COURT OF APPEAL FOR ONTARIO
Feldman, Gillese and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Stephen Foreman
Appellant
Mark Halfyard and Breana Vandebeek, for the appellant
Jeremy Streeter, for the respondent
Heard: December 2, 2015
On appeal from the convictions entered on March 19, 2013, by Justice Mary Lou Benotto of the Superior Court of Justice, sitting without a jury.
OVERVIEW
1Stephen Foreman (the “appellant”) was charged with drug and firearms offences. The charges arose from items seized by the police from the apartment of which he was the sole occupant. He was convicted of the offences of possession of cocaine and marijuana for the purpose of trafficking but acquitted of the firearms offences.
2He appeals against conviction. His appeal hinges upon the decision of the application judge, under s. 24(2) of the Charter, to admit into evidence the firearms, drugs and money that the police located in his apartment.1
3The application judge correctly articulated the Grant2 test, considered the proper factors, and made no unreasonable findings. Consequently, her decision to admit the evidence is entitled to considerable deference: R. v. Ansari, 2015 ONCA 575, at para. 72. I would dismiss the appeal.
BACKGROUND
The Facts in Brief
4On May 5, 2009, at approximately 5:30 p.m., the police received a 911 call. The caller was a woman who lived in an apartment building. She reported that she had seen two suspicious-looking males going from unit to unit, checking the doors.
5Two police officers were dispatched to respond to the “high risk” 911 call. They had attended at the apartment building in the days leading up to the 911 call. In the preceding month or two, there had been approximately four break and enters in the building.
6The officers arrived at the apartment complex at approximately 5:36 p.m. They first searched floors 3 and 19, the floors on which the males were said to have been seen. After finding nothing of significance, they decided to check the building, floor by floor, beginning on the top floor. They found nothing of concern on the top floor so descended to the floor below. There they saw an apartment with its door completely smashed in and off its hinges. The paneling was ripped off from where the door attached to the hinges. The deadbolt lock was still engaged in the locked position.
7The officers advised dispatch of the break-in at 5:40 p.m. After listening for noises from the apartment, they announced their presence and entered it. They cleared the apartment, looking for victims and suspects, but found no one. They decided to locate the occupant to let him or her know that the apartment had been broken into. To get the information necessary to find the occupant, one officer decided to look into the kitchen drawers. He thought it was common for people to have a “junk drawer” in the kitchen that would contain identifying information or documents such as mail, personal papers or medication. He opened a kitchen drawer but found only some utensils. He opened a second drawer and found a gun, drugs, and money.
8At that point, the officer notified his supervisor. Other officers arrived very quickly. The apartment was secured and a search warrant obtained. The search turned up another gun, ammunition, a bulletproof vest, more drugs, and more money.
9The appellant was arrested and charged with drug and firearms offences.
10The appellant alleged a violation of his s. 8 Charter rights and brought an application to exclude the evidence under s. 24(2).
The Application Judge’s Decision to Admit
11The application judge found that the police entry into the apartment was justified but that the act of searching the two kitchen drawers was an unreasonable search and a breach of the appellant’s s. 8 rights.
12The application judge then correctly articulated the test for exclusion of evidence under s. 24(2), as laid out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. She referred to the three branches of the test:
the seriousness of the Charter-infringing state conduct;
the impact on the Charter-protected interests of the accused; and
society’s interest in an adjudication of the case on its merits.
13On the first branch of the Grant test, the application judge found the Charter-infringing state conduct to be serious, but not egregious. She made the following findings in reaching this determination.
14The application judge found that the officers had not acted with deliberate intent to ignore the appellant’s constitutional rights. She described the breach as neither flagrant nor abusive and the officers’ conduct as neither egregious nor a deliberate abuse of power. She concluded that the officer was not acting in bad faith when he searched the two kitchen drawers. Rather, his conduct was motivated by a desire to find tenant information so that the tenant could be notified of the break-in.
