This week’s top three summaries: R v Schultz, 2019 ONSC 3161, Verrilli v Her Majesty the Queen, 2019 NSSC 263, and R v Knudsen, 2019 BCPC 198.
R v Schultz (ONSC)
[June 3/19] Charter s.8 - Consent Search via Owner of Leased Residence - 2019 ONSC 3161 [Available at 2019 CarswellOnt 9134] [George W. King J.]
AUTHOR’S NOTE: While the SCC in Reeves has significantly clarified the law in relation to who can consent to a search by the police, this case presented an interesting wrinkle. While the first search (engaged by a landlord without permission from an owner of the contraband) was more clear cut in law, the second search involved a plan by a co-owner of contraband to dispose of it without involving the police. The co-owner of contraband alerted and consented to the entry by the landlord. The question was could the landlord consent to a police search in those circumstances? The answer was still NO.
Also interesting was that the landlord unknowingly (in relation to it being a firearm) removed the firearm from the residence of the accused and left it in her own home. This removal did not have the effect of waiving the privacy interest of the accused in relation to the police.
Pertinent Facts
1 [Jalen George Schultz was charged with various offences including possession of cocaine, possession of a firearm in breach of a prohibition order, and possession of a firearm obtained by the commission of an offence]
3 At the commencement of the trial the accused brought an application to exclude the evidence obtained by the Ontario Provincial Police (the "OPP") on September 21, 2016 and September 26, 2016. Specifically, he asserts that the OPP violated his s. 8 rights under the Charter to be secure against unreasonable search or seizure and seeks the exclusion from evidence at trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms of the following:
i) a Mossberg 500 Shotgun, bearing Serial #U489610;
ii) cocaine; and
iii) marijuana.
10 Diane Schultz was a real estate agent. She and Gary Schultz owned the Sydenham property as an investment. They would lease the home from time to time — usually as a vacation property. In some respects, it resembled a cottage. The one-story house contained two bedrooms, a hallway and a kitchen. Ms. Hedrick testified she and the accused each had a bedroom. She stated they would each retreat to their respective bedrooms whenever they were arguing. In addition to the house, there were two stand-alone sheds in the backyard of the property. One of these sheds becomes relevant to the issues in this matter. That shed contained a locked door entry.
12 Both the accused and Ms. Hedrick were contributing money towards the rent. Exhibit #4 was a pro forma "Residential Rent/Lease Agreement" signed by Diane Schultz, Jalen Schultz and Katlynn Hedrick dated September 3, 2016.
17 At approximately 7:18 p.m. on September 19, 2016, OPP officers, including Det. Const. Paquette, arrested the accused and Ms. Hedrick on behalf of the Amherstburg Police [in relation to an alleged robbery]. The arrest occurred as the accused and Ms. Hedrick departed the residence at 553 Sydenham while driving a grey Saab vehicle operated by the accused. When she was arrested, Ms. Hedrick was in possession of a BB gun handgun.
22 Diane Schultz was in her vehicle near the Sydenham property at the time the accused and Ms. Hedrick were arrested on September 19, 2016. Following their arrest, she used her key and briefly entered the Sydendam property.
23 It would be an understatement to say that Diane Schultz was not pleased that her son and Ms. Hedrick had been arrested. She determined that they would not be returning to reside at the Sydenham property. She decided she wanted to clean-up the property and lease it to someone else. She was keen to do this promptly as she was planning to depart on vacation a few days later.
25 During the course of her two-day clean-up of the Sydenham property, Ms. Schultz discovered the following:
1. A quantity of marijuana in a small, locked shed located just behind the house. She gathered up this marijuana. It filled three (3) yard waste bags.
2. A small bit of a substance later identified as cocaine. She removed this to her residence on Bagot.
3. A gun. She described this at times as a toy gun, a BB gun or a pellet gun. She found this in the bedroom of the accused. She removed this item to her residence on Bagot.
4. Some pellet gun pellets lying on the floor.
27 At no time prior to September 21, 2016, did either the accused or Ms. Hedrick give Diane Schultz (or anyone else) permission to:
a) enter the house and/or shed;
b) clean up the residence and/or shed;
c) remove Ms. Hedrick's property, or specifically to leave it in totes at the back of the house;
d) remove any property from the residence, or the shed;
e) permit the OPP (or anyone else) to enter the residence at 553 Sydenham, including the locked shed.
29 At approximately 8:43 p.m. on September 21, 2016, Officer Paquette received a call from Sgt. Brown of the Amherstburg Police indicating that Diane Schultz had called the Amherstburg Police Service and had advised that she wanted the police to attend at the Sydenham property to remove marijuana she had discovered.
