Her Majesty The Queen v. Donate Richards and Brittney Zagrodnik, 2018 ONSC 4921

Court File and Parties

COURT FILE NO.: CRIM JURY (F) 732/17 DATE: 2018 08 16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Counsel: N. Cooper, for the Crown

• and -

DONATE RICHARDS and BRITTNEY ZAGRODNIK Counsel: R. O’Brien, for Richards and G. Gross-Stein for Zagrodnik

HEARD: April 8, 9, 2018

REASONS FOR JUDGMENT Justice Thomas A. Bielby

INTRODUCTION

[1] On January 28, 2017, the two accused were arrested when allegedly found in possession of heroin and cocaine. They are charged with two counts of possession of a controlled substance (cocaine) for the purpose of trafficking and one count of possession of a controlled substance (heroin).

[2] The Crown has before the court an application for a ruling that the statement made by Ms. Zagrodnik was made voluntarily.

[3] Both of the accused have before the court applications pursuant to sections 8, 9, and 10(b) of the Charter of Rights and Freedoms and seek an order excluding from evidence the statement given to the police by Ms. Zagrodnik and the drugs that were seized.

[4] The applications proceeded by way of a blended voir dire with three witnesses, being two Peel Police officers and Ms. Zagrodnik.

FACTS

[5] On the evening of January 28, 2017, Constable Sluman, who became a police officer in 2015, was on uniformed patrol in an area of Mississauga in which is located a Motel 6. He testified that the motel was in a high crime area and while on patrol, he often drove through the parking lot of the motel.

[6] On the 28th he observed in the parking lot a grey Nissan Altima. He “ran” the plate and it was determined that if was connected to a domestic assault report from four days earlier. Ms. Zagrodnik, who was born on February 6, 1996, was said to be the victim of the assault. The officer wanted to pursue the investigation and radioed for assistance.

[7] Shortly thereafter he was joined by Officer J. Hilts, an officer of less experience.

[8] Using Ms. Zagrodnik’s name, the officers obtained information from the desk clerk that she was occupying room 329.

[9] The officers approached the room and Officer Sluman testified that before knocking he likes to listen at the door to see if anyone is inside. After doing so he knocked on the door but there was no immediate answer although he could hear people moving around.

[10] Because no one answered the door the officer testified that he probably called out Ms. Zagrondik’s name and asked her to open the door.

[11] Officer Sluman conceded that it probably sounded to Ms. Zagrodnik as a demand.

[12] Eventually Ms. Zagrodnik answered the door but did not open it fully. She was observed to have a bruise around her eye and a cast on her left arm. She was wearing very short shorts and a top. Officer Sluman told her that they were there to investigate an assault which was reported to the police by a third party. The officer asked her if they could come in to discuss the matter in private.

[13] Officer Sluman testified that at this point neither officer crossed the door threshold. He said that Ms. Zagrodnik appeared to be, “ok” with the request but asked if she could put on pants and closed the door.

[14] After a couple of minutes Ms. Zagrodnik fully reopened the room door and Officer Sluman testified that he could not remember if she said anything at this time but that she perhaps made a hand gesture indicating the officers could come in.

[15] Regardless, Officer Sluman believed that Ms. Zagrodnik had consented to their entry into the room.

[16] Once in the room Ms. Zagrodnik was asked if anyone else was in the room and she said that her boyfriend, at the time, the co-accused, was in the bathroom. Officer Sluman asked him to come out and sit down.

[17] Officer Sluman then started asking Ms. Zagrodnik questions about what occurred four days earlier. The officer was concerned with the presence of the co-accused who he thought might have been involved in the assault.

[18] Ms. Zagrodnik appeared relaxed and advised the police that she was alright and was not in any danger. She did not really want to talk about the assault and said that she could not recall how she got the bruise around her eye.

[19] She said she injured her arm carrying bags.

[20] Officer Sluman testified that he asked Officer Hilts to confirm the identities of the two accused and then looked around the room and observed on the night table a bag of white substance, which appeared to be a chip off of a brick of cocaine.

[21] On closer examination he located other bags of drugs, including crack cocaine and heroin all of which, including the cocaine chip, were in plain sight on top of the table.

[22] The two accused were arrested for the possession of controlled substances and were searched.

[23] Officer Sluman then started searching the entire motel room including drawers, under the mattress and in the bathroom. Apart from a bag of marijuana discovered under Mr. Richards track suit, no other drugs were located. No weapons were located.

