This week’s top three summaries: R v Seyeon Lee, 2022 NSCA 3: 11(b) for late comp #contact, R v Kruger, 2023 ABPC 8: #severance and testimony, and R v Pauli and Chambers, 2023 ONSC 621: s.8 ITO 1 visit by #dealer
This week’s top case deals with a Charter remedy for delay in the prosecution. For great general reference on the law of Charter remedies, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Charter Remedies in Criminal Cases, 2nd Edition
By Matthew Asma & Matthew Gourlay
R v Seyeon Lee, 2023 NSCA 3
[January 19, 2023] Charter 11(b): Crown failure to Contact Complainant Early [Reasons by Beaton J.A. with Beveridge and Farrar JJ.A. concurring]
AUTHOR’S NOTE: Busy prosecutors sometimes do not get to pay attention to their files until a couple weeks or even days before trial. With the Jordan framework in place, and this case, that is a potential recipe for defence success. Here the need for adjournment arose due to the complainant moving out of country without notification to the Crown and due to provision (from the complainant) of additional text messages shortly before the trial. Both circumstances were unknown to the Crown. If the Crown’s lack of attention to the complainant at an early point contributes to the later adjournment because earlier contact had the chance to reveal problems that could have been ameliorated, then the Crown will bear partial fault for the adjournment – this will not justify for an exceptional circumstance. This is so despite the problems arising being “unexpected” or even “unforeseen”.
Reasons for judgment:
[1] On June 6, 2019, Mr. Lee was charged with sexual assault contrary to s.271 of the Criminal Code. His trial was originally scheduled to be heard in the Provincial Court of Nova Scotia on November 16-17, 2020. Certain matters arose which necessitated an adjournment on the first day of trial. Two weeks later, new trial dates were assigned for November 29-30 and December 3, 2021.
[2] On November 24, 2021, Mr. Lee succeeded on his application to stay the charge. The Honourable Judge Ann Marie Simmons (“the judge”) was persuaded the respondent’s s.11(b) Charter right to trial within a reasonable time had been breached. She determined the trial, scheduled to begin the following week, had exceeded the presumptively reasonable delay ceiling of 18 months prescribed in R. v. Jordan, 2016 SCC 27. The judge concluded the Crown had not met its burden to rationalize that delay.
[6] Unbeknownst to the Crown, the complainant returned to her home in South Korea in March 2020, intending to come back to Nova Scotia in September. However, on September 8th she advised Victims’ Services she would remain in South Korea. Subsequently, in the fall of 2020 the complainant disclosed to the investigating officer: (i) additional information in the form of text messages between her and Mr. Lee; (ii) she had received medical treatment relating to memory loss surrounding the events of the alleged sexual assault; and (iii) she had kept a diary.
[8] The judge’s calculations of the total delay accrued to the anticipated end of trial was 29 months and 27 days. Of that delay, two months were attributed to pandemic-related scheduling challenges and four months were attributed to defence unavailability. The net delay was therefore 24 months. The Crown was not able to persuade the judge that exceptional circumstances existed to bring that delay below the 18 month ceiling.
[9] The applicable standard of review was described by Derrick, J.A. in R. v. Pearce, 2021 NSCA 37:
[53] The standard of review for s. 11(b) appeals is a three-step process as this Court has stated previously: palpable and overriding error for findings of fact and the categorization or attribution of delay, and correctness for the allocation or characterization of the delay and the ultimate determination of whether the delay was unreasonable and warrants a judicial stay. Deference is owed to a trial judge’s assessment of responsibility for the delay because it involves findings of fact.
[57] The above accords with the Supreme Court of Canada’s recent statement in R. v. Yusuf, 2021 SCC 2, that the Ontario Court of Appeal, in the decision being appealed from (cited as R. v. Pauls, 2020 ONCA 220), had “applied the appropriate standard of review. In Pauls, the standard of review was described:
[40] …Deference is owed to a trial judge’s underlying findings of fact. Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness (cites omitted).
Exceptional circumstances
[16] The judge was required to determine whether there were discrete events that could be characterized as exceptional, and therefore out of the Crown’s control. In particular, the focus was on the issues involving the complainant that arose after Mr. Lee’s trial was first set for November 2020.
