R. v. Lefebvre, 2015 ONSC 1241
CITATION: R. v. Lefebvre, 2015 ONSC 1241 COURT FILE NO.: CR 14-26 DATE: 2015/03/31
ONTARIO SUPERIOR COURT OF JUSTICE (Northeast Region at North Bay)
IN THE MATTER of an Indictment alleging offences contrary to the Criminal Code and Controlled Drugs and Substances Act
AND IN THE MATTER of an Application for Relief under section 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”) in relation to the said Indictment on the basis of a breaches of sections 8, 9 and 10(b) of the Charter
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
CLIFFORD LEFEBVRE Applicant
COUNSEL: Erin Lainevool, Federal Prosecutor Graham T. Clark, Counsel for the Applicant
HEARD: January 27, 28 and February 5, 2015
NADEAU J.
RULING ON PRE-TRIAL CHARTER APPLICATION
There is a publication ban in effect with respect to these pre-trial proceedings.
INTRODUCTION
[1] Pursuant to the Charter in relation to this six count Indictment against him, the applicant seeks an order excluding from evidence all substances seized and any statements obtained from him. Defence Counsel has no submissions with respect to the applicant’s rights under sections 9 or 10(b) of the Charter, and is also silent on rights under section 7.
[2] Although the applicant seeks such a blanket exclusionary order, it is most specifically submitted by his Counsel that the warrantless search of the residence at 467 Laurier Avenue was in breach of section 8 of the Charter, and that his consent to the search of his home was invalid in law since it was obtained by coercion from external conduct which negated his freedom to choose and/or was not truly informed. The applicant also specifically relies upon the violation of his daughter’s rights under section 9 of the Charter; submitted as being a driving force in his decision to consent to the search of his home.
[3] The evidence in this Charter application was presented over three days in an ultimately blended voir dire. Although it would have been more efficient here to have conducted the more traditional blended voir dire, I remain vigilant of the respective burdens of persuasion; including that the Crown has the burden of showing that the warrantless search of the residence on February 26, 2013 was, on a balance of probabilities, reasonable. As well, the onus is also on the Crown to establish an effective and informed waiver by the applicant of his section 8 Charter rights.
[4] On February 5, 2015, I delivered my oral reasons for ruling that the statement by Clifford Lefebvre from Exhibit 2 is voluntary. The applicant now submits that any statements obtained from him be excluded from evidence due to violations of the Charter by the police.
THE FACTS
[5] The police received a complaint from a daycare operator on February 22, 2013 with respect to drug transactions on the 400 block of Laurier Avenue in North Bay. The Street Crime Unit of the North Bay Police Service commenced an investigation of the applicant, and with the assistance of three Crime Stoppers tips police were able to determine that 467 Laurier Avenue, the residence of the applicant in the vicinity of the daycare, became the target of their investigation.
[6] On February 25, 2013, police conducted surveillance of the applicant’s residence for approximately 5 hours and observed persons coming to and leaving the residence consistent with the trafficking of controlled substances. The next day police conducted further surveillance of the residence for approximately a couple of hours and more observations were made of persons, some known to this Unit and others unidentified, gravitating in and out of the residence in a manner consistent with the trafficking of drugs. Police then arrested Kenneth Pitt, a person known to them from their experience in the City’s drug trade, leaving the residence and it was confirmed to the police that controlled substances were purchased by him from the applicant at the residence.
[7] On February 26, 2013, police observed the applicant accompanied by a female leaving the residence, and they were both placed under arrest at 4:48 p.m. A search of the applicant disclosed that he had drugs hidden in his crotch area, which he retrieved and surrendered to police. Police were then able to identify the arrested female as the daughter of the applicant.
[8] Less than 40 minutes from their arrest, while the applicant and his daughter were both detained in custody at the police detachment, the applicant agreed to and began providing his inculpatory statement and his consent to search their residence as recorded by the police in an interview room. The video recording of this entire interview, primarily by another police officer who had not yet directly dealt with the applicant nor his daughter, was made Exhibit # 2 in this voir dire.
[9] The recorded interview of the applicant on February 26, 2013 began at 5:25 p.m. and ended at 6:34 p.m.; all completed within one hour and 46 minutes after their arrest. The interview also includes the interaction between the applicant and his wife during the defined consent search of their residence; which search was also recorded by the police and presented as Exhibit #3 during this voir dire.
