COURT OF APPEAL FOR ONTARIO DATE: 20240607 DOCKET: COA-23-CR-0032 & COA-23-CR-0501

Gillese, Thorburn and Gomery JJ.A.

BETWEEN

His Majesty the King Appellant/Respondent by cross-appeal

and

Daveion Brown Respondent/Appellant by cross-appeal

Counsel: Karen Papadopoulos and Kevin Pitt, for the appellant/respondent by cross-appeal Samara Secter and Laura Metcalfe, for the respondent/appellant by cross-appeal

Heard: February 29, 2024

On appeal from a stay of proceedings entered by Justice Apple Newton-Smith of the Ontario Court of Justice on December 15, 2022, and a dismissal of a motion for a further stay on February 7, 2023.

Gomery J.A.:

OVERVIEW

[1] Just after 5:00 a.m. on October 15, 2020, without first knocking or otherwise announcing their presence, six Toronto Police Service officers broke down Daveion Brown’s front door and entered his apartment. Mr. Brown and his girlfriend had been asleep in bed. They were ordered to leave the bedroom and go into the living room, where Mr. Brown was arrested on charges of firearm trafficking and possession of a firearm for the purpose of trafficking in May 2020, and on a charge of trafficking in cocaine in July 2020. No search was conducted of the residence and no evidence was seized.

[2] The police had a warrant issued under s. 529 of the Criminal Code, R.S.C. 1985, c. C-46, commonly known as a Feeney warrant. [1] The warrant permitted police to enter Mr. Brown’s residence to arrest him on October 15, 2020. The officer who applied for the warrant had not, however, sought authorization for an unannounced, dynamic or “no-knock” entry, and the warrant issued did not authorize such an entry.

[3] The officer in charge of the team that broke into Mr. Brown’s apartment on October 15, 2020, did not read the warrant. He testified that he did not understand there was any difference between a Feeney warrant and a search warrant. He knew that Mr. Brown was to be arrested on weapons and drug trafficking charges, as part of the culmination of a months-long investigation of gang activities. He was also aware that Mr. Brown had tried to evade arrest on a prior occasion. In his view, a no-knock entry was required to minimize the safety risk to his team and other persons, including Mr. Brown.

[4] Mr. Brown was ultimately tried on four criminal charges: the two firearms charges and the drug trafficking charge for which he was arrested on October 15, 2020, and a charge of possession of cocaine for the purpose of trafficking for which he had been arrested on July 14, 2020. After the Crown closed its case, Mr. Brown applied for a stay of proceedings with respect to all charges under s. 24(1) of the Canadian Charter of Rights and Freedoms, [2] on the basis that the forcible, unannounced entry into his residence by police violated his rights under ss. 7, 8, and 9.

[5] The trial judge agreed that the police violated Mr. Brown’s ss. 7, 8 and 9 rights because the Feeney warrant did not authorize an unannounced entry and no exigent circumstances emerged after the warrant was issued that would justify a so-called dynamic entry. Based on the three requirements set out in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32, she concluded that, in the unique circumstances of the case, the just and appropriate remedy for the Charter violations was a stay of the firearms-related charges, but not the drug trafficking charge. The partial stay was crafted without input from counsel and was based on the trial judge’s misapprehension that the firearms-related charges were the only charges for which Mr. Brown was arrested on October 15, 2020.

[6] Mr. Brown was acquitted of the drug possession charge and convicted of the drug trafficking charge. Given the trial judge’s misapprehension about the timing of the charges, Mr. Brown sought to reopen his Charter application to argue that the stay should be extended to the drug trafficking charge. The trial judge acknowledged her error but declined to reconsider the remedy she had imposed.

[7] Both the Crown and Mr. Brown appeal the trial judge’s decision to grant a partial stay on the s. 24(1) application. Mr. Brown again contends that the stay should extend to the drug trafficking charge. The Crown argues that no stay of any charges was warranted. Both agree there is no basis to treat the charges differently.

[8] For the reasons set out below, I conclude the trial judge erred in granting a partial stay. The Crown concedes that the forcible, unannounced entry into Mr. Brown’s residence violated his rights. I agree with the trial judge that a partial stay could be an appropriate remedy in some exceptional cases. Based on the principles in Babos and the evidence in this case, however, neither a full nor partial stay of the charges was justified given the existence of alternatives that would serve to dissociate the court from the police misconduct and reduce the risk that such conduct will persist going forward. In my view, a just and appropriate remedy would be a strongly worded reprimand of the police misconduct and a direction that Mr. Brown’s sentence could be reduced, based on the violation of his rights, if he is convicted of one or both of the firearms-related charges. I would accordingly grant the Crown’s appeal, dismiss Mr. Brown’s cross-appeal, vacate the stay order, and order a continuation of the trial on the two firearms charges.

