R v Arnault, 2019 SKCA 109

Court of Appeal for Saskatchewan Docket: CACR 3048/3049 Citation: R v Arnault , 2019 SKCA 109 Date: 2019-10-18 Between: Her Majesty the Queen (SK) Appellant And Her Majesty the Queen (CANADA) Appellant And Gordon Brian Arnault Respondent Before: Jackson, Whitmore and Schwann JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore On Appeal From: Provincial Court, Saskatoon Appeal Heard: October 5, 2018 Counsel: W.

Dean Sinclair, Q.C., for the provincial Crown No one appearing on behalf of the federal Crown Murray Pelletier for the Respondent Gordon Arnault on his own behalf (on one issue) Schwann J.A. I. Introduction [ 1 ] This appeal engages the issue of whether the police are empowered to conduct a search of a person’s home on the strength of a court order that pertains to another individual who happens to share that same residence. In this case, the police entered and searched the home that Gordon Arnault shared with Kirk Sabit pursuant to a provision in Mr.

Sabit’s recognizance order that permitted the police to undertake a cursory search of his residence for alcohol, drugs or weapons. [ 2 ] As a result of what the police discovered in the Arnault–Sabit home, Mr. Arnault was charged with multiple weapons- and drug-related offences. Following a voir dire , the trial judge found Mr. Arnault’s right to be free from unreasonable search and seizure guaranteed by s. 8 of the Charter had been breached, and excluded the evidence obtained from the illegal search. [ 3 ] Mr. Arnault was acquitted of all charges.

Both the federal and provincial Crowns appeal from that decision: R v Arnault (15 November 2017) Saskatoon (Sask PC). [1] [ 4 ] For the reasons that follow, I would dismiss the Crown appeals. II. Background [ 5 ] Mr. Arnault and Mr. Sabit resided together at a residence in Saskatoon. Mr. Arnault and Mr. Sabit were considered high-risk offenders, and both were bound by the terms of their respective recognizance orders.

Each was prohibited from purchasing and consuming alcohol and drugs, each was prohibited from possessing weapons, and each was subject to an 11:00 p.m. curfew. [ 6 ] An important difference between the two orders was the inclusion of a search clause in Mr. Sabit’s recognizance. It reads as follows: That you shall upon demand of a peace officer, submit to a cursory search of your person, residence, and motor vehicle for possession of alcohol, drugs or weapons for the purpose of checking compliance of your conditions. [ 7 ] There was no equivalent provision in Mr.

Arnault’s recognizance. [ 8 ] In the evening of March 17, 2017, five police officers, all of whom were members of the Guns and Gangs unit of the Saskatoon Police Service, knocked on the door of the residence shared by Messrs. Arnault and Sabit. Constable Lorette spoke with the two of them near the back door of the residence. She informed Mr. Sabit that they were there to enforce the cursory search condition in his recognizance. Mr.

Arnault objected to their right to enter vis-à-vis him, pointing to the absence of a search clause in his recognizance. [ 9 ] Prior to attending the Arnault–Sabit residence, the police officers were aware that both men lived at the premises and of the search condition contained in Mr. Sabit’s recognizance. Constables Lorette and Smith were familiar with Mr. Arnault and Mr. Sabit from previous interactions. Constable Lorette testified that they had conducted a simple curfew check on both offenders at the same house one month prior to the search in question.

[ 10 ] On the night of the search, there was little consensus amongst the attending officers as to the extent of the search they were going to conduct. Constable Lorette acknowledged that the search was to be less thorough than the scope of a search conducted pursuant to a warrant. When asked what she considered to be a cursory search, she said, “I think it’s what -- what’s accessible. … What you can see in plain view and what’s accessible to individuals”.

She went on to explain the difference between a search undertaken pursuant to warrant and a cursory search: A … So with -- when I do usual search clauses or search -- search with a search warrant, you know, we go into areas. We lift up things. We go into vents. We go into areas which aren’t accessible, easily accessible, and that wasn’t the case this night. Q Well, digging under a mattress is quite -- not totally inaccessible, but yet you’re digging in a mattress; right under a mattress? A Well, there’s a difference between digging and lifting. Q Yeah.

A Yeah. [ 11 ] After asserting their right to undertake a cursory search, Csts. Lorette and Smith proceeded through the entrance foyer into an adjoining room that was used as a bedroom by a man who was not present on the night in question. Constables Shwydiuk and Hein followed Csts. Lorette and Smith to the back room and then proceeded from there to the kitchen and living room areas. [ 12 ] Constable Lorette testified that, as she progressed through the house, and after speaking with two visitors who were sitting on a mattress watching television, she saw a spoon with residue on it.

She said the residue was “a substance known to me now as Hydromorph Contin, which is a drug”. Constable Lorette also observed a bladed weapon in an open closet. Finally, she said she saw alcohol on the kitchen table, which one of the visitors claimed had been brought to the residence to share with Mr. Arnault. [ 13 ] Constable Hein testified they were at the residence to check a curfew. In reference to Mr. Sabit’s recognizance, he said they would be “invoking that search condition”. Constable Hein was unaware the recognizance was limited to a cursory search. Q Okay.

So at any point did you become aware of the fact that it was a cursory search, that Mr. Sabit was subject to on his 810 recognizance? A I didn’t hear anything about the word “cursory” as far as a cursory search goes until -- Q Mmhmm. A -- after the facts. It was -- it was only a couple of weeks ago that I’d -- I’d heard the term “cursory” come out. [ 14 ] Constables Shwydiuk, Hein and Smith spent the first few minutes conducting a plain-view type of search as they progressed through the kitchen, living room and bathroom areas of the house.

