



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Atkinson, 2012
    ONCA 380

DATE: 20120606

DOCKET: C52847

Winkler C.J.O., Lang and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Surriff Atkinson

Appellant

Diana Lumba, for the appellant

Joseph Perfetto, for the respondent

Heard:  November 29, 2011

On appeal from the convictions recorded by Justice Bruce
    J. Frazer of the Ontario Court of Justice on June 8, 2010.

Watt J.A.:

[1]

An untrained puppy and a misstep on a darkened balcony helped
    investigators find the person they considered responsible for an apartment
    burglary in Kitchener.

[2]

The burglar entered the apartment in the middle of the night and removed
    a large flat screen television from the living room. No one awoke, not even the
    puppy. The burglars only
faux pas
was failing to sidestep a deposit
    of feces left by the puppy on the balcony of the apartment, then proceeding to
    track the deposit into the apartment.

[3]

Within hours of discovering the burglary, a police officer arrived at
    the door to an enclosed verandah/mudroom at the appellants home.  When the
    officer stepped inside the verandah/mudroom, he noticed a pair of shoes sitting
    on the floor. The appellant acknowledged, then denied, that the shoes were
    hers. The officer noticed a deposit on the soles of the shoes. He picked the
    shoes up.  He smelled them.  He smelled dog feces.

[4]

At the appellants trial, the officers observations of the shoes were
    an important part of the Crowns case. The trial judge found the appellant
    guilty of breaking and entering the apartment and of two earlier unlawful
    entries to the same premises. The television was never recovered.

[5]

The principal issue on this appeal concerns the admissibility of the
    officers observations of the deposit on the appellants shoes. These reasons explain
    why I conclude that the evidence was properly admitted and that the appeal
    should be dismissed.

THE BACKGROUND FACTS

[6]

The events that underpin the prosecution occurred on three consecutive
    days in early November 2009 in an apartment occupied by Helen Rosicki, her son,
    Tyler, Tylers girlfriend, and Tylers puppy. The apartment building was known
    in the community as a crack house.

[7]

The appellant and Ms. Rosicki were recovering crack addicts. They
    attended local meetings of Cocaine Anonymous and saw each other around the
    neighbourhood. However, they were not friends. Nor did they live in the same
    apartment building.

The First Incident: November 7, 2009

[8]

On November 7, 2009, Ms. Rosicki walked to a nearby corner store to buy
    a bag of chips. She saw the appellant at the store and exchanged pleasantries
    with her. They may have talked about a $10 debt Ms. Rosicki owed the appellant
    for a bicycle the appellant had sold her several months earlier. The two women
    made no plans to meet later that day.

[9]

Ms. Rosicki returned home from the store and sat down on the couch. As
    she sat watching television, the appellant entered the apartment, uninvited, through
    the open balcony door. The appellant appeared to have been partying all night
    and wanted to party some more. Ms. Rosicki told the appellant to leave, but the
    appellant wanted to hang out in the apartment. After Ms. Rosicki repeated her
    direction to leave, the appellant grudgingly left the apartment through the
    front door.

[10]

The
    appellant was convicted of being unlawfully in a dwelling-house with intent to
    commit an indictable offence in connection with this incident.

The Second Incident:  November 8, 2009

[11]

On
    November 8, 2009, Ms. Rosicki and Tyler were at home. Tyler was playing video
    games in his room.  Ms. Rosicki was lying on her bed reading a book.

[12]

Around
    4:00 p.m. the appellant made her second uninvited appearance at the Rosicki
    apartment. She walked into Ms. Rosickis bedroom, laid across her bed and asked
    her for a ten piece of crack. Ms. Rosicki told the appellant that she had no
    drugs. She told the appellant to leave, and raised her voice when the appellant
    made no move to do so.

[13]

Tyler
    Rosicki came into his mothers bedroom. He escorted the appellant out of the
    apartment at his mothers request.

[14]

Ms.
    Rosicki denied sharing cocaine with the appellant on the afternoon of November
    8, 2009, or at any time for that matter. Tyler did not see his mother or the
    appellant taking drugs, but his mothers comportment at the time he escorted
    the appellant out of the apartment led him to believe that she had relapsed
    into drug use.

[15]

The
    appellant was convicted of being unlawfully in a dwelling-house with intent to
    commit an indictable offence as a result of this incident.

The Final Incident: November 9, 2009

[16]

During
    the evening of November 9, 2009, Tyler Rosicki, his girlfriend, his mother, and
    his puppy were all at home. The puppy was not fully trained. As a result, Tyler
    permitted the puppy to void himself in the living room and on the balcony of
    the apartment.  It was Tylers responsibility to clean up after the puppy, but
    he sometimes failed in his responsibility.

[17]

Tyler
    and his girlfriend watched television on the flat screen television in front of
    the living room windows until around 11:00 or 11:30 p.m. on November 9, 2009.
    Tyler left the balcony door unlocked. He heard nothing during the night.

[18]

Helen
    Rosicki left for work at about 5:30 the next morning. She did not turn on the
    living room lights, thus did not see the state of the living room, television
    or balcony area.

[19]

When
    Tyler awoke around 7:00 a.m., he noticed that the television was no longer in
    the living room. He telephoned his mother at work immediately.  Later that week
    he discovered that his leather jacket was also missing.

