Her Majesty the Queen v. MacKay [Indexed as: R. v. MacKay]
112 O.R. (3d) 561
2012 ONCA 671
Court of Appeal for Ontario,
MacPherson, R.P. Armstrong and Watt JJ.A.
October 4, 2012
Charter of Rights and Freedoms -- Search and seizure -- Manner of search -- Trial judge finding that police did not err in initial decision to deploy Emergency Response Team ("ERT") in raid of accused's office because of concerns about likelihood of special security measures in building, lack of information about number of persons present in office and possible presence of weapons -- Trial judge finding that police should have reassessed threat after undercover officer entered office to make controlled delivery of package, and that undercover officer could have arrested accused safely with visible show of force in background and therefore entry of ERT with weapons drawn was unreasonable -- Trial judge erring in finding that manner of search violated accused's rights under s. 8 of Charter -- Many unknowns continuing to exist after undercover officer entered office -- Police entitled to some latitude in manner in which they decided to enter premises -- Canadian Charter of Rights and Freedoms, s. 8.
Criminal law -- Appeal -- Leave to appeal -- Accused acquitted after trial judge concluded that "hard entry" by Emergency Response Team violated s. 8 and excluded evidence under s. 24(2) of Charter -- Summary conviction appeal court allowing Crown's appeal on ground that trial judge erred in finding violation of s. 8 of Charter -- Appeal being accused's first -- Appeal raising potentially significant Charter issue of general importance -- Accused granted leave to appeal -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The accused was charged with illegally importing diamonds. A Canadian Border Services Agency officer opened a package addressed to the accused and found four wooden statues containing hidden rough diamonds. The police decided to make a controlled delivery of the package to the accused's office using an undercover officer posing as a courier. The police equipped the package with a device that was a tracking device and notified them when the package was opened. The office was in a high-rise commercial building in the jewelry district. The police knew that jewelers typically operate from offices with enhanced security, including controlled access doors and security cameras inside and outside of the premises. They did not know the identity of the person smuggling the diamonds so they could not make an individualized threat assessment. They were also concerned about the possible presence of weapons. As a result, they decided to deploy the Emergency Response Team ("ERT"). After delivering the package, the undercover officer returned to the office and was buzzed through the outer door. The ERT, with weapons drawn, breached the inner door and secured the premises. The ERT left the premises seven minutes later, while plain-clothes officers searched the suite. The accused did not challenge the decision to involve the ERT, but argued that after the undercover officer had been inside the office the first time, the police should have reassessed the security risk and not proceeded with a "hard entry" led by the ERT. The trial judge found that the initial plan to use the ERT was reasonable, as the evidence the police knew at the time supported their concerns about [page562] enhanced security measures in the building and the possible presence of weapons. However, he accepted the accused's argument that the undercover officer had an opportunity to make observations after delivering the package, that she could have arrested the accused with the ERT behind her at the doorway if necessary, and that the armed entry of the ERT was unreasonable and violated the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge excluded the evidence of the diamonds. The accused was acquitted. The summary conviction appeal court allowed the Crown's appeal, holding that there was no s. 8 violation and that the evidence should not have been excluded. The accused applied for leave to appeal and, if leave was granted, sought an order allowing the appeal and reinstating the acquittal.
Held, leave to appeal should be granted; the appeal should be dismissed.
While this was the second appeal, it was the accused's first appeal, and it raised a Charter issue that was potentially significant to the general administration of justice. This was the first opportunity for the Court of Appeal to consider the impact of the Supreme Court of Canada's decision in Cornell on a factual scenario in which the police chose to make a "hard entry" into a building.
In light of the trial judge's finding that the decision by the police to use the ERT during the raid was reasonable, it was impermissible to apply the lens of hindsight to conclude that the precise manner in which the ERT entered the office amounted to a breach of the accused's s. 8 rights. Even after the undercover officer entered the accused's office the first time, information critical to the imminent raid remained unknown, including the size of the office, the number of rooms, the number of people inside and whether anyone inside had access to weapons. The police have to be allowed a certain amount of latitude in the manner in which they decide to enter premises. The test to be applied was whether the means chosen by the police was a reasonable balance of the rights of the suspect and the requirement to ensure safe and effective law enforcement. Given the many unknowns, particularly the possibility of weapons on the premises, which was credited by the trial judge, there was no basis for concluding that the ERT hard entry amounted to an unreasonable search.
