Recent Reported Cases

Case Study

R. v. Babineau, [2016] O.J. No. 7085

1. This is a defence application for various Charter breaches relating to the entry into the hotel room of, and arrest, of the two individuals before the court, Mr. Babineau and Mr. Lauridsen.

2. On the voir dire I heard from each of the two arresting officers as to the circumstances. I also had affidavit evidence from Mr. Babineau himself.
Initial Attendance
3. Officer Blunsdon said that he had been instructed by his supervisor to do a proactive call at the Airport Motel on Upper James on March the 10th, 2015. He thus attended with PC Chelsea Knowles at the front desk of the facility and spoke to hotel staff. Officer Blunsdon said that he asked how they were doing, if they had any problematic rooms. The woman at the desk said that they had issues with room 105. Blunsdon thought that they spoke of one other room as well, but he didn't recall if they went there (the police.) Officer Blunsdon said that the hotel staff member said that they were having some problems, but the police weren't told specifically what the issues were and didn't ask. Officer Blunsdon said that he didn't want to pry, that they don't make enough money to have them involved, I think is the gist of what he said.
4. The officers were told that Nathaniel Lauridsen rented the room and were shown his photo ID with address. Officer Blunsdon said that he called this information in to records and learned that Mr. Lauridsen had mental health issues, specifically schizophrenia. Officer Blunsdon did say that he knew that there had been a history of drug use, prostitution, run-away persons, and outstanding warrants at this particular hotel, but the problems didn't necessarily relate to those things; that it could be that it was a party room or that there had been loud occupants. I recall him saying that there could be a number of reasons not related to drugs etcetera, that there could be problems with guests at the hotel. 
5. He was cross-examined about his evidence at preliminary hearing where he said that the proactive basis for calls at the Airport Motel are because "It's got issues with prostitution, drug dealing, missing people, people hiding out on warrants, out of town bad guys coming in, that sort of stuff." 
6. In cross-examination, Officer Knowles said that she attended the hotel (once again in a proactive policing capacity) known for wanted people and drugs, but they were in fact there for "criminal activity." Officer Knowles said that they went to the front desk to ask about concerns or complaints and were shown two individual driver's licenses and told about problems in rooms 105 and 212. She did not recall if the hotel employee said what the problems were apart from "suspicious activity." Officer Knowles said that they went first to room 212, spoke to the occupants; no one was arrested. They then next went to 105 and planned to speak to the occupants to address the complaints from staff. 
7. Both officers said that they were in uniform and attended room 105 through an unlocked, unsecured hallway.
Door Knock at 105
8. PC Blunsdon thought that he knocked on the door and Nathaniel pretty much opened it when they knocked. He recognized him from the ID that he'd been shown at the front desk. Blunsdon said something like, 'Hey, what's going on? What's up? We have reports of problems. Can we talk to you a bit?' He thought that that was the gist of what he'd said. He didn't know exactly what was said, he had no notes of same. Similarly, Officer Blunsdon didn't recall Officer Knowles' words. Mr. Lauridsen apparently said that he was taking advantage of the hotel's wifi. Blunsdon asked and Mr. Lauridsen said that his buddy, Bid, was there, too. Officer Blunsdon could not see anyone else from the door. The officer said that he probably or basically said, 'Do you mind if I come in?' and Mr. Lauridsen said, 'Yes, come on in.' He didn't say that they couldn't come in, don't stay, he didn't want us in, that no concerns were raised by him. As such, both officers, Blunsdon and Officer Knowles, went in. 
9. In cross-examination Officer Blunsdon said that he didn't recall the words used before entry into 105, that he'd not recorded same either in his notes or will-say. He didn't tell Mr. Lauridsen that he could refuse them entry, nor did he tell them that if they found evidence of criminal activity that they could be arrested. 
10. Officer Knowles said that Officer Blunsdon was the one who knocked on 105 and that he was the one who spoke to the individual that she recognized (from the driver's license photo) to be Mr. Lauridsen. She, too, did not recall any specific words. She had no conversation with Mr. Lauridsen. After Officer Blunsdon's conversation, Officer Knowles said Mr. Lauridsen opened the door and she and Officer Blunsdon walked in. She said in examination in-chief that they told Mr. Lauridsen that they were there because of staff complaints and wanted to speak to the occupants of the room. She did not recall what Mr. Lauridsen said about them going into the room; he did not say that he didn't want them there, he didn't express any concerns about them entering. In cross-examination she said that they had gone in on an implied invitation to go in, as Nathaniel Lauridsen opened the door and let them in. She confirmed that the police had not told Mr. Lauridsen that he could refuse them entry, could be arrested if they found evidence of criminal activity. 
