nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 106 Date: August 31, 2016 Information: 37253347 Location: Moose Jaw Between: Her Majesty the Queen and Christine Jasmine Leigh Bigsky Appearing: Curtis Wiebe For the Crown Suzanne Jeanson For the Accused JUDGMENT D. KOVATCH, [1] The accused, Christine Jasmine Leigh Bigsky is charged that on March 23, 2015, she committed an assault on Jennifer Buchanan, contrary to section 266 of the Criminal Code. She is also charged that on the same date she breached probation order by failing to keep the peace and be of good behaviour. [2] The complainant Jennifer Buchanan is child protection worker employed by the Saskatchewan Ministry of Social Services. On the date in question, she enlisted the assistance of the Moose Jaw Police Service so that she could enter the accused’s home, to investigate whether the accused’s children were in need of protection, and if necessary to apprehend those children. After the complainant and police entered the accused’s apartment suite, the accused kicked and hit the complainant. There is no doubt that Ms. Bigsky’s actions could legally constitute an assault. The defence argued that her actions were justified under the common law and provisions of the Criminal Code, on the basis of her defence of property and defence of third person. The defence also argues that the complainant and police subjected the accused to an unlawful and unreasonable search and seizure, and infringed her rights contrary to section of the Charter. The defence asks that the evidence that was obtained following the unlawful entry into the accused’s home be excluded. THE EVIDENCE [3] The defence admitted the identity of the accused and the jurisdiction of the court. It also admitted that on March 23, 2015, the accused was under probation order that required her to keep the peace and be of good behaviour. [4] The complainant, Jennifer Buchanan testified that she is child protection worker employed by the Saskatchewan Ministry of Social Services. She is also an officer appointed by the Minister under section 57(b) of The Child and Family Services Act. Between October, 2014 and June, 2015, she was working in Moose Jaw. Her duties included investigating concerns regarding children, apprehending children when necessary, making case plans and working with families within those case plans. In January, 2015, she began working with the complainant. [5] Ms. Buchanan testified that the accused has three children. Further, that the father of those children is one Justin Lerat. [6] Ms. Buchanan testified that at sometime prior to her initial involvement with Ms. Bigsky in January 2015, that Ms. Bigsky’s children were apprehended and were, for period of time, in the care of the Minister of Social Services. She testified that according to the file history, this apprehension of the children and their placement in care was at least partly based on Mr. Lerat having assaulted Ms. Bigsky, and the children having been exposed to domestic violence. She further testified that Mr. Lerat was charged with an assault upon Ms. Bigsky, and that prior to March 23, 2015, he was released on bail with respect to that assault charge. Further, that one of his conditions of bail was that he was to have no contact with Ms. Bigsky. [7] Ms. Buchanan testified that shortly prior to her initial involvement with Ms. Bigsky in January 2015, the children were returned to Ms. Bigsky’s care and that at that time Ms. Bigsky executed parental services agreement. Under the parental services agreement, Ms. Bigsky gave permission to officers of the Ministry to enter her home. She also testified that the children were returned to Ms. Bigsky’s care on the basis that Justin Lerat would not be there with her in the home. The parental services agreement was not filed with the Court, and Ms. Buchanan did not testify that it was condition of the parental services agreement that Mr. Lerat not be in the home. believe and conclude in this case that Ms. Buchanan and other workers directed Ms. Bigsky that Mr. Lerat was not to be in the home, but that this direction was not made part of any parental services agreement or other court order applicable to Ms. Bigsky. will return to the significance of this in due course. [8] Ms. Buchanan testified that following the return of the children to Ms. Bigsky, the Ministry still had ongoing concerns regarding Ms. Bigsky’s care of the children. Officers of the Ministry continued to monitor Ms. Bigsky the children, and the children’s care. She testified that in March 2015, the Ministry interviewed one of the children at the school, and obtained information that Mr. Lerat was in the home. She testified that as of March 23, 2015, she had never met Mr. Lerat. She only had description of him. [9] She testified that on March 23, 2015, she discussed matters with her superiors, and it was decided that she would go to Ms. Bigsky’s apartment suite to investigate. If Mr. Lerat