31 ....She wanted the officers to come in an unmarked car and not be in uniform because she did not want the presence of the police to attract attention to this property which she normally rented to vacationers. She also did not want to be personally arrested or charged. Diane Schultz indicated that she had been letting her son (the accused) and his girlfriend (Ms. Hedrick) "stay there". As they had been arrested she advised the officer they would not be returning. She made no reference at that time to the fact that they had signed a lease, or had, in fact, paid rent.
32 While on the phone Officer Paquette made no formal inquiries to ascertain whether Ms. Schultz's statement that she was the legal owner of the property was accurate. He did make inquiries of Ms. Schultz about the status of the accused and Ms. Hedrick possibly being tenants but was led to believe they were only just "staying there". He was not advised whether there was a bona fide lease between Diane Schultz, her son and/or Ms. Hedrick.
40 Officer Paquette spent three to four minutes explaining the consent form and obtaining Ms. Schultz's signature. He was not armed. Det. Cst. Harris was carrying his service weapon.
41 Once the consent was signed, Officer Paquette conducted what he described as a brief "safety check" of the Sydenham residence. He testified that he only looked in places where a person could be located. He did not, for example, look in any drawers. The search took two minutes.
43 Once the safety check was completed the parties moved outside to the shed on the direction of Diane Schultz. She unlocked the shed door and presented the officers with three yard waste bags filled with marijuana. Diane Schultz described the marijuana being hung on racks made of broomsticks. She had placed it in the yard waste bags for removal.
44 After the marijuana was secured, Officer Paquette asked Diane Schultz if she had found any weapons in the house.
45 She responded that she had discovered a "toy gun" when cleaning up the bedroom of the accused and had taken this to her residence on Bagot. She indicated she had observed it was underneath the pillow on the bed in the bedroom of the accused. It is noted the item was referred to by Diane Schultz at different times in her testimony and in her conversations with the police as a BB gun, a pellet gun and a toy gun. It was painted in a camouflage pattern.
46 The officers then attended at the residence of Diane and Gary Schultz at 560 Bagot. Diane Schultz presented the officers with a Mossberg 500 Shotgun bearing serial #U489610. There was no evidence that the officers conducted a safety check of the Bagot property prior to, or upon, entering that residence.
Second Search
47 On September 25, 2016, Diane Schultz had a telephone conversation with Wendy Lumley, the mother of Ms. Hedrick. As a result of that conversation, Diane Schultz was made aware that there was a quantity of cocaine remaining in the Sydenham residence.
49 Ms. Hedrick did not direct her mother to contact the police or direct her to have Diane Schultz contact the police. For obvious reasons she did not want the police to be involved with, or become aware of, the cocaine at the Sydenham residence. Her plan failed spectacularly though as both Wendy Lumley and Diane Schultz communicated with the police regarding the presence of cocaine in the Sydenham residence.
50 Following a 40-minute audio interview with the police and Ms. Schultz on September 25, 2016, four OPP Officers, including Officer Paquette, attended at the Bagot residence on September 26, 2016 at approximately 9:23 a.m.
54 Prior to entry to the Sydenham property there was a discussion between Diane Schultz and Officer Paquette regarding the fact that the accused and Ms. Hedrick were parties to a lease with Diane Schultz regarding the Sydenham property. When Officer Paquette expressed concern about the legality of attending the property if there was a lease, Ms. Schultz stated "You're here because I told you to be here."
55 Following this exchange, the officers entered the property and obtained the following:
1. Four grams of cocaine hidden in a small container;
2. Approximately 40 grams of marijuana;
3. Two cell phones and a set of Saab keys from the totes containing the personal belongings of Ms. Hedrick that had been placed outside the house by Diane Schultz.
58
In summary, the OPP obtained evidence at four separate times as follows:
i) Marijuana obtained from the Sydenham property on September 21, 2016;
ii) The weapon obtained from the Bagot property later on September 21, 2016;
iii) Four grams of cocaine and approximately 40 grams of marijuana obtained from the Sydenham property on September 26, 2016; and
iv) A further small quantity of cocaine obtained from the Bagot property on September 26, 2016.
Charter s.8 and Consent
60 [T]he owner of a house cannot validly consent to a search of a unit occupied by a tenant or guest based only on the fact that he or she owns the premises: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.), at para. 22; R. v. Kenny (1992), 7 O.R. (3d) 9 (Ont. C.A.); R. v. Stevens, 2011 ONCA 504, 106 O.R. (3d) 241 (Ont. C.A.), at para. 48. Accordingly, Diane Schultz had no legal authority to permit the OPP Officers access to the Sydenham property on that date solely by virtue of being the property owner and landlord.
