COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Atkinson, 2012 ONCA 380
DATE: 20120606
DOCKET: C52847
Winkler C.J.O., Lang and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Surriff Atkinson
Appellant
Diana Lumba, for the appellant
Joseph Perfetto, for the respondent
Heard: November 29, 2011
On appeal from the convictions recorded by Justice Bruce J. Frazer of the Ontario Court of Justice on June 8, 2010.
Watt J.A.:
[1] An untrained puppy and a misstep on a darkened balcony helped investigators find the person they considered responsible for an apartment burglary in Kitchener.
[2] The burglar entered the apartment in the middle of the night and removed a large flat screen television from the living room. No one awoke, not even the puppy. The burglar’s only faux pas was failing to sidestep a deposit of feces left by the puppy on the balcony of the apartment, then proceeding to track the deposit into the apartment.
[3] Within hours of discovering the burglary, a police officer arrived at the door to an enclosed verandah/mudroom at the appellant’s home. When the officer stepped inside the verandah/mudroom, he noticed a pair of shoes sitting on the floor. The appellant acknowledged, then denied, that the shoes were hers. The officer noticed a deposit on the soles of the shoes. He picked the shoes up. He smelled them. He smelled dog feces.
[4] At the appellant’s trial, the officer’s observations of the shoes were an important part of the Crown’s case. The trial judge found the appellant guilty of breaking and entering the apartment and of two earlier unlawful entries to the same premises. The television was never recovered.
[5] The principal issue on this appeal concerns the admissibility of the officer’s observations of the deposit on the appellant’s shoes. These reasons explain why I conclude that the evidence was properly admitted and that the appeal should be dismissed.
THE BACKGROUND FACTS
[6] The events that underpin the prosecution occurred on three consecutive days in early November 2009 in an apartment occupied by Helen Rosicki, her son, Tyler, Tyler’s girlfriend, and Tyler’s puppy. The apartment building was known in the community as a “crack house”.
[7] The appellant and Ms. Rosicki were recovering crack addicts. They attended local meetings of Cocaine Anonymous and saw each other around the neighbourhood. However, they were not friends. Nor did they live in the same apartment building.
[8] On November 7, 2009, Ms. Rosicki walked to a nearby corner store to buy a bag of chips. She saw the appellant at the store and exchanged pleasantries with her. They may have talked about a $10 debt Ms. Rosicki owed the appellant for a bicycle the appellant had sold her several months earlier. The two women made no plans to meet later that day.
[9] Ms. Rosicki returned home from the store and sat down on the couch. As she sat watching television, the appellant entered the apartment, uninvited, through the open balcony door. The appellant appeared to have been “partying all night” and wanted to party some more. Ms. Rosicki told the appellant to leave, but the appellant wanted to “hang out” in the apartment. After Ms. Rosicki repeated her direction to leave, the appellant grudgingly left the apartment through the front door.
[10] The appellant was convicted of being unlawfully in a dwelling-house with intent to commit an indictable offence in connection with this incident.
[11] On November 8, 2009, Ms. Rosicki and Tyler were at home. Tyler was playing video games in his room. Ms. Rosicki was lying on her bed reading a book.
[12] Around 4:00 p.m. the appellant made her second uninvited appearance at the Rosicki apartment. She walked into Ms. Rosicki’s bedroom, laid across her bed and asked her for a “ten piece” of crack. Ms. Rosicki told the appellant that she had no drugs. She told the appellant to leave, and raised her voice when the appellant made no move to do so.
[13] Tyler Rosicki came into his mother’s bedroom. He escorted the appellant out of the apartment at his mother’s request.
[14] Ms. Rosicki denied sharing cocaine with the appellant on the afternoon of November 8, 2009, or at any time for that matter. Tyler did not see his mother or the appellant taking drugs, but his mother’s comportment at the time he escorted the appellant out of the apartment led him to believe that she had relapsed into drug use.
[15] The appellant was convicted of being unlawfully in a dwelling-house with intent to commit an indictable offence as a result of this incident.
[16] During the evening of November 9, 2009, Tyler Rosicki, his girlfriend, his mother, and his puppy were all at home. The puppy was not fully trained. As a result, Tyler permitted the puppy to void himself in the living room and on the balcony of the apartment. It was Tyler’s responsibility to clean up after the puppy, but he sometimes failed in his responsibility.
[17] Tyler and his girlfriend watched television on the flat screen television in front of the living room windows until around 11:00 or 11:30 p.m. on November 9, 2009. Tyler left the balcony door unlocked. He heard nothing during the night.
[18] Helen Rosicki left for work at about 5:30 the next morning. She did not turn on the living room lights, thus did not see the state of the living room, television or balcony area.