was there, she would have him arrested. She testified that she was not going to the apartment suite to apprehend the children. In order to accomplish all of this, she would follow the common practice. That is, she would take another worker with her, and would enlist the support and assistance of the Moose Jaw Police Service, to conduct the investigation and possible apprehension. [10] Ms. Buchanan testified that she went to the apartment block, and was waiting outside. At this time she saw Justin Lerat on the balcony of Ms. Bigsky’s suite. She said he was smoking. Ms. Buchanan has said that she told the officers that this was Mr. Lerat, and they called to him. Mr. Lerat made no response, but immediately went inside the suite. [11] Ms. Buchanan testified that she and Corporal Mickleborough of the Moose Jaw Police Service approached the patio door of Ms. Bigsky’s suite. They knocked. She could see Ms. Bigsky on the other side of the patio door. However, Ms. Bigsky refused to allow them in. She testified that the police told Ms. Bigsky that she had to allow them in to investigate regarding the children. Further, that if she did not allow them in, they would force their way in. Ms. Bigsky opened the door and allowed them in. They searched for Mr. Lerat but he was not there. She further testified that neither she nor the police had any warrant to enter the home. [12] Ms. Buchanan testified that she then called her superiors to seek further directions. She advised them what had happened. Presumably, this included her belief that Justin Lerat was present but that they did not locate him or arrest him. She was directed to apprehend the children. [13] She then advised Ms. Bigsky that she would be apprehending the children. She asked Ms. Bigsky to dress the children appropriately and supply them with sufficient clothing. Ms. Bigsky became agitated and argumentative. Ms. Buchanan said that she was looking through stack of clothes for children’s clothing when Ms. Bigsky said something like don’t touch my kids things. She said Ms. Bigsky hit her on the shoulder with closed fist. Officer Mickleborough stepped between the two of them, and Ms. Bigsky then kicked Ms. Buchanan in the leg. She said she suffered no injuries from the assault. [14] Under cross-examination Ms. Buchanan testified that she went to the house hoping to arrest Mr. Lerat, not to apprehend the children. She was specifically asked whether she had a warrant under section 13.1 of The Child and Family Services Act, allowing her to enter the home. She said she had no such warrant, and had never utilized a warrant before. She stated that Ms. Bigsky had given them permission to enter the home under the parental services agreement. [15] Ms. Buchanan testified under cross-examination that she looked for clothes in both bedrooms. She also agreed that she went into the kitchen area and searched cupboards, the refrigerator and pantry. She admitted that she did this to see if there were additional reasons to apprehend the children. She also agreed that when she was struck by Ms. Bigsky, she told Constable Mickleborough that she wanted the accused charged. She doubted that she stated she wanted the accused in jail. [16] The next witness called was Corporal Taylor Mickleborough of the Moose Jaw Police Service. He testified that he has been with the force for 16 years. On March 23, 2015, he was called for assistance with child apprehension. He later testified that it was fairly typical or standard practice for police to attend with child protection officers to assist with child apprehensions. He was in full uniform and was accompanied by Constable Scheske. [17] Corporal Mickleborough testified that he parked his police vehicle near the apartment block on the 500 block of Laurier Street West. He was immediately approached by the complainant, Jennifer Buchanan. She advised of her concerns, and that she believed Justin Lerat was present at Ms. Bigsky’s apartment suite. [18] He stated that he went to the door and spoke to the accused, Christine Bigsky. She was reluctant to let him in, but did let him in. He stated she was cooperative, “but not happy”. He said that he did not force his way in. He believed that when they entered the suite Ms. Bigsky was there with one small child and baby. He asked if Justin Lerat was there, and was told that he was not there. They asked to search for Mr. Lerat, and search was conducted. Mr. Lerat was not present and not seen. [19] He stated that he then spoke to Ms. Bigsky, and advised her of the apprehension order. She was quite upset and emotional about this. He spoke to her at some length, attempting to calm her down. At one time, the complainant came into the room and she and the accused immediately began to exchange words. This was upsetting Ms. Bigsky, and causing the situation to escalate. As result, he asked the complainant to leave. [20] Later, the complainant, Ms. Buchanan came back into the room. Ms. Bigsky