According to their testimony, needles were readily observable throughout the residence. Constable Hein then proceeded from the back entrance of the house towards the front area of the house. Just five minutes after the officers entered the residence, Cst. Hein pulled back a cushion from a black leather sofa in the living room of the house and discovered a sawed-off shotgun. Prior to this discovery, Cst. Hein’s plan was to make his way through the room in a clockwise pattern. He explained what he searched for and where he started: A Yes.

I -- I searched, or I started searching the -- the black leather couch, it was immediately to my left because when I came in my whole thought process was to work in a clockwise pattern, to ensure that everything -- that I would kind of cover off everything that was there. The very first cushion that I searched on the couch, I -- I -- it’s right where the -- the bottom seat of the couch and the backrest join, I pulled the cushion back, and upon doing so I immediately located what I believed to be a shotgun.

It was a smaller gauge shotgun that was sitting between the cushions of the couch. [ 15 ] Constable Hein testified that, based on his past search experience dealing with weapons and drugs, these items were frequently found stashed behind couch cushions. In his view, the black couch was a logical starting point for his search. [ 16 ] After Cst. Hein discovered the shotgun, everyone in the house, including Mr. Arnault, was placed under arrest. Based on her observation of the spoon and drug residue, alcohol in the kitchen and Cst. Hein’s discovery of the firearm, Cst. Lorette believed Mr. Arnault and Mr.

Sabit had violated multiple terms of their recognizances by possessing alcohol, drugs and firearms. Mr. Arnault was given his Charter rights and warnings and was told that he was being arrested for the purposes of a firearm and drug investigation. [ 17 ] After Messrs. Arnault and Sabit, along with the other people in their residence, were taken to the police station, the police began a more robust search of the entire residence. Although the officers initially debated the need for a search warrant, they concluded one was unnecessary because, as testified to by Cst.

Hein, their search was “under the power of that recognizance” (meaning Mr. Sabit’s recognizance). Constable Ingrouille, who was also present at the time of the search, attested that the officers at the residence “discussed whether or not a search warrant would be in order … and it was the general consensus … that we were already in the house lawfully searching under the -- under the search condition of Mr. Sabit’s order”. The subsequent search revealed more weapons, drugs and drug paraphernalia. [ 18 ] On the strength of this evidence, Mr.

Arnault was charged with carelessly storing a firearm contrary to s. 86(1), possession of a firearm without a license contrary to s. 92(1), possession of a prohibited firearm with ammunition contrary to s. 95(1)(b), possession of a weapon for a purpose dangerous to public peace contrary to s. 88, possession of a firearm contrary to a court order contrary to s. 117.01(1), breach of recognizance contrary to s. 811, and possession of methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 . III. Decision of the Trial Judge [ 19 ] At trial, Mr.

Arnault submitted the warrantless search was invalid and that his rights under s. 8 of the Charter had been violated. He applied under s. 24(2) of the Charter to exclude the evidence that had been obtained pursuant to the search. A voir dire was

conducted at the commencement of Mr. Arnault’s trial in response to his Charter application and, by agreement of the parties, the evidence on the voir dire would be applied to the trial proper. [ 20 ] The trial judge gave oral reasons in response to Mr. Arnault’s Charter application. In his view, Mr. Arnault’s s. 8 argument consisted of the following two issues:

a) whether Mr. Arnault had a reasonable expectation of privacy in his home; and

b) if so, was the search unreasonable. [ 21 ] He observed that these issues had to be analyzed separately and apart from Mr. Sabit’s situation. [ 22 ] On the first issue, the trial judge concluded that, although Mr. Arnault was a tenant – and not the owner of the home – it was his home for s. 8 Charter purposes. Given the high expectation of privacy in our own homes, the trial judge had no difficulty concluding that, at the time of the police search, Mr.

Arnault enjoyed a reasonable expectation of privacy in the shared dwelling. [ 23 ] The trial judge turned to the next issue, which, as he put it, was whether the search was unreasonable . Here, he found Mr. Arnault’s reasonable expectation of privacy was not diminished by the search clause contained in Mr. Sabit’s recognizance. From this, he concluded that it “was a warrantless search, and prima facie unreasonable as against the accused”. He said Mr. Arnault had “asserted his right to privacy. He was ignored. His

section 8 Charter right was breached”. [ 24 ] Although the trial judge did not state precisely at what point the search became unreasonable, I interpret him to have concluded it was unreasonable in relation to Mr. Arnault from the moment the police entered his residence. [ 25 ] The trial judge went on to consider whether the evidence should be excluded pursuant to s. 24(2) of the Charter . Using the framework set out in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ], the trial judge found the police conduct represented a serious breach of Mr. Arnault’s s. 8 Charter right. Mr.

Arnault had expressly told the police officers he did not consent to the search. Consequently, his lack of consent should have given them pause and, perhaps, should have engaged consideration of other options. On this point, the trial judge stated, “Simply assuming that Ken Sabit’s search clause trumped the accused’s reasonable expectation of privacy in his home, was a serious violation of

section 8 of the Charter -- of his Charter right”. [ 26 ] At the second prong of the Grant test, the trial judge found the impact of the breach on Mr. Arnault’s privacy right was “substantial, and results, of course, serious”.

In reaching this conclusion, he was informed by the high expectation of privacy in one’s home and the fact the warrantless search netted “all manner of items which resulted in the present criminal charges”. [ 27 ] Finally, the trial judge found that while the police had found firearms and drugs in the home, and that it was desirable to reduce the prevalence of those evils in the community, he concluded this part of the Grant test was not enough to tip the scale in favour of admitting the evidence.

After balancing the relevant factors, the trial judge concluded admission of the impugned evidence would bring the administration of justice into disrepute. In the result, the evidence obtained as a result of the search was excluded pursuant to s. 24(2) of the Charter . [ 28 ] After making his ruling, the trial judge went on to express an opinion about whether the search was cursory in nature. In doing so, he took note of the length of the total search (an hour-and-a-half) and the manner in which it was undertaken by the police: In this case, couch cushions were pulled back. Mattresses were lifted up.

