ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Newton & Molody, 2015 ONSC 1348

COURT FILE NO.: CR14-141

DATE: 2015302

BETWEEN:

Her Majesty the Queen

Ms. E. Barefoot, for the Federal Crown

• and -

Carol Newton

Steven Molody

Mr. D. Grace, for Carol Newton

Ms. J. Gamble, for Steven Molody

Defendants

HEARD: February 26 and 27, 2015

REASONS FOR DECISION – CHARTER APPLICATIONS

Conlan J.

I. Introduction

[1] This case presents a dangerous cocktail of drugs and a firearm.

[2] It also raises the interesting question of when firefighters are acting as agents of the police.

[3] Finally, there is a special twist concerning the issue of legal standing in the context of the Charter.

[4] Ms. Newton and Mr. Molody, each with separate counsel, are being tried before me, without a jury, in Owen Sound.

[5] The trial began with the hearing of Charter Applications filed by each accused. Evidence was called on a joint voir dire on February 26, 2015. For the Crown, I heard from two firefighters, Duncan Mackinnon and Adam Bell, and two police officers, Jim Burgess and Kenneth St. John. The Defence called no evidence on the voir dire. Submissions by counsel were heard at Court on February 27. I reserved my decision.

[6] The Charter Applications filed by the accused are similar. Each Application asserts that the accused’s right to be free from unreasonable search or seizure has been violated (section 8). Each Application asks that the evidence obtained as a result of the said infringement be excluded under subsection 24(2). Ms. Newton’s Application also asks for a stay of the charges, an extraordinary remedy indeed.

[7] The undisputed facts are that, on November 1, 2013, the police and firefighters responded to a report of a home invasion and house fire in the Township of Chatsworth, Grey County. Ms. Newton lived at the home in question and was on scene. Also present was Mr. Molody, Ms. Newton’s boyfriend. He was at least staying at the home.

[8] There is no question that both police and firefighters entered the home. There is no question that a firefighter discovered suspected marihuana in a freezer in the basement. He reported that finding to the police.

[9] The accused were arrested. The scene was secured. A warrant was obtained to search the premises. The police seized a large amount of marihuana on the property (according to Exhibit 1, 726 grams from the basement of the house, 31 grams from the kitchen, 25 pounds from the minivan and 10 grams from an outbuilding), some items that could be associated with trafficking (such as a scale and packaging materials) and weapons (according to Exhibit 1, a crossbow from the minivan, an insecure firearm from an outbuilding, a crossbow from an outbuilding and ammunition from an outbuilding).

[10] The precise factual matrix as to when, why and for what purpose the emergency personnel entered the home will be dealt with below, as those findings will largely govern the result as to whether there was a violation of section 8 of the Charter.

II. The Charges, Their Essential Elements and the Basic Legal Principles

Count 1 – Possession of Marihuana for the Purpose of Trafficking

[11] Carol Newton and Steven Molody are charged with possession of a controlled substance for the purpose of trafficking. The formal charge reads:

Carol Newton and Steven Edward Molody stand charged that, on or about the 1st day of November, 2013, in the Township of Chatsworth, in the Judicial Region of Central West, did possess a substance included in Schedule II to wit: cannabis marihuana for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

[12] For me to find Carol Newton and/or Steven Molody guilty of possession of cannabis marihuana for the purpose of trafficking, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Carol Newton and/or Steven Molody was/were in possession of a substance;

ii. that the substance was cannabis marihuana;

iii. that the accused knew that the substance was cannabis marihuana; and

iv. that the accused had possession of cannabis marihuana for the

purpose of trafficking in it.

[13] If Crown counsel has notsatisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused notguilty of possession of cannabis marihuana for the purpose of trafficking.

[14] Simple possession of cannabis marihuana would be a lesser and included offence that the accused could be found guilty of, assuming that the Crown had proven to the requisite standard the first three elements of the offence charged.

[15] If Crown counsel has satisfied me beyond a reasonable doubt of each of these four essential elements, I must find the accused guilty of possession of cannabis marihuana for the purpose of trafficking.

Count 2 – Improper Storage of a Firearm

[16] Carol Newton and Steven Molody are further charged with failing to properly store a non-restricted firearm. The formal charge reads:

AND FURTHER Carol Newton and Steven Edward Molody on or about the 1st day of November, 2013, at the Township of Chatsworth, in the Judicial Region of Central West, did store a non-restricted firearm, to wit: a Remington Game Master .306 calibre rifle without rendering it inoperable with a secure locking device or storing in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open, thereby contravening section 5(1)(b) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, contrary to section 86(2) of the Criminal Code.

