Court of Appeal for Ontario

Date: May 21, 2019

Docket: C65278, C65279

Judges: Hourigan, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Gary Lai and Kevin Lai Appellants

Counsel:

• Michael Crystal, for the appellants
• Ghazala Zaman, for the respondent

Heard: May 6, 2019

On appeal from the convictions entered by Justice Mitch Hoffman of the Ontario Court of Justice on February 1, 2018.

Reasons for Decision

Overview

[1] Gary Lai and Kevin Lai, the appellants, were each convicted of three counts of possessing narcotics for the purpose of trafficking, and possession of proceeds of crime. The evidence supporting these convictions arose from a contentious warrantless search of their apartment, which led to a further search pursuant to a warrant. The trial judge found the warrantless search to be unconstitutional, but admitted the evidence that was seized during the execution of the warrant.

[2] The appellants appeal their convictions, arguing that the trial judge erred in his s. 24(2) analysis. They ask us to set aside their convictions, order the evidence to be excluded, and acquit them of all of the charges.

[3] At the end of the oral argument we allowed the appeal. We set aside the convictions, ordered the evidence excluded, and substituted verdicts of acquittal on all charges. These are our reasons.

Material Facts

[4] Police officers responded to sounds of a domestic disturbance in an apartment unit. Based on information received, they had ample grounds to attend the apartment unit to investigate. When police arrived at the apartment unit, they knocked on the door. One of the appellants, Gary Lai, partially opened the door. Their interaction with Gary Lai at the door, along with the information previously received, provided the police with objective grounds to enter the apartment on an exigent basis to verify the safety of anyone who may be inside, pursuant to the common law authority confirmed in R. v. Godoy, [1999] 1 S.C.R. 311 ["a Godoy search"].

[5] One of the officers ["the searching officer"] entered and searched the apartment. Although he did not find anyone in need of assistance, he saw cash and drugs. A search warrant was obtained which led to the seizure of approximately 3,000 grams of marijuana, 35 grams of cocaine, 140 MDMA methamphetamine capsules, and $36,000. The appellants, Gary Lai and Kevin Lai, were charged with possessing these narcotics for the purposes of trafficking, and with possession of proceeds of crime.

[6] At their trial, the appellants brought an s. 8 unreasonable search or seizure Charter challenge to the admissibility of all of the seized evidence.

[7] The trial judge held that the appellants' s. 8 rights were indeed breached. He found that although the officers had objective grounds to enter and search the apartment to conduct a Godoy search, he was not satisfied that this is why the searching officer entered.

[8] The trial judge was troubled by the searching officer's claim that he did not smell the odour of marijuana until he stepped into the apartment, after his one to two minute-long exchange with Gary Lai through the partially opened door. The other officer, who was not immediately next to the door, testified that he could smell a strong odour of marijuana as soon as the door was opened a crack. The trial judge inferred that the searching officer must also have smelled it immediately, and it was likely that he did not accurately relate when he smelled the marijuana to the court in an attempt to strengthen his Godoy grounds.

[9] The searching officer also responded to a hypothetical question about what he would have done if no-one answered the door, by saying he "would have probably gotten a landlord with a key". The trial judge treated the searching officer's readiness to delay entry while retrieving a key as being inconsistent with a belief that there was an exigent need to enter to protect life and safety of any occupants.

[10] Despite finding that the Crown had not established the subjective grounds necessary for a Godoy search, he denied the appellants' s. 24(2) application for exclusion, admitted the evidence, and found the appellants guilty of the offences charged.

Issues

[11] The appellants appeal their convictions. The heart of their appeal is that the trial judge committed two material errors in his s. 24(2) analysis. They say the trial judge:

A. failed to consider the searching officer's misleading testimony in his s. 24(2) analysis, when this should have been a significant, if not determinative, consideration; and

B. erred by giving undue emphasis to the objective grounds for the search, improperly diminishing the impact of the lack of subjective grounds.

[12] If we find error, the appellants ask this court to conduct a proper s. 24(2) analysis, exclude the evidence, and order their acquittal.

Analysis

A. The Trial Judge Failed to Consider the Searching Officer's Misleading Testimony

[13] A finding that an officer intentionally attempted to mislead a court about a constitutional violation that has occurred is an important pro-exclusionary consideration in an s. 24(2) application: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 103. In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, McLachlin C.J. said for the majority, at para 26:

I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour.