APPEAL from the order of Wein J., [2011] O.J. No. 2851, 2011 ONSC 3318 (S.C.J.) allowing the Crown's appeal from the acquittal entered by Currie J. of the Ontario Court of Justice dated March 29, 2010. [page563]
Cases referred toR. v. Cornell, [2010] 2 S.C.R. 142, [2010] S.C.J. No. 31, 2010 SCC 31, 213 C.R.R. (2d) 187, 2010EXP-2444, J.E. 2010-1368, 29 Alta. L.R. (5th) 1, 258 C.C.C. (3d) 429, EYB 2010-177243, 323 D.L.R. (4th) 1, 404 N.R. 133, 76 C.R. (6th) 275, [2010] 10 W.W.R. 195, 487 A.R. 1, apld R. v. O'Meara, [2012] O.J. No. 2752, 2012 ONCA 420, 292 O.A.C. 358, 284 C.C.C. (3d) 567, 101 W.C.B. (2d) 372; R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606, consd Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) [as am.] Export and Import of Rough Diamonds Act, S.C. 2002, c. 25 [as am.]
Alan D. Gold, for appellant. Bradley Reitz, for respondent.
The judgment of the court was delivered by
MACPHERSON J.A.: --
A. Introduction
[1] The appellant, Donald MacKay, was charged with importing diamonds contrary to the Export and Import of Rough Diamonds Act, S.C. 2002, c. 25, as well as acquiring illegally imported goods and smuggling contrary to the Customs Act, R.S.C. 1985, c.1 (2nd Supp.).
[2] At trial in the Ontario Court of Justice, and on the hearing of a Canadian Charter of Rights and Freedoms application brought by the accused, Currie J. concluded that the manner in which the warranted search was executed violated the appellant's s. 8 [of the Charter] rights. He excluded the evidence obtained from the search pursuant to s. 24(2) of the Charter. The Crown was left with insufficient evidence to make out its case, and the accused was acquitted of all charges.
[3] The Crown appealed to the summary conviction appeal court. On June 13, 2011, Wein J. quashed the acquittal and ordered a new trial. She did so on the basis that the trial judge erred in concluding that the manner in which the search of the accused's office had been conducted was unreasonable and a breach of s. 8 of the Charter. In reaching this decision, the summary conviction appeal judge relied almost exclusively on the decision of the Supreme Court of Canada in R. v. Cornell, [2010] 2 S.C.R. 142, [2010] S.C.J. No. 31, 2010 SCC 31, which was released after the trial judge's Charter ruling.
[4] The appellant applies for leave to appeal the decision of the summary conviction appeal judge and, if leave is granted, seeks an order allowing the appeal and reinstating the trial judge's acquittal.
[5] The principal issues on the appeal are whether leave to appeal should be granted and, if so, whether the summary conviction appeal judge erred in her analysis and conclusion on the s. 8 Charter issue.
B. Facts
(1) The parties and events
[6] The investigation leading to the charges began on February 25, 2008, when a Canadian Border Services Agency officer [page564] opened a package addressed to the appellant and discovered four wooden statues containing hidden rough diamonds.
[7] On February 27, 2008, the RCMP installed an alarm and a tracking device in the package so that investigators would know when the package was opened. They obtained a general warrant authorizing this installation.
[8] The RCMP decided to make a controlled delivery of the package using an undercover officer posing as a courier. Due to perceived security concerns, the RCMP decided to employ its Emergency Response Team ("ERT"). Two RCMP officers testified that they had two reasons for their security concerns. First, investigators were unable to conclusively identify the appellant before the raid, precluding a complete threat assessment. Second, the appellant's office was located in a high-rise commercial building in the hub of Toronto's jewellery district. The RCMP officers knew that jewellers typically operated from offices equipped with controlled access doors, closed-circuit security monitoring and other security measures. Because of the potential high value of the diamonds, the officers were also concerned about the presence of weapons.
[9] The ERT was in place when the undercover officer delivered the package to the appellant's office on February 27, 2008. Approximately ten minutes later, the investigators received notification that the package had been opened. The undercover officer immediately returned to the office, claiming to have forgotten her gloves. She was buzzed through the outer door of the office.
[10] The ERT, with weapons drawn, then breached the inner door and secured the premises. The appellant was then arrested by plain-clothes officers. The ERT left the premises seven minutes after entry.
