Decision of the Honourable Judge M.T.C. Tyndale

Introduction

[1] Thi Bang Tam Vo and his wife, Vinh Quang Tran, are charged with cultivation of and possession for the purpose of marijuana, and possession of proceeds of crime, arising out of events which occurred on August 8, 2014.

[2] As the accused alleged breaches of their Charter rights, the evidence was heard within a voir dire.

[3] The trial of these charges was conducted before me on April 19th, 20th, 21st, and May 11th of 2016. After some delays for written submissions and preparation of my decision, this is my judgment in the matter.

Positions of the Parties

[4] Mr. Ouellette, for the accused, argues that the search of his clients’ residence was unreasonable, and a breach of his clients’ section 8 Charter rights. He contends, therefore, that the results of the search, that is, evidence of the marijuana grow operation and cash, should be excluded from evidence.

[5] Ms. Fugeman-Millar, for the Crown, argues that the police presence in and inspection of the home was lawful, and therefore not unreasonable, and that there was no violation of the accused’s Charter rights.

Background

[6] Tracey Ford is a constable with the Calgary Police Service (CPS). She is assigned to the Child At Risk Response Team, referred to by its acronym CARRT. Cst. Ford and her partner, social worker Amanda Konotopsky, are tasked with investigating circumstances in which children may be put at risk by the criminal actions of others, often their parents. They deal with risks of physical abuse or neglect, children abusing drugs, children involved in prostitution, and children endangered by the drug involvement of others.

[7] While on duty, Cst. Ford wears the full CPS police uniform, with sidearm. Ms. Konotopsky wears a bullet-proof vest and a jacket with the CARRT acronym on its back.

[8] On August 8, 2014, Cst. Ford found time to investigate an anonymous Crime Stoppers tip which had been assigned to her some days earlier (the tip may have been received at Crime Stoppers weeks before). The tip said:

“They are growing and I think they even have a young child who lives in the home with them.”

[9] The tip described the person residing at the residence as an Asian male, and listed the address as 14 Saddlehorn Close NE.

[10] Cst. Ford performed what she described as her “normal checks” on the police computer information system. Those background checks did not give rise to any indication of danger, or of criminality. Nor did those checks contribute to any grounds to suspect that there were drugs in the house, or that there was a child in the house, or that there was a drug-endangered child in the house. In the words of Cst. Ford, “I believe that I did checks and I didn’t find anything.”

[11] Cst. Ford and her partner attended at the residence shortly after 1 o’clock in the afternoon. She knocked on the door and waited for a response. She observed an Asian female come to the door and remove a metal barricade from the back of the door. When the female partially opened the door, Cst. Ford could see into the house, and could see a female child inside the house. The adult female was later identified as Ms. Tran, and the girl as her 11-year-old daughter, Chantelle.

[12] When Ms. Tran opened the door, Cst. Ford informed her that they were the CARRT team and they were there to investigate a complaint that there is marijuana being grown in the residence, and to ensure the safety of any children who are living there.

[13] Cst. Ford testified, in chief, “So we told her that we needed to check the residence to ensure the child’s safety because of the information that we were there to investigate and that we needed to come inside.” Ms. Tran told the officers that there were no drugs in the residence, but Cst. Ford responded that “we needed to verify that.”

[14] Ms. Tran was clearly hesitant, saying her elderly mother was present, and may be frightened of the police. She briefly shut the front door. One minute later, she opened the door and allowed Cst. Ford and her partner to enter.

[15] Cst. Ford asked Ms. Tran to show them around the residence. In response, the officers were shown around the upper level of the residence through the various bedrooms. There were two adult males upstairs.

[16] They were then toured through the entire ground floor level of the residence. During the inspection of the ground floor of the residence, Cst. Ford encountered a locked door which led to the basement. She tried to open the door, but could not. Ms. Tran told the officers that the door was locked, and she did not have a key.

[17] Cst. Ford’s response was, “I told the mother that we needed to check the basement and she said that her husband had the key and that he was at work. So I requested that she contact him and have him come home to open the door, otherwise, it would have to be forced open.”

