Court Information
Court: Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Jeffrey Frey & As.C.
Before: Justice C.A. Parry
Heard on: October 7, 8, 9, 11 and November 25, 2019; and January 17 and 31, 2020
Reasons for Judgment released: February 14, 2020
Counsel
K. Nolan — counsel for the Crown
C. Lord — counsel for the accused Frey
J. Graham — counsel for the accused As.C.
I. OVERVIEW
1A child protection worker, with the assistance of the police, conducted a warrantless search of the basement dwelling of As.C and Jeffrey Frey, which they rented from Am. C. (As.C's sister). The garage, which they used as part of their tenancy, was also searched. This child-protection home inspection provided the police with grounds to believe that these two accused possessed a large quantity of stolen property. Possessed with these grounds, the police applied for and obtained a warrant to search the residence. The search of that residence pursuant to that warrant resulted in numerous Criminal Code and Controlled Drugs and Substances Act charges. The two accused now stand trial before me on those charges. The outcome of this trial turns on the legality of the warrantless search carried out by the worker and his police assistants.
2This search did not begin as a criminal investigation. The police concluded that they did not have grounds to seek a warrant or to rely upon the common law to conduct a warrantless search. The police viewed themselves as merely aiding a child protection investigation that the worker had decided would involve a warrantless home inspection.
3The worker did not enter the home for a purpose authorized by statute. The statute – the Child, Youth, and Family Services Act – only authorizes warrantless entries into homes for a single purpose: the removal of any children in need of protection to a place of safety. Indeed, the Act stipulates that even searches authorized by warrant are limited to the purpose of removing a child to a place of safety. The worker made it clear that he did not enter for the purpose of finding and removing children. Indeed, he brought the child he believed to be in need of protection back into the suspected place of danger, to help confirm whether or not there was a gun present in that place. In other words, he was there to conduct a home inspection – to investigate and resolve child protection concerns. In addition to enlisting the child, he enlisted police assistance in his investigation – to make sure he could conduct this home inspection in unfettered safety.
4To further the goal of making the home inspection a safe one, the police sought to enter the home before the worker and the child. They searched for adults who might obstruct the home inspection. During the course of their sweep, they entered the basement dwelling of As.C. and Jeffrey Frey. They also entered the garage at the residence. Their entry occurred over the continuing objection of As.C., albeit with the consent of her sister, who was the main tenant of the house and allowed As.C. and her family to reside in the basement dwelling. The Crown does not rely upon the sister's consent as constituting a waiver of either accused's expectation of privacy. The Crown thereby implicitly concedes that each accused enjoyed an expectation of privacy in both the garage and their basement dwelling. I agree with this apparent concession.
5I would also observe that I am of the view that the sister's consent was not an informed one and could not therefore validly form the basis of a waiver of her rights or those of her tenants.
6For his part, the worker assumed without inquiring that As.C. and Am.C. had extended their consent to the home inspection when speaking to the police in his absence. He failed to take any steps to independently confirm the informed consent of either As.C., Am.C., or Jeffrey Frey.
7Despite the presence of an expectation of privacy, the absence of a warrant, and the absence of an informed consent, the Crown maintains that the search was lawful and conducted in a reasonable manner. The Crown therefore asserts that it has rebutted the presumption that this warrantless search was unreasonable.
8As submissions progressed, it became apparent that the Crown seeks to rely upon the ancillary powers doctrine – either at common law or as partially codified in the Legislation Act – as the lawful basis for the worker's warrantless non-consensual home inspection. I do not agree.
9First, I would note that the worker mistakenly believed his search was specifically authorized by the statutory search provisions. He did not advert his mind to the applicability of any ancillary powers doctrine.
10Second, I am not satisfied that the common law ancillary powers doctrine extends to those who are not peace officers. The common law doctrine has historically recognized police powers and has not extended to others carrying out a statutory duty.
11Third, ancillary powers have been recognized by the courts to fill legislative gaps, to allow the police to fulfill their statutory duty where no clear statutory power exists to enable them to fulfill their duty. In my view, no legislative gap exists here. The operating statute provides a statutory means to achieve the statutory duty. While the CYFSA's primary purpose is the protection of children, it also mandates supporting the autonomy and integrity of the family unit and proceeding on the basis of mutual consent, so long as the safety of children is not compromised. To that end, the Act mandates restraint. The warrantless entry power contained in sub-sections 81(7) and (10) of the Act is a manifestation of the balancing of the various purposes recognized by the Act. It delineates what is reasonably necessary in exigent circumstances to protect the well-being of children in need of protection: removal of a child to a place of safety. A home inspection is not reasonably necessary to enable the removal of a child to a place of safety. The same can be said of any police officer purporting to act as a child protection worker when seeking to remove a child to a place of safety. A warrantless non-consensual home inspection – for purposes that extend beyond the removal of a child in need of protection – is not reasonably necessary for the ongoing conduct of a child protection investigation and application.
12Fourth, although the Legislation Act partially codifies the common law doctrine, by empowering those who have already been granted a statutory power with all necessary incidental powers associated with the exercise of the power, it does not assist the Crown. The Act does not allow those with a statutory power to pull themselves up by their own statutory bootstraps. In other words, the Act does not provide the authorities powers that will enable them to determine whether other statutory powers can be exercised. Instead, it provides powers necessary to carry out pre-established powers.
13The Crown has therefore failed to satisfy me that the warrantless entry into the Frey and C. dwelling was lawful and reasonable. I therefore conclude that this warrantless home inspection violated both accused's right to be free from unreasonable searches and seizures.
14The parties have implied through their conduct of the application a common understanding that the police would not have possessed sufficient grounds to apply for and obtain a search warrant but for the earlier warrantless home inspection. They thus implicitly agree that the warrant cannot stand once I conclude that that earlier warrantless search is unreasonable. Similarly, they appear to implicitly agree that, once the warrant falls, the search conducted pursuant to that warrant becomes an unreasonable search. I agree. I therefore conclude that the entirety of the evidence in the trial before me is evidence obtained during the course of an unreasonable search and seizure.
15I must therefore turn my mind to the question of whether or not this unconstitutionally obtained evidence ought to be excluded from the trial before me. The worker's breach was flagrant and without any due attention to the limits, statutory or otherwise, of his power. His breach can therefore be described as very serious. Moreover, while the commanding police officers directed their mind to their lawful authority to assist the child protection worker, they failed to independently scrutinize the lawfulness of the child protection worker's mission. Their unquestioning deference made them unwittingly complicit in the worker's serious breach. I also conclude that the impact upon the Charter protected interests of the accused was profound, because it involved an intrusion upon the sanctity of their dwelling home. Therefore, despite the seriousness of the charges, the evidence must be excluded.
16Having provided an outline of my judgement, I will now provide a more detailed examination of the facts and the governing law.
II. THE FACTS OF THE CASE
17The evidence on the Charter application was introduced by way of a blended voir dire. Accordingly, the Crown presented the entirety of its case in the voir dire, with the understanding that any evidence not excluded would apply to the trial itself. The defence called no evidence.
18The evidence tendered by the Crown is essentially uncontroversial. On the few occasions conflicts in the evidence exist, I will highlight the conflicts and, where possible, resolve those conflicts.