tried to reach her. Ms. Bigsky tried “an off balance kick”. He stepped between the two women and at that moment Ms. Bigsky tried kind of round house swing that may have made contact with Ms. Buchanan’s arm. He could not say whether this was slap or closed fist. Ms. Buchanan then said that she wanted Ms. Bigsky charged. He asked Ms. Buchanan to leave. He then spoke to Ms. Bigsky, attempting to calm her. He asked her to get some clothes together for the children, and she did that. [21] Under cross-examination, he stated that he has fairly regularly attended to assist with child apprehensions. He indicated that there was no warrant to enter Mr. Bigsky’s apartment suite. He also stated that at no time did he see Justin Lerat. [22] He admitted that Ms. Bigsky did not immediately grant him entry. She was reluctant to let him in. He advised that he said they wanted in and had authority to come in. He stated they needed to come in to ensure the welfare and the safety of the children. However, he could not remember his exact words. He could not say if he advised they would force their way in, if Ms. Bigsky did not open the door. [23] He stated that Ms. Bigsky was very upset, understandably so. He stated that she was questionning the legitimacy of the apprehension, and was frustrated by the fact of the apprehension. In the exchanges between the complainant and the accused, Ms. Buchanan was persistent in saying that she was apprehending, and giving some reasons for the apprehension. Ms. Bigsky was persistent in saying there was no reason for the apprehension, and that should not occur. The argument between the two women was escalating, and he was attempting to keep the peace. He was specifically asked if he recalled Ms. Bigsky telling Ms. Buchanan “don’t touch my kids stuff”. He said he did not recall Ms. Bigsky saying that. [24] Ms. Bigsky then testified in her defence. She stated that on March 23, 2015, she was living in an apartment suite on Laurier Street. On that day police came to her sliding glass doors with the complainant, Jennifer Buchanan. At first, she did not let them in. The police officer asked her to open the door or they would have to forcefully open it. She opened the door for the safety of her children, and allowed them entrance. [25] She stated that she was there with two of her children. Her other child was in school. No one else was there. She further stated that Justin Lerat is her ex, and is the father of her children. He was at the apartment during that day but not when this incident occurred. [26] She testified that the police and Buchanan entered the suite and Ms. Buchanan immediately advised that she would apprehend the children. Ms. Bigsky had said she was very offended by this, as there was no reason for an apprehension. No one had warrant to enter the suite, and she was never presented with any warrant. [27] Ms. Bigsky testified that she was yelling at Ms. Buchanan as she told Ms. Buchanan there was “no reason to apprehend”; “don’t touch my kids things”; and “don’t go in my bedroom”. She said that Ms. Buchanan went all over in the apartment, including searching in the bedrooms and in the kitchen cupboard and refrigerator. She emphatically stated that they weren’t there to search just for Justin Lerat. They were there to apprehend her kids. [28] She indicated that at some point Ms. Buchanan asked her to get jackets and boots for her children, and she did that. Further, there was pile of clothes in the living room. Ms. Buchanan was looking through these clothes, and throwing things around bit. She asked Ms. Buchanan not to dig through these clothes. Ms. Buchanan said something offensive to her, but she could not recall the specific comment. At that time she hit and kicked Ms. Buchanan, but did not hurt her. Ms. Buchanan then immediately said “I’m charging you”. The police officer (Corporal Mickleborough) stated he wouldn’t let Ms. Buchanan press charges. [29] Under cross-examination, Ms. Bigsky said that Justin Lerat was under an order that he was to have no contact with her. Further, that he left just before they came. She stated: “he wasn’t out there.” [30] She was cross-examined on her contact with Ms. Buchanan for the month prior to this incident. She admitted that she and Ms. Buchanan did not get along. She stated that Ms. Buchanan did not listen to her, and was looking for excuses to take the children. She agreed with Mr. Wiebe that Corporal Mickleborough was helpful, and helped her calm down and remain calm. She wasn’t angry with Corporal Michelborough, rather her anger was directed at Ms. Buchanan, because she was apprehending. She admitted that when she hit and kicked Ms. Buchanan, she did so out of anger. She stated she was not thinking about it. [31] Mr. Wiebe suggested to her that Corporal Mickleborough did not tell her that she had to let them in for the safety of the children. She agreed with that. She agreed that at that time she thought she was