Court Information
Ontario Court of Justice
Her Majesty the Queen v. Kresimir Bajich and Elizabeth Williams
Reasons for Judgment
Before: The Honourable Madam Justice B. Brown Date: August 15, 2012 Location: Toronto, Ontario – Courtroom 122a
Appearances
- I. Bell, Esq. – Counsel for the Crown
- J. Stilman, Esq. – Counsel for Bajich
- L. Rose, Esq. – Counsel for Williams
Judgment
Background
Mr. Kresimir Bajich and Ms. Elizabeth Williams are spouses of each other and at the relevant time were residing together at P[…] Avenue in Scarborough. They were both charged with offences in relation to the discovery of a grow operation of marijuana in their residence which was discovered during the arrival and presence of police officers at their residence on February 14th, 2010.
Charges
They were both charged with:
- Unlawful production of a controlled substance (marijuana)
- Possession of marijuana for the purpose of trafficking
Police had attended at their residence on that date in response to a 911 phone call which had been placed in relation to a shooting outside their residence at approximately 5:30 p.m. that day. As it turned out, Mr. Bajich had been shot in the stomach and was subsequently taken by ambulance and police to the hospital in an emergency run. A short time later, Ms. Williams left the residence to go to the hospital to be with her husband. Shortly thereafter, as police walked around their residence to do a check for evidence or people, they discovered in the basement area a marijuana grow operation. They stopped looking at that point and remained at the residence pending the obtaining of a CDSA search warrant which was subsequently obtained. Police returned to the residence and then did a more comprehensive search.
Defence Position
Prior to the trial the Defence brought an application pursuant to section 8 of the Charter requesting the exclusion of the drug evidence arguing that there had been a breach arising from the search of the residence prior to the obtaining of the CDSA search warrant. The trial was conducted as a blended Voir Dire. In addition, the Defence has argued on the ultimate issue, in relation to the charge of possession for the purpose of trafficking of marijuana, that although the parties were in possession of the marijuana, it was not possessed for the purpose of trafficking. The Defence does not contest the marijuana production count.
Uncontroverted Evidence
Initial Response to the Shooting
On February 14th, 2010, at approximately 5:30 p.m., a 911 call was placed with respect to a shooting in the vicinity of P[…] Avenue in Scarborough, the residence of both defendants. Emergency personnel and police responded to the call. The first officers arrived at approximately 5:37 p.m. It was dusk with some light outside at the time. The ambulance arrived after the first police officers. At the time of their arrival, Mr. Bajich was located inside the living room of his home. He had a gunshot wound to the abdomen. A short time after the police arrived, they arranged an emergency run for the ambulance to take Mr. Bajich to the hospital. His wife, Ms. Williams remained at the residence for a short time to answer questions and she then left the residence to go to the hospital to be with her husband.
Discovery of the Grow Operation
After both defendants left the residence and as other police officers went out in the neighbourhood to look for suspects in the shooting investigation, two officers inside the residence started to look around other floors and rooms in the residence. When they entered the basement area they looked into one room and discovered what appeared to be a marijuana grow operation.
Shortly thereafter, they stopped looking and took steps to obtain a CDSA search warrant in relation to the residence. The residence was secured awaiting the arrival of the search warrant. After the CDSA search warrant arrived, the officers discovered in the basement area of the home, a grow operation consisting of:
- 36 mature plants
- 1 mother plant
- Approximately 37 other small clone plants
It was a three stage grow operation with a mother plant stage, a clone stage and a budding flowering stage. The grow op was in one side of the basement area and it was divided into two rooms. In one area there was a mother plant and the clones. In the other area there were the remainder of the plants.
Details of the Grow Operation
The marijuana plants were weighed by the police whole, in a wet stage, including the leaf, stem and buds, and this totalled 5.36 kilograms. Only the bud is used and the leaves are used for hash oil. The most valuable part of the plants is the bud and it was not separately weighed. In a three stage operation, more marijuana is produced than in a two stage operation. There is a greater yield.
Cloning takes approximately two weeks. Vegetation takes approximately eight weeks and budding takes six weeks. In a two stage grow operation more crops are produced per year (six), versus only three crops per year for a three stage operation. Overall, this was considered to be a small grow operation.