The contents of an opaque plastic chest of drawers were examined and some things recovered -- or pardon me removed. Cupboard doors were opened. The ledge behind the stove was examined as was a pile of garbage in the back door. A cellphone was seized from the top of a kitchen table. [ 29 ] With these facts in mind, and having regard to the dictionary definition of cursory , the trial judge opined that a cursory search “is akin to a walkthrough to quickly observe what may be in plain view”.

The trial judge then commented that the “used syringes lying about and the shotgun shell on a window ledge were enough to show that he [Mr. Sabit] was not in compliance”. A further search, beyond that, was unnecessary and exceeded what would be considered cursory in nature and “thus was not authorized by law”. [ 30 ] Beyond the testimony of the attending officers, the Crown called no further evidence. In light of the s. 24(2) ruling, the charges against Mr. Arnault were dismissed. IV. Issues [ 31 ] As framed by the Crown, the issues raised by this appeal are as follows:

a) Was the search of the Arnault–Sabit residence an illegal search that breached Mr. Arnault’s s. 8 Charter rights?

b) Did the trial judge err by excluding all relevant evidence pursuant to s. 24(2) of the Charter ? [ 32 ] By way of a preliminary issue, Mr. Arnault, acting for himself on this issue, argues the appeals brought by the Crowns were not commenced within the time allotted for doing so pursuant to Rule 8 of The Court of Appeal Criminal Appeal Rules (Saskatchewan) [ Criminal Rules ]. As such, he argues, the appeals are a nullity and should be dismissed. [ 33 ] Given my decision on the merits, I find it unnecessary to resolve this issue.

That said, having regard to the facts in relation to when the federal Crown and provincial Crown filed their respective notices of appeal, the proof of service that was filed for each appeal, the relevant statutory provisions, including The Legislation Act , SS 2019, c L-10.2 , this Court’s Criminal Rules and the absence of pertinent evidence, I see no tenable basis to sustain Mr. Arnault’s argument.

V. Analysis A. Was the search of the Arnault–Sabit residence an illegal search thatbreached Mr. Arnault’s s. 8 Charter rights? 1. The governing legal principles [34] The Crown argues the trial judge undertook a flawed s. 8 analysis and that his reasons reveal a fundamental misapprehensionof the governing legal principles. Specifically, the Crown says the trial judge’s analysis failed to determine if the police entry andsubsequent search was reasonable within the meaning of s. 8 of the Charter, notwithstanding the absence of a search warrant.

Citing theframework set out in R v Collins, (SCC), [1987] 1 SCR 265 [Collins], the Crown posits that the police entry wasauthorized by the search condition contained in Mr. Sabit’s recognizance, the law was not challenged as being unreasonable, and entryinto the residence was effected by the police in a reasonable manner. [35]

Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. Assessingwhether an individual’s s. 8 rights have been violated involves two fundamental determinations: whether a search or seizure has takenplace and, if so, whether the search or seizure was reasonable.

The underlying framework and the principles that govern theinterpretation of s. 8 can be found in Hunter v Southam Inc., (SCC), [1984] 2 SCR 145 at 159–160 [Hunter]: Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure againstunreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfiedthat its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a reasonableexpectation.

This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” searchand seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as towhether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest inintruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. (Emphasis in original) [36] As explained in Hunter, the s. 8 analysis involves an examination of the point at which “the public’s interest in being leftalone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals”(see also R v Le, 2019 SCC 34, 434 DLR (4th) 631). [37] Although s. 8 protects people not places, courts have been sensitive to an individual’s expectation of privacy in his or her ownhome.

As Cory J. put it in R v Silveira, (SCC), [1995] 2 SCR 297, “There is no place on earth where persons can have agreater expectation of privacy than within their ‘dwelling house’” (at para 140) – also see Le at para 222 per Moldaver J. in dissent, butnot on this point. [38]

Section 8 of the Charter is only engaged if the claimant first establishes that he or she has a reasonable expectation of privacyin the place or with the item searched or seized: R v Buhay, 2003 SCC 30, [2003] 1 SCR 631 [Buhay]; R v Cole, 2012 SCC 53, [2012] 3SCR 34 [Cole]; and R v Reeves, 2018 SCC 56, 427 DLR (4th) 579 [Reeves]. If s. 8 is engaged, the court must then turn to the question ofwhether the search or seizure was reasonable.

However, as explained by Karakatsanis J. in Reeves, “A warrantless search or seizure ispresumptively unreasonable, and the Crown bears the burden of rebutting this presumption” (at para 14): also see Hunter at 161 and R vMonney, (SCC), [1999] 1 SCR 652 at para 29. This presumption relieves the applicant from the burden of establishingthat the search was unreasonable. That said, a party seeking to justify a warrantless search bears the onus of rebutting the presumption byestablishing the following:

a) the search was authorized by law;

b) the law itself is reasonable, and

c) the manner in which the search was carried out was reasonable. [39] See Collins at para 23, Hunter at 161 and R v Nolet, 2010 SCC 24 at para 21, [2010] 1 SCR 851. [40] Examples of a warrantless search considered to be authorized by law include a search incident to arrest (R v Caslake, (SCC), [1998] 1 SCR 51 at paras 17 and 48 [Caslake]), a search undertaken in exigent circumstances (R v Plant, (SCC), [1993] 3 SCR 281 at 292), and where a seized item is found in plain view of the police (Buhay at para 37 and R vSpindloe, 2001 SKCA 58, [2002] 5 WWR 239 [Spindloe]). [41] An individual may consent to a warrantless search.