[17] Jordan instructed judges that exceptional circumstances outside the Crown’s control are those that “are reasonably unforeseen or reasonably unavoidable” and for which “Crown counsel cannot reasonably remedy the delays” arising therefrom (para. 69).
[19] The Crown says, and I agree, the attribution of the delay caused by an adjournment is not always limited simply to which party requested it. In this case, there were several reasons for the adjournment of the November 2020 trial date. The Crown says some of those relate to the actions or inactions of the defence and some relate to institutional delay on the part of the court. I would add as well that as her decision reflects, the judge was of the view the Crown also bore some responsibility in relation to that adjournment.
[20] The Crown correctly asserts the judge was required to consider whether the circumstances were unavoidable or unreasonable, but not both. It points to the judge’s analysis of exceptional circumstances and her use of the phrase “reasonably unavoidable” with the phrase “reasonably unforeseen”. The Crown says the linking of the two concepts constitutes error on the judge’s part. It says once the judge determined something was unforeseen, she did not then need to consider whether it was unavoidable, and should have instead proceeded to the second step of the analysis. Specifically, once the judge found the adjournment of the November 2020 trial was reasonably unforeseen due to the victim’s memory difficulties, she did not need to then consider also the question of whether that delay was unavoidable.
[21] The judge was thorough in her rejection of the Crown’s submissions as to exceptional circumstances:
[140] I am not satisfied that the problem was unavoidable. Unexpected, yes, but not unavoidable. Had the Crown made contact with the complainant before mid to late September, the events of October and November described above may not have occurred.
[144] In terms of whether the memory issue was unexpected, and whether this could be seen as an exceptional circumstance justifying the delay in this case, it is fair to say that the Crown would not be expected to anticipate this very serious memory problem reported in the October 30th email to the officer in charge.
[146] As I have explained, what happened here had two components. The complainant was not resident in Canada, and she experienced a serious problem with her memory of the incident. As above, had the Crown made contact with the complainant earlier, the fact that she was in Korea could’ve been addressed early on. Earlier contact with the complainant may have well brought the memory issues to the forefront much earlier, as I have described above. Accordingly, the problems could’ve been mitigated and were not truly unavoidable.
[147] The problem with respect to the memory was unforeseeable, but that begs the question of when the Crown could have or should have become aware of the problem. The example given by the majority in Jordan is not analogous to this case. A witness who unexpectedly recants while testifying is a reference to a witness who was not expected to recant prior to the start of the trial. It suggests [sic] prior contact with and preparation of the witness in advance of the trial leading to the unexpected result that the witness recants at trial.
[156] In sum I return to Jordan in [sic] the Supreme Court of Canada’s direction that discrete exceptional events which are reasonably unforeseeable or reasonably unavoidable are to be deducted from the delay period to the extent that they cannot be reasonably mitigated by the Prosecution or the justice system. If they can be mitigated but are not, then that portion is not deducted from the delay.
[157] I am not persuaded to find that the discrete event at issue here was reasonably unavoidable or reasonably unforeseen as I have discussed. Accordingly the delay occasioned by the trial being adjourned should not be deducted from delay in my view.
[22] The judge’s reasons make it clear she was not requiring that she be satisfied of both the unforeseen and the unavoidable nature of the events she determined factored into the adjournment of the trial in November 2020. The Crown has not persuaded me there is any error in this regard.
[24] The Crown also says it had no capacity to control disclosure of which it was unaware until the complainant provided it. Likewise, it suggests, had the complainant never raised her memory problems, which nonetheless eventually resolved, the Crown might never have known about that difficulty. While I do not disagree, it is apparent from the judge’s decision she interpreted the Crown’s lack of attention to the complainant, and to the case overall, at an earlier point in the timeline as contributing in a significant way to the delay caused by those developments.
[26] The Crown asks us to consider whether the judge improperly assumed that had the Crown tended to matters within its control at an earlier time, things may not have unfolded the way they did. It was open to the judge to view the Crown’s responsibility in the continuum of events as she did. Her conclusion does not constitute error, even though the Crown would have preferred a different outcome.
[27] The Crown’s argument would seem to imply it was the complainant’s obligation to reveal the existence of additional materials to the police, thereby absolving the Crown of responsibility, and thus constituting exceptional circumstances. This begs the question as to how the complainant would have been in a position to determine what might be relevant to the police or the Crown in their prosecution of the case? The suggestion the Crown does not bear responsibility for that aspect of the delay was not persuasive to the judge. In her analysis the judge was clear as to why she was attributing certain delay to the Crown, rather than concluding exceptional circumstances were in play. I see no error in the judge having found as she did.
