Court File and Parties

Date: 2015-05-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Syle Turner

Before: Justice M. Greene

Reasons for Judgment released on May 25, 2015

Counsel:

• N. Bailey for the Crown
• P. Lam for the Defendant

Greene J.:

Introduction

[1] On August 12, 2012, the police attended at Mr. Turner's residence in response to a 911 call about his physical health. While in his residence the police located a firearm. A warrant was then obtained and a second firearm was found. Mr. Turner was then arrested and charged with numerous gun related offences. At his trial the sole issue was the lawfulness of the search. Mr. Turner argued that the search of his room and the subsequent warrant was unlawful and that the firearms should be excluded. Crown counsel argued that the search was lawful. In the alternative, she argued that if there was a breach of Mr. Turner's section 8 rights, it was minimal and that the two firearms seized should still be admitted at trial.

Summary of the Evidence at Trial

[2] On August 3, 2012 in the early morning hours, Mr. Richard Preston was walking through the third floor hallway at 34 Little Norway when he saw a male passed out on the floor of the hallway. When Mr. Preston tried to rouse him, the male did not wake. Mr. Preston then attempted to turn the male on this side in case he vomited. The male, however, just rolled back over. Concerned for the male's safety, Mr. Preston called 911.

[3] Mr. Bruce Charters and Mr. Krzystof Dias were the paramedics that responded to the 911 call. They arrived on scene at 1:05 a.m. and went directly to the 3rd floor hallway and saw the male lying, passed out, face down on the hallway floor. Pills were scattered around him along with a hat, pants and shoes. Mr. Charters tried to wake the male. He responded quickly, gathered his shoes and briskly walked down the hallway to the fire escape. The male left before the paramedics had the opportunity to really assess him. He also left the pants, hat and pills.

[4] After the male left, Mr. Charters and Mr. Diaz seized all the items on the floor and returned to the ambulance to await the arrival of the police. Both paramedics had ongoing concerns about the male's safety but did not want to take further steps to locate him without the assistance of the police.

[5] Mr. Dias testified that while waiting for the police, he looked through the pants they seized and located identification inside a wallet. The identification was in the name of Syle Turner, apartment 508 at 34 Little Norway.

[6] P.C. Dawn and P.C. Miller were the first police to arrive on scene. Upon their arrival, Mr. Charters and Mr. Diaz handed over the seized items including the pants. The pills were placed in a bag. P.C. Dawn noted that there were 22 pills in total and they did not appear to be all the same kind of pills.

[7] Upon receipt of the identification, PC Dawn conducted a quick computer check on the name Syle Turner and discovered that he had a history of violence and weapons.

[8] The paramedics were still concerned about the well-being of Mr. Turner but they also had safety concerns about going to the apartment alone. As a result, the police escorted them to the unit.

[9] At 1:30 a.m., the paramedics and the officers attended unit 508. P.C. Dawn knocked on the door and a woman, later identified as Mr. Turner's mother, Ms. Everett, answered the door. The police advised Ms. Everett that Mr. Turner had been found unresponsive on the third floor hallway floor with pills scattered around him. They further indicated that the paramedics wanted to assess Mr. Turner. The officers and the paramedics both interpreted Ms. Everett's conduct at the door as an invitation to enter the apartment.

[10] Ms. Everett testified that when the police arrived with the paramedics they did express concern about Mr. Turner, but she did not explicitly consent to them entering her home. Instead, they just entered after advising her of her son's situation. Ms. Everett testified that she did not understand why everyone was so concerned as Mr. Turner had entered the unit a few minutes earlier and while he seemed intoxicated, he otherwise appeared fine. Upon entering the unit he went to sleep on the living room couch.

[11] This is where the paramedics found Mr. Turner. Upon entering the unit, they approached Mr. Turner and once again tried to wake him. According to the paramedics, Mr. Turner awoke easily but became immediately resistant to any kind of assessment. The paramedics testified that Mr. Turner eventually allowed them to take his vital signs but would not let them conduct any further assessment. Mr. Turner appeared agitated and at times paced through the unit and into the hallway. He also banged on his chest and on some of the furniture. Mr. Turner became so agitated at one point that at 1:50 a.m., Mr. Charters, one of the paramedics, telephoned the base hospital to obtain permission from a doctor to sedate Mr. Turner. Ultimately, this was not required because once more police officers attended on scene Mr. Turner calmed down and was ultimately arrested.

[12] While the paramedics attended to Mr. Turner, the officers kept back, watched what was taking place and spoke to Ms. Everett. P.C. Dawn and P.C. Miller both testified that Mr. Turner was agitated when dealing with the paramedics, swore at them and was yelling about the police presence in his apartment.

[13] According to the officers, at some point during his interactions with the paramedics, Mr. Turner started to walk around the room. It appeared to them that he was trying to enter a room inside the unit. Given his agitated state, the officers did not permit him access to this room as they were concerned that Mr. Turner would lock himself in a room before the paramedics had a chance to properly assess him.

