This week’s top three summaries: R v Robertson, 2021 SKCA 125: #admissions by Crown, R v Dickson, 2021 ONSC 6374: s.10(b) can’t remember #lawyer, and R v Mykat, 2021 ABPC 227: s.8 dwelling arrest #consent.
R v Robertson, 2021 SKCA 125
[September 22, 2021] Crown Admissions of Fact and Law [Reasons by Caldwell J.A. with Jackson and Ottenbreitt JJ.A. concurring]
AUTHOR’S NOTE: In criminal practice, the defence is usually the party that makes admissions of fact. Here, the Crown made one such admission that undermined the rest of its case. Ultimately, the case turns on the distinction between admissions of fact (which are binding on the court) and admissions of law (which are not). The case provides a good overview of the principles that govern both of those situations and an example of how to tease out the difference in a mixed fact/law situation.
Introduction
[1] Shawn William Robertson seeks to appeal, pursuant to s. 839 of the Criminal Code, against the decision of the summary conviction appeal court judge [appeal judge] in R v Robertson, 2019 SKQB 330 [Appeal Decision], overturning the acquittals entered in the Provincial Court (R v Robertson (11 May 2018) Yorkton, CRIM 12/18 (Sask Prov Ct) [Trial Decision]) and convicting Mr. Robertson of impaired driving, contrary to s. 253(1)(a) of the Criminal Code, and of driving while his blood alcohol content exceeded .80mg/100ml, contrary to s. 253(1)(b).
Background
[3] Although this appeal concerns Mr. Robertson’s right not to be arbitrarily detained under s. 9 of the Charter, the circumstances of his arrest are relevant only for narrative purposes. Rather, it is the procedural background that raises a question of law that is significant to the administration of justice generally.
Circumstances of the Offence
[4] At 2:55 a.m. on October 14, 2017, an RCMP constable [arresting officer] observed a vehicle driving on the wrong side of a highway and then over a raised meridian to get onto the correct side. The arresting officer turned around, followed the vehicle, pulled it over and identified Mr. Robertson as the driver. At roadside, she observed Mr. Robertson having difficulty retrieving his registration and to have “pinpoint pupils” and “glassy eyes”. She detected an odour of alcohol as well. The arresting officer asked Mr. Robertson if he had had anything to drink to which he responded “no”. Given all these observations, she arrested Mr. Robertson for impaired driving contrary to s. 253(1)(a) of the Criminal Code.
[5] After arresting him, the officer escorted Mr. Robertson to her police car, placed him in the back and advised him of his right to counsel. During this activity, she noted that he had difficulty walking. However, the arresting officer then “second guessed” herself as to whether she had pulled over the correct vehicle—i.e., she wondered whether Mr. Robertson’s vehicle was the same one she had seen cross the meridian. She was also concerned that, because he said he had had nothing to drink, Mr. Robertson might be in some sort of medical distress unrelated to alcohol consumption. To address these questions, the arresting officer made a demand under s. 254 of the Criminal Code and tested Mr. Robertson’s breath on an approved screening device [ASD]. When his second attempt produced a fail reading, the officer re-arrested Mr. Robertson for impaired driving and again advised him of his right to counsel. The arresting officer thereafter transported him to an RCMP detachment where he submitted to two Intoxilyzer tests. His blood alcohol content was over twice the legal limit on both occasions. This led to the charge under s. 253(1)(b) of the Criminal Code.
Provincial Court Voir Dire
[7] The trial judge noted that the evidence contradicted the Crown’s concession. However, he ruled, based on the concession, that ss. 8 and 9 of the Charter had been breached. The trial judge then proceeded to address the breaches under s. 24(2) of the Charter. The Crown argued that the s. 9 breach was merely technical and did not warrant exclusion of the evidence. The trial judge saw it differently, concluding that, although the arresting officer’s actions had not been malicious, she had acted deliberately and had thereby seriously breached ss. 8 and 9 of the Charter. By way of remedy, he excluded the evidence of the ASD fail and the certificate of analysis evidencing the Intoxilyzer results. Without that evidence, the Crown could not prove its case against Mr. Robertson and, therefore, the trial judge acquitted him of all charges.
Summary Conviction Appeal
[10] In the result, the appeal judge determined the trial judge had erred by finding that the arresting officer had not held a subjective belief that Mr. Robertson was impaired. Based on his review of her testimony, the appeal judge held that Mr. Robertson’s ss. 8 and 9 Charter rights had not been violated. This led him to conclude there was no basis to exclude the ASD result and the certificate of analysis. With that evidence and the arresting officer’s observations, the appeal judge found that the Crown had proven beyond a reasonable doubt that Mr. Robertson had been impaired by alcohol and that he was guilty of the offence under s. 253(1)(a) of the Criminal Code. The appeal judge quashed the acquittals under ss. 253(1)(a) and (b) and entered convictions. He then remitted the matter of sentencing to the Provincial Court.