[18] Cst. Ford gave them one hour to have the key holder come home and open the door, or she would force it open.

[19] Ms. Tran then made a telephone call.

[20] At that point, Ms. Konotopsky, the social worker, told Ms. Tran that she needed to speak to Chantelle alone. The grandmother became agitated and tried to pull her granddaughter away from the interview. Cst. Ford told the grandmother to move away, or she would be arrested. Eventually, Ms. Konotopsky took Chantelle upstairs to interview her while Cst. Ford guarded the bottom of the stairs, preventing the adults in the home from interfering with the interview.

[21] One of the males in the residence, later identified as Mr. Vo, was becoming argumentative and asking a lot of questions. He identified himself as a brother of the homeowner.

[22] Cst. Ford informed him “that we needed to get into the basement and that we needed someone to come and let us in, or we would have to force the door open.” Mr. Vo began to argue with the officers, and informed them he was calling his lawyer. Ms. Tran told the officers that their lawyer was on the telephone. She was telling the officers that they needed to leave the residence.

[23] Cst. Ford’s response was to radio for police backup. Further, Cst. Ford telephoned the Green Team, a specialized combined RCMP and CPS unit tasked with investigating and dismantling marijuana grow operations.

[24] Ms. Konotopsky’s interview with Chantelle did not indicate the presence of any drugs, and did not indicate that Chantelle was at any risk. Nevertheless, Cst. Ford insisted on remaining in the house until she had the opportunity to inspect the basement.

[25] Cst. Ford’s message to the Green Team included a comment to the effect that the residents were reluctant to give her access the basement. She informed the Green Team that if the residents would not open the basement door, she intended to kick the door in.

[26] After Ms. Konotopsky interviewed Chantelle, all the occupants of the house except Mr. Vo got into a vehicle and left the residence. Mr. Vo remained in the house, and continued to tell the officers that they had to leave.

[27] Shortly after the vehicle left, Sgt. Peterson and Cst. Wuitchik arrived at the residence as backup for the CARRT team. Cst. Ford informed Sgt. Peterson that child welfare legislation authorized their presence in the home, that they were there to check the house to ensure that it was a safe living environment for children who resided there, and that they had already checked the second floor and the main floor, but were unable to check the basement as they were met with a locked door that led to the basement.

[28] Based on what Cst. Ford had told Sgt. Peterson, he believed that the CARRT team had a lawful right to force open a door in a private residence without a warrant, although he did not question her about the specific authorization she relied upon.

[29] Mr. Vo continued to tell the officers that they had to leave. Sgt. Peterson informed Mr. Vo that the police were lawfully in the residence and needed to check the basement, and that they would not be leaving until they had done so. Sgt. Peterson agreed to a 15-minute window for the homeowner to arrive, failing which they would force the door if they had to.

[30] At 2:20 pm, no one having arrived at the residence, Sgt. Peterson pried open the door with his multi-tool, causing no physical damage. Cst. Ford then went down the stairs into the basement “to ensure there was no one else in the residence.” She discovered a marijuana grow operation, and called a second time to the Green Team to inform them that while doing an inspection of the home a marijuana grow operation was discovered in the basement.

[31] Mr. Vo was arrested by Cst. Wuitchik, and placed into his police vehicle.

[32] Corporal Fralick of the Green Team arrived at the residence at about 2:45 pm. Cst. Ford informed him that the Drug Endangered Children Act or the Child, Youth and Family Enhancement Act gave her the authority, because of the welfare of the child, to conduct an inspection of the residence. She gave him that justification for entering the basement even though the door was locked and the homeowner was reluctant. It was clear to Corporal Fralick that until Cst. Ford entered the basement she had no basis, other than the tip, for believing there was a marijuana growing operation in the residence.

[33] Corporal Fralick knew his team would need a search warrant to enter the building. However, as a result of concerns for public safety, he decided to enter the residence to render the grow operation safe.