19As.C. and Jeffrey Frey lived in the basement of the detached two-storey house rented by Am.C., As.C.'s sister, at […] in Cambridge. A child protection worker, Maria Stefan, came for a home visit on August 21, 2018. She actually came to the home in response to a referral regarding Am.C. During that home visit, she learned that As.C. lived in the home with Jeffrey Frey and her two children, L.C. (5 years old) and Sa.C. (a teenager). Ms. Stefan wanted to confirm the adequacy of As.C.'s living arrangements, but As.C. did not consent to an inspection on August 21st. She told Ms. Stefan to schedule a home visit on a future date. Ms. Stefan twice attempted a subsequent home visit before ultimately securing As.C.'s consent to inspect the basement dwelling on August 27th. Ms. Stefan confirmed that As.C., Jeffrey Frey, and L.C. lived in the basement. Sa.C. lived upstairs. In the basement dwelling there were two beds and bedroom furniture. One of the beds was used by As.C. and Jeffrey Frey. The other was used by L.C. As.C. explained to Ms. Stefan that the living arrangement was temporary. As.C. had recently been evicted from her previous residence. She and Mr. Frey intended to find their own place soon.
20In the meantime, the basement dwelling was their home. The door to the basement had a lock. As.C. had a key for that door. Her sister, Am.C., did not possess a key. As.C. and Jeffrey Frey thus enjoyed a level of control over the access to the basement.
21D.C. was the biological father of L.C. While L.C. resided with As.C., D.C. enjoyed access, though the parameters of that access were never specified. Family and Children's Services had an open file with this family, but the nature of their current and historical involvement was left vague; however, there was a suggestion of past domestic violence.
22On the weekend ending Sunday, September 9, 2018, L.C. had stayed with D.C. and his girlfriend, B.M., for an access visit. After Ms. B.M. returned L.C. home to his mother, D.C. called the police.
23Staff Sergeant Jessop gave evidence about the information provided by D.C. to the police. According to Staff Sergeant Jessop, D.C. initially spoke to a patrol officer named Rob Richards. Richards contacted Staff Sergeant Vicki MacDonald, who in turn contacted Staff Sergeant Jessop at 3:10 p.m. on Sunday September 9th. After speaking with MacDonald, Jessop spoke directly with Richards. Jessop learned D.C. reported that L.C. had seen and touched a gun at his mom's home at […]. D.C. also indicated that the child reported that L.C. saw the gun in the nightstand. D.C. did not report, however, when L.C. purported to have seen and touched the gun. In addition to relaying his child's report of the gun, D.C. informed the police that As.C. was living with Jeffrey Frey.
24In response to D.C.'s complaint, Staff Sergeant Jessop contacted Family and Children's Services at 4:00 p.m. He spoke to a woman, whom I infer was the screener, who ultimately contacted an after-hours investigator. He relayed the complaint made by Mr. D.C. to this screener. He also told the screener that As.C., D.C., and Jeffrey Frey were all known to police. The screener advised him that she would contact a colleague who would in turn be in touch with the police.
25After speaking with the F&CS screener, Staff Sergeant Jessop spoke to a duty officer, Sergeant Fenton, who authorized the deployment of the Emergency Response Unit. Staff Sergeant Jessop then contacted Sergeant Becks of the ERU. He also assigned the conduct of the investigation to Detective Gardiner.
26As Jessop was coordinating the police response and assigning roles, the F&CS screener contacted Chuck DaSilva, an after-hours worker. According to Mr. DaSilva, the screener informed him that L.C. had reported to Mr. D.C. that his mother's boyfriend had guns in the home. Mr. DaSilva was unaware of the type of guns involved. He was also unaware of the precise location of the gun or the degree to which the child might have access to the gun. Moreover, he was not sure if the information provided was accurate or not. Nonetheless, the report raised child protection concerns for him. The screener had prior involvement with the family and so was able to provide Mr. DaSilva with a little bit of family background, but nothing which Mr. DaSilva specifically remembered by the date of the trial. Mr. DaSilva also testified that the Society's database indicated that As.C.'s sister, Am.C., lived at […] with all of her family. While he was not sure, he took an educated guess that more children than just L.C. might be living in the home. Prior to calling Chuck DaSilva, the screener had contacted a supervisor and received instructions to dispatch Mr. DaSilva to the home. This referral was labelled a "rapid situation" requiring a twelve-hour response time from the Society. DaSilva then contacted the police.
27Staff Sergeant Jessop received a call from Chuck DaSilva at some point between 4:00 and 5:00 p.m. Jessop relayed the complaint to DaSilva and scheduled a meeting with DaSilva for 5:00 p.m.
28Prior to any meeting with DaSilva, Becks and Jessop discussed the situation. According to Becks, Jessop informed him that Mr. D.C. had informed Am.C. that the police had been contacted. Consequently, according to Becks, Jessop was not concerned that the firearm was still in the house. While Becks still professed some concern about the gun being in the home, he testified that both he and Jessop believed that As.C. had sufficient time to remove any possible gun from the home before the police could hold a briefing and organize a response to the call. In addition, Becks noted being cognizant that the report of the gun originated from a five-year-old child. In doing so, Becks implicitly acknowledged concerns about the reliability of the report. Consequently, Becks testified that given the time lapse and the child's age, the police did not have grounds to obtain a Criminal Code warrant. Similarly, Becks testified that the police did not possess sufficient grounds to justify a warrantless entry in furtherance of a criminal investigation or to conduct a public safety search. When he spoke of a public safety search, I infer he was referring to a warrantless search performed pursuant to s. 117 of the Criminal Code. Having considered the evidence of Sergeants Jessop and Becks, I find as a fact that the police did not believe they possessed sufficient grounds to enter the home in furtherance of a criminal investigation. To be more specific, I conclude that the police did not believe they possessed either a statutory or common law authority to enter the home in furtherance of a criminal investigation. Their evidence on that point could not be more clear – and I accept it without hesitation.
29When DaSilva arrived at the Cambridge detachment, he took part in a briefing with Jessop and Becks, and perhaps Gardiner, at 5:15 p.m. During the briefing, the police informed DaSilva that they would not be entering the home in furtherance of a criminal investigation. DaSilva informed the police, though, that he needed to go the residence to investigate a child in need of protection. DaSilva made it clear that he was going and that he wanted police assistance. According to Becks, DaSilva informed the police that he needed to enter the house to speak to the five-year-old and get in the house and make sure the house was safe. In effect, Becks testified that DaSilva reported a need to perform a home inspection.
30In a roundabout way, DaSilva confirmed Beck's description of DaSilva's stated purposes for entering the home. DaSilva confirmed that he told the police at the briefing that he intended to enter the home. He also testified that he needed to speak to the five-year-old to confirm the "validity of the referral information" [a.k.a. the gun complaint] and he needed to assess home safety. He further testified that he had not turned his mind to an apprehension prior to making the decision to enter the home. Indeed, he testified that he did not turn his mind to apprehension at any point in the investigation. He indicated that while aware of his various options going into a call, he could not make a determination until he went out and investigated. He explained that he needed to attend the scene to see how things unfold. As I will explain in more detail later, when DaSilva entered the home, he brought the five-year-old inside with him, then questioned the child, and then proceeded to examine various rooms in the home. Taken as a whole, DaSilva's testimony confirms Beck's account of DaSilva's stated purpose.