For the consent to be valid, it must be fully informed, which means theperson in question must be provided with “sufficient available information to make the preference meaningful” (R v Borden, (SCC), [1994] 3 SCR 145 at 162). Valid consent must also be given voluntarily. This aspect of consent has been interpreted tomean that the person must have had a real choice in providing the purported consent (Godbout v Longueuil (City), (SCC), [1997] 3 SCR 844 at para 99).

For example, in relation to a computer, the Supreme Court in Cole held that consent cannot begiven by a third party, nor can a third party waive the constitutional protections of another (at paras 75–79). [42] With those principles in mind, I now turn to the Crown’s argument that the trial judge undertook a flawed s. 8 analysis. Thisengages the

interpretation or application of a legal standard and, as such, is a question of law reviewable on a standard of correctness: seeR v Biniaris, 2000 SCC 15, [2000] 1 SCR 381, and R v Araujo, 2000 SCC 65, [2000] 2 SCR 992.

2. Application to Mr. Arnault [ 43 ] The Crown argues the trial judge misunderstood the legal framework required for a s. 8 Charter analysis by stopping at the first prong of the test, i.e., whether Mr. Arnault’s privacy rights were engaged, and in failing to go on to consider whether the search was reasonable. A proper application of the governing legal principles, the Crown argues, required the trial judge to go on to assess the reasonableness of the warrantless search at each stage of the search.

The trial judge’s failure to do so constituted an error in law. [ 44 ] How did the trial judge address the s. 8 issue? As mentioned, he saw the analysis framed around two broad questions: whether Mr. Arnault had a reasonable expectation of privacy in the shared residence and, if so, whether the search was unreasonable. In answering the first issue, the trial judge had no difficulty concluding that, at the time of the police search, Mr.

Arnault had a reasonable expectation of privacy in his own home. [ 45 ] No issue is taken by the Crown with respect to the trial judge’s analysis or his factual finding in relation to the privacy issue. [ 46 ] After the trial judge dealt with the initial question of whether Mr. Arnault’s privacy rights were engaged, he then asked himself whether the search itself was unreasonable and if there was a breach of Mr. Arnault’s s. 8 rights. In finding the search to be unreasonable, the trial judge provided the following brief reasons: The next issue is: Was the search unreasonable?

In my view, the reasonable expectation of privacy held by the accused was not diminished by the search clause contained in Ken Sabit’s recognizance. Even if he had known of the clause in advance of the search that evening, and there is no evidence of any prior knowledge, how would that nullify his

section 8 Charter right? Thus, as against the accused this was a warrantless search, and prima facie unreasonable as against the accused. He asserted his right to privacy. He was ignored. His

section 8 Charter right was breached. [ 47 ] In its factum, the Crown argues that for the trial judge to have properly determined if the presumption of an unreasonable search had been rebutted, he should have gone on to determine if the police entry and subsequent search was reasonable within the meaning of s. 8 of the Charter , not whether it was unreasonable .

And, to do this, the Crown argues, the trial judge should have filtered the reasonableness of the search through the defined three-part Collins framework. [ 48 ] In some measure, the Crown’s argument is really that the trial judge’s reasons were not adequate because he failed to explain why the presumptive unreasonableness of the warrantless search had not been rebutted. It is accepted law that a trial judge has a duty to give adequate reasons ( R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 [ Sheppard ]). This principle applies as much to acquittals as it does to convictions.

That said, an appellate court is not free to “intervene simply because it thinks the trial court did a poor job of expressing itself” ( Sheppard at para 26 ). The Supreme Court commented on this in R v Walker , 2008 SCC 34 , [2008] 2 SCR 245: [20] … Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.

The “trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision” ([ Sheppard at] para. 55 (8)). [ 49 ] While the trial judge did not provide expansive reasons for his s. 8 analysis, in my view, he adequately responded to the live issues that were before him.

He properly framed the s. 8 analysis by first determining that at the time of the search Mr. Arnault had a reasonable expectation of privacy in his home. He then considered whether the search was, to use his word, unreasonable . Here, contrary to the Crown’s submissions, the trial judge examined the Crown’s argument that the search was authorized by law by virtue of the search clause contained in Mr. Sabit’s recognizance. To repeat, the trial judge held “the reasonable expectation of privacy held by the accused was not diminished by the search clause contained in Ken Sabit’s recognizance.

Even if he had known of the clause in advance of the search that evening, and there is no evidence of any prior knowledge, how would that nullify his

section 8 Charter right?” While the trial judge could have analyzed the issue in greater detail, I am satisfied that he was aware of and responded to it. [ 50 ] Further, at the conclusion of his reasons, the trial judge addressed the final Collins factor: that is, whether the search was carried out in a reasonable manner.

On this point, he held that the “used syringes lying about and the shotgun shell on a window ledge were enough to show that [Ken Sabit] was not in compliance; What happened in this case went beyond, in my view, a cursory search, and thus was not authorized by law”. [ 51 ] As mentioned, the reasons must be understood in light of the live issues placed before the trial judge and the parties’ key arguments. A review of the oral submissions made by the federal and provincial Crowns at trial makes it clear that the s. 8 analytical framework was put to the trial judge.

To rebut the presumption of an unreasonable search, the provincial Crown pointed to the testimony of the police officers concerning their understanding of their authority to conduct the search. This testimony included reference to Mr. Sabit’s recognizance and how some of the seized items were found in plain view.

With regard to whether the manner of the search was reasonable, the provincial Crown directed the trial judge’s attention to the testimony of several officers who differentiated between the thoroughness of a search conducted pursuant to a search warrant as compared to the cursory search performed at the Arnault–Sabit residence. The Crown also pointed to the timelines of the actual, extended search, which followed the initial police entry, the arrest and transportation of the people in the house and logging the seized exhibits.