11. Once into the hotel room, PC Blunsdon saw an individual who he recognized as Mr. Babineau under the covers on the bed. He had not seen Mr. Babineau, or any individual, from the doorway, apart from Mr. Lauridsen, of course. He only saw that second individual when he entered the room. Blunsdon knew of outstanding warrants for Mr. Babineau and recognized him as he had coached him in water polo at high school. He also had had dealings with him subsequently. Despite this history between the two, Mr. Babineau introduced himself as Gary Wilson. The officer was surprised by that, but he called to confirm the outstanding warrant that he thought existed against Mr. Babineau and then he arrested and cuffed Mr. Babineau after moving him to the second bed in the room. Officer Blunsdon said that he told Officer Knowles to arrest Mr. Lauridsen as well, as when Mr. Babineau got up from the first bed Officer Blunsdon saw three bags of what he suspected to be cocaine lying in the vicinity of where Babineau had been. 
12. After cuffing Mr. Babineau at 9:45, after arresting him on the outstanding warrants, Officer Blunsdon said that he arrested Mr. Babineau for s.5(2) of the CDSA. Mr. Babineau was provided his 10(a) and (b) rights around 9:50. Officer Blunsdon said that he hadn't expected to find cocaine under his arm when he got him out of the bed; hence, the rights were given at that point in time. 
13. Over and above, Officer Blunsdon said that he observed three cell phones, but he could not recall, nor do his notes reveal where these were located. He said that he saw a pre-paid cell box, a digital scale with cocaine residue, and some white powder that he thought was either cocaine or a cutting agent all on the bedside table between the beds. As well, $501.85 Canadian currency was found in a coat pocket that Officer Blunsdon believed to be Mr. Babineau's, but he didn't confirm that. 
14. Officer Knowles had more specific notes in recall. She said that she saw a white powder and an Infinity two-pack scale on the bedside table. She talked of three cell phones and specifically identified them as an HDC, a ZTE, and an LG, as well as I think she said a Public Memory Card on the bed that Babineau had been on. In a jacket that was found on Babineau's bed as well (and that Mr. Babineau said was his) $501.85 was found. Officer Knowles counted, noted, and articulated the denominations in court. There were three 100s, 10 20s, one one, one quarter, four dimes, and four nickels.
Analysis
15. The defence asserts s.8, 9, and 10 breaches and asks that the evidence seized in this hotel room be excluded under s.24(2).
16. Section 8. I adopt paragraph 20 of the applicants' factum, which reads, "The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy had been violated." As a general rule, two distinct inquiries must be made in relation to s.8, the first of which is whether the accused enjoyed a reasonable expectation of privacy. The reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. It goes on to articulate the factors that should be considered in assessing the totality of the circumstances. 
17. I find that these individuals enjoyed a reasonable expectation of privacy within the hotel room on this given day on the evidence presented to me, albeit a somewhat more limited than the right accorded them in a primary residence. That being said, I note Mr. Babineau's sworn evidence that he had nowhere else to go, this could be seen as somewhere between a primary residence and a hotel room. Regardless, there is still a strong right to privacy to be expected in this home away from home environment. 
18. The evidence before me reveals that both of these accused were occupants of room 105. Mr. Lauridsen, via his photo ID from the desk, and Mr. Babineau, from his sworn affidavit statements that he'd been living there for three days, had paid for the room, had brought his personal belongings, and had nowhere else to go. I note as well the evidence that there was a large screen TV and some kind of a console, a Playstation or something, there as well that would appear to be personal items. 
19. As this was a warrantless search (and, in fact, PC Blunsdon when asked said that he would not have been able to get a warrant when he was in the position of knocking on that door,) the Crown bears the burden of showing that the search was reasonable. 
20. It is clear that there exists an implied invitation to knock which authorizes police (who have lawful business with the occupant) to approach the home for purposes of communication with that occupant. 
21. In R vs. Evans, [1996] S.C.J. No. 1, the Supreme Court of Canada quotes the BC Court of Appeal in a case called R vs. Bushman, (1968), [1968] B.C.J. No. 107, 4 C.R.N.S. 13 at paragraph 19, which states, 
The purpose of the implied leave and license to proceed from the street, the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate... 
22. And I would bold that as I'm reading it, 
...with the occupant. 