[24] The officer testified that he believed, given the small size of the room, that the search was incidental to arrest and he did not require a warrant to search.

[25] However, Officer Sluman testified that after talking to senior officers later, that perhaps a warrant ought to have been obtained.

[26] While Officer Sluman searched the room, Officer Hilts advised both accused of their rights and provided them with the standard caution.

[27] After he completed the search, Officer Sluman asked both accused whose drugs were they, to which Ms. Zagrodnik replied, they were hers.

[28] Officer Sluman conceded that he probably should not have asked the question but that at the time, he was trying to figure things out.

[29] The officers called for further police assistance and two more policemen attended at the scene. The two accused were transported to the police station.

[30] At the station Ms. Zagrodnik, who had spoken to a lawyer, was the subject of a video recorded interview conducted by Officer Sluman. In that interview (Exhibit 2) she was reluctant to say anything on the advice of counsel. She did not want to talk about the assault, saying only that she was safe but did confirm her earlier statement that the drugs were hers, further confirming the type and the amount.

[31] She said the drugs were not for sale but were for her personal use.

[32] Ms. Zagrodnik did say that she appreciated the officer’s concern for her in regards to the alleged assault.

[33] As part of the interview, Officer Sluman gave her a KGB caution (as opposed to the caution to be given to persons arrested) with respect to the consequences of lying or obstructing police.

[34] After watching the interview it is clear that Ms. Zagrodnik was not promised anything or threatened. She talked freely while expressing what she was prepared to talk about. Cleary she had an operating mind.

[35] On cross-examination Officer Sluman could not recall exactly what he asked Ms. Zagrodnik when she first opened the door to room 329. He does remember her saying she wanted to put some pants on first.

[36] As a result of that comment the officer believed they had Ms. Zagrodnik’s implied consent to enter the room, although he also believed she may have said something more or gestured them to come in.

[37] At the discovery Officer Sluman testified that Ms. Zagrodnik identified herself as Brittany and said she wanted to put some pants on before they came in. The officer testified that this wording was more accurate.

[38] At another point in the discovery the officer said we asked to come in and Ms. Zagrodnik said yes after I put some pants on. She then reopened the door, another reason why the officer believed they had her consent to enter the room.

[39] When Ms. Zagrodnik opened the door Officer Sluman testified that she did not say anything. He agreed there was nothing in his notes about a gesture to come in.

[40] The officer conceded that he could not recall what happened when she reopened the door. He could not recall if he again asked permission to enter the room.

[41] Officer Sluman testified that he was concerned for Ms. Zagrodnik’s safety, not knowing who else was in the room. He testified that they were trying to talk to someone who they believed was a victim and did not expect to see or find anything else.

[42] Officer Sluman testified that it is his usual practice, when at someone’s door seeking permission to enter, to advise them they are not required to allow the police entry. He could not recall if he did so on this occasion and did not have a notation that he did so.

[43] When it was suggested to him that he and his partner did not receive consent to enter the motel room, Officer Sluman testified that he did not agree, testifying consent was clear when Ms. Zagrodnik reopened the door.

[44] In regards to the search, after observing the drugs in plain sight, the officer conceded that it would have been better practice to secure the room and obtain a warrant to search. He further conceded that, knowing the right to speak to counsel and the “hold-off” principle when someone asks to speak to counsel, he likely should not have asked the question when in the motel room, that is, whose drugs are these?

[45] When the video recorded interview was conducted Officer Sluman knew that Ms. Zagrodnik had talked to a lawyer after which he asked her questions about the assault and the drugs.

[46] Officer Josalyn Hilts testified as to going to the scene to assist Officer Sluman.

[47] When they approached room 329 she testified that they hoped they would find the victim of a possible assault.

[48] She testified that they knocked on the door several times and could hear movement in the room. Officer Sluman called out to the female to come to the door, saying, “Brittany come to the door”. A couple of minutes later she did come to the door. Ms. Zagrodnik opened the door just enough that Officer Hilts could see her but could not see past her, into the room.

[49] Officer Hilts testified that her partner took the lead and asked the female if she was Brittany. The officer told her they were there to investigate an assault and that they wanted to speak to her about it. Officer Sluman asked Ms. Zagrodnik if they could go inside the room to talk.

[50] Ms. Zagrodnik responded by asking if she could put on some pants and that she wasn’t comfortable talking to the police dressed as she was.

[51] Officer Hilts testified that she interpreted this as consent to enter the room when she reopened the door.