The purpose of directing the trial judge’s attention to this evidence, the Crown said, was “to try to assist the Court as far as how I see this case unfolding, and to try and show that goes to the cursory nature of the police search in this case, as well as Mr. Arnault’s knowledge that those items were inside his residence”. [ 52 ] In oral submissions at trial, the federal Crown argued the search was reasonable because Mr. Sabit’s recognizance allowed the police to enter the premises.

Once the police entered the Arnault–Sabit home, the Crown argued, the evidence leading to arrest was either found in plain view or was obtained pursuant to the cursory search clause in the order. Finally, the federal Crown argued the search was non-intrusive and executed within the confines of what was permitted. In making this submission, I take the Crown to have argued that the search was carried out in a reasonable manner as per the third component of the Collins test.

[ 53 ] Similarly, in rebuttal to the Crown’s arguments, defence counsel took issue with whether the search was authorized by law by drawing the trial judge’s attention to R v Demchuk , 2003 MBCA 152 at para 5 , 182 CCC (3d) 188 [ Demchuk ], discussed below, for the proposition that the authority to search Mr. Sabit’s residence was not lawful vis-à-vis Mr.

Arnault, absent his consent. [ 54 ] Based on his reasons and the record, I am satisfied the trial judge turned his mind to the legal arguments concerning the reasonableness of the search, the evidence that had been drawn to his attention by the Crown to rebut the presumption associated with a warrantless search and whether Mr. Sabit’s recognizance authorized the police to enter the shared residence. While the trial judge’s reasons, delivered orally, could have contained expanded reasoning and have been framed more tightly around the Collins framework, they do not impair the Crown’s right of appeal.

There was thus no failure to provide adequate reasons. [ 55 ] Given the adequacy of the trial judge’s reasons, it falls to this Court to explore, in greater detail, whether the search was authorized by law as against Mr. Arnault. On this point, the Crown bases its argument of lawful authority on the premise that legal authorization for the warrantless search of the Arnault–Sabit residence should be assessed from the vantage point of each stage of the police search, i.e., initial entry, cursory search of the premises pursuant to Mr. Sabit’s recognizance and search incident to arrest.

Seen in this way, the Crown’s argument is built on a cascading chain of reasoning wholly dependent on separate sources of authority for each phase of the police search, but, importantly, are premised on the proposition that the police were legally authorized to initially enter the shared residence based on a consent search condition in the recognizance of one of the residents. [ 56 ] I do not question whether the search was authorized by law as against Mr. Sabit. The more difficult issue, rather, is whether the search condition contained in Mr.

Sabit’s recognizance provided lawful authority for the police to enter and undertake a cursory search as against Mr. Arnault, who happened to be a co-resident of the premises. The difficulty with this issue is that it requires the Court to address a question which has not been settled and for which the Crown offered no authority in support of its position.

Indeed, as discussed below, there is some authority which appears to point the other way. [ 57 ] I will first touch on the authorities that deal with the more direct issue of consent search conditions within the confines of a court order. [ 58 ] At trial, defence counsel for Mr. Arnault relied on Demchuk , which dealt with a conditional sentence order that required the accused to consent to a search of his residence. The offender was living in his parents’ home at the time and opposed the insertion of the consent search condition in his recognizance.

On appeal from the imposition of the condition, the offender argued that a random police search of his residence would seriously breach the “peaceful quiet possession” of his parent’s home (at para 2). Justice Twaddle concluded the search condition could not be sustained because the offender did not have “authority to consent to a search of his parents’ home” vis-à-vis him (at para 6), and that the offender’s “parents might lawfully refuse [the police] entry” to their home despite the search condition (at para 7).

In setting aside the impugned condition, the court was guided by who had the right to control access to the home: “In the present case, the parents alone had the right to control access and they clearly did not consent to police access without a warrant” (at para 6). [ 59 ] Demchuk was followed in this jurisdiction by Whelan P.C.J.’s decision in R v Unruh , 2012 SKPC 51 at para 22 , 394 Sask R 271 [ Unruh ]. That case involved a probation order that required the offender to live with his parents and to submit to a warrantless search of his person, residence, vehicle or computer on demand.

In Unruh , the search condition had been presented jointly by the Crown and defence and had been agreed to by the offender’s parents. Even so, Whelan J. declined to impose it because she concluded the Court had “no authority over the parent homeowners” and also noted that the offender’s parents were “being asked to forgo constitutional safeguards without context and for an extended period of time” (at para 23) – paragraph 24 of Unruh provides further reasons.

In the result, Whelan P.C.J. refused to include a random search clause in the probation order. [ 60 ] That decision was reversed in R v Unruh , 2012 SKCA 72 , 399 Sask R 66. This Court found the sentencing judge erred in her

interpretation of the residual clause in s. 732.1(3) (

h) of the Criminal Code : “The unequivocal consent of the probationer and his parents to the proposed clause had to be considered as part of the circumstances in that provision” (at para 8). The Court went on to note that “the consent of the probationer can be considered by a court when exercising its discretion under s. 732.1(3) (

h) to impose ‘other reasonable conditions’” (at para 9, citing R v Shoker , 2006 SCC 44 at para 22 , [2006] 2 SCR 399). [ 61 ] Unruh is clearly distinguishable from the matter under appeal. Unlike the parents in Unruh , Mr. Arnault did not consent to the search condition contained in Mr. Sabit’s recognizance and, when the police tried to exercise their authority by entering the Arnault– Sabit residence, Mr. Arnault expressly objected and challenged their authority to do so. In other words, Mr.

Arnault did not waive his constitutional safeguards. [ 62 ] This issue was raised, but ultimately not decided, in R v Sesay (L.A.) , 2013 MBCA 8 , 294 CCC (3d) 404. In that case, the accused was stopped by the police after rolling through a stop sign. A computer check revealed that the passenger in the vehicle was subject to a bail undertaking that included a search condition. The officer asked the passenger to produce a copy of his undertaking. When the passenger was unable to do so, the police officer arrested him for failure to comply with a condition of his undertaking.