Background

[9] Mr. Brown came to the attention of police in early 2020 through private communications they intercepted. The police had obtained judicial authorization for the interceptions as part of Project Sunder, a multi-jurisdictional investigation of the Eglinton West Crips, a gang suspected of criminal activity, including trafficking in firearms and narcotics.

[10] Based on the intercepted communications, the police believed that Mr. Brown would be involved in a firearm transaction on May 26, 2020. A surveillance team was put in place that day in front of Mr. Brown’s residence at 18 Morning Dew Crescent in Brampton. Mr. Brown emerged from the residence with a black knapsack and entered the front passenger door of a BMW sedan parked outside. When Mr. Brown exited the car several minutes later, he no longer had the knapsack. Another individual then got out of the car, placed the knapsack in the trunk, got back in the car and drove away. The police followed the BMW and arrested the driver, who was the sole occupant, for unauthorized possession of a firearm. They found a black knapsack in the trunk containing a .22 calibre handgun, with the serial number defaced, inside a sock. Despite this, the police elected not to arrest Mr. Brown that day.

[11] Based on further intercepted communications from May to July 2020, the police believed that Mr. Brown was trafficking in cocaine and would purchase a large quantity of the drug on July 14. He was followed by a surveillance team to a residential area in Brampton that day. Mr. Brown parked, exited his vehicle, and entered the back of a black Acura occupied by another man.

[12] The police moved in to arrest the men in the Acura. Mr. Brown jumped out of the car and fled, followed by two officers. A long foot chase ensued, during which Mr. Brown repeatedly ignored orders to stop. Mr. Brown eventually lost his footing, fell, and was apprehended by the officers.

[13] The police searched the Acura incident to the arrest. They found hard and powdered cocaine in the rear passenger seat where Mr. Brown had been sitting. They also found $3,685 in Canadian currency, dried cannabis, and two phones, one of which belonged to Mr. Brown.

[14] Police obtained and executed a search warrant at 18 Morning Dew Crescent later that day. Based on this search, they confirmed that Mr. Brown was occupying the basement unit. The search yielded a variety of drugs, including Oxycocet and cocaine, over $4,000 in Canadian currency, baggies, a debt list, and two cell phones. The police also found 93 rounds of .22 LR – HP ammunition in Mr. Brown’s residence.

[15] Based on the items found in the Acura and in Mr. Brown’s residence, he was charged with three counts of possession of drugs for the purpose of trafficking and one count of possession of property obtained by crime. [3] He was released the next day on an undertaking to appear.

[16] The police chose October 15, 2020, as “takedown day” for Project Sunder. Warrants were obtained to arrest multiple suspects and search multiple residences. This included a Feeney warrant to enter Mr. Brown’s residence at 18 Morning Dew Crescent to arrest him for trafficking in firearms on or around May 26, 2020, and for trafficking in cocaine in July 2020.

[17] The affidavit or information to obtain (ITO) was sworn by Detective Constable Andrew Johnston, an officer in the Organized Crime Enforcement Unit – Major Project Section. In the ITO, he described Project Sunder, detailed the intercepted communications that led police to set up surveillance of Mr. Brown on May 26 and July 14-15, 2020, and related what police had observed and the evidence they had seized on those days. Based on this information, as well as the results of further surveillance of Mr. Brown, DC Johnston expressed the view that Mr. Brown had engaged in drug and weapons trafficking, and that he would be present at 18 Morning Dew Crescent when the warrant was to be executed. DC Johnston’s ITO did not ask for authorization for a no-knock entry, nor did he explicitly state that there were grounds to suspect that prior announcement of the police officers’ entry would expose them or any other person to imminent bodily harm or death.

[18] A Feeney warrant was issued on October 9, 2020. It authorized the police to enter the basement unit at 18 Morning Dew Crescent to arrest Mr. Brown at any time between 9:00 a.m. on October 9 and 11:59 p.m. on October 15, 2020, so long as the police had reasonable grounds to believe that he would be in the residence when the warrant was executed. It did not authorize a no-knock entry.

[19] The officer in charge of executing the Feeney warrant was Detective Justin Gomes. It is not clear on the record how long DC Gomes had been a police officer. [4] In October 2020, he was working in the Toronto Police Services’ Guns and Gangs unit on a street team.

[20] Based on his evidence at the application hearing, DC Gomes’s involvement in the execution of the Feeney warrant on Mr. Brown’s residence began at 4:00 a.m. on October 15, 2020, and ended two hours later. He had not had any previous dealings with Mr. Brown. DC Gomes and the five other officers tasked with executing the warrant were provided with a briefing package that included a photo of Mr. Brown, a map showing his address, and a list of the charges that would be laid against him on his arrest.