[20]

Tyler
    looked around the apartment, on the balcony, and on the ground beneath it. He
    noticed footprints in feces on a blue table beneath the balcony, on the balcony,
    and on the kitchen and living room floors.  None of the footprints were closer
    than about three feet from where the television had been.

The Police Investigation

[21]

Police
    responded quickly to the report of the burglary. The investigating officer,
    P.C. Steven Van Dyke, looked around the apartment. He noticed dark feces:
    There was a lot. Someone appeared to have stepped in feces on the balcony. 
    Smeared feces appeared on the kitchen floor.

[22]

When
    the occupants of the apartment told P.C. Van Dyke about the two prior incidents
    in which the appellant had entered the apartment uninvited and unannounced, the
    officer considered her a person of interest in his investigation. He
    acknowledged, however, that the information Ms. Rosicki and Tyler provided did
    not give him reasonable and probable grounds to believe that the appellant had
    burgled the apartment.

[23]

P.C.
    Van Dyke wanted to speak to the appellant to pursue his investigation. The
    appellant lived nearby. He went to her home, walked up to the door of the
    enclosed verandah/mudroom, and knocked.  The appellant answered the door.

[24]

At
    the doorway to the verandah/mudroom, P.C. Van Dyke asked the appellant where
    she had been the previous evening. She responded that she had been in and out
    of her house at different times. She asked the officer why he was asking her
    these questions. P.C. Van Dyke told her that she should just tell him where he
    could find the (stolen) television.  The appellant denied any knowledge of the
    television.

[25]

As
    the appellant and P.C. Van Dyke spoke, he noticed a pair of black shoes close
    by. Something was stuck to the bottom of the shoes. The officer picked up the
    shoes and took a closer look at the adherent material. He thought the material
    resembled dog feces and lifted the shoes towards his nose to confirm his
    initial impression. The smell confirmed the presence of feces. The appellant
    acknowledged that the shoes were hers, then quickly retracted her admission.
    P.C. Van Dyke seized the shoes.

[26]

P.C.
    Van Dyke conceded that in order to smell the adherent material he had to pick
    up the shoes. The officer considered that he had an implied invitation to enter
    the verandah/mudroom: he walked in without any objection from the appellant.
    When the appellant denied having taken the television, she told the officer he
    could enter her house and showed him that the television was not there.

The Post-Offence Conduct

[27]

Shortly
    after the appellants release from custody following her arrest on these
    charges, she had two chance encounters with Ms. Rosicki: once at the corner
    store, and a second time outside Ms. Rosickis building. On both occasions, the
    appellant said no hard feelings.  Ms. Rosicki told the appellant to stay
    away from her and her apartment.

The Grounds of appeal

[28]

The
    appellant advances three grounds of appeal. She submits that the trial judge
    erred:

i.

in admitting evidence about P.C. Van Dykes observations of the material
    adhering to the shoes seized from the appellants verandah/mudroom;

ii.

in misapprehending the effect of P.C. Van Dykes evidence about the
    extent of the similarities between the dog feces at the scene of the burglary
    and the material adhering to the shoes seized from the appellants verandah/mudroom;
    and

iii.

in failing to properly apply the presumption of intent in s. 349(2) of
    the
Criminal Code
in finding the appellants guilt proven on the
    counts charging the offence in s. 349(1).

[29]

It
    is not necessary to separately consider the second ground of appeal. It was not
    forcefully argued and I have not done so. For reasons that appear in my
    discussion of the
Charter
issue, to the extent that the trial judge
    stated that the adherent material was 
the
feces, he overstated the
    officers testimony. Nonetheless, this misapprehension was not material: it was
    open to the trial judge to find that the appellant had feces on her shoes
    because she was the burglar. Further, the feces was not the only evidence
    connecting the appellant to the crime.

Grounds #1 & 2: The Shoe Observation Evidence

[30]

A
    full appreciation of this ground of appeal requires some further background,
    including a brief description of the manner in which the issue was raised, and
    the positions advanced at trial.

The
Voir Dire
on Admissibility

[31]

The
    appellant made no formal written application to exclude P.C. Van Dykes
    evidence about his observations of the shoes. For all practical purposes, trial
    counsel for the appellant ignored the requirements of Rule 30 of the
Rules of
    the Ontario Court of Justice in Criminal Proceedings
, S.I./97-133.

[32]

Instead
    of a formal written application and
voir dire
to determine
    admissibility, the trial Crown and defence counsel agreed that P.C. Van Dyke
    had seized the shoes in breach of s. 8 of the
Charter
and that the
    shoes should be excluded as evidence. Neither counsel explained to the trial
    judge the factual premise underlying their agreement that the officers conduct
    offended s. 8 or that the seized shoes should be excluded as evidence.

[33]

The
    parties lacked a common understanding, however, about the admissibility of P.C.
    Van Dykes evidence of his observations of the shoes.

[34]

The
    trial Crown took the position that the exclusion of the shoes was not
    determinative of the admissibility of the visual and olfactory observations of
    the adherent fecal material. The trial Crowns position was that the officers
    visual observations of the shoes, including the adherent feces, were
    admissible, leaving only the admissibility of the smell for determination by
    the trial judge.