[19] When Tyler awoke around 7:00 a.m., he noticed that the television was no longer in the living room. He telephoned his mother at work immediately. Later that week he discovered that his leather jacket was also missing.
[20] Tyler looked around the apartment, on the balcony, and on the ground beneath it. He noticed footprints in feces on a blue table beneath the balcony, on the balcony, and on the kitchen and living room floors. None of the footprints were closer than about three feet from where the television had been.
[21] Police responded quickly to the report of the burglary. The investigating officer, P.C. Steven Van Dyke, looked around the apartment. He noticed “dark feces”: “There was a lot.” Someone appeared to have stepped in feces on the balcony. Smeared feces appeared on the kitchen floor.
[22] When the occupants of the apartment told P.C. Van Dyke about the two prior incidents in which the appellant had entered the apartment uninvited and unannounced, the officer considered her “a person of interest” in his investigation. He acknowledged, however, that the information Ms. Rosicki and Tyler provided did not give him reasonable and probable grounds to believe that the appellant had burgled the apartment.
[23] P.C. Van Dyke wanted to speak to the appellant to pursue his investigation. The appellant lived nearby. He went to her home, walked up to the door of the enclosed verandah/mudroom, and knocked. The appellant answered the door.
[24] At the doorway to the verandah/mudroom, P.C. Van Dyke asked the appellant where she had been the previous evening. She responded that she had been in and out of her house at different times. She asked the officer why he was asking her these questions. P.C. Van Dyke told her that she should just tell him where he could find the (stolen) television. The appellant denied any knowledge of the television.
[25] As the appellant and P.C. Van Dyke spoke, he noticed a pair of black shoes close by. Something was stuck to the bottom of the shoes. The officer picked up the shoes and took a closer look at the adherent material. He thought the material resembled dog feces and lifted the shoes towards his nose to confirm his initial impression. The smell confirmed the presence of feces. The appellant acknowledged that the shoes were hers, then quickly retracted her admission. P.C. Van Dyke seized the shoes.
[26] P.C. Van Dyke conceded that in order to smell the adherent material he had to pick up the shoes. The officer considered that he had an implied invitation to enter the verandah/mudroom: he walked in without any objection from the appellant. When the appellant denied having taken the television, she told the officer he could enter her house and showed him that the television was not there.
[27] Shortly after the appellant’s release from custody following her arrest on these charges, she had two chance encounters with Ms. Rosicki: once at the corner store, and a second time outside Ms. Rosicki’s building. On both occasions, the appellant said “no hard feelings”. Ms. Rosicki told the appellant to “stay away” from her and her apartment.
[28] The appellant advances three grounds of appeal. She submits that the trial judge erred:
i. in admitting evidence about P.C. Van Dyke’s observations of the material adhering to the shoes seized from the appellant’s verandah/mudroom;
ii. in misapprehending the effect of P.C. Van Dyke’s evidence about the extent of the similarities between the dog feces at the scene of the burglary and the material adhering to the shoes seized from the appellant’s verandah/mudroom; and
iii. in failing to properly apply the presumption of intent in s. 349(2) of the Criminal Code in finding the appellant’s guilt proven on the counts charging the offence in s. 349(1).
[29] It is not necessary to separately consider the second ground of appeal. It was not forcefully argued and I have not done so. For reasons that appear in my discussion of the Charter issue, to the extent that the trial judge stated that the adherent material was “the feces”, he overstated the officer’s testimony. Nonetheless, this misapprehension was not material: it was open to the trial judge to find that the appellant had feces on her shoes because she was the burglar. Further, the feces was not the only evidence connecting the appellant to the crime.
[30] A full appreciation of this ground of appeal requires some further background, including a brief description of the manner in which the issue was raised, and the positions advanced at trial.
[31] The appellant made no formal written application to exclude P.C. Van Dyke’s evidence about his observations of the shoes. For all practical purposes, trial counsel for the appellant ignored the requirements of Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, S.I./97-133.
[32] Instead of a formal written application and voir dire to determine admissibility, the trial Crown and defence counsel agreed that P.C. Van Dyke had seized the shoes in breach of s. 8 of the Charter and that the shoes should be excluded as evidence. Neither counsel explained to the trial judge the factual premise underlying their agreement that the officer’s conduct offended s. 8 or that the seized shoes should be excluded as evidence.
[33] The parties lacked a common understanding, however, about the admissibility of P.C. Van Dyke’s evidence of his observations of the shoes.
