R. v. Nguyen, 2007 ONCA 645
COURT OF APPEAL FOR ONTARIO
LASKIN, SIMMONS and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
THU HUONG THI NGUYEN
Appellant
Daniel Stein and Joe Giuliana for the appellant
Rick Visca for the respondent
Heard: April 17, 2007
On appeal from the judgment of Justice M. Eberhard of the Superior Court of Justice dated August 15, 2005.
OVERVIEW
1The appellant was convicted of production of marijuana, possession of marijuana for the purpose of trafficking and possession of marijuana, contrary to ss. 7(1), 5(2) and 4(1), respectively, of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. She was also convicted of theft of electricity contrary to s. 326(1)(a) of the Criminal Code. The charges related to a marijuana grow operation in a rural area of Ontario.
2At the commencement of trial the appellant admitted that there was a marijuana grow operation inside her residence at the time. She also admitted that the residence had been modified to accommodate the grow operation and that there were 1,121 plants and a hydro theft that exceeded the value of $5,000. The appellant, nevertheless, denied that she was involved in the grow operation.
3The appellant also challenged the issuance of the search warrant on a house she owned that housed the grow operation. In addition, she and her co-accused challenged the manner of the warrant’s execution on the basis that the police failed to knock and seek permission to enter before breaching the front door of the dwelling and entering.
4The trial judge dismissed the challenge to the search warrant but accepted that the failure to knock and seek permission constituted a breach of s. 8 of the Canadian Charter of Rights and Freedoms. She concluded, however, that exclusion of the evidence would bring the administration of justice into disrepute. She therefore admitted the evidence at trial pursuant to s. 24(2) of the Charter.
5The evidence constituted the bulk of the Crown’s case against the appellant. The appellant was convicted and sentenced to a period of fifteen months’ incarceration, along with restitution in the amount of $10,000 to Hydro One, probation for a one-year period, and a weapons prohibition.
BACKGROUND
6The police investigation in this case began sometime in January 2002 because of an investigation into another marijuana grow operation that involved a residence owner by the name of Nguyen (not the appellant). It had become apparent to the police that out-of-area individuals and groups were purchasing residential properties of patterned description for use as marijuana grow houses. A search of surnames, including Nguyen, at the registry office revealed the name of the appellant and the subject property.
7Further investigation revealed that the appellant had recently opened a hydro account and provided an alternate telephone number in the 416 area code. It also revealed that during the first forty-three days of her account there was an average daily use of hydro greater than that for similar houses. The police viewed this as being consistent with a house being used as a marijuana grow operation.
8Visual surveillance of the appellant’s house and property was carried out by the police. A neighbour of the property advised the police of their personal observations. These observations, in a community where “everybody knows everybody”, included such things as: no one had ever been seen outside the property; a grey van had been parked in the driveway; there was always a light on in the living room area; windows were always drawn; and the mailbox was never checked and garbage never put out.
9The police conducted more surveillance of the outside of the property. The grey van and a Honda were observed and a police check revealed that the Honda was registered to one of the defendants who lived in North York. Another neighbour of the residence advised the police that the grey van and Honda frequently were observed on the property and generally confirmed the observations of the first neighbour.
10Further surveillance by the police revealed that the grey van had a non-functioning tail-light. The non-functioning tail-light provided the basis upon which the police stopped the van and proceeded with a traffic investigation. They learned that the appellant was the driver and that the only passenger was a male whom the appellant said was her father. She lied to the police and told them she was coming from a beach in Barrie.
11This background formed the basis upon which the police obtained a search warrant for the subject property. The warrant was valid from 8:00 p.m. July 30, 2002, to 11:00 p.m. August 1, 2002. The police executed the warrant at 9:18 p.m. on July 30th.
12The front entrance was locked so the lead officer instructed that the door be forced open with a battering ram. There was no knock and notice given of police presence before doing so. The search revealed that two of three bedrooms were being used to grow marijuana. One contained marijuana plants; the other was fitted with lights, fans and ventilation generally used in marijuana grow operations.
13The appellant was located huddled in a corner of the basement. The appellant’s purse contained keys for the grey van and the Honda, as well as an address book with a list of fertilizers suitable for growing marijuana. The appellant, as I previously noted, denied that she was involved in the grow operation.
ISSUE
14The sole issue on the appeal against conviction is whether the trial judge erred in admitting the evidence found at the appellant’s home pursuant to s. 24(2) of the Charter. She also seeks leave to appeal her sentence.
15On my review of the record, the trial judge’s decisions respecting the admission of the evidence pursuant to s. 24(2) of the Charter are not unreasonable. As a result, I would dismiss the appeal against conviction. Furthermore, I cannot conclude that the sentence imposed by the trial judge amounts to either an error in principle or is unfit in that it is outside the acceptable range. I would therefore also dismiss the sentence appeal.