[34] When Cst. Ford learned Corporal Fralick was to enter the residence, she requested Corporal Fralick search for Mr. Vo’s identification. Corporal Fralick informed her that this was not a search, but simply an entry to render the grow operation safe. No search would be conducted by his team without a search warrant.

[35] After rendering the grow operation safe, Corporal Fralick left to draft the application for a search warrant. He returned with other members of the Green Team at 10:55 pm, with the search warrant, and began the process of dismantling the grow operation.

[36] While the CARRT officers were waiting, Ms. Konotopsky apparently searched the residence for and found Mr. Vo’s identification in the kitchen of the residence and gave it to Cst. Ford.

[37] Ms. Konotopsky testified that her training taught her that the Child, Youth and Family Enhancement Act permitted her to enter any premises by force, if necessary, if she believed a child is at imminent risk. She continued that “we need to speak to every child who resides in the house and every adult who resides in the house…as well as tour the home. It’s part of our policies.”

[38] Despite this assertion, Ms. Konotopsky did not rely on that authority for her entry into the residence. She testified that “We had permission to go into the house” and “I’m telling you that she said that we could come into the house.”

[39] Later in cross-examination, speaking of Ms. Tran, Ms. Konotopsky added that “Initially, she was reluctant to let us in, yes”, and “Two times she said she wasn’t comfortable.” Further, she agreed that the occupants were clearly reluctant to have the officers in their home, testifying “They said, yeah, they contacted a lawyer and asked us to leave.”

[40] The following exchange took place in cross-examination:

Q: …and it is an understanding between you and Ford you’re not leaving until you get in that basement, isn’t that right?

A: Yes.

Q: And you certainly didn’t get permission to stay in that house?

A: No.

[41] And shortly thereafter:

Q: But you said earlier, when you and the police officer are involved on a tip there’s two aspects. There is the welfare of the child protection, which is your concern?

A: Yes.

Q: But you are well aware that the police officer is an investigator. She’s investigating crimes?

A: I was aware of that, yes.

Q: Exactly. And it is very clear to you at this point, there is no indicia of drugs in this house. There’s a locked basement and at that point, the police officer in your presence makes the decision you’re staying there?

A: Yes.

Q: Without permission, is that right?

A: Yeah.

[42] Ms. Konotopsky confirmed that in her interview with Chantelle, Chantelle denied any knowledge of drugs in the house.

[43] After her interview, Ms. Konotopsky called her supervisor to update that person. She was instructed to continue assessing and to stay in the home and continue to figure out what was going on and what was potentially in the basement.

[44] By her actions, including her search of the residence for Mr. Vo’s identification which she provided to Cst. Ford and her determination to find out what was in the basement of the residence, Ms. Konotopsky demonstrated that she believed she was Cst. Ford’s partner, and acted as an agent of the police throughout.

The Law

[45] Section 8 of the Canadian Charter of Rights and Freedoms (Charter) protects everyone from unreasonable search and seizure.

[46] There are three possible justifications for the search of the basement by Cst. Ford: first, judicial authorization, that is, a search warrant; second, statutory authority; and, third, the consent of the occupants to the search.

A. Search Warrant

[47] There was no search warrant applied for or obtained by Cst. Ford prior to her entry of the basement.

[48] In response to questions from the bench, Cst. Ford articulated that the grounds she had for believing there was a marijuana growing operation in the basement were: the tip, the behaviour of the occupants, the barricade or metal security bar inside the front door, and the power cord she described snaking out from under the basement door to an outlet in the kitchen.

[49] Cst. Ford conceded in cross-examination that with all of the information she had before entering the basement, she believed she “did not have enough to get a warrant.” That is, she conceded she did not subjectively believe she had reasonable and probable grounds to support an application for a search warrant.

[50] In order to assess Cst. Ford’s conclusion, it is necessary to examine the information she possessed. She testified that the factors upon which she felt she could rely were the tip, the security bar, the behaviour of the occupants, and the power cord.

1. The tip. The tip was an anonymous tip called in to Crime Stoppers. It had been received “within a few weeks” of Cst. Ford beginning to investigate it. There was no evidence as to how recent was the tipster’s information. There was no mention of the source of the knowledge, or even if the knowledge was first-hand to the tipster.