15The application judge found that the officers were not aware of their obligations under the relevant police protocol. The protocol provides that when premises are found insecure, among other things, the officer should attempt to locate a person in charge of the building, such as security personnel or the superintendent.
16The officers testified that they did not want to split up, with one staying at the apartment while the other attempted to find a building superintendent. The application judge accepted this as reasonable. She also accepted their evidence that they: did not know whether there was a building superintendent on site at the time; did not know how long it would take to find the building superintendent, if there was one; and, had concerns that the superintendent’s records might not be current.
17The application judge described the state-infringing conduct in the following terms:
In the heat of the moment, responding to a 911 call in a building where there had been multiple break and enters, faced with a violent entry into an apartment and what appeared to be an aborted break and enter, they decided to search for tenant information in the kitchen, believing that personal papers, medications and other documents are often placed in a drawer in the kitchen. They did not search the bedroom and more private areas of the apartment. They did not search the computer. They did not turn the place upside down. They opened the kitchen drawer. As soon as they saw what was in the drawer, they notified their superior, secured the premises and proceeded to obtain a search warrant.
18The application judge referred to these findings and the impact of the breach on the appellant’s Charter–protected interests. She then noted the seriousness of the charges, the reliable nature of the evidence and the central role that the evidence played in the prosecution of the offences. After balancing the various considerations, the application judge concluded that the administration of justice would be best served by admission – not exclusion – of the evidence.
THE ISSUES
19The appellant raises two grounds of appeal. He submits that the application judge erred:
in finding that the officers’ conduct was an error in judgment and not bad faith; and
by conflating the first two branches of the Grant analysis.
20If the court finds that the application judge erred in her analysis, the appellant raises a third issue:
- in performing the requisite balancing under s. 24(2), ought this court to assess the seriousness of the offences taking into consideration that the appellant was acquitted of the firearms charges?
ANALYSIS
Did the application judge err in her assessment of the seriousness of the police misconduct?
21The appellant acknowledges that the police had the authority to enter his apartment under the doctrine of implied licence. However, he submits that the application judge erred in finding that the officer’s conduct was an error in judgment and not bad faith.
22I do not accept this submission.
23In the circumstances of this case, the seriousness of the police misconduct was the key issue before the application judge. Thus, her factual findings on the first branch were crucial. In my view, those findings are reasonable and well-grounded in the evidence.
24The application judge did not minimize the police misconduct. She critically reviewed the evidence and found that the officers’ conduct fell short in a number of ways: they were only vaguely familiar with the relevant police protocol; they were not aware of their obligations when dealing with premises that had been broken into; and, there were other lawful avenues which they could have used to determine the occupant’s identity.
25Nonetheless, the application judge did not find the officers’ misconduct to be egregious, flagrant or abusive. She rejected the defence submission that the search of the kitchen drawers was done to obtain evidence that the occupant was a drug dealer, knowing that they did not have sufficient evidence to obtain a search warrant. She accepted the officer’s testimony that his motive in opening the two kitchen drawers was to find information which would enable him to contact the occupant and advise of the break-in. She further found that the officers had not acted with a deliberate intent to ignore the appellant’s constitutional rights. In her words, their misguided response was made “[i]n the heat of the moment, responding to a 911 call in a building where there had been multiple break and enters,” and where there was obvious, violent entry into the appellant’s apartment.
26The application judge’s findings in relation to the police misconduct are reasonable and available on the evidence. They are entitled to “considerable deference”: Grant, at para. 86; Ansari, at para. 72.
Did the application judge conflate the first two branches of the Grant analysis?
27The appellant submits that the application judge conflated the analysis under the first two branches of the Grant test and failed to properly consider the impact of the state misconduct on his Charter-protected interests.
28I do not accept this submission.
29The application judge correctly set out the Grant test for the exclusion of evidence and identified the three lines of inquiry. I acknowledge that her reasons do not fit perfectly under the three lines of inquiry. When read as a whole, however, it is clear that she considered not only the officers’ misconduct but also the impact of that conduct on the appellant’s Charter-protected interests, and society’s interest in an adjudication on the merits.