[34] The trial Crown took the position that the exclusion of the shoes was not determinative of the admissibility of the visual and olfactory observations of the adherent fecal material. The trial Crown’s position was that the officer’s visual observations of the shoes, including the adherent feces, were admissible, leaving only the admissibility of the smell for determination by the trial judge.
[35] Trial counsel for the appellant contended that the exclusion of the shoes included exclusion of the visual observations of the adherent material. What remained to be decided, according to defence counsel, was the admissibility of the officer’s evidence about smell.
[36] The trial judge gave no separate reasons on whether P.C. Van Dyke’s observations of the shoes offended s. 8 of the Charter. As part of his reasons for judgment, the trial judge relied upon the evidence of P.C. Van Dyke’s observations of the shoes, listing several factors relevant to the lines of inquiry described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, as supporting the admissibility of the evidence.
[37] For the appellant, Ms. Lumba says that the trial judge was wrong in failing to exclude the evidence of P.C. Van Dyke’s visual and olfactory observations of the shoes.
[38] First, Ms. Lumba contends, each observation amounted to a “search” within s. 8 of the Charter. The searches lacked any statutory or common law authority. No warrant. No consent. No claim under the “plain view” doctrine, because the officer was not lawfully present in the verandah/mudroom and the feces were neither readily apparent nor inadvertently discovered. And, what is more, the plain view doctrine affords authority to seize, not to search.
[39] Second, Ms. Lumba continues, the trial judge erred in his analysis under s. 24(2). The infringement was not trivial, as the trial judge found, rather serious, since it involved breaches of both informational and territorial privacy, the latter involving a dwelling, the appellant’s home. For similar reasons, the infringement had a significant impact on the appellant’s Charter-protected interests. Although the third line of inquiry favoured admissibility, a careful balancing of all three lines of inquiry mandated exclusion of the evidence.
[40] For the respondent, Mr. Perfetto takes issue with the claim of constitutional infringement, as well, the submission that consideration of the lines of inquiry under Grant supports exclusion of the evidence of P.C. Van Dyke’s observations.
[41] Mr. Perfetto acknowledges the trial Crown conceded that the shoes had been unlawfully seized and should be excluded as evidence. However, it is Mr. Perfetto’s position that trial counsel did not clearly articulate the basis for this concession and the trial judge was entitled to reach a contrary conclusion on the evidence as a whole.
[42] The respondent says that P.C. Van Dyke was lawfully in the appellant’s verandah/mudroom to pursue his burglary investigation. The material that adhered to the black shoes was clearly visible to him from the entrance. At the very least, he was entitled to pick up the shoes, look at the material, and smell it. His conduct did not amount to an unreasonable search.
[43] Mr. Perfetto submits that, even if P.C. Van Dyke’s observations could be characterized as an unreasonable search under s. 8 of the Charter, his evidence about them was admissible at trial. The intrusion into the appellant’s territorial privacy, a step forward into an enclosed verandah/mudroom, was minimal. The information obtained, that the material clinging to the soles of a pair of shoes looked and smelled like dog feces, does not capture the biographical core of personal information that individuals in a free and democratic society wish to maintain and control from dissemination to the state. In other words, the impact of the observations on the appellant’s Charter-protected interests was minimal. And society’s interest in the adjudication of the case on its merits favours admission of the evidence.
[44] The submissions of the parties require consideration of various legal principles. This includes the principles relating to the constitutionality of the conduct of P.C. Van Dyke when he arrived at the appellant’s home, and the admissibility of his evidence about the observations he made of the shoes he saw, seized and smelled in the verandah/mudroom of the appellant’s home.
(i) Implied Licence to Knock
[45] The common law recognizes an implied licence for all members of the public, including police officers, to approach the door of a residence and to knock: R. v. Evans, [1996] 1 S.C.R. 8, at para. 13. Thus, an occupier is deemed to grant the public, including the police, permission to approach the door and to knock. Police who act in accordance with this implied invitation do not intrude on the occupant’s privacy: Evans, at para. 13. Unless rebutted by some clear expression of intent, the implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling: Evans, at para. 13.
[46] This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence” to knock: Evans, at para. 15.
[47] Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceeded any authority implied by the invitation to knock and become engaged in a search of the occupant’s home: Evans, at paras. 16, 18, and 21. Likewise, where police specifically advert to the possibility of securing evidence against an accused by “knocking on the door”, they have exceeded the authority conferred on them by the implied licence to knock: Evans, at para. 20.
[48] In some circumstances, police officers lawfully present at the door of a residence may lawfully enter the premises. An invitation to enter may be implied from the circumstances, for example from the words and conduct of a person in charge of the place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place: R. v. Clarke (2005), 196 C.C.C. (3d) 426 (Ont. C.A.), at para. 28.