The tip did not specifically mention marijuana. The tipster seemed unsure whether a child resided at the residence, “…and I think they even have a young child who lives in the home with them.”

2. The barricade. When Ms. Tran first came to the front door in response to Cst. Ford’s knock, she was seen to remove a metal barricade from the back of the door. This was also described as a metal bar, or security bar. Although Cst. Ford found the security bar to be suspicious, Cst. Wuitchik described it as “a strange thing but not uncommon,” and agreed it was not necessarily indicative of criminal activity.

3. The behaviour of the occupants. When the officers informed Ms. Tran that they “needed” to search the home to verify her statement that there were no drugs in the home, she was clearly reluctant to allow Cst. Ford and Ms. Konotopsky to enter and search her house. Cst. Ford felt that reluctance was suspicious. While the officers searched the upstairs and ground floor of the residence, Mr. Vo telephoned a person he claimed to be his lawyer, and told the officers constantly that they had to leave the residence. Cst. Ford felt this behaviour was suspicious. When the officers told the occupants that if the basement door was not opened, it would be kicked in, Mr. Vo maintained his insistence that they were not welcome in the home, that they had to leave, and that they needed a warrant. Cst. Ford felt this behaviour was suspicious.

4. The cord. Cst. Ford testified that there was a power cord leading from the upstairs area to the stairwell. She believed it to have been plugged in in the kitchen, and running through the crack under the basement door to the basement.

Sgt. Peterson, who actually pried open the basement door with his multi-tool, made no mention of any power cord running under the door that he was working on. Cst. Wuitchik, who assisted Sgt. Peterson to pry open the basement door, was clear in his evidence that there was no power cord coming out from under the basement door or around the door at all. The video-recording of the basement and grow operation did not show any power cord running from the ground floor to the basement.

I find the evidence of Cst. Wuitchik to be more persuasive than that of Cst. Ford on the issue of the existence of the power cord. Further, the evidence of all the officers was that as soon as the basement door was pried open, they could hear the hum of electric fans, and smell a strong smell of growing marijuana. I believe that any crack under the door large enough to admit a power cord would have been wide enough to have permitted the smell of the marijuana to escape to the upstairs. The officers were unanimous that until the door was opened, no one had detected the smell of marijuana.

I do not believe there was any power cord running under the basement door.

5. Additional information. In addition to the four factors referred to by Cst. Ford to support her belief that there was a grow-operation in the basement, she was in possession of further pieces of information.

a. The computer checks conducted by Cst. Ford did not in any way corroborate the information in the tip, and did not indicate any possibility of growing drugs there.

b. When the officers arrived at the house, there were no outward indications that a grow operation might be present, such as shuttered or covered windows, signs of humidity, or an odor of growing marijuana.

c. When Ms. Tran first answered the door, she told the officers that there were no drugs in the house.

d. When the child, Chantelle, was interviewed by Ms. Konotopsky, she denied any knowledge of drugs in the home.

e. A search of the upstairs floor of the residence revealed nothing to support the suspicion of drugs in the house.

f. A search of the ground floor of the residence revealed nothing to support the suspicion of drugs in the house.

[51] In respect to Cst. Ford’s belief at the time before she entered the basement, in cross-examination, the following exchange took place:

Q: Okay. But you’ll agree with me that you are now suspicious that there’s a grow-op and you will go down the basement to check for the grow-op?

A: Well, we’re not suspicious at that point that there’s – we don’t believe that there’s a grow-op at that point. We believe that there is something down there that the family doesn’t want us to see.

[52] I agree with Cst. Ford’s assessment that prior to entering the basement she “did not have enough to get a warrant.”

[53] Further, she appeared to misunderstand the requirements for search when she testified that despite having insufficient grounds to obtain a search warrant, she felt she had what amounted to reasonable and probable grounds to believe there was a marijuana grow operation in the basement.

