C.J.Q.B. THE JUDGE FEELS THIS DECISION DOES NOT WARRANT PUBLICATION 2001 SKQB 485 Q.B. N.J. A.D. 2001 No. J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and TONI LESLEY SPARVIER Paul Goldstein for the Crown Patricia A. McNeill McCrea for the accused DECISION October 30, 2001 D.H WRIGHT J. [1] The accused is charged with ten counts. They include robbery, aggravated assault, assault causing bodily harm, possession of stolen property, and trafficking in narcotics. They result from violent robbery which took place at Nordon Drugs in Saskatoon on July 27, 2000. The drugs were apprehended by the Moose Jaw Police Service acting on information received from the Saskatoon Police Service on August 3, 2000. [2] The accused was arrested in Moose Jaw on August 3, 2000, at which time the police also seized duffel bag or gym bag containing quantity of narcotics. [3] The accused has objected to her arrest and to the seizure of the duffel bag, relying on ss. 9 and 8 of the Charter of Rights and Freedoms. conducted voir dire as result at the opening of the trial. It occupied five days. great deal of evidence was presented, the majority of which was elicited in very detailed and extended cross-examination. The accused also called evidence on the voir dire, but did not testify. SECTION 9: THE ARREST [4] S. 495(1) of the Criminal Code of Canada reads as follows: 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 office; (b) person whom he finds committing criminal offence; or (c) person in respect to whom he has reasonable grounds to believe that warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [5] What constitutes "reasonable and probable grounds" was considered by the Supreme Court of Canada in R. v. Storry (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3D) 316 at page 324: In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish prima facie case for conviction before making the arrest. [6] Constable Jesse of the Moose Jaw Police Service was advised on August 3, 2000, by Sergeant Martin, senior officer with the Criminal Investigation Branch of the Saskatoon Police Service, of the Nordon robbery. [7] Sergeant Martin identified the accused as the robber and told Jesse warrant was being obtained for her arrest. Martin instructed Jesse to arrest Ms. Sparvier. He also relayed the fact that Otto Hansen, who lived in Moose Jaw, was reported by an independent and confidential informant to have large quantity of narcotics for sale. Hansen was identified as the accused's boyfriend. [8] Otto Hansen was arrested by the Moose Police on August 3, 2000, near his Moose Jaw home. Constable Jesse was present at the arrest and noted that it took place in clear view of the Hansen residence short block away. He testified he was concerned that Hansen's associates would see the arrest and try to escape or dispose of evidence. [9] Armed with this knowledge, Jesse went immediately to the Hansen residence. He entered the outside porch and knocked at the door to the house proper. He observed female standing inside near the front door. He asked her if she was Toni Sparvier and she confirmed she was. He then opened the door, entered, identified himself as peace officer, and arrested her. He observed dark-coloured duffel bag located on the floor near Sparvier and saw her glance at the bag during their conversation. He concluded from that that he should examine the bag as there was concern that it might contain weapons, given Hansen's criminal history and the character of his associates, [10] I agree with the Crown that the four requirements set out in R. v. Feeney for a warrantless search were satisfied in this case. Those requirements appear at page 144 of the decision, which is reported at (1997) 1997 CanLII 342 (SCC), 115 C.C.C. (3D) 129. It is not necessary that repeat them here as they are set out in the Crown's brief. Section 8: Search and Seizure [11] I have found the arrest of the accused was lawful. The Crown contends that the search of the house and the seizure of the duffel bag was incidental to the arrest and therefore lawful. Jesse testified that he acted promptly when Sparvier attracted his attention to the bag. He also expressed his concern about what it might contain and that the bag might disappear if he did not take immediate action to seize it. [12] S. 529.3 of the Criminal Code reads as follows: (1) Without limiting or restricting any power peace officer may have to enter dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending person, without warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain warrant. (2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer ... (b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [13] refer to the comments of the Supreme Court of Canada in R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3D) 97 at page 108: [19] As L'Heureux-Dube J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be reasonable one. [20] To be clear, this is not standard of reasonable and probable grounds, the normal threshold that must be surpassed before search can be conducted. Here the only requirement is that there be some reasonable basis for doing what the police officer did. [emphasis in