for “Steve Vercoe Suite B 1491-106 Street” on this evidence—she turned her mind specifically to that question and refused to issue such a warrant. [ 83 ] If the issuing justice of the peace had known of no link between Ms.

Golschesky and Ms. Young and had known the true structure of the building, the justice of the peace could not have issued a warrant to search “Sandra Golschesky’s dwelling house, garage, vehicles, land, receptacles, situated at Suite A, 1491-106 th Street, North Battleford, Saskatchewan.” [ 84 ] I appreciate that a trial judge, reviewing the legality of a search warrant, should consider the totality of circumstances and not deconstruct the supportive information paragraph by paragraph. (See: R. v.

Saunders , 2003 NLCA 63 , 181 C.C.C. (3d) 268, aff’d 2004 SCC 70 , [2004] 3 S.C.R. 505.) But I do not conclude that O’Hanlon P.C.J. has unfairly viewed the ITO or impermissibly deconstructed it. [ 85 ] O’Hanlon P.C.J. stated the law correctly, he did not misapprehend the evidence and he did not fail to consider the relevant evidence. Further, his conclusion is the correct one. C.

Warrantless search based on exigent circumstances, the plain view doctrine and a search incident to arrest [ 86 ] In the event this Court were to uphold the trial judge’s decision regarding the sufficiency of the ITO, Crown counsel asks that the Court consider whether the seized evidence is nonetheless admissible on the basis of a search incident to arrest following the discovery of the marihuana on Ms. Golschesky’s bed. Crown counsel argues that Ms.

Golschesky’s behaviour in not responding to their knock, and locking her inner door, created “exigent” circumstances that justified the police entry which in turn led to the plain view discovery of the marihuana and her subsequent arrest. [ 87 ] This argument is best taken directly from Crown counsel’s factum: 119. … The police here were not initially concerned about the loss of evidence. They employed the usual “knock and announce” approach. They only resorted to a forcible entry as a result of the respondent's conduct. Her failure to permit the police to enter provided

ample reasonable grounds for believing that the marihuana they were seeking was at risk of being destroyed. Marihuana, like cocaine, is notoriously easy to dispose of quickly. At that point, the police were entitled to enter the premises based upon these exigent circumstances. Once inside, they were entitled to seek out the respondent and anyone else present there (whether on the main floor or the second floor) who might be destroying evidence or who could pose a threat to their safety. . . . 128.

The respondent’s own conduct created exigent circumstances and that permitted the police to enter her residence forcibly. When they encountered the respondent, they were authorized to detain her and continue to check the residence (both the main floor and upper floor) for other persons who may be a threat to their safety or who may be destroying evidence. 129. While lawfully engaged in this sweep search, members of the entry team saw marihuana in plain view on a bed in a main floor bedroom.

The respondent was, by her unsolicited admission, the only person connected to the main floor level, so she was arrested for possessing that marihuana. 130. There is a power to search incidental to arrest, even in a residence. Here that search was legitimately connected to the arrest as the police would be justified to search for evidence that could include items relating to that offence.

This would include additional marihuana and items that might show who else might be in possession of it, as well as paraphernalia or other evidence that would shed light upon whether the person in ostensible possession had the marihuana for personal use or for the purposes of trafficking. With respect to the police authority to enter and search a home without a warrant based on exigent circumstances, Crown counsel points to s. 11(7) of the Controlled Drugs and Substances Act and s. 529.3 of the Criminal Code . He also relies upon R. v.

McCormack , 2000 BCCA 57 , 143 C.C.C. (3d) 260. [ 88 ] I note that these arguments are new. Crown counsel at trial did not raise them. It was the trial judge who raised the question of exigent circumstances based on the discovery of marihuana in the upper story and not on Ms. Golschesky’s conduct in refusing to answer the door and moving to the telephone.

