Evidence of a police officer who sniffed out a thief who found herself in doo-doo was properly admitted at the trial that convicted her of stealing a flat-screen television, Ontario's top court ruled Wednesday.
In upholding the conviction against Surriff Atkinson, the court found the officer did not seriously breach her Charter rights when he picked up her shoes in her mudroom and smelled them.
Atkinson, it seems, had stepped in canine feces from an untrained puppy belonging to the victim's son on a darkened balcony in Kitchener, Ont., when she stole the TV from a living room in November 2009.
"No one awoke, not even the puppy," Justice Dave Watt wrote for the Ontario Court of Appeal.
"The burglar's 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."
Hours later, after noticing doggy-doo all over the apartment, Const. Steven van Dyke went to Atkinson's nearby home to investigate her as a "person of interest" based on information provided by the victim.
At the mudroom door, he spotted a pair of her black shoes on the floor with a "deposit" stuck to the soles and picked them up for a closer look.
"He thought the material resembled dog feces and lifted the shoes towards his nose to confirm his initial impression," Watt wrote.
"The smell confirmed the presence of feces."
Van Dyke's observations of the shoes were central to convicting Atkinson for the apartment burglary.
Lawyer wanted officer's evidence thrown out
On appeal, her lawyer argued the officer's evidence should have been thrown out as a breach of her Charter rights against an unreasonable search and seizure.
The Appeal Court agreed his conduct involved search and seizure without a warrant. It found the lower court judge had wrongly decided Van Dyke had been "invited" into the apartment, and the judge was wrong to conclude from the officer's evidence that the stuff on the shoes was the puppy's feces.
Nevertheless, the court concluded the shoes were visible from the entrance to the home, and that Atkinson did not object when the officer took a step or two forward to pick them up. She even invited him into her home so he could see the stolen television was not there.
"There was no evidence at trial to demonstrate that what occurred here reflected a systemic disregard for Charter values by ... Van Dyke," the court found.
"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."
The Appeal Court also noted that the circumstantial evidence of the puppy-doo on the shoes was only one link in convicting her given other evidence that Atkinson had earlier entered the victim's apartment twice within 48 hours of the burglary looking for drugs.