Court of Appeal for Ontario

Date: 2017-08-02 Docket: C61395

Judges: Watt, Benotto and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Douglas Rutledge Appellant

Counsel:

• Andrew Faith, for the appellant
• Michael Fawcett, for the respondent

Heard: June 29, 2017

On appeal from: The conviction entered on June 30, 2015 by Justice Bonnie J. Wein of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

[1] The appellant appeals his convictions of firearms and ammunition offences on the ground that the trial judge wrongly admitted evidence of guns and ammunition seized during a search of a farmhouse in which he was the only occupant.

[2] At the conclusion of argument we dismissed the appeal with reasons to be given later. These are our reasons.

The Background Facts

[3] A justice of the peace granted two telewarrants to search a remote Dufferin County farmhouse for firearms, ammunition, controlled substances and related paraphernalia. Among other sources furnishing information relied upon in the support of the ITO, was a confidential informant who provided precise, current details about activities taking place in the farmhouse, described those associated with it and related what was likely to be found there.

[4] Considered in its entirety, the ITO supported a reasonably grounded belief that several persons occupied or had access to the farmhouse. Some had histories of violence. Drugs were trafficked there or from there. And weapons, firearms including a semi-automatic rifle, were present and available for use by its occupants.

[5] The officer in charge of the investigation considered that an undetected approach to the farmhouse to execute the warrants was essential to the successful conclusion of the investigation. The safest course of action for all concerned – occupants and searching officers alike – was thought to be to flush out any occupants, thus to avoid a shootout or armed standoff.

[6] To execute the warrants, the police came loaded for bear. Equipment for a dynamic entry. Tactical units. Night vision eyewear. Loud hailers. Negotiators in case of a standoff. And tear gas.

[7] Members of the search team broke a window on the ground floor of the farmhouse. An officer tossed a tear gas canister onto the floor of a room adjacent to the broken window. The canister was not incendiary. It dispensed gas, but not heat.

[8] The appellant was the only occupant of the farmhouse. As the tear gas began to spread, the appellant quickly left the building. He coughed and was teary-eyed, but required no medical intervention or assistance. He was promptly arrested.

The Grounds of Appeal

[9] The appellant contends that the trial judge erred in law in failing to conclude that the search conducted and seizures made offended s. 8 of the Charter and to exclude the things seized as evidence at his trial.

[10] The argument advanced is twofold:

i. that the use of tear gas is a "search", which requires, but did not receive prior judicial authorization, thus was an unreasonable search in breach of s. 8 of the Charter; and

ii. that the use of tear gas rendered the manner of the search conducted under the telewarrants unreasonable, thus in contravention of s. 8 of the Charter.

[11] As we briefly explain, we did not give effect to either ground of appeal.

Ground #1: Tear Gas as a "Search"

[12] The first ground of appeal faults the trial judge for failing to conclude that the use of tear gas in execution of a search warrant is, on its own, a discrete "search" within s. 8 of the Charter. It follows, according to the appellant, that this use of tear gas required, but did not receive, prior judicial authorization, thus amounted to an unreasonable search in contravention of s. 8.

[13] We rejected this ground of appeal for both procedural and substantive reasons.

[14] First, the procedural obstacles.

[15] The argument was not advanced at trial. As a result, it lacks not only an evidentiary foundation, but also the critical findings of fact necessary for a judicial determination of its merits. It is for these reasons that we do not generally permit advancement of grounds for the first time on appeal. We see no reason to depart from that salutary practice here.

[16] Second, the substantive defect.

[17] We regard the appellant's argument on this ground of appeal as fundamentally and fatally flawed.

[18] To begin, the use of tear gas in these circumstances does not fall within the plain or any extended meaning of "search" within s. 8 of the Charter.

[19] Every investigatory technique used by police does not amount to a "search" within or for the purposes of s. 8 of the Charter. It is only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals that police conduct amounts to a "search": R. v. Evans, [1996] 1 S.C.R. 8, at paras. 10-11; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 8. It is not only the type of police conduct that determines whether a search has occurred, but also the purpose of that conduct that is controlling. A search is about looking for things to be used as or to obtain evidence of a crime: R. v. Silveira (1994), 88 C.C.C. (3d) 61 (Ont. C.A.), at para. 35. See also, R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 25-26.

[20] To be certain, s. 8 protects personal privacy. It guarantees the right of persons not to have their bodies touched or otherwise explored for the purpose of disclosing objects, matters or information that they wish to conceal. State actions that interfere unreasonably with a person's bodily integrity for such a purpose breach a person's right to privacy. But not every state action does this: R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431-432; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 21.

[21] In this case, the use of tear gas was not for the purpose of obtaining personal information about the appellant which he sought to shelter from state discovery and use. The purpose of using tear gas was to flush out the occupants of the premises so that confrontation would be avoided. Section 8 interests were not implicated by what occurred.

[22] We also reject the submission that the investigative decision or plan to use tear gas should have been disclosed in the ITO. This submission comes perilously close to micromanagement of police choices about equipment and the manner of execution that are to be avoided or better considered as part of the inquiry into whether the search was conducted in a reasonable manner: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 31. We also note that the statutory form used for an ITO, Form 1, makes no reference to the manner of execution.

Ground #2: Unreasonable Execution of the Search

[23] The second ground of appeal alleges that the trial judge erred in failing to find that the search was executed in an unreasonable manner. This submission also focuses on the use of tear gas during execution of the warrant, a substantial departure from the knock-and-announce rule which the Crown failed to justify.

[24] Confronted with a similar argument, the trial judge correctly set out the governing legal principles, examined the evidence adduced at trial and found as a fact that the use of tear gas was not unjustified, thus did not result in execution of the search in an unreasonable manner. Her factual findings were not cumbered by any misapprehension of the evidence. The inferences she drew were reasonable. Her findings were untainted by legal error. They are entitled to significant deference in this court.

[25] In reaching our conclusion, we have in mind that police decisions about the manner in which a search will be carried out fall to be adjudged by what was or should reasonably have been known to them at the time the search was conducted, not through the lens of how things turned out to be. Hindsight is not our measuring stick.

[26] We also recognize that police are entitled to some latitude on how they decide to enter premises under a warrant. Omniscience is not a prerequisite for a search to be conducted in a reasonable manner. In an assessment of the manner in which a search has been executed, a reviewing court balances the rights of suspects, on the one hand, with the requirements of safe and effective law enforcement, on the other. The trial judge did this. This is no place for the Monday morning quarterback.

Conclusion

[27] It is for these reasons that we dismissed the appeal.

David Watt J.A. M.L. Benotto J.A. L.B. Roberts J.A.