Court File and Parties

Court File No.: Belleville 131621 Date: 2014-07-22 Ontario Court of Justice

Between

Her Majesty the Queen

— AND —

David Alan Kift

Before: Justice E. Deluzio

Heard on: 19 days between November 25, 2013 and June 18, 2014

Reasons for Decision released on: July 22, 2014

Counsel:

• Mr. P. Layefsky, for the Crown
• Mr. M. Johnston, for the accused David Alan Kift

Deluzio J.:

[1] Introduction

1David Kift is a 57 year old retired R.C.M.P. officer. He is charged with 60 firearm and weapons offences.

2In the early morning of March 7, 2013, on the basis of confidential information that Mr. Kift was in unauthorized possession of firearms, 40 officers from the OPP Provincial Weapons Enforcement Unit (PWEU), OPP Tactical and Rescue Unit (TRU) and the Durham Regional Police Guns and Gangs Unit, executed a "high risk" Section 487 Search Warrant at the residence of David Kift and his wife, Marion Kift, at 1431 Spooks Bay Lane, in the Municipality of Highlands East, Ontario. Mr. and Mrs. Kift were "called out" of their residence at 5:30 a.m. and arrested.

3During the search of the Kift residence and outbuildings police seized 67 firearms, including non-restricted, prohibited and restricted firearms. Among the firearms seized were submachine guns, assault rifles and a small cannon. Police also seized prohibited weapons including: hand held cross bows and spring activated knives; prohibited devices, including over capacity magazines and silencers; thousands of rounds of ammunition; and commercial and military explosive substances, including detonator cords, black powder, anti-personnel mines and smoke grenades.

4Many of the firearms were concealed behind a closet wall in a main floor bedroom. Gas canisters filled with ammunition were concealed behind a closet wall in the master bedroom. Some firearms were in a hidden compartment in a work bench in the garage with readily accessible ammunition. A number of firearms were not properly stored. An antique handgun was found under the night table in the master bedroom and ammunition for the handgun was found on a shelf in the bedroom closet. There were antique firearms and cross bows in plain view in the garage.

5On the date of his arrest Mr. Kift was on federal parole. In 2003, during a police operation known as "Project Pun", police executed a search warrant on the same residence and in 2008, Mr. Kift was convicted of various firearms offences, including trafficking in firearms. He was sentenced on January 28, 2008 to five years in the penitentiary. A section 109 Criminal Code Prohibition Order was also imposed.

6Mr. Kift was released on full parole on July 10, 2010. As a condition of his release on parole Mr. Kift was prohibited from owning, having possession or control of any weapon as defined in section 2 of the Criminal Code of Canada, except as authorized by his parole supervisor, which authorization was not given.

7Mr Kift argues that his during his arrest and detention his rights, pursuant to Sections 7, 8, 9, and 10 of the Charter of Rights and Freedom were violated. Mr. Kift asks the Court to find that he was subjected to an unlawful search and seizure, an unlawful arrest, and an unlawful and arbitrary detention, in breach of section 503 of the Criminal Code of Canada. He argues that during his unlawful detention his right to remain silent was violated. He also asks the Court to find that his ability to make full answer and defence has been prejudiced because of the missing or destroyed evidence.

8Mr. Kift asks the Court to remedy the breaches of Section 8 and 10 of the Charter by the exclusion of all evidence seized pursuant to section 24(2). Mr. Kift applies pursuant to Section 24(1) of the Charter for a stay of the prosecution because there is evidence missing or destroyed as a result of deliberate police conduct; and his rights under Section 7 and 9 of the Charter were violated because the police failed to comply with Section 503 of the Criminal Code of Canada, resulting in an unlawful detainment for 15 days.

9On consent of counsel the trial proceeded as a blended voir dire, allowing the court to consider the various defence applications and the requested remedies, in the context of all of the trial evidence. The trial proceeded over approximately 21 days, from November 25, 2013 until June 18, 2013. The Court heard from approximately 49 witnesses.

THE SEARCH

10A reasonable search, in accordance with Section 8 of the Charter, is a search that is authorized by law and conducted in a reasonable manner: see R v Collins, [1987] 1 S.C.R. 265. Mr. Kift bears the onus of proving that the search of his residence was unreasonable and in breach of Section 8. He argues that the search of his residence was conducted in an unreasonable manner because of the following factors:

1. The "contain and call out" high risk operational plan was unnecessary because Mr. Kift is not violent;

2. Not all of the searching officers had a copy of the Search Warrant, in breach of section 29 of the Criminal Code of Canada;

3. The officers damaged Mr. Kift's property by breaching a locked door;

4. The officers seized items not specified in the Warrant;

5. The police did not have a Feeney Warrant;

6. The address description on the search warrant was wrong; and

7. The Report to a Justice was not filed "as soon as practicable"

11For the reasons discussed below, I am satisfied that the Search Warrant was lawful, the police conducted their search of Mr. Kift's residence in a lawful, careful, thorough and reasonable manner, and the police had reasonable grounds to arrest Mr. Kift. The manner of search of Mr. Kift's residence, did not result in a breach of Mr. Kift's Section 8 rights.

THE CONTAIN AND CALL OUT OPERATIONAL PLAN

12Approximately 40 police officers were involved in the execution of the search warrant at the Kift residence. The police operational plan was to "contain and call out" Mr. Kift from the residence, rather than a dynamic or unannounced entry.

13Although the Search Warrant was obtained by Detective Nathan Campbell of the Durham Regional Police, the Kift residence is in the Bancroft area and under OPP jurisdiction. The OPP PWEU, the OPP TRU and the Bancroft OPP worked with the Durham Police in the execution of the Search Warrant and the arrest of Mr. Kift. The stated mission of the police was to "execute a 487 Search Warrant at 1431 Spooks Bay Lane with consideration for the safety of the public, police officer, and the occupants of the residence".

14Except in exigent circumstances, police are required to make an announcement before forcing entry into a dwelling house. When they depart from this approach they must explain why they it was necessary to do so. The evidence establishes that the police had good reason to be concerned about the possibility of harm to themselves, the occupants of the Kift residence, and neighbours. It was reasonable for the police to execute the warrant in the early morning hours, when they knew where Mr. Kift was, rather than waiting for a time when Mr. Kift was away from his residence. Mr. Kift posed less of a threat to the officers, to himself and to Mrs. Kift, outside of his residence, under arrest, and at a safe distance from his firearms.

15Several of the supervising officers explained why the warrant was determined by police to be a high risk warrant necessitating the "contain and call out" method of execution. They took into consideration Mr. Kift's conviction for firearms offences in 2008, the fact that Mr. Kift was on parole and prohibited from possessing firearms, Mr. Kift's past occupation as an RCMP officer, familiar with weapons and firearms, and the fact that Mr. Kift was flagged on CPIC as violent and suicidal. The police were also aware that Mr. Kift claimed he had Post Traumatic Stress Disorder from past RCMP policing duties.

16Sergeant Penrose was the Acting Unit Commander for the OPP Emergency Response Team. He said the police had information that Mr. Kift had access to a large quantify of firearms, including automatic weapons. The police were also concerned about Mr. Kift's state of mind, since he was breaching his parole and facing a long jail term. The police chose the "contain and call out" method as the safest method because when firearms are involved police would rather deal with the person outside of the house where there is less chance of a firearm being pointed at the police, requiring the police to respond with lethal force.

17The OPP TRU team first "contained" the area of Mr. Kift's residence by conducting reconnaissance missions to confirm the location of the residence and then positioning sniper team members. A large armoured vehicle was parked in front of the Kift residence. Four sniper team officers had their firearms pointed at the back and sides of the residence. Trained negotiators called from a loudspeaker into the residence to ask the occupants to come outside, while arrest teams stood armed and ready to arrest and take custody of Mr. and Mrs. Kift once they emerged from the residence. First Mr. Kift and then Mrs. Kift stepped out of their residence and they were both arrested without incident. Several arrest team officers were in position, in front of the residence, armed with both side arm and assault rifles, and assigned to provide "lethal over watch", and "less lethal over watch" with firearms pointed in the direction of Mr. and Mrs. Kift as they emerged from the residence and until they were handcuffed and in police custody.

18Mr. Kift was arrested at 5:27 a.m. for unauthorized possession of a firearm and read his rights to counsel by Detective Constable Price. He said he understood and did not want to call a lawyer or speak with duty counsel. He was handcuffed and boots, pants and a jacket were retrieved from the house for him. At 6:00 a.m. Mr. Kift was transported to the Bancroft detachment.

SECTION 29 CRIMINAL CODE OF CANADA

19Mr. Kift argues that the police failed to comply with Section 29 of the Criminal Code of Canada because not every officer involved in the execution of the search warrant had their own copy of the warrant on their person.