ANALYSIS
(1) The Conviction Appeal
16Section 24(2) of the Charter requires that in deciding whether or not evidence obtained through a breach of the Charter should be excluded at trial, a court is to determine whether, “having regard to all the circumstances, the admission of it … would bring the administration of justice into disrepute”. To determine disrepute a court is to weigh three factors: (i) the admission of the evidence on the fairness of the trial, (ii) the seriousness of the Charter violation, and (iii) the effect of excluding the evidence on the administration of justice: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265.
17This court will defer to a trial judge’s ruling under s. 24(2) unless there is an identifiable error in principle, a material misapprehension of the evidence relevant to the ruling, or a clearly unreasonable conclusion. It is in these circumstances that this court may perform the s. 24(2) calculation afresh and determine the admissibility of the evidence: R. v. v. Harris, 2007 ONCA 574 at para. 50.
18The appellant makes four submissions, which she says constitute errors made by the trial judge in her decision to admit the evidence found at the appellant’s home pursuant to s. 24(2) of the Charter. She asserts that the trial judge erred:
In holding that there was uncertainty in the law;
In her analysis of the seriousness of the breach;
In finding that the police acted in good faith; and,
In holding that the appellant was exploiting the Charter and thereby mitigating in favour of admitting the evidence.
19Before proceeding to address the appellant’s submissions, I believe it will be helpful to briefly describe the “knock and notice” principle that is at the heart of this appeal.
The “Knock and Notice” Rule
20The Supreme Court of Canada in Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739, 19 C.C.C. (2nd) 129 at 133 - 34, set out the following principle:
Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance. … In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry. Minimally they should request admission and have admission denied although it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or if in hot pursuit notice may not be required. [Emphasis added.]
21This common law principle has become known as the “knock and notice” rule. For the purposes of drug cases, the rule has since been supplemented by s. 12 of the Controlled Drugs and Substances Act, which provides that:
For the purpose of exercising any of the powers described in section 11, a peace officer may
(a) enlist such assistance as the officer deems necessary; and
(b) use as much force as is necessary in the circumstances.
22This section permits the police to enter a home with a certain degree of force, without announcing their presence, in exigent circumstances, where there is a need for officers to act and enter without giving prior notice. These circumstances include when there is a fear for the safety of persons within the premises and concern for the destruction of evidence, as well as, at times, concern for the officer's own safety: R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273 at para. 31 (B.C.C.A.).
23The appellant does not contend that the admission of the evidence in this case would negatively affect trial fairness. It is uncontested that the evidence seized in this case is properly classified as non-conscriptive evidence. Thus, the appellant’s submissions are directed to factors (ii) and (iii) of the Collins test.
24With this brief summary, I will turn to the submissions of the appellant and I will address them in the order set out above.
Uncertainty in the Law
25The appellant submits that the trial judge was in error when she held that there was uncertainty in the law regarding the knock and notice principle when executing a search warrant on a dwelling. I disagree with the basis of this submission; in my view, the trial judge made no such holding.
26The appellant argued before the trial judge that Lau, supra, and R. v. Schedel (2003), 2003 BCCA 364, 175 C.C.C. (3d) 193 (B.C.C.A.), made no change in the existing law respecting the application of s. 24(2) and the apparent automatic exclusion of evidence in the circumstances of no “knock and notice”. The trial judge disagreed and, as I will explain, merely observed that if evidence gathered in violation of the “knock and notice” rule were always excluded, then this would conflict with the recognized fact that s. 24(2) jurisprudence is “uncertain” in that there are no “bright lines” to warn the police about how to act in a given situation. She noted that it would ignore the law that applies where: (i) the police rely on a valid warrant; (ii) the object of the search was “real evidence” and not “conscripted”; and (iii) the search was for drugs and drug paraphernalia.
27The comment about “uncertainty in the law” does not come from the trial judge in this case, but rather it arises out of comments made by Esson J.A. in Schedel. His view of uncertainty was in connection with the evolution of the common law knock and notice rule as it has been modified from time to time by legislation, such as the Controlled Drugs and Substances Act. He observed at para. 49 that in a substantial number of past cases where the search and seizure was based on a formal police policy, it was either held not to be in breach of s. 8 of the Charter or, if in breach, not serious enough to justify exclusion of the evidence.