Detective Duffus testified with respect to a hypothetical of a 36 plant budding stage and a 38 plant clone and one mother plant stage if all plants matured, which would be a two stage operation it would yield approximately 2.1 kilos. Each plant would produce in the range of one ounce of product.
The plants in this case were described as healthy plants. If this marijuana were sold, it would sell at the kilogram level based on $5,000 to $6,000 per kilo or in the range of $10,486 to $12,600. In his opinion, no user could consume that amount of marijuana within the time required. His opinion is that the largest grow one could consider for personal use was in the range of 10 to 15 plants in a two stage grow operation. In cross-examination he testified that in a two stage operation if there were 36 plants, this would produce one kilogram of product in eight weeks.
Expert Evidence on Consumption
Evidence was led by the Crown through Detective Richard Duffus who was permitted to give opinion evidence with respect to the aspect of possession for the purpose of trafficking. This witness testified that a casual user of marijuana would consume on a weekly basis one to three grams per day. A very heavy user was described to use three or four grams or more per day. Most users would consume within the range of one to three or two to three grams per day. Marijuana joints can be rolled in different sizes such that one could make two to six joints from each gram of marijuana. This witness did not offer an opinion as to how much a medical user of marijuana might consume per day.
Section 8 Charter Application
Information Known to Police
In order to properly consider the Charter application, it is important to bear in mind the information known to the police at various points in time. The initial 911 radio call was from a civilian in the area indicating he had heard one gunshot he believed to come from P[…] Avenue. He had also observed two males get into a grey coloured minivan. The two males were described as two males, black, in their twenties, running very quickly into the van and heading southbound towards Kingston Road.
Some information at some early point in time was that one suspect could have had the name "Ace." The information was that the male victim was conscious and breathing and inside the house, however, all of the information known to the police was that the shooting had occurred outside the home.
The information was also that the two suspects had left the scene of the shooting. There was evidence that the police generally liked to determine as quickly as possible upon arrival, if there are other victims or suspects on the scene.
First Officer on Scene
Upon the arrival of P.C. Katherine Wheeler, the first officer on the scene at 5:37 p.m., the civilian approached her and advised that the victim had been shot in the stomach and was inside P[…] Avenue. The civilian advised that the suspects had run eastbound across the front lawn on the south side of […]. This officer entered the residence and focused on the victim in the living room. The address was the residence of Mr. Bajich and his spouse, Ms. Williams.
P.C. Wheeler obtained information from the victim, Mr. Bajich, then put the information over the air to the Dispatcher. She was in the house for approximately three minutes before the ambulance came and she did not smell marijuana in the house.
Detective Constable Peterson's Arrival
Detective Constable Kris Peterson was working with P.C. Shawn Carter at the time that he received the "hot shot" high priority call to attend the address of the shooting. He recorded the information from the initial 911 call with the details noted above, together with the description that the two male parties had a skinny build. He also noted that the thought was that the shots had come from outside the house. Still while en route to the scene he received further information that one of the suspects was Ace, and he had left the scene in a brown minivan. He indicated en route to the scene, he had a number of concerns, including the safety of the officers on scene and for scene management, securing the scene and potential witnesses.
He arrived on the scene at approximately 5:40 p.m. Upon arrival he spoke with Sergeant Hayes, who was a supervisor on scene in charge of the officers. This officer agreed that his concerns were reduced somewhat when he heard that the suspects who had been on the scene had run away, although he indicated that there are always concerns. The ambulance was already on scene.
This officer was directed to go inside the house and make sure any potential witnesses were separated. He spoke with Elizabeth Williams. He saw P.C. Johnson speaking to a female who was not Ms. Williams. He saw P.C. Wheeler, who indicated that she was going to the hospital with the victim.
Statement from Ms. Williams
Detective Constable Peterson dealt with Ms. Elizabeth Williams. At this time Ms. Williams was in her kitchen and very concerned about her husband. He tried to console her. The officers on scene were in a holding pattern organizing an emergency run to take the victim, Mr. Bajich, by ambulance to the hospital in order to hold intersections for the ambulance to get to the hospital faster.