64 However, the Crown takes the position that while the items obtained from the Sydenham property were obtained in violation of s. 8 of the Charter, the marijuana and cocaine should still be admitted into evidence as the accused has not established that the admission of evidence would bring the administration of justice into disrepute: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.).
Was the weapon provided to the OPP by Diane Schultz at her Bagot Street residence on September 21, 2016 obtained in a manner that contravened the s. 8 Charter rights of the accused?
80 In effect, while the unsolicited call from Diane Schultz to the Amherstburg Police to attend and pick up marijuana at the Sydenham residence is what brought the officers to the house, this gave Officer Paquette an opportunity to passively and unilaterally investigate whether there may have been weapons in the house.
81 I conclude that but for the tip Officer Paquette received he would not have done the following:
1. Conducted the safety search in the manner he described, if at all; and
2. Asked Diane Schultz whether she had discovered weapons.
82 On this evidence, there is no reasonable basis to conclude that the weapon came into the possession of the OPP on a purely temporal basis, incidental to what the officer believed was a legally authorized search.
86 I have concluded that the OPP obtained the weapon in direct consequence of the following:
• the tip Officer Paquette received that there were weapons at 553 Sydenham;
• his being permitted entry into that house;
• his knowledge Diane Schultz had thoroughly cleaned the residence to get it ready and suitable for the next occupant;
• his safety security search, and
• the question he asked her about whether she had discovered any weapons.
All of these factors drive the conclusion that the discovery of the weapon was part of the same transaction or course of conduct as the Sydenham property search and was obtained contrary to s. 8 of the Charter.
87 On the totality of the evidence and the sequence of events on September 21, 2016 I have concluded that but for the breach, the weapon would not have been discovered. For this reason, I have concluded that the weapon was obtained in a manner that violated the s. 8 rights of the accused: see R. c. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 (S.C.C.).
Did the search of 553 Sydenham conducted on September 26, 2016 violate the s. 8 Charter rights of the accused?
93 As a tenant in the property, I find Ms. Hedrick had authority to consent to permitting the landlord, Diane Schultz, to enter the property. She testified to doing this to protect Diane Schultz or a subsequent occupant from discovering the cocaine.
94 However, she also had a personal motive for this request as she clearly wanted the cocaine disposed of for her own legal protection.
95 As prescribed in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 (S.C.C.), at para. 78, by contacting her mother to have Diane Schultz enter the Sydenham property to remove cocaine, Ms. Hedrick had sufficient information to make a meaningful choice on her own account to permit Diane Schultz to enter the Sydenham property.
97 However, Ms. Hedrick's consent for her mother or Diane Schultz could not extend to a waiver of the accused's s. 8 rights. The person who consents must be the person whose rights are engaged. The Supreme Court of Canada has rejected such a third party consent doctrine in the context of employer-provided computers: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 (S.C.C.), at paras. 74-79.
98 The question of what consent Ms. Hedrick as a co-tenant could even provide to the police in entering a home remains an unsettled area of the law: see Reeves, at paras. 25-26. Nevertheless, it is clear that Ms. Hedrick's actions could not extinguish the privacy rights of the accused in the home.
Section 24(2) Analysis
Seriousness of the Violation
119 Notwithstanding the tone of Diane Schultz and her requests/demands that the officers attend in street clothes and not in a police vehicle, on the face of the information Diane Schultz conveyed to Officer Paquette there was clearly nothing remotely urgent or emergent in the request that a quantity of marijuana be removed from the Sydenham property.
121 I have concluded that the events of September 21, 2016 and September 26, 2016, both constituted serious breaches of the accused's s. 8 privacy rights for the following reasons:
September 21, 2016
1. The officers could have deferred or delayed entering the property until they obtained a warrant.
2. The officers could have made further and more probing inquiries to properly determine whether the accused had any privacy rights in the residence at 553 Sydenham....
123 In these circumstances I cannot conclude that either Charter violation was inadvertent, or a minor violation. It may have been convenient for the OPP Officers to attend as they did on both dates but it cannot be said the situation was extenuating or emergent on either date. Ironically, while it could be argued that the possibility of weapons being inside the Sydenham residence was an emergent situation, Officer Paquette was adamant in his testimony regarding the September 21, 2016 entry that under no circumstances was he searching for a weapon when he did the safety check or questioned Diane Schultz about a weapon, thereby negating any urgency in the situation.
