R. v. D.C., 2010 SKPC 132

• Judge: Labach, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: Thursday September 23, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKPC 132;(2010), 361 Sask.R. 163 (PC)

R. v. D.C. (2010), 361 Sask.R. 163 (PC)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. OC.010

Her Majesty the Queen v. D.C.

(Information Nos. 39696213, 39696214; 2010 SKPC 132)

Indexed As: R. v. D.C.

Saskatchewan Provincial Court

Youth Justice Court

Labach, P.C.J.

September 23, 2010.

Summary:

The accused youth came before the court for trial on a number of charges arising from a police search at the accused's residence when drugs and drug paraphernalia were found. The accused alleged that his s. 8 Charter rights to be free from unreasonable search and seizure were violated and he sought exclusion of the items seized during the search under s. 24(2) of the Charter.

The Saskatchewan Provincial Court held that there had been a violation of the accused's s. 8 rights and that the proper remedy was to exclude from evidence all items seized by the police in the search of the accused's residence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A member of the Saskatoon Integrated Drug Unit (SIDU) received a tip that the accused youth (D.C.) was selling drugs - The officer and other SIDU members agreed they did not have enough information for a warrant - However, D.C. was on probation and a term of his probation order was that he "shall submit to a search upon demand by a peace officer" - The officers interpreted that clause to mean that wherever D.C. was he could be searched and anything he had control over could be searched - Since D.C. would be on probation for some time, the officers decided to search him and his residence when they had the time - They did no follow up investigation - About a month later they attended at D.C.'s residence to conduct a search - The officers told D.C.'s mother (who owned the house) that they wanted to search D.C.'s bedroom - They provided a copy of the probation order and pointed out the search clause - Neither D.C. nor his mother consented to a search - The officers entered the home - After doing so they smelled smoked marijuana - A person who had been in the common area in the basement turned over a marijuana joint - One of the officers advised that person and D.C. that they were under arrest - The other officers began searching D.C.'s basement bedroom, the laundry room and the basement common area - Drugs and drug paraphernalia were found - The Saskatchewan Provincial Court held that D.C. had a reasonable expectation of privacy in his entire home; the search of D.C.'s residence was not authorized by law on the basis of the search clause in his probation order; and the search was not authorized under s. 11(7) of the Controlled Drugs and Substances Act as the officers did not have enough information to obtain a search warrant and exigent circumstances did not exist - Since the warrantless search was not rooted in lawful authority, the search and seizure was not a reasonable intrusion on D.C.'s right to privacy and there had been a breach of his s. 8 Charter right - The proper remedy was to exclude from evidence all items seized by the officers in the search of D.C.'s residence.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused youth (D.C.) faced charges arising from a warrantless police search at his residence when drugs and drug paraphernalia were found - The police had relied on a term of D.C.'s probation order that he "shall submit to a search upon demand by a peace officer" - D.C. alleged a violation of his s. 8 Charter rights - The Crown suggested that since D.C.'s mother owned the residence, and since the laundry room and basement living area were common areas shared by all inhabitants of the house, D.C. had no expectation of privacy in those areas - Moreover, the Crown argued that D.C. may have had an expectation of privacy in his bedroom, but it was a reduced expectation because he did not own the house and he was on probation at the time of the search - The Saskatchewan Provincial Court rejected the Crown's argument - The court concluded that D.C. had a reasonable expectation of privacy in his entire home - When looking at a family home it was normal to expect that the entire residence attracted a reasonable expectation of privacy for each family member living in the residence - The court accepted that a person might have a lower expectation of privacy if they were on a probation order - However, simply because a person was on probation did not automatically lead to a lower expectation of privacy - It depended on the terms the probationer was subject to - If a probationer had a clause that he must submit to a search of his person upon demand of a peace officer without warrant or reasonable and probable grounds, he would have a lower expectation of privacy in relation to a search and seizure of his person but it would not impact his expectation of privacy in his own home - Even if D.C.'s conditions could be said to lower his expectation of privacy in his own home, it did not get rid of his expectation completely - Any expectation of privacy in the place searched would allow an applicant to invoke s. 8 - See paragraphs 30 to 45.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See both Civil Rights - Topic 1508].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Civil Rights - Topic 1508].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See first Civil Rights - Topic 1508].

Civil Rights - Topic 1658.1

Property - Search and seizure - Searches pursuant to conditions in probation orders - [See both Civil Rights - Topic 1508].