[54] I find that at no time prior to entering the basement did Cst. Ford have reasonable and probable grounds to believe there was a marijuana grow operation in that residence.

[55] In any event, no police officer applied for a search warrant prior to prying open the basement door. As the initial entry to the basement was a warrantless search, it is prima facia unreasonable, leaving the onus on the Crown to persuade the court of its reasonableness.

B. Statutory Authority

[56] Both Cst. Ford and Ms. Konotopsky testified that they believed that provincial child welfare legislation authorized their entry into the residence. In order to examine that potential justification, I have set out the applicable sections of the legislation referred to.

Applicable Legislation

Child, Youth and Family Enhancement Act, Revised Statutes of Alberta 2000

Chapter C-12

1(1) In this Act,

(d) “child” means a person under the age of 18 years and includes a youth unless specifically stated otherwise;

(2) For the purposes of this Act, a child is in need of intervention if there are reasonable and probable grounds to believe that the survival, security or development of the child is endangered because of any of the following:

(a) the child has been abandoned or lost;

(b) the guardian of the child is dead and the child has no other guardian;

(c) the child is neglected by the guardian;

(d) the child has been or there is substantial risk that the child will be physically injured or sexually abused by the guardian of the child;

(e) the guardian of the child is unable or unwilling to protect the child from physical injury or sexual abuse;

(f) the child has been emotionally injured by the guardian of the child;

(g) the guardian of the child is unable or unwilling to protect the child from emotional injury;

(h) the guardian of the child has subjected the child to or is unable or unwilling to protect the child from cruel and unusual treatment or punishment.

4(1) Any person who has reasonable and probable grounds to believe that a child is in need of intervention shall forthwith report the matter to a director.

5 If a peace officer, on reasonable and probable grounds, believes that a child committed an offence under an Act of the Parliament of Canada while the child was under the age of 12 years, the peace officer may report the matter to a director.

6(1) If a director receives information in the form of

(a) a request for intervention services,

(b) a report under section 4 or 5, or

(c) any other allegation or evidence that a child may be in need of intervention,

the director must investigate the child’s need for intervention unless the director is satisfied that the information was provided maliciously or is unfounded or that the report or allegation was made without reasonable and probable grounds . (emphasis added)

Drug-Endangered Children Act, Statutes of Alberta, 2006 Chapter D-17

1(2) For the purposes of this Act, a child is a drug-endangered child if

(d) the guardian exposes the child or allows the child to be exposed to an indoor cannabis grow operation, or to the process of extracting oil or resins from cannabis plants;

2(1) If a director or police officer has reasonable and probable grounds to believe that a child is a drug-endangered child, the director or police officer may make an ex parte application to a judge of the Court or to a justice of the peace for an order

(a) authorizing the director or police officer to apprehend the child, and

(b) if the judge or justice is satisfied that the child may be found in a place or premises, authorizing the director, police officer or any person named in the order to enter, by force if necessary, that place or those premises to search for and apprehend the child.

(9) Notwithstanding subsection (1), a director or police officer may apprehend a child without an order if the director or police officer has reasonable and probable grounds to believe that the child’s life, health or safety is seriously and imminently endangered because the child is a drug-endangered child.

(10) A person who is authorized to apprehend a child under subsection (9) and who has reasonable and probable grounds to believe that the child may be found in a place or premises may, without an order and by force if necessary, enter that place or those premises and search for the child. (emphasis added)

Analysis

[57] The only specific reference to the obligation to investigate under the Child, Youth and Family Enhancement Act is found in section 6. However, in order to investigate a child’s need of intervention, the allegation must have been made on reasonable and probable grounds. It was conceded by Cst. Ford, and found by this court, that she did not have reasonable and probable grounds in this case to found an investigation into a child’s need for intervention.

[58] With respect to the Drug-Endangered Children Act, the combination of sections 9 and 10 authorize a director or police officer to enter a premises without an order and by force if necessary, if that person has reasonable and probable grounds to believe that the child’s life, health or safety is seriously and imminently endangered because the child is a drug-endangered child, and that the child may be found in the place or premises.