28After reviewing Lau and Schedel at some length, the trial judge then restated the appellant’s position, as she understood it, on the s. 24(2) issue. Once again, that position appears to be that in relying on these cases and their impact on the state of the law, any breach of s. 8 of the Charter in connection with a dwelling house that does not include a knock and notice results in an automatic exclusion of the evidence. The trial judge then made the following observation at para. 50 of her decision:
At the very least, exclusion would purport to make clear what Esson J.A. recognizes in paragraph 77 [in Schedel] quoted above, that “the law itself is uncertain and frequently changes.” It would also be contrary to the “one relatively reliable factor” he cites.
29The “one relatively reliable factor” she referred to was Esson J.A.’s note, also at para. 77 of Schedel, that “the law as it has developed seems rarely to result in exclusion where: (a) the police relied upon a valid warrant; (b) the object of the search was ‘real evidence’ and not ‘conscripted’; and (c) the search was for drugs and drug paraphernalia.”
30In other words, the trial judge was saying that to rely on the appellant’s submission, would be to allow one fact to determine a multi-faceted analysis, and that because a s. 24(2) analysis is fact-driven means that one must consider all of the circumstances rather than focus on the knock and notice rule to the exclusion of everything else. I do not read anything more than that in the trial judge’s reference to uncertainty in the law and in my view she made no error in doing so.
Seriousness of the Breach and Good Faith
31A number of factors are engaged under an analysis of the seriousness of the breach, including whether the breach was committed in good or bad faith. Other factors include the obtrusiveness of the search, the individual’s expectation of privacy in the area searched, and the existence of reasonable grounds. Consequently, in connection with the listed errors the appellant claims the trial judge made, I will address two and three together because they are closely related.
32While the trial judge did not make any specific finding that the police acted in good faith, she also did not make a finding of bad faith. Her reasons nevertheless strongly suggest that she viewed the police conduct as amounting to good faith.
33Given that this case involves a dwelling house, which usually gives rise to a serious Charter breach, the appellant seems to argue that the added feature of an absence of “knock and notice” and no exigent circumstances must result in an absence of good faith. Thus — again relying primarily on Lau — the appellant says that the trial judge could not have found good faith and that this, by itself, means that the breach is so serious as to require its exclusion. Again, I would disagree.
34It is true that in Lau the British Columbia Court of Appeal held that in the circumstances of that case, entry without “knock and notice” on the basis of a policy was unreasonable such that it constituted a breach of section 8 of the Charter. However, it is important to appreciate that Lau was a case where the police had a formal policy of no knock and notice, which the police followed.
35The view of the court in Lau regarding such a policy was that s. 12 of the Controlled Drugs and Substances Act does not permit the formulation of a blanket policy for searches under s. 11 of the Act (para. 39). Thus, the court concluded that, in the specific circumstances “… once the trial judge concluded that there were no exigent circumstances, it was not open to him to find good faith on the part of the police” (para. 38).
36Lau, therefore, does not stand for the principle that where there is no knock and notice and no exigent circumstances, a court cannot find good faith. Lau should be read in the context of the specific facts of that case. In my view, Lau is clear in this regard when the reasons are read as a whole. For example, in para. 39 the court holds that:
[E]ach case must be considered independently. … [The police] based their decision to enter the premises in the manner that they did on a policy which, contrary to the [Controlled Drugs and Substances Act], requires surprise entries with respect to every marijuana grow operation (unless the police know children or old people are present) without regard to the circumstances which prevail in the situation at hand. Good faith cannot be founded on a policy which is made contrary to the dictates of the legislation.
37Moreover, in Lau, the evidence was not excluded under s. 24(2) merely because there was no knock and notice; rather, the evidence was excluded since:
41The violation occurred because the actions of the police were based on a policy which was contrary to existing legislation. … There was no evidence in this case that the police officers had misunderstood the provisions of s. 12 [of the Controlled Drugs and Substances Act]. There was no evidence that they considered it at all. For that reason the breach must be considered flagrant and the evidence excluded. [Emphasis added.]
38This is a completely different case. As noted, the trial judge in this case found that the decision of whether or not to use the knock and notice entry was made case by case, and not on the basis of a police force policy. She found that the police here — unlike in Lau — did not rely on a police policy to always use surprise entries.
39The law regarding the factor of police misconduct resulting in a Charter violation is not simply one of good faith or bad faith. Rather, police misconduct is to be placed on a continuum for the purposes of assessing the seriousness of the conduct: see Harris, supra, at para. 62. That continuum includes conduct between that of a good faith error and a blatant disregard for constitutional rights: see R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 at 26-27 (Ont. C.A.). Here, the trial judge’s opinion can be fairly interpreted to mean that she viewed the police conduct as falling considerably nearer the good faith end of that continuum.