[17] For me to find Carol Newton and/or Steven Molody guilty of this offence, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Carol Newton and/or Steven Molody stored a “firearm” as defined in section 2 of the Criminal Code;

ii. that the accused stored the firearm in an improper manner as described in the count; and

iii. that the accused had no lawful excuse for her/his storage of the firearm in that manner.

[18] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of improper or careless storage of a firearm.

[19] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused guilty of the offence.

Count 3 – Unlawful Possession of a Firearm

[20] Carol Newton and Steven Molody are further charged with unlawful possession of a firearm. The formal charge reads:

AND FURTHER that Carol Newton and Steven Edward Molody on or about the 1st day of November, 2013, at the Township of Chatsworth, in the Judicial Region of Central West, did possess a firearm, to wit a Remington Game Master .306 calibre rifle without being the holder of a licence under which s/he may possess it contrary to section 91(1) of the Criminal Code.

[21] For me to find Carol Newton and/or Steven Molody guilty of unlawful possession of a firearm, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that the alleged rifle is a “firearm” as defined in section 2 of the

Criminal Code;

ii. that the accused was/were in possession of the firearm; and

iii. that the accused was/were not holder(s) of a registration certificate

for the firearm in question.

[22] If Crown counsel has notsatisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused notguilty of unlawful possession of a firearm.

[23] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused guilty of unlawful possession of a firearm.

Presumption of Innocence

[24] Ms. Newton and Mr. Molody are presumed to be innocent of each and every charge that they are facing. They have no burden of proof with respect to the merits of the charges themselves. That rests entirely with the Crown.

[25] Regarding Charter Applications, the burden is on the accused, on a balance of probabilities, to establish a violation and to establish that the evidence ought to be excluded under subsection 24(2).

[26] There is a caveat, however, when it comes to a warrantless search. That is dealt with below in more detail.

III. The Issues to be Decided on the Voir Dire

[27] The preliminary issue is whether the accused have standing to raise the section 8 Charter argument.

[28] If so, then the next issue is whether the firefighters were acting as agents of the police.

[29] Regardless of whether the firefighters were acting as state agents, I must decide whether there was an unreasonable search inside the house, and thus, a violation of section 8 of the Charter.

[30] If so, then I must determine whether evidence obtained from the home in a manner that infringed section 8 ought to be excluded from the trial under subsection 24(2), and if so, what evidence.

[31] I must also decide whether there was an unreasonable search of the minivan on the property and/or the outbuilding on the property, and thus, a violation or violations of section 8 of the Charter.

[32] Finally, if so, then I must again address subsection 24(2).

IV. The Positions of the Parties on the Voir Dire

The Crown

[33] The Crown made no submissions on the standing issue. Nevertheless, I must be satisfied that the accused are in a legal position to challenge the searches under section 8 of the Charter.

[34] The Crown argues that the firefighters were not acting as agents for the police.

[35] The Crown’s position is that there were no unreasonable searches of any place or thing. In the alternative, if there was, all of the evidence obtained from the house, the minivan and the outbuilding ought to be admitted at trial.

Ms. Newton

[36] Ms. Newton argues that she has standing.

[37] Ms. Newton submits that the firefighters were acting as agents of the police.

[38] Ms. Newton argues that all of the searches were warrantless and unreasonable and in violation of her section 8 Charter right. She submits that all of the evidence obtained from the house, the minivan and the outbuilding ought to be excluded under subsection 24(2).

Mr. Molody

[39] Mr. Molody argues that he has standing.

[40] Mr. Molody submits that the firefighters were acting as agents of the police.

[41] Mr. Molody argues that there is no actual evidence that any of the searches was conducted under warrant; that all of the searches were unreasonable and in violation of his section 8 Charter right; and that all of the evidence obtained from the house, the minivan and the outbuilding ought to be excluded under subsection 24(2).

V. Analysis of the Charter Issues

The Law

[42] Everyone has the right to be secure against unreasonable search or seizure – section 8 of the Charter.

[43] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1.

[44] Warrantless searches are presumptively unreasonable under section 8 of the Charter – the onus shifts to the Crown to demonstrate that the search was not unreasonable. Hunter v. Southam Inc, [1984[ S.C.J. No. 36.

