CITATION: R. v. Khan, 2008 ONCA 496

DATE: 20080620

DOCKET: C46496

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JIHAD KHAN

Appellant

Mark Halfyard, for the appellant

Eliott Behar, for the respondent

Heard and released orally: June 17, 2008

On appeal from the conviction entered by Justice E. Then of the Superior Court of Justice, sitting without a jury, on September 15, 2006.

ENDORSEMENT

[1] The appellant appeals his convictions on a number of firearms and drug-related offences. The sole ground of appeal concerns s. 8 of the Charter. The appellant argues that the trial judge erred by failing to exclude the evidence discovered during a police night search of his home. The search was conducted under the authority of a telewarrant. The appellant claims that the search violated his Charter s. 8 right, that – contrary to the trial judge’s finding – the violation was serious, and that the reputation of the administration of justice mandated the exclusion of the evidence under s. 24(2) of the Charter.

[2] We disagree. In our opinion, the trial judge did not err in his s. 24(2) Collins analysis. See R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.). That analysis amply justified the admission of the challenged evidence.

[3] At trial, counsel agreed that if the evidence obtained pursuant to the search warrant – a firearm, ammunition, body armour and drugs – was excluded, an acquittal of the appellant on all counts would follow. Counsel further agreed that if the evidence was admitted, the appellant should be convicted on seven of the nine firearms and drug-related charges brought against him.

Trial Fairness

[4] The evidence in question in this case is real, non-conscriptive evidence. Trial fairness, therefore, is not implicated.

Seriousness of the Breach

[5] This is not a case where the s. 8 Charter breach was wilful or flagrant. On the trial judge’s findings, the police did not act in bad faith or in deliberate disregard of the appellant’s constitutional rights. Moreover, the breach does not reflect institutional indifference to individual rights.

[6] Quite the opposite. The trial judge found that the breach was not serious. Indeed the finding of a breach at all, in this experienced trial judge’s view, was “close to the line”. The trial judge held that the breach was inadvertent and unintentional and that, given the totality of the information provided to him, the justice issuing the warrant would not have been misled as to the credibility or reliability of the informant on whose tip the police relied in obtaining the warrant.

[7] These findings were amply supported by the evidence.

[8] Although the search was conducted at night in the appellant’s home, thus implicating the appellant’s strong privacy interest in his residence, the trial judge held that the circumstances were urgent and the mode and timing of the entry to the appellant’s home were designed to ensure the safety of the police, the occupants of the home and the public.

[9] The appellant challenges these findings. He alleges that the seriousness of the breach was heightened in this case by the fact that, contrary to the trial judge’s finding, there was no urgency to conduct the search at the time and in the manner of its execution.

[10] Again, we disagree. Information came to the attention of the police that the appellant was in illegal possession of a firearm, ammunition and body armour, giving rise to what was a potentially serious risk of danger to the public. Given the genuine safety concerns that arose here for the police and the public, we agree with the trial judge that urgency existed and the time and method of entry to the appellant’s home were justified.

[11] We therefore see no basis on which to conclude that the considerable deference owed to the trial judge’s assessment of the seriousness of the breach should be displaced.

Repute of the Administration of Justice

[12] The crimes charged were very serious and the impugned evidence was essential to the Crown’s case. The non-conscriptive evidence at issue involved both a gun and drugs. The Charter breach was not serious and there is no suggestion that an unfair trial will result from the admission of the evidence. Having regard to all these factors, the exclusion of this evidence at the appellant’s trial would exact a great toll on the long-term integrity of the justice system. We agree with the trial judge that the effect of the exclusion of the evidence in this case would be more detrimental to the reputation of the administration of justice than would the effect of its admission.

[13] Accordingly, the appeal is dismissed.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”