COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Collins, 2023 ONCA 2

DATE: 20230105

DOCKET: C69708

Fairburn A.C.J.O., Doherty and Favreau JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Douglas Collins

Appellant

Alan D. Gold and Ellen Williams, for the appellant

Amanda Webb, for the respondent

Heard: December 9, 2022

On appeal from the conviction entered on January 15, 2021 and the sentence imposed on September 23, 2021 by Justice Amanda J. Camara of the Ontario Court of Justice.

Favreau J.A.:

[1] The appellant, Douglas Collins, was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds obtained by crime. The trial judge sentenced the appellant to five years in custody on the possession for purpose of trafficking charge and five years on the possession of proceeds charge to run concurrently.

[2] The police found cocaine and cash in the appellant’s home and vehicle while executing a search warrant. The trial judge found that the police breached the appellant’s s. 8 Charter rights because they made a dynamic entry into the appellant’s home without providing any evidence explaining their reason for doing so. However, the trial judge did not exclude the evidence pursuant to s. 24(2) of the Charter.

[3] The appellant appeals the conviction on the grounds that the trial judge erred in her analysis of s. 24(2) of the Charter and thereby erred in deciding not to exclude the evidence found in his home and vehicle. In the context of the conviction appeal, the appellant brings a fresh evidence application, seeking to have the court admit a Notification Letter from the Office of the Independent Police Review Director (the “OIPRD”) addressed to police chiefs in Ontario dealing with dynamic entries, along with related materials. The appellant also seeks to appeal his sentence.

[4] As set out below, I would dismiss the conviction appeal and the motion for fresh evidence. I would allow the sentence appeal in part, by reducing the concurrent sentence on the count of possession of the proceeds of crime from five years to two years.

BACKGROUND

[5] The Hamilton Police Service obtained a warrant to search the appellant’s home and pickup truck.

[6] On May 7, 2019, the police attended the appellant’s home to execute the warrant. Around 2:30 pm, the police used a ramming rod to enter the appellant’s home. The entry caused some damage to the door. The only evidence from the police about why they conducted a dynamic entry is set out in one police officer’s notes, which were summarized as follows by the trial judge:

He attempted to gain entry to the residence without force however the use of the ram was required. Minor damage was made to the front door during entry… and that the entry was gained through the locked front door of the house.

[7] Once they entered the home, the police found the appellant in his boxer shorts. He came up from the basement and he appeared to have been sleeping. The police then arrested the appellant.

[8] The police searched the appellant’s home and pickup truck. They found 1.3 kilograms of cocaine, over $30,000 in cash and drug paraphernalia.

[9] The appellant was charged with possession of cocaine for the purpose of trafficking and with possession of the proceeds of crime.

[10] The appellant brought a pre-trial s. 8 Charter application, seeking to exclude the evidence found by the police. The appellant challenged the search warrant and argued that the dynamic entry into his home violated his s. 8 Charter rights. It is fair to say that the focus of the application was on the search warrant rather than on the dynamic entry. This goes some way to explaining why there was virtually no evidence, other than the police notes referred to above, addressing the dynamic entry.

[11] The trial judge found that the warrant was lawful but found a breach of the appellant’s s. 8 Charter rights based on the dynamic entry. Specifically, she noted that the Supreme Court of Canada’s decision in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, requires the police to knock or announce themselves before entering a home, except in exigent circumstances.Where police officers enter a home without knocking or otherwise announcing themselves, if challenged, the Crown has the onus of proving that the police had reasonable grounds to be concerned about a possible risk to themselves or the occupants of the home, or about the destruction of evidence. The trial judge found that, in this case, there was no evidence to explain why the police used force to enter the home, including no evidence of physical risk to the police or others, or that the evidence may be destroyed.

[12] While the trial judge found that the dynamic entry breached the appellant’s s. 8 Charter rights, she did not exclude the evidence found by the police pursuant to s. 24(2) of the Charter. In making this ruling, the trial judge considered the three lines of inquiry in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, namely (1) the seriousness of the Charter infringement, (2) the impact of the breach on the appellant’s Charter-protected interests, and (3) society’s interest in adjudicating the case on its merits.

[13] First, the trial judge found that the seriousness of the Charter infringement weighed in favour of exclusion. In making this finding, she noted that the appellant had not put forward any evidence demonstrating that this breach was part of a systemic pattern of disregard for Charter rights, rather than an isolated incident. However, given that there was minimal evidence explaining why the police made a dynamic entry, she had “little choice but to conclude that…this prong of the analysis pulls in favour of exclusion.”