A search of the vehicle, incidental to arrest, led to the seizure of crack cocaine. The driver was arrested and subsequently convicted of possession of cocaine for the purpose of trafficking. [ 63 ] On appeal, the driver argued that the condition in the passenger’s undertaking, requiring him to consent to a search of a vehicle, could trammel his constitutional right against unreasonable seizure.

Because Monnin J.A. decided the appeal on other grounds, he found it unnecessary to deal with the third party consent issue; nonetheless, he observed as follows with respect to the s. 8 argument: “At first blush, such an argument would appear to have some attraction …” (at para 38). [ 64 ] I now turn to whether the police can rely on third party consent to enter and search a home as a source of authority as against a co-resident. [ 65 ] While the cursory search authorization contained in Mr.

Sabit’s recognizance operates as his consent for police entry into his home vis-à-vis him , the question raised by this appeal is whether, given his shared residency with Mr. Arnault, Mr. Sabit could provide consent on behalf of Mr. Arnault. In other words, did the consent search clause contained in Mr. Sabit’s recognizance operate as a waiver

of Mr. Arnault’s constitutional right to be free from unreasonable search and seizure? Search conditions in recognizances have beenrecognized as a form of voluntary consent for a police search: see R v Cross, at para 13 (Ont Sup Ct). [66] The Supreme Court in Cole grappled with the question of third party consent in relation to a school-owned computer that wasused by the accused. At its heart, the question devolved to whether the authority given to school officials to search the offender’scomputer afforded the police with lawful authority to conduct a warrantless search and seizure.

As framed by the Supreme Court, Coleconsidered whether a third party could waive another person’s privacy interest, “thereby disengaging that person’s guarantee under s. 8of the Charter” (at para 74). In expressly rejecting the doctrine of third party consent, the Supreme Court found it to be inconsistent withthe jurisprudence on first party consent: [78] For consent to be valid, it must be both voluntary and informed.

The adoption of a doctrine of third party consent in this countrywould imply that the police could interfere with an individual’s privacy interests on the basis of a consent that is not voluntarily given bythe rights holder, and not necessarily based on sufficient information in his or her hands to make a meaningful choice. (Emphasis in original) [67] Cole, however, was a case that dealt with information privacy in the context of content stored on a computer. In contrast, thewithin appeal concerns privacy interests in a shared residence and whether Mr. Sabit’s consent extended to Mr. Arnault.

The law withrespect to third party consent in relation to a joint residence is not clearly settled. [68] This issue recently came to the fore, though, in Reeves (in 2018). To help frame the issue, a brief

summary of the facts is inorder. Mr. Reeves shared and held joint title to a home with his common law spouse. At the time in question, he was bound by a no-contact order that prohibited him from attending the home without his spouse’s consent. Mr. Reeves’s spouse, who continued to reside inthe residence, found what appeared to be child pornography on the home computer and advised Mr. Reeves’s probation officer of thisfact. In response to this report, the police arrived at the shared residence without a search warrant. Mr.

Reeves’s spouse allowed thepolice to enter the home and signed a consent authorizing seizure of the computer. [69] At the trial level, the judge determined the police had violated Mr. Reeves’s s. 8 Charter rights: R v Reeves, 2015 ONCJ 724.With regard to the home, while the police had obtained the consent of Mr. Reeves’s spouse to enter it (and to remove the computer), thetrial judge concluded the police officer’s entry into a private residence without the consent of both owners or occupants constituted anillegal search of those premises for purposes of s. 8.

He went on to hold that a spouse’s consent did not make police entryCharter-compliant because a third party cannot waive another party’s Charter rights. [70] On appeal, the Ontario Court of Appeal found no s. 8 breach and overturned the trial decision: R v Reeves, 2017 ONCA 365,350 CCC (3d) 1 [Reeves-CA]. The appeal court found that, while one resident cannot waive the Charter rights of another, co-residency isa relevant consideration in assessing a claimant’s expectation of privacy. In the co-residency context, “consent by a co-resident otherthan the accused is not relevant as a form of waiver.

Rather, it is relevant as part of determining whether the police have intruded upon areasonable expectation of privacy held by the accused” (emphasis added, Reeves-CA at para 49). In the end, the appellate court foundMr. Reeves’s expectation of privacy was greatly diminished in relation to the shared spaces of the home and, therefore, Mr. Reeves’sspouse was able to consent to police entry into the common areas of the home (at paras 59 and 62). [71] On further appeal to the Supreme Court, the issues were narrowed to whether the police infringed Mr. Reeves’s Charter rightsby (

a) entering the shared home without a warrant, and (

b) taking the shared computer without a warrant. [72] Justice Karakatsanis, speaking for the majority, found it unnecessary to resolve the first issue because the police had infringedMr. Reeves’s Charter rights when they seized the computer pursuant to the consent of his spouse and, in any event, Mr. Reeves’scounsel conceded that entry into the home was lawful.

The majority found it unnecessary to resolve the co-residency issue, and declinedto explore the legality of the police entry in the absence of full submissions: “many competing considerations arise in determiningwhether and when police entry into a shared home on the consent of one resident violates the Charter” (at para 23) and thoseconsiderations raise “complex questions” that require a considered response (at para 26).

Some of those difficult questions wereidentified in the opinion of the majority: [25] Several provincial appellate courts have concluded that a resident has the right to permit police entry into common areas of thehome without the consent of all other residents (R. v. T. (R.M.J.), 2014 MBCA 36, 311 C.C.C. (3d) 185, at paras. 41–52; R. v.Clarke, 2017 BCCA 453, 357 C.C.C. (3d) 237, at paras. 55–56 and 62–63; R. v. Squires, 2005 NLCA 51, 199 C.C.C. (3d) 509, atpara. 34). However, without deciding the issue, police entry into a shared home with the consent of only one resident raises a number ofimportant questions.