[14] At some point during their interaction with him, P.C. Dawn noticed Mr. Turner removing his clothing and then kick a glass table. It was at this point that P.C. Dawn called for back-up. As the back-up arrived, Mr. Turner started to pace into the hallway area. Once in the hallway, P.C. Dawn instructed P.C. Miller to arrest Mr. Turner for possession for a schedule 1 drug for the purpose of trafficking. P.C. Miller arrested Mr. Turner with the assistance of P.C. Corba, who had arrived on scene moments earlier with his partner P.C. Hurtado.

[15] P.C. Corba testified that when he arrived on scene he noted that Mr. Turner appeared agitated and was pacing. After assisting P.C. Miller with the arrest, he took Mr. Turner, who was calmer now, down to the scout car. While this was happening, PC Dawn explained the arrest and bail process to Ms. Turner.

[16] As noted above, Ms. Everett also testified at trial. Her evidence differed from that of the officers and the paramedics in a number of ways. As I already noted, she denied expressly allowing the police into her residence. Ms. Everett also denied that Mr. Turner was agitated or difficult with the paramedics except in the immediate moments after he was awoken by the paramedics. Instead, she testified that Mr. Turner was responsive to the paramedics but more and more police officers kept attending the unit and entering without permission.

The Clothing

[17] As previously stated, when the police arrived on scene, Mr. Turner was asleep on the living room couch. The paramedics noted that he was wearing track pants and a shirt. During the course of the interaction with the paramedics, Mr. Turner removed his shirt and pants. While many of the officers could not recall at what point he removed his clothing, it is clear that by the time of his arrest, Mr. Turner was wearing only underwear and socks.

[18] Both P.C. Corba and P.C. Hurtado testified that while Mr. Turner was only wearing underwear and socks at the time of his arrest, he was fully clothed by the time he was taken downstairs to the police cruiser. Neither officer could recall where the clothing came from.

[19] The paramedics testified that they seized a pair of jeans with Mr. Turner's identification in it in the hallway where Mr. Turner was passed out. These jeans were then handed over to the police. None of the officers, however, could recall what happened to these jeans nor could they explain why they were not made available to Mr. Turner later that morning when he was arrested in just his underwear.

[20] P.C. Van Ruyven and P.C. Dobbs were the last officers to arrive on scene. By the time they arrived, Mr. Turner was already arrested. They saw him in handcuffs wearing only his underwear. P.C. Van Ruyven and P.C. Dobbs both testified that upon their arrival a number of officers were already dealing with Mr. Turner, so they decided, without talking to any other officers or to the paramedics, to locate some clothing for Mr. Turner.

[21] P.C. Van Ruyven and P.C. Dobbs did not look in the living room for the clothing nor did they ask Ms. Everett to gather clothing for her son. Instead, they went directly to what they believed to be Mr. Turner's bedroom to look for the clothing. Neither officer could recall how exactly they knew which bedroom belonged to Mr. Turner yet they maintained that they did not speak to any of their colleagues prior to entering the room. P.C. Van Ruyven speculated that upon entering the unit he saw a bedroom with a door slightly ajar, that he looked in and could tell from the contents that it was Mr. Turner's room.

[22] According to P.C. Van Ruyven and P.C. Dobbs, P.C. Van Ruyven entered the bedroom while PC Dobbs remained in the doorway. The room was dark and the officers could not readily locate a light switch. P.C. Van Ruyven had to use his flashlight in order to look for the clothing. P.C. Van Ruyven testified that within moments of entering the room, he located a pair of jeans on Mr. Turner's bed. The jeans were underneath a black shoulder bag, so P.C. Van Ruyven picked up the bag in order to retrieve the jeans. The bag was heavy and the officer looked down and saw what he believed to be a butt of a handgun. The officer then pointed his flashlight inside the bag and confirmed that it was in fact a gun.

[23] P.C. Van Ruyven testified that he then advised P.C. Dobbs that he found a gun, put down the bag and the jeans and left the room. The other officers on scene were advised of the presence of the gun, the unit was "frozen" and steps were taken to obtain a warrant for the unit.

[24] P.C. Van Ruyven ultimately did not retrieve any clothing for Mr. Turner. It was his evidence, that after locating the gun, Ms. Everett found clothing for Mr. Turner and assisted him in getting dressed.

[25] Sgt Beattie attended at the scene shortly after P.C. Dawn and P.C. Miller in response to their call for back up. Sgt. Beattie testified that upon arrival, he took on the role of conversing with Ms. Everett. He asked her for consent to search the room for drugs and attempted to convince her to let the officers into Mr. Turner's bedroom. Ms. Everett refused to give her consent. Sgt. Beattie, later in his evidence revealed for the first time that at some point during their discussion, she ultimately agreed to let the officers enter Mr. Turner's room to locate clothing. At this point, he directed P.C. Van Ruyven and P.C. Dobbs to enter the room. Sgt. Beattie testified that he specifically recalled this consent being given despite the fact that it was not in his memo book.

[26] Sgt. Beattie further testified that after the firearm was discovered, he explained the process to Ms. Everett and explained to her that she had to leave the unit as well.