[14] Second, with respect to the impact of thebreach on the appellant’s Charter interests, the trial judge found that it favoured admission of the evidence. The trial judge recognized that a dynamic entry into the applicant’s home would have a serious impact on him. However, she stated that the police would have discovered the evidence in any event given the search warrant:

That impact is ameliorated when one considers the discoverability of the evidence. In the unique circumstances of this case there is not a causal connection between the breach and the impugned evidence. In this case, the police had prior judicial authorization to enter the home. Whether that entry was made after knocking on the door or using a ram to break the door, eventually the police were going to find the evidence. Because this evidence was otherwise discoverable the impact of the breach is attenuated.

[15] Third, the trial judge found that society’s interest in adjudicating the case on the merits favoured admitting the evidence. In making this finding, she noted that the drugs and currency were found after the police obtained a search warrant. She also noted that the evidence was real and reliable, and that it was critical to the prosecution. Admitting the evidence would not undermine public confidence in the justice system and excluding the evidence would undermine society’s interest in adjudicating the case on its merits.

[16] After the trial judge denied the appellant’s application to exclude the evidence, the appellant was found guilty of possession of cocaine for the purpose of trafficking and possession of proceeds obtained by crime. The trial judge then imposed custodial sentences of five years on both convictions, with the sentence for possession of proceeds to be run concurrently with the sentence for possession for the purpose of trafficking. She also made a DNA order, amongst other ancillary orders.

DISCUSSION

[17] There are three issues on appeal:

a. Whether the fresh evidence should be admitted;

b. Whether the trial judge erred in her analysis and application of s. 24(2) of the Charter; and

c. Whether the sentences imposed were too long.

(1) The motion for fresh evidence

[18] The appellant seeks to introduce a Notification Letter dated November 18, 2022 from Stephen Leach, Director of the OIPRD, addressed to the Ontario Police Chiefs and the Commissioner of the Ontario Provincial Police. The letter says that part of the OIPRD’s mandate is to monitor policing issues that may affect the public’s trust in the police. The letter states that the OIPRD has identified dynamic entries as such an issue, and it recommends that police services in Ontario adopt specific policies for how to handle and document situations where the police depart from the “general rule” that the police are to “knock and announce their presence before entering a home.”

[19] The appellant argues that the letter is relevant to the third line of inquiry in Grantbecause it shows that there is a societal interest in not condoning a case such as this one where the police have failed to provide a satisfactory explanation for their dynamic entry into the appellant’s home.

[20] In my view, the letter should not be admitted as fresh evidence, primarily because, contrary to the fourth requirement in the Palmer test, it could not reasonably be expected to have affected the result at trial: Palmer v. The Queen, 1979 SCC 8, [1980] 1 S.C.R. 759, at p. 775.

[21] The letter suggests that police forces should have policies in place that require that dynamic entries in private homes only be used in exigent circumstances, that dynamic entries be pre-authorized and that the circumstances and rationale for a dynamic entry be carefully documented after the fact. However, in this case, there is no evidence regarding the Hamilton Police Service’s policy regarding dynamic entries. As noted in the letter, some police forces already have these types of policies in place. In addition, as observed by the trial judge, there is no evidence that the use of unjustified dynamic entries is a systemic issue in Hamilton. In the circumstances, in the absence of any evidence showing a link between the concerns expressed in the letter and the circumstances of this dynamic entry, the letter on its own could not have affected the outcome of the s. 24(2) Charter analysis.

[22] Accordingly, the motion for fresh evidence is dismissed and I have not considered the fresh evidence in deciding whether the appeal from conviction should be allowed.

(2) The s. 24(2) Charter ruling

[23] A party seeking the exclusion of evidence under s. 24(2) based on a Charter breach has the onus of proving that the evidence should be excluded: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89; R. v. Griffith, 2021 ONCA 302, 406 C.C.C. (3d) 244, at para. 51; R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11. Where the trial judge has considered the proper factors in the s. 24(2) analysis and has made no unreasonable findings, the appellate court owes significant deference to the trial judge’s decision on the issue of whether evidence should be excluded: Grant, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 315, at para. 44; R. v. McColman, 2021 ONCA 382, 156 O.R. (3d) 253, at para. 164.

[24] As reviewed above, in this case, the trial judge found that the seriousness of the breach weighed in favour of exclusion, but the two other lines of inquiry in Grantweighed in favour of inclusion.

[25] The appellant submits that the trial judge erred in her consideration of the first and second lines of inquiry. The appellant further submits that, had the trial judge not committed these errors, she should have excluded the evidence because, standing on its own, the third line of inquiry would rarely be sufficient to weigh in favour of including evidence obtained in breach of Charter rights. I do not agree that the trial judge committed any reversible errors in her analysis of the first and second lines of inquiry.