[10] While entering the interview room and during the applicant’s interview, he was obviously concerned about his daughter’s detention in custody pursuant to her arrest. As well, he had other significant concerns. The video evidence demonstrates concern about his own predicament of getting caught red-handed with drugs and monies in his possession. Having previously been arrested for similar offences, he naturally had legitimate concerns regarding his bail and anticipated release conditions. He also indicated concern for his dogs, and of the reaction and plight of his wife at their residence where there were concealed drugs and the police were preparing to make application for a search warrant.
[11] I am completely satisfied that at the time of the applicant’s interview the police were in the process of preparing an Information to Obtain for an application for a search warrant of the residence. As indicated to the applicant during his interview, Officer McFarlane states “you are aware that we have a search warrant ready to go”. He later clearly specifies “I’m not saying we won’t apply for the warrant”. The police were obviously in position to apply for, and I find were in the initial process of obtaining, a search warrant. As I will elaborate upon later, these indications were not a mere unfounded threat intended solely to put pressure on the applicant. With this knowledge of the imminent search warrant application if it was required by the police, the applicant also consented to the search of his residence during the interview.
[12] On February 5, 2015, in delivering my reasons on the issue of the voluntariness of the applicant’s video statement to the police, I determined on that evidence from the voir dire that his inculpatory statements were voluntary since no inducement or promises were given to the applicant and they were not made to the police as a result of a quid pro quo for his release or for that of his daughter. I indicated in my reasons from that voir dire that there was no causal connection between any inducement or promise allegedly made by the police and the cooperation of the applicant as he exhibited after his arrest. Upon also considering the supplemental evidence presented during this Charter voir dire, I can readily confirm that same determination on all of this evidence. Once again, for the additional reasons that follow, I find that the applicant provided his voluntary statement to the police during his interview made as Exhibit # 2 in a savvy effort to obtain favour from our justice system not only to secure his own release on reasonable conditions of bail, but also to deflect culpability from his daughter and from his wife for the drugs found on his person upon arrest and later in their residence.
ANALYSIS
[13] The applicant had become the target of this criminal investigation, and it is clear that he was arrested on February 26, 2013 pursuant to section 495(1) of the Criminal Code based upon reasonable and probable grounds to believe that he had committed or was about to commit an indictable offence. In my view, the information available to the police from their investigation immediately prior to his apprehension and detention, comprising of the source information and further investigative product obtained by the police, gave them more than sufficient reasonable grounds for his arrest and detention. The arrest of the applicant was lawful, and was carried out in a lawful manner. There is not a demonstrated violation of the applicant’s rights under section 7 of the Charter.
[14] A warrantless search of the person by police of an individual arrested is first justified by the need to prevent injury to the arresting officer, and also by the need to remove from them any tool of escape. Arrest precipitates a second justification for such a search, the need to preserve evidence under the control of the arrested person; it being reasonably believed that an arrested party may destroy inculpatory evidence under their control once their arrest takes place.
[15] This search incident to the arrest of the applicant revealed he had drugs on his person while walking with his daughter from their residence. He disclosed to the police that drugs were hidden in the area of his crotch. Upon his offer, the drugs were retrieved by the applicant voluntarily and produced to the authorities. I am satisfied in these circumstances that whether or not the applicant orally disclosed their presence, the drugs would have been found on his person in any event; either as a result of a preliminary pat down search incident to arrest, or most certainly as a result of a more thorough search subsequently at the police station during his processing for incarceration pending bail. There were reasonable grounds to arrest, the applicant was searched for evidence referable to the reasons for this arrest, the search was carried out in a reasonable manner, and drugs were found on his person in the course of a justifiable search incident to this arrest.
[16] The Crown has therefore demonstrated on a balance of probabilities that the warrantless search of the applicant pursuant to his arrest was reasonable. As well, the applicant has not satisfied me that there is a demonstrated violation of his Charter rights in the context of the search of his person incident to arrest. Without being more precisely submitted by Counsel for the applicant in the context of this specific evidence, I am left with little difficulty finding that the evidence of the drugs found on the applicant is not to be excluded.
[17] Section 9 of the Charter states:
“Everyone has the right not to be arbitrarily detained or imprisoned.”
[18] I agree that the evidence here discloses no violation of the applicant’s section 9 Charter rights. The applicant submits however that the violation of his daughter’s section 9 Charter rights was a driving force in his decision to consent to the search of his home, which therefore invalidates his consent.
