R. v. Picard, 2018 BCPC 344 (CanLII)
|
|
2018 BCPC 344 |
|
|
Date: |
||
|
File No: |
247190-1 |
|
|
Registry: |
Vancouver |
|
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Criminal
REGINA
v.
LOUIS ANDREW PICARD
RULING ON VOIR DIRE #2
OF THE
HONOURABLE JUDGE W. LEE
|
Xiaoshan Zheng |
|
|
Counsel for the Defendant: |
Talia Magder |
|
Place of Hearing: |
Vancouver, B.C. |
|
Dates of Hearing: |
November 19, 20, 21, 2018 |
|
Date of Judgment: |
December 6, 2018 |
INTRODUCTION
[1] This is my second ruling on a voir dire.
[2] Louis Andrew Picard is facing three counts of possession for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act:
• Count 1 methamphetamine and fentanyl
• Count 2 methamphetamine
• Court 4 Cannabis (marijuana)
[3] These charges arise after two days of police surveillance of a tent located on the sidewalk in the 300 block of Alexander Street, in the City of Vancouver, BC. The surveillance revealed numerous persons interacting with someone in the tent, which included hand to hand exchanges. One of those persons was arrested and was found to have in his possession a packet containing fentanyl, methamphetamine and caffeine and a second packet containing methamphetamine. The decision was then made by the police to arrest the occupants of the tent. Two people were in the tent, the accused and his girlfriend, and both were arrested.
[4] The accused was searched at the scene and then later at the detachment in a strip search. Drugs were found in his possession.
[5] The tent was also searched. No search warrant was obtained prior to the search of the tent.
[6] In my first ruling on the voir dire I held that there were reasonable grounds for the arrest of Mr. Picard and the search of his person. I also held that the evidence found on the person of Mr. Picard shall be admitted into evidence at the trial.
[7] The remaining issue on the voir dire then is whether there was a valid search of Mr. Picard’s tent and if not, whether the evidence found in the tent should be excluded.
THE EVIDENCE
[8] Mr. Picard testified in the voir dire regarding the tent. He said that he is homeless and that he and his girlfriend have lived in the tent for some two years now. Mr. Picard said that the tent was purchased through his welfare money. Initially the couple resided in Oppenheimer Park in Vancouver. They relocated to Alexander Street in Vancouver across from three shelters.
[9] Mr. Picard said that he and his girlfriend elected to live in a tent because the shelters did not provide accommodations for couples.
[10] The tent is located on the City of Vancouver sidewalk in the 300 block of Alexander Street.
[11] From photographs put into evidence, the tent is a dome style tent. Beside the tent is a rectangular bin that is used for storage. Mr. Picard also has a metal rack on which a number of bicycles are kept. A blue tarp is used to cover the tent and is attached to the metal rack.
[12] Mr. Picard has been previously asked by the police to move the tent. He said in direct examination that this occurred a couple times but on cross-examination he said it occurs sometimes once a week, sometimes once a month. When he receives such a request, Mr. Picard says he will shift the tent over but he will still remain in the same block of Alexander Street.
[13] Mr. Picard also said that the City of Vancouver has asked him to take his tent down during the hours of 7am to 7pm during the day. When such requests are made, Mr. Picard removes the four tent poles that support his dome tent and moves the collapsed tent against a building wall. He does not remove the contents of the tent when he does this. During such times, he remains by the collapsed tent. The taking down of the tent does not occur every day. That is evident from the police evidence that on both March 29 and 30, 2018, the tent was fully set up and occupied.
[14] Mr. Picard said that he eats, sleeps and shaves in the tent. He goes to one of the shelters across the street to use the bathroom.
[15] Mr. Picard said the tent is never left alone. When his girlfriend is away, he remains with the tent. When he is away, his girlfriend stays with the tent. Mr. Picard said that he wants to be sure no one takes their stuff, and that he did not want a stranger in their house.
[16] Mr. Picard agreed that on March 29 and 30, 2018 he had a number of visitors to the tent. He said that because he lives across from three shelters, many people come to talk to him. He said that people will lean into the tent to talk to him or his girlfriend and that people often ask him to look after their belongings. Mr. Picard said he would look after people’s back packs and clothing when requested.
[17] When reviewing one of the police photographs (photograph 4), Mr. Picard identified a black garbage bag, a green jacket, a pair of runners and some plastic bags as items he was holding for others.