Impact on Charter-protected Interests of the Accused
125 The accused had a significant expectation of privacy with respect to his personal residence. This expectation of privacy was violated by the illegal search of his residence.
126 The Charter was designed to prevent indiscriminate and discriminatory exercises of police authority.
127 A dwelling house is a place where individuals have a high expectation of privacy. This heightens the seriousness of the Charter breach: see Grant, at para. 113.
Conclusion on Balancing
138 Given the strong basis for exclusion on the first and second inquiries, I am not persuaded that the balance should be tipped in favour of admissibility based on the third criteria. Notwithstanding the seriousness of the matter and the interests of our society to have this matter adjudicated, I acknowledge that a s. 24(2) analysis is not, as noted in R. v. Harrison, a mathematical formula and that 2-1 outcome is not necessarily determinative. However, in this case the nature of the Charter-infringing conduct and its impact on the privacy interests and protections against an unreasonable search and seizure clearly outweigh society's interest in adjudicating the matter.
146 For these reasons the marijuana taken from the shed at 553 Sydenham and the weapon removed from said residence by Diane Schultz and provided to the police on September 21, 2016 and the cocaine and 40 grams of marijuana obtained from the residence at 553 Sydenham on September 26, 2016, will not be admitted into evidence at this trial.
Verrilli v Her Majesty the Queen (NSSC)
[Sept. 5/19] Charter s.8 - Access to Sealed Search Warrant ITO - 2019 NSSC 263 [Mr. Justice Joshua Arnold]
AUTHOR’S NOTE: What happens to a person's ability to litigate their Charter rights when their home is searched, nothing is found and no charges are laid? The first step to determining if a Charter violation occurred due to the search is to obtain the ("Information to Obtain") the Warrant. If it is sealed, a person can apply to unseal it. The test for unsealing a warrant is found herein along with some arguments about what it should be. Defence lawyers can advise their clients in these circumstances that if they want to get some justice for their homes being turned inside out (or other things that occurred due to the search), they can start here.
The case below was a certiorari challenge to an originally negative decision at the court of first instance.
Pertinent Facts
[1] Daniel Verrilli was the subject of three search warrants the police used to search his residence and vehicles. The warrants alleged that Mr. Verrilli had possession of cocaine for the purpose of trafficking. The Information to Obtain (“ITO”) in relation to all three search warrants was sealed by each issuing justice of the peace. Various items, including cellular telephones and cash were seized during the searches, but no cocaine was located by the police. No charges were laid against Mr. Verrilli. The seized items were made available for their return. Mr. Verrilli applied to Provincial Court to examine the sealed information in order to determine why he had been the subject of the searches. His application was denied by Judge David Ryan. Mr. Verrilli now applies for certiorari/judicial review of the decision refusing his access to the sealed information.
[2] The background facts relevant to this application were succinctly summarized by the judge in his written decision dismissing Mr. Verrilli’s request to unseal the ITOs: ...
[5] In his Application to gain “access to the sealed search warrant documentation for the purpose of inspecting the informations to obtain, for both the search warrants and sealing orders, with redactions as necessary to protect privilege” dated August 16, 2018, counsel for the Applicant, states (at pp. 2-3):
"Mr. Verrilli does not stand accused of a criminal offence. And, with the expected return of his items, he does not face the threat of criminal charges with respect to the search warrants at issue.
As evidenced by his affidavit, Mr. Verrilli does not know of any reason as to why the police would reasonably believe that he possessed cocaine for the purpose of trafficking. Mr. Verrilli swears that he did not have cocaine, nor does he traffic cocaine. As such, the only reasonable conclusion is that the police obtained the search warrants on the basis of unreliable information and an insufficient investigation."
The Charter rights referenced by the Applicant are the right to be secure against unreasonable search and seizure (s. 8); and the right not to be arbitrarily detained or imprisoned (s. 9).
[6] Mr. Verrilli is bringing this application under s. 487.3(4) of the Criminal Code. …
The Application for Certiorari of the Original Court Decision
[4] The parties agree that this court has jurisdiction to hear an application for certiorari/judicial review in accordance with Phillips v. Vancouver Sun, 2004 BCCA 14 (CanLII), British Columbia (Director of Civil Forfeiture) v. Hells Angels Motorcycle Corp., 2014 BCCA 330 (CanLII), Dagenais v. Canadian Broadcasting Corp., [1994] 2 SCR 835, and R. v. Awashish, 2018 SCC 45 (CanLII), where Rowe J. stated:
[12] Certiorari is available to third parties in a wider range of circumstances than for parties, given that third parties have no right of appeal. In addition to having certiorari available to review jurisdictional errors, a third party can seek certiorari to challenge an error of law on the face of the record, such as a publication ban that unjustifiably limits rights protected by the Canadian Charter of Rights and Freedoms … or a ruling dismissing a lawyer’s application to withdraw ...