31DaSilva's testimony suggested a very muddled understanding of his authority to enter a dwelling house. He testified that "I am authorized, as a child protection worker, to enter into a home if I suspect child protection concerns." He then erroneously referred to section 74(1) of the CYFSA – a definitions subsection – as being a section that authorizes him to bring a child protection application. He made similar remarks about the import of section 74(2), another definitions subsection. He did so with remarkable confidence, I must say. He then went on to add that "in this particular case, [connoting some special feature about the facts of this case] I also have section 81(1)". In doing so, he referenced the section that authorizes child protection applications to be brought in any given case. He then went on to refer to the powers of entry conferred by subsections 81(7), (10), and (12). When counsel read those provisions to Mr. DaSilva, Mr. DaSilva did not appear to appreciate the distinction between reasonable and probable grounds, on the one hand, and reasonable suspicion, on the other. When counsel then put to him that his purported reasonable suspicion would not meet the statutory threshold for a warrantless entry, he replied, "well, with the information that I had at the time, in my mind that would be enough." When the court asked him to clarify his understanding of the term "reasonable and probable grounds", he replied, "if in my, in my mind, at the time, with the said information, I felt that the child might be at risk, I will err on [the side of] caution…." He then referenced both the historical and current information and indicated that there was "reasonable grounds to suspect that there were child protection issues", in other words, "there may be a child at risk". Having made these assertions, Mr. DaSilva also never strayed from his central assertion that he needed to enter the home to determine whether or not grounds to apprehend existed. He continued to both implicitly and explicitly assert that the decision to apprehend could not occur until after his entry into and inspection of the home. In doing so, he unwittingly acknowledged insufficient subjective grounds to meet a statutory threshold that he appeared unable to understand.
32Mr. DaSilva gave additional testimony that confirmed his ignorance of the scope and limitations of his statutory power to make warrantless entries into the premises. When counsel suggested that the CYFSA does not provide a worker with the authority to enter and search a house to determine the risk [and thus the potential need for an apprehension], he replied "I am not completely familiar with that. I don't typically look at the Act all the time. We have a legal department that guides us through that…. However, we do have child protection standards that outline basic things child protection workers in an investigation while in the home of a child should be mindful of." From this evidence, I infer that Mr. DaSilva was wholly unaware that the Act did not permit warrantless home entries and inspections for the purpose of determining whether grounds for an apprehension existed. He treated the powers in subsections 81(7) and (10) as if they were precursors to an apprehension, rather than the apprehension itself.
33When I consider the entirety of Mr. DaSilva's evidence, particularly in conjunction with the evidence of Staff Sergeant Jessop and Sergeant Becks, I conclude that Mr. DaSilva had suspicions that the five-year-old child may be at risk, and that he wanted to enter the home and conduct a home inspection to determine whether or not grounds to apprehend indeed existed. I further infer that DaSilva mistakenly concluded his "suspicions" were sufficient to trigger the powers created subsections 81(7) and (10) of the CYFSA. I also infer that, prior to entry, he did not possess the subjective grounds objectively necessary to justify an apprehension. He entered to determine whether grounds for apprehension existed, not because he already believed he had those grounds. In doing so, he disclosed a failure to understand that the warrantless entry provisions are in fact apprehension provisions, not investigative provisions. He also disclosed a failure to understand the threshold created by subsections 81(7) and (10).
34Returning to the 5:15 p.m. briefing at the Cambridge detachment, Becks testified that he asked DaSilva "straight out" what the police role would be, to which DaSilva replied that their role was to make sure DaSilva and others were safe and to stand by for assistance with the CYFSA investigation. Becks testified that he believed the police would be there to make sure DaSilva was safe and that there were no obvious safety concerns. To that end, they would "clear" the house by identifying those present, ensure that there is no resistance to the inspection, ensure that DaSilva can do his job, and make sure he is safe. Jessop gave similar evidence. Becks also testified that, because it was not a criminal investigation, the police would not be searching for "things" [evidence]. Furthermore, Becks spoke to DaSilva about the police authority to do as DaSilva requested. According to Becks, DaSilva assured him that the Act authorized a warrantless entry and it authorized the police to assist DaSilva. DaSilva went so far as to cite subsection 81(8), the police assistance clause. I accept the police evidence, in particular that of Sgt. Becks, regarding the police role in DaSilva's CYFSA investigation.
35Regarding the police role in DaSilva's investigation, I would add that no police officer suggested that they examined the enabling statute prior to entering the home. Becks testified, though, about a general awareness of police powers in some circumstances to make warrantless entries and to assist in CYFSA investigations, but he was unaware of the finer details. He testified that DaSilva seemed well versed in the law. I conclude from the evidence of Jessop and Becks, that both believed the police had the lawful authority to assist a child protection worker engaged in a lawful warrantless entry. However, I also conclude that neither held up to scrutiny DaSilva's assertion that he possessed the lawful authority to engage in a warrantless entry. No officer examined subsections 81(7) or 81(10) and asked themselves whether DaSilva possessed the grounds necessary to invoke the power contained in those provisions. Having heard their evidence, I infer that the police simply took DaSilva at his word. They treated with deference DaSilva's assertions on matters of child protection.
36Following the briefing, Becks assembled a team of ERU officers, which included Constables Easterbrook, Brown, and Robinson. Becks and those three officers travelled to the residence in various vehicles. Meanwhile, DaSilva travelled to the residence with Detective Gardiner. The police arrived at the residence around 6:00 p.m. Sgt. Becks knocked on the front door at 6:01 p.m. Robinson and Brown were either at the door with him or very close to him – nothing turns on the slight variations in the evidence on this point. Easterbrook went to the back of the residence. There is a conflict in the evidence about whether DaSilva was initially at the door with Becks or waited around the corner until Becks could ensure a safe entry. I view the conflicts on this point as honest discrepancies – nothing turns on these variations either. In any case, I accept Mr. DaSilva's assertion that he was not privy to the initial verbal exchanges between Becks and those who came to the door.
37According to Becks, Am.C. answered the front door. He explained to her that the police had attended to assist F&CS in its investigation of safety concerns. According to Constable Brown, Becks asked that everyone in the home gather in the front foyer. At this point, As.C. had joined Am.C. at the front door. Some kids also came to the front of the house in compliance with police instructions. These children turned out the be L.C.'s teenage sister and her three friends. Becks went on to explain to As.C. and Am.C. that the police were not conducting a "police investigation" but were assisting an F&CS investigation, because they had received information that there was a gun in the house. He further told them that they would be performing a warrantless entry to check for safety concerns and to allow F&CS to talk to the children in the home. Neither appeared happy about the police presence and imminent entry, so Becks reminded both that he was not engaged in a criminal investigation, only an F&CS investigation.
38As.C. then attempted to explain that there was a paintball gun on the floor in the basement. At this juncture, Am.C. told Becks that she wanted the police to look through the whole house and get any guns out of the house.
39Am.C. and As.C. stepped onto the front porch with Becks as Robinson and Brown entered and search the house to find and clear it of any adults who might obstruct the protection worker's investigation or otherwise pose a danger. At no point did they suggest they were searching for children in need of protection and/or seeking to bring any children to a place of safety. After clearing the upstairs and ground floor, Robinson returned to the front porch and advised Becks that the basement door was locked. Becks asked both As.C. and Am.C. for the key to the basement. Am.C. turned to As.C. and told As.C. to surrender the key. As.C. complied. Despite As.C.'s compliance with Am.C.'s direction, Becks testified that As.C. did not waiver from her initial opposition to the police entry into the home and into the basement. I infer from Beck's evidence that As.C.'s compliance did not connote consent. That inference is supported by Robinson's evidence that As.C. initially refused to surrender the key to her teenaged daughter after Robinson asked the daughter for the key.