[52] When Ms. Zagrodnik reopened the door Officer Hilts could not recall hearing anything further said. She could not recall if she or her partner asked again to come into the room.

[53] When in the room the police were advised that Ms. Zagrodnik’s boyfriend was in the bathroom and he was asked by one of the officers to come out. Officer Hilts testified that her partner asked Ms. Zagrodnik if she was comfortable talking in front of Mr. Richards to which she responded, yes.

[54] Officer Sluman then started asking Ms. Zagrodnik questions, but it was clear she really did not want to talk about what happened to her. She did say Mr. Richards was not involved.

[55] Shortly thereafter Officer Hilts was advised by Officer Sluman about the drugs located on the top of the night table. Hilts moved so she could observe the packages on the night table. Officer Sluman arrested Mr. Richards and Officer Hilts arrested Ms. Zagrodnik for the possession of controlled substances.

[56] Officer Hilts testified that she read to both accused their rights and gave them a caution. Ms. Zagrodnik advised her that she did not want to speak to a lawyer.

[57] The officer heard Officer Sluman ask, whose drugs were they, but did not hear anything in response.

[58] Before transporting the two accused down to the station it was determined that the charge would be possession for the purpose and Officer Hilts again read Ms. Zagrodnik her rights and caution. Ms. Zagrodnik again said she did not want to speak to a lawyer.

[59] When Ms. Zagrodnik was processed and placed in a cell, Officer Hilts again asked her about a lawyer and at this point she said she did. It was arranged for Ms. Zagrodnik to speak to duty counsel.

[60] With respect to the video recorded statement, Officer Hilts denied any suggestion of threats or inducements and stated whatever Ms. Zagrodnik said, was said voluntarily.

[61] On cross-examination Officer Hilts agreed that Ms. Zagrodnik could have asked to put pants on because she was embarrassed and agreed that it was not a specific indicator of consent to enter the room.

[62] The officer testified that the combination of circumstances at the door, including a gesture, left them with the impression that Ms. Zagrodnik consented to them entering the room, although the officer could not recall if Ms. Zagrodnik verbally consented.

[63] Officer Hilts denied rushing into the room and testified that Ms. Zagrodnik seemed comfortable with speaking to the officers.

[64] The officer had no recollection of Ms. Zagrodnik, after being read her rights on scene, saying that she did not want to speak to a lawyer then but would want to contact counsel at the police station. The officer further testified that she wrote down everything Ms. Zagrodnik said to her. The officer opined that had Ms. Zagrodnik said in regards to being advised of her right to a lawyer, “not now but later at the station”, she would have written it down.

[65] Officer Hilts testified that while she has more experience now, it is not her practice when knocking at a door, if attempting to talk to a victim, of cautioning the person that he or she does not have to open the door.

[66] Officer Hilts confirmed that initially Ms. Zagrodnik was told by Officer Sluman that they wanted to talk about the assault.

[67] At no time did the two officers discuss with each other the need for a search warrant.

[68] At the commencement of her evidence Ms. Zagrodnik adopted the contents of her affidavit, sworn July 26, 2018. Therein she stated that on January 28, 2017, she and her boyfriend were staying at the Motel 6 in Mississauga. At around 9:00 pm two uniformed police officers knocked on the door. Ms. Zagrodnik deposed that she and her boyfriend at the time, the co-accused, had just smoked marijuana so before she opened the door she wanted to clear the air.

[69] Ms. Zagrodnik, who was only wearing short shorts and a t-shirt, then answered the door, opening it a crack.

[70] The male officer (Sluman) asked her if she was Brittney and said he wanted to speak to her about an assault that had happened a few nights before. Ms. Zagrodnik told him she was fine and did not need to speak to anyone, although there was a bruise around her eye and her arm was in a cast. The officer then said he would like to come in and speak to her.

[71] Ms. Zagrodnik then deposed that she told the officers to wait because she wanted to put pants on. She closed the door and while finding and putting on the pants, told Mr. Richards to go into the washroom.

[72] Ms. Zagrodnik then returned to the door and opened it for the second time. She deposed that, immediately the two officers came into the room without again asking if they could. Ms. Zagrodnik confirmed that bags of drugs were on the night table. She testified that when the door was opened the second time the police did not again ask for her consent to enter. On cross-examination she testified that she did not know she could say no.

[73] The officers asked if anyone else was in the room and Ms. Zagrodnik told them her boyfriend was in the bathroom. He was told to come out.