[45] Turning now to the issue of remedy where a violation of a Charter right is found, section 24(2) states that “[w]here, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

[46] There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute. Third and finally, an assessment of society’s interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[47] A claim for relief under subsection 24(2) of the Charter can only be made by the person whose Charter right(s) has/have been infringed. We refer to this concept as locus standi or, more commonly, standing. Like all Charter rights, section 8 protects persons, not places. It is a personal right. The right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy. That question is to be determined on the totality of the circumstances. R. v. Edwards, 1996 255 (SCC), [1996] S.C.J. No. 11.

[48] The onus is on the accused to establish standing. There must be a sound evidentiary basis to support a privacy interest as opposed to just a theory propounded by the Defence. The Law of Search & Seizure in Canada (Eighth Edition), Justice James Fontana and David Keeshan, chapter 19, part 6, page 929, citing R. v. Stein, [2010] B.C.J. No. 614 (C.A.).

[49] Whether a person’s actions are determined to be the conduct of a “state agent”, bringing those actions within the ambit of the Charter, depends very much upon the particular facts. It must be determined on a case by case basis. It is nearly impossible to make sweeping pronouncements on categories of persons who will always be considered to be state agents. For instance, a doctor at a hospital who directs that a blood sample be taken from an accused may be considered a state agent in one case but not in another, depending upon the specific facts including the purpose for which the blood sample is taken.

[50] The key questions are (i) whether the alleged state agent was acting as a delegate of the police and (ii) was the alleged state agent under the control of the police? The Law of Search & Seizure in Canada, supra, chapter 15, part 5, pages 688-691; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631.

[51] Beyond that, in my opinion, it is dangerous to rely much on other case law in deciding whether, on the facts before the Court in any given proceeding, the alleged state agent was indeed that.

[52] Even with the same class of emergency personnel, for example, firefighters, one decision may have little relevance to the ruling in another case. A firefighter who enters a burning home to save a child from a blaze, while police stay outside, and notices by chance a stockpile of illegal weapons, would very likely not be found to be a state agent for the purposes of a section 8 analysis. On the other hand, that same firefighter who enters the home at the instruction of the police, in a non-emergent situation, to search for suspected weapons, would very likely be considered a state agent.

Factual Findings and Legal Conclusions

Standing

[53] Both accused have met their onus to establish standing with regard to the house. I indicated that ruling at Court on February 27, with reasons to follow.

[54] Using the factors outlined at paragraph 45 of the decision of the Supreme Court of Canada in Edwards, supra, I observe the following.

[55] First, both accused were present inside the home when the first police officer arrived on scene. Mr. Molody was wearing what appeared to be sleeping attire. And they were both present on the property throughout the searches.

[56] Second, Constable St. John’s information was that Ms. Newton lived at the home and Mr. Molody was staying there.

[57] Third, Sergeant Burgess’ information was that Ms. Newton and Mr. Molody were the occupants of the home. That is why he instructed others to arrest them after the marihuana in the basement was discovered.

[58] Fourth, both accused appeared to have control of the home. They caused the front door to be opened for Constable St. John.

[59] Fifth and finally, Mr. Molody seemed familiar with the generator on the property used to power the home, and one of the motor vehicles on the property was registered to him.

[60] In all of the circumstances, looked at objectively, each accused had a reasonable expectation of privacy vis-à-vis the home.

[61] The same cannot be said for the minivan which contained the crossbow and 25 pounds of marihuana.

[62] There is nil evidence before me as to whether that minivan or its plates was/were registered to either accused.

[63] There is nil evidence before me that either accused was ever inside or near that minivan on November 1, 2013 or on any other date.

[64] There is nil evidence before me as to the proximity of that minivan to the house.

[65] Although in some cases it is possible that one could infer a reasonable expectation of privacy in a motor vehicle on behalf of someone who lives at or is staying at the nearby house, there is nil evidence before me as to how long either accused lived at or was staying at the home.

[66] Other than the simple fact that the minivan was on the same rural property, there is not a scintilla of evidence before me that either accused had any connection of any kind to the motor vehicle.

[67] Really, I know nothing about the minivan except what was allegedly found in it by Sergeant Burgess.

[68] A reasonable expectation of privacy in the home does not equal a reasonable expectation of privacy in the minivan. An evidentiary foundation was needed to establish that.