[19] Counsel for the applicant has chosen not to reply to the Crown submission that the daughter of the applicant is not a party to this proceeding, nor to explain how the applicant father may claim Charter relief for any violation of her section 9 Charter rights. If I understand the submission properly however, the applicant is suggesting that the arrest here of his daughter, and her continued detention in custody for at least one hour and 46 minutes following her arrest while he completed his interview, was unlawful in these circumstances.
[20] On a section 9 Charter application, the onus is on an accused to prove on a balance of probabilities that the accused person was detained and that the detention was arbitrary. However where an absence of the grounds for an arrest is claimed to be the basis upon which a detention is unlawful, the burden shifts to the Crown to prove the existence of the requisite subjective and objective reasonable grounds to arrest, and should also shift to the Crown to prove reasonable grounds for the detention since these are within the particular knowledge of the police.
[21] Police conduct that interferes with the liberty or freedom of the individual is not rendered lawful merely because it assists in the performance of police duties and will be lawful only when authorized by statute or by the common law. In respect of warrantless arrests, section 495(1) of the Criminal Code provides authority to arrest, as follows:
495(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
[22] The authority under s.495(1)(a) to arrest a person who the officer believes, on “reasonable grounds”, has committed or is about to commit an indictable offence, has a subjective and an objective component: (1) the police officer must subjectively believe that there are reasonable grounds to believe that the person has committed or is about to commit an indictable offence; and (2) a reasonable person in the position of the officer would also conclude that there were reasonable and probable grounds for the arrest.
[23] Section 495(1)(b) provides a peace officer with authority to arrest a person whom he or she finds committing a criminal offence. The “finds committing” requirement has three basic elements: (a) the officer has reasonable and probable grounds to believe that the person is committing a criminal offence; (b) there is a direct linkage in time between the commission of the offence and the arrest; (c) the officer must have observed the person committing the offence or have made observations sufficient to support a finding that he or she found the person committing an offence. An arrest that complies with the requirements of s.495(1) of the Criminal Code, and suffering no other defect, does not infringe s.9 of the Charter.
[24] In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
[25] The reasonable grounds to believe standard was distinguished from the standard of reasonable grounds to suspect in R. v. Chehil, 2013 SCC 49, on the basis that it involves a belief in the probability of crime, as opposed to an expectation of the possibility of crime. Karakatsanis J., on behalf of the court, stated, at [26] and [27]:
“Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at [75]:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.”
[26] The objective component requires that there be “objectively discernible facts which give the officer reasonable cause to believe that the accused is criminally implicated in the matter for which he is arrested”. The objective component ensures that the right to be left alone by the state does not depend exclusively on a police officer’s subjective perception of events and responds to the need for “discernable objectively measurable limits on police powers”: R. v. Brown, 2012 ONCA 225.
[27] And even though an arresting police officer may not personally have reasonable and probable grounds to arrest a suspect, that arrest is not necessarily unlawful. Provided another police officer had sufficient reasonable and probable grounds to believe the suspect had committed or was committing the offence, that police officer is entitled to order another police officer to carry out the arrest. That an arresting police officer must have a subjective belief in the existence of reasonable and probable grounds, which belief must be objectively verifiable, is subject to the qualification provided for at [49] and [50] of R. v. Debot, [1989] S.C.J. No. 118. That qualification allows for a decision to be made by one officer but carried out by another. Provided the decision-maker has the necessary lawful basis to make the decision in question, the officer may delegate the task of carrying out the decision to another officer.
[28] In Debot a sergeant ordered a constable to stop and search an individual. The court held that since the constable was carrying out the sergeant’s order, the state of knowledge of the constable was immaterial, as he was simply following an order;
“… [the constable] had no decision to make upon which to bring his own knowledge and belief to bear. It would have made no difference had he known nothing about the case and had merely been on patrol in the area at the opportune time.” (at [49])
“The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. Of course, this does not prove that reasonable grounds actually existed. It does make clear, however, that the pertinent question is whether [the sergeant] and not [the constable] had reasonable and probable grounds.” (at [50])
[29] Principles governing the assessment of reasonable and probable grounds to arrest were reviewed in R. v. Jamieson, 2009 ONCJ 577, per Nadel J., at [37]:
“Between paragraphs [29] to [50] of R. v. Censoni, [2001] O.J. No. 5189, Hill J. sitting as a summary conviction appeal court, exhaustively reviewed the test for the presence of reasonable and probable grounds. While Censoni was an appeal from conviction for the offence of impaired driving that jurisprudence applies here. Hill J. quoted and adopted, among others, all of the following points.