The utmost priority at this point in time was the life of Mr. Bajich. Neither Mr. Bajich nor Ms. Williams were suspects in any way at this time with respect to any offence. He took a written statement from Ms. Williams recorded in his notebook. The information obtained from Ms. Williams was then relayed to other officers on the scene.
In her statement to Detective Constable Peterson, which started at about 5:51 p.m., Ms. Williams indicated that her husband had been shot. She indicated she had woken up at about ten minutes before he was shot. She was putting away clothes and heard her husband yell, "I'll just be a second. I'll just be outside." Then she heard a crack, which she guessed was a gunshot. She ran down to look outside and Mr. Bajich said, "I think I've been shot." She asked, "Are you sure? What was that crack?" She did not see the blood but he was holding his stomach and he said, "I think it was a bb shot." Mr. Bajich then went inside the house.
Someone called 911. Mr. Bajich kept saying that he is okay. She was asked if she had seen who may have shot her husband and she replied she did see two black guys. She said she did not remember, she must have looked outside. She guessed they were two black guys. She said that was after the crack. She described them as tall and thin, winter jacket. She indicated she is nearsighted and does not wear her contacts. She saw them running, walking fast. She thought they were facing sideways as she saw them.
Ms. Williams was asked how these guys would be out with her husband and she said "Because he was buying a couple of joints. Obviously he was buying from them before." She explained she did not know he was going outside to buy from the guys. She was asked if he buys weed just from these guys and she said she did not know. She was asked what he calls these guys and she said "Ace." She was asked if Mr. Bajich owed them money and she indicated that when he was inside the house he said they had stolen money from him.
She has been married to Mr. Bajich for 14 years and had lived at the address for six years. She did not have any more information regarding Ace, and she indicated she thought her husband knew Ace from the neighbourhood, walking to the store or the park. She had no further information. He had no reason to believe she was any kind of suspect or involved in any criminal activity. She was being dealt with simply as a witness.
This officer conveyed this information over the radio and to Sergeant Hayes. She was taken to the hospital to see her husband by a relative and escorted by the police to the hospital. She left the house shortly before 6:43 p.m. Sergeant Hayes detailed Detective Constable Peterson to guard the scene. Sergeant Hayes had detailed the partner of Detective Constable Peterson to canvass the neighbourhood.
The Basement Search
Sergeant Hayes came back in the residence and told Detective Constable Peterson that they needed to check the residence for any further evidence of the shooting, and to reassure themselves that there were no further victims, that no one else had been injured. He elaborated that he believed that the shooting had occurred at the front door of the house, and he wanted to make sure that no one else was in the house before he left P.C. Peterson alone in the house. He did not believe that the residence had been searched yet. Sergeant Hayes described a cursory search to look for people as being one where the officers peek their heads in each room to ensure that no other persons were present. This would not involve going into cupboards or looking in drawers or storage areas, but it would be a very quick and brief search over all of the house.
At this point in time he viewed Mr. Bajich and Ms. Williams as the victims. They were not suspects and he was not looking for evidence that might incriminate them. He explained though, that the situation in his mind had changed slightly when he heard that it was a drug deal that had happened outside. However, he explained that he works in Scarborough and there are a lot of drug deals that happen all the time there. It would not be anything that was really unusual. He suspected though, that there was more to the story than probably what had been told to him. He had no interest in a marijuana investigation in relation to the purchase of a couple of joints, but rather was interested in the investigation of the shooting.
Sergeant Hayes was going to do the search of the residence with Detective Constable Peterson, two officers conducting the search for reasons of officer safety. Sergeant Hayes had also indicated that it was not advisable to leave an officer alone on the scene without having checked out all of the house where the officer would be left alone and there might be a potential concern that suspects might be in his presence.
In addition to the main floor of the residence, which contained the living room where the victim had been located, there was also an upper floor with bedrooms and a basement floor. There was a circular staircase leading upstairs. The officer could not remember if they went upstairs or downstairs first in their search of the balance of the house. Clearly, there was nothing of interest on the upper floor of the house or the main floor of the house.