[69] Thus, neither accused has standing to raise a section 8 Charter argument with regard to the minivan.

[70] If I am wrong in that conclusion, I will briefly address, below, the Charter issues regarding the minivan.

[71] For very similar reasons as with the minivan, my conclusion is the same for the outbuilding from which the other weapons and the small amount of suspected marihuana were found. Neither accused has standing to raise a section 8 Charter argument with regard to the outbuilding.

[72] If I am wrong in that conclusion, I will briefly address, below, the Charter issues regarding the outbuilding.

[73] I will close by saying that no counsel specifically addressed the question of whether the accused may have standing with regard to the house but not the minivan and the outbuilding. With respect to counsel, who presented the case smartly on all sides, they should have. That was obviously a live issue, as counsel know that the expectation of privacy is in the place or thing searched or the item seized. It is place or thing or item-specific.

Firefighters as State Agents?

[74] I have no difficulty finding that firefighters Bell and Mackinnon were indeed acting as agents of the police when they entered the home for the second time.

[75] By then, the primary search had been concluded. There was no fire. No smoke. No heat. No hydrocarbons. No carbon monoxide. And no persons.

[76] There was no reason for the firefighters to enter the home again but for the direction from fire Chief Givens to do so.

[77] I accept the evidence of Constable St. John that it was him who specifically requested, through fire Chief Givens, that Bell and Mackinnon re-enter the house.

[78] Bell and Mackinnon were acting under the direction of the police. They were under the control of the police. They were acting, through Chief Givens, on the specific request of Constable St. John.

[79] St. John acknowledged in his evidence that the firefighters were assisting the police with the search of the home. Bell and Mackinnon were doing something requested by the police and for the purpose of aiding the police search of the house.

[80] As such, the actions of Bell and Mackinnon, once they entered the home for the second time, are subject to Charter scrutiny.

[81] The Crown argues that firefighter Bell was not acting as a state agent when he specifically opened the freezer in the basement of the house. Ms. Barefoot makes the analogy to the situation where the police enlist a citizen to traffic drugs at one location but, en route, the citizen stops somewhere else and traffics narcotics at that location, unbeknownst to the police and not at their direction.

[82] The problem is that is not the case before me. Given the evidence of Bell about the firefighters conducting a "small secondary search", which included looking for intruders, I am not persuaded that the scope of the agency when the firefighters entered the home for the second time was as clearly delineated and limited as in the analogy offered by the Crown.

House Search – sections 8 and 24(2) of the Charter

[83] I accept the evidence of Constable St. John that he asked the firefighters to re-enter the home to ventilate it (because the police officers could not search in the midst of the effects of the pepper spray that had been expelled).

[84] But I do not think that it was made clear to the firefighters that they were expected to do nothing else to assist the police.

[85] I accept the evidence of firefighter Bell that he and Mackinnon were also conducting a “small secondary search” for persons who could have been hiding inside the home (intruders).

[86] I am dumbfounded as to why Bell opened the freezer. We know from Exhibit 2 (the photograph) that there was a table and chair immediately below the window. Thus, it makes no common sense that the freezer could have been used to stand on to help Bell open the basement window. Besides, he could have reached the window on his own. Further, Bell eventually stated in cross-examination that looking for an intruder had nothing to do with him opening the freezer.

[87] There was no legitimate reason for Bell to open the freezer. It was not done for any rational purpose. It was not done with permission of Newton or Molody. It was not done under the authority of a warrant. It was not done in an emergent situation.

[88] I am not at all suggesting that Bell acted maliciously. He strikes me as a dutiful firefighter. I simply think that he made a mistake and acted carelessly and beyond the scope of his authority when he opened that freezer.

[89] The opening of the freezer was an unreasonable search and a violation of each accused person’s section 8 Charter right.

[90] After Bell advised Constable St. John of his discovery of the suspected marihuana in the freezer, the police officer also opened the freezer. Likewise, that was an unreasonable search.

[91] According to Exhibit 1, the discovery of the marihuana in the freezer led to other searches inside the home. For example, the kitchen freezer was searched and led to the seizure of more suspected marihuana. But for the discovery of the marihuana in the basement, none of the other items on Exhibit 1 from inside the home would have been found.

