Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. A.B., 2020 NUCJ 17

Date: 20200420
Docket: 08-18-762
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: A. B.

________________________________________________________________________

Before: Madam Justice Charlesworth

Counsel (Crown): A. Seagal

Counsel (Accused): A. Landry

Location Heard: Iqaluit, Nunavut

Date Heard: February 21 and March 11, 2020
Matters: Application on voir dire for exclusion of evidence under ss.
8 and 10(b) of the Canadian Charter of Rights and
Freedoms

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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DISCLAIMER PAGE

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with

legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties. Letters
have been assigned at random.
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I. INTRODUCTION

[1] In late September and early October 2018 in Iqaluit, two taxi drivers
were robbed at gunpoint. The RCMP started an investigation after the
first incident and obtained some information about a possible
perpetrator. Two people were involved in the second robbery which
happened near the Elder’s Centre. The taxi driver recognized the
female involved and knew her name and home address. Shortly after
the robbery, the RCMP attended the area around the Elder’s Centre
in tactical gear because a firearm had been used.

[2] A.B., a young person at the time of the relevant offences, was found
in the area along with the female and other young people. Police had
good reason to suspect he was the male person involved in the
second robbery, and the only person involved in the first. Eventually,
A.B. was charged with multiple offences arising out of both robberies.

[3] Following a lengthy earlier voir dire in this matter, Justice Johnson
ruled, in R. v. A.B., 2019 NUCJ 14, that all of the statements made by
the accused to the police were inadmissible. The first two statements
were involuntary and obtained contrary to s. 146 of the Youth Criminal
Justice Act, SC 2002, c 1 (YCJA) and the third statement was tainted
by the illegality of the first two. Justice Johnson decided that none of
the statements could be used as evidence at the trial.

[4] The police used information contained in those statements from A.B.
to obtain a search warrant for a boat on the beach near where A.B.
was found, where they believed he was living.

[5] A.B. brought this pre-trial motion alleging that that search was
contrary to the Charter of Rights and Freedoms (Charter), and any
items seized from the boat should not be allowed into evidence on the
trial proper. Based on Justice Johnson’s ruling, both the Crown and
the Defence agree that all information from A.B.’s statements must be
excised from the Information to Obtain the search warrant.
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[6] The Defence argues that without that information, the warrant is
invalid and cannot justify the search of the boat. The search of the
boat is therefore contrary to s. 8 of the Charter and the items obtained
are inadmissible at the trial. The Defence also argues that the
statements made by the accused that Justice Johnson found to be
inadmissible were made contrary to s. 10(b) of the Charter. The
Defence says this provides additional weight to the argument that the
evidence obtained must be excluded.

[7] Briefly, the Crown counters that there was no s. 10(b) breach, the
accused had no reasonable expectation of privacy in the boat and
therefore there was no s. 8 breach, and even if there were breaches
of the accused’s Charter rights, s. 24(2) of the Charter does not
require exclusion of the evidence seized in these circumstances.

[8] The issue before me is whether the police action that night breached
one or both of A.B.’s Charter rights to be informed of the right to retain
and instruct counsel upon detention, and to be secure against
unreasonable search and seizure. If either right was breached, I must
then decide whether the resulting seized items can be admitted in the
trial.

II. SECTION 10(B): TO BE INFORMED OF THE RIGHT TO RETAIN

AND INSTRUCT COUNSEL UPON DETENTION

[9] In paragraphs 42 and 43 of his decision on the admissibility of the

accused’s three statements, Justice Johnson noted that one was
conceded by the Crown to be inadmissible and he decided that the
first also was inadmissible. In both cases, this was because the
RCMP failed to comply with s. 146(2) of the YCJA, and the
statements were involuntary. There was a third statement which
Justice Johnson found to be inadmissible because it was tainted by
the first and second statements. The accused was clearly detained
before giving the statements.
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[10] Justice Johnson found that Cpl Moore decided not to arrest A.B. when
he had the grounds to do so, and therefore “avoided taking extra
steps to ensure the statement was voluntary and in compliance with s.
146 of the YCJA.” He went on to state, “I have insufficient information
to determine if the accused understood his rights.” The rights Justice
Johnson is referring to are those set out in s. 146(2) – which includes
the rights at clause 146(2)(b)(iii) “to consult counsel”, and at clause
146(2)(c)(i) to be “given a reasonable opportunity to consult with
counsel”.

[11] In this particular case, therefore, I find that the breach of s. 146(2)
found by Justice Johnson is the same as a breach of s. 10(b) of the
Charter.

III. SECTION 8: TO BE SECURE AGAINST UNREASONABLE SEARCH

OR SEIZURE

[12] As a Defence motion, the burden is on the accused to show three

things, on a balance of probabilities:

1. Did the impugned conduct involve state action? The answer to

this is clearly, yes.
2. Did the conduct involve a search or seizure? Again, the answer
is clearly, yes.
3. Does the accused have standing to raise the validity of the
search or seizure?