[7] In this case the issue is whether the judge applied the correct legal principles. His decision is subject to review for correctness.
The Original Decision Under Review
[9] Mr. Verrilli sought access to the ITOs, “with any redactions as necessary to protect privileged information” in order to determine whether his rights under ss. 8 (unreasonable search and seizure) or 9 (arbitrary detention or imprisonment) of the Charter of Rights and Freedoms were breached.
[10] In his decision, the judge reviewed the law respecting confidentiality of search warrants and ITOs originating with A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175. He also cited R. v. Gerol (1982), 1982 CanLII 3834 (ON CJ), 69 C.C.C. (2d) 232, [1982] O.J. No. 3655 (Ont. Prov. Ct. (Crim. Div.)), the Supreme Court of Canada’s decision in Michaud v. Quebec (Attorney General), 1996 CanLII 167 (SCC), [1996] 3 SCR 3, and National Post Co. v. Ontario (2003), 2003 CanLII 13 (ON SC), 176 CCC (3d) 432, 2003 CarswellOnt 2134 (Sup. Ct. J.). Based on the submissions of counsel for the applicant and the Crown, the judge applied the onus and test as outlined in Michaud, a case concerned with wiretaps, holding that the same reasoning governed an application under s. 487.3. In his written decision the judge stated: ...
[11] This brings us to the next stage of the analysis, namely: what are the foundational principles underlying the exercise of judicial discretion to open a sealed packet to an interested non-accused party? The Michaud decision (at para.39) provides the blueprint for determining the exercise of judicial discretion relative to sealed packets sought to be unsealed by an interested non-accused party.
As the previous cases indicate, an interested non-accused party who seeks access to the packet must demonstrate more than a mere suspicion of police wrongdoing; he or she will normally be compelled to produce some evidence which suggests that the authorization was procured through fraud or wilful non-disclosure by the police. But such a judicial order may well be justified in cases beyond circumstances of potential fraud or non-disclosure. As this Court has repeatedly stressed, the statutory power to open the sealed packet ultimately remains a matter of judicial discretion which should be exercised upon a careful balancing of the competing interests of the individual and law enforcement. Accordingly, it would be inappropriate to delimit the full range of conceivable situations where such an order might be warranted. [Emphasis in original] [12] The court in Michaud concluded (at para. 5) as follows: ...
But where a target faces no threat of imprisonment, Dersch clearly indicated that "different considerations" apply. Under such circumstances, these different "considerations" persuade me that a non-accused target is not constitutionally entitled to examine the contents of the packet in the absence of some evidence which suggests that the original authorization was unlawfully granted. While an individual has an important and vital right to the disclosure of governmental information in order to effectuate his or her substantive constitutional rights under ss. 7 and 8 of the Charter, it is my belief that this right does not compel absolute access to confidential information held by the state where the individual does not face the jeopardy of the criminal process. [Emphasis in original] [13] .... In explaining that evidentiary burden, Chief Justice Lamer for the majority stated (at para. 39) that “an interested non-accused party who seeks access to the packet must demonstrate more than a mere suspicion of police wrongdoing…” [Emphasis in original]
[11] The judge found that shifting the burden to the applicant, as required by Michaud, provided a “blueprint” for determining whether “the ends of justice would be subverted by the disclosure … or the information might be used for an improper purpose” under s. 487.3(1)(a). He reviewed the applicant’s evidence, particularly the cross-examination on his affidavit, and then referred to the Chief Justice’s statement in Michaud that “an interested non-accused party who seeks access to the packet must demonstrate more than a mere suspicion of police wrongdoing…”. The judge held that Mr. Verrilli’s evidence did not meet that standard....
Who has the burden of proof when an interested non-accused party seeks access to a sealed Information to Obtain in accordance with s. 487.3(4) of the Criminal Code?
[14] Contrary to his position at the hearing, Mr. Verrilli now says that an application for variation or termination of a sealing order under s 487.3(4) is subject to the analysis for discretionary confidentiality orders developed in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76 (CanLII)....
[15] Justice Fish went on to confirm the broad scope of the application of the Dagenais/Mentuck test in Toronto Star:
28 The Dagenais/Mentuck test, as it has since come to be known, has been applied to the exercise of discretion to limit freedom of expression and of the press in a variety of legal settings. And this Court has recently held that the test applies to all discretionary actions which have that limiting effect:
While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings...
