IN THE PROVINCIAL COURT OF NOVA SCOTIA
(Citation: R. v. Andrew John Lewis, 2004 NSPC 24)
Date: 04/02/18
Docket: 1099899
Registry: Digby
Between:
Her Majesty The Queen
v.
Andrew John Lewis
Judge: The Honourable Judge Jean-Louis Batiot, J.P.C.
Heard: February 18th, 2004
Comeauville, Nova Scotia
Written Decision: April 27th, 2004
Charge: Contrary to Section 354(1)(a) C.C.
Counsel: R. Michie, for the Crown
Andrew John Lewis, self-represented
Batiot, J: (Orally)
1. Mr. Lewis is self-represented. He had not given notice of a Charter Application; yet the evidence at trial discloses that there was an entry into a dwelling house without a warrant, a breach of s. 8 of the Charter.
2. This is not a case of entering a dwelling house, without a warrant, to arrest the accused, as provided by s. 529 of the Criminal Code of Canada; rather, it is a warrantless entry in a dwelling, and seizure of items, seen from the outside.
3. At issue is whether
(a) there existed exigent circumstances, as provided by s. 487.11 of the Code, to justify
this entry; and
(b) if not, should the evidence of the stolen property be admitted, pursuant to s. 24(2) of the Charter.
FACTS
4. In 2001, Mr. Abboud owned a camp on Oliver Lake (it was bought in 1999 and sold in December 2002). It is situate in New Tusket, near New Edinburgh. I take judicial notice that it is in Digby County, Nova Scotia. When he first bought it he met Mr. Lewis, the accused, who lived in his own camp across the lake; they saw each other several times; Mr. Lewis came into his camp while Mr. Abboud was there, and even when he was not. They appeared to have been good neighbours.
5. Mr. Abboud was away in the year 2000. He learned from a friend that his camp had been broken into. Shortly after coming back, in August 2001, he visited his camp and noted that four chairs out of eight chairs, with a specific design, (two different sets of chairs, of different colors, made by different manufacturers, but with the same design), were missing, three of the lighter color set and one of the darker one. He made a complaint to the RCMP.
6. On the 19th of August 2001, Constable Martin, the investigator, spoke with Mr. And Mrs. Abboud at their home; they then drove to the camp. After further discussions - Mrs. Abboud had to leave after half an hour - Constable Martin decided to inquire with other cottage owners. One or two stops later, she got to Mr. Lewis’ cottage.
7. She described it as a camp; it was his home; she knew this. She had known Mr. Lewis in the past, was acquainted with his vehicle, an ATV, parked in the driveway. She knocked at the door; there was no response. Leaving, she looked inside, through the clear glass window, and noticed four chairs of a design and color that had been described to her by Mr. Abboud. She tried the door, it was unlocked, she went in, announcing her entry, got the chairs, showed them to Mr. Abboud who identified them as his, and put them in the police car.
8. She is aware she ought to have had a search warrant however she entered for reasons that would be stated later.
9. There was no evidence as to where the accused might have been, only that there was no response to the officer’s calls.
10. Had Mr. Abboud not been able to recognize the chairs, she would have replaced them in the camp.
11. Mr. Lewis is self-represented. He has referred to a statement he has given to the police officer. There has been a discussion with respect to the voluntariness of that statement and its admissibility. The Crown did not pursue a voir dire. I have advised the accused that this was not evidence in the case at the instance of the Crown.
12. After having been given some time to reflect on the decision and the evidence presented in chief, Mr. Lewis chose not to testify. I am satisfied that he understands that;
(a) he has the right to remain silent or testify;
(b) the Court can only consider the evidence presented at trial; and
(c) evidence can only be presented from the witnesses box, but for an agreed statement of facts, and none was made.
CHARTER
13. S. 8 of the Charter states:
“Everyone has the right to be secure against unreasonable search or seizure”.
ARGUMENTS
14. Crown counsel has recognized the difficulty with the search and seizure, and refers the Court to two cases from the Supreme Court of Canada, R. v. Evans (1996) 104 C.C.C. (3d) 23 (S.C.C.), what is called a knock-on approach of a home in the hope of obtaining smell of marijuana and R. v. Grant (1995) 84 C.C.C. (3d) 173 (S.C.C.), which dealt with sufficiency of grounds to obtain a warrant, once the element obtained as a result of an unreasonable search, have been excised. Ms. Michie argues that the objects were in plain view; there was an announcement; the cottage was unoccupied at the time; the officer had no choice but to go in, as she had no back up, and the property could disappear. In these circumstances, there was no breach; should there be, this real evidence ought not to be excluded: to do so would in fact bring the administration of justice into disrepute.
15. The accused has not addresed this issue, except to refer to his statement to the police, which he knew not to be in evidence.