A. Preliminary issue

[13] The accused did not present any evidence on the voir dire and the
Crown argues that there is no evidence properly before me that he
has any connection to the boat that was searched, so there is no
evidence at all that he has standing.

[14] A similar argument was made by the Crown in the case of R. v.

Jones, [2017] 2 SCR 696, a case concerning a search of text
messages. In it, Côté J. for the majority stated at paragraph 9,

I conclude that an accused mounting a s. 8 claim may ask the court to

assume as true any fact that the Crown has alleged or will allege in the
prosecution against him in lieu of tendering evidence probative of
those same facts in the voir dire.
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[15] Clearly the Crown intends to allege in its prosecution against A.B. that
the items seized from the boat were his, because he was living there.
I therefore find that the Defence did not have to give evidence on this
voir dire for me to proceed on the understanding that he was living on
the boat in question. That is the basis of the Crown’s case against
him, and the understanding throughout the voir dire was that he was
indeed living on the boat.

B. Does the accused have standing?

[16] To have standing, the accused must show an infringement of his own
reasonable expectation of privacy, which is determined on the basis
of the totality of the circumstances, including:

1. presence at the time of the search;

2. possession or control of the property or place searched;
3. ownership of the property or place; historical use of the
property;
4. the ability to regulate access, including the right to admit or
exclude others from the place;
5. the existence of a subjective expectation of privacy, and
6. the objective reasonableness of the expectation.
(R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.))

[17] At the time of the search the RCMP were under the impression that
the boat was abandoned, but on the voir dire the Crown called as a
witness the actual owner of the boat, Mr. Dino Tikivik. He identified
the boat in question (pictured in Exhibit 1 on the voir dire) as his
father’s boat, which he inherited after his father died about seven
years ago. It was last used as a boat about five years ago, and then it
was moved about a year later from near the breakwater to a spot on
the beach about 30 feet from Mr. Tikivik’s shack, in front of the Elder’s
Home.
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[18] Mr. Tikivik has been ill a few times over the last several years and has
not used the boat, although he was going to try to fix it up so his
family could. The boat was placed on some 4x4’s to get it off the
ground and the cabin was locked with a padlock. The major
equipment on it was removed and placed in the shack. During the
NorthMart fire in November 2018 – after the police search – Mr.
Tikivik saw that both his shack and his boat had been broken into and
ransacked. Although the boat was not completely abandoned, Mr.
Tikivik clearly had not been able to look after it for at least four years
before the police search.

[19] From the photograph of the interior of the boat, entered as Exhibit 3
on the voir dire, it is clear that A.B. was living there before the search:
there are blankets, pillows, possibly clothing and even a Montreal
Canadiens banner put up inside the cabin. A.B. had taken possession
of the boat, and was exercising control over it, although he clearly did
not own it and was not present in it at the time of the search.

[20] A.B. had also apparently tried to regulate access, by keeping a

padlock on the entrance to the cabin which would likely deter some
people from entering. He did not have the right to admit or exclude
others. It appears from the way it was set up, that A.B had a
subjective expectation of privacy; the final question is whether that
expectation was reasonable in the circumstances.

[21] I note that Corporal Moore of the RCMP, who is an experienced

officer familiar with local conditions in Iqaluit, consulted with another
member before deciding to apply for a search warrant. He was
concerned that a search warrant should be obtained because there
may have been an expectation of privacy in the apparently-
abandoned boat. As noted above, a search warrant was obtained.

[22] I believe I can take judicial notice of the housing situation in Iqaluit,
and Nunavut generally. There is much overcrowding and it is not
unusual for individuals, especially in the warmer months, to take over
and “camp out” in non-residential spaces. With that understanding of
the context, it seems to me that most people would respect such a
situation and it would be reasonable to expect privacy. I find that the
police were correct in deciding that a warrant should be obtained
before searching the cabin of the boat. Unfortunately, in view of the
inadmissibility of the accused’s statements to the police, the grounds
for the warrant are insufficient.
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[23] The Crown submits that the police had other information about where
the accused was living at the time: from his grandmother, who was
the adult requested by the accused to be present for his third
statement to the police. While she was being driven to the RCMP
detachment for that purpose, the grandmother pointed out the boat
the accused was living on. The Defence says that information must
also be excised from the Information to Obtain, as the police got it
essentially by trickery. In view of my decision under s. 24(2), I will not
decide this issue; I will assume the Information to Obtain is insufficient
even with the grandmother’s information.

[24] Finally, because A.B. was living on the boat, a warrantless search is
an unreasonable search under s. 8 of the Charter.

IV. SECTION 24(2): WHETHER THE EVIDENCE FOUND SHOULD BE

EXCLUDED

[25] Subsection 24(2) of the Charter says,

Where … a court concludes that evidence was obtained in a 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.

[26] Having found that the evidence from the boat was obtained in a
manner that infringed the accused’s rights to be informed upon
detention of the right to obtain and instruct counsel, and to be secure
against unreasonable search and seizure, I am required to exclude
the evidence if the admission of it at the trial would bring the
administration of justice into disrepute.