Would police also be authorized to search common areas of the home? Should the privacy interests of otherresidents affect the authority to seize evidence, even if in plain view?

Could another resident who is present object to the police entry?What if the officers seek entry for the specific purpose of investigating one of the other residents? [73] Justice Moldaver concurred in the result but offered “some tentative views on the issue of police entry into a shared residence,a matter of considerable importance to the administration of criminal justice – and one which Parliament has to date left unaddressed” (atpara 71).

He summarized five criteria to be applied in the exercise of a common law power where police seek to enter a home forpurposes of taking a statement: [96] To summarize, the common law police power that I have tentatively described above has five criteria:

(1) The police must offer the authorizing resident, and any other cooperating occupants, a suitable alternative interview location – if oneis available – that does not potentially intrude upon the reasonable expectations of privacy of co-residents in their home.

(2) The purpose of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willingoccupants, in connection with a criminal investigation. The police may not go further and search for or seize evidence unless they obtainthe necessary grounds to do so in the course of taking the statement or statements.

(3) The police are only permitted to enter the home’s common areas into which they have been invited.

(4) The police can only enter if invited in by a resident with the authority to consent and that consent must be voluntary, informed and continuous.

(5) Unless the police obtain the necessary grounds to take further investigative action, the duration of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants. [ 74 ] Reasoning by analogy, if I had to decide whether a search condition for one person can be relied upon as authority to effect a search against another person who happens to reside in the same home, I would conclude, broadly speaking, that the police may not rely on such authority.

This question would, of course, need to be determined against the backdrop of the particular facts of the case at hand. [ 75 ] Even if the approach adopted in Reeves-CA were applied to the case at hand, I am satisfied the trial judge did assess co- resident consent from the perspective of Mr. Arnault’s reasonable expectation of privacy when he said that “the reasonable expectation of privacy held by the accused was not diminished by the search clause contained in Ken Sabit’s recognizance” (emphasis added). The Crown has not taken issue with the trial judge’s finding that Mr.

Arnault had a reasonable expectation of privacy in his shared dwelling or, importantly, that his expectation of privacy in his home was not diminished or attenuated by the search clause in Mr. Sabit’s recognizance. [ 76 ] Finally, even if I accept the proposition that a resident has the right to permit the police to enter the common areas of a shared home, as suggested by some appellate authorities (e.g., see Reeves at para 25 ), seizure of the items from the Arnault–Sabit residence cannot be justified under the plain view doctrine.

I say this because the trial judge made no finding of fact to that effect; if anything, the evidence would suggest otherwise. Furthermore, the plain view doctrine confers a seizure power not a search power, which, as noted in paragraph 50 of Spindloe , does not permit an exploratory search to find other evidence. [ 77 ] In the end, having regard to the law and the trial judge’s finding, concerning Mr. Arnault’s reasonable expectation of privacy and the unreasonableness of the search, the Crown’s argument cannot prevail. B.

Did the trial judge err by excluding all relevant evidence pursuant to s. 24(2) of the Charter ? 1. Standard of review [ 78 ] A decision to exclude evidence pursuant to s. 24(2) of the Charter is a question of law since it deals with the admissibility of evidence. The standard of review in relation to a trial judge’s s. 24(2) determination is deferential.

As the Supreme Court stated in R v Cote , 2011 SCC 46 , [2011] 3 SCR 215 [ Cote ], “Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review” (references omitted, at para 44). [ 79 ] An appellate court will generally not interfere absent an error in principle – or unless it is clear the judge made an unreasonable finding ( Buhay at para 43 ).

A trial judge’s findings of fact concerning the admissibility of evidence “must be respected unless they are tainted by clear and determinative error” ( Cote at para 52 ). [ 80 ] It is open to an appellate court to conduct the s. 24(2) analysis anew if the trial judge’s analysis has been “tainted by an error in fact or law that is relevant to his ultimate conclusion …” ( Cot e at para 87 ): see also R v MacMillan , 2013 ONCA 109 at para 44 , 296 CCC (3d) 277, and R v Moyles , 2019 SKCA 72 at para 82 [ Moyles ].

Where a trial judge has erred in law or principle in determining whether there were any Charter violations, or with the seriousness of any such violation, an appellate court may perform its own assessment of the relevant factors to determine whether the evidence should be excluded: R v Loewen , 2018 SKCA 69 , 365 CCC (3d) 91 [ Loewen ], Moyles , and R v Shinkewski , 2012 SKCA 63 , 289 CCC (3d) 145.

When a “trial judge’s determination [is] based on misapprehensions” of the Charter violations, an appellate court “is obliged to disregard the findings of the trial judge to the extent those findings are tainted by the underlying error” ( Loewen at para 67 ). [ 81 ] Considerable deference is also owed to how a trial judge weighs the Grant factors.

When reviewing a trial judge’s decision with respect to the s. 24(2) remedy, appellate courts must accept the findings of fact underlying the trial judge’s analysis, unless those facts are tainted by palpable and overriding error ( Cote at para 89 and Grant at para 129 ). 2.

Did an error in the trial judge’s s. 8 analysis undermine his s. 24(2) determination? [ 82 ] The Crown argues the trial judge committed several errors in his s. 24(2) analysis, and that these errors allow for the 24(2) issue to be considered afresh by this Court. [ 83 ] In its first argument, the Crown says the trial judge’s failure to conduct a reasonableness inquiry, as per Collins concerning whether the police violated Mr. Arnault’s s. 8 rights, completely undermined the validity of his subsequent s. 24(2) analysis.

Evidence cannot be excluded under s. 24(2), the Crown argues, simply based on a finding of a prima facie s. 8 violation.