[11] Although the appeal judge had found no Charter breaches, he reviewed the trial judge’s analysis under s. 24(2) of the Charter, concluding that the trial judge had erred when applying R v Grant, 2009 SCC 32, [2009] 2 SCR 353, and had overstated the seriousness of the breaches he had found....
Analysis
[12] In this second-level appeal, Mr. Robertson chiefly submits that the appeal judge erred in law by allowing the Crown to withdraw its concession that s. 9 of the Charter had been breached. ...
[13] In the hearing of this appeal, the Crown argued that it was irrelevant whether its concession was an admission of fact or a concession as to a point of law because nothing of substance in the appeal turned on that question. I disagree.
[14] In addressing Mr. Robertson’s principal argument, I will begin by stating that the appeal judge correctly concluded that no court is bound by concessions of law, whether made by the Crown or an accused (Appeal Decision at paras 34–37, citing Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para 44, [2001] 2 SCR 781; M. v H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3 at para 45; R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297 at para 100; R v Elshaw, 1991 CanLII 28 (SCC), [1991] 3 SCR 24 at 48; R v Canadian Broadcasting Corp., 2004 SKQB 320 at para 23, [2005] 3 WWR 77, leave to appeal to SCC refused, 2007 CanLII 67870; R v Lewis, 2019 ABCA 311 at paras 10 and 11, 443 CRR (2d) 42; and, inferentially, R v Barton, 2019 SCC 33 at para 96, [2019] 2 SCR 579).
[15] However, the Crown’s concession was not a concession of law; it was an admission of fact.
[16] ... That means the arresting officer had to subjectively believe that Mr. Robertson was impaired when she arrested him and her belief had to be rationally sustainable on an objective basis (see R v Gunn, 2012 SKCA 80 at para 7, [2013] 1 WWR 495; R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254 at para 48).[1] Because only the arresting officer knew whether she had held the requisite belief and what factors had informed that belief, it fell to the Crown to prove the legality of the arrest through her testimony, even though Mr. Robertson bore the onus in his application of establishing an infringement of his Charter right (R v Gunn; R v Besharah, 2010 SKCA 2, 343 Sask R 202; R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265).
[17] However, in anticipation of her testimony, the Crown conceded that the arresting officer had not held a subjective belief of impairment and, therefore, that Mr. Robertson had been arbitrarily detained. She later testified to the contrary but the Crown maintained its concession. This means the Crown admitted that the arresting officer’s testimony would not and later did not support finding as a fact something that was essential to the legality of Mr. Robertson’s arrest.
[18] ... The Crown’s “concession”, therefore, was comprised of an admission of fact and the Crown’s opinion that, under the law of detention and arrest, that fact meant Mr. Robertson had been arbitrarily detained contrary to s. 9 of the Charter. As such, I find the appeal judge erred when he concluded the Crown had conceded a point of law.
[19]... the Criminal Code does not preclude the Crown from admitting facts that favour an accused for the purpose of dispensing with proof thereof. Nor does it or the Canada Evidence Act, RSC 1985, c C-5, preclude the application of the common law principles of evidence in that regard (Criminal Code, s. 8(2); Canada Evidence Act, s. 40).
[20] Under common law, the Crown’s admission of fact was binding on the trial judge. Indeed, although the trial judge remarked that it was contradicted by the evidence, he acted on the admission of fact, as he was required to do. Speaking to this in Champoux v Jefremova, 2021 ONCA 92, Hourigan J.A. wrote:
[34] A trial judge has the freedom to interpret what an admission [of fact] means: Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an analysis of the veracity of the admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106.
See also Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at 1387, where the learned authors summarised the relevant common law of evidence as follows:
…Formal admissions made for the purpose of dispensing with proof at trial are conclusive as to the matters admitted. As to these matters, other evidence is precluded as being irrelevant but, if such evidence is adduced, the court is bound to act on the admission even if the evidence contradicts it. …
[21] As noted, admissions dispense with the need for formal proof at trial of a particular fact. Under common law, an admission of fact cannot be withdrawn except with consent of the party in whose favour it was made or with leave of the trial court (see Finn v St. John’s (City), 2005 NLCA 17, 731 APR 13 [Finn]).
[22] On this basis, I find it was not open to the Crown to seek to withdraw its admission of fact on appeal from the Trial Decision.... It stands to reason that, if litigants were permitted to withdraw admissions of fact on appeal, opposing parties would always have to prove, or hold the admitting parties to prove, those facts at trial. This would render admissions meaningless from the outset.