40Once Robinson had the key to the basement, he and Cst. Brown entered it with the aim of clearing it. While in the basement they observed a number of high-end bicycles, tools, and televisions. They believed that these items were stolen. As they were going down to the basement, Robinson noticed DaSilva had entered the living room and was speaking to the five-year-old.
41While the timing is not precisely clear, DaSilva arrived at the front door of the residence after the police had already initiated contact. He testified that he had been told to wait around the corner with Det. Gardiner until he received the green light to come to the front door. On his approach to the front door, he saw the five-year-old subject of his investigation sitting in the backseat of a car in the driveway. The child's aunt was in the car with him. She was about to drive him away to his grandparents' home, a home that F&CS had previously and recently approved of as a placement. DaSilva asked that the boy be removed from the car and be brought back inside the home. He believed that the boy would be more comfortable being interviewed inside his home. However, DaSilva also testified that the boy was crying and hysterical and that the aunt was trying to remove him from the chaos. DaSilva, it seems, preferred to keep him in that chaos.
42Rather than apprehend the child and leave the scene, DaSilva proceeded up to the front door. As mentioned, DaSilva was not privy to the initial interactions between Becks and As.C. & Am.C. DaSilva testified that he assumed that As.C. and Am.C. had consented to the home inspection and his entry into the home. He did not, however, suggest that he specifically asked them for their consent or that he specifically asked the police if the two women had given their consent to the police. He testified that had either made an issue of his entry into the home, he would have asked them to step outside. Thus, without any attempt to seek consent to enter the home, DaSilva entered.
43Upon entry, DaSilva saw the five-year-old's teenaged sister and her teenaged friends in the foyer. He also noticed police officers milling around. When the boy returned, someone brought the boy into the house and into the living room to speak with DaSilva. This was their location when Robinson saw them when on his way to clear the basement.
44Given the observations of Robinson, I infer DaSilva entered the home after the ground and second floor had been cleared, but before the basement had been cleared.
45After clearing the basement, Robinson and Brown came upstairs and entered the garage for the purpose of "clearing" it. When in the garage, they observed about 15 bicycles and a dirt-bike.
46After clearing the garage, Brown informed Becks and Gardiner that he had observed what he believed to be stolen property in the basement and the garage. According to Brown, Detective Gardiner had asked him to check the dresser in which the boy claimed to have seen the gun. Pursuant to that direction, Brown went back downstairs and searched the bedside dressers. He did not find any gun.
47While the basement and the garage were being cleared, DaSilva conducted an interview of the five-year-old. In his testimony, DaSilva described some of the disclosures made in this interview. In addition to telling DaSilva that he slept in the basement with his mom and her boyfriend, he recounted more about the circumstances in which he had seen the supposed gun. In doing so, he provided a description of past domestic violence. While describing life in the home, the boy also mentioned playing a video game called Call of Duty with his father. DaSilva wondered if the boy's description of the game "tied in with the firearms piece." At one juncture, the boy wanted to take DaSilva downstairs to show him where the guns were. DaSilva told the boy to wait and that he wanted to speak with the boy's older sister first. The boy then went off to play with toys while DaSilva spoke with his sister.
48After DaSilva spoke briefly with they boy's sister and examined her bedroom, he returned to speak with the boy. At this point, the boy took him downstairs to show him where he slept. They were accompanied by an officer. Brown's evidence discloses that he was the accompanying officer. By this point in time, Robinson and Brown had already cleared the basement and the garage. Brown had also already searched the bedside dresser. Brown and DaSilva both testified that once they were in the basement with the boy, the boy darted to another dresser and opened it. The drawer contained a number of apparent guns. The boy pointed at one and said, "this is the real one". Fortunately, the boy did not pick up any of them. Officer Brown testified that he then examined each one and proved them safe. As it happens, none of them turned out to be real guns. Instead, they were a collection of replica, airsoft, and pellet guns. The drawer also contained knives and machetes. Brown did not seize any of the items at that time. Instead, he later reported his findings to the author of the Information to Obtain.
49After the location of the purported guns was discovered, Brown and DaSilva went upstairs with the boy. DaSilva then formulated a safety plan for the boy. Interestingly, that safety plan involved the boy staying with his grandmother, the place to which his aunt was taking him prior to DaSilva ever entering the home.
50The police secured the residence pending an application for a Criminal Code warrant for the basement and garage. On September 10, Officer Nick Koufis authored an Information to Obtain in support of the police application for the warrant. A justice of the peace issued a warrant at 12:25 p.m. that day. Pursuant to that warrant, the police re-entered and searched the basement and the garage. Amongst other things, the police sized numerous stolen bicycles, stolen tools, electronics, replica guns, airsoft guns, pellet guns, apparent debt lists, personal documents, and 11.6 grams of fentanyl, which was cut with caffeine. Many of the seized items are the subject matter of the charges before the court and some of them provide some evidence of occupancy of the basement by Mr. Frey.
III. ANALYSIS
A. Reasonable Expectation of Privacy
51I should note at the outset that the Crown has not contested either accused's reasonable expectation of privacy. Indeed, the Crown has explicitly conceded that both accused enjoyed a reasonably expectation of privacy in their basement dwelling. By the manner in which the voir dire was conducted and by the structure and content of its submissions, the Crown also appears to implicitly concede that both accused enjoyed a reasonable expectation of privacy in the garage.
52However, despite the Crown's apparent stance on the issue of each accused's expectation of privacy, I wish to delve somewhat further into this topic.
53A reasonable expectation of privacy is determined on the totality of the circumstances. In territorial privacy cases, like the instant case, the specific circumstances the court may consider include:
(1) The presence of the accused at the time of the search;
(2) Possession or control of the property or place searched;
(3) Ownership of or legal interest in [tenancy] the place searched;
(4) Historical use of the property or place;
(5) Ability to regulate access to the place;
(6) Existence of a subjective expectation of privacy in the place and the objective reasonableness of that subjective expectation.
See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128
54When advancing a reasonable expectation of privacy, the applicant is entitled to rely upon the Crown's theory of the case: see R. v. Labelle, 2019 ONCA 557 at paras 23 to 32; see also R. v. Jones, 2017 SCC 60.
55The case before me turns on the accused's expectation of privacy in what are essentially two discrete territorial areas within a single larger territorial space: the attached garage and the basement of a detached two storey home.
56I propose to examine the accused's expectation of privacy in the basement and the garage separately. I will then turn to the question of whether Am.C. could and did provide a valid consent to search the premises, thereby providing a waiver of any expectation of privacy enjoyed by As.C. and Jeffrey Frey.
57I will deal first with the basement dwelling. At the outset, I note that ITO makes plain the Crown theory: both accused rented the basement from As.C.'s sister, who in turn rented the entire two storey home; both accused lived in that basement with As.C.'s son; and both accused and the son had essentially exclusive use of the basement during the course of the tenancy. The evidence on the voir dire further established that As.C. possessed a key to the basement entrance, while her sister did not. The two accused therefore clearly possessed an element of control over their dwelling and had the power to regulate access to their dwelling. Having regard to these factors, the Crown conceded during submissions that each accused enjoyed a reasonable expectation of privacy in their basement dwelling. This concession is entirely appropriate.
