R. v. Perkins

2018 BCSC 395 R. v. Perkins IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Perkins, 2018 BCSC 395 Date: 20180219 Docket: 65705 Registry: Chilliwack Regina v. Corey Jim Perkins Before: The Honourable Mr. Justice Ehrcke Oral Ruling on Voir Dire #3 re s. 24(2) Charter Application Counsel for the Crown: C. Fast O.L. Bick Counsel for the Accused: D. Markovitz Place and Date of Hearing: New Westminster, B.C. February 16, 2018 Place and Date of Judgment: New Westminster, B.C. February 19, 2018 INTRODUCTION AND BACKGROUND FACTS [1] The accused, Corey Perkins, is charged with possession of cocaine and fentanyl for the purpose of trafficking, and illegal possession of various firearms. In the course of the investigation, Cst. Davies of the Abbotsford Police Department applied for and obtained various orders and warrants which were based on a series of informations to obtain ("ITOs") affirmed by Cst. Davies between November 6, 2014 and December 15, 2014. [2] Copies of the various orders and ITOs are contained in a bound booklet that has been marked Exhibit 1 on the voir dire. [3] Corey Perkins brought an application challenging the validity of various orders and warrants and seeking exclusion of the evidence obtained through their execution pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. This was based on the position that if the orders or warrants were invalid, then the resulting search or seizure violated Mr. Perkins' rights under s. 8 of the Charter to be secure against unreasonable search and seizure. [4] Section 24 of the Charter permits a person to seek exclusion of evidence if he first shows that his Charter rights have been infringed. That section provides: 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [5] The validity of the orders and warrants have been considered one by one in the course of a single voir dire and most of them have been upheld. Where the orders or warrants have been upheld, no issue of exclusion of evidence arises under s. 24(2), since the basis for seeking exclusion was the allegation that the orders or warrants should not have been granted. [6] One warrant was struck down, the general warrant granted December 8, 2014, for the police to covertly open and examine the contents of packages and mail left in the possession of Canada Post by the accused (the "Canada Post general warrant"). It is the evidence obtained by means of this warrant that is the subject of this ruling under s. 24(2) of the Charter. [7] On February 1, 2018, Crown counsel conceded that the Canada Post general warrant should not have been issued. As the warrant provided the only basis for the search, this amounts to a concession that the search was unreasonable and violated Mr. Perkins' s. 8 Charter rights. The Crown submits, however, that the evidence obtained should nevertheless be admitted. [8] The circumstances of the execution of the Canada Post general warrant are set out at paragraphs 99 to 100 of the ITO that Cst. Davies affirmed in support of CDSA (Controlled Drugs and Substances Act, S.C. 1996, c. 19) search warrants on December 15, 2014. That ITO is at Tab 13 of voir dire Exhibit 1. The Canada Post general warrant and the ITO in support of it are at Tabs 3 and 4 of voir dire Exhibit 1. [9] On December 15, 2014, surveillance officers followed Mr. Perkins to the Canada Post outlet at People's Drug Mart in Abbotsford, British Columbia, and observed him give a large yellow envelope to the clerk. After Mr. Perkins left, the police produced the Canada Post general warrant to the Canada Post employee, and the envelope, which was addressed to an address in Smithers, British Columbia, was opened. It contained a Western Family oatmeal box, inside of which were bags of suspected cocaine and other controlled substances. Police seized the package, and Mr. Perkins was arrested. It is this evidence that Mr. Perkins seeks to have excluded under s. 24(2) of the Charter. LEGAL FRAMEWORK FOR S. 24(2) ANALYSIS [10] Section 24(2) of the Charter permits a trial judge to exclude evidence obtained in a manner that infringed an accused's Charter rights if the admission of the evidence would bring the administration of justice into disrepute. [11] The framework for determining whether evidence should be excluded under s. 24(2) was revised and restated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, and R. v. Harrison, 2009 SCC 34. As set out in those cases, an inquiry into the exclusion of evidence under s. 24(2) requires a delicate balancing of three avenues of inquiry: (1) the seriousness of the Charter‑infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. [12] I will consider each of these three avenues of inquiry in turn. Seriousness of Charter‑infringing state conduct [13] The Crown's concession that the Canada Post general warrant should not have been issued was based on the realization at the start of the voir dire that the warrant had to be assessed in light of s. 40(3) of the Canada Post Corporation Act, R.S.C. 1985, c. C‑10, as amended, which provides: 40. (3) Notwithstanding any other Act or law, but subject to this Act and the regulations and to the Canadian Security Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, nothing in the course of post is liable to demand, seizure, detention or retention. [14] The Crown points out that, by its terms, this subsection provides that "nothing in the course of post is liable to . . . seizure", and the Crown reasons that this must include seizure by the police in the course of an investigation. The Crown notes that the subsection's prohibition specifically exempts seizures under the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, and submits that since those Acts are specifically mentioned, the statutory interpretation principle denoted by the Latin expression expressio unius est exclusio alterius leads to the conclusion that Parliament must have intended to exclude the Criminal Code and the Controlled Drugs and Substances Act from the exemption. [15] For the purposes of this case, I accept the Crown's concession, though I note that the proper interpretation of s. 40(3) is not without difficulty. The other subsections of s. 40 have nothing to do with search and seizure by police or other state authorities. The general heading of s. 40 is "Liability", and indeed subsections (1), (1.1), and (2) all have to do with the question