letting them in to search for Justin. [32] The defence case was closed. Counsel in the court then discussed date for arguments. Defence counsel, Ms. Jeanson had not served any Charter notice. suggested that she may want to consider serving notice and arguing Charter issues. The matter was adjourned and Ms. Jeanson did serve and file Charter notice. When we resumed, advised Mr. Wiebe that would allow him to re-open his case in order that he might present any additional evidence he required to meet the Charter arguments. Counsel advised that they had discussed the matter, and both were of the view that no additional evidence would be presented, and they would simply argue the Charter issues together with the other trial issues. Each side filed some cases and made fairly extensive and very helpful arguments. [33] There was some debate between counsel as to whom was entering Ms. Bigsky’s apartment, and actually conducting the search. In my view, this issue is somewhat relevant to some factual findings to be made by the Court, but not of large legal significance. Ms. Buchanan is an officer appointed by The Child and Family Services Act, and as such has certain powers under that Act. She requested and obtained the assistance of Moose Jaw City Police. Corporal Mickleborough assisted. He is peace officer who has certain powers under the Criminal Code. These two individuals acted together. Very often numerous individuals will be involved in search. One officer is required to have legal authority to conduct the search, and to be the operating mind and directing mind of that search. The others derive their authority from that individual, and act under the instructions of that individual. As result, the most fundamental question here isn’t which officer did what, but whether any officer had the legal authority to conduct the search and take the steps that they did at Ms. Bigsky’s apartment. ISSUE ONE DID THE POLICE HAVE LEGAL BASIS TO ENTER MS. BIGSKY’S HOME UNDER THE CRIMINAL CODE? WAS THE ACCUSED SUBJECTED TO AN UNLAWFUL SEARCH AND SEIZURE CONTRARY TO SECTION OF THE CHARTER? [34] Section of the Charter says: “Everyone has the right to be secure against unreasonable search and seizure.” An individual can agree and consent to search of his private property. consensual search is not generally contrary to this Charter Right. Ms. Buchanan seemed to believe that the Parental Service Agreement gave her authority to enter the home, and she could do that without warrant. In order to allow that, would have to interpret the Parental Service Agreement as providing continuing and indeterminate waiver of constitutional rights. waiver of constitutional rights must be informed and narrowly construed. The Parental Service Agreement could not give Ms. Buchanan an open ended authority to enter the home without permission. [35] Both Ms. Buchanan and Ms. Bigsky testified that the Police informed Ms. Bigsky that she had to open the door and allow them entrance, or they would force their way in. Corporal Mickleborough testified he informed Ms. Bigsky they had authority to enter and that they needed to ensure the welfare and safety of the children. He could not recall his exact words or whether he said they would force their way in. conclude that, at first, Ms. Bigsky was not opening the door and allowing them entrance. It was communicated to her that they had lawful authority to enter, and she had to let them in. She reluctantly opened the door and allowed them to enter. This was a forced consent. It was not a free and willing or informed consent. It was no consent in law. It is clear it was a warrantless search. [36] In the case of Collins, (1987) 1987 CanLII 84 (SCC), SCR 265, Chief Justice Lemaire stated that warrantless search is presumed to be unreasonable and the Crown must establish the search was reasonable on balance of probabilities. He further stated that search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. [37] begin by observing that Mr. Wiebe argued that Corporal Mickleborough had the lawful authority to enter the suite in order to arrest Justin Lerat. However, Ms. Jeanson pointed out that Corporal Mickleborough did not testify to that effect. Rather, the Corporal said that he was there to assist Ms. Buchanan with the apprehension. This evidence doesn’t conclusively determine or preclude the Court from determining that Corporal Mickleborough was lawfully exercising Criminal Code power. However, it is certainly indicative that Corporal Mickleborough did not believe he had authority under the Criminal Code to act, and that he wasn’t attempting to act under the Criminal Code. [38] More importantly, even if Corporal Mickleborough believed he could enter the suite to arrest Justin Lerat, in my view he would be wrong in that assessment. The case of Feeney, (1997) 1997 CanLII 342 (SCC), SCR 13 establishes that even if an officer had warrant for the arrest of an individual, he would not be entitled