23. Justice LaForest for the Supreme Court in Evans goes on to state, 
I agree with this statement of the law. In my view, the implied invitation to knock extends no further than as required to permit convenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the "implied license to knock." Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied license to knock, the implied "conditions" of that license have effectively been breached and the person carrying out the unauthorized activity approaches the dwelling as an intruder. 
24. The Supreme Court specifically looked to the intention behind the knock. In evidence, police approached the door both to communicate, but also hoping to gather evidence by sniffing for marijuana when the door was opened. 
25. In paragraphs 20 and 21 of the Evans case, the Supreme Court said, 
In my view, there are sound policy reasons for holding that the intention of the police in approaching an individual's dwelling is relevant in determining whether or not the activity in question is a "search" within the meaning of s.8. If the position of colleague is accepted and intention is not a relevant factor, the police would be authorized to rely on the implied license to knock for the purpose of randomly checking homes for evidence of criminal activity. The police could enter a neighbourhood with a high instance of crime and conduct surprise spot-checks of the private homes of unsuspecting citizens, surreptitiously relying on the implied license to approach the door and knock. 
Clearly, this Orwellian vision of police authority is beyond the pale of any implied invitation. As a result, I would hold in cases such as this one where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through knocking on the door, the police have exceeded the authority conferred by the implied license to knock. 
26. In the case before me, I find that police attended at the Airport Inn on a proactive basis because of its reputation for criminal behaviour. The evidence of PC Blunsdon confirms that when he knocks at room 105 there is a 100% potential for criminal activity going on. While the officer expanded his response at trial to include investigation for other items such as noise and party behaviour, when he was cross-examined with his preliminary hearing evidence, which only focused on the criminal behaviour, he said that there was a definite possibility that police would observe evidence of criminal activity once the door was opened. 
27. Justice Watt in R vs. Atkinson, [2012] O.J. No. 2520 from the Ontario Court of Appeal, at paragraph 47 states, quotes Evans (supra), 
Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceded any authority implied by the invitiation to knock and become engaged in a search of the occupant's evidence. 
28. And, 
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 license to knock. 
29. The attendance of police at the door to room 105 is more difficult to understand, given the complete absence of any notes or will-says as to what was actually said to the occupant and by the occupant. This is a significant evidentiary gap, in my view. 
30. While Officer Knowles said they had an implied invitation to enter, very little evidence was proffered to substantiate this position. Certainly, the best evidence should have been from the officer who actually communicated with the occupant, Mr. Lauridsen. That was PC Blunsdon. The officer was only able to tell us what he thought he'd said, the gist of what was said. 
31. I find that this was wholly inadequate for the purposes of analysis of the police entry and ultimate search of this space in which the occupants held a reasonable expectation of privacy. 
32. I am further troubled, given PC Blunsdon's knowledge before he knocked on the door and spoke to Mr. Lauridsen, of Mr. Lauridsen's mental illness, specifically schizophrenia. While the law says that an invitation to enter may be implied from the circumstances, such as the words and conduct of the person in charge of the place, I had insufficient evidence by which to analyze the circumstances herein. That will be placed at the feet of the police. 
33. Over and above, section 49 of Atkinson resonates strongly with me. It states, 
When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner and a brief interaction with a police officer, we should not lose sight of the dynamics of 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 an objection on mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances. 
34. That's quoting R vs. Wills, (1992), 7 O.R. (3d) 337 in the Ontario Court of Appeal at 348. 
35. This, in my view, is even more poignant in the case of an individual with known mental health issues. Even if I accept that Mr. Lauridsen implicitly invited police in, of which I am unconvinced on the evidence before me, I have no evidence whatsoever of Mr. Lauridsen's consent; that his consent was informed. While it appears that he did not tell the officers they couldn't come in, he wasn't told that he could refuse entry or of the potential consequences of giving his consent, such as arrest if evidence of criminal activity was found. In short, the consent needs to be voluntary and informed. In the case before me, I have no evidence of same. 
36. It is my view that the defendants have established s.8 breaches both by knock and entry into the hotel room without informed consent. While the police say this was all done under the auspices of proactive policing, I find that in the case before me, under that guise, the police proceeded with virtually no regard for the maintenance of these individuals' Charter protected rights. 
37. While society has an interest in and supports proactive police work, I do not expect that a reasonably well-informed member of society would expect that same should serve to allow "a by," that's my quote, of normal investigative techniques and police investigative responsibilities.  Officer Blunsdon was not a novice police officer unfamiliar with investigative techniques that are required by police. 