[21] DC Gomes testified that the team discussed how the warrant would be executed, including the manner of entry. They had been told that Mr. Brown lived in a basement apartment at 18 Morning Dew Crescent which could only be accessed through the garage. Another officer on the team, DC Getty, testified that the team was told at the briefing that they could expect to find Mr. Brown and his girlfriend in the apartment. He did not see the Feeney warrant.

[22] According to DC Gomes, the plan was first to knock on the door of the unit on the main floor in order to gain access to the garage. The team would then go through the garage to the door to Mr. Brown’s apartment. If it was unlocked, they would simply open it and go inside. If it was locked, they would breach it forcibly. DC Gomes acknowledged that he alone made the decision not to knock and announce. It was not the result of any discussion at the briefing.

[23] Based on the contemporaneous notes taken by a third team member who testified, DC Dunlop, the team knocked on the front door of the upstairs apartment at 18 Morning Dew Crescent at 5:05 a.m. on October 15, 2020. The occupant answered. He was cooperative and directed the six officers to the basement unit. In cross-examination, DC Gomes did not recall asking the upstairs tenant if he had a key to Mr. Brown’s apartment.

[24] The door to Mr. Brown’s apartment was locked, so DC Gomes and his team used a battering ram to knock it down. They did not knock or otherwise announce their presence before doing so. Once the door was open, all six officers rushed into the apartment with their firearms raised.

[25] Asked why he used the battering ram instead of knocking, DC Gomes testified that he understood that Mr. Brown was to be charged with trafficking firearms and narcotics. He did not know when the trafficking was alleged to have occurred. He also understood that Mr. Brown had tried to run from police during an earlier arrest. He stated that, “for the safety of myself and my officers and the residents of 18 Morning Dew”, it was important to gain entry and arrest Mr. Brown as quickly as possible.

[26] In cross-examination, DC Gomes admitted that he did not know whether the Feeney warrant authorized a no-knock entry or if a dynamic entry had been requested or authorized in the ITO. He understood that a Feeney warrant could be executed using a dynamic entry without prior judicial authorization on a “case by case scenario”. Given the information at his disposal on October 15, 2020, he reiterated that he thought a dynamic entry was the safest method to use “for the safety of [his officers], for the safety of [Mr. Brown], as well as the residents upstairs”, since he was unsure whether Mr. Brown had access “to firearms or any type of weapons at that time”.

[27] DC Dunlop testified that he had been involved in over one hundred dynamic entries using battering rams, and agreed that the Guns and Gangs unit’s use of a ram was “fairly common”. He did not clarify, nor was he asked, whether he was referring to entries executed pursuant to a search warrant or a Feeney warrant.

[28] DC Getty was the first officer to enter the bedroom, where Mr. Brown and his girlfriend, Danielle Agapen-Mullings, were in bed covered by a blanket. When the blanket was ripped off, they were revealed to be nude. DC Getty handcuffed Mr. Brown, then pulled him off the bed. According to DC Getty, he put a pair of boxer shorts he found on the ground on Mr. Brown prior to leading him into the living room. DC Getty testified that, within five minutes, he got other clothing for Mr. Brown and assisted him in putting them on, since Mr. Brown was still handcuffed. He recalled that Ms. Agapen-Mullings was given something to cover herself.

[29] Mr. Brown testified that he was awoken by the police breaking the door down. He thought he was being robbed. Officers then burst into the bedroom with guns drawn, shouting at him and identifying themselves as police. Mr. Brown described the experience as disorienting and traumatic. His evidence about being given underwear and clothing after being handcuffed was broadly consistent with DC Getty’s evidence.

[30] Ms. Agapen-Mullings said she was woken by a loud bang on the door and men shouting “police”. She testified that, after the blanket was ripped off her and Mr. Brown, she was directed to get up and go to the living room. She had nothing to cover herself as she did this. She was told to sit on the couch and was given a blanket before she did so. It was not until after the officers left, however, that she had an opportunity to get dressed. Ms. Agapen-Mullings testified that she was scared, confused, and embarrassed by what happened. The trial judge found Ms. Agapen-Mullings was traumatised by the events of that morning.

The trial judge’s ruling on the stay application

[31] After the Crown closed its case, the trial judge heard an application by the defence to stay all charges. Mr. Brown contended that the forcible, unannounced entry by police into his residence on October 15, 2020, violated his right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; under s. 7 of the Charter; his right against unreasonable search and seizure under s. 8; and his right against arbitration detention under s. 9. [5]

[32] The Crown conceded that the unannounced, forcible entry by police into Mr. Brown’s residence violated his rights under ss. 8 and 9. The trial judge held that it also violated Mr. Brown’s s. 7 rights.