[18] Mr. Picard was asked if he used the tent as a base to sell drugs. I allowed this question to be asked because if the tent was being used for a commercial enterprise the expectation of privacy may be lower, as was the case in the decision R. v. Felger, 2014 BCCA 34. Mr. Picard denied using the tent to sell drugs. He said that people may reach into the tent for a light or a “cooker” for use with heroin, but that these were items given away by Mr. Picard’s girlfriend.
ANALYSIS
[19] Both counsel provided me with case law, which I have reviewed even if I do not mention the case in my decision.
[20] I did note one error in the case law provided to me by the Crown.
[21] The decision R. v. Lauda, heard September 15, 1997 by the Ontario Court of Appeal, was provided to me. In addition, I received a Supreme Court of Canada decision, R. v. Lauda 1998 CanLII 804 (SCC), [1998] 2 SCR 683 and was told this was an appeal of the Ontario Court of Appeal decision. That was incorrect.
[22] The Supreme Court of Canada decision was in fact an appeal of another case involving the same accused and dealt with the same issue of whether a search and seizure was proper in relation to a marihuana grow operation in a field. This appeal was heard by the Ontario Court of Appeal on January 8, 1998 and can be found at 1998 CanLii 2776. In this case, the accused was a trespasser on property that he was using to grow marihuana. At trial, the accused was acquitted. The Crown appealed and the Court of Appeal allowed the appeal and convicted the accused. The Supreme Court of Canada dismissed the appeal brought by the accused. The court stated in its brief reasons that “a trespasser in the fields in question, had no reasonable expectation of privacy.” That statement has to be viewed in context of the facts, where the accused was trespassing on private property and no structure was built on the property.
[23] In the case before me, Mr. Picard argues that he has a reasonable expectation of privacy in the contents of the tent and as such, the warrantless search of the tent was unreasonable. He argues that the tent was akin to a dwelling house, which entitles him to the highest degree of privacy.
[24] The Supreme Court of Canada stated in the decision R. v. Feeney (1997) 1997 CanLII 342 (SCC), 115 CCC (3d) 129 SCC that searches of a home as an incident of arrest are generally prohibited subject to exceptional circumstances where the law enforcement interest is so compelling that it overrides the individual’s right to privacy within a home.
[25] In this case, no evidence of exceptional circumstances was provided by the Crown.
[26] In support of Mr. Picard’s argument, I was referred to s. 2 of the Criminal Code of Canada which provides the following definition of “dwelling house”:
dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes
(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence; (maison d’habitation)
[27] Mr. Picard submits that his tent is occupied by him as a permanent or temporary residence and is designed to be mobile. This is not in dispute.
[28] I am mindful that the definition of “dwelling house” found in the Criminal Code is for the purposes of specific offences in the Code dealing with dwelling houses, such as s. 348 of the Criminal Code which deals with a break and enter into a dwelling house.
[29] The decision R. v. Howe, (No. 2), [1983] N.S.J. No. 398 dealt with a break and enter into a tent. The tent was being used by four occupants, three of whom were related to the land owner. In finding that the tent was a dwelling house, the court stated:
16 In my opinion the tent is a unit that is designed to be mobile and it was being used as a temporary residence for the four people who were sleeping in it and consequently the tent falls within the definition of "dwelling-house" as outlined in s. 2 of the Criminal Code. Section 306(4)(a) of the Criminal Code states that "for the purposes of this section 'place' means 'a dwelling house'". I am satisfied that the tent was "a place" within the meaning of s. 306 of the Criminal Code.
[30] Neither counsel for Mr. Picard nor Crown was able to locate any other cases dealing with tents. I was also not successful.
[31] I draw some direction from the decision R. v. Sappier, 2005 NBPC 37 (CanLII), where the court said:
[16] However, not every house is a home and the law has recognized that there is a distinction between what, from a physical appearance standpoint is a home, and what is categorized as such in law.
[17] Rather than approach the issue solely from the standpoint of what the structure was intended for, the law obliges that an “in all of the circumstances” approach be taken in determining whether the structure is in fact a dwelling-house or kept as such.