[49] When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills (1992), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348.
(ii) Protected Privacy Interests
[50] The right to be secure from unreasonable search or seizure protects only a “reasonable expectation of privacy”. The limiting term “reasonable” implies that, in each case, the court must assess whether, in the circumstances, the public’s interest in being left alone by the state must give way to the state’s interest in intruding on the individual’s privacy to advance its goals, such as law enforcement: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 30; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-160. The assessment must take into account all the circumstances of the case: Edwards, at paras. 31 and 45.
[51] Among the privacy interests that s. 8 protects are personal, territorial and informational privacy: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 20. Personal privacy protects bodily integrity. Territorial privacy protects privacy in the home, as well as other places, albeit without the same rigour: Tessling, at paras. 21 and 22. Informational privacy has to do with “the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others”: Tessling, at para. 23.
[52] Not every scrap of information that an individual may wish to keep confidential falls within the sweep of s. 8. What is included is a biographical core of personal information that individuals in a free and democratic society might wish to maintain and control from dissemination to the state, such as information that tends to reveal intimate details about, and personal choices of, the individual: Tessling, at paras. 25-26; R. v. Plant, [1993] 3 S.C.R. 281, at p. 293.
[53] The distinctions between personal, territorial and informational privacy provide useful analytical tools, but in many cases privacy interests may spill over from one category to another. In this case, for example, the privacy interest is informational. It concerns the appellant’s activities to the extent revealed by the material adhering to her shoes. But the interest also implicates territorial privacy because police entered the appellant’s home and observed the shoes there.
[54] Police conduct that interferes with a reasonable expectation of privacy constitutes a “search” for the purposes of s. 8 of the Charter: R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 15; Tessling, at para. 18; R. v. Wise, [1992] 1 S.C.R. 527, at p. 533. Police conduct that amounts to a search, but is not authorized by a warrant, is presumptively unreasonable and shifts the burden of establishing reasonableness to the Crown. In this case, the respondent relies on the appellant’s consent to P.C. Van Dyke’s entrance into her home, and on the operation of the “plain view” doctrine to establish that the search was reasonable.
(iii) Consent Search
[55] A consent search is lawful, thus reasonable. A valid consent requires that the consenting party have the required informational foundation for a true relinquishment of the right: R. v. Borden, [1994] 3 S.C.R. 145, at p. 162.
[56] The consent must be voluntary and informed. To be voluntary, the consent, which may be express or implied, must not be the product of police oppression, coercion or other conduct that negates the consenting party’s freedom to choose whether to allow police to pursue the course of conduct requested or to deny them that right: Wills, at p. 354. To be informed, the consenting party must be aware of
i. the nature of the police conduct to which the consent relates;
ii. the right to refuse to permit the police to pursue the conduct; and
iii. the potential consequences of giving consent.
Wills, at pp. 354-355.
(iv) The “Plain View” Doctrine
[57] The “plain view” doctrine is a common law doctrine that permits the warrantless seizure of things in plain view. To engage this doctrine requires the satisfaction of three conditions:
i. the seizing officer must be lawfully in the place of seizure;
ii. the evidentiary nature of the item must be immediately apparent to the officer through the unaided use of his or her senses; and
iii. the evidence must be discovered inadvertently.
R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 56; Law, at para. 27.
[58] Faced with an application under s. 24(2) of the Charter to exclude evidence obtained by constitutional infringement, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. The analysis involves three lines of inquiry:
i. the seriousness of the Charter-infringing state conduct;
ii. the impact of the breach on the Charter-protected interests of the accused; and
iii. society’s interest in the adjudication of the case on the merits.
Under s. 24(2), a court must balance the assessments under each line of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
[59] The first line of inquiry involves an evaluation of the seriousness of the state conduct that led to the breach. Some violations will be inadvertent or minor. Others may reveal a wilful or reckless disregard of Charter rights: Grant, at para. 74. Extenuating circumstances, like the need to prevent the disappearance, or preserve the integrity, of evidence, may attenuate the seriousness of the Charter-infringing conduct: Grant, at para. 75. “Good faith” on the part of investigators may also be a leavening factor, but neither negligence nor wilful blindness amounts to good faith: Grant, at para. 75. On the other hand, evidence that the Charter-infringing state conduct was part of a pattern of abuse aggravates the seriousness of the state conduct: Grant, at para. 75.
[60] The second line of inquiry commands an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed: Grant, at para. 76. To determine the seriousness of the infringement from this perspective, a court must take into account the interests engaged by the infringed right and examine the extent to which the violation impacted on those interests: Grant, at para. 77. An unreasonable search that intrudes on an area in which a person enjoys a high expectation of privacy, or that demeans the person’s dignity, is more serious than one that does not: Grant, at para. 78.
