R. v. McCartie, 2015 BCPC 233 (CanLII)
Citation: R. v. McCartie Date: 20150807
2015 BCPC 0233 File No: 74283-1
Registry: Nanaimo
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
COLIN McCARTIE and ANNE McCARTIE
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Crown: T.I. McFadgen
Appearing on their own behalf: Colin McCartie and Anne McCartie
Place of Hearing: Nanaimo, B.C.
Dates of Hearing: August 5, 6, 2015
Date of Judgment: August 7, 2015
The Question
[1] Mr. & Ms. McCartie are charged with tax evasion. On this application, Ms. McCartie asks that I determine whether her rights under section 8 of the Canadian Charter of Rights & Freedoms were infringed during a search of her home by agents of Canada Revenue Agency (“CRA”). If I answer that question in the affirmative, she will apply to exclude from evidence the documents seized by CRA during that search. The latter application will require consideration of section 24 of the Charter. In that context, it will be material to consider such questions as the seriousness of the Charter breach and whether the conduct of the CRA investigators is deserving of criticism. Because those issues have not yet been fully argued, I will refrain from comment respecting them in these reasons for judgment.
Facts Pertinent To This Application.
[2] The pertinent evidence was given by Ms. Sundberg (the CRA investigator in charge of the search), Mr. Stetchman (another CRA investigator who was assisting her) and Constable Reynolds of the RCMP. There were several small differences in their recollections of the sequence of events. Where their memories differ, I accept the evidence of Mr. Stetchman in preference to the others. Constable Reynolds frankly admitted that he was unable to recall a number of points of detail. Ms. Sundberg appeared to me to be confused and uncertain on several points. By contrast, Mr. Stetchman’s recollection was clear, consistent and logical.
[3] On August 3, 2010, Ms. Sundberg applied for and was granted a warrant to search Mr. & Ms. McCartie’s home in Nanaimo, British Columbia.
[4] Just before 9:00 a.m. on August 11, 2010, Ms. Sundberg attended at the McCartie home. She was accompanied by Mr. Stetchman, Constable Reynolds, eight other CRA investigators and one other RCMP officer.
[5] Ms. Sundberg, Mr. Stetchman and Constable Reynolds went to the front door. Constable Reynolds was wearing his police uniform. Ms. Sundberg had a copy of the warrant in her hand and the original warrant in a binder under her arm.
[6] Ms. Sundberg knocked loudly and rang the doorbell, but there was no response. She knocked and rang several times over the next 5 minutes, again without eliciting a response. Ms. Sundberg, Mr. Stetchman and Constable Reynolds discussed whether to call for a locksmith to open the door. The other RCMP officer went around to the side of the house, and reported that he could hear sounds of movement, indicating that someone was in the house.
[7] At 9:05 a.m., a woman opened the door to the extent permitted by the security latch on the inside. The woman was Ms. McCartie, but none of Ms. Sundberg, Mr. Stetchman or Constable Reynolds knew that at the time. Mr. Stetchman estimated the aperture at one inch. Ms. Sundberg’s estimate was 3 inches. Ms. Sundberg identified herself as a CRA investigator, informed Ms. McCartie that Ms. Sundberg had a warrant to search the house, and demanded that Ms. McCartie open the door. Ms. McCartie “asked for” the warrant. Although no attempt was made to quote her verbatim, I take this to mean that Ms. McCartie asked to be handed the warrant, and Mr. Stetchman agreed in cross-examination that such was the purport of her request. Ms. Sundberg replied by asserting that Ms. McCartie was obliged to open the door, and that, if she did so, Ms. Sundberg would enter the house and “go over” the warrant with her. Ms. Sundberg asked Ms. McCartie to state her name. Ms. Sundberg asserts that Ms. McCartie replied “I don’t know”, but that assertion is not corroborated by Mr. Stetchman. I am satisfied that Ms. McCartie was asked to state her name, and declined to do so, but am not satisfied that she said that she did not know her own name. Ms. McCartie said that she was going to call a lawyer, and closed the door.