[33] With respect to remedy, the trial judge held that the violations did not compromise the fairness of Mr. Brown’s trial, since no search was performed and no evidence was seized when the Feeney warrant was executed. The police misconduct therefore fell into the residual category of state misconduct that does not threaten trial fairness but risks undermining the integrity of the judicial process.

[34] Based on Babos, at para. 32, a stay of proceedings is warranted only if three requirements are met:

(1) There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is uncertainty about whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [Citations omitted.]

[35] On the first requirement, the trial judge summarized the law regarding police entry into a private residence for the purpose of arrest. The Feeney warrant in this case did not authorize an unannounced, dynamic entry, and the officers who executed it “did not pay attention to what the warrant authorised them to do”. Furthermore, no circumstances arose after the warrant was issued that would warrant a no-knock dynamic entry, nor “was it the case that the officer in charge of executing the warrant looked at it, and in considering the information available to him, made the determination that in fact an unannounced entry was necessary and so returned to the [officer who swore the ITO] to discuss why one had not been requested”.

[36] The trial judge concluded that:

The officers here had no regard for what they were judicially authorised to do. They treated the warrant as if it were a search warrant and did not consider that a Feeney warrant is a different and distinct warrant. The officer in charge of the execution of the warrant testified that he could not recall if he had read the warrant. And could answer only “possibly” to the question of whether or not he was aware that for Feeney warrants the affiant can request an unannounced and/or dynamic entry.

[37] The trial judge found that this disregard for the terms of the Feeney warrant was “offensive to our societal notions of fair play and decency” and undermined the integrity of the justice system.

[38] On the second requirement, the trial judge considered whether there was an alternative remedy, short of staying all charges sought by the defence, that would redress the prejudice caused by the Charter violations. She rejected the Crown’s suggestion that paying for the damage to Mr. Brown’s door or reducing his sentence would be adequate remedies. She also rejected the Crown’s suggestion of a judicial reprimand because a “sternly worded judgment does not address police conduct which ignored the terms of a judicial order”.

[39] The trial judge found that, in the “unique circumstances of this case”, it was possible to stay the firearms-related charges only. Her reasoning on this point was based on her misunderstanding that these were the only charges on which Mr. Brown was arrested following execution of the Feeney warrant, when in fact he was also arrested for drug trafficking.

[40] On the third requirement, balancing the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits, the trial judge found no evidence of a systemic issue within the Toronto Police Service. She was, however, deeply concerned that the officers involved in this case did not have any understanding of the differences between a Feeney warrant and a search warrant:

When the police act on a judicial authorisation, but do not review and consider its terms, a serious affront to the judicial authorisation process, and in turn to the integrity of the justice system, occurs. Here I do not have the evidence before me to suggest that this is a systemic ongoing problem, but the evidence I do have suggests that the officers involved were either not aware of, or did not understand, the important distinction between Feeney warrants and search warrants. I have heard evidence that most warrants executed by the Guns and Gangs unit are no knock dynamic entries. I have not heard evidence as to how many of those warrants are Feeney warrants, and of those Feeney warrants how many actually authorised this type of entry. None of the officers who testified appeared to understand or appreciate the difference.

[41] The trial judge considered that the identities of those affected by the dynamic entry was another relevant factor. Citing R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, and R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, she found that it was “particularly egregious that, as members of a racialized community with a history of over policing which has been, and continues to be, acknowledged by our Court of Appeal and Supreme Court, [Mr. Brown and his girlfriend] were subjected to such an invasion of their dignity and privacy without judicial authorisation”.

[42] The trial judge concluded that, in balancing the competing factors, it was important that there was a remedy available, a partial stay, which provided for a disposition on the merits of some very serious charges, “while staying the charges most directly related to the impugned conduct”. Considering the unique circumstances of the case, she held that a stay of the gun-related charges but not the drug charges was a just and appropriate remedy.

The trial judge’s decision on the application for reconsideration

[43] Following the trial judge’s ruling on the stay application, Mr. Brown was found guilty of trafficking cocaine between May 1 and July 15, 2020, for which he was sentenced to 15 months in custody. [6] He was acquitted on the charge of possession for the purpose of trafficking on July 14, 2020; the trial judge concluded he had not occupied the Acura long enough for the Crown to establish possession and that the Crown had also not proved all the requisite elements of attempted possession.

[44] Before Mr. Brown was sentenced for drug trafficking, he applied for leave to reopen the stay application based on the trial judge’s misapprehension about the charges on which he was arrested on October 15, 2020. He argued that, since he had been charged with drug trafficking as well as gun related offences that day, the three charges were all directly related to the impugned police conduct and should all have been stayed.

[45] In her decision on the motion to reopen the application, the trial judge recognized that her error of fact affected the second and third Babos requirements. She stated that, absent her error, she could have considered a stay of the drug trafficking charge rather than the firearms charges. She nonetheless declined to stay the drug trafficking charge because, in her view, “the prejudice [caused by the police misconduct] has already been redressed and society’s interest in the prosecution of the remaining count prevails”.