[17] Dagenais indicates at p. 865, that “[s]ince the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record”, which can be challenged by certiorari. Dagenais/Mentuck must be applied whether or not there is a party or intervenor present. In Mentuck, the court stated:
38 In some cases, however, most notably when there is no party or intervener present to argue the interests of the press and the public to free expression, the trial judge must take account of these interests without the benefit of argument. The consideration of unrepresented interests must not be taken lightly, especially where Charter-protected rights such as freedom of expression are at stake. It is just as true in the case of common law as it is of statutory discretion that, as La Forest J. noted, "[t]he burden of displacing the general rule of openness lies on the party making the application": New Brunswick, supra, at para. 71; Dagenais, supra, at p. 875. Likewise, to again quote La Forest J. (at paras. 72-73):
There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially... .
A sufficient evidentiary basis permits a reviewing court to determine whether the evidence is capable of supporting the decision....
39 It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban. Effective investigation and evidence gathering, while important in its own right, should not be regarded as weakening the strong presumptive public interest, which may go unargued by counsel more frequently as the number of applications for publication bans increases, in a transparent court system and in generally unrestricted speech on matters of such public importance as the administration of justice.
[19] It should be noted that the order in Michaud was a mandatory order respecting wiretap materials, not a discretionary order. In Canada (Attorney General) v. Canada Revenue Agency, 2018 NSSC 51 (CanLII), Wood J. (as he then was) discussed whether the Dagenais/ Mentuck test applies to sealing orders and variations of the sealing orders regarding search warrants. He stated:
[21] The Mentuck test applies to the initial decision whether to grant a publication ban or sealing order, as well as any subsequent application to rescind or vary it. The party seeking to obtain or maintain the order will always have the burden to justify the restriction on public and media access (see R. v. Esseghaier, 2013 ONSC 5779 (CanLII), at paras. 52-56, and Postmedia Network Inc. v. R., 2017 ONSC 1433 (CanLII), at paras. 8-9).
[20] In relation to an application to unseal a search warrant, if the Dagenais/Mentuck test is applied, the Crown will have the opportunity to satisfy the court that the continued sealing or redaction of any part is justified. If an applicant is successful, the ITO will be subject to any appropriate editing prior to it being disclosed.
[22] There was no dispute in McIntyre that an “interested party” had the right to inspect the information or the warrant (pp. 181-182). Justice Dickson made the following remarks about situations where warrants were executed but nothing was found, at pp. 186-187:...
Many search warrants are issued and executed, and nothing is found. In these circumstances, does the interest served by giving access to the public outweigh that served in protecting those persons whose premises have been searched and nothing has been found? Must they endure the stigmatization to name and reputation which would follow publication of the search? Protection of the innocent from unnecessary harm is a valid and important policy consideration. In my view that consideration overrides the public access interest in those cases where a search is made and nothing is found. The public right to know must yield to the protection of the innocent. If the warrant is executed and something is seized, other considerations come to bear.
[24] In Toronto Star, Justice Fish elaborated on the comments in MacIntyre:...
21 After a search warrant has been executed, openness was to be presumptively favoured. The party seeking to deny public access thereafter was bound to prove that disclosure would subvert the ends of justice.
[26] Justice Fish went on to discuss s. 487.3:...
23 Section 487.3(2) is of particular relevance to this case. It contemplates a sealing order on the ground that the ends of justice would be subverted, in that disclosure of the information would compromise the nature and extent of an ongoing investigation. That is what the Crown argued here. It is doubtless a proper ground for a sealing order with respect to an information used to obtain a provincial warrant and not only to informations under the Criminal Code. In either case, however, the ground must not just be asserted in the abstract; it must be supported by particularized grounds related to the investigation that is said to be imperilled...
[54] Practically speaking, there is little difference between the purpose for keeping a sealed wiretap packet confidential and keeping a sealed ITO confidential. However, Parliament could have created legislative provisions for search warrants that mirror those for wiretaps. But it did not do so.
[56] In my opinion, the parties and the judge were wrong to apply the Michaud standard and place the onus on Mr. Verrilli. The test in Dagenais/Mentuck governs when an application is made to unseal an ITO in accordance with s. 487.3(4) of the Criminal Code, and in these circumstances, places the onus on the Crown.
[57] The standard of review in this matter is one of correctness. The judge was incorrect in applying the principles outlined in Michaud.
R v Knudsen (BCPC)
[Sept. 4/19] – Sentencing - Possession for the Purpose of Trafficking Fentanyl & Heroin – 2019 BCPC 198 [R.P. McQuillan Prov. J.]