[59] In order to find the child to be a drug-endangered child, there must be reasonable and probable grounds to believe that the child had been (inter alia) exposed to an indoor cannabis grow operation. That, of course, requires reasonable and probable grounds to believe that there existed a grow operation at all. Since Cst. Ford did not have reasonable and probable grounds to believe there was a marijuana grow operation in the residence, the sections of the Drug-Endangered Children Act do not apply, and cannot be employed to justify the officers’ entry into the residence, and specifically into the basement.

[60] I find there was no statutory justification for the entry into or the search of the residence.

C. Consent

[61] Cst. Ford appeared to acknowledge in answering questions from the court that in order to justify the search, she was not relying upon either a warrant or upon legislative authority to enter the residence, but rather she was relying on Ms. Tran’s consent to proceed with her inspection of the house.

[62] Immediately after the above answer, Cst. Ford agreed that it was clear to her that by the time they reached the basement door, Ms. Tran had revoked any consent she had previously given, and wanted the officers to stop their inspection of the house and leave.

[63] Ms. Konotopsky initially justified their entry into the house as follows; “No, we have just been given our Child, Youth and Family Enhancement Act and in there it says if we believe a child is at imminent risk we are allowed to enter any premises by force if necessary.” That is a misstatement of the law, as can be read, above.

[64] When defence counsel offered to give Ms. Konotopsky a copy of that Act, she replied, “We had permission to go into this house” and later, “I’m telling you that she said we could come into the house.” She then acknowledged that Ms. Tran was not specifically asked for permission to enter the house, that the occupants were clearly reluctant to have the officers in the home, and that they called a lawyer and asked the officers to leave. She agreed that they did not have permission to stay in the house, and did not have permission to force the door and enter the basement.

[65] It was unequivocally clear to the officers that Mr. Vo wanted them to stop searching the residence, and to leave. He had told them they could not proceed without a warrant.

[66] In R. v. Bergauer-Free 2009 ONCA 610, the Ontario Court of Appeal relied on its earlier judgement in R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.) and found that the in order for the Crown to rely on consent, it bore the onus of proving that the individual providing consent must be shown:

1. to be aware of the nature of the police conduct to which he was being asked to consent;

2. to be aware of his right to refuse to permit the police to search;

3. to be aware of his right to terminate the search once it had begun;

4. to be aware of the potential consequences of giving his consent; and

5. to be aware of his right to contact counsel, including free and immediate advice from the Ontario Legal Aid 'Hotline'.

[67] In the circumstances of this case:

1. The Crown has not demonstrated that Ms. Tran was aware of the nature of the police conduct to which she was being asked to consent. She was not informed that Cst. Ford intended to search the entire building for evidence of a marijuana grow operation.

2. The Crown has not demonstrated that Ms. Tran was aware of her right to refuse to permit the police to search her residence. In fact, Cst. Ford went out of her way to override Ms. Tran’s demonstrated reluctance, and to inform Ms. Tran that they “needed” to inspect the home.

3. The Crown has not demonstrated that Ms. Tran was aware of her right to terminate the search once it had begun. Cst. Ford acknowledged that both Mr. Vo and Ms. Tran had expressly communicated to the officers that they wished them to terminate the search and leave the house. Cst. Ford simply ignored those statements by the occupants, and called for backup when she was no longer able to dominate the occupants by force of will alone.

4. The Crown has not demonstrated that Ms. Tran was aware of the potential consequences of giving her consent. In fact, by framing the investigation in terms of drugs and child safety, Cst. Ford deliberately obfuscated her intent, which was to search the residence for any evidence of a marijuana grow operation.

5. The Crown has not demonstrated that Ms. Tran was aware of her right to contact counsel, including free and immediate advice from the toll-free number.

[68] Cst. Ford admitted that Ms. Tran and Chantelle were effectively detained. As that detention was effected in the absence of reasonable and probable grounds, it was arbitrary, and violated their section 9 Charter rights.