The concept of reasonable and probable grounds resides in a continuum of standards of proof within the criminal process. (at [29])
Reasonable grounds have been described as credibly based probability or reasonable probability. (at [30])
Reasonable and probable grounds do not amount to proof beyond a reasonable doubt, nor is it the equivalent of a prima facie case. (at [31])
Reasonable and probable grounds to arrest or to search have both a subjective and an objective component. (at [32])
The subjective component amounts to an actual or honest belief that the suspect committed an offence. (at [34])
In reviewing the objective component of reasonable grounds, the question is whether the officer’s opinion was supported by objective facts; that is to say whether a constellation of objectively discernible facts exists from which a reasonable person standing in the shoes of the police officer would believe reasonable and probable grounds existed. (at [35])
The important fact is not whether the peace officer’s belief was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts understood by the peace officer when the belief was formed. (at [35])
In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions drawing on experience. (at [36])
What the court looks into is the state of mind of the officer. What did he understand the circumstances to be? It is in a sense, also objective because the court objectively examines the circumstances as understood by the officer. (at [36])
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. (at [40])
Reasonable grounds must be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. (at [43])
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.(at [46])”
[30] In my view, the information available to the police from their investigation of the applicant father, combined with the observed drug trafficking activities emanating from their residence over parts of two days, also gave them sufficient reasonable grounds to arrest his daughter as they exited their residence together. Although it is obviously not permissible for the police to arrest in order to further an investigation, her arrest can be justified in these indicated circumstances as being reasonably necessary to prevent the continuation of an offence here. The fact that drugs were found at that time, on the person of her father by a search incident to his arrest, then provided the police officers with sufficient additional reasonable grounds for her detention pending further investigation as to her potential involvement in the drug trafficking activities. Within 37 minutes of her arrest, the police acted expeditiously in providing the applicant father with a recorded interview. During his statement to the police over the next 69 minutes, the applicant voluntarily indicates for the record that he was the only person from their residence conducting all of the drug trafficking activity, and that his daughter and his wife were not involved.
[31] Therefore, even if it were legally possible for the accused father to claim a Charter remedy for a violation of his daughter’s section 9 Charter rights, I have not been satisfied that his daughter was arbitrarily detained or imprisoned here. As well, her arrest for suspected involvement in the drug trafficking, and her detention in custody for a relatively brief duration thereafter, was not unlawful in these specific circumstances created from the actions of her own father by potentially implicating her in illegal activities taking place from their residence. The real question here is not whether there was a violation of any section 9 Charter rights, but whether the Crown has satisfied their onus that the applicant had waived his section 8 Charter rights.
[32] Section 8 of the Charter states:
“Everyone has the right to be secure against unreasonable search or seizure.”
[33] A warrantless search is presumed to be unreasonable and the burden is upon the Crown to demonstrate on a balance of probabilities that the search was authorized by a reasonable law and carried out in a reasonable manner. Section 8 of the Charter protects individuals against unwarranted state intrusions upon their privacy interests. One of the values animating the right protected by section 8 is personal autonomy. Personal autonomy, however, also dictates that an individual must be able to waive his or her right to be left alone by the state and to consent to what, absent that consent, would be an unreasonable state invasion of personal privacy. If an individual provides that consent, what would otherwise be a search or seizure, is no longer a search or seizure. The reasonableness standard mandated by section 8 has no application where the individual has consented to the state intrusion upon his or her privacy.
[34] A person’s consent to a police search of a location in respect of which the person has a reasonable expectation of privacy involves a relinquishment of section 8 Charter protection and, therefore, the validity of the consent is determined in accordance with the principles governing the waiver of constitutional rights. In order for a waiver of section 8 protection to be effective, the person must give an informed consent based on: (a) an awareness of his or her right to refuse to consent to the search; and (b) possession of an informational foundation that allows a true relinquishment of the right: R. v. Mellenthin, 76 C.C.C. (3d) 481 (S.C.C.), at 487-88; R. v. Borden, 92 C.C.C. (3d) 404 (S.C.C.), at 416-17. More specifically, courts have applied the requirements for a valid consent described in R. v. Wills, 70 C.C.C. (3d) 529 (Ont. C.A.), per Doherty J.A. at 546;
“In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
(i) there was consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and
(vi) the giver of the consent was aware of the potential consequences of giving the consent.”
[35] In Wills, above, the Court of Appeal for Ontario emphasized that it is necessary to recognize the dynamics involved when the police make a “request” of an individual, and that acquiescence, compliance and the failure to object do not constitute consent.