58I turn now to the garage. Again, I look to the ITO to discern the Crown's theory of the case. The ITO alleges that the accused, particularly Jeffrey Frey, used the garage to store what Am.C. believed to be stolen bikes. The ITO also alleges that the accused, particularly Mr. Frey, used the garage to gain access [via the person-door inside the garage] to the interior of the residence, and thereby gain access to their basement dwelling. I infer from the contents of the ITO that use of the garage came part and parcel with the rental of the basement dwelling. To be fair, neither accused enjoyed exclusive use of the garage. However, the ITO suggests the shared usage of the garage was limited to those who lived within the four walls of this detached residence. While a reasonable person in Mr. Frey's shoes might expect other members of the household, including Am.C. and her son [who is mentioned as using the garage], there is no suggestion that any reasonable person would expect this garage to be open to the general public. Moreover, the ITO suggests that Am.C. knowingly permitted Mr. Frey to store what she knew to be stolen bikes in the garage – and had done so for weeks. His income appeared to come from criminal activity, yet she willingly took rent from him. In doing so, she became a party to his unlawful possession. She was therefore vulnerable to prosecution for possession of the items contained within the garage. Mr. Frey's warehousing of stolen items in the garage only makes sense if he expected Am.C. to keep quiet about the items in the garage. In these circumstances, I infer that Mr. Frey did not expect Am.C. to invite the police into the garage to inspect the items stored therein – and I conclude that his expectation was a reasonable one. Having said that, I must also keep in mind that this was a shared storage space used by more than one tenant. Nevertheless, while a tenant using a shared storage space ought to expect that other tenants may encounter them or their possessions in the garage, that does not mean they ought to expect the other tenants to invite the police inside to inspect their possessions: see R. v. Reeves, 2018 SCC 56. In the particular circumstances of this case, I ultimately conclude that each accused enjoyed a reduced but reasonable expectation of privacy.
59I would now like to address whether Am.C.'s purported consent to the police entry into her rented home had the effect of vitiating any reasonable expectation of privacy the accused may have otherwise possessed in either the garage or basement dwelling.
60I begin by first noting that the Crown has not sought to rely upon Am.C.'s consent to the search of any part of the residence. Arguably, that might end the necessity to explore the issue further; however, I nevertheless think it prudent to touch on the issue a bit further.
61In my view, the question of the impact of Am.C.'s consent can be answered by examining whether it was a constitutionally valid consent. When relying upon a person's consent to a search, the Crown in effect asserts that the subject of the search waived what would otherwise have been a reasonable expectation of privacy. However, for any waiver to be valid, the waiver must be an informed one: see R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145 and R. v. Wills, 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529. Having considered the evidence, I conclude that Am.C.'s consent was not an informed consent. In other words, to the extent Am.C. purported to waive either hers or her tenants' expectations of privacy, her waiver was not an informed waiver. Why was it not informed? Well, when Sgt. Becks presented himself to the door, he assured both Am.C. and As.C. Frey that the police were not present to conduct a criminal investigation. He stressed that the police were merely assisting in an F&CS inquiry. He also made it clear to them that the police were entering with or without their consent. In the circumstances, I conclude that he was simply trying to placate both of them and was implying that the inevitable police entry would not expose them to police prosecution. I do not mean to suggest that Sgt. Becks was attempting to trick either of them. As I said, he was entering with or without their consent. However, by suggesting the matter was not a criminal matter, he was suggesting that the home inspection would not involve criminal consequences. As history reveals, such a suggestion was patently incorrect. The information provided to Am.C. was clearly misleading. In the circumstances, her consent was not an informed one. If anything, it was a misinformed consent. It therefore lacked constitutional validity and could not therefore override her own or either accused's expectations of privacy in the garage and the basement.
62While it is not necessary to do so, I would make the following additional comments regarding Am.C.'s purported consent.
63First of all, it is clear from Sgt. Becks' evidence that As.C. maintained her opposition to the entry of F&CS and the police into the home. Am.C. was effectively As.C.'s landlord. In surrendering the key at Am.C.'s request, As.C. begrudgingly complied with a direction of her landlord. Becks makes clear that this compliance was not voluntary. Involuntary compliance and consent are not synonymous.
64Secondly, I conclude that, given As.C.'s continued opposition to the police entry into the basement dwelling, and given the reasonable expectation of privacy both accused enjoyed prior to Am.C.'s purported consent, Am.C.'s consent could not serve to vitiate the accused's expectation of privacy. This scenario is analytically indistinguishable from that of a hotel manager consenting to the police search of a guest's room without that guest's consent, which cannot suffice to override a guest's expectation of privacy: see R. v. Mercer; R. v. Kenny, 1992 CanLII 7729 (ON CA), 70 C.C.C. (3d) 180. A reasonable expectation of privacy can exist in places and things that are not exclusively under the applicant's control: R. v. Buhay, 2003 SCC 30; R. v. Cole, 2012 SCC 53; R. v. Marakah, 2017 SCC 59.
65Thirdly, in Reeves, the Supreme Court left for another day the consideration of the complex question of whether or not police entry into a shared home with the consent of one resident violates the Charter. Given that the Crown chose not to rely upon Am.C.'s consent and none of the parties have made submissions on this complex issue, I will follow the lead of the Supreme Court and decline to decide whether a valid consent by Am.C. to search the garage could override the accused's reasonable expectation of privacy in that garage.
B. THE CHILD PROTECTION WORKER ACTED AS AN AGENT OF THE STATE
66Child protection workers are agents of the state and their conduct when acting in their capacity as child protection workers is therefore subject to Charter scrutiny: see Children's Aid Society of London and Middlesex v. Teresa H.; Shirley Jane H. v. Teresa H. and Children's Aid Society of London and Middlesex, 1992 CanLII 4042 (ON CJ), [1992] O.J. No. 3050; R. v. Butts, [2011] O.J. No. 3897; Chatham-Kent Children's Services v. J.K., 2009 ONCJ 589 (CanLII), [2009] O.J. No. 5423. This proposition was common ground amongst the parties in the case before me.
C. THE UNREASONABLE INITIAL WARRANTLESS SEARCH OF THE HOME
1. The Warrantless Search was Prima Facie Unreasonable
67A warrantless search is prima facie unreasonable. The warrantless entry of Mr. DaSilva and the police into the home is therefore prima facie unreasonable. The Crown therefore bears the burden on a balance of probabilities of establishing that this search was a reasonable one. In order to do so, the Crown must establish that the search was authorized by law, the law was reasonable, and the search was carried out in a reasonable manner: see R. v. Collins, 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1.
2. The search was not authorized by statute or common law to further a criminal investigation
68As noted above, I accepted the evidence of Sgt. Becks (whose evidence is supported by Jessop), who indicated that the police did not possess the subjective grounds necessary to invoke either a statutory or common law authority to enter the home in furtherance of a criminal investigation.