The Marijuana Odour
Both Sergeant Hayes and Detective Constable Peterson went down into the basement of the home. They could not recall which officer had gone down first. It is important for this Court to note that in the testimony of Sergeant Jeremy Hayes as he was at the top of the stairs and heading down towards the basement, he could smell the odour of marijuana. This occurred right at the top of the staircase going down the first couple of stairs. It is important to note because at that point in time he could be fixed with the further knowledge and information that there might be marijuana in the basement. And I underline the word "might".
And as the Court will note elsewhere in the Reasons, he should have addressed in his mind whether he should have continued to go down those stairs. The officers did not have a search warrant to conduct a search of the full house.
The Court asks rhetorically, if upon gaining this information from smell, the officers should have stopped what they had initiated as a cursory search for other victims or evidence as to the shooting and considered whether they should instead contemplate getting a search warrant if they wanted to do a search of the full residence.
The Court notes as well that this basement was some distance from the location of the victim in the living room of the residence, and in a residence where there had been no shooting. As indicated above, the information was that the shooting had taken place outside the residence and the suspects had fled from that location into a vehicle.
In cross-examination, this officer testified that when he arrived at the bottom of the stairs into the basement he could feel an increase in temperature of about ten degrees and that it was humid. When asked if he knew at this point before opening any doors or coverings over doors in the basement into what was later discovered as the grow operation, that he knew there was a possibility that there was a grow-op in the basement of the residence. He responded. When asked at this point if he should have called it in and obtained a search warrant before going further, he simply responded that was his view after he had opened the door and actually looked at the grow operation. The Court would note that the evidence on this point is somewhat nonsensical.
Entry into the Grow Operation Room
In this area at the bottom of the stairs leading into the basement, there was a doorway to the left at the bottom of the stairs. The two officers opened the door. As soon as the door was open, Detective Constable Peterson could feel an immediate humidity and the intense smell of marijuana, and the fresh wet potting soil, which smelled like a greenhouse.
At the doorway, when the door was opened, Detective Constable Peterson could see a very bright light in moving through foam pieces blocking the doorway into where the marijuana was being grown. The foam pieces were blocking the entranceway. On the left side were clippings and fertilizer and potting materials. The officers removed the foam pieces.
At this point, even though they were still looking for evidence in relation to the shooting to make sure that there was nothing else in the house that would harm the officers or any further victim, Detective Constable Peterson said he believed they had grounds to believe there was a marijuana grow operation in that area of the house. After the foam pieces had been removed, Detective Constable Peterson saw many marijuana plants being grown under a very bright light.
At this point in time the officers had only been in the basement for a short time, perhaps a minute. They continued to search the basement for possible victims and evidence in relation to the shooting. No victims or evidence with respect to the shooting were found in the basement. The hidden room where the marijuana plants were found growing under the lights was located at 6:43 p.m. The search ended at that point at approximately 6:50 p.m.
Timeline and Context
At the time of the search the information conveyed to the police was that the shooting had occurred outside arising from the account of Ms. Williams. All of the information given to the police was consistent in that there had been one shot fired at Mr. Bajich outside the residence, that footprints led from that location to where a witness had seen the two suspects leave the scene shortly after. It did not appear that any buildings outside the residence such as an outside shed were searched for suspects or evidence related to the shooting.
Sergeant Hayes agreed that the police could have asked Ms. Williams for permission to search the house for the purpose sought before she left the house to join her husband in the hospital. He responded that he did not think of this at the time she was in the house.
Detective Constable Peterson testified the search was to reassure that there was no information as to whether there were any further victims, but to reassure that no one's life was in danger. He explained that an investigation can have many surprises. There could be someone hiding that they had not been told about, there could have been bloody clothing, a shell casing.
When asked to explain why they wanted to look for additional potential victims, he explained that just because they were not told of other victims did not mean that there were not other victims.
Subsequent Investigation
After the search, Detective Constable Peterson was to remain on the scene. Then forensic identification was to arrive and fingerprint, photograph, take DNA and so on, for the shooting investigation. The plan was that Sergeant Hayes would leave the scene to attend to his other duties.
After the search Sergeant Hayes was there for some time, then left the residence. At some point Detective Constable Peterson's partner, Officer Carter returned. The FIS, which is Forensic Identification Services arrived at approximately 7:20 p.m. They did not go to the basement. The Drug Squad arrived with the CDSA search warrant at approximately 11:20 p.m. A video was taken of the residence and put in evidence.