20The purpose of Section 29 is to allow the occupant of the premises to be searched to know why the search is being carried out, assess his legal position, and understand the police authority to conduct the search. Section 29 of the Code requires "everyone who executes a warrant" to have it with him, where it is feasible to do so, and to produce it when requested to do so.

21There is no evidence that Mr. Kift asked to see a copy of the Search Warrant. Detective Taylor had a copy of the Search Warrant with him. Both Sergeant Penrose and Detective Derusha were provided with copies of the Search Warrant. Other officers present during the search testified that they did not carry copies of the search warrant with them. Officers Devreker and Taylor both testified that if Mr. Kift had asked to see the Search Warrant they would have located a copy of the warrant and shown it to him. Forty officers were involved in the execution of the Search Warrant. It was not necessary to provide all 40 searching officers with their own copy of the Search Warrant. I am satisfied that there was compliance with Section 29. If Mr. Kift had asked to see a copy of the Search Warrant, a copy would have been located and shown to him.

BREACH OF LOFT DOOR

22During the course of their search the police breached a locked door to a room located above the garage. This locked room was missed by the officers who did the initial "clear" of the Kift residence and outbuildings. By the time the searching officers found this locked door, they had already located multiple firearms including firearms in the garage below the locked room. The police did not feel they could wait until a locksmith arrived to open the door. Detective Taylor explained that the decision to breach the door was made because police were concerned that someone armed with weapons could have been locked in that room and could have injured or killed the searching officers.

23There is no evidence of any other damage to Mr. Kift's property during the search. Police had to remove false walls to locate hidden firearms and ammunition. One of the officers testified that when he suspected that firearms were possibly hidden in an attic area behind a bedroom wall he used a special camera to check first before removing any drywall. The officers swept floors and turned on the heat at Mr. Kift's request. There is no evidence of any damage to the property seized including the computers and equipment. The residence and outbuildings were videotaped both before and after the search.

SEIZURE OF ITEMS NOT SPECIFIED IN THE WARRANT

24During their search of the Kift residence, officers seized items that were not mentioned in the Search Warrant, including Toronto and Peterborough Police badges; RCMP badges and a warrant card; machinery; and computers.

25The seizure of items not specified in the Search Warrant is governed by Section 489 Criminal Code of Canada, which authorizes the police executing a search warrant to seize items not mentioned in the warrant if the officer believes on reasonable grounds that the item "(a) has been obtained by the commission of an offence against this or any other Act of Parliament; (b) has been used in the commission of an offence against this or any other Act of Parliament; or (c) will afford evidence in respect of an offence against this or any other Act of Parliament".

26The Search Warrant authorized the search for documentation relating to the ownership of firearms. It was reasonable for the police to believe the computers would afford evidence that Mr. Kift was using the internet to buy and sell gun parts and firearms based on the large number of firearms located in the Kift residence and Mr. Kift's prior conviction for trafficking in firearms. The computers were sealed and a subsequent Search Warrant was obtained before the computers were searched. Mr. Kift's right to privacy with respect to the data contained on his computers was respected. The Supreme Court of Canada has held that computers may be seized to secure a later search warrant where the warrant does not specify the computer seizure but does allow for the search of something that it is reasonable to believe may be on the computer. The seizure of the computers was reasonable, in accordance with Section 489, and in accordance with the protocol endorsed by the Supreme Court: See R v Vu S.C.J. No 60.

27Police also seized tools and machinery, including a bench grinder, band saw, drill press, CNC machine, and metal lathe, that they believed Mr. Kift used to alter, assemble or manufacture firearms and gun parts. During the search police seized multiple firearms and gun parts, including homemade firearms, numerous gun parts that appeared to be machined, homemade silencers and zip guns. The serial number had been removed from an AK47 that was seized. All of the tools and machines seized were capable of being used to alter or assemble firearms. I find that the police had reasonable grounds to conclude that the tools and machines were offence related property and should be seized.

28Officers Derusha, Ashley and Taylor testified and explained that the police and RCMP badges and a warrant card were seized because police believed that these items would afford evidence of the offence of impersonation of a police officer. The warrant card was filed as an Exhibit. Mr. Kift's photograph appears on the card. The card has clearly been altered to look like an official police identification card. I find that the seizure of the police badges and warrant card was reasonable.

FACIAL VALIDITY OF THE WARRANT

DESCRIPTION OF PLACE

29On March 6, 2013 Detective Constable Nathan Campbell of the Durham Regional Police Gun and Gang Enforcement Unit obtained a Search Warrant to search the residence, outbuildings, property and any motor vehicles of David Kift, at 1431 Spooks Bay Lane, West Eels Lake, Apsley, Ontario. The issue arises because Mr. Kift's correct address is: 1431 Spooks Bay Lane, Eels Lake, Highlands East, Ontario. The Kift property is located on Eels Lake, not West Eels Lake, and is in the municipality of Highland's East, not in Apsley.

30Mr. Johnston argues that the search of Mr. Kift's residence was unlawful because the warrant does not accurately describe the location to be searched. He points out that the police found several different addresses for Mr. Kift's residence and says the police could have done more to confirm the correct address for the warrant. Mr. Johnston takes no issue with the sufficiency of the grounds contained in the Information to Obtain the warrant.

31The Crown concedes that the Search Warrant failed to specify the correct address to be searched, but argues that the warrant is facially valid because there were elements of the description sufficiently particular to identify the premises to be searched. I agree with the Crown for the following reasons.

32During the trial the Crown established the following facts:

1. There is only one 1431 Spooks Bay Lane in Ontario;

2. There is an Eels Lake but not a West Eels Lake in Ontario;

3. West Eels Lake is not a lake, but the name of a municipally maintained road that runs around the west end of Eels Lake;

4. Several officers were tasked with conducting a reconnaissance mission to ensure that the search was conducted at the correct premises;

5. During reconnaissance before executing the search warrant police observed a 911 sign with the number "1431" on Spooks Bay Lane and a sign at the end of the laneway with the words "D&M Kift";

6. The officers also had a photo of Mr. Kift's cottage taken during the execution of a previous search warrant executed at the Kift residence in 2003; and

7. The Kift residence is in a very rural area, located between Apsley and Bancroft

33Detective Constable Nathan Campbell, the affiant for the Search Warrant, explained the process he went through to obtain the address of the Kift residence. He received reliable information from a confidential human source that Mr. Kift was in possession of firearms at his cottage on Eels Lake. The Informant did not provide an address, but did provide directions to the cottage on Eels Lake. Detective Constable Campbell conducted various map searches on the internet to ascertain the address. He also searched various police data bases, including checking CPIC and the Durham Police data base, known as Versadex. He found various address descriptions for Mr. Kift's residence, including 1431 Spooks Bay Lane, RR3 Bancroft, and 1431 Spooks Bay Lane, Eels Lake Apsley. Detective Constable Campbell believed that the correct address was 1431 Spooks Bay Lane, West Eels Lake, Apsley because he found this address description on CPIC and in the most recent parole report in the Correctional Services of Canada records for Mr. Kift: "I believe that the CPIC return coupled with the information contained in the Versadex report or the Durham Regional Police report, which had a parole record contained in it, was the most reliable source of the information. As well I… the information I had from, from the informant and the directions that I was provided from the informant, was in the area of Apsley. Like I said, when I looked at the map, Bancroft was to the northeast of where Spooks Bay Lane is. I didn't believe that it was in Bancroft. I believe it was in Apsley.

34It was clear from his testimony that Detective Constable Campbell honestly believed he had the correct address and in fact he held this belief until he was confronted with the correct address midway through his cross examination.

35Detective Constable Stewart from the Bancroft OPP testified. He saw the Search Warrant and noted that it described the municipality as Apsley. He knew the municipality was Highlands East. He was familiar with the location of the Kift residence because he had investigated a break and enter complaint at the Kift residence in 2011. He was not at the briefing that took place before the warrant was executed but he was present when the warrant was being executed. He said that by the time he arrived the Search Warrant was already being executed. He knew they had the right residence. He would have said something if he thought the police were going to execute the warrant on the wrong residence.

36Mr. Johnston argues that the police did not do enough to confirm the correct address description for the warrant. He says they knew Mr. Kift was on parole and could have contacted Mr. Kift's parole officer. A video of the route the officers took to the Kift property was played for the Court. There were signs along the road, confirming that the cottage was in the Municipality of Highlands East, in the County of Haliburton.

37The officers executing the Search Warrant took reasonable steps to confirm that they were at the correct address before they executed the Search Warrant. In addition to the address, the warrant describes the targeted premises as the "residence, outbuildings and property of David Kift". Several officers were sent in ahead of the search to confirm the location of the Kift residence. They had a photo of the residence taken during the 2003 search. In addition to the photo they were able to confirm that they had the right address through the 911 sign with the address and the "D&M Kift" sign at the end of the laneway, before the warrant was executed.