[27] Ms. Everett testified that the first officer who attended on scene asked her to search Mr. Turner's room. She refused. A second officer approached her later and also asked to search the room. She again refused. This officer then asked her again for her consent and Ms. Everett continued to refuse entry. Ms. Everett adamantly denied ever giving her consent for anyone to enter Mr. Turner's bedroom even to look for clothing. According to Ms. Everett, Mr. Turner had clothing in the living room. In particular, readily available were the items of clothing that Mr. Turner removed when the paramedics were present. Ms. Everett's evidence on this point is supported by the reality that after P.C. Van Ruyven located the gun Ms. Everett easily located clothing in the living room to give to Mr. Turner prior to him being taken to the police station.

The Warrant

[28] Det. Damaso was the affiant for the information to obtain (ITO) the warrant in this case. The warrant to search for a firearm was based solely on the fact that P.C. Van Ruyven located the gun in the bedroom. In the ITO, the Detective wrote that he spoke to P.C. Dawn and P.C. Van Ruyven, He then relayed how the officers discovered the firearm. The content of the ITO closely resembled the evidence of P.C. Dawn and P.C. Van Ruyven at trial. Counsel was granted leave, however, to conduct a limited cross-examination of Detective Damaso.

[29] Det. Damaso, along with P.C. Van Ruyven and P.C. Dobbs all testified that in their mind, the act of entering Mr. Turner's room without consent to locate clothing for him was completely lawful.

[30] At no point did Detective Damaso indicate in the ITO that Ms. Everett's consent had been sought to enter the room and was denied. Nor was there any reference to Ms. Everett consenting to the officers entering the room for the limited purpose of obtaining clothing. Detective Damaso testified that this information was never provided to him. Had it been provided, he would have included it in the ITO.

[31] In preparation of the warrant, Detective Damaso spoke to Sgt. Beattie, P.C. Dawn and P.C. Van Ruyven. None of these officers told him that consent to search the room was sought and denied nor did the officers tell him about the availability of other clothing in the unit. Had he been told this, it would have been included in the warrant.

The Search

[32] P.C. Van Ruyven testified that upon locating the firearm, he advised Ms. Everett that they were going to apply for a search warrant. He further advised her that she was not permitted to remain in the unit at this time. P.C. Van Ruyven testified that this conversation took place at approximately 2:00 a.m.

[33] P.C. Van Ruyven and P.C. Dobbs testified that they then remained outside the front door of the apartment to await the arrival of the warrant in order to ensure that the scene was secure. At 2:50 a.m. the officers received information from Det. Cst. Damaso that the warrant was going to be for Mr. Turner's bedroom only. As a result of receiving this information, the officers re-entered the unit, absent consent of Ms. Everett, and waited at the dining room table for the warrant to arrive.

[34] Sometime after the officers entered the unit without a warrant, Ms. Everett returned, using her own key to enter her apartment. She was advised by P.C. Dobbs that she was not allowed to remain in her own apartment.

[35] Eventually a warrant was obtained to search Mr. Turner's bedroom. Detective Frimeth, P.C. Hagerman and P.C. Poulimenos attended at the apartment to conduct the search. P.C. Hagerman located the bag with the gun on top of the bed. The bag was open and when he lifted the bag he saw the butt end of a pistol. P.C. Hagerman seized this firearm. It was loaded with one bullet in the gun and five or six bullets in the magazine.

[36] P.C. Poulimenos searched the floor of the bedroom. At 8:43 a.m., he was looking at shoe rack that was located on the floor. Inside a black basketball shoe, P.C. Poulimenos found a second gun. It was a black mini gun with a magazine. The officer made sure there was no ammunition inside the firearm and then seized it and put it in an exhibit bag.

[37] All of the search officers testified that they only searched Mr. Turner's bedroom. Ms. Everett testified, however, that when she was finally allowed back into her unit, she found a table beside her bed had been opened.

The Car Keys

[38] Detective Hagerman testified that Ms. Everett was present in the unit during the search. At one point, as they were about to leave the unit, Ms. Everett gave him a set of car keys. As she did so, she stated that the keys did not belong to her. Det. Hagerman took the keys downstairs and attempted to locate the car to which they belonged. The officer found the vehicle associated with the keys and noticed that there was fresh damage to the vehicle. He then ran the plate number attached to the vehicle to determine to whom the vehicle was registered. The vehicle did not belong to Mr. Turner and it did not come up as stolen so he returned to the unit and gave the keys back to Ms. Everett. Det. Hagerman denied searching the vehicle.

[39] P.C. Poulimenos testified that he recalled something about keys to a vehicle but his recollection was limited. He was certain, however, that he did not search this vehicle.

[40] Ms. Everett testified that she was permitted to return to her unit just as the officers were completing their search and were getting ready to leave. As they were leaving they picked up a set of keys that were located on a hutch in the living room. One of the officers asked her about the keys but Ms. Everett did not know to whom they belonged. According to Ms. Everett the officer then took the keys with him. The officer returned approximately ten to fifteen minutes later with the keys. As he returned the keys he asked "who is Kim Riley?" Ms. Everett advised that she is a friend.

