CITATION: R. v. Corbière, 2016 ONSC 6819
COURT FILE NO.: CR-16-0004
DATE: 20161101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Kimel Corbière
Respondent
S. Haner, for the Crown
M. Haraschuk and M. Venturi, for the Respondent
HEARD: September 22 and 26, 2016
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 517(1) and subsection 539(1) of the Criminal Code, these reasons shall not be published in any document, or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial.
DECISION ON section 8 application
wilcox, J.
[1] Kimel Corbière is charged that he, between the 11^th^ day of May, 2014 and the 13^th^ of June, 2014, at the village of M’Chigeeng First Nation, unlawfully did commit second degree murder on the person of John Cecil Panamick. Trial by jury is scheduled to begin in November, 2016. Panamick is alleged to have been beaten on the May 11 and to have died of his injuries on June 13^th^, 2014.
[2] The defence has brought two applications under section 8 of the Canadian Charter of Rights and Freedom to exclude evidence.
[3] One relates to the seizure of the accused’s pants and shoes and was extended to also deal with photographs taken of the accused. The other relates to the subsequent seizure of his sweater. There were two applications because of the different circumstances of the seizures.
[4] The Crown takes the position that the seizures were lawful and that the evidence derived therefrom should not be excluded.
FACTS
[5] The evidence consisted of the filings, including police officers notes, preliminary inquiry transcripts, the accused’s statement transcript of May 13, 2014 and the oral evidence of Sergeant Brad Mack, Detective Constable Ed Simon and Constable Paul Shawanda.
[6] As previously noted, John Panamic was found with injuries, apparently from an assault, on May 11, 2014. At about 7:35 a.m. on May 13, 2014, the accused attended voluntary U.C.C.M. Anishnababe Police Station at M’Chigeeng. He had heard that police were looking to talk with him about Panamick. He also knew that there was a warrant for his arrest on an unrelated matter. The officer that he spoke to initially, Sergeant Mack, was not familiar with this situation, but determined from the NICHE system that the accused was a person of interest in the Panamick investigation, and confirmed from CPIC that he was wanted by the Ontario Provincial Police on a bench warrant. The accused was not arrested at that time, but was allowed to wait in the unlocked main lobby for other police officers to arrive. However, he appeared to the officer to know that he would be going into custody and wanted to speak to a lawyer, Mr. Beckett, who the officer recognised as a criminal defence counsel. He was advised that, if he was arrested, the lawyer would be called. The accused’s presence at the station was communicated to other officers who were involved in the Panamick investigation.
[7] Subsequently, D/Cst. Ed Simon conducted a videotaped interview of the accused, commencing at 8:51 a.m. and lasting about 83 minutes. Cst. Paul Shawanda acted as the scribe, sitting outside the interview room, listening and taking notes.
[8] D/Cst. Simon testified that, at the outset of the statement, the accused was a person of interest. That is, he would have information regarding what took place, but there was no information that he had done anything wrong.
[9] Before beginning to take the statement, D/Cst. Simon identified himself and informed the accused that the interview would be videotaped, confirmed that the accused was there voluntarily and was not under arrest with respect to Panamick, but would be arrested on the outstanding warrant afterwards, read his rights to counsel, cautioned him that he might be charged with aggravated assault depending on what he said, and confirmed his right to silence. The accused said that he had already spoken to his lawyer and would be meeting him at the court house that day.
[10] The statement proceeded. Afterwards, D/Cst. Simon did not feel that he had grounds to arrest the accused.
[11] During the interview, the accused said that he was wearing the same pants and shoes that he had worn at John Panamick’s home on May 11, and that the sweater that he had worn that day was probably at his house in Mindamoya.
[12] After the interview concluded, D/Cst. Simon proceeded to arrest the accused on the outstanding warrant. The accused was searched, his shoes were removed, and he was put into a cell at 10:15 a.m.
[13] Regarding the accused shoes, D/Cst. Simon testified that they were removed here because an unwritten police protocol does not allow them and some other items in the holding cells. Such items, he said, would go into a bin and are given back when the prisoners leave, such as to go to bail court. In cross-examination, it was noted that this was the first mention of such a protocol in this matter, despite previous opportunity to mention it. The defence suggested that this suspicious and questioned the existence of the protocol. However, this point is not central to my decision.