38The police searched the correct premises and there was no possibility of the wrong property being searched. Although the computer checks done by several officers, including the affiant, Detective Constable Campbell, revealed various descriptions of the municipality, there is only one 1431 Spooks Bay Lane address in the province of Ontario. There is an Eels Lake but no West Eels lake, so there could be no confusion about which Eels Lake the property was on. The inclusion of Apsley in the description did not create confusion or uncertainty for the searching officers. Apsley was used as part of the address description for the Kift residence in several parole documents produced by Correctional Services Canada, including a halfway house report that Mr. Kift reviewed and signed. Apsley is also part of the address description on a recognizance of bail that Mr. Kift signed following his arrest in 2003.

39Mr. Kift's parole officer, Christine Iamundo, testified that Mr. Kift told her he lived in Apsley. She had a specific memory of this because she lived in Apsley as a teenager and her parents owned the General Store in Apsley. In her Assessment for Decision, dated March 22, 2013, in support of her recommendation that Mr. Kift's parole be revoked, Ms. Iamundo writes: "In July 2010 he moved from day parole to full parole and maintained a residence in Bowmanville Ontario. Kift remained there until February 2012 when he moved to his cottage in Apsley, Ontario." Ms Iamundo testified that Apsley was listed as Mr. Kift's address in Corrections Canada file information.

40Although there was an error in the description of Mr. Kift's address on the warrant, the Search Warrant is valid because the address description was sufficiently particular to enable the executing officers to locate and confirm the identity of the Kift residence before the warrant was executed. The inclusion of Apsley in the property description did not lead to any confusion about the correct address. There was no danger that the incorrect address would be searched, 1431 Spooks Bay Lane is a unique address in Ontario. See: R v Charles 2010 QCCQ 9178 , [2010] Q.J. No. 10824

41Detective Constable Campbell acted reasonably and in good faith in selecting the address of 1431 Spooks Bay Lane, West Eels Lake, Apsley, Ontario. He was thorough in his efforts to confirm the correct address and he relied on credible sources including CPIC, Durham Region Police Records, and Parole records. Mr. Johnston relies on the case of R v Mitchell, 2013 BCPC 2013 (B.C.P.C.), but in that case the Court found that the police conduct in identifying the premises to be searched, was careless "bordering on wilful blindness". In this case, the police conduct in identifying the premises to be searched was thorough and careful and was reinforced by the on site reconnaissance mission undertaken for the purpose of confirming the identification of the Kift residence before the warrant was executed.

DESCRIPTION OF OFFENCE

42The Search Warrant alleges that: "On March 7, 2013 in the Township of Apsley, in the Province of Ontario, David Kift, did have Unauthorized Possession of a Firearm contrary to the Criminal Code and amendments thereto".

43Mr. Johnston also argues that the incorrect address description renders the offence itself as alleged, a nullity, and therefore renders the arrest of Mr. Kift unlawful because the officer's reasonable and probable grounds to arrest were based on a belief that Mr. Kift had committed an offence that was in fact impossible to commit because the township of Apsley does not exist.

44The Search Warrant describes the offence of "unauthorized possession of a firearm in township of Apsley in Ontario". The erroneous inclusion of the words "township of Apsley" does not affect the validity or sufficiency of the description of the offence or the reasonable grounds for Mr. Kift's arrest. The arresting officer, Detective Constable Price, testified that he formed reasonable grounds to believe that Mr. Kift had committed the offence described in the Search Warrant. It is reasonable to infer that if the words "township of Apsley" were not included in the offence description in the warrant, Detective Constable Price would still have formed the requisite grounds to arrest Mr. Kift. The erroneous inclusion of the words "township of Apsley" in the property description does not affect the lawfulness of Mr. Kift's arrest.

45The officer's grounds to arrest came from the information provided by the confidential informant to Detective Constable Campbell and not the warrant itself. Detective Constable Campbell relayed the information to Detective Taylor, and to the arresting officer Detective Constable Price.

46It is clear from the testimony of these officers that the essential information relied upon to formulate the grounds to make an arrest was the information that Mr. Kift was in possession of firearms at his cottage residence. The error in the name of the municipality on the warrant did not affect the existence of the reasonable and probable grounds that the Applicant was unlawfully in possession of firearms. Officer Price testified that his grounds to arrest Mr. Kift "were provided by Detective Constable Campbell that indicated Mr. Kift was unlawfully in possession of a firearm and those grounds came from information received from a confidential human source".

NO FEENEY WARRANT

47Mr. Johnston argues that the police should have had a Feeney Warrant since they essentially forced him out of his home to arrest him.

48There is no doubt that the police intended to arrest Mr. Kift during the execution of the Search Warrant. Their operation plan was to call Mr. Kift out of the residence and arrest him. During the 3:00 a.m. briefing, before the Search Warrant was executed, Detective Constable Price was tasked with arresting Mr. Kift and transporting him to the Bancroft OPP detachment.

49Justice Nordheimer was dealing with a similar defence argument in circumstances where the police had obtained a "no knock" search warrant to search for guns and drugs. His comments are relevant in this case: "To require the police, in such circumstances, to also obtain a companion authorization to enter the same house to arrest a person that they expect to find in that house would be redundant. It would not advance the fundamental principle that is at stake, namely, the protection of the privacy rights of the individual. Once a judge has been satisfied that the police have good and sufficient reason to enter a person's home, that core privacy issue has been resolved adversely to the person. Requiring additional authorizations to overcome those same privacy interests would be superfluous." See: R v Lucas [2009] O.J. No 5333.

50A Feeney Warrant was not required because the police had a lawful search warrant authorizing entry into Mr. Kift's home. The authorizing justice was already satisfied that the police had reasonable grounds to enter Mr. Kift's residence to conduct a search. The Search Warrant evidenced prior judicial authorization that reasonable and probable grounds existed than an offence was being committed. Mr. Kift was lawfully arrested because the police had reasonable and probable grounds to believe that he was unlawfully in possession of a firearm.

REPORT TO A JUSTICE

51Section 487(1)(e) directs that after a warrant has been executed the police must make a report in accordance with section 489.1 "as soon as practicable". The Report to a Justice was filed by Detective Constable Wolfe of the OPP on April 11, 2013, 35 days after the Search Warrant was executed.

52Mr. Johnston argues that the police failed to file the report "as soon as practicable" resulting in a breach of Mr. Kift's Section 8 rights.

53The Crown takes the position that Detective Constable Wolfe did file the report as soon as practicable taking into account the complexity of the investigation, the number of items seized, and Detective Constable Wolfe's own work schedule and obligations. The Crown argues that even if the Court finds non compliance with [section 487(1)(e)], the late filing of the report does not invalidate an otherwise valid search warrant and therefore there can be no breach of Section 8.

54The failure to file a Report to a Justice may result in an unlawful search and seizure if the police acted unreasonably and if the unreasonable actions of the police resulted in prejudice to the accused. See: R v Church of Scientology of Toronto (No.6), [1987] O.J. 64; R v Backhouse, [2005] O.J. No 754. The issue to be decided is whether the police filed the report to a justice without unreasonable delay. See: R v Garcia-Machado 2014 ONCJ 81 , [2014] O.J. No. 818 (Ont C.J.); R v Butters 2014 ONCJ 228 , [2014] O.J. No 2159.

55Detective Constable Wolfe testified and explained the timing of the filing of the report. He was responsible for transporting the firearms and ammunition from the scene and ensuring their safe storage in a high security building. He submitted a calendar showing his duties during the period between March 7, 2013 and April 11, 2013. He was responsible for determining the charges to be laid. This process was time consuming. Over 250 items were seized during the search and these items had to be classified and described. Detective Constable Wolfe described the work involved in classifying each of the firearms seized and determining the appropriate charges supported by the evidence. Detective Constable Wolfe conducted research and was able to trace through firearm registration certificates, and transfer notifications, the origin of many of the firearms. Some of the firearms were impossible to trace because the serial numbers had been obliterated. All of the firearms, and even the cannon, were test fired. Where ammunition was found in close proximity to the firearms, that ammunition was used during the test firing.

56It is clear from Detective Constable Wolfe's testimony, and the calendar detailing his police activities between March 7th and April 11th, 2013, that most of Detective Constable Wolfe's time was properly spent on his duties relating to the Kift investigation and other investigations he was involved with. But Detective Constable Wolfe was also required to spend two days transporting firearms and ammunition for a press conference held by the Durham Regional Police, on March 12, 2013. According to his calendar, the press conference occupied Detective Constable Wolfe for two days, on March 11th and 12th, 2013. Detective Constable Wolfe was required to maintain security and continuity of the items seized so he had to transport the items himself and then remain present during the press conference.

57The timing and even the purpose of this press conference certainly raises concerns about the reasonableness of the police conduct at this time. The Durham Regional Police held a press conference announcing to the public that 600 charges had been laid against Mr. Kift when in fact he had not even been charged yet.