[35]

Trial
    counsel for the appellant contended that the exclusion of the shoes included
    exclusion of the visual observations of the adherent material. What remained to
    be decided, according to defence counsel, was the admissibility of the officers
    evidence about smell.

The Ruling of the Trial Judge

[36]

The
    trial judge gave no separate reasons on whether P.C. Van Dykes observations of
    the shoes offended s. 8 of the
Charter
.  As part of his reasons for
    judgment, the trial judge relied upon the evidence of P.C. Van Dykes
    observations of the shoes, listing several factors relevant to the lines of
    inquiry described in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353, as supporting the admissibility of the evidence.

The Argument on Appeal

[37]

For
    the appellant, Ms. Lumba says that the trial judge was wrong in failing to
    exclude the evidence of P.C. Van Dykes visual and olfactory observations of
    the shoes.

[38]

First,
    Ms. Lumba contends, each observation amounted to a search within s. 8 of the
Charter
.
    The searches lacked any statutory or common law authority.  No warrant. No
    consent. No claim under the plain view doctrine, because the officer was not
    lawfully present in the verandah/mudroom and the feces were neither readily
    apparent nor inadvertently discovered. And, what is more, the plain view
    doctrine affords authority to seize, not to search.

[39]

Second,
    Ms. Lumba continues, the trial judge erred in his analysis under s. 24(2).
    The infringement was
not
trivial, as the trial judge found, rather
    serious, since it involved breaches of both informational and territorial
    privacy, the latter involving a dwelling, the appellants  home. For similar
    reasons, the infringement had a significant impact on the appellants
Charter
-protected
    interests. Although the third line of inquiry favoured admissibility, a careful
    balancing of all three lines of inquiry mandated exclusion of the evidence.

[40]

For
    the respondent, Mr. Perfetto takes issue with the claim of constitutional
    infringement, as well, the submission that consideration of the lines of
    inquiry under
Grant
supports exclusion of the evidence of P.C. Van
    Dykes observations.

[41]

Mr.
    Perfetto acknowledges the trial Crown conceded that the shoes had been
    unlawfully seized and should be excluded as evidence. However, it is Mr.
    Perfettos position that trial counsel did not clearly articulate the basis for
    this concession and the trial judge was entitled to reach a contrary conclusion
    on the evidence as a whole.

[42]

The
    respondent says that P.C. Van Dyke was lawfully in the appellants verandah/mudroom
    to pursue his burglary investigation. The material that adhered to the black
    shoes was clearly visible to him from the entrance.  At the very least, he was
    entitled to pick up the shoes, look at the material, and smell it. His conduct
    did not amount to an unreasonable search.

[43]

Mr.
    Perfetto submits that, even if P.C. Van Dykes observations could be
    characterized as an unreasonable search under s. 8 of the
Charter
, his
    evidence about them was admissible at trial. The intrusion into the appellants
    territorial privacy, a step forward into an enclosed verandah/mudroom, was
    minimal. The information obtained, that the material clinging to the soles of a
    pair of shoes looked and smelled like dog feces, does not capture the
    biographical core of personal information that individuals in a free and
    democratic society wish to maintain and control from dissemination to the
    state. In other words, the impact of the observations on the appellants
Charter
-protected
    interests was minimal.  And societys interest in the adjudication of the case
    on its merits favours admission of the evidence.

The Governing Principles

[44]

The
    submissions of the parties require consideration of various legal principles.
    This includes the principles relating to the constitutionality of the conduct
    of P.C. Van Dyke when he arrived at the appellants home, and the admissibility
    of his evidence about the observations he made of the shoes he saw, seized and
    smelled in the verandah/mudroom of the appellants home.

The Initial Attendance

(i)

Implied
    Licence to Knock

[45]

The
    common law recognizes an implied licence for all members of the public,
    including police officers, to approach the door of a residence and to knock:
R.
    v. Evans
, [1996] 1 S.C.R. 8, at para. 13. Thus, an occupier is deemed to
    grant the public, including the police, permission to approach the door and to
    knock.  Police who act in accordance with this implied invitation do not
    intrude on the occupants privacy:
Evans
, at para. 13. Unless rebutted
    by some clear expression of intent, the implied invitation effectively waives
    the privacy interest that an individual might otherwise have in the approach to
    the door of his or her dwelling:
Evans
, at para. 13.

[46]

This
    implied invitation to knock extends no further than is required to permit
    convenient communication with the occupant of the dwelling. It follows that
    only those activities reasonably associated with the purpose of communicating
    with the occupant are authorized by the implied licence to knock:
Evans
,
    at para. 15.

[47]

Where
    state agents approach a dwelling with the intention of gathering evidence
    against an occupant, they have exceeded any authority implied by the invitation
    to knock and become engaged in a
search
of the occupants home:
Evans
,
    at paras. 16, 18, and 21. 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 licence to
    knock:
Evans
, at para. 20.

[48]

In
    some circumstances, police officers lawfully present at the door of a residence
    may lawfully enter the premises. An invitation to enter may be implied from the
    circumstances, for example from the words and conduct of a person in charge of
    the place. An implied invitation to enter furnishes lawful authority for the
    police to be in the residence or other place:
R. v. Clarke
(2005), 196
    C.C.C. (3d) 426 (Ont. C.A.), at para. 28.