[41] Ms. Riley testified that she had lent Mr. Turner her vehicle. This was something she had done in the past. She further testified that the vehicle was always clean and orderly upon its return. When she received her vehicle on this occasion, however, it was a complete mess. Ms. Riley conceded, however, that normally the vehicle return is planned. On this occasion she received it after Mr. Turner's arrest and not part of the pre-organized plan.

Issues

[42] The only issue raised at trial was whether or not the search of the bedroom was lawful.

[43] Counsel for Mr. Turner made the following arguments:

a) P.C. Van Ruyven's entry and subsequent search of Mr. Turner's bedroom was unlawful;

b) As the initial search of the bedroom was unlawful, the search warrant was invalid and the subsequent search was unlawful;

c) The officers violated Mr. Turner's rights under section 8 of the Charter when they sat inside Mr. Turner's residence while awaiting the receipt of the warrant;

d) The police searched other areas of the unit contrary to the limited scope of the warrant;

e) The police searched Ms. Riley's vehicle without anyone's consent further violating Mr. Turner's section 8 rights; and

f) Given all these breaches, the two firearms located in Mr. Turner's bedroom should be excluded.

[44] While Ms. Everett testified that she did not consent to the officers even entering her apartment with the paramedics, counsel did not dispute the legality of the officers' initial entry into the unit nor did he question the lawfulness of the arrest of Mr. Turner. I will therefore not address these issues in my judgment.

A) The Initial Search of the Bedroom Without a Warrant

(i) Was the Entry Into Mr. Turner's Bedroom by P.C. Van Ruyven a Search?

[45] P.C. Van Ruyven was the officer who first located the firearm. As such, his evidence is crucial to this inquiry. According to P.C. Van Ruyven's evidence, by the time he arrived on scene, Mr. Turner was already arrested. If P.C. Van Ruyven's evidence is to be believed, upon seeing a largely undressed Mr. Turner in handcuffs, he went to Mr. Turner's bedroom solely for the purpose of locating clothing for Mr. Turner to preserve his dignity and ensure that he did not leave the building clothed only in his underwear.

[46] P.C. Dobbs, who arrived on scene with P.C. Van Ruyven, also testified that upon entering the unit, she and P.C. Van Ruyven went directly to Mr. Turner's room in order to locate clothing for him.

[47] Counsel for Mr. Turner urged me to reject this evidence and find that P.C. Van Ruyven went into the bedroom for the sole purpose of looking for drugs and used the excuse of looking for clothing as a pre-text to justify the search. In making this submission, counsel for Mr. Turner pointed to the following reasons to reject P.C. Van Ruyven's evidence:

a) That Sgt Beattie's evidence contradicted P.C. Van Ruyven's evidence in that Sgt. Beattie testified that he instructed P.C. Van Ruyven to enter the bedroom while P.C. Van Ruyven testified that he went there on his own initiative;

b) P.C. Van Ruyven's evidence, that without talking to anyone else he went directly to Mr. Turner's room to look for clothing, is nonsensical and defies common sense;

c) That there was clothing readily visible in the living room. Had P.C. Van Ruyven been truly interested in obtaining clothing for Mr. Turner, he would have taken the readily available clothing; and,

d) P.C. Van Ruyven must have spoken to someone in order to determine which room belonged to Mr. Turner.

[48] I will first address the inconsistency between Sgt Beattie's evidence and P.C. Van Ruyven's evidence. Sgt. Beattie testified at trial that he instructed P.C. Van Ruyven to enter the bedroom and obtain clothing and that he did so after Ms. Everett offered very limited consent to enter the bedroom to obtain clothing only. P.C. Van Ruyven testified that no such instruction was ever given.

[49] Crown counsel urged me to reject Sgt. Beattie's evidence on this point and to accept P.C. Van Ruyven's evidence. Crown counsel pointed out a number of problems in Sgt. Beattie's evidence which should lead me to reject his evidence. Counsel for Mr. Turner also urged me to find that Sgt. Beattie was not truthful with the court but argued that the one portion of his evidence I should accept is that he instructed P.C. Van Ruyven to enter the room but that he did so knowing full well that Ms. Everett was not consenting to the search.

[50] I agree with both counsel that Sgt. Beattie was not a truthful witness. A review of his evidence leads to only one conclusion, that Sgt. Beattie intentionally misled the court in a misguided attempt to bolster the validity of the search of Mr. Turner's bedroom. I don't reach this conclusion lightly. A finding that any witness has intentionally misled the court is a serious finding that should only be made where the evidence truly warrants that conclusion. In my view, this is one of those cases.