Analysis
Section 8 Search and Seizure Application
The Crown has argued that the common law police duty to preserve life can justify a warrantless search of a residence to ensure public safety and officer safety. The problem with this Crown argument is that the powers are limited to the original purpose of entry in the residence. In this case it appears that issues related to public safety had subsided before the time of the search at approximately 6:43 p.m. Initially, the Crown had advanced an argument that the police had a concern that there might be another injured party in the house.
The Defence aggressively cross-examined the officers as to why they would not have taken steps to search the house over the one hour on scene for potential shooting victims who might be shot and suffering from potentially fatal injuries. Subsequently, the Crown seemed to resile from that argument.
The second potential argument as to officer safety is also not that compelling, given the length of time which was approximately one hour that people, including police and emergency personnel had been inside the home attending to their duties without looking for any potential shooters. This speaks to the concern if there was any, as to safety arising from whether suspects or potential victims (this has been earlier argued), might be in the basement or upper levels of the home.
The Court specifically makes a finding of fact arising from the evidence that there was no genuine concern for officer safety arising from a potential shooting suspect hiding in the basement or upper levels of the home. And this does not bode well for this Crown argument to support the lawfulness or reasonableness of the search without warrant of the basement of the home.
Implied Invitation Argument
The Crown also relies upon the implied invitation of permitting police entry in relation to the police call to deal with the immediate aftermath of the shooting. While the first 911 call appears to have been made by someone in the neighbourhood, the Court does find that subsequently, the defendants had requested 911 assistance by way of a later phone call. In this case, the police attended and were present inside the residence, which was the location of the shooting victim, Mr. Bajich. They arrived to investigate the crime against him.
Such an implied invitation can be withdrawn, but that did not happen in this case. The Crown has argued that such an implied invitation can be extended to authorize the continued police presence for purposes reasonably incidental to conducting the investigation.
The Court would find that the Crown is also implicitly arguing that this implied invitation can also extend to other areas of the residence, depending on whether or not those areas and searching those areas would be reasonably incidental to conducting the investigation.
The problem in this case is that there is no factual basis to support this argument as it might relate to a delayed search of the basement more than one hour after the shooting, which occurred outside the home, and after the time when the suspects were seen leaving from scene outside the home to a vehicle, which had fled.
There is no indication that anything related to this shooting took place in the home or more particularly, the basement of the home. It is even more troubling to this Court when one considers the context of one officer, prior to the final entry into the basement rooms, who indicated he had smelled marijuana, prior to finally reaching the basement level. It was almost as if he had a hunch that there was marijuana of a sufficient type and/or quantity to give rise to the smell emanating from the basement, yet did not have sufficient grounds for a reasonable belief or a search warrant that might potentially be sought. He then proceeded with this action to check out this hunch with the other officer.
Officer Safety Justification
While the Court has some understanding of the Crown argument that the basement had to be searched for officer safety in order to leave a single officer on the scene to secure it prior to the arrival of identification officers to further investigate the shooting, there are serious concerns as to the impact of such legal authority as it might arise in many other similar cases.
If the Court were to accept this argument to justify searching an entire residence where a crime of violence had taken place nearby, or more particularly outside the residence, absent other grounds for the search, it would be akin to finding that the police have the right to search all of a residence which they enter in relation to the investigation of a criminal offence simply because an officer was required to remain alone to secure the scene.
This would be an extended and far-ranging power to search a private residence.
The context of a vehicle search for the purposes of doing an inventory comes to the Court's mind, where the vehicle is required to be towed and secured by the police while in their control.
However, this is not what took place in this case. It was a search of a personal home where there is a higher expectation of privacy. The Court simply cannot accept that the police have such a broad power to search as incidental to an initial implied invitation to enter where there is, for example, a 911 emergency call.
If this were the law, the Court finds that members of the public might decline to call 911 for emergency assistance in the event of an emergency where there had been a crime committed and there might be in a different area of a residence, evidence of another unrelated crime.
All in all, the Court finds that there was no need or basis to search the basement incidental to the purpose of the original entry. The Court finds that the search of the basement was not reasonably incidental to the shooting investigation.