[14] The trial judge gave no consideration to the searching officer's misleading testimony in arriving at his s. 24(2) decision.

[15] Initially, the Crown sought to answer this ground of appeal by challenging the trial judge's factual finding that the searching officer did not have subjective grounds. There are indeed some curiosities in the trial judge's reasoning on this point. During oral argument, however, the Crown acknowledged that it was bound by the trial judge's factual finding that the searching officer did not have the subjective grounds he claimed in his testimony. The Crown is bound by that finding, and so too are we.

[16] The Crown also attempted to overcome the absence of consideration of the searching officer's misleading testimony during the trial judge's s. 24(2) analysis by urging that he never made a finding that the searching officer intentionally misled the court. Hence, this consideration is irrelevant.

[17] We acknowledge that the trial judge did attempt to gently couch his finding by stating at one point that he did not need to determine whether the searching officer "lacked believability or lacked reliability". We take "believability" to be a reference to the "credibility" or honesty of the searching officer's testimony, and "reliability" to refer to those factors that can cause honest testimony to be mistaken, such as a compromised opportunity to observe, memory problems, or ineffective communication: see R. v. Norman (1993), 26 C.R. (4th) 256 (Ont. C.A.), at p. 274. In other words, the trial judge did say that it was not necessary for him to decide whether the searching officer was being dishonest or was mistaken when he provided his inaccurate testimony.

[18] In spite of this, when the trial judge's decision is looked at as a whole, it is clear that the trial judge found on the balance of probabilities that the searching officer was not being truthful when he claimed that he was conducting a Godoy search. The trial judge twice ventured that the problem was likely with the searching officer's credibility.

[19] Both reasons offered by the trial judge for rejecting the searching officer's subjective-belief testimony are purely about credibility, and have nothing to do with reliability.

[20] Specifically, an honest mistake by the searching officer about when he first smelled marijuana would logically have no bearing on his claim that he searched the apartment because he honestly believed that someone inside could be in peril. The inaccurate claim that he did not smell the marijuana until he was inside was relevant only on the theory that he gave this inaccurate information as a strategy to avoid the suggestion that he entered because of the smell of marijuana. In the words of the trial judge, it was "likely … an attempt to strengthen [the searching officer's Godoy] grounds".

[21] Similarly, the admission by the searching officer that he would have sought the landlord has no logical relevance to whether he accurately remembered his actual subjective reason for entering. Its logical relevance is that an admission in his testimony that he was prepared to wait for a key to be obtained is inconsistent with the state of mind he claimed to have, requiring an exigent entry to protect life and safety.

[22] Finally, in commenting on the seriousness of conducting a search without subjective grounds, the trial judge said "[i]t is serious Charter infringing State conduct when a [c]ourt does not find upon reliable and believable evidence on that point". Manifestly, the trial judge did not find the sworn testimony offered by the searching officer about his Charter grounds to be believable.

[23] It was therefore an error for the trial judge not to consider the searching officer's misleading testimony when determining whether exclusion of the evidence was required.

B. The Trial Judge Erred in the Use of the Objective Grounds

[24] The trial judge found that a search without subjective grounds is "serious Charter infringing State conduct" that pushes strongly towards exclusion. He also found that the impact of the exclusion of reliable evidence on such serious charges "pulls moderately towards inclusion." He therefore reasoned that whether the evidence is excluded would depend on the second R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 consideration – the impact of the breach on the Charter-protected interests of the accused.

[25] We take no issue with any of this. He erred, however, in making this critical determination on the second Grant consideration. He was wrong to have accepted the Crown's argument that the Charter breach had little impact on the Charter-protected interests of the appellants, because "the public does not have the right or reasonable expectation to be free from a search even of a dwelling where objective reasonable serious public safety grounds exist".

[26] First, the underlying legal proposition that he accepted – "there is no right to be free from an objectively reasonable search even into an area an individual enjoys a very high expectation of privacy" – is wrong in law. As the trial judge's own holding on the Charter breach reflects, a person with a reasonable expectation of privacy in a place has the constitutional right to be free from an illegal search. A search without subjective grounds is illegal, even where objective grounds would have existed had the officer acted on those grounds: R. v. Feeney, [1997] 2 S.C.R. 13, at para. 29.

