J. Q.B.J. A.D. 1995 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and FLOYD GERALD LALIBERTE and WALTER VILLEBRUN APPLICANTS P.A. Tondevold for the applicant, Floyd Gerald Laliberte B.G. Morgan for the applicant, Walter Villebrun T.B. Macnab for the respondent JUDGMENT HRABINSKY J. November 14, 1995 The applicants (accused) were arraigned and each plead not guilty to the following counts: That they: 1. on or about the 21st day of February, A.D. 1994 at or near Saskatoon, Saskatchewan did steal cigarettes and $27.00 cash from 7-11 convenience store, 3303A 33rd Street West, while armed with an offensive weapon or imitation thereof, contrary to Section 343(d) and Section 344 of the Criminal Code. 2. on or about the 21st day of February, A.D. 1994 at or near Prince Albert, Saskatchewan did have in their possession property, 1993 Mercury Topaz automobile of value exceeding one thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1) of the Criminal Code. Following the "not guilty" pleas both accusedapplied for an order pursuant to s. 24(2) of the Charter ofRights and Freedoms for exclusion of evidence consisting of aknapsack and its contents on the grounds that the knapsack andits contents were obtained in contravention of their rights tobe secure from unreasonable search and seizure pursuant to s.8 of the Charter, such that admission of this evidence wouldcontravene their Charter rights. THE FACTS On the voir dire the Crown called Constable Roger Jones, 1-year veteran in the Royal Canadian Mounted Police who was stationed in Prince Albert. He testified that in the morning of February 21, 1994 he received radio call from the Rosthern Detachment advising him of theft of approximately $50.00 at Trappers Service in Duck Lake. His assistance was required to intercept small light blue car with an out-of- province license plate with two native people in it travelling north toward Prince Albert. He was advised that the driver had tatoos on the back of his hands and the other individual was intoxicated. He drove toward Duck Lake and met the Rosthern R.C.M.P. detachment officers. Assuming that the light blue vehicle had made it into Prince Albert, he radioed Sgt. James Bell who advised him that he located the vehicle at approximately 9:45 a.m. Cst. Jones met Sgt. Bell at 19th Street and 4th Avenue in Prince Albert at four-plex. They approached apartment "B" and knocked on the door. On examination-in-chief Cst. Jones said he heard someone say, "Come in". He announced that it was the police and walked in followed by Sgt. Bell. He observed two children in the living room and woman standing at the top of the stairs. The woman told them her name was Myrna Johnson and said she lived there. In response to question posed by Cst. Jones she said she knew the two men to see them only but did not know their names. conclude therefore that apartment "B" was not the home of either of the two accused. In response to another question the woman said that the two men had just arrived. He asked her if two fellows had come in. She said nothing but looked toward the kitchen at which time he saw the two accused sitting at the table with bottle of liquor and two glasses. Cst. Jones said that they fit the descriptions he had been given. He told the accused that he was investigating theft of money from Trappers Service at Duck Lake and asked for their names. There was no reply. He told them he thought they were responsible for the theft. Floyd Laliberte stood up and Cst. Jones grabbed his wrist. scuffle ensued. He and Sgt. Bell wrestled Floyd Laliberte to the floor. They arrested and hand-cuffed him. Floyd Laliberte refused to divulge his name and refused to willingly accompany the officers outside. During this time Walter Villebrun sat peacefully at the table. He accompanied the officers peacefully and was hand-cuffed. The two officers read Floyd Laliberte his rights and gave him the warning. They also advised him the reason for his arrest. Walter Villebrun was also read his rights and was given the warning. Both accused were searched for weapons. They found one $20.00 bill, two $10.00 bills, one $2.00 bill, one $1.00 bill in Floyd Laliberte's pocket. Walter Villebrun had some cassette tapes, hockey cards, black leather gloves and toque. On cross-examination Cst. Jones admitted that he made notes on the day in question which contain, inter alia, the following: We knocked on the door and rang the No answer. turned knob. It was unlocked. went in calling out, "It is the police". Saw couple of kids and Cst. Jones said that about the same time when he was making his notes (he was not sure if it was before or after) he made up police report which shows that at 10:05 a.m. on February 21, 1994: arrived and we went to the door. knocked and rang the door bell. thought heard "come in". opened the door and shouted "police" when entered. saw couple of kids and woman. went up the stairs to the kitchen. Sgt. Bell went to the basement. Sgt. James Bell, 32-year veteran with the R.C.M.P., testified that he was informed by Cst. Jones that he was going out toward Rosthern to assist the Rosthern Detachment in connection with theft at Trappers Service in Duck Lake. Sgt. Bell left to assist Cst. Jones in intercepting small blue car with an out-of-Province license. In the car were two natives who had numerous tatoos on their