Reference was also made to the potential scenario of seeking the consent of either resident of the home to search other floors in the home. That was not done in this case.
Conclusion on Section 8 Breach
Based on this Court's review of all of the evidence, the Court finds that the police were motivated by curiosity and simply wanted to have a look around. They had some information that drugs might be involved in the shooting as they had received a statement that the shooting had taken place in the midst of a drug deal in relation to marijuana.
One officer testified he thought there was more to the situation than Ms. Williams conveyed in her statement. However, the police had no legal basis to conduct a search of the basement. There were no reasonable and probable grounds to search the basement. It was an unlawful search.
The Court finds that had a search warrant been sought prior to the observations in the basement, it is unlikely that one would have been issued.
This case is to be contrasted with a case where a shooting might have occurred in the house or even where there was an evidentiary foundation that evidence in relation to the offence might be found in the basement. That would potentially extend the ambit or parameters geographically of the area potentially covered as reasonably incidental to the entry to investigate the offence. That was not the case in the case at bar.
Overall then, the Court finds that there was a breach of section 8 of the Charter, when the police descended into the basement without a search warrant and "stumbled upon" a marijuana grow operation.
Section 24(2) Charter Analysis
Following its earlier judgements the Supreme Court of Canada has, in R. v. Grant, 2009 SCC 32 and also in R. v. Harrison, 2009 SCC 34, re-stated the section 24(2) Charter test as a more flexible multi-factored approach. The Court has carefully reviewed these cases with particular emphasis on paragraphs 67 to 71 and 85 to 86 in Grant, and paragraphs 36 and 21 of Harrison.
1) Seriousness of State Infringing Conduct
In considering the first line of inquiry, which is the seriousness of the Charter infringing state conduct both generally and in the case at bar, the Supreme Court in Grant and Harrison, recognized a continuum of Charter infringing conduct from the minor, trivial, technical or product of an understandable mistake to willful or reckless disregard of Charter rights.
The analysis in Harrison picked up on the analysis of the Court of Appeal for Ontario in R. v. Catachuk, 2002:
"Police conduct can run the gamut from blameless conduct through negligent conduct to conduct demonstrating a blatant disregard for Charter rights … What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct."
As observed by the Supreme Court in Grant:
"The seriousness of the Charter infringing conduct is fact specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the Court implicitly condones such conduct undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the Court process."
As noted by Justice Hill in R. v. Fildan, 2009 O.J. No. 3604 at paragraph 46:
"The more severe or deliberate the unconstitutional departure, the greater the need for the Court's disassociation from the fruits of unlawful conduct. Otherwise, the failure to exclude evidence risks undermining ongoing public confidence and respect for the rule of law and the administration of justice."
In this line of analysis, the Court must consider whether more than one Charter right has been breached. In this case, section 8 of the Charter alone has been breached.
This was, however, a search within a private residence where the Court has found that there was absolutely no basis to search the basement of the residence. There were no reasonable and probable grounds to believe that evidence would be found there. And this Court has found that even if the search warrant had been sought on the information and facts as it existed prior to descending the stairs, it is doubtful that a search warrant would have been provided for the entire house.
This was purely a fishing expedition by the police to look around the house to see if they could find anything interesting. It is even more problematic when the Court considers the "sniff evidence" that one officer had smelled the odour of marijuana prior to completely descending into the basement and finding the marijuana grow operation.
The police had limited rights of access within the context of responding to a shooting of a person outside the house who was waiting for them in the living room of this house on the main floor. The victim allowed access to his home to deal with a 911 incident and assist in his transportation by ambulance to the hospital. There was no invitation or consent by either defendant to search the basement or other floors of the home.
Some of the information known to the police included a drug context of a shooting, as the victim had been purchasing marijuana when he was shot. In some ways this makes the Charter breach in this Court's mind more serious or egregious. As one officer stated, there seemed to be more to the shooting than had been told. The police seemed to have a hunch as to drugs being involved in this shooting.
This was a serious breach of section 8 of the Charter for the police to descend and enter the basement rooms. It is contrary to an accused's right to be free of unreasonable search and seizure, and this right was breached as the officers followed their noses as they were descending down the stairs to the rooms in the basement and the origin of the marijuana scent.