[30] I am not persuaded the judge erred in either her categorization or attribution of delay. Nor do I see any error with respect to her allocation of delay. Her reasons make clear why the judge concluded certain delay was attributable to the Crown rather than being characterized as exceptional circumstances. I would dismiss this ground of appeal.
[39] In conclusion, the judge articulated the applicable test, applied it to the circumstances before her, and reached a set of conclusions which, absent error, are entitled to deference.
[40] I would dismiss the appeal.
R v Kruger, 2023 ABPC 8
[January 16, 2023] Severance and Testimonial Intent of the Accused [Judge A.A. Fradsham]
AUTHOR’S NOTE: This case is a great short summary of severance principles applicable to the testimonial intent of the accused. As long as the stated intent to testify is “objectively justifiable” looking at the circumstances of the case, the severance application is likely to succeed. An accused should not have to choose between their right to silence on some charges and advancing a valid defence to others.
Introduction
[1] On Information 221135031P1, Mr. Kruger is charged as follows:
Count 1: On or about the 22nd day of July, 2022, at or near Calgary, Alberta, did unlawfully wound, maim, disfigure, or endanger the life of Kelly Okeynan, thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada.
Count 2: On or about the 11th day of August, 2022, at or near Calgary, Alberta, did unlawfully assault Kelly Okeynan, contrary to section 266 of the Criminal Code of Canada.
Count 3: On or about the 11th day of August, 2022, at or near Calgary, Alberta, did wrongfully and without lawful authority, for the purpose of compelling Kelly Okeynan to abstain from doing anything that he or she had a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, use violence or threats of violence to that person or their intimate partner or children, or injure the person’s property, contrary to section 423(1)(a) of the Criminal Code of Canada.
[3] Mr. Kruger has applied, relying on section 591(3)(a) of the Criminal Code, for an order that he be tried on count 1 separately from counts 2 and 3.
[4] I granted that application on January 9, 2023 and promised written reasons for that decision. These are those Reasons.
Analysis
[6] Section 591(3)(a) states:
“(3) The court may, where it is satisfied that the interests of justice so require, order (a) that the accused or defendant be tried separately on one or more of the counts….”
[7] “A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance”: R. v. Arp [1998] 3 SCR 339, at paragraph 52.
[8] In 2009, the Supreme Court of Canada set out a non-exhaustive list of factors to be considered by a court as it works towards determining whether a particular applicant has met his or her onus under the section. At paragraphs 16-18 of R. v. Last [2009] 3 SCR 146, Justice Deschamp, speaking for the entire panel of the Court, said:
[16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
[17] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.
[18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons: R. v. E. (L.) (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 CanLII 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 CanLII 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d 1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).
[9] In the case at bar, there are two sets of allegations. Very briefly stated, there is an allegation that on July 22, 2022, the accused used a weapon in assaulting the complainant (Count 1). There is an allegation that on August 11, 2022, the accused assaulted the complainant, and threatened him (Counts 2 and 3). On that occasion, it is alleged that the accused called the complainant “a rat”.