[49]

When
    determining whether to imply an invitation to enter a residence from the words
    and conduct of a homeowner in a brief interaction with a police officer, we
    should not lose sight of the dynamics of the 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 objection or mere compliance, any more than we would equate consent with
    acquiescence or compliance in equivalent circumstances:
R. v. Wills
(1992), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348.

(ii)

Protected
    Privacy Interests

[50]

The
    right to be secure from unreasonable search or seizure protects only a
    reasonable expectation of privacy. The limiting term reasonable implies
    that, in each case, the court must assess whether, in the circumstances, the
    publics interest in being left alone by the state must give way to the states
    interest in intruding on the individuals privacy to advance its goals, such as
    law enforcement:
R. v. Edwards
, [1996] 1 S.C.R. 128, at para. 30;
Hunter
    v. Southam Inc.
, [1984] 2 S.C.R. 145, at pp. 159-160. The assessment must
    take into account all the circumstances of the case:
Edwards
, at
    paras. 31 and 45.

[51]

Among
    the privacy interests that s. 8 protects are personal, territorial and
    informational privacy:
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R.
    432, at para. 20.  Personal privacy protects bodily integrity. Territorial
    privacy protects privacy in the home, as well as other places, albeit without
    the same rigour:
Tessling
, at paras. 21 and 22. Informational privacy
    has to do with the claim of individuals, groups or institutions to determine for
    themselves when, how and to what extent information about them is communicated
    to others:
Tessling
, at para. 23.

[52]

Not
    every scrap of information that an individual may wish to keep confidential
    falls within the sweep of s. 8. What is included is a biographical core of
    personal information that individuals in a free and democratic society might
    wish to maintain and control from dissemination to the state, such as
    information that tends to reveal intimate details about, and personal choices
    of, the individual:
Tessling
, at paras. 25-26;
R. v. Plant
,
    [1993] 3 S.C.R. 281, at p. 293.

[53]

The
    distinctions between personal, territorial and informational privacy provide
    useful analytical tools, but in many cases privacy interests may spill over
    from one category to another. In this case, for example, the privacy interest
    is informational. It concerns the appellants activities to the extent revealed
    by the material adhering to her shoes. But the interest also implicates
    territorial privacy because police entered the appellants home and observed
    the shoes there.

[54]

Police
    conduct that interferes with a reasonable expectation of privacy constitutes a
    search for the purposes of s. 8 of the
Charter
:
R. v. Law
,
    2002 SCC 10, [2002] 1 S.C.R. 227, at para. 15;
Tessling
, at para. 18;
R.
    v. Wise
, [1992] 1 S.C.R. 527, at p. 533. Police conduct that amounts to a
    search, but is not authorized by a warrant, is presumptively unreasonable and
    shifts the burden of establishing reasonableness to the Crown. In this case,
    the respondent relies on the appellants consent to P.C. Van Dykes entrance
    into her home, and on the operation of the plain view doctrine to establish
    that the search was reasonable.

(iii)

Consent Search

[55]

A
    consent search is lawful, thus reasonable.  A valid consent requires that the
    consenting party have the required informational foundation for a true
    relinquishment of the right:
R. v. Borden
, [1994] 3 S.C.R. 145, at p.
    162.

[56]

The
    consent must be voluntary and informed. To be voluntary, the consent, which may
    be express or implied, must not be the product of police oppression, coercion
    or other conduct that negates the consenting partys freedom to choose whether
    to allow police to pursue the course of conduct requested or to deny them that
    right:
Wills
, at p. 354. To be informed, the consenting party must be
    aware of

i.

the nature of the police conduct to which the consent relates;

ii.

the right to refuse to permit the police to pursue the conduct; and

iii.

the potential consequences of giving consent.

Wills
, at pp. 354-355.

(iv)

The Plain View Doctrine

[57]

The
    plain view doctrine is a common law doctrine that permits the warrantless
    seizure of things in plain view. To engage this doctrine requires the satisfaction
    of three conditions:

i.

the seizing officer must be lawfully in the place of seizure;

ii.

the evidentiary nature of the item must be immediately apparent to the
    officer through the unaided use of his or her senses; and

iii.

the evidence must be discovered inadvertently.

R. v. Jones
, 2011 ONCA 632, 107 O.R. (3d) 241,
    at para. 56;
Law
, at para. 27.

The Admissibility Issue

[58]

Faced
    with an application under s. 24(2) of the
Charter
to exclude evidence
    obtained by constitutional infringement, a court must assess and balance the
    effect of admitting the evidence on societys confidence in the justice
    system.  The analysis involves three lines of inquiry:

i.

the seriousness of the
Charter
-infringing state conduct;

ii.

the impact of the breach on the
Charter
-protected interests of
    the accused; and

iii.

societys 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:
Grant
, at para. 71.

[59]

The
    first line of inquiry involves an evaluation of the seriousness of the state
    conduct that led to the breach. Some violations will be inadvertent or minor.
    Others may reveal a wilful or reckless disregard of
Charter
rights:
Grant
,
    at para. 74. Extenuating circumstances, like the need to prevent the
    disappearance, or preserve the integrity, of evidence, may attenuate the
    seriousness of the
Charter
-infringing conduct:
Grant
, at
    para. 75. Good faith on the part of investigators may also be a leavening
    factor, but neither negligence nor wilful blindness amounts to good faith:
Grant
,
    at para. 75.  On the other hand, evidence that the
Charter
-infringing
    state conduct was part of a pattern of abuse aggravates the seriousness of the
    state conduct:
Grant
, at para. 75.