[24] Accordingly, I conclude the appeal judge erred in law when he permitted the Crown to withdraw on appeal what was an admission of fact made and not withdrawn at trial. As the error led the appeal judge to displace the trial judge’s findings of breach, those findings must be restored....
[25] In short, I would grant leave to appeal and allow the appeal. In the result, I would set aside the Appeal Decision, quash the convictions entered by the appeal judge, and restore the acquittals entered by the trial judge.
R v Dickson, 2021 ONSC 6374
[September 24, 2021] Charter s.10(b): Right to Find That Lawyer Whose Name you Just Can't Remember [Durno J.]
AUTHOR’S NOTE: Ever have that word or name on the tip of your tongue and yet still be unable to retrieve it? The accused in this case had that experience with the name of the lawyer he was looking for. For some reason, this case really hits home for me (he said wistfully while imagining a world where his name was something more monosyllabic). This case highlights the importance of access to internet directories for the accused which would enable a search that is most likely to succeed. The accused is still, in this circumstance, entitled to make reasonable efforts to find that lawyer whether that means calling a friend first or finding that thing that will induce their recall of the name.
Introduction and Background
[1] A police officer saw the appellant standing up from the driver’s door of his car in the parking lot of a pizza parlour. The car radio was playing loudly. The keys were in the ignition but the engine was not running. When the officer spoke with the appellant and detected an odour of alcohol on his breath, he made an Approved Screening Device (ASD) demand, the appellant provided a ‘fail’ reading and was arrested for care or control having consumed excess alcohol.
[2] He was given his rights to counsel and said he understood. When asked if he wanted to speak to a lawyer, the appellant relied, “Sure. I’m not impaired.” At the detachment, he provided breath samples that analyzed at 95 and 102 milligrams of alcohol in 100 millilitres of blood.
[4] The appellant also testified that while in the parking lot he told the officer there was a lawyer he wanted to contact but did not recall his name. He did not know how to contact him. The appellant testified that the officer gave him two choices, his own lawyer or duty counsel. That was how he understood the rights. The officer denied the appellant mentioned a lawyer he wanted to call. The trial judge made no finding of fact whether there was a discussion about a lawyer with whom the appellant wanted to speak.
[5] The appellant argued the arresting officer steered him to duty counsel when he wanted to call the lawyer and failed with regards to the implementational duties under s. 10(b) of the Charter. The trial judge found there was no breach of s. 10(b), finding a second reading of the rights at the detachment cured any defect in what the appellant was told in the parking lot. He convicted the appellant.
The Rights to Counsel
[65] The right to counsel is a “lifeline for detained persons” to obtain legal advice and guidance while detained and to avoid the detainee being entirely at the mercy of the police:” R. v. Rover, 2018 ONCA 745.
Informational and Implementational Components
[67] While the informational duty is “relatively straightforward”, there are “specific, narrowly defined circumstances” where additional information is required. If a detainee positively indicates that he or she does not understand his or her rights, the police cannot rely upon a mechanical recitation of the right and must facilitate the detainee’s understanding: R. v. Willier, 2010 SCC 37 (CanLII), [2010] 2 S.C.R. 429, at para. 31.
[70] The implementational component is triggered by the detainee indicating that he or she understands and wishes to exercise their right to counsel: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190. Once the detainee indicates an intention to exercise the rights, the officer is required to facilitate implementation: Willier, at para. 24. A measure of diligence is required of the detainee: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3.
[71] Upon detention and being given the rights to counsel, a detainee has five choices:
i) contacting a specific lawyer whose name is known to the detainee by telling the officer the lawyer’s name and/or contact information or by being given access to a phone or the internet to contact counsel;
ii) locating a lawyer’s name and/or contact information whether or not they have a specific lawyer in mind by:
a) exercising their right to contact a third party to access counsel of choice[2], or
b) exercising their right to locate a lawyer of their choice by accessing a lawyers’ directly, phone book, internet or elsewhere;
iii) speaking to duty counsel, or
iv) providing a clear and informed waiver of their right to consult with counsel.
[73] But that is not the only means of contacting counsel. The detainee also has the right to find a lawyer whether they know the name of a lawyer or not. That can be done by contacting a relative or friend to get the name and/or contact information or looking in a lawyers’ directory, lists of lawyers or on the internet.
[74] In Ontario, at times officers quickly default to duty counsel by placing a call to duty counsel or directing the detainee to duty counsel. Duty counsel are on call 24-7 so a response is guaranteed and generally in short order. It’s easier for the officers. However, it cannot be ignored that detainees also have the right to a reasonable time within which to find a lawyer on their own.