38. I find that in the case before me, the police committed very serious Charter breaches. This is particularly so given the fact that no evidence of criminal behaviour was apparent from the doorway to room 105. It was only when police went inside that they were able to gather evidence of criminality, the evidence that they 100% expected would be present when they first approached the door of the hotel room. 
39. In this regard, I would repeat the evidence from the preliminary hearing that was adopted by Officer Blunsdon at trial. 
40. At page 32 of the preliminary hearing: All right, so when you attend room 105 because it's problematic, it's problematic for one of those reasons. 
41. (Those were the criminal reasons that were listed previously.) 
42. And the officer said: Yes, 100%. 
43. Question: Okay, so it's problematic because of drug activity, potentially somebody escaping from their warrant, potentially prostitution? I'm trying to summarize what you just said. 
44. Answer: Yes. 
45. Question: So you know when you knock on room 105 there's potential criminal activity going on in that room? 
46. Answer: A hundred percent. A hundred percent that there's potential for criminal activity going on.  
47. R vs. Grant, [2009] S.C.J. No. 32 mandates where the court, when conducting a s.24(2) analysis, assess and balance the effect of admitting evidence on society's confidence in the justice system. 
48. The analysis involves three lines of inquiry; one, the seriousness of the Charter infringing state conduct; two, the impact of the breach on the Charter protected interests of the accused; and three, 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. (Paragraph 71.) 
49. In the case before me, I find that the breach of s.8 to be most significant. The police omitted an investigation and proceeded to enter a private dwelling place (albeit a more temporary one) in an effort to gather evidence of the criminal activity they expected to find. This behaviour was neither inadvertent nor minor. Rather, it demonstrated a disregard for the sanctity of Charter rights in a space with a significant expectation of privacy. I am most aware of society's need and interest in prosecuting cases involving drug offences, such as cocaine. In this case there was quite a significant amount of drugs involved, 20.14 grams, as well as other indicia of drug trafficking. All of this evidence represents real evidence, something courts are often less willing to exclude.
50. That being said, the balancing required of me under s.24(2) by Grant leads me to conclude that the evidence must be excluded as a result of the significant breaches here. 
51. Given my view of the severity of the s.8 breaches, I have not specifically addressed s.9 and 10 that flowed thereafter. I would note that while defence counsel argued that police effectively blocked both exits from the room, I understood Officer Blunsdon's evidence to be that by the end of the sequence, they were positioned one in front of the door to the parking lot and one in front of the door to the hallway. So I wasn't clear that that was a stance that was in existence throughout. In any event -- this is academic given my findings as to the seriousness of the s.8 breaches -- in this regard, I would repeat paragraphs 68 through 70 of Grant as set out in the applicants' factum. "The phrase, 'bring the administration of justice into disrepute,' must be understood in the long-term sense of maintaining the integrity of and public confidence in the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. Section 24(2) does not focus on immediate reaction to the individual case, rather it looks to whether the overall repute of the justice system, viewed in the long-term, would be adversely affected by the admission of the evidence. The inquiry is objective, it asks whether a reasonable person, informed of all the relevant circumstances, and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2)'s focus is not only long-term but prospective. The fact of a Charter breach means that damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Finally, 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 24(2) focus is on the broad impact of admission of evidence on the long-term repute of the justice system." 
52. At the end of the day, the defence application is allowed and the evidence gathered from room 105 post lawful entry shall be excluded. 
53. MR. PUSKAS: Thank you, Your Honour. 
54. MR. WENDL: Thank you, Your Honour. 
55. MR. BURNS: Thank you, Your Honour. I believe there's the other indictment alleging two breaches. That should be withdrawn at this time as well. Obviously, the Crown has no further evidence on this case, Your Honour. 
56. THE COURT: Counts three and four will be marked withdrawn, then. Acquittal will be registered on all charges? 
57. MR. BURNS: Sorry? 
58. THE COURT: Acquittal will be registered on all charges? 
59. MR. BURNS: Well, the two I will withdraw and Your Honour... 
60. THE COURT: And the other two are... 
61. MR. BURNS: There's no other evidence, so...  
62. THE COURT: ...academic, based on my ruling. 
63. MR. BURNS: Yes. 
64. THE COURT: Anything else? 
65. MR. PUSKAS: No, thank you. 
66. MR. WENDL: Thank you very much, Your Honour. 
67. THE COURT: Thank you.