[8] Ms. McCartie opened the door, again to the extent permitted by the security latch, about a minute later. Constable Reynolds told her that Ms. Sundberg had a warrant, and that Ms. McCartie was obliged to open the door. Ms. McCartie asked to see his business card and Constable Reynolds showed her his police badge. Constable Reynolds told Ms. McCartie that he had authority to break down the door, and that he would do so unless she opened it immediately. Ms. McCartie closed the door.
[9] A few minutes later, Ms. McCartie unlatched and opened the door. Accompanied by her daughter, she stepped out and asked, for the second time, “for the warrant”. Ms. Sundberg replied that, if Ms. McCartie would go into the house with Ms. Sundberg, Ms. Sundberg would “go over” the warrant with her. Ms. McCartie declined that invitation.
[10] At 9:12 a.m., Ms. McCartie and her daughter walked to their vehicle and drove off, leaving the front door open. The RCMP officers entered the house to satisfy themselves that there were no threats to the investigators’ safety in the house. After that was done, the CRA investigators entered and searched the house. During the search, they seized a number of documents which the Crown proposes to tender in evidence at this trial.
Section 29(1) of the Criminal Code
[11] Section 29(1) of the Criminal Code provides:
It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.
I note a grammatical anomaly. Construed according to the ordinary rules of English grammar, the phrase “where it is feasible to do so” modifies the phrase “to have it with him”, but not the phrase “when requested to do so”. For that reason, if one approaches the section simply grammatically:
a. The obligation to have a copy of the warrant when conducting the search is qualified. The searcher need only have a copy of the warrant if it is feasible in the circumstances to have one; but
b. The obligation to produce the warrant on request is absolute. The searcher must produce the warrant when asked, without regard to practical exigencies.
However, that makes no sense. The section contemplates that there will be circumstances in which the searcher will not be expected or required to have the warrant, or a copy, with her. If she is not required to have the warrant with her in those circumstances, she can hardly be expected to produce the warrant on request. I conclude that both obligations are qualified, and that the searcher is obliged to produce a copy of the warrant only where it would be “feasible” to do so. The apposite definition of “feasible” provided by the Canadian Oxford Dictionary is “practicable; easily or conveniently done”.
[12] I asked Ms. Sundberg why she did not hand Ms. McCartie a copy of the warrant when Ms. McCartie asked for it. Ms. Sundberg gave three reasons:
a. She wanted Ms. McCartie to open the door, and was offering her the chance to “go over” the warrant, after she was inside the house, as an inducement to that end.
b. She did not know that the woman at the door was Ms. McCartie, and she wanted the woman to identify herself so that Ms. Sundberg would know who she was serving with the warrant.
c. It was her opinion that she was not obliged to produce the warrant (or a copy) until she had executed the warrant, and that she would not execute the warrant until she crossed the threshold, which she had not done at the time of Ms. McCartie’s request.
None of those reasons rendered it impracticable for Ms. Sundberg to have given Ms. McCartie a copy of the warrant when Ms. McCartie first asked for it. It would have been perfectly simple and easy for Ms. Sundberg to slide a copy of the warrant through the 1 - 3 inch aperture and into Ms. McCartie’s hand.
[13] Mr. McFadgen, for the Crown, says that Ms. Sundberg was not obliged to comply with Ms. McCartie’s request because:
a. Ms. Sundberg and Constable Reynolds were reasonably concerned about the safety of the investigators and about the risk that evidence was being destroyed while the investigators were waiting on the doorstep. He relies upon Constable Reynolds’ description of the situation as escalating and potentially dangerous.
b. Ms. McCartie asked to be handed a copy of the warrant. The statute obliges the searcher to “produce” the document. “Produce” does not mean “hand over a copy”.
c. Ms. Sundberg was correct in her assertion that she had not “executed” the warrant at the time of Ms. McCartie`s requests.