[51] As Crown counsel properly pointed out in her written materials, Sgt. Beattie testified to a number of different facts that were not recorded in his notebook and that were contradicted by other officers during their testimony. The most important new revelation by Sgt. Beattie during the course of his evidence was that while Ms. Everett advised the officer that he could not search Mr. Turner's room, she ultimately agreed to allow entry by the officers to retrieve clothing for her son and that upon receipt of this consent, he instructed P.C. Van Ruyven to enter the bedroom to retrieve clothing. Firstly, this conversation with Ms. Everett where she gave consent and his subsequent instruction to P.C. Van Ruyven to enter the room is nowhere in the officers' notebook. Given how important this information was to the overall search, had it happened, it would have been in his notes. Secondly, P.C. Van Ruyven and P.C. Dodds adamantly denied being instructed to enter the room by Sgt. Beattie. Thirdly, Ms. Everett adamantly denied consenting to anyone entering Mr. Turner's room and denied hearing Sgt. Beattie instruct other officers to enter the room. Fourthly, Sgt. Beattie is not a junior officer. It is open for this court to infer that given his years of experience, he would know the import of Ms. Everett's consent in the construction of the ITO yet, according to Det. Damaso, this information was never relayed to him. In my view, had Ms. Everett actually consented to the search, Sgt. Beattie would have communicated this to Det. Damaso.

[52] For all these reasons, I completely reject Sgt. Beattie's evidence on this point and find that he intentionally misled the court. In my view, Sgt. Beattie's evidence in its entirety should be treated with caution and only accepted where it is confirmed by other credible and reliable evidence. If Sgt. Beattie was prepared to lie to the court in order to bolster the lawfulness of the search, it is only logical that he would feel comfortable misleading the court about other issues too.

[53] Counsel for Mr. Turner argued that I nonetheless should accept Sgt. Beattie's evidence that he instructed P.C. Van Ruyven and P.C. Dodds to enter the bedroom. Counsel argued that this is only logical as how else would the officers know which bedroom belonged to Mr. Turner. While I appreciate how attractive this argument is for Mr. Turner's section 8 argument in that it makes the entry into the bedroom far more troubling if it was ordered by the officer who had been attempting to gain consent to enter the room but failed. It is also seems unlikely that Sgt. Beattie would admit to telling the officer to the enter room if he had not made such an instruction. Nonetheless, in my view, I am unable to accept Sgt. Beattie's evidence that he instructed P.C. Van Ruyven to enter the bedroom. In reaching this conclusion I note that I found P.C. Van Ruyven and P.C. Dobbs to be credible and reliable witnesses. Moreover, Ms. Everett, who was with Sgt. Beattie the bulk of the time that he was in the apartment did not hear him give such an instruction. When I consider all the evidence, I am unable to accept his evidence where uncorroborated, even when his evidence benefits the defendant's argument. I therefore find that Sgt. Beattie did not have consent from Ms. Everett to enter the bedroom and did not instruct the other officers to enter the room for clothing.

[54] The issue remains as to whether P.C. Van Ruyven and P.C. Dodds were instructed by anyone else to enter the bedroom and what their intention was when they entered the room.

[55] I accept both P.C. Van Ruyven's evidence and P.C. Dodd's evidence that no one instructed them to enter the bedroom. I also accept that they made next to no inquiries of other officers prior to entering the room. Both officers were cross-examined at length and remained consistent. Both officers explained their actions that night and I have no evidence before me or any basis to reject their evidence. I appreciate that usually when officers arrive on scene, they communicate in some way with other officers, if only for their own safety if not to assist in the investigation. It is for that reason that counsel rightly argued that I should be skeptical of their evidence. I agree that I should approach this evidence with caution. At first blush, it seems unlikely and unwise for officers to attend at a scene as volatile as this one and not speak to anyone before entering a bedroom. However, after listening to their evidence and their explanation for their conduct I find that it is credible and reliable. Upon arriving, P.C. Van Ruyven and P.C. Dodds saw that Mr. Turner was already in handcuffs. The scene at this point was contained and on a quick glance the only thing that the other officers appeared to need assistance with was getting clothing Mr. Turner. It was for this reason, that the officers directly attended to the clothing without seeking information or instruction from the other officers.

[56] Counsel also pointed to the fact that it is unlikely that the officers would know which bedroom belonged to Mr. Tuner without first speaking to someone. P.C. Van Ruyven and P.C. Dodds were asked about this and neither officer could recall exactly how they knew which room belonged to Mr. Turner. This is not surprising given how long ago the event took place and now unimportant this fact would have been at the time. Neither officer made note of how they came to discover which room belonged to Mr. Turner. It does not follow, however, that someone told them and directed them to the bedroom. This is largely because it is unclear from the evidence how any of the other officers would have known which room belonged to Mr. Turner. All the officers remained in the living room area. There are many plausible ways that the officers could have discovered which room was Mr. Turner's room without having been told to look in the room for drugs.

[57] I don't doubt for a second that the officers were to some degree hopeful that if something illegal was taking place it would be in plain view in the bedroom and visible during their search for clothing but, in my view, this was not the focus of their search in the bedroom and I have no evidence that the officers did anything in the bedroom other than search for clothing. I accept the evidence of the officers that they entered the bedroom with the intention of looking for clothes. Not only was their evidence not contradicted by any credible evidence on this point, their actions were consistent with their stated intention. Upon discovering that the lights did not work P.C. Van Ruyven used his flashlight and looked around the messy room for clothing. He was not in the room long and did not open drawers or look through closets. I appreciate that there was clothing in the living room area, but the officer's failure to look their first was careless, but not a basis to reject their evidence.