[74] The officers then started asking Ms. Zagrodnik questions about the domestic assault. Ms. Zagrodnik told them that she and Mr. Richards had an argument but stated she did not know who hit her because she blacked out. After more questions she then said that her boyfriend was not with her at the time of the alleged assault and had no answer when she was asked why she changed her story.

[75] Ms. Zagrodnik deposed that this was her first interaction with the police and she was nervous because Mr. Richards was in the room and the officers were questioning her about him.

[76] After Officer Sluman found the cocaine both Ms. Zagrodnik and Mr. Richards were arrested for possession. Ms. Zagrodnik deposed that Officer Hilts asked her if she wanted to speak to a lawyer to which Ms. Zagrodnik responded, not at the time but she wanted to talk to a lawyer when she got to the station.

[77] Ms. Zagrodnik deposed that after the arrest Officer Sluman searched the entire room including the bathroom. He flipped the mattress, looked behind curtains and searched drawers. When he completed the search he asked to whom the drugs belonged. Ms. Zagrodnik told him the drugs were hers.

[78] When beside the police cruiser, Ms. Zagrodnik was arrested again for possession for the purpose. She was again read her rights and caution. She deposed that she again told Officer Hilts that she wanted to talk to a lawyer once she got to the police station.

[79] After arriving at the station Ms. Zagrodnik had the opportunity to speak to duty counsel. Thereafter she was interviewed by Officer Sluman. He questioned her about the assault and the drugs. She again told him the drugs were hers as she had admitted at the motel.

[80] On cross-examination Ms. Zagrodnik testified that she and Mr. Richards had shared the cost of the room and both had keys to the room. She had been staying in motels for a couple of days, with Mr. Richards.

[81] When she first opened the room door and spoke to the officers she testified that she told them she was fine and not in danger. She apologized for not calling the police back when contact was attempted a few days earlier.

[82] She said that when the police asked to come in she asked if she could put some pants on. She did not feel comfortable talking with the officers and not being dressed. When she re-opened the door the police officer barged in, Ms. Zagrodnik having no choice but to get out of the way.

[83] She conceded that the police seemed concerned for her safety. She also agreed that when she first talked to the police she was a bit high, having just smoked some marijuana, although later saying the weed did not affect her at the time and she had a complete recollection of what happened that evening.

[84] She denied making any kind of gesture for the police to enter the room. She did not tell them they could come in.

[85] In regards to asking for a lawyer, Ms. Zagrodnik testified that she was told by family members if ever in such a situation to ask to speak to a lawyer. She had also heard Mr. Richards say he wanted to speak to a lawyer.

[86] Ms. Zagrodnik testified that she told the officers the name of her lawyer and his phone number were in her phone but that the phone was dead. She hoped to retrieve the information at the station. She also testified that she could not remember her lawyer’s name and that, as noted above, chose to speak to duty counsel.

ARGUMENT AND ANALYSIS

[87] The Crown submitted that while in general he did not take issue with Ms. Zagrodnik’s credibility, reliability is an issue. Her memory is questionable. At the time of the arrest she was frazzled and her responses were implausible and inconsistent.

[88] It is submitted that at no time did Ms. Zagrodnik tell the police that she did not want them coming into the motel room.

[89] The officers were soft spoken and were not intimidating and it is unlikely they barged into the room. They were only concerned for Ms. Zagrodnik’s safety.

[90] The Crown puts the question that if it was Ms. Zagrodnik’s intention not to let the police enter, why would she tell Mr. Richards to go into the bathroom?

[91] The Crown submits the officers are both credible and reliable. They admitted any missteps and perhaps were deficient in their note taking. Certainly they were not fabricating evidence and their accounts were consistent.

[92] It is submitted that the police evidence ought to be accepted over that of Ms. Zagrodnik.

[93] The Crown submits that in regards to consents to enter, the law distinguishes between situations involving witnesses or victims and situation involving suspects or accused persons and relies on R. v. Wills, [1992] 70 C.C.C. (3d) 529, stating the Wills test ought not be applied with the vigour that one would expect if the police wished to question a suspect.

[94] The Crown submits that the search was reasonable being incident to arrest. The motel room was small and everything was in the area of the arrest.

[95] With respect to s. 10(b) of the Charter, the Crown submitted that Officer Hilts ought to be believed when she said had someone told her he or she wanted to talk to a lawyer she would have written it down in her notebook.

[96] The Crown did concede that if Ms. Zagrodnik’s motel room statement that the drugs were hers is inadmissible, then the statement made at the police station would also be inadmissible as it is derivative in nature.