arms. When he realized that he missed the car he returned to Prince Albert. He stopped at Shell service station where he learned that car fitting the description with two natives fitting the descriptions had been there. At 395 19th Street and 4th Avenue, Sgt. Bell located the car bearing British Columbia license number PCL 314. He observed two natives fitting the descriptions given to him leave the car and enter the four-plex. Sgt. Bell asked tenant if two individuals had gone into his suite which was suite "A". The tenant replied, "No, into apartment `B' ". When Cst. Jones arrived they knocked on the door and announced their presence as police. Sgt. Bell said that they were admitted into the apartment. According to him the lady reacted favourably to their presence. Sgt. Bell confirmed much of Cst. Jones' testimony. However, Sgt. Bell said that as they started going down the stairs after hand-cuffing the two accused he noticed an open knapsack full of cigarettes in plain view. He said he had been transferred about year before to Prince Albert from Moosomin where they had been plagued with cigarette thefts. Accordingly, he assumed the cigarettes were stolen because of the quantity and because of the various brands: cartons of Export packs of Rothmans King Size packs of Players Filter packs of Players Light packs of Players Extra Light pack of Players King Size Extra Light. Sgt. Bell asked the woman if they were hers and she answered, "No, or something to that effect". Sgt. Bell seized the leather knapsack and the cigarettes. On cross-examination Sgt. Bell said he did not hear what was said from inside apartment "B" after they rang the doorbell because he has trouble hearing at the best of times. He also admitted that he did not know if they were investigating theft or break and enter. THE ISSUES Was there violation of the applicants' s. Charter rights and, if so, should the evidence of the leather knapsack and the cigarettes be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms? THE LAW Sections and 24 of the Canadian Charter of Rights and Freedoms read: 8. Everyone has the right to be secure against unreasonable search or seizure. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in 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. The pertinent portions of s. 495 of the Criminal [450] (1) peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, (2) peace officer shall not arrest person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according (3) Notwithstanding subsection (2), peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). (emphasis added) THE RIGHT TO ENTER PREMISES The accused bear the burden of persuading the Court that their Charter rights or freedoms have been violated or denied, once they have shown that the search was warrantless search. The Crown has the burden of showing, on balance of probabilities, that the search was reasonable. See: Collins v. The Queen (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) (S.C.C.). In R. v. Landry (1986), 1986 CanLII 48 (SCC), 25 C.C.C. (3d) (S.C.C.) Dickson C.J.C. (Chouinard, Lamer and Wilson J.J. concurring) stated at p. 13: peace officer making an arrest on private premises without warrant is in the execution of his or her duty for the purposes of s. 450(1)(a) of the Criminal Code if the criteria of that section and the standards enunciated in Eccles v. Bourque have been satisfied. The proper questions to be asked are: 1. Is the offence in question indictable? 2.Has the person who is the subject of arrest committed the offence in question or does the peace officer, on reasonable and probable grounds, believe he or she has committed or is about to commit the offence in question? 3.Are there reasonable and probable grounds for the belief that the person sought is within the premises? 4.Was proper announcement made before entry? An affirmative answer to all of these questions will mean that the arrest is lawful. find that Cst. Jones believed on reasonable grounds that the accused committed theft of approximately $50.00. The punishment for theft where the value of what is stolen does not exceed five thousand dollars is set out in s. 334(b) of the Criminal Code as follows: [294] Except where otherwise provided by law, every one who commits (a) (b) is guilty (i) of an indictable offence and is liable to imprisonment for term not exceeding two years, or (ii) of an offence punishable on summary conviction, where the value of what is stolen does not exceed five thousand dollars. The offence in question may be prosecuted either as an indictable offence or as an offence punishable on summary conviction. Section 34(1)(a) of the Interpretation Act, R.S.C. 1985, c. I-23 reads: (1) Where an enactment creates an offence, (a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment. (emphasis added) In Re Monkman and The Queen (1975), 26 C.C.C. (2d) 73 (Man. C.A.), Freedman, C.J.M. dealt with the offence of criminal negligence in the operation of motor vehicle. Section 233(1) of the Criminal Code read: 233(1) Every one who is criminally negligent in the operation of motor vehicle is guilty of (a)an indictable offence and is liable to imprisonment for five years, or (b)an offence punishable on summary conviction. Although s. 233(1) did not state that the offence "may" be prosecuted by indictment Mr. Justice Freedman