[75] There are conflicting decisions on the implementational duties s. 10(b) imposes on police officers. Some focus on the most common situation in Ontario where the police are given the name and/or contact information of private counsel and take on the task of contacting that lawyer but are unsuccessful in doing so: R. v. Maciel, 2016 ONCJ 563; R. v. Doobay, 2019 ONSC 7272; R. v. O’Shea, 2019 ONSC 1514; R. v. Jhite, 2021 ONSC 3036. These cases suggest steps the officers should take to be Charter-compliant while acknowledging that each case is fact-specific.
[76] Others cases with the same scenario (lawyers name given but the officer unable to contact the named counsel) find that absent a request by the detainee to personally look for a lawyer, there is no requirement to offer the detainee the option of finding their own lawyer by accessing a phone book, lawyers’ directory or the internet: R. v. Wijesuriya, 2020 ONSC 253, R. v. Persaud, 2020 ONSC 3413; R. v. Ruscica, 2019 ONSC 2442.
The Argument of Counsel
[83] The appellant raises two issues. First, he contends Constable Wing’s summary of the rights to counsel steered him to duty counsel instead of providing him with the option of locating a private lawyer on his own. While Constable Wing may have read the rights twice, when he attempted to comply with his implementational duties, he gave the appellant a binary choice – his own lawyer or duty counsel. When given an opportunity to expand on his inadequate notes about the rights, the officer re-iterated the binary choice. In the result, the officer steered the appellant to duty counsel and failed in his implementational obligations, breaching the appellant’s s. 10(b) rights.
[85] While the appellant testified that he understood the rights both times they were read, it was clear that his understanding was there was a binary choice – his counsel or duty counsel. He did not understand that he could attempt to find counsel on his own. Had he known of his options; he would have tried to locate Mr. Dos Santos’ contact information and called him.
[86] On appeal, he contends that on the facts of this case where he told the officer about a private counsel, he should have been offered access to the internet or other resources that would have at least given the appellant the opportunity to locate counsel’s contact information.
Analysis
[90] As the s. 10(b) caselaw makes clear, the determination of whether there has been a s. 10(b) breach is fact-specific. This case does not fit nicely into the category of cases just reviewed. The appellant had not given the officer a specific name to contact so Constable Wing could not undertake to contact named private counsel for Mr. Dickson.
[91] ... The officer asked the lawyer’s name and was told the name slipped the appellant’s mind; he was not personally acquainted with him, knew of him but was not quite sure how to get a hold of him. The officer immediately said the appellant had a right to duty counsel.
[93] In all the circumstances, I am persuaded the trial judge erred in his s. 10(b) analysis for the following reasons. First, in Ontario officers providing the standard rights to counsel are not required in every case to include that the detainee can have access to lawyer directories, lists of lawyers or the internet to locate a lawyer.
[94] The trial judge concluded at para. 30 that “the police are under no obligation to provide resources to identify a possible lawyer” referencing para. 47 of R. v. Ruscica, 2019 ONSC 2442.
[96] The trial judge then twice indicates that there is an obligation where a specific counsel is named but that did not occur on these facts. If par. 30 and/or the later findings are blanket statements that officers are not obligated to provide resources or advise detainees of the resources available at the detachment or station unless the detainee can provide the name of a lawyer, I disagree based on the caselaw referenced earlier.
[97] Ruscica also includes comments with regard to the content of the informational component depending on the detainee’s answers and other comments after the standard rights to counsel. Those comments can trigger the duty to provide that information. McKelvey J. held:
46 In my view, Justice Fragomeni's decision in the Zoghaib case together with the subsequent Court of Appeal Endorsement dismissing the appeal does support a conclusion that advice regarding resources available to identify and connect with private counsel is not routinely required. On the contrary, this duty only arises where individual circumstances require it in order to comply with the implementational responsibilities under s. 10(b). [emphasis added]
[98] Earlier, the SCA judge held:
38 I agree with the reasoning of the New Brunswick summary conviction appeal court decision in R. v. Caissie. Circumstances matter. There may well be cases based on what an accused says to the police which make it mandatory for the police to offer resources such as a phone book to assist someone who is looking for private counsel. [emphasis added]
[99] There are circumstances where the duty arises regardless of whether the detainee can provide a name for counsel. For example, a detainee has the right to call a friend to find a lawyer. In other circumstances a duty arises to tell the detainee of the resources available to locate a lawyer of their choice even when they do not have the name of a lawyer in mind
[104] Detainees have the right to attempt to search for a lawyer of their choice whether they have a name in mind or not. It is not a binary choice. While there may be the benefits to officers in having the detainee contact duty counsel, it cannot become a binary choice. That applies in drinking and driving cases, despite the Criminal Code provision of the two hour evidentiary presumption in s. 320.31(4): R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 275.