30When the application judge set out the three branches of the Grant test, she stated that the second branch required her to assess the impact of the state misconduct on the appellant’s Charter-protected interests. She then stated that she had to determine to what extent the breach actually undermined those interests. Later in her reasons, in the paragraph following her conclusion that the officers were not acting in bad faith although the breach of the appellant’s rights was serious, the application judge begins with the words, “[a]s for the impact of the breach on the Charter-protected interests of the [appellant]”.
31I accept that thereafter, the application judge went on to discuss again the police misconduct. But I do not accept that this means that she impermissibly conflated the first and second branches of the Grant test or that she ignored the impact of the police misconduct on the appellant’s Charter- protected interests. Her further discussion of the police misconduct, in my view, was to indicate that the impact on the appellant’s Charter rights did not outweigh the competing considerations in the final balance.
32The application judge knew that the appellant was the sole occupant of the apartment and that he had a high privacy interest in it. In my view, she stated that the police acted lawfully in entering the apartment in order to make it clear that the appellant’s rights were not breached as a result of entry into his home. Rather, the breach consisted of the officer – who was lawfully in the premises – looking into the two kitchen drawers so that he could find information and locate the occupant to advise of the break-in. Her comments – albeit in the context of the first branch – that the search was limited and did not extend to more private areas of the apartment or to the appellant’s computer, also show her awareness and consideration of the impact on the appellant’s rights.
33While the application judge could have been clearer in her discussion of the second line of inquiry, she did not miss facts or misapprehend their significance. In conducting the final balancing, the application judge summarized why the evidence should be admitted, saying:
The search was not conducted in bad faith. While the breach was serious, the reliability of the evidence favours admissibility.
34Her conclusion elaborates on how she carefully balanced the factors in coming to her decision:
In conclusion, although the breach of the accused’s rights was serious, it stemmed from what seems to have been an error in judgment by police in a highly charged situation. Weighing all of the relevant interests, in the circumstances of this case, I conclude that this is not one of those cases where the evidentiary “fruits of the misconduct” should be excluded. On balance, the exclusion of evidence would provide a remedy that is out of proportion to the wrong.
35For these reasons, I would not give effect to the second ground of appeal.
Ought the Court to take the acquittals into consideration?
36The appellant says that if this court is persuaded that it ought to conduct its own s. 24(2) analysis, that analysis should take into consideration the appellant’s acquittals on the firearms charges. He says that a fresh consideration by this court puts it in a position akin to that which it is in when sentencing afresh. Thus, he maintains, the firearms offences are to be ignored, with the result that the seriousness of the offences is diminished.
37I do not accept this submission. In my view, if this court found it necessary to engage in its own s. 24(2) analysis, I would consider the firearms charges. Put another way, in my view, the appellant’s acquittals on the firearms charges would be irrelevant to a s. 24(2) analysis undertaken by this court. If appellate intervention were required in this case, this court would stand in the shoes of the application judge and should perform the analysis on the same basis as that of the application judge.
38The decision to admit evidence under s. 24(2) is not about securing convictions. It is the long-term repute of the justice system which is the focus of a s. 24(2) analysis. The application judge must consider the three lines of inquiry identified above to determine whether, on balance, admission or exclusion of the evidence obtained by a Charter breach would bring the administration of justice into disrepute: Grant, at paras. 84-85. Acquittals do not render the firearms charges less serious nor do they undermine society’s interest in an adjudication of charges on their merits. Either the evidence was admissible, based on a balancing of the Grant lines of inquiry, or it was not. An acquittal does not mean that the trial should not have taken place. That fact is irrelevant, even if it is this court that is deciding the s. 24(2) application.
DISPOSITION
39For these reasons, I would dismiss the appeal.
Released: December 14, 2014 (“K.F.”)
“E.E. Gillese J.A.”
“I agree. K. Feldman J.A.”
“I agree. David Watt J.A.”
Footnotes
- The ruling of the application judge, Justice Susan Himel, was made part of the trial record at the outset of the trial.
- R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