58The press conference was an unnecessary distraction, taking Detective Constable Wolfe's time and focus away from cataloguing and identifying the items seized, but it added only two days to the overall delay.

59The delayed filing of the report in this case did not prejudice Mr. Kift and did not result in a section 8 breach. Mr. Kift could not be in lawful possession of most of the items that were seized, including firearms, ammunition, cross bows, prohibited weapons and explosive substances. While some of the seized explosives were destroyed by the military for safety reasons, Mr. Kift did not have a right to possess these explosives. Most of the seized items were subject to forfeiture and could not have been returned to Mr. Kift in any event.

TRAIL CAMERAS AND MEDIA CARDS

60In support of his argument for a stay of these proceedings, Mr. Johnston argues that the evidence supports a finding that police officers involved in the search of Mr. Kift's property seized SD cards from trail cameras and failed to report the seizure of these cards. Mr. Johnston argues that these SD cards may have contained important evidence about police conduct during the initial execution of the search warrant and the subsequent search of Mr. Kift's residence, outbuildings and property.

61Mr. Kift has the onus of establishing that tangible evidence is missing, and then the Crown must satisfy the Court that the evidence has not been destroyed due to the wilful actions of the police for the purpose of defeating the Crown's disclosure obligation or due to unacceptable negligence. If the Court finds that tangible evidence is missing, but the loss of this evidence was not due to unacceptable negligence or deliberate police action, then the accused must demonstrate that he suffered actual prejudice from the loss of this evidence. See: R v Carosella, [1997] 1 S.C.R. 80; R v Bero, [2000] O.J. No 4199 (Ont C.A.)

62The only evidence in support of this argument is the evidence of Mr. Kift's daughter, Tiffany Kift, who attended her parents' residence after the Search Warrant was executed. Tiffany Kift testified that her father always had the trail cameras operating around the home but she could not remember when she was last at her parents' residence. She said that she checked several of the cameras set up near the residence. She was looking for the SD cards because she wanted to see if there was any recording of what the police did during the search. She said she checked three trail cameras and there were no SD cards in the cameras. But Ms. Kift was unable to say for certain that there were SD cards in the cameras before the search, or even that the trail cameras were operating at the time of the search.

63Several officers who testified recalled seeing security cameras and trail cameras set up around the residence, but they denied removing the SD cards from the cameras. Detective Constable Campbell testified that he saw cameras, including one camera in the driveway area, and he thinks the cameras were probably taken down due to police concerns about identifying undercover officers who were involved in the search. He said he did not see any officers remove cards from the cameras. Detective Constable Ashworth also testified that he recalled seeing two external cameras, one on the corner of the house and one on the shed.

64Several officers noticed infrared lighting coming from different sides of the residence. Detective Wolfe testified that he noticed a camera attached to the outside of a shed and he reached up and redirected the camera up towards the sky. He said he was not sure whether the camera was operating or whether a video was being recorded somewhere else. He said the camera was a security camera, not a trail camera. He testified that he turned the camera up because he wanted to ensure that the identify of undercover officers was protected. OPP Staff Sergeant Alan Penrose testified. He was the Acting Unit Commander for the OPP Emergency Response Team in March 2013. He has since been promoted to Unit Commander for the OPP Urban Chemical Response Team. He has been with the OPP for 27 years and was involved in the execution of the Project Pun Search Warrant at the Kift residence in 2003. During that search he was part of the arrest team, and entered the residence to conduct a safety clear.

65On November 28, 2013 the Crown disclosed to Mr. Kift that on February 4, 2005, Sergeant Penrose had been found guilty of disreputable conduct as a result of having conspired with other officers not to report information about property damaged by another officer while the Unit was performing a stealth clear of a residence in 2002.

66Sergeant Penrose was cross examined about this incident in relation to the Defence allegations about the Missing SD cards. He was forthright in recounting that he did something out of misguided and misplaced loyalty to a team member and he was charged and pleaded guilty under the Police Services Act. He said his police services act penalty of 120 hours docked pay, was minimal compared with having to acknowledge and discuss the incident in court. Sergeant Penrose testified that he has overcome that incident and his supervisors must agree since he has been promoted twice since then. It was clearly difficult and embarrassing for Sergeant Penrose to discuss the incident that occurred 13 years ago, but he did so in a frank and forthright manner and he made no attempt to minimize his responsibility. I found Sergeant Penrose to be a credible witness. I am satisfied with his account of his involvement in this matter and I believe his evidence that he did not see any officer take down trail cameras, and he does not know anything about trail cameras being broken or media SD cards being removed.

67There is evidence that police officers involved in executing the Search Warrant were concerned about video surveillance or video recording of their actions, but there is no evidence to support the Defence allegation that the police intentionally destroyed or suppressed reliable evidence of how the police executed the search warrant. Most of the officers who were involved in the search testified and all were cross examined about whether they removed or destroyed media cards or video cameras.

68It is difficult to see what use the Defence could have made of the video surveillance footage even if it did exist. Mr. Kift has made no complaint about any unlawful or abusive conduct by police towards Mr. Kift while he was at the scene. Mr. Kift's main complaint is about the tactical decision by the police to conduct a high risk execution of the Search Warrant, not the manner in which the warrant was executed. Mr. Kift does not dispute what was found by police, where each item was seized, or the history of the firearms. There is no suggestion that any item was planted by the police. Mr. Kift argues that the door to the loft over the garage should not have been breached but video footage of the breaching of the door would not assist Mr. Kift in advancing this argument because the police admit breaching the door, and explain they did so for officer safety reasons.

MISSING OR DESTROYED EVIDENCE - EXPLOSIVES

69During the execution of the Search Warrant police made three separate seizures of explosive substances. The officers seized commercial and military ordinances. The searching officers contacted the military and military explosives experts arrived on scene, took possession of the explosives and detonated them at a nearby field.

70The OPP TRU team seized several Commercial explosive items, including a "flash bang", later found to be expended when tested by CFS; two smoke rubber grenades found empty with inoperable fuse systems when tested by CFS; three commercial aluminum detonators; six cans of commercial black powder which tested positive by CFS as explosive substances; and two pieces of rolled up tin foil containing powder. A sample of the black powder was sent to CFS and was confirmed to be an explosive substance and the remaining powder, flares and cords were disposed of because these items could not be safely stored.

71Officer Devreker testified that it is OPP policy that when items are located that are believed to be military property or military devices the military is contacted so that the military can decide how to safely dispose of the items. The military explosives, found in an upstairs bedroom in the Kift residence, were turned over to the military. Corporal Booth of CFB Trenton testified that he is with the Explosive Ordinance Disposal Unit. He said he confirmed that the items he received were military ordinances. The items he inspected included grenades which were in pristine condition. He says it is the policy of the Military to dispose of suspect munitions as close to the scene of their seizure as possible. He said the "sooner you get them out of your hands the better" to avoid the explosives detonating or exploding en route. He said they disposed of the military ordinances by detonating them, and a large explosion resulted. He said "a lot of trees were burned or charred" when they detonated the explosive substances found at Mr. Kift's residence. Master Corporal Robertson also testified and corroborated Corporal Booth's evidence about the condition of the explosives and the military policy to detonate and not to transport or store suspect munitions with military property. He said "we are not a holding unit for suspect items….unless you are starting a small militia there is no purpose in having this stuff".

72I am satisfied therefore that at least some of the military ordinances were live explosives.

73Three commercial aluminum detonators were destroyed by the OPP TRU team several weeks after the Search Warrant was executed. These commercial detonators were initially stored in a container system used by the TRU team to store their own detonators, but when the containers were required for other missions a decision was made to dispose of the three detonators because the detonators could not be safely stored without the containers.

74The Crown argues that the explosive substances seized are evidence of a breach of Mr. Kift's probation order and their seizure is therefore pursuant to section 489 of the Criminal Code of Canada. Section 492 of the Code also applies. Section 492 provides that "Every person who executes a warrant issued under section 487 or 487.1 may seize any explosive substance that he suspects is intended to be used for an unlawful purpose, and shall, as soon as possible, remove to a place of safety anything he seizes by virtue of this section and detain it until he is ordered by a judge of the superior court to deliver it to some other person or an order is made pursuant to subsection (2)".

75Both Sections 492 and 489 require that the disposition of the explosives be under the control and direction of the Court. The Crown argues that Section 5 of the Criminal Code of Canada provides that nothing in the Code affects any law relating to the government of the Canadian Forces; and that the military follows a set of regulations, directives and orders to deal with the disposal of military ordinances. But the military did not seize the explosives in this case. The police did and they should have secured judicial authorization before they destroyed the seized explosives.