[97] On the issue of voluntariness, the Crown submits that the statement was made free of threats or promises. The statement was not improperly induced and Ms. Zagrodnik had an operating mind. Any breach is only technical in nature and ought not to be treated as fatal.

[98] If in fact there have been Charter breaches, the officers were acting in good faith and the evidence ought not to be excluded under s. 24(2).

[99] Counsel for Ms. Zagrodnik submitted that the evidence of all three witnesses is not that much different but that while credibility is not an issue, the police evidence is unreliable, especially with respect to Office Sluman.

[100] It is submitted that the officers were never given consent to enter the motel room. Ms. Zagrodnik did not ask to put pants on because she was going to allow the officers in but rather was embarrassed in talking to the police at the door given what she was wearing.

[101] Regardless, it is submitted that even if the police evidence is accepted, any response by Ms. Zagrodnik was ambiguous and not an informed consent. Counsel relies on R. v. Borden, [1994] 92 C.C.C. (3d) 404, a decision by the Supreme Court of Canada. From page 417, I quote,

“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. The right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. This is equally true whether the individual is choosing to forego consultation with counsel or choosing to relinquish to the police something which they otherwise have no right to take.”

[102] Counsel submits that this dicta applies to the waiver of any Charter right. The person waiving must have a choice.

[103] Counsel referred the court to page 546 of the Wills case, wherein it is stated,

“A similar approach should be applied where s. 8 rights are at stake. The person asked for consent must appreciate in a general way what his or her position is vis-à-vis the ongoing police investigation. Is that person an accused, a suspect, or a target of the investigation, or is he or she regarded merely as an innocent bystander whose help is requested by the police? If the person whose consent is requested is an accused, suspect, or target, does that person understand in a general way the nature of the charge or potential charge which he or she may face?”

[104] The issue of consent is contextual in nature but a fairness principle has to be considered when the police are seeking permission for something they are not entitled to do.

[105] An honest but mistaken belief, it is submitted, is not sufficient.

[106] Nor is acquiescence or compliance.

[107] In R. v. Knox, 3 S.C.R. 199, Chief Justice Lamer stated at page 206,

“The distinction between the meaning of “compliance” and the meaning of “consent” is real. To consent means to actually agree and cooperate. Compliance has a more subtle meaning involving the failure to object. Doherty J.A. made this distinction in a holding of the Ontario Court of Appeal in R. v. Wills, 7 O.R. (3d) 337, and I endorse it. In that case, the accused had consented to taking a second breathalyser test despite registering a “warn” signal on the initial screening device. In distinguishing the meaning of “compliance” from that of “consent” for similar purposes under s. 8 of the Canadian Charter of Rights and Freedoms, Doherty J.A. wrote at p. 348:

Co-operation must…be distinguished from mere acquiescence in or compliance with a police request. True co-operation connotes a decision to allow the police to do something which they could not otherwise do. Acquiescence and compliance signal only a failure to object. They do not constitute consent.

Doherty J.A. made this distinction in order to emphasize that, in that case, consent, and not merely compliance, was required to validate an otherwise unreasonable search under s. 8 of the Charter.”

[108] When one consents they lose their section 8 protected rights (Wills p. 541).

[109] In R. v. Wills, supra, at page 541 and 546, Doherty J.A. writes,

“The danger to constitutionally protected individual rights implicit in the equating of consent with acquiescence or compliance is self-evident and does not require detailed elaboration. When the police rely on the consent of an individual as their authority for taking something, care must be taken to ensure that the consent was real.

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 a balance of probabilities that:

i. there was consent, expressed or implied; ii. the giver of the consent had the authority to give the consent to the 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.”

[110] Counsel for Ms. Zagrodnik concedes the criteria of principles ii, iii, iv, and v. have been met. Ms. Zagrodnik had the authority to consent, voluntariness is not an issue, she knew the nature of the police conduct, being the investigation of the assault, she was likely aware of the consequences of giving such a consent.

[111] It is submitted that consent was never given, whether express or implied.

[112] In regards to whether the person allegedly consenting is a suspect or a witness, and in regards to their awareness of the consequences, I reference again the passage in Wills at page 546, as set out above, where it is clear that regardless the same considerations apply to some extent or other depending on the context.

[113] It is submitted by counsel for Ms. Zagrodnik that the police ought to have told her that if they see anything (illegal) in the room they can seize it. Anything out in the open would be problematic. I think it is safe to infer that given the drugs were on the night table in plain sight, that Ms. Zagrodnik would have known that if the police were allowed to come into the room the drugs would have been easily discovered.