The parties’ positions on the appeal and cross-appeal

[46] The Crown contends that this court should set aside the partial stay because the trial judge both misapprehended the facts underlying the application and failed to consider factors relevant to remedy. It argues that, on a proper Babos analysis, no stay of proceedings was warranted.

[47] Mr. Brown agrees that the trial judge misapprehended the charges for which he was arrested on October 15, 2020. He contends that this court should nevertheless defer to her other findings of fact. Based on these findings, he argues that a stay of all charges related to the police misconduct, including the drug trafficking charge, is the only just and appropriate remedy for the breach of his Charter rights.

General principles with respect to Feeney warrants and the “knock and announce” rule

[48] The state does not have unrestrained power to enter a person’s private residence for the purpose of arrest. This principle, as well as the accompanying “knock and announce rule”, have been recognized in common law for hundreds of years. In a passage from Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 cited by the Supreme Court of Canada in Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 743, the Court of King’s Bench held that “the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose” and that, accordingly: “In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the [King’s] process, if he cannot otherwise enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”

[49] The Supreme Court of Canada affirmed and elaborated on this principle in Eccles v. Bourque. At p. 744, the Court held that “[e]ntry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry.”

[50] In its 1997 decision in Feeney, at para. 43, the Supreme Court held that the principle acquired more weight with the advent of the Charter, as “the legal status of the privacy of the home was significantly increased in importance”. Feeney led to the adoption in the Criminal Code of specific limits concerning when and how police can enter a private residence to arrest a suspect.

[51] In the absence of exigent circumstances, ss. 529 and 529.1 of the Criminal Code require that the police obtain prior judicial authorization, by way of a Feeney warrant, before entering a residence to arrest a suspect. In executing the warrant, they are presumptively required to knock on the suspect’s door, identify themselves as police, and give the suspect an opportunity to answer the door before entering forcibly: Eccles, at p. 740; Feeney, at para. 26.

[52] Police who have obtained a Feeney warrant may enter a residence unannounced only if they have sought and obtained prior judicial authorization to do so under s. 529.4(1) of the Criminal Code, or if the exceptional circumstances set out at s. 529.4(3) are met. Before authorizing an unannounced entry, the issuing judge must be satisfied by information on oath that there are reasonable grounds to believe that prior announcement of the entry would either:

(a) expose the peace officer or any other person to imminent bodily harm or death; or

(b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

[53] Even where the police obtain a Feeney warrant that permits entry into a dwelling unannounced, s. 529.4(2) states that a no-knock entry is not permitted unless the executing officer has, immediately before entering, either reasonable grounds “to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death” or “reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence”. Likewise, under s. 529.4(3), if the police have not obtained a warrant to enter the residence under s. 529.3, they may only enter without prior announcement if these same conditions are met immediately before they enter.

[54] The purpose of the knock and announce rule is two-fold. First, it is intended to “minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the door and surrendering himself”: Feeney, at para. 50, citing R. v. Landry, [1986] 1 S.C.R. 145, at p. 161. In addition, the rule promotes the safety of both the suspect and the police. As stated in Eccles, at p. 746: “An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.”

[55] The dual justification for the knock and announce rule was reiterated in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 19. The rule “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public”.

The trial judge committed errors of fact and law warranting this court’s intervention

[56] As recently reiterated in R. v. Brunelle, 2024 SCC 3, at para. 79, an appellate court should intervene in a trial judge’s decision on a Charter application “only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is ‘so clearly wrong as to amount to an injustice’”: Babos, at para. 48, citing R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 19; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15, 51.

[57] In my view, the trial judge made reversible errors.

[58] First, as the trial judge herself acknowledged in her decision on Mr. Brown’s application for reconsideration, she incorrectly thought that Mr. Brown was charged with only gun-related offences following the execution of the Feeney warrant. This error was material because it formed the basis for her assessment of the appropriate remedy for the police misconduct under the second Babos requirement, and the balancing of the competing interests at play at the third stage.

[59] This case underscores why a court should advise parties before ordering a remedy or advancing a theory not proposed by the parties, as held in Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 5; and Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.), at paras. 60-63. Procedural fairness is not the only basis for this rule. It also safeguards courts against error. Had the trial judge given the Crown and the defence notice that she was considering a partial stay in this case, the parties would have had an opportunity to correct her misunderstanding of the underlying facts as well as to make submissions on the appropriateness of a partial stay.

[60] The trial judge’s misapprehension of the facts underlying the application led her to conclude incorrectly that the gun-related charges were “most directly related to the impugned conduct”, and that it was therefore just and appropriate to stay those charges while permitting the drug-related charges to proceed.