[18] Thus, a number of factors must be taken into account in determining whether, at the time of an alleged offence, the house in question was a dwelling-house. In R. v. McKerness (1983), 1983 CanLII 3573 (QC CQ), 4 C.C.C. (3d) 233 (Que. Ct of Sessions) Grenier J. Sess. drew from the Supreme Court decision of R. v. Springman 1964 CanLII 69 (SCC), [1964] S.C.R. 267; 3 C.C.C. 105 (S.C.C.), an arson case, to assist in determining whether a small counter styled boutique in the middle of a shopping mall was a “place’ for the purposes of the offence of break and enter under then s. 306(1)(a) of the Code. In concluding that it was a “place” he relied to some extent on the intention of the builder:
“The Springman case also illustrates that the intention which the builder had must also be taken into consideration when deciding whether the object is a "structure" or "building". The English Court of Appeal, in the case of London County Council v. Pearce, [1892] 2 Q.B. 109 at pp. 112-3, wrote the following in this respect:
In all cases we must be guided by what I may call the intentions of the structure, and must require with what intention it was made. This seems clear from the case of Hall v. Smallpiece (59 L.J (M.C.) 97), where it was held that a steam roundabout was not a wooden structure or erection within the meaning of the Act. Why was that held? Not because a thing on wheels cannot be within the section, but because when one looks into the intention with which the thing was made, it becomes plain that it was made for the purpose of locomotion and for erection in any place where it might be required.”
[19] However, the intention of the builder often is not dispositive of the issue. That was evident in R. v. Johnson 1977 CanLII 229 (SCC), [1977] 2 S.C.R. 646; 34 C.C.C. (2d) 12 (S.C.C.), a case in which the intention of the builder was clear but the status of the house under construction still did not achieve the designation “dwelling-house.” The facts were set out by Dickson J. (as he then was) as follows:
“The accused entered a partly constructed unoccupied dwelling-house at 3:30 a.m. through an open doorway leading into the house from a car-port. The door had not yet been installed. The owner, as a temporary measure, had nailed a sheet of plywood over the opening, but it would appear that someone had removed it as it was lying on the ground at the time of entry by the accused and a companion. The accused was convicted on a charge that he did unlawfully break and enter a place, to wit, a dwelling-house under construction, and did commit the indictable offence of theft therein. It was common ground that the building was, by definition a "place" but that it was not a dwelling-house.” (emphasis added)
[20] While the Court made no finding to the effect that the house was not a dwelling-house in law, it is noteworthy that no issue was taken with respect to the legal character of the house. It was accepted as having been a place and not a dwelling-house because, at the time of the offence, it had not yet attained the legal character of a dwelling-house.
[21] If the intention of the builder is not the sole deciding factor used to determine what constitutes a dwelling-house what are the other determinants that figure in that assessment? Traditional, temporary, seasonal or actual use, depending upon the circumstances, may figure in the equation. As well, the strength of the temporal connection between any of these factors and the time of the assessment of the character of the house of the offence can also be relevant.
[22] The use to which the structure is put very often determines its character. In some cases, very rudimentary housing can qualify as a dwelling-house…
[32] The question before me is not whether all tents can be considered a home, but whether Mr. Picard’s tent was a home.
[33] The decision R. v. Edwards (1996) 1996 CanLii 255 (SCC) set out seven different factors to look at when deciding whether there existed a reasonable expectation of privacy.
[34] In R. v. Tessling, [2004] 3 SCR 432, 2004 SCC 67 (CanLII), the factors to be considered were modified because the search was carried out using infrared technology.
[35] In R. v. Patrick, [2009] 1 SCR 579, 2009 SCC 17 (CanLII), the court stated:
[26] It was established in Edwards (para. 45), and affirmed in Tessling (para. 19), that in assessing the reasonableness of a claimed privacy interest, the Court is to look at the “totality of the circumstances”, and this is so whether the claim involves aspects of personal privacy, territorial privacy or informational privacy. Frequently the claimant will assert overlapping interests. The assessment always requires close attention to context.
[36] I thus need to consider all the circumstances of the particular case when assessing the claim for privacy.
[37] In relation to this case then, I have considered the following:
1. Mr. Picard considers the tent to be his home. He has lived in it for the past two years. He sleeps and eats in the tent. His belongings are in the tent or in the storage bin or on the rack that are beside the tent.
2. The tent is on public property. A City of Vancouver Bylaw prohibits the placement of a tent on City property.
3. Mr. Picard has never been ordered to remove the tent. He has only been required to relocate the tent from time to time, generally when the location of the tent is causing some nuisance.
