Court of Appeal for Ontario

Date: December 19, 2019 Docket: C62237 Judges: Brown, Huscroft and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Eran Shomonov Appellant

Counsel

Amit Thakore, for the appellant

Jeremy D. Tatum, for the respondent

Hearing and Appeal

Heard: December 17, 2019

On appeal from the convictions entered on January 21, 2016 by the Honourable Justice J. David McCombs of the Superior Court of Justice, sitting without a jury, with reasons reported at 2016 ONSC 1553.

Reasons for Decision

Introduction

[1] The appellant was convicted of the following offences: two counts of possession of a prohibited firearm (Criminal Code, R.S.C. 1985, c. C-47, s. 95(1)); careless use of a firearm (s. 86(1)); and possession of a controlled substance (i.e., marijuana) (Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4(1)). He was sentenced to 19 months' incarceration. He appeals his convictions.

Factual Background

[2] This case arose when the appellant shot himself in the hand at an industrial unit that he leased in March, 2013. The bullet went through the wall and into the adjacent unit, which was operated as a boxing club. There were 10 people in the club at the time. They heard a loud sound and noticed a hole in the wall, which they thought was caused by a pellet gun. Blood was seen outside the front door of the appellant's unit. The door was locked. The police were called at 8:39 p.m. The police arrived shortly thereafter and secured the premises.

[3] The police obtained the appellant's cell phone number and made contact with him. The appellant explained that he was at the hospital receiving treatment for an injury caused by a nail gun. He advised that his girlfriend had taken him to the hospital. The police went to the hospital to investigate. They discovered that the appellant told nursing staff that he had been a robbery victim and did not want the police involved. Moreover, the appellant's girlfriend was contacted and said that she had not seen him all day.

[4] The police interviewed the appellant at the hospital. By this time they had spoken to a doctor who said the appellant suffered a gunshot wound. There was nothing remarkable about the early police questioning; they were simply attempting to determine what happened. However, at about 10:20 p.m., their questioning became confrontational. They accused the appellant of lying to them about the cause of his injury. The appellant admitted that he recently bought two firearms and that they were still in his unit.

[5] In the meantime, back at the unit, the police had attempted to determine if anyone was in the unit. They knocked on the door, but nobody responded. Between 10:45 to 11:00 p.m., they noticed fresh footprints in the snow, leading to a rear door, which was locked. The police had not previously noticed this evidence of activity around the unit.

[6] At 11:14 p.m., concerned that someone might be in the unit and injured, the officer in charge ordered that the police conduct a warrantless search. The police broke down the door and searched the unit. Nobody was inside. However, the police found two firearms. A search warrant was obtained and the subsequent search also resulted in the discovery of a quantity of marijuana and cash.

The Trial Judge's Ruling

[7] The appellant sought exclusion of the fruits of both searches based upon breaches of ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms.

[8] The trial judge found that, when the police arrived at the hospital, the appellant was not detained. However, when the police became confrontational with the appellant at 10:20 p.m. (i.e., accusing him of lying), he was at that point detained. The trial judge found that the appellant's inculpatory statements about the firearms in his unit were taken in violation of s. 10(b) of the Charter and excluded them under s. 24(2) for the purpose of proving his guilt; however, the trial judge held that the information derived from this part of the interview could inform the reasonableness of the officers' grounds to conduct a warrantless search.

[9] The appellant also argued that both searches of his industrial unit infringed his right to be free from unreasonable search and seizure under s. 8 of the Charter. The trial judge found that the initial, warrantless search was justified on the basis of exigent circumstances. The trial judge further found that, if the warrantless search infringed s. 8, the evidence ought to be admitted under s. 24(2).

[10] Moreover, the trial found that the second search, conducted pursuant to the warrant, did not infringe s. 8. He found that, after removing the paragraphs in the ITO that detailed the appellant's admissions at the hospital, as well as information derived from the warrantless search, there was still a basis for the search warrant to issue.

[11] As a result of this ruling, the appellant was found guilty based on an Agreed Statement of Facts.

Analysis

[12] The appellant challenges the trial judge's conclusions concerning the lawfulness of the two searches conducted at his industrial unit. We are not persuaded that the trial judge erred.

[13] In terms of the warrantless search, the trial judge accepted the evidence of the police officers involved in authorizing and executing the warrantless search, and that there was a genuine concern that an injured person might still be inside. As the trial judge said, at paras. 24-25, and 27-28 of his reasons:

Det. Sgt. Zajak authorized the warrantless entry into unit B. [He] gave credible evidence that was not shaken in cross-examination. I accept without reservation his and DC Doyle's evidence that they had a shared concern that someone could be injured inside the unit. Given the information they had at the time, I find their concern to have been reasonable.

Det. Sgt. Zajak acknowledged that, in his words "he didn't know what the deal was", but he had enough information that he was seriously concerned that someone could be inside, injured from a gunshot wound. He also had concerns about officer safety, and the possibility that someone could be inside getting rid of evidence, but those concerns were secondary to his concern about a possible injured victim inside the unit. In response to the suggestion…that there were no exigent circumstances and that he could have waited for a warrant, Det. Sgt. Zajak said he couldn't live with himself if he went in 5 or 6 hours later and found a dead person who had bled out: "that's something I would have to live with for the rest of my life."

I have no hesitation in concluding that the officers had an honest and reasonable concern that there could be an injured victim inside the unit. They were not prepared to take a chance by waiting for several hours until a search warrant could be obtained.

In my opinion, in entering unit B without a warrant, they made the right decision. The fact that the search revealed that there was no injured victim inside the unit does not mean that the decision was the wrong one. There was a reasonable belief that a person's safety could be at risk. [Emphasis added.]

[14] Based on these factual findings, the trial judge concluded that the warrantless search was justified by exigent circumstances.

[15] We see no error in the trial judge's analysis. The trial judge's factual findings are entitled to deference on appeal. The findings set out in the paragraphs reproduced above were firmly grounded in the evidence. Although the trial judge did not refer to the evidence that the Emergency Task Force refused to participate in the warrantless entry without a search warrant, he was clearly aware of this circumstance. Indeed, this issue was clarified through the trial judge's questions of Det. Sgt. Zajak. His failure to mention this evidence in his reasons, or other incidental aspects of the evidence, did not undermine the ample evidentiary foundation from which he drew his conclusions.

[16] The circumstances known to the police at the time amply justified the warrantless entry into the appellant's commercial unit. In other words, the trial judge did not err in finding that the entry was "compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety" and that "taking the time to obtain a warrant would pose serious risk to those imperatives": R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 37.

[17] This ground of appeal is dismissed.

[18] The appellant further argues that the search warrant that was subsequently obtained was invalid because the police improperly relied upon (1) the appellant's admissions made following a breach of his rights under s. 10(b) of the Charter, and (2) the fruits of the warrantless search.

[19] The trial judge agreed that the paragraphs in the ITO referring to the appellant's admissions should be excised. The trial judge said, at para. 34: "Clearly, the balance of the ITO provides an abundant basis for the conclusion that reasonable grounds existed to permit the issuance of a search warrant." Further, the trial judge rejected the submission that, if reference in the ITO to the fruits of the warrantless search were also excised, the warrant would be invalid. The trial judge disagreed, at para. 35: "Again, with those paragraphs omitted, there is still a more-than-adequate basis for the issuance of the search warrant." These findings were reasonable.

[20] We see no error in the trial judge's analysis of the validity of the search warrant and we would also dismiss this ground of appeal.

Disposition

[21] The appeal is dismissed.

"David Brown J.A."

"Grant Huscroft J.A."

"Gary Trotter J.A."