[61] There is no principled reason why a partial stay would not be just and appropriate in some circumstances, in my view. In R. v. L.L.S., 2009 ABCA 172, 457 A.R. 113, a partial stay of charges against an accused who had been illegally strip-searched by police was upheld. The accused was charged with mischief based on her disruptive conduct prior to being brought to the police station, and with assaulting a police officer at the station after being told she would be strip-searched. The trial judge stayed the assault charge, but not the mischief charges. The accused appealed, arguing that all charges should have been stayed. The Court of Appeal of Alberta held that “[i]n deciding what remedy is ‘appropriate and just’ the trial judge is entitled to consider any temporal or causative factors, and the entire factual context”: L.L.S., at para. 3. It concluded that the partial stay order was reasonable in the circumstances.

[62] The Crown has not persuaded me that the court’s endorsement of a partial stay in L.L.S. reflected a lack of consideration as to whether such a remedy should ever be imposed or that the overturning of a partial stay in Regan stands for the blanket proposition that this remedy should never be considered.

[63] This does not mean, however, that a partial stay is just and appropriate in this case. There are no temporal or causative factors that distinguish the gun-related charges from the drug trafficking charge. Although the police alleged that Mr. Brown engaged in the firearms-related offences in May 2020 and the drug trafficking a short time later, all these charges formed the basis for the application for the Feeney warrant. They are therefore all connected to the Charter violations flowing from the no-knock execution of the warrant. As a result, the partial stay ordered here had no rational basis for distinguishing the two firearms offences from the drug trafficking offence.

[64] In addition, the trial judge erred in failing to consider remedies alternative to a stay or partial stay.

[65] The trial judge summarily rejected the Crown’s suggestion that reducing Mr. Brown’s sentence would be a meaningful remedy. Alluding to Babos, she stated that such a remedy “would only serve to accomplish exactly what Justice Moldaver clearly stated is not the goal here, compensating Mr. Brown. Attaching a monetary figure, or attributing worth in a number of custodial days, months, or even years is not an appropriate method of dissociating the judicial system from the impugned conduct.”

[66] This analysis unduly limits the remedies available for violations of rights in the residual category. When the residual category is invoked, remedies are directed to mitigating prejudice to the integrity of the justice system on a go-forward basis. Since the accused’s fair trial rights have not been directly affected, an appropriate and just remedy will not serve to “fix” or undo a problem created by police misconduct, such as excluding evidence which was illegally seized. The focus on restoring public confidence in the justice system does not preclude the possibility, however, that a just and appropriate remedy for a wrong in the residual category will dissociate the justice system from state misconduct while incidentally providing some benefit to the accused.

[67] The trial judge categorically dismissed the possibility that alternative remedies to a stay were available. In my view, she erred. Sentence reduction has repeatedly been recognized as a just and appropriate s. 24(1) remedy: R. v. Mills, [1986] 1 S.C.R. 863, at pp. 974-79. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 60, Lebel J. identified numerous cases where a sentence reduction was ordered as a just and appropriate remedy for s. 7 breaches.

[68] Given the trial judge’s errors, I find that this court must conduct a fresh analysis of a just and appropriate remedy in this case.

What was the appropriate remedy in this case?

(1) The police misconduct undermined the integrity of the justice system

[69] There is no basis to intervene with the trial judge’s findings on the first Babos requirement.

[70] The conduct of the Toronto Police Service in this case is deeply concerning. The officer in charge of the team that executed the Feeney warrant did not understand the difference between a search warrant and a Feeney warrant. This is important because of the specific statutory constraints on the entry of police into a private residence for the purpose of the arrest. Given that he was not aware of these constraints, DC Gomes did not make the assessment required by s. 529.4(3) of the Criminal Code. In fact, neither he nor the other officers who executed the Feeney warrant even read it, even though it was only a page long. [7] I see no basis for interfering with the trial judge’s finding that the officers “had no regard for what they were judicially authorised to do”.

[71] In their response to the stay application and again on this appeal, the Crown suggested that the failure to obtain authorization for an unannounced entry into Mr. Brown’s residence was an accidental oversight. This suggestion is not grounded in the evidence.

[72] The form used by the Toronto Police Service to apply for a Feeney warrant is pre-populated with a potential order for an unannounced police entry. If such an order is sought, the officer who completes the application is simply required to initial a space included on the form for this purpose. The officer who authored the ITO here, DC Johnston, did not do so. Nor did he affirm, in the ITO, that there were reasonable grounds to believe that a prior announcement at Mr. Brown’s door would expose anyone to imminent bodily harm or death or would result in the imminent loss or imminent destruction of evidence. A potential seizure of evidence was not contemplated, and no search of the residence was performed when Mr. Brown was arrested on October 15, 2020.