Civil Rights - Topic 1658.1

Property - Search and seizure - Searches pursuant to conditions in probation orders - The accused youth (D.C.) faced charges arising from a warrantless police search at his residence when drugs and drug paraphernalia were found - The police had relied on a term of D.C.'s probation order that he "shall submit to a search upon demand by a peace officer" - The accused alleged a violation of his s. 8 Charter rights - The Saskatchewan Provincial Court stated that "There is nothing in the words used in the clause that indicates that D.C. must allow officers to search his bedroom, his home or his car on demand. He must only allow them to search him on demand. Given the many decisions from across this country as to how sacrosanct an individual's home is, any clause in a probation order, undertaking or recognizance authorizing a peace officer to search should be specific as to what it entails. In the present case, D.C.'s search clause is silent on whether a peace officer could enter his home without a warrant or any grounds to search it. At best they could only search D.C. ... It was unreasonable for the officers to read into the search clause that they could search anything D.C. had control over including his bedroom or his house" - The search of the accused's residence was not authorized by law on the basis of the search clause in his probation order - See paragraphs 47 to 51.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 1508].

Criminal Law - Topic 3148

Special powers - Power of search - Scope of power - [See second Civil Rights - Topic 1658.1].

Criminal Law - Topic 3152

Special powers - Power of search - Warantless searches - [See first Civil Rights - Topic 1508].

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - [See both Civil Rights - Topic 1508 and second Civil Rights - Topic 1658.1].

Narcotic Control - Topic 2066

Search and seizure - Warrantless searches - Statutory authorization - [See first Civil Rights - Topic 1508].

Narcotic Control - Topic 2067

Search and seizure - Warrantless searches - Existence of exigent circumstances - [See first Civil Rights - Topic 1508].

Police - Topic 3186

Powers - Search - Private property - [See first Civil Rights - Topic 1508 and second Civil Rights - Topic 1658.1].

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - The accused youth (D.C.) faced charges arising from a warrantless police search at his residence when drugs and drug paraphernalia were found - The police had relied on a term of D.C.'s probation order that he "shall submit to a search upon demand by a peace officer" - The accused alleged a violation of his s. 8 Charter rights - Defence counsel argued that the judge that sentenced D.C. to a probation order did not have the authority to impose the search clause and, as a result, the search clause was not reasonable - The Saskatchewan Provincial Court noted that D.C. did not appeal the inclusion of the search clause in his probation order to a higher court - The rule against collateral attack applied and D.C. could not now challenge the search clause in order to sustain his Charter argument - Counsel's argument that it was a jurisdictional error for the sentencing judge to impose the search clause did not fall under the exception to the rule against collateral attack - The judge who sentenced D.C. had the authority under ss. 42(2)(k) and 55 of the Youth Criminal Justice Act to impose a probation order upon him with appropriate conditions - This was not a situation where the Provincial Court did not have the capacity to make this type of order - See paragraphs 65 to 69.

Cases Noticed:

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 26].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 27].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 27].

R. v. Besharah (S.S.) (2010), 343 Sask.R. 202; 472 W.A.C. 202; 72 C.R.(6th) 277; 2010 SKCA 2, refd to. [para. 27].

R. v. Smith (D.V.), [2010] Sask.R. Uned. 224; 2010 SKPC 127, refd to. [para. 27].

Semayne's Case (1604), 5 Co. Rep. 91, refd to. [para. 30].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 30].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 30].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 30].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 30].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 30].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 30].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 31].

R. v. Shoker (H.S.), [2006] 2 S.C.R. 399; 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, refd to. [para. 41].

R. v. McCormack (R.D.) (2000), 133 B.C.A.C. 44; 217 W.A.C. 44; 2000 BCCA 57, refd to. [para. 42].

R. v. C.M., [2004] O.J. No. 5086 (C.J.), refd to. [para. 44].

R. v. A.A., [2005] O.J. No. 5686 (C.J.), refd to. [para. 44].

R. v. Lafontaine (M.), [2010] O.T.C. Uned. 21; 2010 ONSC 21, refd to. [para. 44].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 59].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 65].

R. v. Domm (G.) (1996), 95 O.A.C. 262; 111 C.C.C.(3d) 449 (C.A.), refd to. [para. 66].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 71].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 2].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(7) [para. 52].

Counsel:

Crystal Warde, for the Crown;

James Scott, for the Defence.

This voir dire was heard at Saskatoon, Saskatchewan, before Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on September 23, 2010.