[11] The plain-clothes officers searched the two-room office suite. They seized the package that had been delivered by the undercover officer, another similar package and 54 diamonds valued at about $12,900.
(2) The judicial decisions
(a) The trial judge's ruling
[12] In his reasons, the trial judge addressed both the planning for the execution of the warrant and the entry by the ERT.
[13] With respect to the preparation for the search, the trial judge concluded that the investigators' plan was a reasonable one:
I do not fault the investigating officers or assisting police officers in any way, in terms of their preparation of the proposed search of the defendant's business premises. The officers took all, in my view, appropriate and reasonable [page565] steps to ensure that the search proposed to be conducted would be effective and not dangerous to any persons involved, including the officers and the defendant and any other person who might be in the vicinity at the time of the search.
To that end, and I accept the evidence of the officers who testified in this regard, there were concerns about the potential of weapons on the premises of a business such as Mr. MacKay's. It is not disputed that the building in which Mr. MacKay operated his business was primarily used for the jewellery business. It is common knowledge that those businesses involved high value items. There are features to the offices in that particular building, which one would not find in a normal office building. As I say, the officers' original concerns were well founded and I do not fault the preparation that they took prior to the search being executed.
[14] The trial judge also analyzed the controlled delivery and the entry by ERT officers. He noted that when the undercover officer delivered the rough diamonds, she had an opportunity to make observations, both of the suite and also of the appellant. The trial judge then observed that each ERT member entered the suite armed with two loaded firearms, and concluded that such a "show of significant arms" was not necessary:
Given what the undercover officer, who did not testify, as a result of agreement between the parties as to what transpired, the undercover officer could have simply approached Mr. MacKay, if necessary, with a show of force in the background, that is behind her at the doorway, to ensure that there was no difficulty with the arrest of Mr. MacKay and the subsequent seizure of the items. That was not done.
In my view, the manner in which the warrant was executed was unreasonable. I do find a breach of the defendant's Section 8 rights in the circumstances of this case.
[15] Having found a breach of s. 8, the trial judge proceeded to analyze the admissibility of the impugned real evidence. He concluded that the infringement was serious because "one is left with the sense that where steps are taken to involve a specialty task force, such as the one here there is almost an inevitability about the sense that they will in fact be deployed". The trial judge also concluded that the breach had a great impact on the appellant because of the "terrifying effect" of the ERT entry. Ultimately, he held that the public interest would be served best by excluding the evidence. With the essential real evidence inadmissible, the Crown elected to call no other evidence and the charges were dismissed.
(b) The summary conviction appeal judge's decision
[16] The Crown appealed the trial judge's order. The summary conviction appeal judge, who had the benefit of the Supreme Court of Canada's decision in Cornell, allowed the appeal and [page566] ordered a new trial. The heart of her analysis, at para. 14, is as follows:
It is true that a trial judge's view of the facts must be accorded great deference. However, it is argued by the Crown in this case that having found that the presence of the ERT was reasonable, the finding that in effect a "show of force in the background" would have been adequate amounted to speculative second-guessing in hindsight. The defence argues that whether or not the trial judge found that a lesser entry by the ERT was reasonable is simply irrelevant, but I do not agree. That finding makes it clear that the trial judge was, to a degree, judging dynamic operational decisions made by the police with the benefit of hindsight. Had he found that the entire involvement of the ERT was unreasonable, the situation might have been different. Having held that the threat assessment was well founded, and the use of ERT was reasonable, the determination that the precise placement of the officers was excessive amounted to an impermissible after-the-fact assessment. (Emphasis in original)
[17] Having found that the trial judge erred in his s. 8 analysis, the summary conviction appeal judge, at para. 17, made only cursory comments with respect to, and reached no decision about, s. 24(2):
In these circumstances, it is not strictly speaking necessary to determine the issue under s. 24(2). However, I would not have found any deficiency in the approach taken in the reasons, succinct though they were. Following Cornell, the assessment of the seriousness of the breach must be considered in light of the public interest in supporting police tactical decisions made in good faith in dynamic and difficult situations.
[18] The appellant seeks leave to appeal the summary conviction appeal judge's decision.
C. Issues
[19] The issues are: (1) Should leave to appeal be granted? (2) If the answer to (1) is yes, did the summary conviction appeal judge err by concluding that the trial judge erred in his s. 8 Charter ruling? (3) If the answer to (2) is no, should the trial judge's s. 24(2) decision be confirmed?