AUTHOR’S NOTE: Sentencing for Fentanyl where Trafficking is involved has, over the past few years followed the death toll of the drug. As the addiction and overdose epidemic in Canada has increased, so have the lengths of sentences dished out by the courts. The sentencing decision in this case provides an outlier counterpoint to all the sentencing decisions that continually increase the length of sentence. Defence counsel can use this decision, in the right factual circumstances, to establish that jail is not warranted for all offenders. Of particular importance, the sentence in this case occurred after a lost trial, so the offender did not have the mitigation of a guilty plea.
Pertinent Facts
[1] Niklas Knudsen was convicted, following a trial, of one count of possessing heroin, fentanyl and 4-Anilino-N-phenethylpiperdine for the purposes of trafficking, and one count of possessing cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”). He was also convicted of three counts of possessing controlled drugs, being Alprazolam, MDMA and a combination of fentanyl and methamphetamine, contrary to s. 4(1) of the CDSA. He is now before the Court to be sentenced.
[3] Mr. Knudsen came to the attention of the police when the vehicle he was driving, in the early morning hours of November 10, 2017, was observed to be swerving and driving erratically. The police conducted a traffic stop of the vehicle. Their ensuing interactions with Mr. Knudsen indicated signs of him being impaired, including slow speech, bloodshot eyes, shaky hands and providing strange and unresponsive answers to police questions. Two bags of drugs were then pulled from Mr. Knudsen’s pockets. He was then arrested.
[4] A subsequent search of Mr. Knudsen led to the seizure of $710 in Canadian currency, mostly comprised of $20 bills.
[5] The drugs seized from Mr. Knudsen consisted of five separate bags. Those bags contained 27 separate rocks of crack cocaine, plus a small baggie of powdered cocaine, weighing a total of 6.22 grams, as well as 29 separately packaged “spit balls” of heroin and fentanyl weighing a total of 3.4 grams. Those drugs form the basis for the count of possession for the purposes of trafficking.
[6] In addition, the bags also contained 3.42 grams of Alprazolam (also known as Xanax), four MDMA pills (also known as ecstasy) and .25 gram of combined methamphetamine and fentanyl. These latter substances form the basis for the three counts of simple possession.
[7] A Pre-Sentence report (“PSR”) was prepared to assist in sentencing. The PSR reveals that Mr. Knudsen is 27 years old. He was 25 years old at the time of the offence. He had a relatively positive upbringing, with no verbal, physical or substance abuse in the home....
[9] Mr. Knudsen completed high school as well as an electrician program at Vancouver Community College. His employment history consists mainly of work as an electrician. He was able to maintain employment with the same electrical contractor for six years prior to being terminated as a result of performance related issues stemming from substance abuse. That occurred shortly before this offence occurred. His substance abuse led to him having difficulties attending work on time and some days attending at all.
[10] Mr. Knudsen has been employed with a different electrical contractor since January 2018, shortly after this offence. He has completed over 10,000 workplace hours towards a Construction Electrician Certificate and has completed levels one and two of the four levels of technical training required to attain his Red Seal. He hopes to attend school in December 2019 to complete level three.
[11] Mr. Knudsen began to engage in substance misuse at the age of 14, which then progressed to include the use of cocaine, heroin and fentanyl. His use significantly escalated over the years, at times costing him $300 to $500 per day. In order to support his addiction he began selling drugs, although he says that he earned just enough to support his own addiction and did not make any profit from this venture.
[12] Mr. Knudsen attended mandatory drug treatment while still in high school as a result of child protection orders obtained by his parents to force him into treatment. Subsequently he attended at the Last Door Recovery Centre on two occasions, and completed that program once. Since these charges arose, he successfully completed a 28 day residential treatment program at The Orchard Recovery Centre. After his arrest on these charges, and prior to commencing residential treatment, his doctor expressed a concern about whether Mr. Knudsen would survive detox given the very high level of narcotics in his system....
[13] Since completing residential treatment in late 2017, Mr. Knudsen has been attending one to one substance misuse counselling with an addictions specialist twice per week. He also attends Narcotics Anonymous meetings, although his attendance at those meetings is less frequent due to his social anxiety impeding his ability to present at those meetings.
[14] Mr. Knudsen has struggled with severe and persistent anxiety since his adolescence, for which he has received medication in the past. His father expresses the view that Mr. Knudsen’s addiction may have been precipitated by his attempts to self-medicate.