[36] The quality of a purported section 8 waiver must be commensurate with the importance of the right being relinquished. Courts will be slow to infer a waiver, particularly where the individual who is said to have waived his or her section 8 rights is detained and is the target of a criminal investigation. The Crown bears the burden of demonstrating that any waiver relied on by the Crown is in all of the circumstances an effective and informed waiver of an individual’s section 8 rights. The validity of a waiver is a fact-bound inquiry. In order to be aware of the consequences of providing consent, the person must appreciate in a general way his or her status in the context of the investigation and if the person is a suspect he or she must understand in a general way the nature of the charge or potential charges which may be laid, and that information obtained pursuant to the consent may be used in a subsequent prosecution. Inaccurate information provided by the police that impacts on the person’s understanding of his or her potential jeopardy will also preclude a finding that the person was aware of the potential consequences of providing his or her consent.
[37] Misleading information as to the ability of the police to utilize alternative means to obtain the subject-matter of the consent request may preclude the finding of an informed consent: R. v. O’Connor, 170 C.C.C. (3d) 365 (Ont.C.A.). In O’Connor, where the police in obtaining the accused’s consent indicated that they had the option to obtain a search warrant, the court found that the accused was likely misled as to the consequences of not providing his consent and, therefore, did not give an “informed consent”. Once the police raised the matter of a search warrant application, it was incumbent upon them to fully and fairly apprise the accused of the correct situation, including the fact that they did not have sufficient grounds to obtain a warrant.
[38] The onus is on the Crown to establish an effective and informed waiver of an individual’s section 8 Charter rights on a balance of probabilities. In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. The Supreme Court of Canada has established that the standard for the waiver of constitutional rights is a demanding one that requires the Crown to establish clearly and unequivocally that the person waived the Charter protection with full knowledge of the rights protected by the Charter provision and of the effect that the waiver would have on those rights. This standard was first articulated in R. v. Clarkson, 25 C.C.C. (3d) 207 (S.C.C.).
[39] As support for the argument made on behalf of the applicant, the following submitted authorities are cited; R. v. Wills, R. v. Cole and R. v. White. More specifically, the rationale from Justice Moldaver (as he then was) in R. v. Bergauer-Free 2009 ONCA 610 is relied upon in principle. It is suggested that the “misinformation” and “colorably lawful coercion” of the police in this matter vitiated the consent of Clifford Lefebvre to search his home since, as a result of external conduct, his freedom to choose was negated and/or he was not truly informed. I disagree with these submissions for the applicant from my reasons as indicated.
[40] Wills condition (iii) requires that the applicant here knowingly give his consent as a conscious act of his free choice and without coercion. I have previously explained my determination that his daughter had been lawfully arrested and detained by the police at the time the applicant was being interviewed by the police. As well, I have found on this evidence that the applicant’s statements and his consent to search the residence was not a quid pro quo for either his own release from custody or for his daughter’s. I am satisfied there was no presentation of a quid pro quo by the police which negated the applicant’s free choice. The police conduct exhibited here toward the applicant, his daughter, his wife and their dogs did not cross the line to impermissible areas of coercion or oppression so as to render his consent involuntary; it was made clear to the applicant many times in the video recordings that he was free to withhold consent and also that it could be withdrawn or revoked at any time. There is no “colorably lawful coercion” here as in the easily distinguishable situation of R. v. Bergauer-Free. From the time of their arrest, the applicant was cooperating with the police in order to mitigate the predicament he had created for himself, his daughter, his wife and their dogs.
[41] I also fully appreciate that true cooperation and waiver by the applicant connotes a decision to allow the police to do something which they could not have otherwise done. This leads me to the issue of whether the drugs in the residence would have been located pursuant to a search warrant had the applicant and his wife not consented to the search of their residence. Of course, that issue ultimately also turns on the sufficiency of the information from the Crime Stoppers tips together with the product of the police surveillance and investigation, as well as the result of the search incident to the arrest of the applicant. I am completely satisfied that, based on the facts available to the police after the arrest of the applicant, a Justice of the Peace could have issued a search warrant based on the Information to Obtain that was in the process of being prepared by the police at the time of the applicant’s interview. Those facts available to the police upon being incorporated into the pending application for a search warrant were not only compelling but had been corroborated, and obviously disclosed a basis upon which a Justice of the Peace could have issued a search warrant for that residence.