69Despite the conclusion reached by the police, the Crown suggested during oral submissions that the police could have reasonably invoked their common law authority to enter in exigent circumstances to protect the life or safety of someone inside the home, relying on R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311. While not explicitly stating so, this argument also engaged the applicability of s. 117.02 of the Criminal Code (warrantless public safety searches for guns inside a dwelling, conducted in exigent circumstances). Effectively, the Crown argued that the police ought to have come to the conclusion that reasonable grounds existed for the police to believe that the safety of those in the home was in danger and that sufficient exigent circumstances existed to negate the requirement to obtain a warrant. Put another way, the Crown appears to have argued that the search was authorized by statutory and common law, despite the fact that the police came to the subjective conclusion that they lacked the requisite grounds to invoke any statutory or common law authority. The Crown's position is simply not tenable. The existence of a subjective belief in the existence of sufficient grounds is a necessary precondition to establishing the existence of reasonable grounds: see R. v. Storrey, 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316. If the police do not possess the requisite subjective grounds at the time of the search, the Crown cannot invoke those legal powers at the time of the trial. There is no profit in arguing the objective reasonableness of subjective grounds that were never formed. Therefore, neither section 117.02 (nor any other statutory provision for that matter), nor the ancillary powers doctrine provide any lawful basis for the warrantless police entry into the home for the purpose of investigating a crime or protecting public safety.
70Based upon their subjective belief, the police were correct to conclude that they lacked the authority to enter the home in furtherance of their police duties to investigate crime or protect public safety.
3. The search was not authorized by any child protection law statute
71The Crown argues that the warrantless search was authorized by sections 1, 2, 74, and 81 of the Child Youth and Family Services Act. I disagree.
72To begin with, I would observe that the Crown's reliance upon sections 1, 2, and 74 is misplaced. None of those three sections purport to confer powers upon a child protection worker. Section 1 sets out the paramount purpose of the Act and other purposes of the Act. Sections 2 and 74 are interpretation provisions. While these sections do not confer powers upon a worker, they do assist in delineating the parameters of a worker's duties. Duties and powers are not, however, synonymous: see R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993] O.J. No. 308.
73While subsection 81(7), (8), (10), & (12) do provide the worker and the assisting police officers the power to enter a home without a warrant, the power is explicitly limited.
74Subsection 81(7) permits the warrantless apprehension of a child solely for the purpose of removing that child to a place of safety and only if the worker is satisfied on reasonable and probable grounds that:
(1) The child is in need of protection;
(2) The child is younger than 16; and
(3) There would be substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 90(1) [a child protection hearing] or obtain a warrant under subsection (2).
75Subsection 81(10) permits the worker to enter a dwelling only if reasonable grounds exists to believe that the child to be apprehended pursuant to s. 81(7) is actually in the premises in question.
76Subsection 81(12) stipulates that subsections 81(7) and (10), amongst others, apply to police officers, as if the police officers were child protection workers themselves. In other words, any police entry for the purpose of assisting a child protection worker is only as valid as the child protection worker's entry.
77The facts in this case clearly establish that the worker did not believe the boy about whom he was concerned was actually inside the premises when he entered. To the contrary, he knew the boy was outside of the residence prior to entering it. Knowing that the boy was outside the place of supposed danger, the worker brought the boy from his place of relative safety into the place of suspected danger. Moreover, the worker did not purport to be attempting apprehend and remove any other child from the home when deciding to enter the home. He could not therefore rely upon subsection 81(10) to enter the home.
78In addition to lacking the necessary belief that any child to be apprehended was actually located inside the home, the worker also lacked the subjective grounds to believe an apprehension was warranted in the first place. As noted above, DaSilva testified that he entered the home for the purpose of determining whether or not grounds to apprehend the boy indeed existed. In giving this evidence he unwittingly betrayed a lack of a subjective belief in the existence of the actual statutory grounds needed to enter the home. I conclude he nevertheless entered because he subjectively believed the statute erected a lesser threshold for entry. I come to this conclusion because the worker repeatedly testified, when explaining his legal authority to enter, that he possessed a reasonable suspicion that the boy may be in need of protection. He also repeatedly betrayed a belief that he had the power to enter to investigate his suspicions and before determining whether or not he actually possessed grounds to apprehend. I note, for example, that, at one point, Mr. DaSilva testified "I am certainly authorized as a child protection worker to enter into a home if I suspect child protection concerns." When asked whether he was aware that the CYFSA does not empower him to enter homes and perform searches to ascertain risk, he replied, "I am not completely familiar with that. I don't look at the Act all the time. We have a legal department that guides us through that." He went on to assert that, when he possesses suspicions that a child may be in need of protection, he prefers to "err on the side of caution" and intrude upon the autonomy and integrity of the family unit. Unfortunately, in doing so, he also demonstrated a failure to appreciate that the statutory section upon which he relied is not an investigative powers provision, but rather an apprehension provision. He failed to appreciate that subsections 80(7) and (10) could only be invoked if grounds to apprehend already existed before entering the home. When revealing this failure, he revealed the absence of the requisite subjective belief to meet the actual statutory threshold.
79The worker's misapprehension of the scope his investigatory powers warrants some additional emphasis. No provision in the CYFSA – whether with warrant or without -- permits workers to enter people's homes without their consent for the purpose of conducting home inspections, nor does any provision in the CYFSA's predecessor, the CFSA – or its predecessor, for that matter. Furthermore, section 1 of the CYFSA suggests that Mr. DaSilva's conduct may run contrary to some of the Act's fundamental purposes. In particular, subsection 1(2)(1) that a child protection agency's interventions and assistance should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. Subsection 1(2)(2) directs that the least disruptive course of action that is available and appropriate should be considered as the first option to any worker. Given that the child about which Mr. DaSilva was concerned was already in a car and en route to his grandmother's house and given the absence of any crystalized intention to apprehend any other child inside the home, one wonders how a warrantless home inspection without a clear and informed consent of the occupants could be consistent with the aforementioned principles.
80I therefore conclude that there did not exist any statutory authority for the worker to enter the home and conduct his home inspection. Similarly, there did not exist a statutory authority for the police to enter for the purpose of assisting the worker in that home inspection.
81I pause here to note that the Crown did not argue that section 78 of the Legislation Act conferred an entry power in the circumstances of this case. However, as will be discussed below, the Crown did implicitly argue that the ancillary powers doctrine provided the worker with a common law authority to enter the home, even if there existed no statutory authority. As will be discussed below, section 78 of the Legislation Act is in essence a partial codification of the ancillary powers doctrine. So, instead of discussing the applicability of s. 78 at this juncture, I will do so when discussing the subject of whether the worker could invoke the ancillary powers doctrine.
4. The child protection search was not authorized by common law or its partial codification in the Legislation Act
82Despite the lack of a statutory authority, the Crown nevertheless asserts that the child protection worker's warrantless entry was lawful. As noted previously, the Crown repeatedly placed reliance upon sections 1, 2, and 74 of the Act during oral submissions. In time, it became apparent that the Crown was in effect arguing that the existence of the duties created by the Act ought to give rise to powers necessary for the child protection worker to fulfill those duties. In other words, the Crown declared an implicit reliance upon the ancillary powers doctrine. I am unable to accept the Crown's reliance upon this doctrine for a number of reasons.
83I would begin by observing that the worker did not advert his mind to any common law power. He subjectively viewed his authority as coming from section 81 of the CYFSA. I have difficulty justifying a state agent's actions retrospectively on a basis not relied upon by the state agent at the time he undertook those actions.