[14] At 10:30 a.m., the accused was taken back to the interview room where he was photographed, although not by D/Cst. Simon. This was for the purpose of comparing the accused’s appearance with that of Carole Migwans, who is also involved in the investigation. The accused was returned to the holding cell at 10:45 a.m. At 10:46, D/Cst. Simon seized the accused’s shoes from the interview room. The accused’s consent to this was never requested or given. The shoes were sealed in an evidence bag and put in a vault. At that point, D/Cst. Simon said, they were evidence in the Panamick investigation and he did not want to lose evidence. He never considered getting a warrant for the shoes, but said both it was impractical and that he did not have the grounds to do so.
[15] With respect to the accused’s pants and shirt, D/Cst. Simon said he did not seize, store or preserve them, had no conversation with Cst. Shawanda about that, and no role in it.
[16] Cst. Shawanda testified, confirming that he had no contact with the accused prior to acting as the scribe for his interview. He saw D/Cst. Simon arrest the accused after the interview on the outstanding warrant, and Shawanda had then called the OPP. He was present when the pictures were taken, but was not sure who did it, and thought that D/Cst. Simon had. He had no note of doing it, which he would have expected to have if he had taken the pictures himself, but did not know if he could assume therefore that he did not take them. He had no recall of a discussion about it with D/Cst. Simon, but thought they were taken because of some mention of a person of similar appearance. He recalled being present when the accused’s shoes and pants were seized, but not seizing any items himself, and that D/Cst. Simon had logged them away. He had no note of seizing or storing them himself. He recalls that the items were seized because of the Panamick investigation because there may have been evidence on them, and that there was no other reason to seize them. Only he and D/Cst. Simon were present with the accused. He had called the accused’s mother to bring clothes for him. The OPP had taken the accused away.
[17] With respect to the sweater, D/Cst. Simon testified that he wanted it because the accused had said that he had worn it in John Panamick’s residence and, therefore, there was a possibility there could be evidence on it. He felt it was essential that the police seize it. The accused’s mother, Ruby Corbière, had given a statement on May 14, 2014 indicating that she thought it was in her house. D/Cst. Simon, D/Cst. Mack, the lead investigator, and Cst. Paul Shawanda had discussed how to get the sweater and decided that consent forms would be used. D/Cst. Simon drove Ruby Corbière to her residence. Outside, he began to explain the consent form to her, but only got part way into it. She said that the police were not going into the residence, but that she would get the sweater. She entered and emerged after one or two minutes with a sweater and gave it to D/Cst Simon. He sealed it in an evidence bag and put it into the vault at the detachment.
[18] He testified that he thought that exigent circumstances justified the seizure, not consent. If Ruby Corbière had asked for the sweater back, he would not have returned it to her. However, if she had refused to hand it over, he would not have gone in to her house to seize it without a warrant. He did not get a warrant to either seize or keep the sweater, feeling he lacked the grounds to do so.
[19] D/Cst. Simon said that he had nothing more to do with the shoes, pants and sweater once they were collected, but thought that “Ident” had sent them to the Center for Forensic Sciences.
[20] The forensic examination of the pants, shoes and sweater revealed the presence of John Panmick’s blood as well as paint chips that were not excluded from the broom found at the scene.
CHARTER SECTION 8
[21] Section 8 of the Charter of Rights and Freedoms states that “(e)veryone has the right to be secure against unreasonable search and seizure”.
[22] The Crown took the position that the accused had no reasonable expectation of privacy in his pants and shoes and, consequently, there was no section 8 breach.
[23] The subject of reasonable expectation of privacy was dealt with by the Supreme Court of Canada in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, a headnote from which provides a concise summary:
Several principles pertain to the s. 8 right to be secure against unreasonable search or seizure. A claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed. Like all Charter rights, s. 8 is a personal right. It protects people and not places. The right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.
[24] In applying this totality of this circumstances test, “the questions need to be tailored to the circumstances of the present case”. (R. v. Tessling, 2004 SCC 67, [2004] S.C.J. No. 63) It follows that the cases dealing with the reasonable expectation of privacy are fact specific. The Crown in its argument referred to various cases, but I found them to be distinguishable on their facts. General propositions must be used with care. The Crown sited paragraph 40 in R. v. Tessling which states, “It is true that a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public, or abandons in a public place…”. However, a review of the cases cited for that general proposition reveals that the circumstances in them bear little resemblance to those in the present one. So, it is difficult in practice to apply that proposition to it.