[18] Mr. Knudsen expressed remorse for his actions, by way of his comments to the writer of the PSR, by directly addressing the Court in person and by way of a letter that was filed in the sentencing hearing. In doing so, he acknowledged that his arrest on November 10, 2017 may have saved his life as it has led him to making significant changes to his life in the year and half since then. He also expresses a willingness and desire to continue in his recovery and be a productive member of society.
Sentencing Authorities and Exceptional Circumstances
[23] Both the Crown and the Defence rely on the leading BC Court of Appeal cases of R. v. Smith 2017 BCCA 112 (CanLII), and R. v. Voong 2015 BCCA 285 (CanLII).
[24] In Smith, our Court of Appeal considered the devastating impact that fentanyl had been having on communities and endorsed a markedly higher sentencing range for street level dealing in fentanyl as compared to other drugs. As a result, this new “normal range” would begin at 18 months and would go as high as 36 months or perhaps higher in particular circumstances, such as where an offender has a substantial prior record involving the sale of fentanyl or where the offender is higher up the chain of sale or distribution. The Court also reiterated that the principles of denunciation and deterrence must be given primacy in sentencing cases involving fentanyl.
[25] The case of Voong pre-dates Smith and the higher sentencing range endorsed therein. In Voong, the Court reiterated that the normal range in place then for a first offence dial-a-dope trafficker was between six to nine months and upwards to 18 months in some cases, absent exceptional circumstances. Much of the analysis in Voong related to what might constitute exceptional circumstances such as to justify imposing a sentence lower than the otherwise normal sentencing range. The Court stated that, generally speaking, the exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence (para 45).
[26] At paragraph 59 of Voong, Madam Justice Bennett stated,
[59] …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a noncustodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.
[27] In Voong, the Court also affirmed that in some cases a suspended sentence with a period of probation, while primarily rehabilitative, may be able to give effect to the principles of denunciation and deterrence. At paragraph 61,
[61] A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect. And, as Esson J.A. stated in Chang, the fact of being arrested, tried and convicted, can also address these principles. In other words, the stigma of being a convicted drug trafficker and the consequences of that conviction—for example, restricted ability to travel outside of Canada and exclusion from many forms of employment—may also play a deterrent effect.
[28] Of the four offenders who were the subject of the sentence appeals in Voong, three were found to have demonstrated exceptional circumstances such that they were given suspended sentences with probation of 30 to 36 months. Some of the circumstances that placed those three offenders in the category of exceptional circumstances were: guilty pleas, demonstrations of remorse, minimal or no prior criminal record, meaningful and verifiable steps taken to address addiction issues, youthfulness, and engagement in employment. The fourth offender did not meet the test of exceptional circumstances as he had tested positive for drug use several months after the offence date and his efforts at rehabilitation were largely unverifiable.
Application to the Offender
[37] I am mindful that Mr. Knudsen does not receive the mitigating benefit of a guilty plea, as is present in most of the cases in which exceptional circumstances have been found. However, I am satisfied that he did express remorse for his actions in a particularly powerful way by stating that his arrest by the police at the time of the offence may have had the effect of saving his life, given the level of drug use that he had reached at that time.
[38] I also remain somewhat concerned that Mr. Knudsen does not appear to have meaningfully taken steps to address the underlying issue of his anxiety, which appears to be at least a partial explanation for him turning to illicit drugs to self-medicate. Despite that concern, on the whole I believe that Mr. Knudsen has shown that he has truly turned his life around.
[39] I am also satisfied that the protection of the public in Mr. Knudsen’s case is better served with a non-custodial sentence. As stated in Voong, the governing principles of denunciation and deterrence can be satisfied by way of a carefully crafted probation order. I am satisfied that those principles can be met, along with the principle of rehabilitation, by way of a lengthy probation order for Mr. Knudsen.
[40] I am also satisfied that a curfew condition, as was imposed in some of the cases noted above, is an appropriate probation term in this case. The BC Court of Appeal has cautioned against imposing probation conditions which are purely punitive since the objective of probation is instead to serve one or both goals of protecting society and facilitating reintegration: R. v. Bosco 2016 BCCA 55 (CanLII) at para 56. In my view there is a nexus in this case between a curfew and the goals of protecting society and reintegrating Mr. Knudsen particularly in light of the fact that his offence occurred in the middle of the night.
[41] Accordingly, I will suspend the passing of sentence and impose a probation order for a period of three years. The terms of the probation order will be...
5. For the first 12 months of the probation order, you must abide by a curfew by remaining inside of your residence or on the property on which it is situated, between the hours of 9:00 PM and 6:00 AM seven days per week....
10. At the direction of your probation officer, you must complete 80 hours of community work service, such hours to be completed within the first two years of this order, or by no later than September 3, 2021.