After the trial judge raised his version of an “exigent circumstances” argument, Crown counsel stated the following: The other point you ought to consider is that the accused in her own evidence admitted that she was in control of the entire upper―main floor and upper level throughout, and I think I have addressed at least peripherally, if not directly, the Court’s inquiry about an exigent circumstance here. I think they existed within― if not in direct analogy, within reasonably close analogy to the case I’ve referred to.

Your Honour, I―I respectfully submit that there is nothing at the end of the day that establishes on the balance of probabilities that the search―the search warrant or the search was offensive. [Transcript, p. T263] [ 89 ] Later in the voir dire , the trial judge again raised the possibility of an argument based on exigent circumstances derived from the upstairs discovery of marihuana in Ms. Young’s premises (pp. 266-67), and asked for both counsels’ submissions. Crown counsel did not correct the trial judge’s understanding of the narrowness of the issue.

In sum, Crown counsel at trial did not rely upon a warrantless search based on exigent circumstances arising from Ms. Golschesky’s actions refusing the police entry. [ 90 ] An argument based on exigent circumstances requires findings of fact. For example, according to s. 529.3(2) of the Criminal Code , “exigent circumstances” include circumstances in which the peace officer has reasonable grounds to believe that: (

i) evidence relating to the commission of an indictable offence is present in the dwelling-house; and (ii) entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of evidence. Each arm of this test requires findings of fact from the trier of fact. [ 91 ] Since Crown counsel did not make this exigent circumstances argument during the voir dire , the trial judge did not make any findings of fact upon which this Court can pass. And, in light of the modifications the trial judge made to the ITO, it is unlikely that he would have concluded that Cst.

Drabinasty had reasonable grounds to believe that evidence relating to the commission of an indictable offence was present in Ms. Golschesky’s home in any event. Accordingly, this argument must fail. [ 92 ] In order to have a valid plain-view search, the officer must be lawfully in a position from which the evidence was plainly in view (see: James Fontana and David Keeshan, The Law of Search & Seizure in Canada , 8th ed. (Markham: LexisNexis, 2010) at 671; R. v. Spindloe , 2001 SKCA 58 at paras. 42-43 ; [2002] 5 W.W.R. 239).

Once the trial judge found that the warrant was invalid, and in the absence of any findings to support the police presence based on exigent circumstances, the police were not lawfully in a place to support their plain view discovery. Thus, the second part of the Crown’s argument on this point, i.e. , that the police could search Ms. Golschesky’s premises as an incident to a lawful arrest following a plain view discovery, also fails. [ 93 ] What then to make of the trial judge’s decision not to address the question that he himself had raised: whether the search of Ms.

Golschesky’s main floor was justified as a warrantless search based on exigent circumstances arising from the discovery of marihuana, cash and drug paraphernalia in Ms. Young’s upstairs apartment. It was appropriate for him not to do so. [ 94 ] The deployment of a large number of police officers, with each performing a different task in a short space of time, makes the

sequencing of the events that occurred on entry into 1491-106 Street difficult, but one thing is clear. The trial judge found as a fact thatthe detailed search of Ms. Golschesky’s premises occurred after the search of Ms. Young’s premises and after the police had discoveredthat Ms. Young occupied a self-contained suite within the Golschesky house. At that point, Ms. Golschesky had already been arrestedand removed from the premises. No reasonable grounds existed to support a belief in the imminent destruction of evidence.

Indeed, Cst.Drabinasty did not testify as to any such grounds. [95] In short, I find no basis to support a claim that the officers’ search of the Golschesky home was not unreasonable due to exigentcircumstances, the plain view doctrine or as a search incident to arrest. D. Exclusion of the evidence under s. 24(2) of the Charter [96] Applying the criteria from R. v. Grant, supra the trial judge concluded as follows: [40] With regards to these three criteria [from Grant], I am satisfied that this was a serious breach of the accused’s right to be secureagainst unreasonable search and seizure.

There is a presumption of unreasonableness where the search and seizure has taken placewithout a warrant: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97. I consider as well that thiswas the accused’s home. That she was at home and in peaceful possession and control of her home at the time the RCMP forced theirway into her house and took possession of it for the purpose of searching it. And she had a reasonable expectation of privacy in herhome. [41] The warrantless search of the accused’s home violated her right to privacy in her own home.