JURISPRUDENCE
16. In R. v. Silveira, [1995], 2 S.C.R. 287, the Supreme Court of Canada held that the police had no power, at common law, to enter a private dwelling without a warrant, even if it was only to secure the premises, pending the arrival of a search warrant to conduct the search, although, in that case, there were extenuating circumstances to excuse the breach, and allow the evidence in.
17. Clearly, thus, the entry in this case is in breach of the common law, and of Silveira and of s. 8 of the Charter.
18. However, s. 487.11 of the Criminal Code, enacted in 1987, two years after Silveira, c. 18, s. 46, justifies this intrusion:
“if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant”
ANALYSIS
19. It was legitimate for Constable Martin to knock: she was simply making inquiries, and was acting within the implied waiver of the accused’s expectation of privacy, by coming to the front door, to communicate with Mr. Lewis (see: R. v. Evans). There is no reason or no evidence that, at that time, the Constable suspected the accused of any improprieties, and I cannot infer such a fact from her being already acquainted with him and with his mode of transportation.
20. The waiver only extends to facilitate communication with the owner/occupier. It would extend to locate him or her. Thus the officer’s action, of looking through a large window next to her position at the front door, is questionable but not unusual; unfortunately for the accused, in plain view, were the four chairs, striking in their similarity to those described to her earlier by the owner. She had then reasonable grounds to apply for a search warrant. She did not. She entered.
21. She was investigating the disappearance of four chairs and not whether the accused was the author of that crime. Unlike the fact situation in R. v. Kokesh, [1990] 3 S.C.R. 3, another Supreme Court of Canada case which dealt with a perimeter search triggered by suspicions of the presence of drugs in the home and a peering into the window, here there is no evidence the officer was suspicious of the accused when she knocked on the door. She was there lawfully. I find that her sole purpose was to locate and communicate with Mr. Lewis. This includes her peeking through the front window, as often people may do, intent on seeing someone at home. It is then, and only then, seeing the evidence, she changed the tenor of her inquiry: the officer now had reasonable grounds to investigate Mr. Lewis. She had to make an assessment of her position in law, and ascertain the proper next step, including the presence, or absence of exigent circumstances.
22. She says she had such evidence not to delay: she was alone, without back-up, and the property could disappear, if she left to obtain a warrant. Are these sufficient to bring her actions within the meaning of s. 487.11, and to excuse her unauthorized entry into Mr. Lewis’ home.
23. The objects were in plain view. This was not, however, a place of business (R. v. Fitt, [1995] N.S.J. No. 83, which dealt with illegal gambling machines in a backroom of a taxi office, open to the public) or a motor vehicle on a highway, subject to the lawful scrutiny of police officers (R. v. Franklin, [1990] N.S.J. No. 512); it was a dwelling house, which enjoys the special and well recognized protection of the law, as recognized by the English Court in 1604 (Semayne’s Case (1604), 5 Co. Rep. 91), again by the Supreme Court in Eckles v. Bourque, [1975] 2 S.C.R. 739, and again by Silveira in 1995.
24. There is no evidence of the grounds on which Constable Martin relied to conclude the property would disappear in her absence, such as, but not limited to: the accused may have observed her or was warned of her purpose or would be suspicious of her presence at his home; nor was there any evidence the officer could not have made an application, there and then, for a telewarrant as provided by s. 487.1 of the Criminal Code of Canada; nor that the security of the officer or of Mr. Abboud for that matter was endangered in any way by showing restraint not entering the premises.
25. The Crown has shown the existence of sufficient grounds to obtain a search warrant; it has not shown the necessary exigent circumstances to justify entry.
26. In the absence of such exigent circumstances the entry into the dwelling was not justified by s. 487.11. It was unreasonable, and s. 8 of the Charter has been breached.
ADMISSIBILITY
27. In R. v. Collins [1987] 1 S.C.R. 265 the Supreme Court of Canada provided the framework to apply in s. 24(2) analysis:
(a) does the admission of the evidence affect the fairness of the trial;
(b) how serious was the charter breach; and,
(c) what would be the effect on the system’s repute of excluding the evidence.
28. An entry in a dwelling itself is “a more serious infringement of an individuals right to privacy, and the ultimate invasion of privacy” (Silveira, para. 148). And of course we’re dealing with invasion of property and not invasion of the body.
29. Indeed, at paragraph 152 in the same decision, Mr. Justice Cory warns:
“As a result of this case police officers will be aware that to enter a dwelling house without a warrant, even in exigent circumstances, constitutes such a serious breach of charter rights that it will likely lead to a ruling that the evidence seized is inadmissible.”
30. The accused in Silveira was the subject of an arrest in a public place as a result of three undercover purchases of cocaine in which he was implicated. The police then moved, without a warrant, to his home where they arrested others and secured the place, pending the arrival of a search warrant to search. They had reasonable grounds to believe cocaine would be found (para. 126, 127, 128). They were concerned that the public arrest would cause warnings to be received by the occupant of the home which would lead to the destruction of the cocaine or its disappearance.