Much like it argued above, the Crown submits the trial judge’s failure to conduct a full and robust s. 8 analysis should lead to a new trial since the findings would have had a substantial impact on the s. 24(2) analysis. [ 84 ] I reject this argument for the same reasons set out above in relation to the s. 8 reasonableness analysis. [ 85 ] In its second argument, the Crown argues the trial judge failed to conduct a principled analysis of the Grant factors. [ 86 ] As to the first Grant factor – the seriousness of the Charter -infringing conduct – the Crown asserts the trial judge misunderstood the distinction between inadvertent or minor violations and those involving wilful or reckless disregard for Charter rights.

This misapprehension led the trial judge to misunderstand the need to assess the degree of the state–actor’s blameworthiness. The erroridentified by the Crown in its factum is as follows: 67. … He found the police conduct to be serious because they “assumed” they were entitled to rely on the search clause in Mr. Sabit’srecognizance. With respect, the fact that the police were relying on a valid court order to effect entry into Mr. Sabit’s residencenecessarily rendered their conduct less serious, not more serious. [87] There are several problems with this assertion.

First, this is a mischaracterization of the trial judge’s findings. It was not anassumption of reliance on Mr. Sabit’s search condition that the trial judge found to be serious: it was the police officers’ disregard forMr. Arnault’s lack of consent to the search and their disregard for his right to privacy. In any event, the Crown’s argument assumes thepolice could lawfully rely on Mr. Sabit’s recognizance to enter the home vis-à-vis Mr. Arnault.

As discussed above, that conclusion is farfrom certain. [88] Second, the Crown’s argument – that the police were relying on a valid court order – mandates a finding that they acted ingood faith. According to Cote, it is not open to an appellate court to “substitute its own view of police conduct for that of the trial judge”unless the trial judge’s findings are tainted by clear and determinative error (at para 51). [89] In Reeves, when addressing a cybercrime unit officer’s belief that Mr.

Reeves’s spouse’s consent allowed him to seize theirshared computer, Karakatsanis J. concluded the “unit also should have known that a third party cannot waive another party’s Charterrights” (at para 62). Similarly, the trial judge concluded that Mr. Arnaud’s objections should “have given the police pause in theiractions”. Mr. Arnaud told police he did not have a search condition in his recognizance and challenged the officers’ authority to searchthe residence. The trial judge held that the police committed a serious violation of s. 8 by ignoring Mr.

Arnaud’s assertions instead of“discussing whatever options there might have been”. In light of the evidence before the trial judge, and the arguments at trial, this wasnot a clear and determinative error. The fact the police officers took a break after arresting the occupants to discuss whether or not toobtain a search warrant shows there was some doubt about the legality of continuing the search. [90] The Crown does not take issue with the trial judge’s finding that the alleged violation would have had a significant impact onMr.

Arnaud’s s. 8 rights. [91] In its final argument, the Crown submits the trial judge failed to conduct any meaningful analysis of the third Grant factor:society’s interest in an adjudication on the merits. The Crown contends a court must consider the reliability of the evidence at stake andits importance to the Crown’s case when assessing social interest. [92] In my view, the Crown’s argument comes down to an allegation of insufficient reasons.

In R v R.E.M., 2008 SCC 51, [2008] 3SCR 3 [R.E.M.], McLahlin C.J.C. held that a judge’s reasons are sufficient if “the reasons, read in context, show why the judge decidedas he or she did. The object is not to show how the judge arrived at his or her conclusion, in a ‘watch me think’ fashion. It is rather toshow why the judge made that decision” (emphasis in original, at para 17). [93] Although the trial judge did not comprehensively address all of the Grant factors, he correctly identified the three branches ofthe Grant analysis at the outset of his inquiry: In R. v.

Grant, [2009] SCJ 32 [2009 SCC 32], the Supreme Court of Canada set out three criteria to be considered when a court is facedwith a breach of a citizen’s Charter right. These are: (1) the seriousness of the breach; (2) the impact of the breach on the accused’sprotected interest; and thirdly, society’s interest in adjudication of the case on its merits. And now I’ll enter into that Grant analysis asit’s come to be called. [94] The trial judge considered the impact of failing to admit the evidence by acknowledging the negative impact of guns anddrugs on society: “Guns are becoming more prevalent in the city.

Drugs are a plague”. He concluded, though, that these concerns did nottip the balance towards the admission of evidence: “Does all of this tip the balance toward the admission of the evidence? In my view, itdoes not”. [95] The brevity of the trial judge’s reasons is not necessarily indicative of a failure to conduct a meaningful analysis. A trial judgeis presumed to know the law: see R v Dinardo, 2008 SCC 24 at para 2, [2008] 1 SCR 788, and Housen v Nikolaisen, 2002 SCC 33 atpara 138, [2002] 2 SCR 235.

In addition, a “trial judge is not required to expound upon those legal principles to demonstrate to theparties, much less to the Court of Appeal, that he or she was aware of and applied those principles” (R v Morrissey (1995), (ON CA), 80 OAC 161 (CA) at para 28 [Morrissey]).

A trial judge is also not required to “set out every finding or conclusion inthe process of arriving at the verdict” (R.E.M. at para 18). [96] When read in the context of the entire record, the trial judge’s reasons for excluding the evidence under s. 24(2) wereresponsive to the issues raised and showed that he was alive to the relevant legal principles required to be considered: see Morrissey atpara 29 and Aquila v Aquila, 2016 MBCA 33 at para 47, 397 DLR (4th) 102. [97] In conclusion, there is no error in principle or unreasonable finding of fact that would justify intervention with the trial judge’sdecision to exclude the evidence.

VI. Conclusion [98] The federal and provincial Crown appeals are dismissed. “Schwann J.A.” Schwann J.A.I concur. “Schwann J.A.”

for Jackson J.A. I concur. “Whitmore J.A.” Whitmore J.A.