[10] The issues raised by the accused in support of his application to sever count 1 from counts 2 and 3 are as follows:
(2) Counsel for the accused submitted that “it is anticipated that Mr. Kruger will testify with respect to the aggravated assault charge…and articulate a defence of self-defence. It is not anticipated that Mr. Kruger will give evidence with respect to the acts complained of under Counts 2 and 3….”. I respectfully adopt the comments of Justice Yamauchi in R. v. Cooper 2011 ABQB 316, at paragraph 57: “The Applicant’s stated intention to testify on one count but not another is a fact that deserves significant weight. However, it is not determinative in a severance application: Last at para 27. This Court must decide whether that stated intention is objectively justifiable or, even if it is, whether this stated intention is outweighed by other factors that show that the interests of justice require a joint trial: Cross at paras 49-54. Last at para. 26, reminds us that ‘[t]he burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.’ The Applicant has met that requirement.” In the case at bar, I too am satisfied that the accused’s stated “testimonial intention” is objectively reasonable. Requiring the accused to have one trial in respect of all three counts on the Information will likely require him to make a choice between his section 11(c) Charter right to silence in respect of counts 2 and 3, and his section 650(3) right to make full answer and defence in respect of count 1. I make one additional comment on this aspect of the severance application. The Crown submitted that I could address the accused’s concerns by restricting the Crown’s ability to cross-examine the accused; that is, I could prevent the Crown from cross-examining the accused on matters related to Counts 2 and 3. With respect, I am of the view that such an approach would be troublesome. First, as will be seen below, the Crown sees a connection between Count 1 and Counts 2 and 3. It would therefore be difficult for the Crown to treat these matters as watertight compartments. Second, the right of cross-examination is to be jealously guarded (see: R. v. Lyttle 2004 SCC 5; R. v. Shearing 2002 SCC 58; R. v. AJR [1994] 2 OR (3d) 405 (ONCA); R. v. Fast 2022 ABCA 33). An improper restriction of the right to cross-examine will often lead to an order for a new trial: R. v. RV 2019 SCC 41. In the case at bar, there seems to be no compelling reason to artificially restrict the Crown’s right to cross-examine when there is an alternate, and, in this case, not disruptive, course of action (severance of the counts) which will preserve both the rights of the accused and the Crown.
[11] The Crown submitted that there are other concerns which weigh against granting a severance order:
(1) The similarities between (a) the events alleged in Count 1, and (b) the events alleged in Counts 2 and 3, are that the accused and the complainant are the same. The Crown submitted that the utterance of the word “rat” by the accused towards the complainant referred to the incident alleged in Count 1. The Crown submitted (in its written material): “The Crown cannot prove the essential element of intent in relation to count 3 without making reference to count 1. It is necessary for the Court to have context in order to understand what is being alleged. The essential element of count 3 relates to count 1 in examining mens rea of the accused when he allegedly referred to the victim as a ‘rat’ prior to the assault…The Crown does not advance the factual connection between these counts based on similar fact evidence. Rather the reliability of the evidence pertains to extrinsic misconduct in order to establish intent on count 3 and challenge credibility on count 1 (should the accused advance that defence).” In my view, holding a trial for Count 1 separate from the trial held for Counts 2 and 3 will neither prevent, nor greatly inconvenience, the Crown in the effective prosecution of these matters. Evidence of “context” can be easily led in a trial on Counts 2 and 3.
(2) Two trials will take longer than one trial. That may be true, but, in the facts of this case, the additional time needed for two trials is not significant.
[12] To be complete, I note that the Crown has fairly noted that it does not intend to rely on similar fact evidence. I also note that in the facts of this case, there is no concern about inconsistent verdicts.
[13] When I assess all the relevant factors, I am satisfied, on a balance of probabilities, that it is in the interests of justice that count 1 be severed from counts 2 and 3. An order for severance will not materially inconvenience either the Crown or the Court system, and it will protect the accused’s right to make full answer in defence, and to exercise his rights under section 11(c) of the Charter.
R v Pauli and Chambers, 2023 ONSC 621
[January 24, 2023] Charter s.8: Visits by a Drug Dealer to a Residence do not Provide Reasonable Grounds [Justice M.D. McArthur]
AUTHOR’S NOTE: Although there are circumstances where a single home visit by a drug dealer can be sufficient (eg. when carrying large bag from that residence that matches an item seized later with drugs), with just a series of regular visits with no indicators of drug trafficking there is not sufficient grounds to grant an ITO for a residence search. This is so despite there being a great case for arresting the drug dealer otherwise.
RULING ON SECTION 8 APPLICATION
Background
[1] The Stratford Police Service investigated Duane Lewis, a person suspected to be a mid-to- higher-level drug trafficker. The investigation went over a seven-week period and involved confidential informants, surveillance and various judicial authorizations including a tracking warrant.
[2] The information from the confidential informants basically indicated that Duane Lewis was selling cocaine and methamphetamine and drove a grey Nissan automobile. Mr. Lewis had a criminal record for trafficking substances and conspiracy to traffic.
[3] An initial set of search warrants were sought and obtained on September 29, 2020 and were valid until October 2, 2020. These warrants did not reference 224 Elgin Street East, St. Mary’s address. The Information to Obtain (ITO) for both set of search warrants referenced earlier surveillance that involved locations in Kitchener, Stratford, Woodstock and elsewhere. The latter ITO added the St. Mary’s address.