[92] The prosecution argues that the home was searched under the authority of a warrant. There is no evidence of that, whether through testimony, Exhibit(s) or a statement of agreed facts, written or verbal. Ms. Gamble made some remarks in closing submissions to the effect that a warrant was obtained at some point, however, the concession was rather vague and, in the circumstances, not capable of supporting evidence by way of agreed facts.

[93] As a whole, commencing with the opening of the freezer by Bell, the search of the interior of the home was unreasonable and a violation of each accused person’s section 8 Charter right.

[94] Turning to subsection 24(2), the violations here are serious. There is no bad faith, however, we have a protracted searching and seizing of items from a home, where there is a high expectation of privacy, without a warrant. Admission of the evidence would indeed send the wrong message to society that I condone such conduct. The first factor favours exclusion of the evidence.

[95] As for the impact on the Charter-protected interests of the accused, that factor also favours exclusion of the evidence. The accused had their home rummaged through by firefighters and police. The accused were arrested on the basis of the unlawfully obtained evidence in the basement. Admission of the evidence would indeed engender public cynicism and bring the administration of justice into disrepute.

[96] Third and finally, the evidence obtained from the home is reliable and crucial to the case for the Crown. And the charges against the accused are serious. The final factor favours admission of the evidence. The truth-seeking function of the criminal trial process would be better served by admission of the evidence.

[97] On balance, the evidence obtained from the home must be excluded. To do otherwise would bring the administration of justice in to disrepute. Even the Crown candidly acknowledged in closing submissions that, if I found the facts to be as outlined above, the section 8 Charter violations regarding the search of the home would be considered nothing short of “egregious”.

[98] If the warrantless search of the interior of the home had ended with the discovery of the marihuana in the basement freezer by Bell, the result may well have been different. The evidence may well have been admitted under subsection 24(2).

Minivan and Outbuilding Searches – sections 8 and 24(2) of the Charter

[99] If I am wrong that neither accused has standing to complain about the searches of the van and the outbuilding, and if I found that those searches were unreasonable, I would not have excluded the evidence in any event.

[100] First, the violations could not possibly be considered serious. Regarding the minivan, the police looked through the windows with their flashlights and opened the door. A crossbow and marihuana, all in plain view, were seized. There is no connection between the minivan and the accused. Regarding the outbuilding, which also has no connection to the accused, the police entered and removed some weapons and a small amount of marihuana.

[101] Second, the impact on the rights of the accused was minimal. Neither was arrested because of anything found in the minivan or the outbuilding.

[102] Third, it is serious business to have a crossbow, unprotected and in plain view, in a minivan and an insecure gun with ammunition in an outbuilding. Society would demand that the charges be tried on their merits.

[103] All three factors favour admission of the evidence obtained from the minivan and the outbuilding.

[104] Counsel for the accused argue that all evidence obtained from the minivan and the outbuilding ought to be excluded on the basis of having arisen from the unreasonable searches inside the home.

[105] I disagree. There is a break in location and time between the searches of the home and those of the minivan and the outbuilding. In addition, there is no causal connection. I accept the evidence of Sergeant Burgess that he walked towards the outbuilding and searched the minivan en route in order to look for intruders. That makes sense given the home invasion investigation. It is quite possible that the culprit(s) could have been hiding in the motor vehicle or the outbuilding. In other words, I am satisfied that the police would likely have searched the minivan and the outbuilding regardless of the unreasonable searches of the home and the discovery of the marihuana therein.

VI. Decision on the Pretrial Applications

[106] For all of the foregoing reasons, the Charter Applications by the accused are allowed in part.

[107] The searches of the home were unreasonable and in violation of the section 8 Charter right of each accused.

[108] All evidence obtained from the home is excluded from the trial under subsection 24(2) of the Charter, as against both accused.

[109] The accused have no standing to challenge the searches of the minivan and the outbuilding. All evidence obtained from those searches is admissible at trial, as against both accused.

[110] When the trial resumes on March 9, 2015, I will hear submissions from counsel on what evidence, if any, heard during the voir dire will be applied to the trial proper.

[111] I thank counsel for their able assistance.

Conlan J.

Released: March 2, 2015

CITATION: R. v. Newton and Molody, 2015 ONSC 1348

COURT FILE NO.: CR14-141

DATE: 20150302

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

• and -

Carol Newton

Steven Molody

Defendants

REASONS FOR DECISION – CHARTER APPLICATIONS

Conlan J.

Released: March 2, 2015