[73] In the ITO, DC Johnston states that he had been a police officer since 2006 and has authored “numerous Warrant Affidavits”. He was not called as a witness at the hearing of the stay application and there was no evidence establishing that he or any other officer intended to obtain judicial authorization for a dynamic, no-knock entry.

[74] The Crown also suggests that, because the warrant permitted execution at any time of the day or night over a six-day period, it was understood that an unannounced police entry was foreseeable. I do not agree that this can be inferred. It could equally be argued that the broad temporal scope of the Feeney warrant made a dynamic entry less necessary rather than more so. The police would have an ample element of surprise if they executed the warrant in the middle of the night or early in the morning (as they in fact did).

[75] The Crown relies on the principle articulated in Cornell, at para. 20, that s. 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present. For the purpose of this appeal, it is unnecessary to determine whether the standard for an unauthorised dynamic entry at s. 529.4(3) of the Criminal Code is different than the standard developed in the case law in the context of police entry for the sole purpose of a search. As further held in Cornell, at para. 25, a trial judge’s findings of fact must be afforded substantial deference. Here, the trial judge found that no exigent circumstances justifying an unannounced and unauthorised forcible entry emerged after the Feeney warrant was issued. Since the Crown has not established that this finding was the result of palpable and overriding error, it is not open to this court to revisit the question of whether, based on the facts known to the Toronto Police Service, a dynamic entry was warranted.

[76] Having made these findings, the trial judge concluded that:

It is offensive to our societal notions of fair play and decency when the police through ignorance or carelessness choose to ignore the terms of a judicial authorisation and take it upon themselves to force their way into someone’s home, damaging the door and storming into the bedroom where people are asleep and naked.

[77] I agree. It was therefore open to the trial judge to conclude the court must dissociate itself from the police misconduct in this case to mitigate any further harm to the integrity of the justice system.

(2) There are alternative remedies to a stay capable of redressing the prejudice

[78] In my view, there are remedies alternative to a stay capable of addressing the prejudice the police misconduct caused to the justice system in this case.

[79] As Mr. Brown’s fair trial rights are not in peril due to the police misconduct, the focus of the remedy in this case is mitigating the risk of ongoing or future harm to the justice system as a result of the Charter violations. A stay or partial stay would potentially reduce the possibility that similar misconduct and rights violations would reoccur. There are other remedies that would also achieve this goal, however.

[80] A strongly worded reprimand by this court of the disregard shown by the Toronto Police Service for Mr. Brown’s Charter rights while executing the Feeney warrant would both dissociate the court from the Charter violations and warn police of the consequences of failing to ensure that these rights are protected. In the wake of such a reprimand, if similar police misconduct were to occur in another case, it would be open to an application judge to find that a stay of proceedings was the only just and appropriate remedy.

[81] A reduction of sentence could also be a feature of a just and appropriate remedy in the circumstances. It would demonstrate the court’s concern with the Toronto Police Service’s disregard for Mr. Brown’s Charter rights and emphasize the need for judicial authorization for a no-knock execution of a Feeney warrant. It would also incidentally provide some redress to Mr. Brown for what he and Ms. Agapen-Mullings experienced on October 15, 2020. As mentioned earlier, such redress is not the focus of a s. 24(1) remedy, but it may be an appropriate by-product.

(3) Balancing the competing interests at play, a stay is not warranted

[82] The third Babos requirement directs the court to balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits. This balancing is often critical in cases involving the residual category. As explained in Babos at para. 41:

Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. […] When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[83] When a stay is granted, “the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court”; Babos, at para. 30. A stay has accordingly been described as the “ultimate remedy” and the “most drastic remedy a criminal court can order”: Tobiass, at para. 86; Regan, at para. 53; Brunelle, at para. 112. It is granted only in the clearest of cases.

[84] Stays of proceedings are particularly exceptional in cases falling within the residual category. In Tobiass, at para. 91, the Supreme Court held that a stay for state misconduct that does not affect fair trial rights would only be just and appropriate where the state misconduct is likely to continue in the future, or where the carrying forward of the prosecution will offend society’s sense of justice. In general, however, “society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue”; Tobiass, at para. 91. As a result, if there is no evidence that the impugned conduct represents a systemic problem, a stay is generally not justified and appropriate.

[85] As acknowledged by the trial judge, the evidence falls short of establishing that the disregard shown in this case for Mr. Brown’s rights is an ongoing systemic problem. Although the ignorance of the distinction between a Feeney warrant and a search warrant shown by DC Gomes and the other officers who testified is very concerning, there is no evidence that it is widely shared in the Toronto Police Service, or that dynamic entries by its Guns and Gangs Unit are generally unauthorized or unjustified. This situation can therefore be distinguished from recent cases where Ontario courts have found that local police forces have adopted unauthorized forcible dynamic entries as a blanket policy, without regard for the specific situation. In R. v. Bahlawan, 2020 ONSC 952, at para. 44, and in R. v. Harper, 2024 ONSC 925, at para. 29, the Ottawa Police Service as a whole were found to have adopted no-knock, forcible entry as the default method of entry to execute all search warrants. In R. v. Russell, 2024 ONSC 529, at para. 62, the court found that police in Hamilton were using dynamic entry over 90% of the time. There is no similar evidence here.