original] And at p. 109: [20]...police would be entitled to search an arrested person for weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be "valid objective" served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. [22] Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. [emphasis in original]. And at page 110: [25] In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. [14] Constable Jesse was fully justified in taking the action he did with respect to the seizure of the bag. [15] There are two other matters must address. Firstly, did Ms. Sparvier have reasonable expectation of privacy? There is no evidence to explain her presence in the Hansen house. She had her own residence in Regina. [16] Counsel cited number of cases. In my respectful view, the one which is most apposite is R. v. Edwards 1996 CanLII 255 (SCC), [1996], S.C.R 128. refer to the following passage from the headnote: Several principles pertain to the s. right to be secure against unreasonable search or seizure. claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed. Like all Charter rights, s. is personal right. It protects people and not places. The right to challenge the legality of search depends upon whether the accused had reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably. reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii)ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access; (vi) the existence of subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. If an accused person establishes reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in reasonable manner. The accused had no privacy interest in the goods seized as he had denied that the drugs were his. He demonstrated no expectation of privacy in his girlfriend's apartment, which was the only other relevant privacy interest. His girlfriend described him as "just visitor" who stayed over occasionally. He contributed nothing to the rent or household expenses and had no authority to regular access to the premises. [emphasis added] The police conduct did not affect personal right of the accused. It was accordingly not necessary to consider whether the accused could contest the admissibility of the evidence pursuant to s. 24(2) of the Charter or whether the accused's girlfriend did in fact consent to the search of her apartment. The reasonable expectation of privacy concept has worked well in Canada. It has provided to be reasonable, flexible, and viable and should not be abandoned in favour of the discredited rule of automatic standing. [17] Edwards had more justification for arguing privacy in his girlfriend's apartment than the accused did here, and, as the Court noted, his submissions were rejected. In my respectful view, the accused had no expectation of privacy in this case either as to the residence or the bag. [18] In respect to that issue, must consider the question of standing, matter raised by the Crown early in the proceedings. The decision in R. v. Edwards, which have already quoted, is on all fours. [19] In the present case there was no evidence tying the accused to the gym bag. It was of different description than the one used in the Nordon robbery. The accused has never asserted ownership of the bag or made any claim to any interest or right with respect to it. [20] note also that the gym bag constituted non-conscriptive evidence, another factor which must bear in mind in light of the suggestion that the evidence should be excluded under s. 24(2) of the Charter. [21] If there were any violations of the accused\'s rights under the Charter, and I have concluded there were not, they were of a minor nature and certainly not sufficiently egregious to engage the provisions of s. 24(2) of the Charter. To exclude the evidence in question would, in fact, bring the administration of justice into manifest disrepute. [22] The actions of the police were not unlawful with respect to either the arrest or search and seizure.
The accused was charged with ten counts including robbery, aggravated assault, assault causing bodily harm, possession of stolen property and trafficking in narcotics. She raised s.9 and 8 of the Charter in objecting to the arrest and seizure of the duffel bag. The voir dire occupied 5 days. HELD: 1)The four requirements set out in R. v. Feeney for a warrantless search were satisfied. The arrest was lawful. The search of the house and seizure of the duffel bag was incidental to the arrest and therefore lawful. 2)The accused had no expectation of privacy with respect to either her friend's residence or the bag. The decision in R. v. Edwards was squarely on point. There was no evidence tying the accused to the gym bag. It was of a different description than the one used in the drugstore robbery. The accused never asserted ownership of the bag or made any claim to any interest or right with respect to it. The gym bag constituted non-conscriptive evidence. 3)If there were any violations of the accused's Charter rights (and it was concluded there were not) they were of a minor nature and not sufficient to engage the provisions of s.24(2) of the Charter. To exclude the evidence would bring the administration of justice into disrepute.