[61] Under the third line of inquiry, the reliability of the constitutionally-tainted evidence is a relevant factor. To admit unreliable evidence is as antithetical to an accused’s interest in a fair trial as it is to the public’s interest in uncovering the truth: Grant, at para. 81. The importance of the evidence to the Crown’s case is another significant factor that warrants consideration under this line of inquiry: Grant, at para. 83.
[62] A final point concerns the scope of review of decisions under s. 24(2). Absent palpable and overriding error, we owe deference to the trial judge’s underlying findings of fact. On the other hand, where we reach a different conclusion about the nature and extent of the breach itself, we owe no deference to the trial judge’s conclusion under s. 24(2): Grant, at para. 129.
[63] An assessment of the merits of this ground of appeal is hampered significantly by the procedural course followed by trial counsel and the threadbare record that resulted.
[64] Evidence about the shoes P.C. Van Dyke saw, examined, and seized from the appellant’s verandah/mudroom within hours of the discovery of the burglary was important to proving the appellant was the burglar who broke into the Rosicki apartment. The Crown sought to link the shoes to the appellant by evidence of their location and the appellant’s admission of ownership. The Crown sought to establish the connection between the shoes, thus the appellant, and the burglary, by coupling the dog feces observed in the Rosicki apartment with the material adhering to the soles of the shoes found at the appellant’s home. P.C. Van Dyke’s evidence was relied on to establish this nexus.
[65] The interaction between P.C. Van Dyke and the appellant at the door to, and later within, the enclosed verandah/mudroom of the appellant’s home resulted in the accumulation of several items of evidence of significance to the Crown’s case. But the interaction, hence the evidence obtained as a result, also engaged Charter-protected interests of the appellant and thus was ripe for challenge.
[66] Trial counsel for the appellant filed no written materials challenging the admissibility of any part of the evidence of P.C. Van Dyke. As a consequence, neither the trial judge nor Crown counsel received advance notice of the precise nature of any allegation of constitutional impropriety. To be fair, however, it would have been apparent to counsel from disclosure, and to the trial judge as the evidence began to develop, that to the extent anything P.C. Van Dyke did amounted to a search or seizure, the officer’s conduct was not authorized by warrant.
[67] In a commendable attempt to expedite trial proceedings, counsel agreed that
i. the seizure of the shoes from the appellant’s verandah/mudroom was “unlawful”; and
ii. the shoes were not admissible as evidence.
Unfortunately, counsel did not describe the factual premise on which their agreement rested.
[68] Counsel were not in agreement about the admissibility of the remainder of P.C. Van Dyke’s evidence, in particular his observations, by sight and smell, of the material adhering to the shoes. No formal voir dire was conducted to determine the admissibility of the balance of P.C. Van Dyke’s evidence. In the result, few questions were asked of P.C. Van Dyke on issues of importance to the assessment of the nature and scope of any constitutional infringement and the admissibility of the evidence of his observations.
[69] The trial judge made no express findings of fact about the nature and extent of any unconstitutional conduct on the part of P.C. Van Dyke in attending at the appellant’s door, entering the verandah/mudroom, or making observations about the material adhering to the shoes.
[70] Implicit from the trial judge’s consideration of s. 24(2) of the Charter in connection with the evidence of P.C. Van Dyke about his “see and smell” observations of the appellant’s shoes is a finding that the observations were made in breach of s. 8 of the Charter. I agree that these observations offended s. 8, but find it necessary to take a closer look at the nature and extent of the infringement in order to reach a conclusion about the correctness of the trial judge’s decision to admit the observations as evidence under s. 24(2).
[71] The interaction between P.C. Van Dyke and the appellant began when the appellant responded to the officer’s knock on the door of her enclosed verandah/mudroom.
[72] Like other members of the public, P.C. Van Dyke had an implied invitation to knock at the door of the appellant’s home. The purpose of this implied invitation to knock is to facilitate communication between the public, in this case the occupant, the appellant, and the police, P.C. Van Dyke: Evans, at paras. 13 and 15. The appellant waived the privacy interest she otherwise had in the approach to the door of her home: Evans, at para. 13.
[73] P.C. Van Dyke considered the appellant a “person of interest” in his investigation. He had been told about the appellant’s two unlawful entries to the same apartment on the two days immediately preceding the burglary, and about how entries had been made. The officer acknowledged that he lacked reasonable and probable grounds to arrest the appellant. It is a reasonable inference, however, from the questions he asked and the actions he took, that P.C. Van Dyke approached the home in the hope of obtaining evidence linking the appellant to the burglary. In doing so, P.C. Van Dyke exceeded the bounds of the implied invitation and engaged in a search of the appellant’s home: Evans, at para. 18.