[105] It is not necessary on these facts to resolve the conflicting authorities on the implementational components where the detainee provides the name of a lawyer who cannot be contacted. Here, there was evidence the appellant told the officer about a lawyer whose name he could not recall and was given no information about the resources that were available at the detachment so that he would have the opportunity to locate the lawyer. Instead, the officer directed the discussion back to the appellant’s right to speak to duty counsel.
[106] Third, absent unusual circumstances, police are required to facilitate access to a lawyer immediately by providing the detainee with an opportunity to consult with counsel. In finding no Charter breach, the trial judge concluded it was doubtful the appellant could have located Mr. Dos Santos’ name on the internet. That may be so. But the caselaw establishes that the detainee is to be given a reasonable opportunity to contact counsel, not a guaranteed or probable route to contacting counsel. While it may be the unlikelihood of contacting counsel might be a relevant fact on a s. 24(2) analysis, it is not relevant in determining if there was a s. 10(b) breach..
[110] There was no dispute that the officer read the rights from a placard on the detachment wall including that the appellant had the right to telephone any lawyer he wished. There are several problems with that evidence that plainly reveal the error in finding any defects were cured.
[111] First, the officer had neither notes nor recollection of the appellant answering when the officer asked if he understood or wanted to contact counsel. Similarly, he had no note of the appellant’s answers to those questions while at the restaurant. No notes meant the detainee chose duty counsel. However, that was not the officer’s explanation for calling duty counsel from the detachment. He called duty counsel, not because the appellant must have said he wanted to speak to duty counsel but because that is what he must have said in the parking lot.
[112] Second, the officer admitted that when he read the rights off of the placard, the appellant was agitated because the handcuffs were too tight. The appellant was “very agitated about the handcuffs and that seemed to be his focus.”
[113] The trial judge never made a finding what occurred in the parking lot given the conflicts within Constable Wing’s evidence and between his evidence and the appellant’s. Nor was there a finding that if the plain language explanation was given there was a breach. While the trial judge never found the explanation of the rights provided in the parking lot established a breach, I tend to agree with Mr. Halfyard that it appears he did without providing details.
[114] If the parking lot recitation of the rights resulted in an ambiguous answer and the rights were improperly explained by the officer as a binary choice, it is most difficult to see how reading the same words that precipitated an ambiguous response could cure the problem when the officer’s explanation of the rights was defective. It had been explained to the appellant as a binary choice.
[116] While those cases identify the availability of a “fresh start,” it is not automatic: R. v. Plaha (2004), 188 C.C.C. (3d) 280 (Ont.C.A.). The cases upon which the Crown relied are consistent with the Court of Appeal’s approach in Plaha. All the circumstances must be considered and the second rights to counsel cannot be viewed in isolation.
[117] In Plaha, the Court found the analysis had to include an examination of the temporal, contextual and causal connection. While not determinative, other factor included whether it was the same officer or officers and whether at the time the second rights were provided if the officer attempted to severe the second reading by telling the detainee to disregard earlier comments.
[118] After reviewing the “fresh start” caselaw, I find the authorities support the appellant’s position that the detachment reading could not cure any defect in the plain language explanation of the rights in the parking lot. ...
[119] The “fresh start” cases refer to there being a sufficient break in time and basically everything starting over. Neither applies here. First, the temporal link is very short. Second, it is the same officer who gave the defective explanation for what the rights meant. Third, there was no effort to severe the defective rights if Constable Wing realized his explanation was defective. Fourth, and of greatest importance, it cannot be a fresh start when the only reason the officer called duty counsel was the appellant’s answer during the parking lot exchange. That creates a causal link, not severance. There is a clear connection between the two incidents. With respect, it is neither a fresh start nor a cure.
[120] The respondent correctly notes that in cross-examination the appellant said he understood the rights both times they were given. However, that answer cannot be taken out of context. First, he was not asked at that time what he understood the rights to mean. Second, his evidence elsewhere in his testimony was consistent that he did not understand he had the right to look for a lawyer. ...
[124] ... Further, while not expressly stated, the trial judge must have found the roadside rights were defective since he found the detachment recitation cured any defect.
[125] ... If the disposition depends upon contested facts and the trial judge did not make the necessary findings to resolve the contest, an appellate court is unlikely to be in a position to do so, citing R. v. Pawliivsky, 2020 SKCA 75 at para. 25 and R. v. Dudhi, 2019 ONCA 665, at para. 88.