4. Defence counsel has asked that I take note of the fact that there is a housing problem in the Downtown Eastside of Vancouver and that many people are residing in tents. No evidence was called in this regard but the fact of people living in tents in this area of Vancouver is well known and I take judicial notice of this fact.
5. The tent is mobile. It is not fixed to the ground. It is not intended to be a permanent structure.
6. Mr. Picard was present at the time of the search.
7. Mr. Picard possessed and controlled access to the tent.
8. Mr. Picard owned the tent, either solely or jointly with his girlfriend.
9. The tent held all of Mr. Picard’s possessions, save for the items in the storage bin and on the bike rack.
10. The police suspected that Mr. Picard was selling drugs using the tent as a base of operations.
[38] In my view, it is too simplistic to say that any residence or place which a person calls home is automatically a “home” in the legal sense, so as to entitle Mr. Picard to protection from a warrantless search save for exceptional circumstances.
[39] In review of the cases where the courts found that a person’s residence should not be searched without a warrant save for exceptional circumstances, there was a legal right for the occupant to reside on the property upon which lies the residence.
[40] That is the distinguishing factor here. Mr. Picard did not have the legal right to erect a tent on the City sidewalk. He may have put up a tent and the City may have acquiesced in the presence of the tent, but that did not give to Mr. Picard a legal right to place the tent onto City property.
[41] Accordingly, I find that Mr. Picard’s tent was not a “home” within the meaning of that word as discussed in R. v. Feeney. In other words, I find that the Crown need not show exceptional circumstances to justify a search of the tent.
[42] That does not end the matter though. I return to the factors that I listed earlier regarding Mr. Picard’s use and subjective view of the tent, including the fact that Mr. Picard has resided within the tent for the past two years. It is clear to me that Mr. Picard still had a reasonable expectation of privacy in the tent and its contents, and that is my finding.
[43] I turn now to consider whether Mr. Picard’s tent can be searched as an incident to the arrest. The decision R. v. Saeed, 2016 SCC 24 states at paragraph 37:
[37] The existing general framework for a valid search incident to arrest purports to authorize a broad range of searches. It requires only that (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably (R. v. Fearon, 2014 SCC 77 (CanLII), [2014] 3 S.C.R. 621, at para. 27).
[44] In my previous ruling on the voir dire, I held that Mr. Picard was lawfully arrested.
[45] With respect to whether the search was truly an incident to the arrest, I refer to the decision R. v. Kyllo, 1999 CanLII 6588 (BC SC), where the court stated:
[40] In Golub, supra, at 204, Doherty J.A. said: "Warrantless searches are presumptively unreasonable. Searches properly conducted as an incident of a lawful arrest are an exception to that presumption. The power to conduct a warrantless search is well-established as common law and has survived the Charter."
[41] The police ability to search incidental to arrest is not limitless. The limits were established by the Supreme Court of Canada in Cloutier v. Langlois (1990), 1990 CanLII 122 (SCC), 53 C.C.C. (3d) 257 at 278:
1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
3. The search must not be conducted in an abusive fashion, and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
[42] Since Cloutier, the court has recognized that the power to search upon arrest extended to the immediate surroundings at the place of arrest. The limits on the search power are assessed on a case-by-case basis.
[46] In the case before me, the tent was the place of suspected drug trafficking, and where Mr. Picard was during the alleged trafficking. The police searched the tent to gather evidence of drug trafficking. That was the purpose of their investigation and the purpose of the search. A valid and reasonable purpose existed in the search.
[47] It is important to keep in mind that this was a small tent and was thus in the immediate vicinity of Mr. Picard when he was arrested. The search was conducted immediately after the arrest. Photographs taken during or after the search suggest that items in the tent were simply piled up on the tent floor. There is nothing to indicate that items were destroyed during the search. After the search was completed Mr. Picard requested that a friend look after the tent and other belongings. Thus, the tent and belongings were safeguarded.
[48] I am satisfied that the search of the tent was a proper incident of the arrest and that it was conducted in a reasonable manner.
[49] Given this, I find that there has been no breach of Mr. Picard’s Charter rights and there is no basis to seek an exclusion of the evidence found in the tent pursuant to s. 24(2) of the Charter.
_____________________________
The Honourable Judge W. Lee
Provincial Court of British Columbia