76It was reasonable for the police to contact the military and it was reasonable for the police and military officers to destroy the explosives for safety reasons. I accept the evidence of the police and military officers who testified about the dangers and challenges inherent in storing explosives indefinitely. The police relinquished control of the military ordinances and to the military. But the police should have secured the commercial explosives and obtained an urgent judicial authorization order before they destroyed the explosives that remained under police control.

77I find that the destruction of the non-military explosives that remained under the control of the police was a breach of Mr. Kift's Section 8 rights. But the conduct of the police was reasonable, and Mr. Kift has not been prejudiced by the destruction of these explosives. Photos were taken of all of the commercial explosives and military ordinances before they were destroyed. Samples of black powder were tested positive as explosives by the CFS. The CFS reports were filed as Exhibits at trial. Samples of the black powder still remain for further testing, but Mr. Kift has not made a request to examine the seized explosives. Applying the 24(2) analysis from R v Grant 2009 SCC 32 , [2009] S.C.J. No 32, the Crown's evidence of the commercial and military explosives found in the Kift residence is admissible. The evidence is highly reliable evidence essential to a determination of the charges on the merits. The offence of possession of these explosives in breach of a prohibition order is serious, the Section 8 breach had minimal impact on Mr. Kift's Charter protected interests, and society has a strong interest in the full adjudication of cases involving weapons offences.

MR. KIFT'S PRE-CHARGE DETENTION

78Mr. Kift was arrested without incident at 5:30 a.m. for unlawful possession of a firearm after being called out of his residence. He was read his rights to counsel. He said understood and did not want to call a lawyer or speak to duty counsel. He was handcuffed and boots, pants and a jacket were retrieved from the house for him.

79At 6:00 a.m. Mr. Kift was transported to Bancroft OPP station, arriving there at approximately 6:39 a.m. Shortly after Mr. Kift was lodged in custody at Bancroft OPP detachment, Detective Constable Price received further information that a Sten machine gun had been located at the Kift residence. At 6:42 a.m. Detective Constable Price advised Mr. Kift that he would be charged with the more serious offence of possession of a prohibited weapon and further offences related to his prohibition.

80After arriving at the OPP station Mr. Kift asked to speak to duty counsel and he spoke privately with duty counsel from 7:16 until 7:21 a.m.

81At 8:20 a.m. police notified Mr. Kift's parole supervisor, Murray Adams, of the Search Warrant, Mr. Kift's arrest, and the firearms and other weapons that had been located by that point in the Kift residence. Mr. Adams faxed a Warrant of Apprehension for Mr. Kift to the Bancroft OPP detachment. The Warrant of Apprehension directed the police to deliver Mr. Kift into the custody of the Quinte Detention Center. Detective Constable Stewart of the Bancroft OPP executed the warrant at 11:08 a.m.

82Mr. Kift was held at the Bancroft OPP station until 10:45 p.m. when he was transported to Quinte Detention Center. He arrived at the jail at 12:15 a.m. on March 8, 2013. He remained at Quinte Detention Center until March 15, 2013, when he was transferred to Joyceville Penitentiary.

83On March 21, 2013 Correctional Services Canada reviewed the parole suspension warrant issued on March 7, 2013 and revoked Mr. Kift's parole. Mr. Kift's new parole release date was recalculated to September 1, 2013 and his warrant expiry date was set at November 28, 2013.

84On March 22, 2013, 15 days after Mr. Kift was arrested, the information against Mr. Kift was sworn and he was charged him with the offences before the Court and transported to Belleville for a bail hearing.

EVIDENCE OBTAINED FROM MR. KIFT DURING HIS DETENTION AT BANCROFT OPP DETACHMENT

85During Mr. Kift's lengthy detention at the Bancroft OPP detachment, Mr. Kift was interviewed three times. The first hour long interview occurred between 4:30 p.m. and 5:43 p.m. and was not videotaped. Detective Constable Tucker testified he made a deliberate choice not to videotape this interview because he wanted to ask Mr. Kift to provide confidential information about possible gun trafficking associates. The second interview started at 8:00 p.m., lasted just a few minutes, and ended with Mr. Kift saying he wanted to speak with duty counsel and he wanted to know what he was being charged with before he gave a statement. The third interview was videotaped and lasted almost two hours from 8:09 p.m. until 10:27 p.m. During the last few days of trial, the Crown announced that he was not tendering the statements, and in particular, the videotaped confession, as evidence against Mr. Kift.

86The Crown concedes that although the third statement was videotaped the Crown cannot meet its onus of establishing the voluntariness of this statement because it was preceded by an hour long off camera interview of the accused by another officer, Detective Constable Tucker. There was evidence at trial that raised concerns that Detective Constable Tucker may have offered leniency for Mrs. Kift in exchange for confidential information from Mr. Kift about criminal associates. During the videotaped interview with Detective Taylor, Mr. Kift disclosed the location of a prohibited handgun, a Flobert parlor pistol, which was hidden in a tool box in the garage. The pistol had not been located by the police during their search. Following the interview Officer Taylor returned to the Kift residence and recovered the firearm.

EVIDENCE OBTAINED FROM MR. KIFT DURING HIS PRE CHARGE DETENTION

87Mr. Kift spent 15 days waiting to be charged and waiting to be brought before a justice of the peace. During this time Mr. Kift wrote a letter to his wife, and was interviewed by his parole officer, Christine Iamundo. The Crown seeks to tender both the letter Mr. Kift wrote to his wife from jail, and the statements made by Mr. Kift to his parole officer, Christine Iamundo.

MR. KIFT'S LETTER TO MARION KIFT

88Shortly after his arrest and detention at Quinte Detention Center, Mr. Kift wrote a letter to his wife. He probably wrote the letter on March 8, 2013, but because of a now abandoned institutional practice of "holding" inmate letters for two weeks before delivering them, the letter did not come to the attention of the Security Manager until March 26, 2013. By that date Mr. Kift had been taken for a bail hearing during which the presiding Justice of the Peace imposed a Section 516(2) non-communication Order on Mr. Kift which states that Mr. Kift was to "abstain from communicating directly or indirectly with any person named in this Order, namely: Marion Kift (except during legal issues)". The letter was seized and police were notified because the security manager was unaware of the two week hold, and believed the letter had been written in breach of a non communication order.

89Mr. Johnston argues that that Mr. Kift had a high expectation of privacy in a letter written to his wife, that the search and seizure of Mr. Kift's letter was unreasonable and that the letter should be excluded pursuant to Section 24(2). Mr. Kift also relies on the doctrine of spousal privilege.

90The Crown's position is that the letter is not protected by Section 4(3) of the Canada Evidence Act, was lawfully read and seized by jail authorities, and was reasonably seized by police pursuant to a lawful warrant.

91Section 4(3) of the Canada Evidence Act protects spouses from being compelled to disclose matrimonial communications but it is a testimonial privilege only. The information or communication itself is not privileged. See: R v Kotapski (1981), 66 CCC (2d) 78 (Que S.C) aff'd (1984)13 C.C.C. (3d) (Que C.A.); leave to appeal dismissed [1984] SCCA No. 118; R v Docherty 2010 ONSC 467 , [2010] O.J. No. 382; reversed on other grounds 2012 ONCA 784 , [2012] O.J. No 5401 and leave to appeal denied to SCC[2013] SCCA no 18.

92The Ministry of Correctional Services Act gives correctional staff the authority to open and read inmate mail. Section 23.1 authorizes the search of the property of any inmate on the premises of the correctional institution and Regulation 17(1) permits all letters sent to or from an inmate to be read or inspected by the Superintendent or by an employee designated by the Superintendent for that purpose.

93An inmate is exposed to constant surveillance, including regular searches and close scrutiny by corrections staff, and has a "substantially reduced expectation of privacy". See: Weatherall v Canada (Attorney General), [1993] 2 S.C.R. 872.

94When Mr. Kift wrote his letter it was the practice at Quinte Detention Centre to hold internal mail in the mail vault for a week to two weeks to be processed. The Security Manager, Neil Bridger, was new to his position and was not aware of the practice at Quinte Detention Center to hold mail in the mail vault for up to two weeks before processing it. He says this practice has since been changed. He received the Mr. Kift's letter on March 26, 2013 when the receptionist brought it to his attention because of a possible violation of a no contact condition. It was reasonable for Mr. Bridger to believe that the letter was being sent by Mr. Kift in contravention of the non-communication order. He locked the letter in his filing cabinet and then turned it over to Detective Stewart from Bancroft OPP.

95On April 12, 2013, Detective Constable Stewart obtained a Search Warrant authorizing seizure of the letter and envelope from the Security Manager's office at Quinte Detention Centre. The letter and envelope were being sought as evidence of the firearms offences and the additional offence of disobey a court order. Detective Constable Stewart relied on the information he received from Neil Bridger, and when he swore the information in support of the request for a Search Warrant, Detective Constable Stewart reasonably believed that Mr. Kift wrote the letter in breach of a non-communication Order. After he executed the Search Warrant and obtained the letter, Detective Constable Stewart investigated further and concluded that the letter was probably written on March 8, 2013, before the non-communication order was in effect. Mr. Kift was not charged with breaching the Court Order.