to enter private dwelling house to search for that individual and make an arrest. warrant and judicial authorization to enter the premises would be required. The exception to this rule is if an officer is in hot pursuit of an individual, and attempting to make the arrest. However, in this case, Corporal Mickleborough was not in hot pursuit He had not seen Justin Lerat at all that day and had not pursued him to this residence. In my view, this case is very similar to Meier, 2009 SKPC 30 (CanLII). In that case, his Honour Judge Morgan concluded that the police officer unlawfully entered the dwelling house to effect the arrest of Mr. Meier. [39] The result is that I must conclude that Corporal Mickleborough did not have any lawful authority to enter Ms. Bigsky’s apartment suite to effect and arrest of Justin Lerat. He was not exercising criminal law power and his entrance to that suite will be contrary to her section rights, unless that entrance and search is determined to be lawful under some other legal authority. ISSUE TWO WAS THE CHILD PROTECTION WORKER, JENNIFER BUCHANAN, ENTITLED TO ENTER THE ACCUSED’S HOME (WITH THE ASSISTANCE OF POLICE) UNDER THE SASKATCHEWAN CHILD AND FAMILY SERVICES ACT? (A) WHAT IS THE STATUS OR VALIDITY OF THE WORKER’S DIRECTION THAT THE ACCUSED’S COMMON LAW AND FATHER OF THE CHILDREN NOT BE AT THE ACCUSED’S HOME OR WITH THE CHILDREN? [40] begin the discussion under this heading by referring to section 16 of The Child and Family Services Act. The heading for that section is “Protective Intervention Orders”. Section 16(1), (3) and (4) read as follows: 16(1) Subject to subsection (2), where an officer has reasonable grounds to believe that contact between child and another person would cause the child to be in need of protection, the officer may apply to the court for protective intervention order directed to that person. (3) Where, on an application pursuant to subsection (1), the court is of the opinion that contact between child and another person would cause the child to be in need of protection, the court may make protective intervention order containing any terms and conditions that the court considers to be in the best interests of the child, including, without limiting the generality of the foregoing, direction to person named in the order to refrain from any contact or association with the child. (4) Subject to subsections (5) and (6), protective intervention order is effective for any period specified in the order that does not exceed six months. As understand it the situation, no protective intervention order was obtained by the Ministry or any of its workers against Justin Lerat. Rather, the worker or workers involved determined that it might be harmful to the children if Mr. Lerat had contact with them. As result, they counselled Ms. Bigsky to this effect and advised that if Mr. Lerat was involved with them, they could consider the children to be in need of protection and make an apprehension. [41] Clearly, this was the situation and the basis of the concern on March 23, 2015. Ms. Buchanan testified to the effect that she went to the suite on that day to ascertain if Justin Lerat was there, and if so, to have him arrested or to apprehend the children. [42] Under section 16, where the court is satisfied that contact between the child and another person would cause the child to be in need of protection, the court makes an order. It would seem to me that where such an order was made, and where the order is breached in any fashion, the worker would instantly have grounds to believe the child was in need of protection, and apprehension would be justified. [43] But what is the status of simple directive from the worker, when no order is made. would suggest that as matter of common sense, directive cannot have the same force of law as court order. As result, mere breach of directive from the Ministry or its worker does not, ipso facto, establish grounds for apprehension. This need not be fatal and necessarily lead court to conclude that there are no grounds for apprehension. In this case, it was open to the Crown and the Ministry to establish that any contact of the children with Justin Lerat was harmful to the children, and they were immediately in need of protection. But was this established here? In my view it was not. The totality of the evidence is to the effect that Justin Lerat was charged with an assault upon Ms. Bigsky. He was released on conditions of bail that included that he was to have no contact with Ms. Bigsky. On March 23, 2015, Ms. Buchanan believed that he had contact with Ms. Bigsky and in fact was at her apartment suite. father has right of access to his children, and children have right of access to their father. The mere fact that the father had contact with Ms. Bigsky on this date is not sufficient to allow me to conclude that the children were in need of protection or that apprehension was justified on that date merely by reason