She did not know the individualsforcing their way into her home were police officers and she believed they were committing a home invasion. She attempted to call 911for help just prior to their entrance. Her right to be secure against the unreasonable search and seizure were impacted greatly. [42] Under the third line of inquiry, I must consider whether the exclusion of the evidence would run counter to society’s interest inhaving an adjudication on the merits.

In considering this, I am satisfied that the seriousness of the violation is the primary consideration.In this case, society’s interest in preserving Charter- protected rights outweighs the societal interest in having an adjudication on themerits. [97] The Supreme Court of Canada has repeatedly stressed that a trial judge’s decision to exclude or admit evidence under s. 24(2) isowed a high degree of deference: see, e.g., R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 68; Grant, supra, atpara. 86; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 48; and R. v.

Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 59. It isnot open to an appellate court to reweigh the facts or reassess the evidence in order to substitute its own view on the decision under s.24(2). As the Supreme Court of Canada stated in Grant at para. 86: In all cases, it is the task of the trial judge to weigh the various indications [under s. 24(2)]. No overarching rule governs how thebalance is to be struck....

Where the trial judge has considered the proper factors, appellate courts should accord considerable deferenceto his or her ultimate determination. [Emphasis added.] [98] In the case at bar, the trial judge considered the proper factors taken specifically from Grant: (

i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society’s interest in theadjudication of the case on its merits. His decision that the admission of evidence resulting from the Charter breach would bring theadministration of justice into disrepute is entitled to deference. [99] While the police officers honestly believed they were acting pursuant to a valid search warrant, the officer who had prepared theITO made it appear that Ms. Golchesky lived on the level where Ms.

Young’s stash could be found, but he knew from his ownobservations that there was an additional level to the unit, which could be classified as the “upstairs.” By not telling the justice of thepeace the true nature of the dwelling and making comments that drew a nefarious link between Ms. Young and Ms. Golschesky, theofficer painted a misleading picture for the issuing justice. [100] The unlawful entry into the dwelling of a person has a serious impact on the rights of the accused.

Cory J., stated in Silveira, supra(at para. 148): The police, without warrant or authority, entered a dwelling-house. […] It is hard to imagine a more serious infringement of anindividual’s right to privacy. The home is the one place where persons can expect to talk freely, to dress as they wish and, within thebounds of the law, to live as they wish. The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. Itis the denial of one of the fundamental rights of individuals living in a free and democratic society.

To condone it without reservationwould be to conjure up visions of the midnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguestsuspicion that they may be enemies of the state. This is why for centuries it has been recognized that a man’s home is his castle…. Similar comments could be made in this case. See also: R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53. [101] If drugs had not been found at 1491-106 Street, the Courts of this province would probably not have had the occasion to test thesufficiency of the ITO in this case.

While the police did find a relatively small amount of marihuana in Ms. Golschesky’s home, they did

so on the slimmest of information. As Cory J. stated in Silveira , to condone a search on such information “would be to conjure up visions of the midnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguest suspicion.” [ 102 ] In sum, the breach was serious, as it was conducted on the basis of a misleading ITO. Further, the search cannot be saved by arguing it was a search incident to arrest or that there were exigent circumstances.

The search had a significant impact on the rights of the accused as it took place in her home, a place in which she has a high expectation of privacy. Finally, while the evidence obtained is reliable, the seriousness of the breach and the impact on the rights of the accused are significant—all of which leads to the conclusion that the trial judge’s decision to exclude the evidence on the basis that the admission of this evidence would bring the administration of justice into disrepute must be sustained. V. Conclusion [ 103 ] The appeal is dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 31 st day of October, A.D. 2013. __ “Jackson J.A.” _____________ Jackson J.A. ___ “Ottenbreit J.A.” __________ Ottenbreit J.A. ___ “Caldwell J.A.” ___________ Caldwell J.A.