STATEMENT TO PAROLE OFFICER CHRISTINE IAMUNDO

96On March 14, 2013, 7 days after his arrest and the suspension of his parole, Mr. Kift was interviewed by his parole officer. Ms Iamundo conducted her post suspension interview with Mr. Kift at the Quinte Detention Center. Ms Iamundo testified that she met with Mr. Kift because she had to decide whether to recommend to the Parole Board that Mr. Kift's parole be revoked. She said she read a Charter warning to Mr. Kift, informing him of his right to remain silent and his right to counsel, because of the seriousness of the potential charges. Ms. Iamundo wrote a report recommending that Mr. Kift's parole be revoked. She said her recommendation was based on the number of weapons found hidden in Mr. Kift's home. She felt that Mr. Kift was an unmanageable risk in the community. Ms. Iamundo testified that her position would not have been any different had Mr. Kift had a bail hearing and been released on the current charges. The Parole Board followed her recommendations and revoked Mr. Kift's parole on June 6, 2013.

97Ms Iamundo testified that, as is her practice, once she completed and filed her report with the parole board she destroyed her original notes of her interview with Mr. Kift.

98Ms. Iamundo testified that she asked Mr. Kift questions about the weapons in his home and the circumstances that led to his arrest. She said she "expected a short visit but Mr. Kift was very open to discussing things with me".

99Mr. Kift wrote his letter to Ms. Kift, and answered questions during a parole revocation interview, while he was detained but before he was charged. Mr. Kift had not been brought before a judicial officer. Had he been brought for a bail hearing he would have been informed of his charges by a judicial officer and he would have had an opportunity to speak with a lawyer who was aware of the charges Mr. Kift was facing and the extent of Mr. Kift's legal jeopardy. Had this due process been afforded Mr. Kift he may have taken greater care about what he included in a letter to his wife, and he may have chosen not to answer questions posed by his parole officer.

CRIMINAL CODE SECTION 503 AND SECTIONS 7 AND 9 OF THE CHARTER

100Section 503 of the Criminal Code of Canada requires that a person who is arrested with or without a warrant in a situation where a justice is available within a period of twenty four hours, be brought before a justice without unreasonable delay. The outside limit is 24 hours. Mr. Kift waited 15 days.

101Mr. Johnston argues that the evidence supports a finding that the police failed to comply with Section 503 of the Criminal Code of Canada, and that the police failure to comply with Section 503 resulted in an unlawful and arbitrary detention in breach of Section 9 of the Charter.

102The Crown takes the position that Mr. Kift was lawfully detained both on the basis of his lawful arrest, during the execution of a Search Warrant, as the police had reasonable and probable grounds to believe he was unlawfully in possession of a firearm; and on the basis of his status as a parole violator subject to a warrant of apprehension issued pursuant to Section 135(1) of the Corrections and Conditional Release Act.

103It is the Crown's position that "custody" in section 503 refers to custody of the person by the investigating police force, and that Mr. Kift was in police custody for approximately 18 hours and 45 minutes, well under the 24 hour time limit. At 12:15 a.m. on March 8, 2013, when Mr. Kift was delivered to the Quinte Detention Center on the strength of the Warrant of Apprehension, Mr. Kift was released from police custody and into the custody of the Parole Board as prescribed by the Warrant of Apprehension and the Corrections and Conditional Release Act. The Crown argues that from the moment Mr. Kift was transferred into custody the investigative process incidental to his arrest had terminated and he was lawfully detained and serving the remainder of a federal sentence.

104The arresting officer, Detective Constable Price, believed that charges would be laid against Mr. Kift on March 7, 2013 and he would be brought for a bail hearing. Mr. Kift was fingerprinted between 10:40 a.m. and 11:22 a.m. Detective Constable Price told Mr. Kift that he would be going for a bail hearing in Belleville that day. Under cross–examination Detective Constable Price testified that he learned, only a few weeks before testifying and "was surprised to hear it", that in fact Mr Kift had not been charged while at the Bancroft OPP detachment and had not been taken for a bail hearing.

105Bail hearings for Bancroft prisoners are held in Belleville daily at 1:00 p.m. Mr. Kift and his wife, Marion Kift, were arrested at the same time and both were taken to the Bancroft OPP detachment. Mrs. Kift was charged and taken for a bail hearing in Belleville on the day she was arrested. She was transported from the Bancroft OPP Detachment to Belleville Provincial Court at 11:30 a.m. in time for a 1:00 p.m. bail court. She appeared before a Justice of the Peace and the Crown requested a three day adjournment pursuant to section 516 of the Criminal Code of Canada because the Search Warrant was still being executed. Mrs. Kift spent three days in custody at Quinte Detention Center until she was released on a Recognizance of Bail at her next appearance on March 11, 2013.

106The police decided that Mr. Kift's status as a parole violator somehow exempted him from the mandatory statutory regime set out in Section 503 of the Criminal Code of Canada.

107Detective Constable Stewart testified that the police discussed the fact that they could not interview Mr. Kift in time to get him to a bail hearing, so they decided to hold off on the laying of charges and detain him as a parole violator: "I know there was some discussion as to what was going to happen with Mr. Kift, the issue being that they wanted to interview him before he was taken from Bancroft. However, that wasn't going to happen in time for him to make it for a bail hearing. The investigation was still ongoing. The search was still being conducted which kind of complicated matters in terms of a bail hearing as well as in terms of deciding what charges may be laid. And the other issue was we wouldn't get him….. if we did hold him at Bancroft overnight, we wouldn't get him to a bail hearing the following day within our 24 hour window. So because he was a parole violator, a warrant for re-committal had been issued by Corrections Canada and it was decided that he was going to be held on the strength of the parole violation."

108Officer Goodwin, who transported Mr. Kift to Quinte Detention Centre, testified that he was originally told he would be taking Mr. Kift at 6:00 p.m. on March 7, 2013, but was then advised that the transport would not occur until after Mr. Kift was interviewed. It was only after Mr. Kift gave a videotaped statement that he was finally transported to the Quinte Detention Center.

109The police held a press conference on March 12, 2013, five days after Mr. Kift was arrested and nine days before he was charged, during which the seized firearms, weapons, and ammunition were displayed and photographed, and it was publicized, inaccurately, that Mr. Kift had already been charged with 600 weapons offences.

110There is no doubt that Mr. Kift would have been detained, whether or not he had been transported with Mrs. Kift for a bail hearing on March 7, 2013. Mr. Kift's parole was suspended and ultimately revoked because he was found to be in possession of a large number of firearms, ammunition and other weapons in contravention of his parole conditions. Mr. Kift was going to remain in custody whether or not charges were laid or pending. Ms. Iamundo was the parole officer assigned to Mr. Kift following the suspension of his full parole. She testified that she had recommended revocation of Mr. Kift's full parole. She explained that once the Warrant of Suspension is issued, and the offender is returned to custody, a parole officer is assigned to meet with the offender and write a letter of recommendation to the parole board and the Parole Board followed her recommendation. Mr. Kift's statutory release date was recalculated when his parole was suspended, and his parole remained suspended pending the Parole Board's final decision to revoke Mr. Kift's parole. The revocation of Mr. Kift's parole on June 6, 2013 did result in a recalculation of Mr. Kift's statutory release date to September 1, 2013, an additional 6 months in custody.

111The Crown argues that Mr. Kift was lawfully detained because he was a parole violator. But Mr. Kift was not arrested as a parole violator, he was arrested during the execution of a Section 487 Search Warrant which was obtained on the basis of the affiant's reasonable and probable grounds to believe that Mr. Kift had committed a criminal offence. The police initiated criminal proceedings against Mr. Kift when they executed their Section 487 search warrant and advised Mr. Kift that he was being arrested for unauthorized possession of a firearm. Shortly after his arrest Mr. Kift was informed of the discovery of a Sten Machine gun and silencer, a prohibited weapon and he was informed that his criminal jeopardy had changed. Mr. Kift was fingerprinted, and the arresting officer told Mr. Kift that he would be taken for a bail hearing. Several officers, including Detective Constable Price, testified that they were surprised to discover, just weeks before the trial, that in fact Mr. Kift was not charged with any criminal offences or taken for a bail hearing, for 15 days.

112Once the police engaged the criminal code they couldn't just "disengage" the criminal process and avoid their obligations pursuant to Section 503. The police believed that by transferring Mr. Kift from police custody to the detention center on the strength of the Warrant of Apprehension they were complying with section 503 because Mr. Kift was in police custody for less than 24 hours. But this belief was not reasonable. The decision made by the police, not to charge Mr. Kift while he was in their custody, was made to suit the police investigative purposes, and with little regard for Mr. Kift's Section 7 and 9 rights. Taking Mr. Kift for a bail hearing would have resulted in Mr. Kift being out of reach of police investigators who wanted to interview him.