[4] On October 4, 2020, Mr. Lewis was observed driving to a location in the northeast area of London for 16 minutes and then leaving and driving to 224 Elgin Street East, St. Mary’s, the residence of Ms. Pauli where Mr. Lewis remained for 2 hours and 28 minutes. He departed that location and drove toward Stratford when he was stopped by police and arrested and found to be in possession of 174 grams of cocaine, 404 grams of methamphetamine, 55-6 milligram hydromorphone pills, 2-3 milligram hydromorphone pills and one 12 milligram hydromorphone pill.
[5] The affiant deposed that he believed Duane Lewis purchased substances in London and then trafficked substances at the residence address of 224 Elgin Street East, St. Mary’s. The affiant applied for a tele-warrant involving various earlier-identified residences as well as the Elgin Street property.
The Legal Principles
[9] The well-established test is, on the totality of the circumstances, whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. See R. v. Araujo, 2000 SCC 65 at para 51 and 54 and R. v. Morelli, 2010 SCC 8 at para 40.
The Issue – sufficiency of evidence
[10] The issue in this case is whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that evidence of the offence of possession for the purpose of trafficking in cocaine and methamphetamine would then be found at 224 Elgin Street East, St. Mary’s.
[11] The court’s analysis of the evidence should be contextual as opposed to piecemeal. See R. v. Nero, 2016 ONCA 160. A police officer’s training and experience may be relevant in determining whether the requisite legal standard for a search has been met, however, courts are not required to uncritically accept or deferred to a police officer’s conclusion just because it is grounded in their experience and training. See R. v. MacKenzie, 2013 SCC at paras 50 and 64.
Analysis
[13] However, where there are multiple locations sought to be searched, it is the sufficiency of the evidential connection of the specific location that is to be considered in the context. This is the issue in this case.
The ITO in issue
[14] The ITO for the tele-warrant in this matter involves approximately 90 paragraphs of information. It is substantially the same ITO in relation to obtaining the earlier search warrant except with the additional references to 224 Elgin Street East, St. Mary’s which were not mentioned in the earlier ITO.
[15] The evidentiary context prior to October 4, 2020 includes the ITO references involving police surveillance on Mr. Lewis. Mr. Lewis had an apartment in the residence at 586 Brunswick Street, Stratford. The police made the following observations:
-
- Mr. Lewis attending 78 Guelph Street, Stratford, the residence of an individual known to be involved in the drug culture and who had been convicted of drug possession and possession for the purpose of trafficking;
- Mr. Lewis attending 141 Brydges Street, the residence of a person was known to be convicted of drug possession multiple times;
- Mr. Lewis attended a specific trailer and campground site in Kitchener. While there, another individual arrived and a hand-to-hand transaction with Mr. Lewis was observed to take place at the individual’s vehicle over a seven-minute period. Mr. Lewis is also observed at the trailer site in relation to other brief periods of Mr. Lewis meetings with individuals;
- Mr. Lewis’ attendances at these locations or the other individuals’ attendances at Mr. Lewis’s residence was numerous and of a brief duration from a few minutes to less that a 1⁄2 hour and usually in the shorter part of this range of 3 to 5 minutes.
[16] Mr. Lewis had a criminal record with multiple conviction entries of convictions in Stratford and London with one conspiracy to traffic in substances in 1999. He was also charged in February 2019 with 3 counts of simple possession of methamphetamine, cocaine and hydromorphone in relation to a domestic occurrence.
Events of October 4 and 5, 2020
[17] At 1:12 am on October 5, 2020, Mr. Lewis was stopped while operating his motor vehicle. Police discovered 174 grams of cocaine, 404 grams of methamphetamine, 55 – 6 mg and one-12 mg hydromorphone tablets in his possession. In the ITO, the police reviewed the tracking data from his cell phone for October 4, 2020 with Mr. Lewis’s vehicle attending in the north-east area of London at Highbury Ave and Fanshawe Park Road for 16 minutes and then proceeding to 224 Elgin Street East, St. Mary’s, arriving at 10:28 pm and remaining for 2 hours and 28 minutes and then proceeding toward Stratford.
[19] None of the confidential informants in the ITO make reference to 224 Elgin Street East, St. Mary’s, the applicant nor the co-accused present at the applicant’s residence.