D. Analysis
(1) Leave to appeal
[20] The leading case on this issue is R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497. The starting point for the analysis, as stated by Doherty J.A., at para. 27, [page567] is that in the summary conviction appeal context, "[a]ccess to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal". Doherty J.A. went on to say, at para. 37, that leave to appeal should be granted in two categories of cases: (1) those with an arguable question of law that is significant to the general administration of justice; and (2) those where the summary conviction appeal judge seems to have made a clear error of law, even if the error may not have significance to the administration of justice.
[21] The appellant submits that this case is different from R. (R.), and indeed most proposed appeals from decisions by summary conviction appeal judges, in that this will not be his second appeal since he was acquitted at trial. I agree with this submission; it is, in my view, an important contextual factor within which to address the two-part R. (R.) test.
[22] Support for this conclusion is found in the recent decision of this court in R. v. O'Meara, [2012] O.J. No. 2752, 2012 ONCA 420, a drinking and driving case in which the accused was convicted at trial. The appeal was allowed and the summary conviction appeal judge entered an acquittal. The Crown sought and was granted leave to appeal and M. Brown R.S.J. (ad hoc) stated, at para. 25: "As well, I think there is some significance to the fact that while this is the second appeal of this matter, it is the Crown's first appeal." The appellant here is in the same position as the Crown was in O'Meara.
[23] Quite apart from this contextual point, I cannot say that the appellant is outside the first component of the R. (R.) test. In my view, the application of the Supreme Court of Canada's decision in Cornell to the manner of the ERT's entry to the appellant's business premises is potentially significant to the general administration of justice.
(2) [Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[24] A key factor in this appeal is that the trial judge made his s. 8 Charter ruling before the Supreme Court of Canada's decision in Cornell, whereas the summary conviction appeal judge had the benefit of that decision.
[25] Cornell is directly on point in this appeal. It was a case dealing with the search powers of a police tactical unit making a "hard entry" into a suspect's residence. At paras. 23-25 of his reasons, Cromwell J. set out the parameters for judicial review of this category of police search:
First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things [page568] turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed "through the 'lens of hindsight'": Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.
Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
Third, the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference on appellate review.
[26] The appellant does not challenge the initial police decision to employ the ERT in the raid on his office. However, the appellant asserts that the police had a duty to reassess the situation after the undercover officer entered the premises the first time. Such a reassessment should have led to a decision to downgrade the "hard entry" nature of the raid to the point that the ERT would play a back-up role to regular police officers.
[27] This was essentially the position adopted by the trial judge. He said:
[T]he undercover officer could have simply approached Mr. MacKay, if necessary, with a show of force in the background, that is behind her at the doorway, to ensure that there was no difficulty with the arrest of Mr. MacKay and the subsequent seizure of the items. That was not done.
[28] With respect, this description of what the police might have done in this case falls afoul of the first two propositions in the passage from Cornell, above. According to the testimony of the lead officer in the investigation, even after the undercover officer had been inside the appellant's office, information critical to the imminent raid remained unknown, including the size of the office, the number of rooms, the number of people inside and whether anyone inside had access to weapons.
[29] Of these, the most important factor was the presence of weapons. On this issue, the trial judge said: "I accept the evidence of the officers who testified in this regard, there were concerns about the potential of weapons on the premises of a [page569] business such as Mr. MacKay's." There was nothing in the undercover officer's brief visit to the premises to remove this extremely important concern.
[30] In conclusion, Cornell says explicitly, at para. 24, that "the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises" (emphasis added). Given the many unknowns, particularly the possibility of weapons inside the premises, there is no basis for concluding that the ERT "hard entry" in this case -- brief and focused -- amounted to an unreasonable search. I agree with the summary conviction appeal judge [at para. 15] that "[n]o doubt, had the trial judge had the benefit of the guidance of the Cornell decision, a different conclusion on the s. 8 decision would have been arrived at on the facts as found by the trial judge".
(3) [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[31] In light of my conclusion in the previous section, the issue of the potential exclusion of evidence does not arise.
E. Disposition
[32] I would grant leave to appeal, dismiss the appeal and confirm the decision of the summary conviction appeal court judge ordering a new trial.
Appeal dismissed.