[27] The leading case on interpreting s. 24 is R. v. Grant (2009), 245

C.C.C. (3d) 1 (S.C.C.) [Grant], which directs the court to consider
three issues in deciding whether the admission of evidence would
bring the administration of justice into disrepute:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of
the accused;
3. Society’s interest in the adjudication of the case on its merits.
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I am instructed to balance the assessments under each of the above

criteria to decide whether, in all of the circumstances, admission of
the evidence found on the boat would bring the administration of
justice into disrepute.

[28] I am reminded by Grant, at paragraph 70, that:

s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the

police or providing compensation to the accused, but rather at systemic
concerns. The s. 24(2) focus is on the broad impact of admission of the
evidence on the long-term repute of the justice system.

[29] The evidence in this case was derived from the illegal statements of
the accused, and the admissibility of such evidence is discussed
specifically at paragraphs 116 – 128 of Grant.

A. The seriousness of the Charter-infringing state conduct

[30] On October 4, 2018, six RCMP officers in full tactical gear responded
quickly to a call about an armed robbery – the second in a week –
involving a firearm near the centre of Iqaluit.

[31] I have found that in the course of the investigation over the next day,
the RCMP breached A.B.’s rights in two respects, as outlined above.

[32] Regarding the statements, the officer deliberately decided not to

arrest the accused before speaking to him, although he “should have
had no subjective or objective doubt that he had grounds to arrest the
accused,” according to Justice Johnson at paragraph 43 of his
decision on voluntariness. Such a deliberate action by an experienced
officer is very serious; it has already resulted in the exclusion of the
statements from use in the forthcoming trial.

[33] After obtaining statements from A.B., the RCMP considered the
legalities surrounding a search of a boat they believed A.B. was living
on and decided to apply for a warrant, to search for the firearm used
in two robberies. I found the warrant to be unlawful, because it is
based primarily on the inadmissible statements made by the accused.
However, this state conduct is less serious because the officers tried
to do the right thing. As well, the officers were urgently searching for a
firearm in a busy area of town and had legitimate public safety
concerns. This “attenuate[s] the seriousness of police conduct that
results in a Charter breach,” per Grant at paragraph 75.
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B. The impact of the breaches on the Charter-protected interest of

the accused

[34] This stage of the inquiry requires a consideration of “the extent to

which the breach actually undermined the interests protected by the
right infringed” (Grant at paragraph 76).

[35] In this case, the police applied for a warrant before entering the boat
to search it. Although I have found that A.B. had some expectation of
privacy, it was not at the same level as the expectation of privacy in a
home. Anyone walking along the beach could have decided to climb
up on the boat and take a look inside. A.B.’s privacy interests were
not undermined to a great extent.

[36] The real question is regarding the impact of the serious breach of
A.B.’s right to retain and instruct counsel. Grant says at paragraph
125, that,

[i]n determining the impact of the breach, the discoverability of the

derivative evidence may also be important as a factor strengthening or
attenuating the self-incriminatory character of the evidence. If the
derivative evidence was independently discoverable, the impact of the
breach on the accused is lessened and admission is more likely.

[37] In this case, the police were likely to find out about the boat that A.B.
was living on independently of the statements made by A.B., through
talking to his family members, or the co-accused.

[38] I find that the impact of the breaches on A.B.’s interests is at the lower
end.

C. Society’s interest in the adjudication of the case on its merits

[39] According to Grant, at paragraph 79, this part of the inquiry asks me
to “consider not only the negative impact of admission of the evidence
on the repute of the administration of justice, but the impact of failing
to admit the evidence.” [Emphasis in the original]
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[40] One issue to consider is the reliability of the evidence sought to be

excluded, because “exclusion of relevant and reliable evidence may
undermine the truth-seeking function of the justice system and render
the trial unfair from the public perspective, thus bringing the
administration of justice into disrepute,” per Grant at paragraph 81.
The evidence found on the boat was physical evidence that may be
connected to the robberies charged by evidence of the victims; it is
quite reliable.

[41] This area of inquiry favours admission of the evidence.

D. Weighing and balancing the factors

[42] On the subject of derivative evidence, Grant, at paragraph 127 says,

The weighing process and balancing of these concerns is one for the
trial judge in each case. … As a general rule, however, it can be
ventured that where reliable evidence is discovered as a result of a
good faith infringement that did not greatly undermine the accused’s
protected interests, the trial judge may conclude that it should be
admitted under s. 24(2). On the other hand, deliberate and egregious
police conduct that severely impacted the accused’s protected interests
may result in exclusion, notwithstanding that the evidence may be
reliable.

[43] In this case, because the object of the search was a firearm likely
located in an insecure area of town and a search warrant was
obtained in an attempt to safeguard A.B.’s interests, I find that the
balance of concerns favours admission of the evidence found.

Dated at the City of Iqaluit this 20th day of April, 2020

___________________
Justice S. Charlesworth
Nunavut Court of Justice