held that it fell within s. 27(1)(a) of the Interpretation Act, R.S.C. 1970, c. I-23, which section is identical to s. 34(1)(a). He held that it was an indictable offence and stated at p. 78: We must keep in mind the distinction between the nature of an offence and the nature of the proceedings to enforce an offence. The offence of criminal negligence in the operation of motor vehicle may indeed be prosecuted by way of summary conviction. But until the Crown should elect to proceed by that alternative route something that has not here occurred and indeed may never occur there is no ground for even thinking of the offence or the proceedings as other than indictable. In R. v. Huff (1979), 1979 ABCA 234 (CanLII), 50 C.C.C. (2d) 324 (Alta. C.A.) the court held that hybrid offences are deemed to be indictable until the Crown elects otherwise. See also Regina v. Toor (1973), 1973 CanLII 1376 (BC SC), 11 C.C.C. (2d) 312 (B.C.S.C.). find that the offence of theft not exceeding $5,000.00 "may" be prosecuted by way of summary conviction but until the Crown elects to proceed in that manner the offence is deemed to be indictable. Accordingly, the first question posed in R. v. Landry is answered in the affirmative. find that Cst. Jones believed on reasonable and probable grounds that the accused had committed the offence in question. Thus the second question posed in R. v. Landry is answered in the affirmative. Sgt. Bell saw the two accused enter the four-plex. Upon enquiry he learned that they had entered apartment "B". find that he had reasonable and probable grounds for the belief that the persons sought were within the premises. The third question posed in R. v. Landry is answered in the affirmative. accept the evidence of Cst. Jones and Sgt. Bell that before entering they knocked on the door and announced their presence as "police". Although the evidence of Cst. Jones is somewhat contradictory on the issue of whether anyone inside the premises said "come in" in response to the knock on the door, Sgt. Bell testified that they were admitted into the apartment and the lady in the premises reacted favourably to their presence. find that the officers made proper announcement before entering the premises. The fourth question posed in R. v. Landry is answered in the affirmative. I conclude the officers were lawfully present in thepremises when Sgt. Bell inadvertently found the knapsack andits contents which were in plain view. He reasonably believedthat the knapsack and the contents were evidence of a crime. Therefore it was neither unreasonable nor unlawful for him toseize these items. In so concluding have referred to number of decisions including R. v. Grenier (1991), 65 C.C.C. (3d) 76 (Que. C.A.), and R. v. Nielsen (1988), 43 C.C.C. (3d) 548 (Sask. C.A.). I find that the search was authorized by law and themanner in which it was carried out was reasonable. In R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297, case dealing with warrantless search, Mr. Justice Cory delivered the majority decision. At p. 366 there is the following: Factors to be Taken into Account in Consideration of s. 24(2) of the Charter In Collins, supra, at p. 284 and p. 288, Lamer J. (as he then was) set out the three primary factors which should guide the consideration of Court in determining whether evidence should be excluded under s. 24(2) of the Charter. These are: (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. Even if the accused's rights under s. 8 of theCharter had been violated this would not be a proper case toexclude the evidence under s. 24(2) of the Charter. Thefairness of the trial will not be affected by the admission ofthe evidence. The manner in which the search was conductedwas neither abusive nor excessive. On the contrary, theevidence was in plain view and was found inadvertently. The evidence is real and tangible. The admission of this evidencewill not have an adverse effect upon the reputation of theadministration of justice. The application to exclude evidence is denied.
Following the 'not guilty' pleas, both accused applied for an order pursuant to s. 24(2) of the Charter of Rights and Freedoms for exclusion of evidence consisting of a knapsack and its contents on the grounds that the knapsack and its contents were obtained in contravention of their rights to be secure from unreasonable search and seizure pursuant to s.8 of the Charter. HELD: The application to exclude evidence is denied. 1)The officers were lawfully present in the premises when Sergeant Bell inadvertently found the knapsack and its contents which were in plain view. He reasonably believed that the knapsack and the contents were evidence of a crime. Therefore it was neither unreasonable nor unlawful for him to seize these items. The search was authorized by law and the manner in which it was carried out was reasonable. 2)Even if the accused's rights under s.8 of the Charter had been violated this would not be a proper case to exclude the evidence under s.24(2) of the Charter. The fairness of the trial will not be affected by the admission of the evidence. The manner in which the search was conducted was neither abusive nor excessive. The evidence was in plain view and was found inadvertently. The admission of this evidence will not have an adverse effect upon the reputation of the administration of justice.