[135] The appeal is allowed, the conviction quashed and a new trial ordered.
R v Mykat, 2021 ABPC 227
[August 27, 2021] Charter s.8 - Consent to Enter Dwelling for Arrest by 3rd Party [W. A. Andreassen PCJ]
AUTHOR’S NOTE: This case provides a useful synthesis of current law on the reasonable expectation of privacy, Charter waivers, and the powers to enter a dwelling to arrest. In the end, Judge Andreassen comes down on side of consent being unavailable to enter another person's bedroom for the purpose of making an arrest. Although the case did not necessitate a full resolution of the issue of whether a person can consent to police coming into a home to arrest another, it does provide a limit (the bedroom threshold) and a useful discussion for further cases.
Overview
[1] On March 24, 2020, James Omeasoo was shot and seriously wounded in the home of his former girlfriend, Candace Minde.
[2] The accused, then the boyfriend of Ms. Minde, was arrested shortly after 1:30 the next morning in a bedroom of Raymond Bull’s house.
[3] The accused had been sleeping when he was arrested. The police entered the bedroom to arrest him and on awakening him saw a sawed-off .22 calibre rifle, ammunition, and bear spray, in plain view.
[4] The Crown sought to admit the information and photographs of what was seen in the bedroom. The accused claimed a violation of his rights to be secure against an unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms, and sought to have the evidence excluded under section 24(2). I ruled the evidence would be excluded, with written reasons to follow. These are those reasons.
Facts
[20] Five RCMP officers went to 2302 Louis Bull, in three or four police vehicles, all but one of them fully marked. At about 1:30 a.m. on March 25 they arrived at the locked gate halfway down the driveway. They stopped there with their headlights (but not emergency lights) on. Four were in full uniform, and the fifth was wearing a clearly marked police vest. They got out of their vehicles and went to the gate. At least two of them had their semi-automatic rifles with them.
[21] Raymond Bull came to the gate to meet them. He did not want them on the property, did not initially say directly whether Eric Mykat was there, and did not open the gate.
[22] Mr. Bull and the police had different impressions of the nature of the permission he gave for the police to come past the gate and into the house. All five officers testified. Their testimony differed in some details. However, it is clear that Cst. Ramminger spoke on behalf of the police at the locked gate, and I accept Cst. Crook’s evidence that he was first into the bedroom. Those two officers’versions are consistent with each other, except as to whether Cst. Crook knocked and announced “police” before going into the bedroom. Cst. Ramminger said he did as it is safer to have a possibly armed person come out to where the police could see him; Cst. Crook said he did not as it would alert the person of the presence of the police who might then retrieve the weapon and represent an even greater danger to the police. I accept Cst. Crook’s evidence on this point, and otherwise accept Cst. Ramminger’s evidence as representing the police perspective on events between the gate and the bedroom.
[23] After Mr. Bull’s initial reservation about providing any information or access, Cst. Ramminger advised Mr. Bull they were looking for Eric Mykat because he had been involved in a shooting earlier that evening. Mr. Bull then said the accused, who he called his brother, was at the house. Cst. Ramminger did not remember exact words exchanged, but testified he asked for police to be allowed into the house, then testified:
He unlocked the gate and allowed us inside his house.
Other than he didn’t want any part of the shooting or I guess not cooperating with the police, he was fully cooperative after I explained he was involved in a shooting.
He basically said, I don’t really want to have any part of that incident, and allowed us to come into the house.
He opened the door to the residence and allowed us inside the residence.
[24] Cst. Ramminger, Cpl. Lodewyk, and Cst. Crook went into the house. Cpl. Simmonds and Cst. Hausler remained outside, rifles in hand but pointed to the ground, in case the accused left by a window or back door. Some, likely all, of the three officers who went in had service pistols drawn, pointed down but at the ready. Cst. Ramminger saw a woman who was just inside the entrance and who he understood to be Mr. Bull’s partner, where Eric Mykat was, and she pointed to a bedroom down the hall.
[25] The three officers went to the door. Cst. Crook, then Cpl. Lodewyk entered. The accused was sleeping on a mattress on the floor, with his hands under his head. He was awakened and told he was under arrest. He moved his hands behind his back to accommodate handcuffing. Once that was done, he turned over, and in plain view under where he had been sleeping were a sawed-off rifle, two bullets, bear spray, and a phone. Police seized them and a black hoodie.
[26] Cst. Ramminger said that, had Mr. Bull not permitted them into the house to deal with the accused, they would have left and then determined their next step. Other officers testified, and I accept, that they would have left some armed officers outside the house then applied for a Feeney warrant. No officer told Mr. Bull that if he declined permission to enter the house, they would have to leave. No officer specifically asked Mr. Bull or the female whether they could go into the bedroom.