113Mr. Kift was detained for 15 days before he knew what criminal charges he was facing. Mr. Kift's greater jeopardy was not the postponement of his statutory release date. It was the potential sentence he faced upon conviction for new gun offences while on parole for similar offences. Until he was formally charged he did not know the extent of his jeopardy and he could not obtain meaningful legal advice.

114The Crown and Mr. Johnston have provided the Court with dozens of cases, but neither lawyer has been able to find a case like this one where an accused parolee was arrested and detained for 15 days without being taken before the Court for a bail hearing.

115This issue was dealt with by the British Columbia Court of Appeal in the case of R v Erickson [1984] B.C.J. No. 1768, 13 C.C.C. (3d) [B.C.C.A.] where the Court was dealing with four days of unlawful detention. Mr. Erickson was arrested on February 11, 1982 at 7:40 a.m. during the execution of a search warrant for drugs. He was taken to RCMP headquarters and held there for four days. The accused was on parole from a federal penitentiary and the police contacted his parole officer. Several hours after the accused was arrested, the arresting officer received a warrant directing police to apprehend the accused and convey him safely to a federal penitentiary. Instead they held him at the RCMP station for four days before formally charging him and bringing him before a justice of the peace on February 15, 1982. The Crown conceded that the existence of the warrant under the Parole Act did not relieve it of the obligation to comply with section 454 and that the relevant time within which compliance should have taken place was 24 hours after the arrest, but argued that both the crown and the police believed that the warrant of apprehension excused them from complying with section 454. The trial judge found that there had been a clear violation of s 454 (now s 503). The Court of Appeal took issue with the remedy the trial judge who, on his own motion, quashed the proceedings, but did not take issue with the finding of the trial judge that the police failure to bring the accused before a justice of the peace resulted in four days of unlawful detention, notwithstanding the parole warrant and was a violation of the accused's right under section 454. One of the concurring justices, Justice Anderson, wrote: "the duty spelled out in s 454 is mandatory and it should be made absolutely clear that there can rarely, if ever, be any excuse for not carrying out that duty. If the police acted maliciously, deliberately or carelessly in carrying out this duty the result of an application under s 24 of the Charter might in appropriate circumstances result in an acquittal."

116Section 503 requires that an accused person arrested with or without a warrant, and in police custody, be taken before a justice within 24 hours of arrest. Within that 24 hour period the police must make efforts to present the accused to a justice without unreasonable delay. Section 503 creates a mandatory scheme for ensuring that an accused person is taken before a judicial officer. There is nothing in the language of section 503 or in the case law, to suggest that the police have discretion about whether to comply with this section, in cases where the accused is a parolee, who is also in breach of parole and subject to a suspension warrant or in cases where the accused's prospects of release are negligible.

117Once an accused person is brought before a Justice of the Peace for a bail hearing and remanded he is under the jurisdiction of the Court. "The general police investigative power to interrogate the accused person has terminated. The right to question the accused in the absence of counsel without his consent and the use of police persuasion to convince the accused to waive his or her right to silence do not exist at this stage, because the accused is under the jurisdiction of the court": See R v Daunt, 2005 YKSC 34 at para 123.

118Even after receiving the Apprehension Warrant requiring police to safely convey Mr. Kift to a prison, the police waited almost 12 hours before transporting him to the Quinte Detention Center. They made no efforts to comply with the Apprehension Warrant until after they obtained a statement from Mr. Kift. There was a justice available. Mrs. Kift was taken for her bail hearing within eight hours of her arrest. As the Search Warrant was still being executed she was remanded for three days pursuant to section 516 of the Criminal Code of Canada. Mr. Kift should have been afforded the same treatment.

119Had the police taken Mr. Kift before a justice along with Mrs. Kift, or even just complied with the Apprehension Warrant in a timely fashion, Mr. Kift would have been under the jurisdiction and control of the Court, not the police, and the general police investigative power to interrogate an accused person would have terminated. The police could have taken Mr. Kift for a bail hearing and then requested a three day adjournment to complete their investigation. They could have charged Mr. Kift with some of the offences and laid a further information once their investigation of the seized firearms was complete. But if they had taken Mr. Kift for a bail hearing police would not have had Mr. Kift present and available for questioning in the absence of right to counsel based on full information.

120The police believed, wrongly, that the Apprehension Warrant relieved them of their obligations pursuant to section 503 of the Criminal Code of Canada. I accept that the officers did not intend to breach Mr. Kift's rights under section 503 of the Code, but they clearly took a cavalier and utilitarian approach to Mr. Kift's rights under section 503. They calculated to deprive Mr. Kift of his liberty to facilitate their investigation without the need for his arrest, so that Mr. Kift would be denied the constitutional protections that arrest entails. Getting Mr. Kift before a judicial officer for a bail hearing should have taken priority over the considerations of the police related to their investigation and wish to interview Mr. Kift after the search of his residence was completed.

121Mr. Kift's detention from the date of his arrest until March 22, 2013 when he was finally taken for a bail hearing was unlawful because the police should have complied with section 503 and they failed to do so. A detention not authorized by law is arbitrary and violates Section 9 of the Charter. See: R v Grant 2009 SCC 32 , [2009] S.C.J. No 32.

122The Section 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in section 7, that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice. Therefore, where there is a violation of section 9, there is also a violation of section 7. See R v C.C. supra; R v Grant supra.

123The breach of Mr. Kift's section 7 and 9 rights started on March 7, 2013 at 1:00 p.m., when he should have been taken for a bail hearing, and continued until March 22, 2013 when he was finally charged and brought before a Justice of the Peace.

ABUSE OF PROCESS

124Mr. Johnston argues that the violations of Mr. Kift's Section 7 and 9 Charter rights amounts to an abuse of process, justifying a stay of these proceedings pursuant to section 24(1).

125The doctrine of abuse of process seeks to ensure that accused persons are given a fair trial, and thereby to preserve the reputation of the administration of justice. Where an accused seeks a stay of proceedings on the basis of state misconduct, the accused must establish, on a balance of probabilities, that the misconduct of the state prejudiced or had an adverse effect on his ability to make full answer and defence. Such a determination requires a reasonable inquiry into the effect of the state misconduct on the fairness of the trial. Where the Court finds such a violation the Court must fashion a just and appropriate remedy, pursuant to section 24(1). See: R v O'Connor, [1995] 4 S.C.R. 411.

126The breach of section 503 and section 9 of the Charter are serious violations. The police abused their authority over Mr. Kift by holding him in police custody and only transporting him to the Quinte Detention Center when it was convenient for them to do so. They should have charged Mr. Kift and taken him for a bail hearing, and they should have responded in a timely fashion after receiving and executing the Warrant of Apprehension. Instead, they placed their own investigative purposes ahead of Mr. Kift's rights, only taking him to the detention center after they had obtained a confession from him, a confession which the Crown does not seek to tender, conceding that the voluntariness of the statement cannot be proven. The police also breached Mr. Kift's section 8 rights by failing to obtain a Judicial Order before destroying the commercial explosives seized from his residence.

127A stay of proceedings is a drastic remedy, justified only in the clearest of cases, where the state conduct compromises the fairness of an accused's trial and/or cases in which the state conduct risks undermining the integrity of the judicial process.

128The test to determine whether a stay of proceedings is warranted in either category consists of three requirements:

1. The prejudice to the accused's right to a fair trial or the integrity of the justice system would be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome;

2. There is no alternative remedy capable of redressing the prejudice, and

3. If there is uncertainty after steps 1 and 2, the Court must balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. See: R v Babos, 2014 SCC 16,

129Step 1 requires an analysis of whether the prejudice caused by the police misconduct will occur at the trial or be made worse by a trial

130The Crown argues that Mr. Kift did not suffer any prejudice because he would have been detained on the strength of the Apprehension Warrant. I disagree. Mr. Kift's right to a fair trial was prejudiced. He was denied the constitutional protection that arrest entails. The police obtained evidence from Mr. Kift during his unlawful detention. Mr. Kift was deprived of his right to consult meaningfully with counsel because he did not know what he was being charged with. While he was held in police custody he was subjected to two lengthy police interrogations, including an hour long off camera interview during which his voluntariness may have been overridden by an inducement of leniency for Mrs. Kift in exchange for confidential information about criminal associates.

131If the police can, instead of arresting a suspect, report the alleged crime to parole authorities and then rely upon parole revocation to achieve the detention they desire for investigative purposes, it means that the Charter and other legal rights triggered by arrest or detention for an offence can routinely be undermined for any parolee. By design, of course, parolees have less liberty than the rest of us. But this does not mean that the legal and constitutional rights they do have can be compromised in this way.