[114] With respect to the right to know a person from whom consent is sought, as the right to say no, counsel relies on R. v. Lewis, [1998] 1 S.C.R. 906. I was direct to paragraph 12, page 488, where it is stated,

“The failure to advise a person of the right to refuse to consent to a search may, however, lead to a violation of s. 8 where the police conduct can be justified only on the basis of an informed consent. It is well established that a person cannot give an effective consent to a search unless the person is aware of their right to refuse to consent to that search….Where the police do not inform a person of the right to refuse a consent to a search, it is certainly open to a trial judge to conclude that the person was unaware of the right to refuse and could not, therefore, give an informed consent.”

[115] There is little evidence that Ms. Zagrodnik was aware that she did not have to consent. Officer Sluman testified that it is now his practice to tell the person from whom consent is sought that they do not have to consent although he made the distinction between seeking consent from a suspect and the seeking of consent from a victim or a witness.

[116] Counsel for Ms. Zagrodnik submitted that the search conducted by Officer Sluman was in breach of his client’s s. 8 rights. However he concedes nothing resulted from the search. The drugs seized were in plain sight and were found before the search. He asked however that the illegality of the search be considered in my s. 24(2) analysis.

[117] In regards to Ms. Zagrodnik’s s. 10 (b) rights, her counsel submitted that she ought to be believed when she testified that when first given her rights to counsel she indicated she wanted to contact counsel when taken to the police station. He argued that while Officer Hilts was credible she could not say for certain when she first gave Ms. Zagrodnik her rights and caution, whether or not Ms. Zagrodnik told her that she wanted to talk to counsel at the station.

[118] Counsel for Ms. Zagrodnik submits that the police entered the room without being given informed consent. The illegal search of the room and the breach of his client’s s. 10(b) rights, are all linked to the illegal entry.

[119] Even if the police had an honest but mistaken belief in regards to consent, there was no informed consent. The police ought to have known better. Mistaken belief may go to the s. 24(2) analysis.

[120] It is submitted that the entry breach is serious and a motel room is akin to a search of a home. There is a reasonable expectation of privacy.

[121] Counsel for Mr. Richards adopted the argument presented by counsel for the co-accused. He provided the court with the decision of the Supreme Court of Canada in R. v. Wong, [1990] 3 S.C.R. 36, in which the Court stated, at page 50,

“Viewed in this light, it becomes obvious that the protections of s. 8 of the Charter, are meant to shield us from warrantless video surveillance when we occupy hotel rooms. Clearly, our homes are places in which we will be entitled, in virtually all conceivable circumstances, to affirm that unauthorized video surveillance by the state encroaches on a reasonable expectation of privacy. It would be passing strange if the situation should be any different in hotel or motel rooms. Normally, the very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free of uninvited scrutiny. Accordingly, I can see no conceivable reason why we should be shorn of our right to be secure from unreasonable searches in these locations which may be aptly considered to be our homes away from home.”

[122] It is submitted that from the “get-go” Ms. Zagrodnik made it clear to the police that she really did not want to talk to them. She told them when at the door she was fine and was not in danger. There was no urgency.

[123] Both counsel also make the point that the cocaine was in plain sight on the top of the night table. Why then would Ms. Zagrodnik consent to the police entering the room knowing that it was most likely they would see the drugs? In that regard the co-accused had significant jeopardy.

[124] It is submitted that the cocaine being in plain sight is an indicator that Ms. Zagrodnik was not consenting to the officers entering into the room.

[125] It is submitted by counsel for Mr. Richards that the court ought to distance itself from the actions of the police and the multiple breaches of their Charter rights.

ANLAYSIS AND RULING

[126] In regards to the Crown’s application to have Ms. Zagrodnik’s statement admitted into evidence as being voluntarily made, there is no suggestion that the police conduct amounted to threats or inducements or that Ms. Zagrodnik did not have an operating mind.

[127] Apart from any Charter breaches the brief statement of Ms. Zagrodnik would be found to be voluntarily made.

[128] The real issue with respect to the statement is whether Ms. Zagrodnik’s Charter rights were breached when Officer Sluman asked who the drugs belonged to and to which Ms. Zagrodnik responded, claiming the drugs were hers.

[129] I find that both accused had a reasonable expectation of privacy when they were occupying room 329 at the Motel 6 in Mississauga.

