File Number: 34914 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE NOVA SCOTIA COURT OF APPEAL) BETWEEN: ERIN MACDONALD APPELLANT/RESPONDENT (Appellant) -and- HER MAJESTY THE QUEEN (NOV A SCOTIA) RESPONDENT/APPELLANT (Respondent) -and- DIRECTOR OF PUBLIC PROSECUTIONS and ATTORNEY GENERAL OF ONTARIO INTERVENERS FACTUM OF THE INTERVENER THE DIRECTOR OF PUBLIC PROSECUTIONS (Pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada) Public Prosecution Service of Canada Brian Saunders Atlantic Regional Office Director of Public Prosecutions Suite 1400 Duke Tower East Memorial Building, 2nd Floor 5251 Duke Street 284 Wellington Street Halifax, Nova Scotia B3J 1P3 Ottawa, Ontario (per: James C. Martin and KIA OH8 Ann Marie Simmons) (per: Fran<;ois Lacasse) Tel.: (902) 426-2484 Tel.: (613) 957-4770 Fax: (902) 426-1351 Fax: (613) 941-7865 Email: [email protected] Email: [email protected] Counsel for the Intervener Ottawa Agent for the Intervener William D. Delaney, Q. C and Henry S. Brown, Q.C. Jennifer A. MacLellan Public Prosecution Service of Gowling Lafleur Henderson LLP Nova Scotia Barristers and Solicitors 1505 Barrington Street, Suite 1225 2600 - 160 Elgin Street Halifax, NS B3J 3K5 Ottawa, ON KIP 1C3 Tel. (902) 424-6795 Tel. (613) 232-1781 Fax (902) 424-0653 Fax (613) 563-9869 E-mail: [email protected] E-mail: [email protected] Counsel for the Appellant Ottawa Agent for the Appellant Hersh Wolch, Q.C. Robert E. Houston, Q.C. Wolch Dewit Silverberg & Watts Burke-Robertson Barristers and Solicitors 70 Gloucester Street 633-6th Avenue S.W., Suite 1500 Ottawa, ON K2P OA2 Calgary, AB T2P 2Y5 Tel. (613) 566-2058 Tel. ( 403) 265-6500 Fax (613) 235-4430 Fax (403) 263-1111 E-mail: E-mail: [email protected] [email protected] Counsel for the Respondent Ottawa Agent for the Respondent John C. Pearson and Michelle Campbell Robert E. Houston, Q.C. Attorney General of Ontario Burke-Robertson 720 Bay Street, 1Oth Floor 70 Gloucester Street Toronto, ON M5G 2K1 Ottawa, ON K2P OA2 Tel.: (416) 326-4600 Tel. (613) 566-2058 Fax: (416) 326-4656 Fax (613) 235-4430 E-mail: [email protected] E-mail: [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of Ontario Attorney General of Ontario Table of Contents Page Number PART I OVERVIEW and STATEMENT OF FACTS 1 1 i. Non-Investigative Safety Searches ii. Fault Element of the s. 95 Offence 1 PART II ISSUES 1 PART III ARGUMENT 2 A. Non-Investigative Safety Searches 2 i. Ancillary Powers Doctrine in Waterfield 4 ii. The Appropriate Constitutional Standard 7 B. Fault Element of the s. 95 Offence 9 PART IV COSTS 10 PARTV REQUEST TO MAKE ORAL ARGUMENT 10 PART VI TABLE OF AUTHORITIES 12 PART VII STATUTES, REGULATIONS AND RULES 14 1 PART I- OVERVIEW and STATEMENT OF FACTS 1. Non-Investigative Safety Searches 1. At issue is whether the police can lawfully enter private places to respond to a reasonably perceived threat to officer safety when there is no pre-existing intention to collect evidence or effect an arrest. 2. For the same policy reasons articulated by this Court in Godoy1 and Clayton,2 the police must be permitted to respond to danger, including officer safety. Such conduct is not a violation of s. 8 of the Charter where the response is reasonably necessary in the circumstances. This authority, found in Waterfield, is consistent with the exigent circumstances doctrine for criminal investigations, addresses the need for officer safety, and provides proper protection against unreasonable exercise of police powers. 3. Consistent with Godoy, the appropriate standard of review is whether the police response was objectively necessary and reasonable in the totality of the circumstances. In the alternative, if an evidentiary test is required, the reasonable suspicion standard achieves the proper balance between privacy and state interests. n. Fault Element of the s. 95 Offence 4. The Crown is required to prove an accused's subjective knowledge of the law only when that knowledge is a statutorily defined element of the offence. Requiring proof of an accused's knowledge of licencing conditions imposes an impossible burden on the Crown. Recognition of this difficulty is reflected in the unavailability of the ignorance of the law defence. Potential penal consequences should not inform the interpretation of the fault elements in a non-constitutional context. Proof that an accused knows the legal limits of the authorizing conditions is not an element of the s.95 offence. 5. The Director of Public Prosecutions accepts the facts as stated by the parties and takes no position on any factual disputes between the parties. PART II - ISSUES 6. The Director of Public Prosecutions intervenes to address two questions: 1) is there an independent common law authority to enter private places when officer safety is at risk, and if so, when can that authority be exercised; and 2) is the Crown required to establish 1 R. v. Godoy, [1999] 1 S.C.R. 311. 