[60]

The
    second line of inquiry commands an evaluation of the extent to which the breach
    actually undermined the interests protected by the right infringed:
Grant
,
    at para. 76. To determine the seriousness of the infringement from this perspective,
    a court must take into account the interests engaged by the infringed right and
    examine the extent to which the violation impacted on those interests:
Grant
,
    at para. 77. An unreasonable search that intrudes on an area in which a person
    enjoys a high expectation of privacy, or that demeans the persons dignity, is
    more serious than one that does not:
Grant
, at para. 78.

[61]

Under
    the third line of inquiry, the reliability of the constitutionally-tainted
    evidence is a relevant factor. To admit unreliable evidence is as antithetical
    to an accuseds interest in a fair trial as it is to the publics interest in
    uncovering the truth:
Grant
, at para. 81. The importance of the
    evidence to the Crowns case is another significant factor that warrants
    consideration under this line of inquiry:
Grant
, at para. 83.

[62]

A
    final point concerns the scope of review of decisions under s. 24(2).  Absent
    palpable and overriding error, we owe deference to the trial judges underlying
    findings of fact. On the other hand, where we reach a different conclusion
    about the nature and extent of the breach itself, we owe no deference to the
    trial judges conclusion under s. 24(2):
Grant
, at para. 129.

The Principles Applied

[63]

An
    assessment of the merits of this ground of appeal is hampered significantly by
    the procedural course followed by trial counsel and the threadbare record that
    resulted.

[64]

Evidence
    about the shoes P.C. Van Dyke saw, examined, and seized from the appellants verandah/mudroom
    within hours of the discovery of the burglary was important to proving the
    appellant was the burglar who broke into the Rosicki apartment. The Crown
    sought to link the shoes to the appellant by evidence of their location and the
    appellants admission of ownership. The Crown sought to establish the
    connection between the shoes, thus the appellant, and the burglary, by coupling
    the dog feces observed in the Rosicki apartment with the material adhering to
    the soles of the shoes found at the appellants home. P.C. Van Dykes evidence was
    relied on to establish this nexus.

[65]

The
    interaction between P.C. Van Dyke and the appellant at the door to, and later
    within, the enclosed verandah/mudroom of the appellants home resulted in the
    accumulation of several items of evidence of significance to the Crowns case.
    But the interaction, hence the evidence obtained as a result, also engaged
Charter
-protected
    interests of the appellant and thus was ripe for challenge.

[66]

Trial
    counsel for the appellant filed no written materials challenging the
    admissibility of any part of the evidence of P.C. Van Dyke. As a consequence,
    neither the trial judge nor Crown counsel received advance notice of the
    precise nature of any allegation of constitutional impropriety. To be fair,
    however, it would have been apparent to counsel from disclosure, and to the
    trial judge as the evidence began to develop, that to the extent anything P.C.
    Van Dyke did amounted to a search or seizure, the officers conduct was not
    authorized by warrant.

[67]

In
    a commendable attempt to expedite trial proceedings, counsel agreed that

i.

the seizure of the shoes from the appellants verandah/mudroom was
    unlawful; and

ii.

the shoes were
not
admissible as evidence.

Unfortunately, counsel did not describe the factual
    premise on which their agreement rested.

[68]

Counsel
    were not in agreement about the admissibility of the remainder of P.C. Van
    Dykes evidence, in particular his observations, by sight and smell, of the
    material adhering to the shoes. No formal
voir dire
was conducted to
    determine the admissibility of the balance of P.C. Van Dykes evidence. In the
    result, few questions were asked of P.C. Van Dyke on issues of importance to the
    assessment of the nature and scope of any constitutional infringement and the
    admissibility of the evidence of his observations.

[69]

The
    trial judge made no express findings of fact about the nature and extent of any
    unconstitutional conduct on the part of P.C. Van Dyke in attending at the
    appellants door, entering the verandah/mudroom, or making observations about
    the material adhering to the shoes.

[70]

Implicit
    from the trial judges consideration of s. 24(2) of the
Charter
in
    connection with the evidence of P.C. Van Dyke about his see and smell
    observations of the appellants shoes is a finding that the observations were
    made in breach of s. 8 of the
Charter
. I agree that these observations
    offended s. 8, but find it necessary to take a closer look at the nature
    and extent of the infringement in order to reach a conclusion about the
    correctness of the trial judges decision to admit the observations as evidence
    under s. 24(2).

The Infringement Issue

[71]

The
    interaction between P.C. Van Dyke and the appellant began when the appellant
    responded to the officers knock on the door of her enclosed verandah/mudroom.

[72]

Like
    other members of the public, P.C. Van Dyke had an implied invitation to knock
    at the door of the appellants home. The purpose of this implied invitation to
    knock is to facilitate communication between the public, in this case the
    occupant, the appellant, and the police, P.C. Van Dyke:
Evans
, at
    paras. 13 and 15. The appellant waived the privacy interest she otherwise had
    in the approach to the door of her home:
Evans
, at para. 13.