84More, importantly, I have reviewed the authorities and have come to the conclusion that the ancillary powers doctrine does not extend to child protection workers – or to any other civilians upon whom a statutory duty is imposed.
85The ancillary powers doctrine was most recently discussed in Fleming v Ontario, 2019 SCC 45. In Fleming, like all previous appellate cases before it, the common law ancillary powers doctrine is referred to as a police power. At para. 45, the Court in Fleming states:
The basis of the doctrine is that police actions that interfere with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties. Intrusions on liberty are accepted if they are reasonably necessary — in accordance with the test set out below — in order for the police to fulfill their duties.
86I have been unable to find a single Canadian appellate authority suggesting that the common law ancillary powers doctrine has or should extend to non-police officers. Having said that, one case bears mention.
87The case of R. v. Brode, 2012 ONCA 140, might, at first blush, tempt one to conclude that the Court of Appeal for Ontario was prepared to extend the common law ancillary powers doctrine to Border Services Officers, who are not, strictly speaking, police officers. However, the Customs Act expressly conferred upon BSO's police powers – not simply police duties, but police powers. Moreover, section 31(2) of the Interpretation Act expressly provided the BSO's any ancillary powers necessary to the execution of their statutorily conferred powers. Therefore, the Brode decision involved actions by those who were statutorily deemed to be police officers at the time they were engaged in the actions in question. The Brode decision therefore does not extend the ancillary powers doctrine to non-police officers.
88Returning to the Fleming decision, I would observe that the court urged caution and restraint when considering any expansion of the doctrine. At paragraph at 41, the Court states:
Before embarking on an analysis of common law police powers, it is important to consider the appropriate role of the courts in such an exercise. Establishing and restricting police powers is something that is well within the authority of legislatures. Accordingly, the courts should tread lightly when considering proposed common law police powers.
If the Fleming decision urges caution in the expansion of police powers, in the absence of any legislative desire to do so, then surely the courts must show similar reluctance to accept the invitation to expand the doctrine so as imbue civilians with ancillary powers.
89I am not therefore not prepared to conclude that the common law ancillary powers doctrine can provide child protection workers with powers not otherwise created by statute. Therefore, the common law ancillary powers doctrine cannot provide a child protection worker with the authority to enter a home in fulfillment of his statutory duty in circumstances where the statutory criteria for entry have not been met.
90Even if the common law doctrine did extend to child protection workers, I would be very hesitant to conclude it could apply to warrantless home entries. It is important to remember that the legislature struck a balance between preserving the integrity and autonomy of the family unit, on the one hand, and the protection of children on the other – all of which are statutorily enshrined principles of the CYFSA. In striking that balance, the legislature decided to codify the necessary preconditions for a warrantless apprehension and entry in furtherance of that apprehension. In doing so, the legislature carefully defined when the warrantless entry into a home ought to be considered reasonably necessary. The ancillary powers doctrine exists to fill legislative gaps, where duties have been created but not the powers necessary to fulfill those duties: see Fleming, supra, at para 42. Common law powers are unnecessary if the legislature has created powers to enable the fulfillment of legislative duties. It is called "the ancillary powers doctrine", not "the superfluous powers doctrine." No legislative gap exists here: the legislature has codified when entry into a home to protect a child will be reasonably necessary. I do not think it appropriate for the courts to second-guess this legislative codification of reasonable necessity. For all of these reasons, I conclude that the child protection worker in this case did not have the authority at common law to enter the home.
91I must now turn to the question of whether the police had authority at common law to enter the home for the purpose of assisting the child protection worker in his investigation. I would first observe that the police did not profess to have grounds to independently perform their own apprehension, pursuant to subsection 81(7). They were merely present to ensure that the child protection worker could do his job safely. The lawfulness of their entry therefore turns entirely upon the lawfulness of the worker's entry. Therefore, in the circumstances of this case, the police entry for the purpose of facilitating the child protection worker's home inspection could not be authorized at common law. I would also repeat my comments from above about reasonable necessity. I cannot envision a situation in which a police entry in furtherance of their child protection duties could be considered reasonably necessary when at the same time the police fall short of establishing the statutory criteria for an apprehension and entry. I therefore conclude that the police entry for the purpose of assisting the worker was not authorized at common law.
92I turn then to section 78 of the Legislation Act, to determine whether or not it assists the Crown in the present case. This provision is the provincial counterpart of section 31(2) of the Interpretation Act. Section 78 provides as follows:
If power to do or to enforce doing of a thing is conferred on a person, all necessary incidental powers are included.
93As noted, the Crown, without specifically invoking section 78 of the Legislation Act, has argued that because child protection workers have a duty to determine whether apprehension is appropriate and a power to apprehend where sufficient grounds exists, the worker should also have the power to perform warrantless home inspections to determine whether or not an apprehension or child protection application is warranted. This argument has been directly addressed and rejected in the case of R. v. Butts, 2011 ONSC 4559, where Justice Polowin states:
Essentially it is the Crown's position that if CAS workers are statutorily authorized to apprehend children under the CFSA, then they have the incidental authority to take reasonable steps to ascertain whether a child is in fact at risk. This reasoning is circular and not a correct characterization of the effect of Section 78 on powers derived from the CFSA. Section 78 would bestow powers on CAS workers to affect the apprehension of a child once grounds for an apprehension have crystallized. Section 78 does not grant additional powers to ascertain whether the requisite grounds to apprehend exist.
94I am in complete agreement with Justice Polowin's assessment and rejection of the Crown's argument.
95Expanding upon the reasoning of Justice Polowin in Butts, I would add an additional observation. Section 78 creates ancillary powers for the purpose of facilitating the exercise of a statutory power, but it does not create powers for the purpose of facilitating the accomplishments of duties. In that regard, it differs from the ancillary powers doctrine, which recognizes powers in situations where statutory duties exist without a corresponding statutory power to fulfill that duty. A worker's duty to investigate child protection concerns, in the absence of a statutory power to facilitate the fulfillment of that duty, does not trigger the application of section 78 of the Legislation Act.
96For all the above reasons, I conclude that the entry of the child protection worker and the police were not authorized by the ancillary powers doctrine or its partial codification in section 78 of the Legislation Act.
5. Conclusion about the reasonableness of the warrantless entry
97Having found no statutory or common law authority for the warrantless home inspection, I conclude that that the Crown has failed to rebut the presumption that the warrantless entry into the basement dwelling and the garage was unreasonable. Both of these places are places in which the accused enjoyed a reasonable expectation of privacy. I therefore conclude that the warrantless search of these places in furtherance of the warrantless home inspection constituted a breach of both accused's right to be free from unreasonable searches and seizures.
D. COULD THE WARRANT HAVE BEEN ISSUED BUT FOR THE PRIOR WARRANTLESS SEARCH?
98The review of any search warrant begins with the presumption that the warrant is valid. The onus of establishing the invalidity of the warrant falls upon the party asserting this invalidity - the applicant: See R. v. Sadikov, 2014 ONCA 305, 305 C.C.C. (3d) at paras 83-89; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1.
99The review is not a renewed hearing of the original ex parte warrant application. Accordingly, reviewing judges do not substitute their view for that of the issuing judge. Instead, the review court must ask whether, based on the record before the authorizing justice as amplified upon review, the authorizing justice could have issued the warrant: see R. v. Garafoli, 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161; and Sadikov, supra.