[74] After a brief conversation at the threshold of the enclosed verandah/mudroom, P.C. Van Dyke stepped into the room. He said that he had an “implied invitation” to enter. He could not specifically recall anything the appellant said about entering, except that she offered no objection. The trial judge appears to have made a finding of implied invitation or waiver on the basis of this evidence. It is difficult to see how the evidence can support a conclusion that the appellant had an adequate informational basis upon which she could truly relinquish her right to privacy: Borden, at p. 162; Wills, at p. 355.
[75] The officer could see something adhering to the bottom of the shoes that the appellant had admitted, then denied ownership of. He picked up the shoes, looked at them, smelled them, and concluded that the adherent material was dog feces. The officer’s conduct involved both a search and a seizure.
[76] The officer’s conduct in what amounted to a search and seizure was not carried out in accordance with a warrant. The warrantless nature of the search and seizure shifted the onus to the Crown to establish a lawful basis for the activity. The appellant gave no valid consent. Nor could the “plain view” doctrine legitimatize the activity because, among other things, the officer was not lawfully in the premises.
[77] The conduct of P.C. Van Dyke that amounted to a search or seizure, in particular, his observations of and about the material adhering to the appellant’s shoes, breached the appellant’s rights under s. 8 of the Charter.
[78] The trial judge’s decision to admit the evidence of P.C. Van Dyke’s observations of the shoes under s. 24(2) of the Charter included two critical findings:
i. that P.C. Van Dyke was “invited” into the verandah/mudroom where he saw, seized and smelled the shoes; and
ii. that the evidence of P.C. Van Dyke that the adherent material was “dog feces” was reliable evidence.
Neither finding rests on a firm evidentiary footing. Each is flawed by either or both a misapprehension of material evidence or an unreasonable assessment of that same evidence. In the result, the trial judge’s conclusion under s. 24(2) is not entitled to the usual deference and must be re-opened here. On re-opening, however, I have come to the same conclusion as did the trial judge.
[79] It is beyond controversy that an invitation to enter premises or other locations may be expressed or implied: Clarke, at para. 28. Whether an invitation to enter will be implied requires consideration of all the circumstances including the words and conduct of the invitor. Where the alleged invitee is a police officer pursuing an investigation, we must also be mindful that acquiescence or compliance, in short, a failure to object, is not synonymous with an invitation to enter any more than it is an equivalent of consent: Wills, at p. 348.
[80] In this case, P.C. Van Dyke could recall nothing that the appellant said or did that led him to the conclusion that he had an “implied invitation” to enter beyond the doorway to the verandah/mudroom. The entry was warrantless, thus it fell to the Crown to establish that the search was reasonable. P.C. Van Dyke’s unadorned statement, that he had an “implied invitation”, falls short of what is required.
[81] The trial judge considered the evidence of P.C. Van Dyke’s observations “reliable”. The officer described the adherent material as “dog feces”. He based his conclusion on sight and smell. He did not attempt any comparison between the dog feces he had seen at the Rosicki apartment and the material adhering to the appellant’s shoes. Reasonable people may differ about the need for expertise to describe the origin of feces, but most would acknowledge that the officer could testify about the similarities, texture and smell, between the different deposits. To the extent that the trial judge found the evidence of P.C. Van Dyke established that the adherent material was “the feces”, he overstated the effect of that evidence.
[82] These findings formed part of the trial judge’s analysis under s. 24(2). Each is erroneous and requires a re-evaluation of the decision.
[83] An assessment of the seriousness of the breach must take cognizance of the initial breach that occurred when P.C. Van Dyke approached the appellant’s home for the purpose of gathering evidence, as well as the subsequent seizure and search of the shoes. That said, the entire course of conduct comprised a single transaction. It was brief, and involved an area of the premises outside the main living area that was visible from the entrance. The appellant acquiesced in the officer’s conduct and later invited him into the interior of her home so he could see for himself that the stolen television was not there.
[84] There was no evidence at trial to demonstrate that what occurred here reflected a systemic disregard for Charter values by P.C. Van Dyke or the police force of which he was a member. Nothing warrants a finding other than that the officer was acting in good faith.
[85] The first line of inquiry under Grant favours admissibility.
[86] The trial judge considered that the impact of the breach on the Charter-protected interests of the appellant was minimal. I agree.
[87] In this case, the breaches involved a single Charter-protected interest: the right to be secure against unreasonable search and seizure. Of the privacy interests protected by the guarantee in s. 8, the investigative conduct implicated both territorial and informational privacy.