[14] In support of his first point, Mr. McFadgen refers to R vs Bohn [2000] BCJ No. 867; 2000 BCCA 239; 145 CCC (3d) 320, in which Justice Ryan said @ paragraph 34 (underlining added):
Failure to produce the warrant on request, without good reason, is in my view, a significant breach of s. 8 [of the Canadian Charter of Rights & Freedoms]
I observe that Justice Ryan was there discussing whether, and in what circumstances, a breach of section 29(1) of the Criminal Code may be a breach of section 8 of the Charter. I address that subject, in the context of this case, below. Justice Ryan was not discussing what circumstances would constitute a breach of section 29(1). Section 29(1) subjects the duty to produce a copy of the warrant to only one limiting condition - a copy must be produced on request unless it would not be “feasible” to do so. As noted, in the circumstances of this case, it would have been perfectly feasible for Ms. Sundberg to hand Ms. McCartie a copy of the warrant (which Ms. Sundberg was holding in her hand) at the moment that Ms. McCartie asked for it. Section 29(1) does not authorize the searcher to refuse to produce the warrant for any other reason.
[15] There is also a pragmatic answer to Mr. McFadgen’s first point. Neither the risk to the safety of the investigators nor the risk of destruction of evidence would have been in any way increased by handing Ms. McCartie a copy of the warrant when she asked for it, nor was either risk reduced in any way by withholding the document. There was simply no relationship between those risks, real or perceived, and the request for a copy of the warrant.
[16] In support of his second point, Mr. McFadgen relies upon the following assertion from Stroud’s Judicial Dictionary:
"To produce" a thing to a person semble means to show it to him personally, and does not involve the idea that the possession of it is to be parted with.
Stroud’s cites in support of that proposition Ex parte Wickens [1898] 1 QB 543. Both Stroud’s and Wickens were cited with approval in R v Duma Construction Co [1974] AJ No. 103; 1974 CanLII 307 (AB KB), [1975] 3 WWR 286. I think it necessary to refer to the circumstances of Wickens. In that case, the governing English statute authorized a secured creditor to require the debtor to “produce” evidence that certain expenses relevant to the security had been paid, and to seize the security if that evidence was not “produced” as required. The obvious purpose was to allow the secured creditor to preserve his security from competing or prior claims of other creditors. Mr. Wickens’ creditor demanded that he send to the creditor by mail the receipt for certain expenses. Mr. Wickens demurred, on the ground that the receipt was the only evidence he had to prove that he had paid as required, and he did not want to let it out of his possession. As Ms. McCartie pointed out in her submissions, Mr. Wickens’ position made perfect sense in the days before the advent of the photocopier. This case is different. Ms. Sundberg had the original warrant in a binder under her arm and a copy in her hand. She could safely and easily have handed the copy to Ms. McCartie and retained the original in her possession.
[17] I prefer the apposite definitions of “produce” given by the Canadian Oxford Dictionary; i.e. “bring forward for consideration, inspection or use”, and by Black’s Law Dictionary (10th ed); i.e. “to provide (a document, witness, etc.) in response to a subpoena or discovery request”. The manner of production may vary according to the circumstances. In the case of a handcuffed prisoner, a document may be “produced” by holding it up before the prisoner’s eyes at a convenient distance to allow him to read it. In the circumstances of this case, production could easily have been effected by handing Ms. McCartie a copy. Ms. Sundberg did not do that because she wanted to use the document as a lever to induce Ms. McCartie, first, to open the door and allow Ms. Sundberg to enter, second, to identify herself, and, third, to engage in a discussion of the warrant with Ms. Sundberg. Unless and until shown a copy of the warrant, Ms. McCartie was under no obligation to open the door. The circumstances in which a citizen has an obligation to identify herself when asked to do so by a police officer were discussed in R vs LSL 1991 CanLII 7820 (SK KB), [1991] SJ No. 30; 89 Sask R 267. No such circumstances pertained in this case. Canadians are, generally, courteous and respectful people. Most of us willingly identify ourselves when asked by a police officer, as we should. However, to elevate a generally-accepted standard of courtesy to a legal obligation would create a grave threat to the civil liberties of Canadians. Ms. McCartie’s refusal to identify herself did not justify Ms. Sundberg’s refusal to comply with the obligation imposed upon her by section 29(1). Ms. McCartie was under no obligation to speak with Ms. Sundberg. Indeed, as a person under investigation, she was wise to decline that invitation.
[18] There was a simple, easy and harmless mode of production available to Ms. Sundberg which would not require Ms. McCartie to open her house to strangers. I conclude that such was the mode of production required by the statute in the circumstances.