[58] Ultimately, I accept that P.C. Van Ruyven went to room to gather clothing for a largely undressed male who was in custody. I further accept his evidence that he picked up a bag that was on top of a pair of pants, looked down and saw what appeared to be a firearm and that he then shone his flashlight inside the bag to confirm it was a gun and then left the room.

[59] Having concluded that P.C. Van Ruyven entered the bedroom for the purpose of obtaining clothing in order to protect Mr. Turner's dignity when he was removed from the apartment, the question still remains as to whether his entry and search of the bedroom for clothing was unlawful and in violation of Mr. Turner's section 8 rights.

[60] Crown counsel argued that the actions of P.C. Van Ruyven do not amount to a search in law. Counsel for Mr. Turner argued that Mr. Turner had a clear expectation of privacy in his bedroom and that the officers breached this when they entered that room and searched for clothing without his consent or without a warrant.

[61] In R. v. Evans, [1996] 1 S.C.R. 8, the Supreme Court of Canada noted that not every investigative examination conducted by the police will meet the test for a search within the meaning of section 8 of the Charter. Justice Sopinka, writing for the majority of the court stated that "the Court must inquire into the purposes of s.8 in determining whether or not a particular form of police conduct constitutes a search for constitutional purposes" (R. v. Evans, supra, at paragraph 10). Justice Sopinka further noted that the fundamental objective of section 8 is to preserve the privacy interests of individuals. Sopinka J. stated at paragraph 11:

What then is the purpose of s.8 of the Charter? Previous decisions of this Court make it clear that the fundamental objective of s.8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160, the objective of s.8 of the Charter is "to protect individuals from unjustified state intrusions upon their privacy". Clearly, it is only where a persons' reasonable expectations of privacy are somehow diminished by an investigatory technique that s.8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a search' for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a search' within the meaning of s.8.

This sentiment was recently repeated by the Supreme Court of Canada in R. v. MacDonald, 2014 SCC 3, [2014] S.C.J. No. 3 at paragraph 25.

[62] So the question is whether, in entering the room to search for clothing, did P.C. Van Ruyven intrude upon Mr. Turner's privacy interest. In making this determination, it is helpful to consider the Supreme Court of Canada's findings in R. v. MacDonald, supra. In that case, the Supreme Court held that that the mere act of pushing a front door that had been opened slightly by the owner of the residence in order to get a better view of items inside the residence constituted an intrusion on Mr. MacDonald's privacy (R. v. MacDonald, supra, at paragraph 27).

[63] With this in mind, in my view in only follows that Mr. Turner had a strong privacy interest in his bedroom. It is well established in the case law the strong privacy interest associated with one's bedroom and I see no reason to deviate from this body of law in the case at bar. While P.C. Van Ruyven and P.C. Dodds may very well have decided to obtain clothing for Mr. Turner to preserve his dignity; the officers nonetheless entered his private space without his consent and conducted a quick search of that private space. This conduct, in my view, does amount to a search within the meaning of section 8 of the Charter.

(ii) Was the Search Unreasonable?

[64] P.C. Van Ruyven's search of Mr. Turner's bedroom was warrantless and as such it is presumptively unreasonable. This does not mean that the search was unlawful. A warrantless search will be deemed reasonable and lawful if a) it is authorized by law, which includes a valid police power; b) the law itself (or police power) is reasonable and c) the manner in which the search was carried out was also reasonable. Some examples of lawful warrantless searches include searches that are incidental to a lawful arrest, safety searches incident to an investigative detention and searches to protect life and safety.

[65] In the case at bar, the police were searching the bedroom to locate clothing for Mr. Turner in order to preserve his dignity by not taking him outside the unit and into the police station clothed only in underwear and socks. This does not fall into one of the well-known permissible warrantless searches. As such, the court must turn to R. v. Waterfield, [1963] 3 All E.R. 659, to determine if the warrantless search in the case at bar was a legitimate police power.

[66] Applying the test from Waterfield, supra, there may be occasions when this is a proper basis to enter one's room absent explicit consent. In my view, however, this is not one of those cases. I reach this conclusion largely because the officers had many other options available to them to retrieve the clothing required to preserve Mr. Turner's dignity other than entering Mr. Turner's room without his consent.

[67] Firstly, the officers could have just asked one of the paramedics whether they knew of the location of any clothing. Since Mr. Turner undressed in the living room in front of the paramedics, there is no doubt that had they been asked one of the paramedics could have handed over clothing. Secondly, the officers could have asked other officers more involved in the investigation about clothing. This would likely have been fruitful since the paramedics handed over jeans belonging to Mr. Turner to the officers. Thirdly, the officers could have first looked in the living room area where everyone else was gathered to see if clothes were readily visible before taking the more invasive step of going into Mr. Turner's bedroom and fourthly, the officers could have asked Ms. Everett to locate clothing for Mr. Turner.

[68] Given the multitude of other options available to the officers, and the high privacy interest people have in their bedrooms, while officers do have a duty to protect and preserve the dignity of those they arrest, the officers could have taken less intrusive steps to achieve this end. I am therefore satisfied that the defence has proven that the search of Mr. Turner's bedroom by P.C. Van Ruyven was unlawful in that it was not authorized by a lawful police power. In my view Mr. Turner has established that his section 8 rights were violated when the officers searched his bedroom for clothing.