[88] The incursion into territorial privacy involved the appellant’s home, a place accorded the highest expectation of privacy: R. v. Feeney, [1997] 2 S.C.R. 13, at para. 43. But the degree of expectation of privacy in the home and its precincts is not a constant: R. v. Grant, [1993] 3 S.C.R. 223, at pp. 237 and 241. The area involved here was a covered verandah/mudroom, not the main living area of the residence. Entrance to the verandah/mudroom was by a door, the same door that all members of the public had a licence to approach and knock. The shoes were visible from the doorway. The conduct required to examine the shoes involved a step or two, picking up the shoes, looking at them, and smelling the adherent material.
[89] The invasion of informational privacy has to do with the observations of the material adhering to the appellant’s shoes. The observations were made by P.C. Van Dyke with his unaided senses of sight and smell. The shoes were in plain sight on the floor of the verandah/mudroom. The information obtained, that the appellant (or someone else), wearing the shoes, had stepped in feces, reveals little about the intimate details of her lifestyle and personal choices and nothing more than a passerby could infer from a casual meeting on a street corner.
[90] The appellant did not testify on her application to exclude the evidence of P.C. Van Dyke’s observations of the shoes. Yet we may gain some sense of her impression of the impact of the officer’s unconstitutional behaviour on her Charter-protected interests by her response to the officer’s query about the location of the stolen television: she invited him into the main living area of the house to satisfy himself that the television wasn’t there.
[91] The final line of inquiry under Grant requires a consideration of the impact of exclusion on society’s interest in having criminal cases tried on their merits.
[92] The evidence of P.C. Van Dyke’s observations about the material adhering to the appellant’s shoes was relevant to the single controversial issue on the break and entry count: the identity of the burglar. This circumstantial evidence provided a link between the appellant, the admitted owner of the shoes, and the burgled premises, a link with a close temporal connection to the burglary. Yet it was not the only, or even the most, cogent evidence linking the appellant to the burglary, thus of surpassing importance in the Crown’s attempt to establish the appellant’s guilt. The appellant had twice entered the Rosicki apartment within 48 hours of the burglary. Both entries were unlawful, and at least one, and probably both, had been by the same means used by the burglar. The appellant lived nearby. She was on the hunt for drugs.
[93] The infringement in this case did not render the evidence of P.C. Van Dyke’s observations unreliable, as may be the case for example with breaches of s. 10(b) of the Charter. On the other hand, the evidence lacked cogency because of the conclusory language in which it was expressed.
[94] On balance, I regard this case as one that falls close to the line. Despite the errors in assessing the nature and extent of the Charter infringement, I reach the same conclusion as the trial judge concerning the admissibility of P.C. Van Dyke’s observations of the material adhering to the appellant’s shoes.
[95] I would not give effect to this ground of appeal.
Ground #3: Misapprehension of the Presumption in s. 349(2)
[96] The final ground of appeal relates only to the counts of unlawful entry of the Rosicki apartment with intent to commit an indictable offence.
[97] Section 349(2) of the Criminal Code enacts a statutory presumption of intent. Where evidence is introduced that a person unlawfully entered or was unlawfully present in premises, the subsection requires the trier of fact to presume, absent evidence to the contrary, that the intruder was there to commit an indictable offence. In other words, from evidence of the actus reus, the trier of fact presumes the mens rea, absent evidence to the contrary.
[98] To assess the merits of this ground of appeal, a brief reference to the circumstances of each entry and the trial judge’s application of the presumption are essential.
[99] The appellant entered the Rosicki apartment on November 6, 2009 through the balcony door. Ms. Rosicki was watching television. The appellant simply appeared in the living room. She appeared to have been “partying” all night and wanted to continue. Ms. Rosicki wanted no part of any such activity and told the appellant to leave. The appellant left, unhappily.
[100] The appellant next appeared in Ms. Rosicki’s bedroom around 4:00 p.m. on November 8, 2009. She asked Ms. Rosicki for drugs, a “ten piece” of crack cocaine. Ms. Rosicki refused the request and Tyler Rosicki escorted the appellant out of the apartment when his mother’s request for the appellant to leave proved unavailing.
[101] The trial judge made brief reference to the presumption, then summarized the evidence about the interactions between the appellant and Ms. Rosicki. He pointed out that to amount to “evidence to the contrary” within s. 349(2), evidence must not be disbelieved and must tend to negative the intent presumed by the subsection. He concluded:
There is nothing about either of those incidents that would cause the court to doubt the intent of her entry especially when the break, enter and theft occurred the same night as the Sunday afternoon entry by the accused. The accused did not testify. There is no other evidence to suggest the intent was otherwise. The presumption stands and the court is satisfied beyond a reasonable doubt that counts 2 and 3 have been proven.