31. They entered the premises by knocking down the door and announcing their identity. In entering they checked for weapons and secured the location of the residence.
32. The trial judge found there was exigent circumstances to justify the reasonableness of the actions of the officers, short of a search without a warrant, the officers were entitled to secure each room and check for weapons, that they were justified in drawing their firearms given the connections between hard drugs and guns in that the search was conducted in a reasonable manner. And finally, the trial judge held that the obtaining of the search warrant was not misleading even though the fact they had entered was not really disclosed to the Justice of the Peace, i.e. there was no finding of good faith, but none of bad faith either. The Crown had conceded the breach of s. 8; the issue on appeal was whether the evidence ought to be excluded pursuant to section 24(2) of the Charter. The majority, in two concurring but different decisions, concluded it ought, as the exigent circumstances in the trafficking of cocaine from the accused’s home, could not justify the exclusion of this hard drug, and that the case now clarified the law for subsequent, and similar cases. Madame Justice L’Heureux-Dubé, on the other hand, concluded the exigent circumstances could justify the breach of s. 8. Mr. Justice LaForest, in a strongly worded dissent, found the police’s conduct abusive, and a clear, unredeemable, infraction of s. 8.
33. Important factors in the various courts judgements were: Silveira was a case of trafficking in a hard drug, from one’s home; a public arrest had been made; concern this may cause the disappearance of the drug; warrantless entry was made only to secure the premises, and the officers waited for the search warrant to conduct the search.
34. In his decision, Mr. Justice Cory refers to several decisions of the U.S. Supreme Court, as examples of case by case analysis, in admitting or rejecting, evidence obtained in breach of the accused right against unreasonable seizure. More particularly he cites Segura v. United States, 468 U.S. 796 (1984), where the officers, involved in securing a dwelling after arresting the owner involved in the drug trade, entered without a warrant, saw drug paraphernalia in plain view, and waited - 19 hours - for a warrant to search and seized that and the drugs.
35. Cory J., at para. 158 approves Chief Justice Burger and cites:
“The illegality of the initial entry, as we will show, has no bearing on the second question. The resolution of the second question requires that we determine whether the initial entry tainted the discovery of the evidence now challenged. On this issue, we hold that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as “fruit” of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source of the evidence under Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
Thus it supports admissibility of the evidence since the identification on the items was obtained before entry.
36. The chairs were real evidence. Their admissibility into evidence would not affect the fairness of the trial. It is a serious breach, and must not be condoned. In mitigation, however, are the facts the chairs were observed from the outside, the officer desired to be efficient, she announced and identified herself, she opened an unlocked door, there was no one home, it was a quick entry, not to search, but to retrieve specific and well identified objects, which could have been seized at any time through the execution of a search warrant. The grounds to obtain such did not come into existence through the illegal entry; indeed these grounds existed prior to such entry, and were the result of direct observations. These, however, are explanations but not an excuse or a justification for breaching s. 8 of the Charter.
37. We are not dealing here with the traffic of hard drugs, as in Silveira and others, which, because of the serious consequences to society, merit special considerations. In the case at bar, we are dealing with possession of stolen property, property which could have been retrieved otherwise, perhaps through the execution of a telewarrant, which is usually convenient to obtain.
38. I am mindful of further words of Justice Cory, in Silveira, at para. 162:
“... s. 24(2) of the Charter should not be used as a matter of course to excuse conduct which has in the past been found to be unlawful. This case has confirmed that to enter and search a dwelling-house without a warrant constitutes a very serious breach of the Narcotic Control Act [which was involved at that time] and the historic inviolability of a dwelling place. Therefore, in the future, even if such exigent circumstances exist, the evidence would likely be found inadmissible under s. 24(2). It is difficult to envisage how the admission of the evidence could not bring the administration of justice into disrepute since in subsequent cases, it will be very difficult for the police to claim that they acted in good faith if they entered the dwelling without prior judicial authorization. The police must now know that exigent circumstances do not provide an excuse for failing to obtain a warrant. It is up to Parliament to amend s. 10 of the Narcotic Control Act, as it then existed, if it wishes to provide for exceptions to the warrant requirement. Although I do not wish to foreclose the possibility that the evidence may still be admitted under s. 24(2), it will only occur in rare cases. [My underline]
39. Also relevant are those words of Mr. Justice Lamer, as he then was, in Collins, at para. 38 (Quicklaw):
“I should add that the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly. In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter, which is a factor supporting the exclusion of the evidence.
40. In all these circumstances therefore, to admit the evidence obtained through an unreasonable search and seizure in breach of s. 8, due to the act of the police, could bring the administration of justice into disrepute and I must therefore exclude it.
41. Without evidence of such chairs the Crown has failed to prove the case beyond a reasonable doubt and I find Mr. Lewis not guilty of that charge.
___________________________________
Jean-Louis Batiot, J.P.C.
April 27th, 2004
Digby, Nova Scotia