40In any event, the absence of good faith is but one factor, albeit an important one, that is considered when assessing the seriousness of a Charter breach. Therefore, even if it could be said that the trial judge unreasonably found good faith in this case — although I believe she properly did so — it does not necessarily end the matter. The trial judge’s assessment about the seriousness of the breach also included:
The evidence led to a reasonable belief that the premise was not being used as a dwelling at the time the warrant was executed.
The decision to enter without knock and notice was based on a genuinely held belief that it was safer to do so in the circumstances. It was based on the officer’s fear of the unknown in the context of a drug bust and the dangers he knew sometimes occur.
The officer did in fact employ knock and notice in other instances where he knew enough about the persons or circumstances within to alleviate the concern for a violent greeting if persons inside had the time to organize it.
The ultimate decision to enter without knock and notice was not made exclusively on the basis of a police policy.
When the officer later came to have clear legal direction regarding “knock and notice”, he thereafter complied with the direction.
The otherwise reasonable manner in which the warrant was executed, which included the fact that uniformed officers announced their presence as police several times, and the fact that officers holstered their weapons as soon as they realized that the appellant and another occupant, who would not present themselves upon command and were hiding in the basement, were not a threat.
The fact that the officers operated under a lawfully issued judicial authorization to search.
41Her findings are reasonable and supported by the evidence; they are therefore entitled to deference. The trial judge’s findings in respect of good faith and the seriousness of the breach, in my view, do not amount to errors.
Exploiting the Charter
42In concluding her reasons for her decision the trial judge remarked about the need for caution regarding criminal activity being designed to frustrate the administration of justice. She expressed the view that:
[E]xploitation of Charter rights is the purpose for setting up indoor marijuana hydroponics operations in structures that were built to be used as houses. To exclude the evidence would be to allow those who do so to outfox the administration of justice. In some circles that might be described as disrepute.
43Section 24(2) of the Charter requires that all of the circumstances in each case be considered including those described above and whether the evidence was essential to the prosecution, as well as the seriousness of the offence and the circumstances surrounding its commission. The trial judge, after considering all of the relevant factors, concluded that the administration of justice would be brought into disrepute by excluding the evidence in the circumstances of this case.
[44] In my view, the trial judge did not rely on her concluding observations to any overriding degree in reaching her decision. The trial judge’s concluding observations simply reflected a concern for preserving the integrity of the administration of justice through the correct application of s. 24(2) Charter principles. To the extent it can be said that she did rely on them, it is of no consequence in the circumstances of this case. Her comments would not have negated the factors that she did rely on in favour of admission of the evidence. Her findings of fact and credibility in this regard are entitled to deference.
45I am unable to identify any error in principle or a misapprehension of the evidence relevant to the trial judge’s ruling. Further, her conclusion is not clearly unreasonable. Accordingly, there is no basis for this court to interfere with the trial judge’s decision.
(2) The Sentence Appeal
46Justice Rosenberg pointed out at para. 31 in R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.) that, “a conditional sentence for cultivation in a residential area would be rare, even for a first offender”. The appellant argues that, as a first time offender, this is one of the rare cases where a conditional sentence is appropriate. The trial judge disagreed.
47This was a large scale marijuana grow operation. The warrant yielded 1,121 plants and 18 pounds of harvested marijuana. As well $10,000 of electricity was stolen during the operation. The trial judge determined that these circumstances required the need for denunciation and general deterrence that could not be achieved through a conditional sentence. She was entitled to do so. This is not one of the rare cases.
48The trial judge, in my view, was also entitled to decline to impose a conditional sentence in light of the evidence of the increasing prevalence of this form of offence in the local community and the danger caused by the hydro by-pass: see R. v. Nguyen, Khuong Van, [2002] O.J. No. 2480 (C.J.); varied on other grounds, [2002] O.J. No. 5490 (C.A.). It is important to note that trial courts have observed that there is an increase in large-scale marijuana grow operations with accompanying violence and threats of violence that courts must respond to. For example, see R. v. Nguyen, Manh Hung, [2006] O.J. No. 1607 (C.J.).
49The trial judge carefully reviewed relevant sentencing principles and applied them to the circumstances of this case and this offender. Although fifteen months imprisonment might be said to be somewhat high, it is not, in my view, outside the range. The appellant has not demonstrated any error by the trial judge.
DISPOSITION
50I would dispose of this appeal by dismissing the appeal against conviction. And, while I would grant leave to appeal the sentence imposed, I would nevertheless dismiss the appeal, even after consideration of the fresh evidence.
RELEASED:
“JL” “H.S. LaForme J.A.”
“SEP 21 2007-09-20 “I agree John Laskin J.A.”
“I agree Janet Simmons J.A.”