[27] Second, the trial judge misconceived the second Grant factor: As the Supreme Court said in Grant, at para. 76:

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

[28] The extent to which the breach undermines the substantial privacy interest in a dwelling house does not vary depending upon whether, in spite of the breach, objective grounds existed. The trial judge erred in finding that it does.

[29] We also agree with the appellants that the effect of the trial judge's reasoning was to trivialize improperly the subjective component of the reasonable grounds test. The net effect of the trial judge's reasoning was to denude his determination that a search without subjective grounds is serious Charter infringing conduct, by finding that the absence of subjective grounds was outpointed by the presence of objective grounds.

[30] In R. v. Caslake, [1998] 1 S.C.R. 51, at para. 27, Lamer C.J. explained why the subjective component of the reasonable grounds standard is important:

The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search … before the search is carried out. This accords the ultimate purpose of s. 8, which, as Dickson J. stated [in Hunter v. Southam Inc., [1984] 2 S.C.R. 145] is to prevent unreasonable searches before they occur.

[31] The trial judge also committed a conceptual error by using the objective grounds for a Godoy search to mitigate the impact of the breach, after finding that the searching officer did not conduct a Godoy search. In Caslake, Lamer C.J. made clear that a court cannot justify a search based on the existence of objective grounds for a form of search that was not undertaken. In that case, the officer's purported inventory search could not be justified based on the fact that he would have had objective grounds if he had conducted a search incident to arrest. The same principle applies to mitigation. It is improper to diminish the seriousness or impact of an illegal search because the searching officer would have had objective grounds had he conducted a different kind of search.

[32] Unfortunately, the trial judge's s. 24(2) decision was undertaken without considering the effect of the searching officer's misleading testimony on the repute of the administration of justice, and it was premised on a legal error. He also misapplied the second branch of Grant, and his decision had the effect of trivializing the important subjective component of the reasonable grounds standard. The trial judge's s. 24(2) decision cannot stand.

C. The Evidence Should Have Been Excluded

[33] This is an appropriate case for us to determine the s. 24(2) issue, as the trial judge's factual findings are clear. The problems were with his analysis.

[34] The trial judge stopped short of finding that the searching officer used the Godoy search as a Trojan horse or pretense for a drug search without grounds. We therefore cannot take up the appellants' invitation to rely on this to find the breach to have been serious.

[35] Nonetheless, the breach is serious. We agree with the trial judge that it is a serious breach to conduct a search without subjective grounds.

[36] Moreover, while we stop short of endorsing the appellants' claim that misleading testimony about a Charter breach requires exclusion on its own, the searching officer's misleading evidence does significantly aggravate the seriousness of the breach. As Cronk J.A. said in a passage in her dissenting decision in R. v. Harrison, 2008 ONCA 85, 89 O.R. (3d) 161, at para. 160:

[T]he integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority. Our system of criminal justice is fashioned on the collective expectation of the community that police officers who testify in a criminal case will do so honestly and impartially, unmotivated by self-interest or the desire to secure a conviction. The central importance of this expectation cannot be overstated where the testimony is received in a criminal trial involving allegations of serious constitutional violations by the police.

[37] The Supreme Court of Canada ultimately agreed with the outcome of Cronk J.A.'s dissenting decision, and this specific passage found favour when it was quoted from by McLachlin C.J. at para. 26.

[38] The second Grant consideration also strongly supports exclusion. Contrary to the finding of the trial judge, the impact of the search on the Charter-protected interests of the appellants was considerable. The police entered their dwelling house illegally, violating their privacy interests.

[39] We accept the trial judge's conclusion that the final Grant consideration pulls moderately towards inclusion. There is apt to be some damage to the repute of the administration of justice by jettisoning the reliable, crucial evidence that is needed to sustain serious charges.

[40] Given that the first two Grant considerations strongly favour exclusion, however, this court's decision in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63 would counsel exclusion. In our view that is the appropriate outcome, especially considering the trial judge's conclusion relating to the searching officer's testimony. We exclude the evidence obtained both during the initial search and the subsequent search with a warrant.

Conclusion

[41] We therefore allow the appeal, set aside the convictions, order the exclusion of the evidence seized from the apartment and substitute verdicts of acquittal on all of the charges.

C.W. Hourigan J.A. David M. Paciocco J.A. Harvison Young J.A.