[69] Despite the Cst. Ford’s admission that the occupants of the house were detained, none of the occupants were informed of their rights under section 10(a) or (b) of the Charter. Cst. Ford, rather than facilitating consultation with counsel in order to ensure an informed consent, refused to listen to Mr. Vo once he did obtain legal advice. Her response was to call for police backup.

[70] The onus is on the Crown to demonstrate the validity of an alleged waiver of constitutional rights by an accused. The Supreme Court, through a long line of cases, starting with Clarkson, has established a stringent waiver test.

[71] In the case at bar, I find the Crown has failed to prove any of the required five elements, above. I find that any consent granted by Ms. Tran was not valid consent, and could not constitute a legal waiver of her right to be free from unreasonable search and seizure. In the event that I am in error and Ms. Tran’s initial consent was valid, it was abundantly clear to Cst. Ford that any such consent had been unequivocally revoked before the entry into the basement.

Privacy Interest

In R. v. Tessling, 2004 SCC 67, the Supreme Court of Canada examined the concept of privacy within the context of search and seizure. Justice Binnie wrote:

12 The freedom from unreasonable search and seizure guaranteed by s. 8 of the Charter is fundamental to the relationship between the State and the citizen. It provides that:

Everyone has the right to be secure against unreasonable search or seizure.

13 Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La Forest J. stated in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 (S.C.C.), at pp. 427-28, "[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state".

14 The midnight knock on the door is the nightmare image of the police State. Thus it was in 1763 that in a speech before the British Parliament, William Pitt (the Elder) famously extolled the right of everyone to exclude from his private domain the forces of the King:

The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! — all his force dares not cross the threshold of the ruined tenement! (Lord H. Brougham, Historical Sketches of Statesmen Who Flourished in the Time of George III (1855), vol. I, at p. 42)

15 Building upon the foundation laid by the common law, s. 8 of the Charter creates for "[e]veryone" certain areas of personal autonomy where "all the forces of the Crown" cannot enter….

16 Much of the law in this area betrays its early roots in the law of trespass. In an earlier era, privacy was associated with private property, whose possession protected against intruders. If the rights of private property were respected, and the curtains of the home (or the drawbridge of the castle) were pulled, the King's agents could watch from a distance but would have no way of finding out what was going on inside….

…

19 Accordingly, the Court early on established a purposive approach to s. 8 in which privacy became the dominant organizing principle. "The guarantee of security from unreasonable search and seizure only protects a reasonable expectation": Hunter v. Southam, supra, at p. 159 (emphasis in original)….

20 Within the general principle thus stated, the cases have come to distinguish among a number of privacy interests protected by s. 8. These include personal privacy, territorial privacy and informational privacy.

…

22 The original notion of territorial privacy ("the house of everyone is to him as his castle and fortress": Semayne's Case (1604), [1558-1774] All E.R. Rep. 62 (Eng. K.B.), at p. 63) developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place (Evans, supra, at para. 42; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297 (S.C.C.), at para. 140, per Cory J.: "There is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'": R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 (S.C.C.), at para. 43), in diluted measure, in the perimeter space around the home (R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3 (S.C.C.); R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 (S.C.C.), at pp. 237 and 241; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263 (S.C.C.), at p. 273), in commercial space (Thomson Newspapers Ltd. v. Canada (Director of Investigation & Research), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425 (S.C.C.), at p. 517-519; R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 (S.C.C.), at pp. 641 et seq), in private cars (Wise, supra, at p. 533; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615 (S.C.C.)), in a school (R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393 (S.C.C.), at para. 32), and even, at the bottom of the spectrum, a prison (Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872 (S.C.C.), at p. 877). Such a hierarchy of places does not contradict the underlying principle that s. 8 protects "people, not places", but uses the notion of place as an analytical tool to evaluate the reasonableness of a person's expectation of privacy.

Conclusion

I find that Mr. Vo and Ms. Tran, occupants of the residence, had a reasonable expectation of privacy in the residence and specifically in the locked basement. I find that the search conducted by Cst. Ford was not authorized by search warrant, was not justified by legislation, and was not permitted by lawful consent, and was, therefore, an unreasonable intrusion on that right to privacy.. In short, Cst. Ford’s entry into the residence and specifically into the basement constituted an unreasonable search.