B. The Search Warrant

[69] Upon locating the firearm, the police immediately exited the unit and took steps to obtain a warrant to search the unit for firearms. In order to ensure that there was no interference with the evidence, two officers remained on scene, just outside the front door of the apartment.

[70] The ITO sworn in support of the warrant was based solely on the fact that P.C. Van Ruyven found a firearm while he was unlawfully in the bedroom. Crown counsel conceded that if the initial search of the bedroom was unlawful than the warrant could not have been issued. I agree.

[71] The Appellate Courts have consistently held that warrants based solely on information gathered in violation of the Charter are invalid (see R. v. Evans, supra, at para 26 and R. v. Kokesch, [1990] 3 S.C.R. 3). Where warrants are based only partially on tainted evidence then the role of the court on a section 8 application is to determine whether the warrant could have been issued had the improperly obtained facts been excised. In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para 40 the court stated:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[72] In the case at bar the entire warrant was based on P.C. Van Ruyven locating the firearm. Once this information is excised from the warrant, there is no longer any basis to issue the warrant to search for firearms. As such, the search of the bedroom and the subsequent seizure of the two firearms were unlawful and in violation of section 8 of the Charter.

C. The Police Presence in the Unit Prior to the Issuance of the Warrant

[73] Upon the discovery of the firearm, the officers left the unit and instructed Ms. Everett that she had to leave and could not return until the warrant was executed. Two officers, P.C. Van Ruyven and P.C. Dodds, remained outside the front door of the unit in order to properly secure the scene and ensure that the evidence was preserved.

[74] At some point the officers received information that the officers in charge of obtaining the warrant were only going to obtain a warrant for Mr. Turner's bedroom. Upon receipt of this information, the officers entered the unit and sat at Ms. Everett's and Mr. Turner's dining room table and remained there until the warrant arrived.

[75] Ms. Everett testified that at some point after being removed from her unit but before the officers received the warrant, Ms. Everett returned to her apartment and found the officers sitting at her dining room table. The officers advised her that she was still not allowed in the unit.

[76] In my view the officers were not permitted to be in the apartment at this point in time. During this time it is clear that neither Ms. Everett nor Mr. Turner consented to their presence and the officers had no lawful basis for being inside the unit. I appreciate that the officers had to secure the scene, but the scene could just as easily have been kept secure by the officers waiting just outside the unit by the front door. By waiting inside the apartment prior to the warrant being signed, the officers breached Mr. Turner's section 8 rights.

D. The Manner of the Search and the Search of Ms. Riley's Vehicle

[77] The remaining issues raised by counsel for Mr. Turner relate to the manner in which the search was executed. Firstly defence counsel argued that the officers searched more than just Mr. Turner's bedroom. In support of this argument, he pointed to Ms. Everett's evidence that upon returning to her apartment, a drawer in her bedroom had been opened.

[78] Crown counsel argued that I should reject Ms. Everett's evidence as she was inconsistent in her evidence and was clearly attempting to assist her son in her testimony. In support of her argument, the Crown pointed to the Ms. Everett's evidence that her son was not agitated that night when the police and the paramedics were present. Crown counsel argued this evidence is contradicted by every other witness including the paramedics who were just there to ensure Mr. Turner's safety.

[79] I appreciate that Ms. Everett's evidence on quite a few points was contradicted by the other witnesses who testified at trial. This, however, does not lead me to conclude that Ms. Everett was being intentionally dishonest with the court in order to help her son. There can be no doubt that this was a difficult day for Ms. Everett. Police and paramedics were in her apartment, her son was arrested and taken away and she was locked out of her house during the hours when one is normally sleeping. I accept that Ms. Everett truly believes that her son was not agitated with the police. I also accept the evidence of all the other witnesses that he was agitated and so aggressive that the paramedics had to call a base doctor for permission to sedate Mr. Turner. I do, however, have concerns with the reliability of Ms. Everett's evidence. In my view, Ms. Everett's perception of events is clouded by the stress and emotion of the day and as such I am unable to place much weight on this portion of her evidence.

[80] I do accept, however, that some drawers were open upon her return to the apartment. I have no doubt that she checked over her apartment with great care after the police left. This does not, however, lead me to conclude that police searched in areas they were not allowed. It is equally possible that Ms. Everett opened the drawer herself and just forgot given the events of the day or that Mr. Turner opened it at some earlier point in time and Ms. Everett just did not notice it at the time.

[81] In relation to the vehicle, I do not know whether Ms. Everett handed over the keys to the officers or whether the officers just took the keys without permission. I found all the witnesses credible and reliable on this point. I have no basis to accept one witness' evidence over the other. Thankfully, I do not need to decide this credibility issue to address the search issue raised by counsel. This is because regardless of how the keys came to be in the possession of the police, I have no evidence that the officers actually entered or searched the vehicle. At its highest, the officers took the keys down to the vehicle, located the vehicle and determined who the registered owner of the vehicle was. I appreciate that when Ms. Riley received the vehicle after this, it was messy. I further appreciate that normally Mr. Turner returned the vehicle in good condition. Mr. Turner, however, did not have a chance to clean the car before returning it as he was arrested. I cannot conclude that merely because the vehicle was in a disorderly condition when it was returned to Ms. Riley that the officers searched the vehicle.