Law and Analysis
[41] Feeney, 1997 CanLII 342 (SCC),, is the starting point for considering the validity of arrest in a private residence. The accused lived in a trailer at a residence which was rented and occupied by his sister and her partner. The accused became a suspect in a murder investigation. The police went to the property where they spoke to the sister’s partner who provided additional information, including that the accused was asleep in the trailer. The police knocked and announced themselves. The police went in, woke the accused, saw blood-covered clothes, and observed some items which had been reported stolen from the deceased.
[42] Writing for the majority, Sopinka J. found that valid grounds for arrest did not exist. He also described the requirements of a lawful arrest in a “dwelling house,” after stating at paragraph 45:
The purpose of the Charter is to prevent unreasonable intrusions on privacy, not to sort them out from reasonable intrusions on an ex post facto basis.
[43] Sopinka J. summarized his conclusion at para. 51:
To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; and proper announcement must be made before entering. An exception to this rule occurs where there is a case of hot pursuit. Whether or not there is an exception for exigent circumstance generally has not been fully addressed by this Court, nor does it need to be decided in the present case given my view that exigent circumstances did not exist when the arrest was made . . .
[46] In Adams (2001) 157 C.C.C. (3d) 220 (ONCA), the accused was searched incidental to arrest in a dwelling, and the Ontario Court of Appeal found he had standing to challenge the search whether or not he had a reasonable expectation of privacy. The police gained entry on the false pretext they wanted to deal with a noise complaint. The Court found the consent to entry was uninformed and therefore invalid. No valid consent meant the arrest was unlawful and the search incident to arrest was unreasonable.
[49] No Alberta authority has explicitly declined to follow Adams, or found that a challenger to a search based on an unlawful arrest in a residence must establish a reasonable expectation of privacy in that residence.
1) Must the accused establish that he had a reasonable expectation of privacy in Raymond Bull’s residence for standing to challenge the search?
[73] While it is not necessary to do so under Adams, I will consider in the alternative whether the accused had a reasonable expectation of privacy in the location of the search, so as to establish standing under Charter section 8. This analysis is also relevant to the remedy of exclusion, as it relates to the impact of the police action on the Charter-protected interests of the accused.
[75] Exclusive possession or control and ownership are not determinative. Since Edwards, the jurisprudence has developed and recognizes that partial or diminished expectations of privacy can exist, and be reasonable (see, Reeves, 2018 SCC 56, paras. 37-39).
[76] In Le, 2019 SCC 34, a 4 to 3 majority indicated that invited guests in the yard of a residential property can in some circumstances have a reasonable expectation of privacy. Le, at paragraph 137, expresses the current state of the law, and in my view applies equally to family members who live with other family members, full-time or part-time...
[77] Eric Mykat had an almost life-long connection to this property. It had been his adopted father’s house. Although the father was now deceased, the brother who now was the permanent occupant felt it was still the father’s home, a place always open to the accused as a family member and where he was always welcome to stay, and where his privacy would be respected. The accused frequently stayed at the residence under that understanding. Such understanding was consistent with First Nations cultural norms. The accused had a diminished but still reasonable expectation of privacy in the residence and a greater though still somewhat limited expectation of privacy in the bedroom.
3) Could Raymond Bull consent to the police entering the home to arrest the accused?
[78] In my view, a third party may, in some circumstances, consent to police entering a residence even without warrant, to arrest another. However, no binding authority permits a third-party consent to enter and go into every part of a residence, particularly a bedroom, which, in this case, the accused has a reasonable albeit limited expectation of privacy. Guiboche was the only case cited in which the police were found to have valid consent to enter for the purpose of arrest, and they went into a bedroom and effected the arrest. The accused was using the home as a hideout, did not live there, and had no reasonable expectation of privacy. Guiboche does not decide that police may, with consent of an occupant to enter a home to arrest someone, go into the private quarters of someone else with a reasonable expectation of privacy to effect the arrest. None of the authorities cited decide that.
[79] Reeves was not an arrest case. The majority chose not to address entry into a shared home and exactly where in the house the police could go with the consent of one owner. However, Moldaver J and Côté J, in separate concurrences, suggest that third party consent to enter a house would not give consent to enter the bedroom of another, even if only to take a statement or pick up property. An arrest has far more substantial liberty and privacy implications than those more innocuous purposes.
