Oct 15, 2016

Summary of R v Golschesky

R v Golschesky, 2013 SKCA 116 (CanLII)
Criminal Law – Appeal
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purposes of Trafficking
Criminal Law – Defences – Charter of Rights, Section 8
Criminal Law – Evidence – Search Warrant
Criminal Law – Search Warrant – Sufficiency

The Crown appealed a decision excluding evidence and acquitting the accused. The accused owned a home and rented a self-contained residence within the home to Ms. Young. The accused lived in another self-contained residence in the home. The police obtained a search warrant to search Ms. Young’s residence because they believed she was storing marijuana there. In error, the police searched the accused’s residence and located 224 grams of marijuana and over $5,000 in cash. The accused was charged with possession for the purpose of trafficking and having proceeds of crime in her possession, contrary to the Controlled Drugs and Substances Act. A voir dire was conducted and the accused’s s. 8 Charter rights were found to be breached and the drug evidence and money was excluded as a remedy pursuant to s. 24 of the Charter. The trial judge found the Information to Obtain (“ITO”) the search warrant lacking in several regards: 1) it did not reveal that the house was a three-level structure. If the true structure had been evident the justice of the peace would have likely inquired about which level(s) were intended to be searched; 2) there was misleading or erroneous information such as the statement that the accused lived upstairs; and 3) the statement that the accused was suspected of being involved in marihuana trafficking with Ms. Young was wrong and without foundation. The trial judge concluded that the Justice of the Peace could not have issued the warrant once the corrections were made to the ITO.
HELD: The Court of Appeal held as follows: 1) the trial judge did not err with respect to the conduct of the voir dire. The accused’s original Constitutional Notice to commence the Charter application was limited to an allegation that the police had searched the wrong location as per the description in the search warrant. During the voir dire there was evidence and argument with respect to the sufficiency of and errors of the ITO. The Court of Appeal noted that there was no Crown objection to the evidence at the voir dire and the Crown called some of the evidence and also argued on the issue; 2) even if the standard of review is correctness, the Court of Appeal agreed with the trial judge’s conclusion regarding the sufficiency of the ITO. The trial judge considered the entire ITO and did not misapprehend the evidence. The search of a dwelling house requires clearly set-out reasonable and probable grounds for each unit sought to be searched. To search the accused’s home, the ITO would have had to clearly establish a connection between Ms. Young and the accused or it would have had to set out grounds relating to the accused herself trafficking in drugs. The ITO said the drugs were in the upstairs apartment and the accused lived in the downstairs apartment; 3) the Crown’s argument based on exigent circumstances was not successful. Crown argued that the accused locking her door and not opening the door when the police knocked created exigent circumstance that justified police entry. The marihuana on the bed then led to plain-view justification for further search according to the Crown. The Crown did not rely on this argument at trial. An exigent circumstances argument cannot succeed without findings of fact. Because the argument was not made at trial, the trial judge did not make the required finding of fact that the police had reasonable grounds to believe that evidence relating to the commission of an indictable offence was present in the accused’s home. Given the modifications to the ITO it is unlikely that he would have made the finding of fact if it was argued. The police were not lawfully in the accused’s home and therefore the plain-view argument cannot succeed; the plain-view evidence must be lawfully viewed for the argument to be successful. Further, because the arrest was not lawful the evidence could not be preserved based on search incident to arrest; and 4) the trial judge canvassed the proper factors to decide whether the evidence should be excluded. The trial judge’s decision must be given deference. The search was serious and impacted the rights of the accused greatly as it involved a search of the accused’s private dwelling house.