2 R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725. 2 an accused's "complete, specific, subjective knowledge" of the licencing conditions to obtain a conviction for possession of a loaded firearm under s.95 of the Criminal Code? PART III- ARGUMENT A. Non-Investigative Safety Searches 7. Even a routine noise complaint can endanger the life of a police officer. This is but one example where police are required to respond to danger that is initially devoid of criminal law elements. Evidence of criminal conduct may be discovered in private places during such responses. Police powers must reflect this reality. Here, assuming the conduct at issue is a search, it was not unreasonable and did not violate s.8 Charter protections. 8. Canadian courts have recognized that a search will not be unreasonable under s.8 when the search occurs in response to a true emergency. Specifically, this Court in R. v. Godoy accepted that, in the context of911 calls, police have a duty to enter a private residence to properly investigate an "unknown trouble call". In Godoy there was no evidence of a crime prior to entry into the home, only an incomplete call for help. The issue in this case is an adjunct of the 911 situation where instead of a cry for help directed to a formalized response system, the danger unfolded during the exercise of routine police duties. Such situations require the same judicial response: these entries are constitutional. 9. Exigent circumstance exceptions, including officer safety, have long been incorporated into the law of search and arrest. This Court recognized early in its development of s. 8 jurisprudence that the demands of urgent police response cannot be assessed against the same constitutional standard as non-urgent police response. This is reflected in the often repeated admonition in Hunter v. Southam, that "where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ".3 Exigent circumstances, such as hot pursuit, are well established exceptions to the warrant requirement to enter to effect an arrest,4 and to the knock and announce rule to execute a search warrant. 5 10. Subsequently, Parliament codified these constitutional mandates in several investigative provisions. For example, there are statutory exigent circumstance exceptions to search 3 Hunter v. Southam, [1984] 2 S.C.R. 145, p. 161. In R. v. Grant, [1993] 3 S.C.R. 223, the warrantless search power in the former Narcotic Control Act was declared unconstitutional on this basis unless exigent circumstances made it impracticable to obtain one. 4 R. v. Feeney, [1997] 2 S.C.R. 13, p. 17. 5 R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142. 3 warrant requirements in the Criminal Code,6 under the Controlled Drugs and Substances AcP and in regulatory legislation.8 For arrest, there is an exigent exception to the warrant requirement to enter a dwelling.9 Recently this Court in R. v. Tse 10 recognized that Parliament could enact a provision that allows, without judicial pre-authorization, the interception of private communications where the police believe on reasonable grounds that the interception "is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property". The present constitutional limits relating to the use of sniffer dogs may be relaxed where the circumstances involve "explosives, guns or other public safety concems."11 11. But for Godoy, these exceptions apply in the context of focused criminal investigations where the pre-conditions for a warrant exist, but the inability to obtain the warrant before destruction of evidence or prevention of harm obviates the warrant requirement. Where there is no "arrestable" offence, the Feeney hot pursuit exception will not apply. 12. The common law authorizes officer safety searches when exercising certain police powers. Safety searches are authorized during investigative detention, 12 as incidental to arrest, 13 and while executing a search warrant. 14 13. But there is no statutory provision authorizing a safety search when police are only responding to danger, including police safety. 15 Indeed the police may be engaged in a criminal investigation but must react to danger despite an absence of sufficient grounds to execute a search or arrest. Any ensuing prosecution may result in a challenge to the police authority to enter, arrest, view, seize or include information gathered as grounds in a subsequent warrant application. 16 6 Criminal Code, R.S.C 1985, c. C-46, s. 487.11. 7 Controlled Drugs and Substances Act, S.C.