of when the Corporation, or various Ministers, or a mail contractor, will be liable for claims arising from the loss, delay, or mishandling of mail. These subsections appear to relate exclusively to the question of civil liability, and by the principle of noscitur a sociis, one might have inferred that the word "seizure" in s. 40(3) meant civil seizure, not a search and seizure of evidence by the police in the course of a criminal investigation. [16] As the above discussion shows, although ignorance of the law is not generally an excuse, the true import of s. 40(3) is obscure, and it is difficult to fault the police or the justice who issued the Canada Post general warrant for not recognizing the difficulty that led Crown counsel in the present case to make the concession that they did. [17] Here the police attempted to protect Mr. Perkins' s. 8 privacy interests by applying for a general warrant before examining any package or mail he presented to the post office. The warrant was issued, and the police clearly believed it was valid at the time they executed it. The reason for the Crown's current concession of invalidity does not detract in any way from the reasonable grounds upon which the warrant was issued. [18] In my view, therefore, the seriousness of the Charter‑infringing state conduct in this case is at the lower end of the scale. Impact on accused's Charter‑protected interests [19] In R. v. Washington, 2007 BCCA 540, our Court of Appeal had to consider the privacy interests of a person who had consigned a package for delivery, not by Canada Post, but rather by a helijet company. The accused had shipped a package by air from Vancouver to Victoria. An employee of the helijet company suspected illegal activity, and opening the package, he found what appeared to be drugs. He resealed the package and notified the police, who seized the package after it had been retrieved in Victoria. The Court held that there was a breach of s. 8 of the Charter, because the police should have obtained a warrant, but the evidence was admitted pursuant to s. 24(2). For the majority, Ryan J.A. wrote at paras. 68-69: [68] The privacy interest with which we are dealing in this case - the contents of a wrapped package shipped by air - can be characterized as informational privacy. Because the material shipped to Ms. Washington was wrapped in a package, we must infer that the intent of the parties was to keep it private, away from the prying eyes of others. [69] However, the expectation of privacy in the contents of the package is not as high as that related to bodily integrity or one's home or office. The seriousness of the violation should be judged in this light. [20] In the present case as well, it must be inferred from the fact that Mr. Perkins wrapped the drugs and put them in an oatmeal container, that he intended that no one should discover it was drugs he was attempting to send through the mail. [21] It should be noted, however, that it is illegal to send a controlled substance through the mail. The definition of "traffic" in s. 2(1) of the Controlled Drugs and Substances Act includes "to . . . transfer, transport, send or deliver the substance", and mailing a controlled substance would come within this definition. [22] Section 4(d) of the Non‑mailable Matter Regulations, SOR/90‑10, provides: 4 Any non-mailable matter found in course of post, other than non-mailable matter that is seized under the Customs Act, shall be disposed of as follows: . . . (d) any non-mailable matter included in item 4 of the schedule shall be delivered to a police officer, a peace officer or the competent authority, as applicable; [23] Item 4 of the schedule is: "Any item transmitted by post in contravention of an Act or a regulation of Canada." That, of course, would include sending, which by definition is trafficking, drugs in contravention of the Controlled Drugs and Substances Act. [24] Counsel for Mr. Perkins submitted that all Canadians expect the mail they post to be kept private. He submitted that Canadians think of this expectation as something almost sacred, and the impact on Mr. Perkins' Charter‑protected interests should therefore be considered great. [25] Although Mr. Perkins no doubt believed his drugs would not be found, and thus had a subjective expectation of privacy, when assessing the reasonableness of that expectation, one may ask whether the expectation is less reasonable when one is trying to mail something that the Canada Post Non‑mailable Matter Regulations specifically designate as non‑mailable matter. [26] In the circumstances of this case, I consider that there was some impact on Mr. Perkins' Charter‑protected privacy rights, but it is not as great as it would have been in the case of a search of his person or a search of his residence. I find the impact on Mr. Perkins' Charter‑protected privacy rights to be moderate. Society's interest in the adjudication of the case on its merits [27] I come then to the third factor mentioned in Grant and Harrison, the impact that exclusion of the evidence would have on society's interest in having the case decided on its merits. The drugs that were found inside the package are real evidence, the reliability of which can scarcely be doubted. Their admission would therefore enhance the truth‑seeking function of the trial. [28] The Crown candidly admits that their case will not collapse entirely if the Canada Post evidence is excluded, because drugs and guns were found in other locations associated with Mr. Perkins as well. However, the Canada Post evidence is the strongest evidence of the manner in which Mr. Perkins was trafficking and in what quantities. Although evidence of other drugs found in Mr. Perkins' possession may support an inference of an intent to traffic, the Canada Post evidence is the only direct evidence of actual trafficking. CONCLUSION [29] At para. 127 of Grant, the Supreme Court of Canada described the manner in which the three s. 24(2) factors should be weighed or balanced: [127] The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable. [30] Having weighed and balanced the three factors in the context of this case, I am satisfied that the exclusion of the evidence would do greater harm to the long‑term repute of the administration of justice than its admission. [31] The evidence is admissible at trial. The Honourable Mr. Justice W.F. Ehrcke