E. Section 24(2) of the Charter

[82] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting 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 a 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.

The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the Charter-Infringing State Conduct

[83] Under this first prong of the 24(2) analysis, it is incumbent on trial judges to assess the seriousness of the violation in terms of the "gravity of the offending conduct by state authorities". The seriousness of the state-offending conduct lies along a continuum where on the one end the evidence is obtained through inadvertence or minor violations and at the other end evidence is obtained though wilful or reckless disregard for Charter rights. As was noted in R. v. Grant, supra, at paragraphs 73-74, state conduct falling on this latter side of the spectrum will "inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute".

[84] Counsel for Mr. Turner argued that the conduct involved in the case at bar is very serious and shows a blatant disregard for the charter. He argued that officers arrived on scene, failed to make any reasonable inquiries about what was happening or where clothing might be and then, without having any information because of their own failure to take reasonable steps to inform themselves of what is taking place, they entered and searched Mr. Turner's room. In addition to these careless, negligent acts by the officers that led to a severe intrusion into Mr. Turner's liberty, the officers showed a further disregard for his privacy rights by remaining inside the residence after the gun had been found when the warrant had not yet been granted. Mr. Lam argued that these combined breaches lead to only one conclusion – that the officers had a blatant disregard to Mr. Turner's charter rights.

[85] I agree with counsel's position that when a court finds that the police have engaged in multiple breaches of a defendant's charter rights; it is open for the court to find that the officers have little respect for the charter. I further agree that the presence of multiple breaches makes the conduct in question more aggravating. I note, however, that while P.C. Van Ruyven and P.C. Dodbs ought to have made inquiries of others about the location of clothing for Mr. Turner before entering Mr Turner's room, I cannot ignore the reality that the officer's intention was not malicious. Both officers testified that they thought they were permitted to enter the room because they were not looking for evidence and I have accepted their evidence on this point.

[86] In my view, while all Charter breaches are serious, this breach was on the less serious side of the continuum.

[87] The second breach of waiting inside the apartment before the warrant was issued is a bit more troubling to me in some respects than the officer's entry into Mr. Turner's room, largely because it was so utterly unnecessary and disrespectful. Nonetheless, I cannot find that the conduct was malicious or that there was an ill intent or gross negligence. Moreover, no evidence was found or seized as a result of this breach. At the end of the day, while the officers exercised bad judgment and disrespect for Ms. Everett and Mr. Turner by entering the apartment and waiting for the warrant while seated at Ms. Everett's dining room table, this conduct is not so serious as to call out for the exclusion of the evidence. When I consider all the evidence, it is my view that this prong militates slightly in favour of inclusion of the evidence.

Impact of the Breach on the Charter Protected Interest of the Accused

[88] Courts at every level have consistently held that there is a high expectation of privacy in a house and that entry into a house without valid grounds is a serious intrusion on an individual's privacy (see R. v. Silveira, 97 C.C.C.(3d) 450 and R. v. Dhillon, 2010 ONCA 582, [2010] O.J. No. 3749). This case is no different. In my view this prong militates strongly in favour of exclusion of the evidence.

Society's Interest in the Adjudication of the Case on Its Merits

[89] In my view this prong militates strongly in favour of inclusion of the evidence. Mr. Turner is charged with numerous serious offences in relation to two firearms found in his bedroom, one of which was loaded. The firearms seized are reliable evidence and the evidence is necessary for the Crown to prove its case. Moreover, the offences in question are very serious and go to the heart of protecting the public. It is well established that there is a heightened public interest in trying firearm-related offences on their merits given the escalating gun problem in Canada and the risk guns pose to public safety.

Balancing the Three Grant Factors

[90] The type of balancing required under section 24(2) of the Charter is qualitative not quantitative in nature. The balancing must consider the effect of admitting the evidence on the long term repute of the administration of justice (see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494).

[91] Counsel for Mr. Lam helpfully provided a number of cases where trial judges have excluded guns under section 24(2) of the Charter. In all those cases, the court found that the conduct in question was so egregious that the court had to distance itself from the evidence in order to maintain the public confidence in the criminal justice system. In some of the cases, the police lied about the grounds to conduct the search, in others the court found a pattern of laxity that led the court to conclude that the police had a complete disregard and indifference to the Charter. As I noted above, while the police conduct in the case at bar is not trivial, it is also not at the more serious end of the spectrum. Moreover, while I appreciate that the entering a person's bedroom in a serious invasion of one's privacy, I have to keep in mind that the police did not look through drawers, or under the bed or rifle through papers. P.C. Van Ruyven only looked in places where he might reasonably find clothing. When I balance all the relevant considerations, in my view the admission of the evidence would not put the administration of justice into disrepute and the evidence therefore is admissible.

Released May 25, 2015

Justice Mara Greene