[102] For the appellant, Ms. Lumba acknowledges the applicability of the presumption of s. 349(2) to both unlawful entry counts. She concedes, as well, that the appellant’s failure to testify left the trial judge with no direct evidence of the appellant’s state of mind at the time of her unlawful entries.
[103] However, Ms. Lumba submits that the trial judge erred in failing to find that there was evidence to the contrary on both counts of unlawful entry with intent. The judge misapprehended the evidence in connection with the first entry, rejecting it at least in part because he thought the entry occurred “in the middle of the night”. He also failed to consider that the principals knew each other from Cocaine Anonymous, had met earlier that day, and had chatted briefly at the corner store. They may have discussed the money Ms. Rosicki owed the appellant for a bicycle the appellant had sold her several months earlier. The second entry occurred during the daylight hours, around 4:00 p.m. The appellant wanted to get some crack from Ms. Rosicki and “hang out” in the apartment with Ms. Rosicki, a recovering crack addict. Considered in its entirety, this evidence rebutted the presumption.
[104] For the respondent, Mr. Perfetto recognizes that there was evidence adduced at trial that, if not disbelieved by the trial judge, could have amounted to “evidence to the contrary”. He contends, however, that in deciding whether to accept or reject this “evidence to the contrary”, the trial judge was required to consider the evidence as a whole, not the “evidence to the contrary” in isolation. The trial judge rejected what was put forward as “evidence to the contrary” because he found, on the whole of the evidence, that the appellant was the person who broke into the apartment and stole the television on the evening/morning immediately following the two unlawful entries . The finding on the break and enter with intent count was untainted by any reference to the presumption of s. 349(2), which was inapplicable to that charge, and capable of rebutting the “evidence to the contrary” relied upon by the appellant.
[105] The presumption in s. 349(2) applies only to prosecutions for the offences of s. 349(1) and helps the Crown prove the requisite fault element, the intent to commit an indictable offence in the premises unlawfully entered. For the purposes of the subsection, “evidence to the contrary” is evidence, which may emerge from the Crown’s case or be adduced as part of the defence case, that is not disbelieved by the trier of fact and tends to negate the accused’s intention to commit an indictable offence in the premises: R. v. Nagy (1988), 45 C.C.C. (3d) 350 (Ont. C.A.), at p. 356; R. v. Proudlock, [1979] 1 S.C.R. 525, at p. 542.
[106] In prosecutions to which s. 349(2) applies and in which “evidence to the contrary” is given, the trial judge is required to consider that evidence, along with the rest of the evidence adduced at trial, in determining whether Crown counsel has proven the mens rea required for a conviction beyond a reasonable doubt: R. v. Gosselin (1988), 45 C.C.C. (3d) 568 (Ont. C.A.), at p. 572.
[107] I would not give effect to this ground of appeal.
[108] To rebut the presumption of unlawful intent in s. 349(2), “evidence to the contrary” must tend to show that the intruder or occupier had no intention of committing a crime in the premises. As with any evidence adduced at trial, it is for the presiding judge to assess this evidence, to determine whether she or he believes all, some or none of it. If the “evidence to the contrary” is neither rejected nor disbelieved, it falls to the Crown to prove the existence of the relevant intent beyond a reasonable doubt on the evidence taken as a whole: Nagy, at pp. 356-357.
[109] It is common ground that there was evidence in the Crown’s case at trial that was capable of amounting to “evidence to the contrary” within s. 349(2).
[110] The trial judge rejected the “evidence to the contrary” because he was satisfied beyond a reasonable doubt that the appellant was the burglar who broke into the Rosicki apartment in the early hours of November 9, 2009 and stole the large flat screen television that had been in the living room. In other words, the trial judge used circumstantial evidence of subsequent conduct as a basis upon which to infer a prior state of mind. This is nothing new. A similar chain of reasoning, involving the retrospectant use of circumstantial evidence of later conduct as a basis to discredit a defence involving an accused’s state of mind, is invoked in cases where evidence of post-offence conduct has been adduced: see R. v. Jaw, 2009 SCC 42, [2009], 3 S.C.R. 26, at para. 25.
[111] The rejection of the “evidence to the contrary” left the presumption of unlawful intent intact and the Crown’s case unanswered.
[112] This ground of appeal fails.
[113] For these reasons, I would dismiss the appeal.
Released: June 6, 2012 “DW” “David Watt J.A.”
“I agree, Winkler C.J.O.”
“I agree, S. Lang J.A.”