[86] The misconduct in this case is furthermore not so egregious, in my view, as to represent the “very rare” case where the mere fact of going ahead with the prosecution of the gun-related charges would be inherently offensive.

[87] In my view, there was no evidentiary basis for the trial judge to find that this was an exceptional case simply because Mr. Brown and Ms. Agapen-Mullings are Black.

[88] Citing Le and Morris in support, the trial judge found that the forcible, unannounced entry in this case was “particularly egregious” because “as members of a racialized community with a history of over policing which has been, and continues to be, acknowledged by our Court of Appeal and Supreme Court, [Mr. Brown and Ms. Agapen-Mullings] were subjected to such an invasion of their dignity and privacy without judicial authorisation”.

[89] Le and Morris do not establish that police misconduct towards a member of a racialized community is axiomatically more egregious. In Le, the Supreme Court held that an individual’s experience as a member of a racialized community could affect whether they would believe they were being detained by police such that their s. 9 rights were engaged. In Morris, this court held that social context evidence, including evidence of systemic racism, could inform an offender’s moral blameworthiness and hence be relevant to the determination of a fit sentence.

[90] There is nothing linking Mr. Brown’s race and the police misconduct in executing the Feeney warrant. He was identified as a suspect based on intercepted communications. There was no evidence that he was targeted by police due to his race or that his race played any role, consciously or unconsciously, in the decision by the police to execute a dynamic, unannounced entry. Neither Mr. Brown nor Ms. Agapen-Mullings testified that they were more affected or traumatized by the dynamic entry because of their race.

[91] Finally, the nature and gravity of the gun-related charges against Mr. Brown, and the interest that society has in having these charges adjudicated on their merits, weigh heavily against a stay or a partial stay.

[92] Having balanced the competing considerations, I conclude that a stay is not warranted.

[93] I would, however, denounce the conduct by the Toronto Police Service officers in this case. They did not understand the distinction between a Feeney warrant and a search warrant; they were not aware of the onerous criteria for an unannounced entry set out in s. 529.4(3) of the Criminal Code; and they did not understand that they were required to comply with the terms of the warrant that was issued. As found by the trial judge, they disregarded the judicial authorization they had been given. Although DC Gomes testified that he considered dynamic entries on a “case by case” basis, there is no evidence that he and his team ever considered any other approach. Their execution of the Feeney warrant violated Mr. Brown’s Charter rights, embarrassed and traumatized Mr. Brown and Ms. Agapen-Mullings, and imperiled a prosecution for weapons and guns trafficking and possession. Had there been evidence that the approach used in this case represented a blanket policy of the Toronto Police Service’s Guns and Gangs unit, a stay may have been a just and appropriate remedy, subject to the balancing exercise mandated by the third Babos requirement. Should evidence of a blanket or default policy of no-knock, dynamic entries within the Toronto Police Service emerge in future cases, stays of equally serious proceedings should be expected.

[94] Should Mr. Brown be found guilty of one or both of the gun-related charges previously stayed, it would be fitting for the sentencing judge to consider whether his sentence should be reduced to reflect the impact of the police misconduct on him.

Disposition

[95] I would allow the Crown’s appeal, vacate the partial stay, and order a continuation of the trial on the two firearms charges. I would dismiss Mr. Brown’s cross-appeal.

Released: June 7, 2024 “E.E.G.” “S. Gomery J.A.” “I agree. E.E. Gillese J.A.” “I agree. Thorburn J.A.”

Footnotes

[1] It is called a Feeney warrant because the Criminal Code provisions governing these warrants were inspired by the Supreme Court of Canada’s decision in R. v. Feeney, 1997 SCC 342, [1997] 2 S.C.R. 13.

[2] Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[3] For reasons unclear on the record, it appears that the charge of possession of property obtained by crime was not pursued.

[4] The transcript of his testimony indicates that his answer to this question was indecipherable.

[5] In the same application, Mr. Brown alleged that his rights under s. 10(b) had been violated due to a delay in his access to counsel. The trial judge found that the police acted reasonably in the circumstances. I will not review her reasons on this issue since they are irrelevant to the appeal.

[6] Based on credit for time spent in detention pre-trial, Mr. Brown served another eight months after being sentenced.

[7] Although only three of the officers involved testified, I infer that the other officers would have given the same evidence.