[42] On balance of all these circumstances, I am persuaded that a search warrant would properly have been authorized and the drugs in the residence would have been discovered even absent consent to search. Therefore it cannot be said that the applicant was being misinformed or misled by the police in any material way when he was told that they were in the process of obtaining a search warrant in any event. This situation is distinguishable from that in O’Connor since the police here clearly had sufficient grounds to obtain a search warrant, even if they had not yet formally applied for it to a Justice of the Peace. As outlined earlier, in the context of explaining the consent to search options to the applicant, Officer McFarlane specifically told him that the police were “not saying we won’t apply for the warrant” if either his consent was refused or from a later withdrawal of his consent. The applicant was not being misled here with “misinformation”. On the strength of this evidence I have no doubt that, absent receiving the consent obtained from the applicant and his wife, the police would have obtained a search warrant for their residence and would have located those drugs.
[43] While I had only very slight difficulty with some police testimony, I find that all of the officers who testified were credible. Regarding the main live issues I found the evidence of Officer McFarlane to be the most reliable, particularly since much of it was captured on video; a commendable practice. It was of assistance in assessing the defence position, and rejecting that scenario as submitted. I therefore find that the Crown has met their onus in demonstrating that the applicant made a voluntary effective and informed waiver of his section 8 Charter rights, and that he consented to the search of his residence. Although not made an issue by the defence, I also find that his wife consented to the defined search of their residence by the police; at the rather obvious urging of the applicant from the predicament he had created.
[44] Since my factual finding is that the applicant and his wife consented to the search of their residence, I find that there has been no demonstrated violation of his rights under section 8 of the Charter. As indicated previously, there is also no demonstrated violation of his rights under either section 7 or 9. As a result, there is no need for me to engage in a section 24(2) analysis. However, if I am in error that there has been no violation of his Charter rights, I will further consider whether the evidence should be excluded under section 24(2) of the Charter.
[45] The factors in R. v. Collins, [1987] 1 S.C.R. 265, have been clarified by the majority decision in R. v. Grant, 2009 SCC 32 as follows:
“A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s.24(2) determination as enunciated in Collins and subsequent jurisprudence.”
[46] The seriousness of the state conduct here is the continued detention by the police of the applicant’s daughter while obtaining inculpatory statements from him as well as his consent to search their residence. As indicated in my findings, there is an absence of bad faith nor any proven deliberate misconduct by the police officers. There is no willful and egregious misconduct here from detaining his daughter while the police relatively promptly recorded the admissions by the applicant that all of the drugs were his own and that his daughter was not involved in his illegal drug trafficking activity. If there was a violation of the Charter in relation to this applicant, it was not on the serious side of the state misconduct spectrum.
[47] I agree that a warrantless search of a home is an inherently serious intrusion into an area in which citizens have a very high expectation of privacy. The impact of any violation of section 8 in such circumstances is therefore not insignificant, particularly if the police did unlawfully detain his daughter in custody until the applicant had effectively waived his section 8 Charter rights by consenting to a search of their residence. However I have determined that her detention was not unlawful and there was no such quid pro quo here. As well, this evidence was seized by the police during a search incident to a lawful arrest of them, and also pursuant to a defined consent search wherein the police searched only the particular locations detailed by the applicant and his wife inside their residence. As indicated previously, the drugs in the residence likely would have been discovered, in the absence of consent, through the search warrant process. On the balance, the impact of any Charter violation of the applicant’s rights is significantly softened.
[48] Finally, as to society’s interest in an adjudication on the merits, even without the drugs found at the residence and the inculpatory statements made by the applicant the prosecution would, in my view based upon the evidence tendered in pre-trial applications, still have a reasonable prospect of conviction with the remaining evidence on at least two counts of this Indictment. Adjudication on the merits would however be compromised. There is a confluence of highly reliable real evidence, no demonstrated bad faith by the police officers, an alleged violation of Charter rights that is not relatively serious and would only have soft impact in any event, and a high societal interest in adjudication on the merits. Given the totality of the circumstances here, I am of the view that excluding this evidence would bring the administration of justice into disrepute, and that admitting this evidence would not do so.
CONCLUSION
[49] As a result, even if it were to be determined that the continued detention of his daughter while the applicant made statements and consented to the search of their residence violated his own Charter rights, I would not exclude the evidence as requested.
[50] This application is accordingly dismissed, and all substances seized and statements obtained from the applicant shall be admitted into evidence.
Nadeau J.
Released: March 31, 2015