[25] It should be kept in mind that the cases “distinguish among a number of privacy interests protected by section 8. These include personal privacy, territorial privacy and informational privacy”, (R. v. Tessling, par. 20), with “privacy of the person perhaps (having) the strongest claim to constitutional shelter…”, (R v. Tessling, par. 21). In the present case, I find that any privacy interest of the accused in his clothes would fall most closely to personal privacy and, so, attract a relatively high degree of protection.
[26] In the present case, the items in question, the accused pants and shoes, were literally and figuratively the clothes off the accused back. Although he was at a police station to give a statement in the Panamick investigation, he was not under arrest in that case. But for his being arrested on an outstanding warrant on an unrelated matter, he would have been free to leave, as would any member of the public, taking his clothes with him.
[27] I do not think that the removal of the accused’s shoes changes this. The evidence was that they were removed in accordance with a police protocol that does not allow prisoners to have certain items in the cells, for safety reasons. Assuming this protocol existed, as I understand it, such items of property taken from prisoners would be kept for them and returned to them when they left the premises. It was understood that the accused would be going to court that day following his arrest on the outstanding warrant on an unrelated matter. There was no suggestion that he would be leaving without his own clothing. To the contrary, Cst. Shawanda telephoned the accused’s mother to bring clothing for him. If the shoes had not been seized, the accused would have left with them when taken to court. So, I draw no distinction between the situations of the pants and of the shoes.
[28] The Crown submitted case law to support the proposition that the accused would have no reasonable expectation of privacy in clothes that he wore in public. Those cases, I find, deal with the observations made of an accused’s clothing worn in public, finding them to be admissible. I find that they are distinguishable from the present case which does not involve simply observing the clothes, but seizing them for forensic testing.
[29] In R. v. Reddy, 2010 BCCA 11, [2010] B.C.J. No. 49, at paragraph 85, the court found that, “(a)bsent other evidence, an expectation of privacy can be assumed with respect to the contents of an item of clothing a person is wearing”. I do not see how, then, one could not assume an expectation of privacy in the clothes themselves.
[30] There is no evidence as to whether the accused had a subjective expectation of privacy. However, I find that to be only a minor consideration. “The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection section 8 to the values of a free and democratic society. …Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed”. (R. v. Tessling, par. 42).
[31] Objectively, it is reasonable to expect that once privacy rights extends to one’s clothing such that it will not be taken off of one’s person by the authorities without lawful reason.
[32] In summary, then, in the totality of the circumstances, I find that the accused had a reasonable expectation of privacy in his pants and shoes that triggered his section 8 rights against unreasonable search and seizure.
[33] As it is not clear from the evidence which officer seized the accused’s pants, I have proceeded through this analysis of the accused reasonable expectation of privacy on the basis that one of the officers did. The issue of who did the seizure becomes relevant at the later stage.
[34] The Crown also submitted that the accused had no reasonable expectation of privacy in the photographs taken of him, given that he was voluntarily at the police station to be arrested and processed on a warrant, allowing the police to see him. Defense counsel did not address this point in a substantive way, noting instead that the evidence does not reveal who took the photographs.
[35] In the circumstances, I find that the accused had no reasonable expectation of privacy with respect to the taking of the photographs of him by the police. This is consistent with the cases which indicate that there is no reasonable expectation of privacy against observing what a person exposes to view in public (e.g. R. v. Tessling, par. 40; R. v. Abbey, pages 78 – 84). Who exactly, took the photographs, assuming, as is the evidence, that they were taken at the police station, is a separate issue which does not impact this analysis. For the purposes of the section 8 application, I have assumed that the photographs were taken by the police.
[36] Returning to the accused’s pants and shoes, although the issue was identified in the Crown’s materials, it was not argued that the accused had consented to the taking of his clothes by police, in which case there would not have been a seizure. I find no such consent.
[37] With respect to the accused’s pants, neither officer involved claimed to have seized them. Therefore, there is no explanation of a reason for the seizure.
[38] Regarding the accused’s shoes, D/Cst. Simon seized them because he did not want to lose evidence. He did not consider a warrant. It would have been impractical, he said, without explanation. In this regard, I note that it was understood that there would be a Justice of the Peace in the nearby Gore Bay Courthouse that day. So, it is not obvious that it would have been impractical. There is no dispute of the fact that the police did not obtain warrants for the seizure of anything of the accused. In hindsight, D/Cst. Simon allowed that he did not have enough to get a warrant.