[20] The ITO specifically outlines the grounds to believe things sought will be present at specific locations, namely;
b. 224 Elgin Street East, St. Mary’s in paragraphs 86 to 90 of the ITO which, in summary, are as follows:
- The affiant believes methamphetamine and cocaine will be located along with packaging, paraphernalia to weight, traffic and administer these substances including cell phones, computers and other offence-related property;
- On dates in September 2020, Mr. Lewis was observed by surveillance attending 224 Elgin Street East, St. Mary’s on numerous occasions. The cell phone tracking data on October 4th is as outlined above. Mr. Lewis was found in possession of the substances when stopped operating his vehicle after being at this residence. [Emphasis by PJM]
Discussion and Findings
[21] Firstly, unlike all of the other locations targeted in the ITO, there is no drug connection with any of the occupants then at 224 Elgin Street East, St. Mary’s. The applicant was known and identified. Ms. Pauli was not identified as having any reference or connection to any past or ongoing drug involvement or associations. None of the surveillance on numerous occasions identified short duration visits, hand-to-hand transfers or other observations reasonably connected to drug activity. The co-accused was also not identified in advance as having any connection to either the residence or drug activity in any manner.
[22] Secondly, the tracking data of Mr. Lewis’s vehicle to London for October 4, 2020, without any other supportable indications such as surveillance or other evidence, leaves the court to speculate on the source(s) of the substances in Mr. Lewis’s possession and, in any event, do not advance the connection of the residence, the property, its outbuildings or its occupants to any drug activity or association other than mere suspicion. Simply put, without other proximate context, a court cannot do more than find this as mere suspicion.
[24] Thirdly, the context alone in this case does not enhance the inferences to be made in relation to 224 Elgin Street East, St. Mary’s or its occupants beyond mere speculation. The Federal Crown in submissions referenced police experience, other investigative theories and possibilities that could lend support to warrant. There may be cases where these are considerations that the court considers. However, if this case the basis of the connections to the specific property at 224 Elgin Street East, simply do not rise above mere speculation and supposition notwithstanding the strength of the connections with other properties and amongst the other individuals in relation to drug activities.
Sufficiency and Section 8 Charter
[25] For these reasons, this court finds that, only in relation to 224 Elgin Street East, St. Mary’s, there was insufficient evidence to permit the issuing justice to find reasonable and probable grounds to believe that evidence of the offence of possession for the purpose of trafficking in cocaine and methamphetamine would then be found at that location.
[26] Based on this finding, the search warrant for 224 Elgin Street East, St. Mary’s should not have issued, the search was unreasonable and in violation of the applicant’s rights under Section 8 of the Canadian Charter of Rights and Freedoms.
Section 24(2) Charter
[27] As to the evidence seized, the police search at this location after obtaining the tele-warrant resulted in seizing 62.4 grams of methamphetamine found in the applicant’s bedroom. Both the applicant and the co-accused were found in the applicant’s bedroom at the time of the search.
[29] The approach that governs the determination of the admission of evidence obtained in breach of a Charter right is set out in R. v. Grant, 2009 SCC 32 and related and subsequent cases. There are, in brief, three factors to be considered:
1. The seriousness of the Charter infringing state conduct;
2. The impact of the breach on the Charter protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits.
[30] In relation to the first factor, the search of a person’s residence without proper grounds is serious infringing. Even though the fact of the tracking data involving Mr. Lewis in relation to the applicant’s residence and earlier surveillance mentioned are features that likely would have been a feature of the ITO, the courts ought not to be seen condoning unlawful conduct and intrusion into the homes of persons without a proper basis.
[32] The second factor is the impact of the breach of the Charter protected interests of the Applicant. A warrantless search of a residence is amongst one of the more serious intrusions upon privacy. This factor also leans towards exclusion of the evidence obtained.
[34] This court finds that, although this third factor may militate towards admission of the evidence, the first and second factors combined favour exclusion and, overall, on balance, favour the exclusion of evidence in this case.
Conclusion and Order
[35] This court orders that the evidence obtained pursuant to the search of 224 Elgin Street East, St. Mary’s shall be excluded.
Charter Remedies in Criminal Cases, 2nd Edition
By Matthew Asma & Matthew Gourlay