2) Impact of the Charter Protected Interests of the Accused
The second line of inquiry focuses on the impact on the Charter protected interests of the accused. As Justice Hill has noted in R. v. Fildan, the impact is examined from the perspective of the accused:
"The degree of intrusiveness of the unconstitutional action of government agents range from impact which might be described as fleeting, transient or technical, to profoundly intrusive. The more serious the incursion, the greater the case for exclusion in order to avoid the public perceiving individual Charter rights as merely second class or unimportant Constitutional protections, a state of affairs which would inevitably affect the repute of the administration of justice."
An accused has a very high expectation of privacy in relation to his or her residence. In this case, Mr. Bajich was shot outside his home and required police and medical assistance in a life threatening situation. The impact was great as the two parties required emergency assistance and implicitly would not expect to have their privacy interests abused by the police acting outside their legal authority while they remained in the residence after the defendants left.
Evidence has also been led in this case that following this investigation an application has been made by the Defence to grow and possess marijuana for medical purposes. There was, however, no such license in place at the time of this investigation.
3) Society's Interest in an Adjudication on the Merits
The third line of inquiry focuses on society's interests in an adjudication on the merits.
While the societal interest weighs in favour of the admissibility of the evidence, the Court must consider all of the circumstances and evidence touching upon the relevant issues. In this case there was a relatively small marijuana grow operation. The nature of this grow operation was not particularly dangerous in terms of its set-up and wiring. Evidence was led that subsequent to this investigation as noted, there has been an application made to permit the growing and possession of marijuana by Mr. Bajich for medical reasons beyond reasons simply related to having been a victim of the subject shooting and the continuing medical problems which Mr. Bajich continues to suffer over time.
Mr. Bajich was shot prior to the arrival of the police and has, of course survived. He fully cooperated with the police and gave evidence in the trial of the parties who shot him. A conviction resulted in relation to the shooting of Mr. Bajich.
The Court must consider the long-term repute of the administration of justice essential to the determination of section 24(2) of the Charter. In this case there was a marked and intrusive impact upon the defendants in this case. In relation to the entry of their home, the victims had sought the assistance of the police in relation to having been victims of a very serious and potentially life threatening crime against Mr. Bajich. There is no issue that Mr. Bajich was a bona fide victim in a shooting. The police, this Court finds, took advantage of the situation of the defendants' invitation to enter the home to investigate the shooting and then proceeded to conduct what this Court has found to be a fishing expedition.
In terms of long term repute, the Court is gravely concerned that it not uphold the system where the police act beyond their authority to respond to 911 emergency calls and investigations to do far ranging investigations in private residences, which are founded no more than on a hunch or a sniff in what this Court has been found to be a fishing expedition.
The potential long term repute of the administration of justice should it lead to a situation where victims of crime would not call for emergency assistance by dialling 911, if they were afraid that the police would abuse powers of search in responding to the call, could be very grave indeed and lead to needless situations where the failure to call 911 would result in needless deaths due to failure to obtain immediate assistance.
The Court is also mindful of the fact, although there is not specific evidence on this point, I am prepared to take judicial notice that a call for 911, even if solely made for emergency medical assistance for a shooting, would also engage police involvement to properly investigate the matter of the shooting. In other words, whether a potential victim wanted police assistance or not, the request to obtain an ambulance through the central emergency dispatch number of 911, engages both ambulance and police entry into the home or location of the victim.
Conclusion
In the end, having regard to all of the circumstances and the long term repute of the administration of justice, the Court finds that the applicants have demonstrated that the administration of justice, by virtue of the admission of marijuana, would bring the administration of justice into disrepute.
Accordingly, the Court excludes the evidence of the marijuana and the associated evidence with respect to the grow operation.
Without this evidence as to the presence of marijuana and grow operation equipment in the residence of the two defendants, the Crown is not able to prove guilt beyond a reasonable doubt with respect to both of the charges and accordingly, the defendants are acquitted on both charges.
Thank you for all of your assistance.
MR. ROSE: Thank you very much, Your Honour.
MR. STILMAN: Thank you.
Date Ordered: August 17, 2012 Date Completed: October 15, 2012 Ordering Party Notified: November 12, 2012