[80] Requirements for a valid consent to an otherwise unreasonable search developed in the context of a person purportedly waiving his or her own rights. In Wills, (1992), 70 CCC (3d) 529 (ONCA), Doherty JA described the difference between a constitutionally valid consent and mere acquiescence, at paragraphs 45 and 46:
45 The dynamics which operate when a police officer "requests" the assistance of an individual cannot be ignored. It would be naive to equate most requests made by a police officer with similar requests made by one private individual to another. The very nature of the policing function and the circumstances which often bring the police in contact with individuals introduce an element of authority, if not compulsion, into a request made by a police officer. This is particularly true where the request is made of someone who is the target of an ongoing investigation . . .
46 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. Otherwise consent becomes a euphemism for failure to object or resist, and an inducement to the police to circumvent established limitations on their investigative powers by reliance on uninformed and sometimes situationally compelled acquiescence in or compliance with police requests . . . [citations omitted]
[81] The “Wills criteria” for constitutionally valid consent are found at paragraph 69:
69 In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
[82] Wills has been cited in most of the decisions canvased above where a residence was entered to make an arrest. Some preliminary features and limitations on third party consent are apparent from those cases:
consent is invalid if police mislead the consenting occupant of the reason they seek entry (Adams);
consent can be revoked (Russell); and
consent must be voluntary and informed, but can be implied, and the extent of information required depends on the circumstances (Couturier).
[87] Assuming the police may obtain a constitutionally valid “third party” consent to enter into a residence to make an arrest of someone else, such consent is likely limited to common areas. A bedroom, where the co-occupant or guest is sleeping and expects privacy as a result of interactions with the host or other co-occupant, is an area that is unlikely to be capable of “third party” consent. To paraphrase Le, at paragraph 137, the determination of when, and to what extent, guests or co-occupants have a reasonable expectation of privacy which limits the ability of the host or another co-occupant to authorize police entry into a bedroom, will be fact and context specific.
[88] I have already concluded that this accused had a reasonable but diminished expectation of privacy in the bedroom. There is no authority binding on this court that permits police to obtain a constitutionally valid consent from a “third party” to enter that bedroom to arrest a person with an expectation of privacy in the bedroom.
[89] Even if a “third party” consent to make an arrest in the bedroom without a warrant is constitutionally permissible, Mr. Bull did not give a constitutionally valid consent. The police did not tell Mr. Bull that they would, or might, go into a bedroom. They did not tell him that the accused had significant privacy rights there, and Mr. Bull could decline consent to enter the bedroom, or revoke any consent he had given for the police to be in the rest of the house. Indeed, there is no indication the police even considered any enhanced privacy rights the accused would have in a bedroom.
[90] Further, Mr. Bull’s unlocking of the gate, then leaving the door to the house open for the police to enter, is more in the nature of a situationally compelled acquiescence than a truly voluntary consent. I accept that Mr. Bull felt that night, as he did when brought to court to testify, that “there is no saying no to the cops.” Even Cst. Ramminger was aware of the qualified nature of Mr. Bull’s so-called “consent” to the entry of the residence. He perceived Mr. Bull, on learning there was a shooting, as wanting to not be involved, and to not be considered uncooperative with the police. This is more indicative of acquiescence than voluntary and active consent.
[91] In my opinion, absent a Feeney warrant, the police could not enter the bedroom to arrest the accused, even with the consent of Mr. Bull. Even if they could, the purported consent was not sufficiently informed, and was more in the nature of acquiescence than truly voluntary.
[92] The Crown has failed to meet its burden to justify the warrantless search and seizure, and since the entry and search were not authorized by law, they are contrary to Charter section 8.
Exclusion of Evidence
[100] The availability of the Charter-compliant alternative of obtaining a Feeney warrant exacerbates the seriousness of the police conduct. Cst. Ramminger subjectively considered the “third party” consent of Mr. Bull to be sufficient, but I find that position to be objectively unreasonable. The purported “third party” consent was not in any event constitutionally valid, being in the nature of situationally-compelled acquiescence under Wills. The unlawful entry of the police to arrest the accused at Mr. Bull’s residence was based on ignorance, or at least a failure to consider, these well-established authorities. While there was some argument for “third party” consent, the conduct is closer to the serious end of the scale than to the minor, technical end.
[101] The police violated the accused’s privacy and liberty interests. Although the accused was not the owner of the residence, he was a sometimes co-occupant or a frequent guest who was always welcome and who was afforded a private room when there. His expectation of privacy was relatively high, though not as high as that of an owner or sole or primary occupant. “The greater the expectation of privacy, the more intrusive the search.” (Alcantara, para. 199). The impact of the breach on the accused’s interest was serious.
[102] The first two Grant inquiries favour exclusion.
[106] To remedy the Charter breach, the evidence will be excluded.
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