[130] Authorization to enter the room was clearly required. Respect has to be shown for the Charter Rights of both accused, including their s. 8 rights to be secured against unreasonable search and seizure.

[131] I accept that a consent to enter a motel room is a waiver of the s. 8 rights.

[132] In my opinion, while I am prepared to say that the officers acted in good faith, Ms. Zagrodnik did not provide an informed consent to the entry of the police into the room. Conversely, the police did not have her consent to enter the room.

[133] Both officers were relatively new of the job, especially Officer Hilts.

[134] While the officers were credible witnesses on some of the important facts, they lacked recollection. Their notes were lacking key information.

[135] I accept that initially the officers were concerned for the safety of Ms. Zagrodnik. She was the victim of an assault. They were investigating the assault and did not view Ms. Zagrodnik as a suspect. However, they are still required to get informed consent.

[136] Further, Officer Sluman testified that he also wanted to know whether or not Ms. Zagrodnik was alone in the room. He gave some thought to whether the person who committed the assault may also be in the room with her. Accordingly, in can be said that there was some consideration of whether a suspect was in fact in the room.

[137] R. v. Atkinson, 2012 ONCA 380 addresses the issue of consent. Therein it is said that police have the right to enter property and knock on doors (para. 45). As such there is no invasion of privacy. The right to knock goes no further than to permit communication.

“An invitation to enter may be implied from the circumstances, for example from the words and conduct of a person in charge of that place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place” (para. 48).

[138] Police conduct that interferes with a reasonable expectation of privacy constitutes a search for the purposes of s. 8 of the Charter (para. 54).

[139] A consent to search is lawful and therefore reasonable, but such consent requires the person giving consent to have the required informational foundation for a true relinquishment of the right (para. 55).

[140] From paragraph 56 I quote,

“The consent must be voluntary and informed. To be voluntary, the consent, which may be expressed or implied must not be the product of police oppression, coercion or other conduct that negates the consenting party’s freedom to choose whether to allow the police to pursue the course of conduct requested, or to deny them that right: Wills, at p. 354. To be informed, the consenting party must be aware of

i. the nature of the police conduct to which the consent relates; ii. the right to refuse to permit the police to pursue the conduct; and iii. the potential consequences of giving the consent.”

[141] The plain view doctrine allows the police the warrantless seizure of things in plain view, however, the seizing officer must be lawfully in the place of seizure (para. 57).

[142] On a balance of probabilities I find that the police had no consent, either expressed or implied. While I understand the actions of Ms. Zagrodnik by reopening the door may have given rise to a mistaken belief, it fell well short of amounting to the level of informed consent that is required.

[143] Ms. Zagrodnik and/or Mr. Richards had illegal controlled substances, in the room, in plain sight. If they police were to be invited into the room common sense dictated that the drugs would have been put out of sight. It is inconceivable to me that Ms. Zagrodnik consented knowing the location of the drugs.

[144] Further, from the time the police knocked on the door and Ms. Zagrodnik answered, it was clear she did not want to speak to the police. The officers advised her they were there in regards to the assault investigation. She likely told them she was fine and not in danger in an effort to get them to leave.

[145] When the police first requested to speak to her Officer Sluman conceded that, to Ms. Zagrodnik, it may have sounded like a demand.

[146] Officer Sluman’s evidence as to whether Ms. Zagrodnik verbalized her consent was uneven. He seemed unsure. “Seemed ok” is not acquiring informed consent.

[147] When a person talks to uniform police officers, for the most part, the “playing field is uneven”. They perhaps believe the police have more rights than they do and that they are required to submit to whatever is asked, which can be categorized as acquiescence and compliance.

[148] I accept the evidence of Ms. Zagrodnik that she did not have the chance to refuse the police entry when she opened the door the second time. The officers had formed the belief that the fact she opened the door the second time was a major factor in their belief that Ms. Zagrodnik gave her consent. They also considered the fact that she wanted to put pants on as another indicator of consent, whereas it is just as likely Ms. Zagrodnik wanted to simply cover up in the presence of the police.

[149] While both officers testified that Ms. Zagrodnik may have made a gesture to come in, no such movement was recorded in their notes.

[150] When the door was opened by Ms. Zagrodnik the second time I find that consent to enter was not again sought by the officers.

[151] The “consent” relied upon by the officers was no more than acquiescence and compliance.

[152] Officer Sluman also, to some extent, agreed that he ought to have told Ms. Zagrodnik that she did not have to allow them entry.