[73]

P.C.
    Van Dyke considered the appellant a person of interest in his investigation.
    He had been told about the appellants two unlawful entries to the same
    apartment on the two days immediately preceding the burglary, and about how
    entries had been made. The officer acknowledged that he lacked reasonable and
    probable grounds to arrest the appellant. It is a reasonable inference,
    however, from the questions he asked and the actions he took, that P.C. Van
    Dyke approached the home in the hope of obtaining evidence linking the
    appellant to the burglary. In doing so, P.C. Van Dyke exceeded the bounds of
    the implied invitation and engaged in a
search
of the appellants
    home:
Evans
, at para. 18.

[74]

After
    a brief conversation at the threshold of the enclosed verandah/mudroom, P.C.
    Van Dyke stepped into the room. He said that he had an implied invitation to
    enter. He could not specifically recall anything the appellant said about
    entering, except that she offered no objection. The trial judge appears to have
    made a finding of implied invitation or waiver on the basis of this evidence. 
    It is difficult to see how the evidence can support a conclusion that the
    appellant had an adequate informational basis upon which she could truly
    relinquish her right to privacy:
Borden
, at p. 162;
Wills
, at
    p. 355.

[75]

The
    officer could see something adhering to the bottom of the shoes that the
    appellant had admitted, then denied ownership of. He picked up the shoes,
    looked at them, smelled them, and concluded that the adherent material was dog
    feces.  The officers conduct involved both a search and a seizure.

[76]

The
    officers conduct in what amounted to a search and seizure was not carried out
    in accordance with a warrant. The warrantless nature of the search and seizure
    shifted the onus to the Crown to establish a lawful basis for the activity. The
    appellant gave no valid consent.  Nor could the plain view doctrine
    legitimatize the activity because, among other things, the officer was not
    lawfully in the premises.

[77]

The
    conduct of P.C. Van Dyke that amounted to a search or seizure, in particular,
    his observations of and about the material adhering to the appellants shoes,
    breached the appellants rights under s. 8 of the
Charter
.

The Analysis Under s. 24(2)

[78]

The
    trial judges decision to admit the evidence of P.C. Van Dykes observations of
    the shoes under s. 24(2) of the
Charter
included two critical
    findings:

i.

that P.C. Van Dyke was invited into the verandah/mudroom where he saw,
    seized and smelled the shoes; and

ii.

that the evidence of P.C. Van Dyke that the adherent material was dog
    feces was reliable evidence.

Neither finding rests on a firm evidentiary footing.
    Each is flawed by either or both a misapprehension of material evidence or an
    unreasonable assessment of that same evidence. In the result, the trial judges
    conclusion under s. 24(2) is not entitled to the usual deference and must be
    re-opened here. On re-opening, however, I have come to the same conclusion as
    did the trial judge.

[79]

It
    is beyond controversy that an invitation to enter premises or other locations
    may be expressed or implied:
Clarke
, at para. 28. Whether an
    invitation to enter will be implied requires consideration of all the
    circumstances including the words and conduct of the invitor. Where the alleged
    invitee is a police officer pursuing an investigation, we must also be mindful
    that acquiescence or compliance, in short, a failure to object, is not
    synonymous with an invitation to enter any more than it is an equivalent of
    consent:
Wills
, at p. 348.

[80]

In
    this case, P.C. Van Dyke could recall nothing that the appellant said or did
    that led him to the conclusion that he had an implied invitation to enter
    beyond the doorway to the verandah/mudroom. The entry was warrantless, thus it
    fell to the Crown to establish that the search was reasonable.  P.C. Van Dykes
    unadorned statement, that he had an implied invitation, falls short of what
    is required.

[81]

The
    trial judge considered the evidence of P.C. Van Dykes observations reliable.
    The officer described the adherent material as dog feces. He based his
    conclusion on sight and smell. He did not attempt any comparison between the
    dog feces he had seen at the Rosicki apartment and the material adhering to the
    appellants shoes. Reasonable people may differ about the need for expertise to
    describe the origin of feces, but most would acknowledge that the officer could
    testify about the similarities, texture and smell, between the different
    deposits. To the extent that the trial judge found the evidence of P.C. Van
    Dyke established that the adherent material was 
the
feces, he
    overstated the effect of that evidence.

[82]

These
    findings formed part of the trial judges analysis under s. 24(2).  Each is
    erroneous and requires a re-evaluation of the decision.

[83]

An
    assessment of the seriousness of the breach must take cognizance of the initial
    breach that occurred when P.C. Van Dyke approached the appellants home for the
    purpose of gathering evidence, as well as the subsequent seizure and search of
    the shoes. That said, the entire course of conduct comprised a single
    transaction. It was brief, and involved an area of the premises outside the
    main living area that was visible from the entrance. The appellant acquiesced
    in the officers conduct and later invited him into the interior of her home so
    he could see for himself that the stolen television was not there.

[84]

There
    was no evidence at trial to demonstrate that what occurred here reflected a
    systemic disregard for
Charter
values by P.C. Van Dyke or the police
    force of which he was a member. Nothing warrants a finding other than that the
    officer was acting in good faith.