132Prejudice to the integrity of the administration of justice will occur because the breaches are serious enough that if left unanswered the trial may appear to condone serious and dangerous abusive conduct. Trial fairness is affected because the breaches produced self-incriminating evidence in the form of derivative evidence and a trial in which the accused is unconstitutionally made to furnish evidence against himself is unfair.

133Step 2 requires that I consider whether an alternative remedy will remove the prejudice to Mr. Kift and to the integrity of the administration of justice. Remedies less drastic than a stay are available under section 24(1) in situations where an abuse of process has occurred but the "clearest of cases" threshold is not met: R v O'Connor, supra.

134Finally, the Court must balance the interests on favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. This third state requires that I consider the circumstances of the accused, the nature of the charges, the seriousness of the state conduct, whether the conduct is isolated or reflects a systemic or ongoing problem, and the broader interest of the community in having serious charges disposed of on the merits. The very serious nature of the charges facing Mr. Kift is an important factor. Mr. Kift was found in possession of an arsenal of guns and weapons while on parole for trafficking in the firearms and other firearms offences.

135There is a strong societal interest in ensuring that cases involving serious firearms and weapons offences are adjudicated on their merits. Exclusion of the evidence derived from Mr. Kift can correct any damage to the fair trial, and a sentencing remission can demonstrate that the administration of justice does not condone conduct as serious as a 15 day unlawful detention. These remedies are available here because the illegal deprivation of Mr. Kift's liberty, without the benefit of his charter rights, increased his anxiety about his detention, as evidenced by his initial stated unwillingness to give a videotaped statement until he knew what he was being charged with.

136The case of R v Nasogaluak 2010 SCC 6 , [2010] S.C.J. No 6 permits sentencing remissions, even without a Charter breach, where state misconduct relates to the offence or the offender.

137Mr. Kift's unlawful detention was an abuse of process justifying a remedy pursuant to Section 24(1). Excluding the evidence derived from Mr. Kift during his unlawful detention is an appropriate remedy to address the prejudice caused to Mr. Kift and to address the state misconduct in this case. This evidence is excluded as an alternative remedy pursuant to Section 24(1) of the Charter. Alternatively, this can be accomplished using [section 24(2)], given that the evidence I am targeting was obtained in a manner that violated Mr. Kift's Charter rights, and its admission would bring the administration of justice into disrepute. Sentencing remission is also a just and appropriate remedy in this case and is available pursuant to Section 24(1).

138All of Mr. Kift's statements made during his time in detention before the charges were laid will be excluded, including Mr. Kift's videotaped confession to Detective Taylor. The Crown is also be precluded from relying on any derivative evidence that resulted from those utterances, in particular, the Flobert parlour pistol. Evidence derived from the accused after he was transferred to the Quinte Detention Center and until he was charged will also be excluded, including Mr. Kift's letter to his wife and Mr. Kift's statement to his parole officer, Ms. Iamundo.

THE EVIDENCE FOUND AT MR. KIFT'S RESIDENCE

139With respect to the firearms, ammunition, explosives, and weapons seized, Mr. Kift has admitted continuity, the location where each item was seized, and the history of the firearms. Detective Constable Wolfe testified and described each firearm and weapon seized. He prepared a linked Exhibit Chart, Exhibit #3 at trial, identifying each item seized from the Kift residence. The chart details the location in which each item was seized, the seizing officer, the description of each firearm, the classification of each firearm as prohibited, restricted, non-restricted, antique, semi-automatic or fully automatic, the history of each firearm or efforts to trace each firearm, the results of test firings, and the ammunition (and location of that ammunition) used to test fire each firearm.

140Among the seized firearms were an AK47 semi automatic firearm, several fully automatic Sten machine guns, a restricted M16 firearm, a prohibited Franchi semi automatic firearm, a fully automatic and prohibited Russion sub machine gun, five handguns, home made zip guns, two Sten mark 2 fully automatic sub machine guns, a small cannon, silencers, and prohibited magazines and silencers. Some of the firearms were recently acquired by Mr. Kift. One semi-automatic, non-restricted Winchester firearm was imported into Canada in 2010, and used in a suicide. The gun remained in police custody until August 28, 2012, when it was returned to the owner, who sold the gun to a Mr. Fransky. Mr. Fransky was interviewed by the police but was too ill to testify at trial. His statement was admitted on consent of the defence. Mr. Fransky says he sold or traded the firearm to Mr. Kift some time after August 28, 2012. There were no locking devices on any of the firearms. On some of the firearms, including a semi automatic AK47 the serial numbers had been drilled and ground off. Gas canisters filled with ammunition were found behind a false closet wall in a bedroom. Several septre gas canisters date stamped and produced after 2009. One gas canister date stamped 2010 was filled with 23 caliber ammunition used in AR15 rifles. Other canisters were filled with 9mm ammunition, commonly used for handguns.

141Many of these firearms were hidden behind false walls and inside a false compartment in a workbench located in the garage. All of the firearms seized were test fired.

142The Exhibit Chart has been admitted by the defence for the truth of its contents but the section 86(2) unsafe storage offences and the section 95(b) "with readily accessible ammunition" offences are not admitted.

143On April 28, 2013 the Crown withdrew two section 95(b) charges, counts 27 and 31 on the information, because the guns (a homemade pen zip gun and the Flobert parlour pistol) were not tested with the ammunition found in readily accessible proximity to the guns. The Crown also concedes it cannot prove that a seized cattle prod is a taser weapon and asks the Court not to consider the cattle prod as one of the prohibited weapons listed at counts 4, 40 and 42.

144Section 95 of the Criminal Code of Canada creates an offence when a person in any place possesses a firearm together with ammunition which is readily accessible. This section requires only that the unloaded firearm and the ammunition be located in any place not that they be located adjacent to one another in that place. If Parliament intended that "together" in s 95(1) mean "adjacent to" or "stored with" that wording could have been used by Parliament. Instead Parliament has required only that the ammunition be readily accessible and not stored with the gun. See: R v Khan, [2007] O.J. No 137.

145Detective Constable Wolfe testified and described the proximity of the ammunition to the firearm in relation to each of the Section 95 counts charged against Mr. Kift. For example the Sten machine gun with a silencer was first test fired with ammunition found in the garage (a distance of about 20 meters from where the gun was found in the house) and then it was test fired with ammunition found in the house, in closer proximity to where the gun was located. I am satisfied, on the basis of this evidence, including the testimony of Detective Constable Wolfe and the linked Exhibit Chart identifying the location of the firearm seized, and the ammunition each firearm was tested with, that the Crown has proven all of the remaining section 95 (b) counts.

146I am also satisfied on the basis of Detective Constable Wolfe's evidence and his detailed description of the manner in which each firearm was stored that the Crown has proven all of the Section 86(2) counts in the information.

147Detective Constable Wolfe described and displayed photos of the AK47 rifle and the Browning pistol. The evidence establishes that the serial numbers were deliberately removed from these firearms which were in Mr. Kift's possession, contrary to section 108 (b) of the Criminal Code of Canada. Counts 32 and 33 have been proven.

148Mr. Kift was on parole for serious gun offences. He was prohibited from possessing any weapons or firearms. During the execution of the Search Warrant he was found to be in possession of an arsenal of weapons, firearms, ammunition, crossbows, and explosives. I have found that the search of Mr. Kift's residence was lawful. The police acted in good faith in the identification of Mr. Kift's address for the Search Warrant, the manner of execution of the Search Warrant, the seizure of items not specified in the warrant, and the time required to file a report to a justice.

149The evidence seized from Mr. Kift's residence is highly reliable, non-conscriptive and extremely important to the Crown's case. Admission of this evidence at trial would not undermine the integrity of the judicial process and would not manifest, perpetuate or aggravate the prejudice suffered by the Mr. Kift while he waited to be charged and brought before a justice.

150Having considered all of the evidence, I find that the evidence relating to the firearms, weapons, ammunitions and explosives found at Mr. Kift's residence establishes, beyond a reasonable doubt, that Mr. Kift is guilty of the following offences:

1. 8 counts of possession of firearms and weapons contrary to a prohibition order – s 117.01(1);

2. 20 counts of possession of prohibited or restricted firearms with readily accessible ammunition – s 95(b);

3. 5 counts of knowledge of unauthorized possession of a weapon – s 92(2);

4. 3 counts of unauthorized possession of a firearm –s 91(1);

5. 2 counts of unauthorized possession of a weapon – s 91(2);

6. 20 counts firearm regulations (unsafe storage) – s 86(2);

7. 2 counts of possession of a firearm knowing that the serial number has been removed, contrary to section 108(b);

151I invite submissions from counsel during sentencing on the appropriate sentencing remission.

Released: July 22, 2014

Signed: "Justice E. Deluzio"