[153] On the evidence before me, and on a balance of probabilities, I find that the police did not have Ms. Zagrodnik’s consent to enter the room, whether expressed or implied.

[154] The entry into the room breached both accused’s section 8 Charter Rights.

[155] Notwithstanding the drugs were in plain view, the fact that the police entered the room without consent makes the seizure of the drugs a further Charter breach.

[156] Officer Sluman conceded that he ought to have considered obtaining a warrant to search the room after his plain view discovery. There was no urgency. Both accused had been arrested and the room could have been secured until a warrant was obtained.

[157] Further, I find that there was a breach of Ms. Zagrodnik’s s.10(b) Charter Rights. Shortly after the two accused were given the rights to counsel and the caution, Officer Sluman asked the question in regards to who owned the drugs. It is not disputed that Richards had asked to speak to counsel. The question was put to both accused.

[158] Ms. Zagrodnik testified that when she was first asked if she wanted to speak to counsel, replied that she wanted to contact counsel when taken to the station. Officer Hilts, to whom Ms. Zagrodnik made the request, could not recall Ms. Zagrodnik saying this but rather only recalled her saying she did not want to talk to a lawyer. On a balance of probabilities, I find the note taking to be deficient and for that reason accept that Ms. Zagrodnik, at all times, requested an opportunity to speak to a lawyer when taken to the police station. The question was asked and answered by her before she had the opportunity to speak to a lawyer and Officer Sluman ought not to have asked the question, something he acknowledged when testifying.

[159] In summary, as the entry to the room was a breach of the Charter Rights of both accused, resulting in the illegal seizure of the heroin and cocaine albeit found in plain sight.

[160] The accused’s right to counsel was also breached, which makes the admissibility of the statement questionable.

S. 24(2) ANALYSIS

[161] When faced with an application to exclude evidence under s. 24(2) of the Charter, I 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,
2. the impact the breach on the Charter protected interests of the accused, and
3. society’s interest in the adjudication of the case on its merits.

[162] After considering these elements I have to decide whether, on balance, the admission of the evidence obtained in the manner described, would bring the administration of justice into disrepute (R. v. Grant, 2009 SCC 32, SCJ No. 32).

SERIOUSNESS OF THE BREACH

[163] As noted previously, I don’t believe the police were acting in bad faith. They were however, inexperienced. The officers, in their minds, were acting in accordance with the law. While I have ruled they entered the motel room without an informed consent, they did so mistakenly believing there was consent.

[164] Nevertheless, the police should have known what was required by way of consent to enter the room.

[165] This is a case where there are multiple breaches of the accused’s Charter rights. While no further illegal substances were found when Officer Sluman searched the room, the warrantless search was also a breach to be taken into account when conducting the s. 24(2) analysis.

[166] The entire case is built upon Charter breaches which compounds the “serious” factor. In my opinion, in these circumstances the admission of the evidence would undermine the public’s confidence in the justice system.

[167] This element supports the exclusion of the evidence.

IMPACT OF THE BREACH ON THE RIGHTS OF THE ACCUSED

[168] Whether a motel room or a home, the accused had a reasonable expectation of privacy. I accept the submission of counsel for Ms. Zagrodnik that there is no greater expectation of privacy than in one’s home.

[169] The two accused paid for the right to occupy the motel room to the exclusion of all others, including the police.

[170] As such, it can be said the impact of the Charter breaches on both accused is significant and favours exclusion.

SOCIETY’S INTEREST IN THE ADJUDICATION ON THE MERITS

[171] Society generally expects that all criminal allegations ought to be determined on their merits. However, given the circumstances of these breaches the administration of justice is better served by excluding the evidence.

[172] The breaches commenced and continued almost from the point Ms. Zagrodnik and the police first interacted.

[173] The seriousness of the alleged offences, on the wider judicial spectrum, is not overly significant. The administration of justice is better served by excluding the evidence.

[174] I find that my analysis of the s. 24(2) criteria results in the exclusion of the evidence.

RULING

[175] For the above reasons, the relief sought in the applications brought by both accused is granted and the seizure of the drugs and the drug themselves, along with the statement of Ms. Zagrodnik admitting the drugs were hers, are excluded and are inadmissible at trial.

Bielby J.

Released: August 16, 2018

COURT FILE NO.: CRIM JURY (F) 732/17 DATE: 2018 08 16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – DONATE RICHARDS and BRITTNEY ZAGRODNIK REASONS FOR JUDGMENT Bielby J. Released: August 16, 2018