[85]

The
    first line of inquiry under
Grant
favours admissibility.

[86]

The
    trial judge considered that the impact of the breach on the
Charter
-protected
    interests of the appellant was minimal. I agree.

[87]

In
    this case, the breaches involved a single
Charter
-protected interest:
    the right to be secure against unreasonable search and seizure. Of the privacy
    interests protected by the guarantee in s. 8, the investigative conduct
    implicated both territorial and informational privacy.

[88]

The
    incursion into territorial privacy involved the appellants home, a place
    accorded the highest expectation of privacy:
R. v. Feeney
, [1997] 2
    S.C.R. 13, at para. 43. But the degree of expectation of privacy in the home
    and its precincts is not a constant:
R. v. Grant
, [1993] 3 S.C.R. 223,
    at pp. 237 and 241. The area involved here was a covered verandah/mudroom, not
    the main living area of the residence. Entrance to the verandah/mudroom was by
    a door, the same door that all members of the public had a licence to approach
    and knock. The shoes were visible from the doorway. The conduct required to
    examine the shoes involved a step or two, picking up the shoes, looking at
    them, and smelling the adherent material.

[89]

The
    invasion of informational privacy has to do with the observations of the
    material adhering to the appellants shoes. The observations were made by P.C.
    Van Dyke with his unaided senses of sight and smell. The shoes were in plain
    sight on the floor of the verandah/mudroom. The information obtained, that the
    appellant (or someone else), wearing the shoes, had stepped in feces, reveals
    little about the intimate details of her lifestyle and personal choices and
    nothing more than a passerby could infer from a casual meeting on a street
    corner.

[90]

The
    appellant did not testify on her application to exclude the evidence of P.C.
    Van Dykes observations of the shoes. Yet we may gain some sense of her
    impression of the impact of the officers unconstitutional behaviour on her
Charter
-protected
    interests by her response to the officers query about the location of the
    stolen television: she invited him into the main living area of the house to
    satisfy himself that the television wasnt there.

[91]

The
    final line of inquiry under
Grant
requires a consideration of the
    impact of exclusion on societys interest in having criminal cases tried on
    their merits.

[92]

The
    evidence of P.C. Van Dykes observations about the material adhering to the
    appellants shoes was relevant to the single controversial issue on the break
    and entry count: the identity of the burglar. This circumstantial evidence
    provided a link between the appellant, the admitted owner of the shoes, and the
    burgled premises, a link with a close temporal connection to the burglary. Yet
    it was not the only, or even the most, cogent evidence linking the appellant to
    the burglary, thus of surpassing importance in the Crowns attempt to establish
    the appellants guilt. The appellant had twice entered the Rosicki apartment
    within 48 hours of the burglary. Both entries were unlawful, and at least one,
    and probably both, had been by the same means used by the burglar. The
    appellant lived nearby.  She was on the hunt for drugs.

[93]

The
    infringement in this case did not render the evidence of P.C. Van Dykes
    observations unreliable, as may be the case for example with breaches of s.
    10(b) of the
Charter
. On the other hand, the evidence lacked cogency
    because of the conclusory language in which it was expressed.

[94]

On
    balance, I regard this case as one that falls close to the line. Despite the
    errors in assessing the nature and extent of the
Charter
infringement,
    I reach the same conclusion as the trial judge concerning the admissibility of
    P.C. Van Dykes observations of the material adhering to the appellants shoes.

[95]

I
    would not give effect to this ground of appeal.

Ground #3: Misapprehension of the Presumption in s. 349(2)

[96]

The
    final ground of appeal relates only to the counts of unlawful entry of the
    Rosicki apartment with intent to commit an indictable offence.

[97]

Section
    349(2) of the
Criminal Code
enacts a statutory presumption of intent.
    Where evidence is introduced that a person unlawfully entered or was unlawfully
    present in premises, the subsection requires the trier of fact to presume,
    absent evidence to the contrary, that the intruder was there to commit an
    indictable offence. In other words, from evidence of the
actus reus
,
    the trier of fact presumes the
mens rea
, absent evidence to the
    contrary.

[98]

To
    assess the merits of this ground of appeal, a brief reference to the
    circumstances of each entry and the trial judges application of the
    presumption are essential.

The First Entry

[99]

The
    appellant entered the Rosicki apartment on November 6, 2009 through the balcony
    door. Ms. Rosicki was watching television. The appellant simply appeared in the
    living room. She appeared to have been partying all night and wanted to
    continue. Ms. Rosicki wanted no part of any such activity and told the
    appellant to leave. The appellant left, unhappily.

The Second Entry

[100]

The appellant
    next appeared in Ms. Rosickis bedroom around 4:00 p.m. on November 8, 2009.
    She asked Ms. Rosicki for drugs, a ten piece of crack cocaine. Ms. Rosicki
    refused the request and Tyler Rosicki escorted the appellant out of the
    apartment when his mothers request for the appellant to leave proved
    unavailing.