[72] Therefore, I find that the section 8 rights of the accused were breached by Cst. Ford and her colleagues.

Section 24(2)

Section 24(2) of the Charter reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[73] In the Grant decision, the Supreme Court of Canada set out the framework of a revised approach to section 24(2);

67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

(a) Seriousness of the Charter-Infringing State Conduct

[74] This is explained by the court in paragraph 72 of Grant.

72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[75] Cst. Ford testified that she believed she had no basis for a warrant. She did not rely upon any statutory authority to search the home. She acknowledged that any consent to search extended by the occupants had been unequivocally withdrawn before she forced entry to the basement.

[76] Cst. Ford demonstrated a marked lack of knowledge regarding the child welfare legislation and the actions it may authorize, and her testimony showed confusion about the concepts of reasonable grounds and the basis for application for a warrant. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith: R. v. Genest, as cited in Grant.

[77] Cst. Ford’s actions, which amounted to severe, deliberate breaches of the privacy rights of the accused, can only be described as willful and flagrant disregard for the Charter rights of the accused.

[78] This willful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question requires that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

[79] I find the first factor to strongly support exclusion of the evidence.

(b) Impact on the Charter-Protected Interests of the Accused

[80] This is explained by the court in Grant, at paragraph 76:

76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

[81] The nature of the privacy interest in a residence was discussed in R. v. Silviera, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paragraph 43:

…It is surprising that nearly four hundred years after Semayne's Case (1604), 5 Co. Rep. 91a, 77 E.R. 194, there should be any debate about the matter. That case firmly enunciated the principle that "a man's home is his castle", and that even the King himself had no right to invade the sanctity of the home without the authority of a judicially issued warrant. That principle has remained ever since as a bulwark for the protection of the individual against the state. It affords the individual a measure of privacy and tranquility against the overwhelming power of the state; see also Entick v. Carrington (1765), 19 St. Tr. 1029. It is a fundamental precept of a free society…

[82] The actions of Cst. Ford had a deep and undeniable impact on this “fundamental precept of a free society.” Her warrantless search of the residence in the face of clear objection of the occupants, and in the absence of statutory authority undermined the privacy interests of the accused.

[83] The court in Grant (supra) posed the following application of the second factor, in paragraph 78:

78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

[84] In my view, the accused reasonably enjoyed a high expectation of privacy in their residence, and Cst. Ford’s actions had a serious impact upon that Charter-protected interest.

[85] I find the second factor to strongly support exclusion of the evidence.

(c) Society's Interest in an Adjudication on the Merits

[86] The third factor is explained by the court in Grant (supra), at paragraph 79:

79 Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.), at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[87] The evidence of the grow operation and cash found upon searching the residence is real evidence and therefore relevant and reliable; it is fundamental to the Crown’s case. This points in the direction of admission of the evidence.

[88] Society has an interest in the public and transparent trial of those accused of transgressing the criminal law, that is, there is a collective public interest in seeking the truth.

[89] However, it is the long-term repute of the justice system that I must consider. As the court in Grant (supra) pointed out, at para 84:

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[90] In my view, the circumstances surrounding the Charter-violating search are so egregious that to admit the evidence thereby discovered would irrevocably taint the public perception of the administration of justice.

[91] I find the third factor to strongly support exclusion of the evidence.

Conclusion

[92] Having consideration of all the circumstances of the case, including my finding that Cst. Ford’s actions violated the section 9 and 10(a) and 10(b) Charter rights of the accused, as well as their rights under section 8, I have determined that the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

Decision on the Voir Dire

[93] Therefore, I order excluded all evidence found as a result of the warrantless search of the residence.

Dated at the City of Calgary, in the Province of Alberta this 1st day of March, 2017.

M.T.C. Tyndale A Judge of the Provincial Court of Alberta

Appearances:

A. Fugeman-Millar

for the Crown

J. Ouellette

for the Defence