Court of Appeal for Ontario

Date: 2020-02-24 Docket: C65780

Judges: Benotto, Huscroft and Jamal JJ.A.

Between: Her Majesty the Queen, Respondent And: Brett Dunstan, Appellant

Counsel: Frank Addario and Wesley Dutcher-Walls, for the appellant James D.M. Clark, for the respondent

Heard: February 18, 2020

On appeal from the conviction entered on July 3, 2018 by Regional Senior Justice Michelle Fuerst of the Superior Court of Justice, with reasons reported at 2018 ONSC 4153.

Reasons for Decision

[1] Someone called the police anonymously to report a break-in at 76 Red Ash Drive in Markham. Police officers arrived at the house where they found the front door open. They entered and found drugs, drug paraphernalia and cash in plain view. The owner of the house – the appellant – was charged with various drug related crimes. He sought to exclude the evidence seized on the basis that his s. 8 Charter rights were violated because the police staged the break-in. He contends that the anonymous caller was Detective Gillis, who had been extensively involved with a drug investigation.

[2] At the appellant’s first trial, the evidence was admitted, and he was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime.

[3] This court allowed the appeal on the basis that the trial judge had reversed the burden of proof with respect to the identity of the anonymous caller. Once it is established – as it was – that the search was warrantless, the persuasive burden shifts to the Crown to prove on balance of probability that the warrantless search did not result from the work of a state actor. Speaking for the court, Blair J.A. said, at para 87:

…the overall burden of persuasion rests with the Crown to justify the entry and the police conduct associated with it. That said, there is an evidentiary burden to be met by the appellant in the circumstances. The evidentiary burden required the appellant to lead evidence demonstrating a credible “air of reality” to the allegation that a state agent, Staff Sergeant Gillis, made the anonymous call and that he or his team was responsible for the initial break-in. For the reasons set out at paragraphs 69-70 above, the appellant succeeded in doing just that. The onus must then shift back to the Crown to counter the credible evidence led by the accused and to meet its ultimate persuasive burden of satisfying the court, on a balance of probabilities, that the police entry was justified. (Emphasis in original, R. v. Dunstan, 2017 ONCA 432)

[4] This court set aside the convictions and ordered a new trial. The second trial judge dismissed the appellant’s application following a 10-day voir dire.

[5] The appellant submits that once again the trial judge improperly shifted the burden of proof by not holding the Crown to its full persuasive burden. It was up to the Crown to present evidence satisfying the court, on a balance of probabilities, that the warrantless police entry was justified, which in this context involved showing that state actors were not involved in the break-in or the call to the non-emergency line. The Crown could not simply rely on the denials of the officer. The appellant submits that the trial judge erred by relying on irrelevant considerations, in particular the “riskiness” of a police break-in and the fact that the officer would not risk his career by engaging in illegal activities.

[6] We do not accept these submissions.

[7] The trial judge accepted Gillis’ evidence because it was consistent with other corroborated evidence. The investigation was active and ongoing at the time, the evidence from the appellant’s home was not used in the investigation, there was no motive or opportunity to break in and Gillis was not near the appellant’s home at the time of the break-in. The trial judge was entitled to consider a risk to a police officer’s career as a relevant consideration to be weighed: see: R. v. Thompson, 2015 ONCA 800, 343 O.A.C. 76, at para. 68.

[8] Since the Crown was required to establish a negative, its onus was fulfilled.

[9] This court identified shortcomings at the first trial, at para 89:

…in the face of the preliminary foundation laid by the appellant, the Crown remained passive. Although requested by the appellant to do so, it did not provide [Gillis’s] cell phone records, which the pre-trial application judge observed “would have been very helpful evidence”. …Although requested by the appellant to do so, the Crown also did not provide information respecting [Gillis’s] whereabouts which, the appellant argued, may have shown whether he was or was not near 76 Red Ash Drive on the morning in question.

[10] At the second trial this information, and more, was provided. Gillis also provided multiple voice samples for expert review to confirm his claim that he was not the caller.

[11] Most importantly, the trial judge rejected the allegation that Gillis made the call and accepted his evidence. She specifically accepted his evidence that: (i) he would never commit a crime to move an investigation forward; (ii) he did not make the call; (iii) he did not recognize the caller’s voice; and (iv) that neither he nor any member of his team was responsible for the break-in. These findings of credibility were open to her on the evidence.

[12] The appeal is dismissed.

“M.L. Benotto J.A.”

“Grant Huscroft J.A.”

“M. Jamal J.A.”