[39] The framework for scrutinizing warrantless searches for Charter compliance was summarized by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 36:
[Warrantless] searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32.
[40] The Crown submitted that the seizure could be justified by exigent circumstances. The Collins test requirement for lawful justification may be satisfied by exigent circumstances. These may be used to justify warrantless searches in order to preserve evidence where there is an imminent danger that it would be lost if the seizure is delayed (R. v. Silveria, 1995 CanLII 89 (SCC), [1995] 2 S.C.R 297 Paras. 53 and 114); they may be resorted to where grounds exist to obtain a warrant, but time does not permit it. (R. v. Silveria, [1995] paras. 53 and 114; R. v. Kelsey, 2011 ONCA 605, [2011] O.J. No. 4159, paras 25-29). “The police cannot claim exigent circumstances based on only a possibility that there might be evidence on the item seized that might be destroyed. There must be some foundation for the belief in urgency or necessity”. (R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R 13, par. 52; R. v. Pickton, 2006 BCSC 1098, [2006] B.C.J. No. 3670). “The existence exigent circumstances involves both the subjective belief of the officer and an objective basis for that belief (R. v. Pickton, par 71).
[41] I find that the existence of exigent circumstances is not made out with respect to the accused’s shoes. At the time they were seized, he was not a suspect in the Panamick investigation, but was one of a number of people who had been in the Panamick residence on the relevant date. There was no evidence that the shoes of the others were seized. This undermines the notion that, if there was a possibility that the shoes could hold evidence, the concern that it could be lost if the shoes were not seized justified the warrantless seizure. The police did not turn their minds to obtaining a warrant but, in hindsight, did not think they had grounds for one. Therefore, exigent circumstances cannot be relied on to justify the seizure of the shoes. The same could be said about the accused’s pants, if either officer could recall seizing them. If the police had turned their minds to it and thought they had grounds for a warrant, they might have seized the items and simply held them to preserve any evidence on them until they could obtain a warrant (R. v. Kelsey, 2011 ONCA 605, [2011] O.J. No. 4159, paras. 36 and 37).
[42] I find that the seizure if the shoes was not authorized by law, and fails the Collins test, thereby breaching the accused rights under the section 8 of the Charter.
SECTION 24(2) ANALYSIS
[43] Having found that the accused’s section 8 rights to protection from an unreasonable seizure were violated, the next issue is whether the evidence should be excluded under section 24(2) of the Charter which reads:
(2) Where … 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.
[44] This involves the familiar analysis set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 in para. 71:
[71] 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 a 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.
[45] Dealing with the seriousness of the Charter-infringing state conduct, there is no evidence of any pattern of abuse by the police. In this instance, D/Cst. Simon did not want to lose any evidence. That concern is understandable, as the police were in the early stages of investigating what was then a serious assault. If the items left the police station, any evidence on them might be lost. So, there were extenuating circumstances even if they fell short of exigent circumstances. On the other hand, it is of concern that the police did not turn their minds to possibility of seeking a warrant, or to the accused’s Charter rights regarding search and seizure. The Supreme Court of Canada has stated that “(i)gnorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith” (R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 para. 75). On balance, I do not see this as a case involving a flagrant disregard for the accused’s section 8 rights.
[46] Turning to the impact of the breach of the accused’s Charter protected interest, although the accused had an expectation of privacy in his pants and shoes, I find that it was reduced in the circumstances. He had voluntarily attended at the police station to give a statement about his involvement in the events at John Panamick’s on May 11, 2014, while allegedly wearing the same clothes that he had worn on that day. It would be reasonable to expect that the police would have some interest in that clothing. The accused appears to have been treated with respect and some kindness throughout his contact with police and afforded a substantial degree of privacy. The police then arranged to obtain for him for replacement items of his own clothing. Any affront to his human dignity was minimal in the circumstances.
[47] As for society’s interest in the adjudication of the case on its merits, this is a serious case and society’s interest will certainly be served by having the perpetrator brought to justice. This result is promoted by the availability of reliable evidence. Here, the evidence derived from the items seized is found in the reports of the scientific testing done on them by the Center for Forensic Sciences, which could be expected to be highly reliable.
[48] On balance, I find that the circumstances favor the admission into evidence of the accused’s shoes.