100The process of amplification involves scrutinizing the information actually known to the police at the time of the search. It also involves the excision of any unconstitutionally obtained grounds from consideration. This excision flows from the principle that the police cannot be allowed to benefit from unconstitutional acts when seeking to obtain a search warrant: See R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.J. No. 98; and R. v. Plant, 1993 CanLII 70 (SCC), [1993] S.C.J. No. 97.
101In the manner in which they constructed their written and oral submissions, all parties in the present case appeared to implicitly accept that the warrant could not have been issued but for the ITO's reliance upon the fruits of the warrantless home inspection, even though none of them expressly referred to issue in their submissions. To my mind, that was the only logical inference that could be drawn from the structure of each party's submissions. However, in the process of writing this judgment, I thought it prudent to confirm the Crown's position on this matter. I should stress that it would have been preferable for the accused's counsel and the Crown's counsel to have expressly addressed the issue in their materials. In any event, I called the parties before me to confirm their positions. This inquiry seemed to catch the Crown off guard. For a time at least, the Crown mused about taking a different stance on the issue, which may have required calling additional witnesses or re-calling others. I adjourned the matter to allow the Crown to consider its position. I also indicated to the Crown that, unless I received word to the contrary, I would infer that the Crown has conceded that the warrant could not stand but for the earlier warrantless search. The time provided to the Crown to consider its position has now passed. I therefore conclude that my inference about the Crown's position was correct.
102The ITO in the case before me relies exclusively upon the police observations during their warrantless entry or police investigations that are entirely derivative of their observations of items discovered during the warrantless entry. Once those observations and derivative investigations are excised from the warrant, there is no basis upon which a justice could reasonable authorize a search warrant for the home. Consequently, I find that the presumption of the warrant's validity has been rebutted. I therefore conclude that the warrant was issued in violation of the accused's right to be free from unreasonable searches and seizures. It follows that the search and seizure conducted pursuant to that invalid warrant constituted an unreasonable search and seizure.
E. EXCLUSION OF THE EVIDENCE
103An applicant who establishes a breach of his or her Charter Rights, must seek redress under subsection 24(1) of the Canadian Charter of Rights and Freedoms. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.
104Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
105The subsection reveals that the party seeking exclusion must establish two things: (1) the evidence sought to be excluded was obtained in a manner that infringed a Charter Right; and (2) the admission of the evidence would bring the administration of justice into disrepute. The applicant must establish these two things on a balance of probabilities: See R. v. Pino, 2016 ONCA 389.
106There can be no dispute that the evidence in this case was obtained during the course of a Charter violation. The outcome if this application therefore turns on the question of whether or not the admission of the evidence would bring the administration of justice into disrepute.
107In considering the effect of the admission of the evidence on the repute of the administration of justice, the court must take a long-term view, one aimed at preserving the long-term integrity of our justice system and our democracy. Interpreting subsection 24(2) from this perspective, trial courts are required to assess and balance the effect of the admission of the evidence on society's confidence in the justice system having regard to:
(1) The seriousness of the Charter-infringing state conduct [admission may send the message that the justice system condones serious state misconduct];
(2) The impact of the breach on the Charter-protected interests of the accused [admission may send the message that individual rights count for little]; and
(3) Society's interest in the adjudication of the case on its merits: See R. v. Grant, [2009] S.C.R. 353
108The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith" and should not be encouraged or rewarded through the admission of evidence: see Grant, supra, at para 75.
109I turn, then, to the question of the seriousness of the Charter-infringing conduct of the state agents in this case.
110In my view, the conduct of the child protection worker was egregious. He had no appreciation of the limits of his power – not at the time of his warrantless search and not at the time of his testimony. He had been a child protection worker since 2002. While the CYFSA was a relatively new statute at the time of the warrantless home inspection in this case, but the powers of apprehension and entry in that Act are virtually identical to those in its predecessor, the CFSA. It is simply unacceptable that a worker with Mr. DaSilva's experience was unaware that the statutes under which he had operated for his entire career did not permit warrantless home inspections for the purpose of determining whether an apprehension is warranted. A state agent who wields the power to enter a person's home and remove that person's child from their care, perhaps permanently, simply cannot be so blithely oblivious to the statutory scope and limits of their power. To have been that oblivious in the 16th year of his career is frankly astonishing. The court must and will distance itself from this unacceptable state conduct.
111The police conduct during the warrantless search is less concerning. I have inferred that the police deferred to Mr. DaSilva in his area of expertise: child protection investigations. They therefore seem to have accepted that Mr. Dasliva had the authority he purported to posses. They, in turn, acted on their correct belief that they had the lawful power to assist a child protection worker in the course of his lawful investigation. However, in my view, it was also incumbent upon the police to independently scrutinize Mr. DaSilva's purported authority and assure themselves that the preconditions for the exercise of that authority had been met. The police failed to do this. This failure resulted in the police becoming unwitting accomplices to Mr. DaSilva's egregious Charter breach. So, while less serious, the police conduct during the warrantless home inspection is not beyond reproach.
112Having said that, the police otherwise conducted themselves appropriately and with the best of intentions. During the course of the safety-sweep, they did only what was necessary to ensure the safety of the child protection worker's investigation. Also, once possessed with grounds to conduct a criminal investigation, the police acted appropriately and obtained a warrant. Once obtained, that search warrant was executed in a reasonable manner.
113Nevertheless, taken as a whole, the seriousness of the Charter-infringing state conduct – particularly that of the child protection worker - strongly supports the exclusion of the evidence.
114Next, I consider the impact of the breach on the Charter-protected rights of the accused. The warrantless search involved an intrusion upon the dwelling-house of the accused, a place in which individuals enjoy a significant expectation of privacy: see R. v. Davidson, 2017 ONCA 57; R. v. Feeney, 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129. In addition, the child-protection worker employed the services of a five-year-old child in search of the purported gun. I appreciate that this conduct does not pertain to the privacy interest of either accused. However, that boy, under the care of the worker, was able to open the drawer in which a supposed gun lay. The decisions of the worker, who had a statutory duty to protect this boy, had the potential [if there was a real gun present] to put that boy in danger. Thankfully, there was no loaded firearm in that drawer. In any event, the impact of the breach on the Charter protected privacy interests of the accused was significant. This factor therefore heavily favours exclusion.
115Lastly, I turn to the Society's interest in the adjudication of the charges on their merits. These are very serious charges, for which each accused could receive a significant custodial sentence, likely a penitentiary sentence. The drug involved here is a dangerous killer. Society has in interest in seeing purveyors of deadly narcotics being prosecuted and, if proven guilty, provided just and proportionate sentences. The evidence ultimately obtained as a result of the initial Charter breach is vital to a successful prosecution. This factor therefore favours admission.
116However, despite the Society's interest in a trial on the merits, the seriousness of the Charter-infringing state conduct, coupled with the impact upon the Charter-protected rights of the accused leads me to conclude that the evidence obtained during the course of the warrantless search and the subsequent execution of the invalid search warrant must be excluded to preserve the long-term integrity of the administration of justice.
117Without the excluded evidence, there does not exist any evidence capable of supporting a conviction on any charges before the court.
118I therefore acquit both accused on all charges.
Released: February 14, 2020
Signed: Justice C.A. Parry