[19] Mr. McFadgen cited no authority in support of his third point, and I have found none which discusses when a warrant may be said to have been “executed”. None of the dictionaries which I have consulted offer enlightenment.
The reason for the requirement that an officer executing the warrant have it available for production, is to allow the occupant of the searched premises to know: (1) why the search is being carried out, so as to enable the occupant to properly assess his or her legal position; and (2) that there is, at least, a colour of authority for the search and that forcible resistance is improper. This last rationale also plays a role in the second procedural requirement for a valid search, that the peace officers announce themselves before entering the premises to be searched.
Those objectives would be rendered entirely moot if the occupant is not entitled to see the warrant before the searchers cross the threshold. Once the searchers enter the home, the violation of privacy has already occurred and the opportunity to resist an unauthorized intrusion has passed. The purpose of section 29(1) is to entitle the occupant of a house to satisfy herself as to the searcher’s legal authority to enter the house before the occupant is obliged to allow the searcher to enter. The section is perfectly clear. The occupant is not required to accept the searcher’s assertion that she has a warrant and a right to enter. The occupant is entitled to demand production of the warrant, as Ms. McCartie did.
[21] Section 29(1) imposes a production obligation on a class of persons; i.e. those who execute warrants. That, in itself, does not tell us when such persons must produce the warrant. The time is determined by the final phrase of section 29(1); i.e. “… when requested to do so”. Ms. Sundberg was plainly a person who executed a warrant. While she was in the course of doing so, Ms. McCartie asked her to produce the warrant. Applying the plain words of the section, Ms. Sundberg was obliged to do so when the request was made. I do not say that a person executing a warrant must always respond instantly to a request for production. Circumstances may render it impracticable to do so. However, the person must comply with the request as soon as it is practicable to do so. In this case, as noted above, it would have been perfectly practicable for Ms. Sundberg to do so immediately upon Ms. McCartie’s first request.
[22] I conclude that, in this case, Ms. Sundberg failed to comply with section 29(1) of the Criminal Code.
Everyone has the right to be secure against unreasonable search or seizure.
As noted above, in Bohn, Justice Ryan said at paragraph 34:
Failure to produce the warrant on request, without good reason, is in my view, a significant breach of s. 8.
I am bound to follow that direction unless it has subsequently been overruled by the Supreme Court of Canada. In R vs Patrick 2007 ABCA 308; [2007] AJ No. 1130; [2008] 1 WWR 600; 227 CCC (3d) 525, Justice Ritter said at paragraph 49:
I do not agree with the analysis in Bohn that failure to comply with s. 29 of the Criminal Code necessarily creates a s. 8 Charter breach. What is protected are unreasonable searches, which depends the reasonableness of the police's grounds after authorization by a judicial officer, rather than procedural niceties.
Justice Ritter’s judgment was affirmed by the Supreme Court of Canada: 2009 SCC 17 (CanLII), [2009] 1 SCR 579. However, the point under discussion here is not mentioned in the Supreme Court of Canada judgment. The basis of the majority judgment was stated by Justice Binnie in the following terms at paragraph 73:
… I agree with the trial judge and the Court of Appeal majority in this case that the appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
That being so, I cannot conclude that, in Patrick, the Supreme Court of Canada overruled Bohn, and I am bound to apply Bohn in this case. I note also that Bohn was followed, on this point, in R vs Fan 2013 BCSC 1406; [2013] BCJ No. 1710 at paragraphs 70 - 74, and that Fan is also an authority binding upon me.
[24] Accordingly, I am bound to conclude that Ms. Sundberg’s failure to comply with section 29(1) of the Criminal Code infringed Ms. McCartie’s rights under section 8 of the Charter, unless the evidence discloses a “good reason” for that failure. In paragraph 12, above, I identified the reasons given by Ms. Sundberg. In paragraphs 13 - 21, I explained why those were not good reasons. I do not think that they justify her failure to comply with section 29(1).
[25] As no good reason has been established for Ms. Sundberg’s failure to comply with section 29(1) of the Criminal Code, it follows that her conduct infringed Ms. McCartie’s rights under section 8 of the Charter.
August 7, 2015
__________________________________
T. Gouge, PCJ