The Reasons of the Trial Judge

[101]

The trial judge
    made brief reference to the presumption, then summarized the evidence about the
    interactions between the appellant and Ms. Rosicki. He pointed out that to
    amount to evidence to the contrary within s. 349(2), evidence must not be
    disbelieved and must tend to negative the intent presumed by the subsection. 
    He concluded:

There is nothing about either of those incidents that would
    cause the court to doubt the intent of her entry especially when the break,
    enter and theft occurred the same night as the Sunday afternoon entry by the
    accused. The accused did not testify. There is no other evidence to suggest the
    intent was otherwise. The presumption stands and the court is satisfied beyond
    a reasonable doubt that counts 2 and 3 have been proven.

The Arguments on Appeal

[102]

For the
    appellant, Ms. Lumba acknowledges the applicability of the presumption of s. 349(2)
    to both unlawful entry counts. She concedes, as well, that the appellants
    failure to testify left the trial judge with no direct evidence of the
    appellants state of mind at the time of her unlawful entries.

[103]

However, Ms.
    Lumba submits that the trial judge erred in failing to find that there was
    evidence to the contrary on both counts of unlawful entry with intent. The judge
    misapprehended the evidence in connection with the first entry, rejecting it at
    least in part because he thought the entry occurred in the middle of the
    night. He also failed to consider that the principals knew each other from
    Cocaine Anonymous, had met earlier that day, and had chatted briefly at the
    corner store.  They may have discussed the money Ms. Rosicki owed the appellant
    for a bicycle the appellant had sold her several months earlier. The second
    entry occurred during the daylight hours, around 4:00 p.m. The appellant wanted
    to get some crack from Ms. Rosicki and hang out in the apartment with Ms.
    Rosicki, a recovering crack addict. Considered in its entirety, this evidence
    rebutted the presumption.

[104]

For the
    respondent, Mr. Perfetto recognizes that there was evidence adduced at trial
    that, if not disbelieved by the trial judge, could have amounted to evidence
    to the contrary. He contends, however, that in deciding whether to accept or
    reject this evidence to the contrary, the trial judge was required to
    consider the evidence as a whole, not the evidence to the contrary in
    isolation.  The trial judge rejected what was put forward as evidence to the
    contrary because he found, on the whole of the evidence, that the appellant
    was the person who broke into the apartment and stole the television on the
    evening/morning immediately following the two unlawful entries . The finding on
    the break and enter with intent count was untainted by any reference to the
    presumption of s. 349(2), which was inapplicable to that charge, and capable of
    rebutting the evidence to the contrary relied upon by the appellant.

The Governing Principles

[105]

The presumption
    in s. 349(2) applies only to prosecutions for the offences of s. 349(1) and
    helps the Crown prove the requisite fault element, the intent to commit an
    indictable offence in the premises unlawfully entered. For the purposes of the
    subsection, evidence to the contrary is evidence, which may emerge from the
    Crowns case or be adduced as part of the defence case, that is not disbelieved
    by the trier of fact and tends to negate the accuseds intention to commit an
    indictable offence in the premises:
R. v. Nagy
(1988), 45 C.C.C. (3d)
    350 (Ont. C.A.), at p. 356;
R. v. Proudlock
, [1979] 1 S.C.R. 525, at
    p. 542.

[106]

In prosecutions
    to which s. 349(2) applies and in which evidence to the contrary is given,
    the trial judge is required to consider that evidence, along with the rest of
    the evidence adduced at trial, in determining whether Crown counsel has proven
    the
mens rea
required for a conviction beyond a reasonable doubt:
R.
    v. Gosselin
(1988), 45 C.C.C. (3d) 568 (Ont. C.A.), at p. 572.

The Principles Applied

[107]

I would not give
    effect to this ground of appeal.

[108]

To rebut the
    presumption of unlawful intent in s. 349(2), evidence to the contrary must
    tend to show that the intruder or occupier had no intention of committing a
    crime in the premises.  As with any evidence adduced at trial, it is for the
    presiding judge to assess this evidence, to determine whether she or he
    believes all, some or none of it. If the evidence to the contrary is neither
    rejected nor disbelieved, it falls to the Crown to prove the existence of the
    relevant intent beyond a reasonable doubt on the evidence taken as a whole:
Nagy
,
    at pp. 356-357.

[109]

It is common
    ground that there was evidence in the Crowns case at trial that was capable of
    amounting to evidence to the contrary within s. 349(2).

[110]

The trial judge
    rejected the evidence to the contrary because he was satisfied beyond a
    reasonable doubt that the appellant was the burglar who broke into the Rosicki
    apartment in the early hours of November 9, 2009 and stole the large flat
    screen television that had been in the living room. In other words, the trial
    judge used circumstantial evidence of subsequent conduct as a basis upon which
    to infer a prior state of mind. This is nothing new.  A similar chain of
    reasoning, involving the retrospectant use of circumstantial evidence of later
    conduct as a basis to discredit a defence involving an accuseds state of mind,
    is invoked in cases where evidence of post-offence conduct has been adduced: see
R. v. Jaw
, 2009 SCC 42, [2009], 3 S.C.R. 26, at para. 25.

[111]

The rejection of
    the evidence to the contrary left the presumption of unlawful intent intact and
    the Crowns case unanswered.

[112]

This ground of
    appeal fails.

conclusion

[113]

For these
    reasons, I would dismiss the appeal.

Released: June 6, 2012 DW                                 David
    Watt J.A.

I
    agree, Winkler C.J.O.

I
    agree, S. Lang J.A.