[49] The treatment of the accused’s pants presents a problem and deserve some comment. They appear to have been seized by D/Cst. Simon and or Cst. Shawanda, as they were the only officers present and Cst. Shawanda has some recollection of their being seized, although neither officer recalls seizing them himself. They were received, tested and reported on by the Center for Forensic Sciences. So, there is a lack of evidence regarding the thought process behind their seizure, although the strong inference is that it was the same as for the shoes. If that were so, I would not distinguish the pants from the shoes for the purposes of section 24(2) Grant analysis. In the circumstances as they are known, however, I will not admit the evidence derived from the pants.
[50] I will next deal with the seizure of the accused sweater.
[51] Again, this was warrantless.
[52] The first issue is whether the accused had a reasonable expectation of privacy which would trigger his section 8 rights. The accused was living with his mother, Ruby Corbière, in her home in Mindemoya. In her statement of May 14, 2014, she indicated that she got the sweater from “his room” in her house. The Crown filed the case of R v. Robert, [2012] O.J. No. 2419 (Ont. SCJ) to support the proposition that the accused would not have a reasonable expectation of privacy. That case also dealt with a dwelling in which the accused lived with his mother, and a search thereof. Significantly, the trial Judge found on the facts of the case that, far from having exclusive possession of the area of the house that he occupied, he was barely a joint occupant of it. In the present case, although the point was not explored, one inference from Ruby Corbière’s expression “his room” is that it was the accused’s exclusively. If that were not so, and he did not have exclusive use of it, I might agree, depending on the facts, that he had no reasonable expectation of privacy, following R. v. Robert and, so, his section 8 rights would not be triggered.
[53] However, in R. v. Sandha, [2005] O.J. No. 5914, at para. 81, (Ont. SCJ), the court stated “(t)he fact that another person, such as the parents of a suspect, have a right of access to an area in a building, such as the suspect’s bedroom, or even absolute and unfettered ownership of it, does not necessarily reduce the suspect’s reasonable expectation of privacy in the area”.
[54] Proceeding on the basis that the sweater was taken from his room of which he had the use or possession, whether exclusive or not, such that it was “his room”, and given to the police, I find that an R. v. Edwards analysis points to the accused having a reasonable expectation of privacy, and I so conclude. So, his section 8 rights were invoked.
[55] The Collins test was set out above in dealing with the accused’s pants and shoes.
[56] The police, specifically D/Cst. Simon, did not believe there were grounds for a warrant. So, exigent circumstances cannot be relied upon to justify the seizure of the sweater.
[57] As for the suggestion that Ruby Corbière could and did provide consent to the taking of the sweater, the Supreme Court of Canada in (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, paras. 77-79) rejected the “contention that a third party could validly consent to a search or otherwise waive a constitutional protection on behalf of another”.
[58] It follows that I find the seizure of the sweater breached the accused’s section 8 rights.
[59] Turning to the section 24(2) Grant analysis, much of what was said about the seizure of the accused’s shoes applies here, also. The difference in this instance is that the police would be concerned about the potential loss of evidence on an item that was located elsewhere, compared to the pants and shoes that were at the police station. In addition, on this occasion, they turned their minds to how to go about obtaining the sweater legitimately, and acted accordingly. Again, on balance, I do not see this as a case of flagrant disregard for the accused section 8 rights.
[60] On the second branch, arguably the accused had a reduced expectation of privacy, even if he had exclusive use of a room in his mother’s home. It was, indeed, her house and he had lived with her only a short time. Despite his adult age, she still exercised a substantial degree of control over him and largely supported him. He had told police in giving his statement that the sweater that he was wearing at Jonh Panamick’s was at his mother’s house. Again, it would reasonable for him to expect that they would be interested in it as part of their investigation. The sweater was not removed from his person, so his personal dignity and privacy were not infringed in that respect.
[61] Again, the third branch favors admission.
[62] The balancing of the three favours the admission of the evidence of the accused’s sweater.
[63] The applications to exclude the evidence of the accused shoes, photographs and sweater are therefore dismissed. As said earlier, the application to exclude the evidence of the accused’s pants is granted.
Justice J. A. S. Wilcox
Released: November 1^st^, 2016
CITATION: R. v. Corbière, 2016 ONSC 6819
COURT FILE NO.: CR-16-0004
DATE: 20161101
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Kimel Corbière
Respondent
DECISION ON section 8 application
Justice J. Wilcox
Released: November 1^st^, 2016