of him having contact with Ms. Bigsky. The fact that worker had directed that Mr. Lerat was not to have contact with Ms. Bigsky or the children, does not alter that situation. (B) WAS THE CHILD PROTECTION WORKER, ASSISTED BY POLICE, ENTITLED OR EMPOWERED TO ENTER THE ACCUSED’S HOME TO INVESTIGATE THE WELFARE OF THE ACCUSED’S CHILDREN AND APPREHEND THOSE CHILDREN? [44] Section 13.1 of The Child and Family Services Act reads as follows: 13.1(1) justice of the peace or judge may issue warrant pursuant to this section where the justice or judge is satisfied by information on the oath of an officer or peace officer that: (a) there are reasonable grounds to believe that child may be in need of protection; (b) person refuses to give the officer or peace officer access to the child; and (c) access to the child is necessary to determine if the child is in need of protection. (2) In warrant issued pursuant to subsection (1), the justice of the peace or judge may do one or more of the following: (a) authorize an officer or peace officer named in the warrant to enter premises specified in the warrant and to search for the child; (b) require person to disclose the location of the child; (c) require person to allow the officer or peace officer to interview or to visually examine the child or to do both; (d) authorize the officer or peace officer to take the child away from the premises for an interview or medical examination; (e) authorize duly qualified medical practitioner or other health care provider to examine the child. (3) Where an officer is authorized by warrant to enter premises pursuant to clause (2)(a), the officer may be assisted by peace officer in carrying out the powers conferred by the warrant. (4) If child is taken away from premises for an interview or medical examination pursuant to warrant, the officer or peace officer must return the child to person who has right to custody of the child when the interview or medical examination is completed unless the officer or peace officer proceeds pursuant to section 17. (5) An application for warrant may be made in person, by telephone or by any other means of electronic communication. (6) No person shall obstruct any person who is authorized to make an entry pursuant to this section. [45] The complainant, Ms. Buchanan, testified that she did not have warrant to enter Ms. Bigsky’s home, and that she had never before obtained warrant under this section to enter home. [46] What is the purpose and effect of section 13.1? begin by noting that the Feeney decision was decided in 1997, and section 13.1 was enacted in 1999, approximately two years after that decision. In my view, there was realization that the Feeney decision would apply to child protection workers, and prevent them from entering home without warrant to investigate child protection matters and to conduct apprehensions. The Provincial Legislature followed the Feeney decision and the expanded provisions following section 529 of the Criminal Code, by enacting similar provisions allowing for judicial authorization to child protection worker to enter home. Simply stated, section 13.1 was enacted to allow Ms. Buchanan to address the very situation that she was confronted with on March 23, 2015. However, no attempt was made to utilize this section or obtain authorization to enter the home. conclude that Ms. Buchanan had no lawful authority under The Child and Family Services Act to enter the accused’s home. (C) COULD THE WORKER ENTER THE HOME UNDER EXIGENT CIRCUMSTANCES? WERE EXIGENT CIRCUMSTANCES PRESENT HERE? [47] Section 13.1 of the Act makes no mention of exigent circumstances. However, am of the view that under exigent circumstances child protection worker could lawfully enter home without warrant to investigate the welfare of children and apprehend children. It cannot possibly be the state of our law that if children were being actively abused and in need of protection, and workers and police were outside the home, that they could not enter to investigate and apprehend the children. In Silveira, (1995) 1995 CanLII 89 (SCC), SCR 297, the court dealt with search for drugs and the charges under The Narcotic Control Act. In part, the court stated that exigent circumstances have been regarded, both under the common law and the Charter to permit warrantless search of home. am of the view that this exemption must apply to this provincial legislation. [48] Were exigent circumstances present here, thus allowing Ms. Buchanan to enter the home without warrant? Mr. Wiebe argued that exigent circumstances were present. He said that there was a necessity to enter to prevent the destruction of evidence. immediately questioned that. The evidence they were seeking was evidence that Mr. Lerat was present in the home. don’t now how that evidence could simply be destroyed. [49] From the evidence, I conclude that the preferrable or good option was that Mr. Lerat not be in the home. If he was not in the home, there was no particular problem and certainly no exigent circumstances to enter the home. The mere belief that Justin Lerat was there could not and did not provide exigent circumstances allowing entry of the home without warrant. ISSUE THREE IF THE ACCUSED’S CHARTER RIGHTS HAVE BEEN INFRINGED, WHAT IS THE APPROPRIATE REMEDY? SHOULD THE EVIDENCE OF ASSAULT BE EXCLUDED? [50] Mr. Wiebe argued that the assault upon Ms. Buchanan occurred after the breach by the unlawful entry and that there was no nexus between the Charter breach and the assault. On this basis he suggested that should admit the evidence, even if concluded that there was Charter breach. He relied upon the case of Krzychowiec, 2004 NSPC 60 (CanLII). This decision is good authority for his argument. However, it is note worthy that this decision was decided prior to Grant, 2009 SCC 32 (CanLII), when Stillman, (1997) 1997 CanLII 384 (SCC), SCR 607 represented the law. In fact, the trial judge specifically commented that “the accused was not conscripted to provide incriminating evidence” am now required to do Grant analysis. In Grant, the Court said: “When faced with an application for exclusion under s. 24(2), 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, (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.” [51] The Court elaborated that the first stage involved consideration of the Police or State conduct that infringed the Charter. In other cases, the Courts have said that the privacy interest in private dwelling or home is high. The Charter breach here is severe in that officers entered and searched the accused’s home without any authority to do so. [52] The Court elaborated that the second stage involved focus on the accused and how his or her interests were impacted by the breach. Again, the impact is large. Following their unlawful entrance, the worker gathered evidence, then apprehended and removed her children. [53] The Court elaborated that the third stage “asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.” The accused’s offence was a reaction to a very significant and provocative breach of her Charter rights. Her actions, in assaulting the Child Protection Worker, were not excusable or justifiable. However, the assault was minor in nature with no injury. As a result, in my view, the truth seeking function and the administration of justice are better served by exclusion of the evidence. When I look at all of these factors, I come to the conclusion that all the evidence obtained from and after the unlawful entry of the accused’s home should be excluded. ISSUE FOUR THE ACCUSED ACTIONS IN KICKING AT AND STRIKING JENNIFER BUCHANAN CONSTITUTED AN ASSAULT. WERE THESE ACTIONS JUSTIFIED ON THE BASIS OF DEFENCE OF PROPERTY OR DEFENCE OF THIRD PERSON? [54] Given my decision on the Charter issues, need not decide this issue. However, note that in the Krzychowiec decision, referred to by Mr. Wiebe, the Honourable Judge Gibson acquitted the accused on the basis that his use of force was justified defence of property and person. He noted that the actual force utilized by the accused was minimal. For these same reasons, would conclude that Ms. Bigsky used minimal force and the use of that minimal force was justified. [55] For all of the above mentioned reason, would exclude the evidence obtained after the unlawful entry into the accused’s apartment suite. Having done that, there is no evidence against the accused and I find her not guilty of both charges. [56] express my thanks to both counsel for their excellent presentation of very interesting case. Dated at the City of Moose Jaw, in the Province of Saskatchewan this 31 day of August 2016.
HELD: The accused was found not guilty. The court found that the accused’s s. 8 Charter rights were breached. Pursuant to a Grant analysis, the court excluded the evidence obtained after the illegal entry of the accused’s home. The court found that the accused had not consented to the entry by the officer and the complainant and it was therefore a warrantless search. The officer did not have the lawful authority to enter the home on the basis of arresting the father as he was not in hot pursuit. The complainant had not obtained a warrant under s. 13.1 of The Child and Family Services Act to enter the accused’s home and therefore had no lawful authority to enter the home. There were no exigent circumstances to justify the search such as preventing the destruction of evidence as they already established that the person they sought was not in the house. The unlawful entry and search of the accused’s home was a severe breach of the accused’s Charter rights. The impact upon her was severe as the complainant gathered evidence and apprehended her children. The accused’s assault on the complainant was minor in nature and although not excusable, her offence was a reaction to a significant breach of her rights. The administration of justice was served by excluding the evidence.