[26] With respect to the seriousness of the Charter breach, while the trial judge found that this factor “pull[ed]” in favour of exclusion, the appellant argues that she should have given more weight to this factor because the police failed to provide any explanation for the dynamic entry.

[27] Although somewhat understandable, given the peripheral nature of the complaint leveled at the Charter application, it is troubling that there is no better explanation for the dynamic entry in this case. While the officer’s notes state that the police attempted to gain entry to the home without force, it is not possible to determine, for example, whether the police knocked once and waited two seconds or whether they knocked several times and waited several minutes. It is also not possible to tell what, if any, risk they were trying to mitigate by entering the home with “the use of the ram”, resulting in “[m]inor” damage to the front door.

[28] However, the trial judge acknowledged and accounted for this lack of evidence. Even though the onus was on the appellant to prove the seriousness of the breach, the trial judge accepted that, given the lack of evidence explaining the breach, this factor favoured exclusion rather than inclusion of the evidence. The trial judge was not willing to go any further because the appellant failed to provide any evidence of a systemic breach. In the circumstances, I see no reason to interfere with the trial judge’s analysis on this line of inquiry.

[29] With respect to the impact of the breach on his Charter rights, the appellant submits that the trial judge erred in finding that the evidence would have been discoverable without the Charter breach.

[30] In Grant, at para. 122, the majority stated that discoverability plays a useful role in assessing the impact of a Charter breach. Discoverability allows the court to assess whether the evidence could have been obtained in the absence of the Charter breach. Discoverability thereby allows the court to focus on the causal connection between the Charter breach and the availability of the evidence at issue.

[31] Here, the trial judge held that, given that the police had a constitutionally compliant search warrant, they would have discovered the evidence even if they had not made a dynamic entry. The appellant argues that this reasoning is illogical because the use of the dynamic entry itself belies the assumption that the evidence would have been discoverable without breaching his rights. The suggestion is that if a dynamic entry is required to prevent the destruction and loss of evidence, then that evidence would not have been discoverable without the Charter-infringing dynamic entry. The problem with the appellant’s argument is that it rests on an assumption that, but for the dynamic entry, the appellant would have taken steps to destroy the evidence. This submission rests on the unpalatable assumption that the evidence would not be available because of the appellant’s own misconduct, a view that should not be endorsed.

[32] Ultimately, it was open to the trial judge to reach the conclusion she did. She considered the appellant’s privacy interest in his home, but recognized that that privacy interest was attenuated given the existence of the warrant and that the evidence was thereby discoverable. The appellant did not put forward any other evidence about the impact of the breach on his rights. In the circumstances, I see no reason to interfere with the trial judge’s finding that the impact of the breach weighed in favour of admitting the evidence.

[33] Given that the trial judge did not err in her assessment of the first and second Grant lines of inquiry, I see no error in her overall conclusion that the evidence found by the police should not be excluded. This was an exercise of discretion to which this court owes deference. The trial judge made no error in admitting the evidence.

(3) The sentence was fit

[34] On appeal, this court owes deference to the sentence imposed by a trial judge. The court will only disturb the sentence if the trial judge made an error in principle that had an impact on the sentence, or if the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41-44.

[35] The appellant argues that the five-year sentence for possession of cocaine for the purpose of trafficking is too high because it is outside the range for a street-level dealer and, even if it is within the range, it is too high because it fails to account for Charter breaches. In this context, the appellant relies on the s. 8 Charter breach discussed above. He also relies on s. 10(b)breaches which he says occurred at the time of his arrest that are set out in an agreed statement of facts submitted to the court below for sentencing. The agreed statement of facts refers to two questions the police asked the appellant, which he answered before he was given a chance to exercise his right to counsel.

[36] I see no error in the sentence the trial judge imposed for the possession of cocaine for the purpose of trafficking conviction.

[37] The appellant was found with 1.3 kilograms of cocaine. Some of the cocaine was in the form of a brick while the rest of the cocaine was in baggies of varying weights. In the circumstances, the trial judge did not commit an error in looking at the range of sentences for traffickers found with a kilogram or more of cocaine, rather than ounce-level street traffickers. She also did not commit any error in finding that the appropriate range in this case was 5 to 8 years. Finally, she did take all the mitigating circumstances into consideration, including the Charter breaches, which led her to impose a sentence at the lowest end of the range. I see no reason to interfere with her decision.

[38] The Crown concedes that the trial judge erred in imposing a five-year sentence for the possession of proceeds of crime conviction. While the appellant was found with over $30,000 in cash, he was charged with possession of $5,000 or less, which carries a maximum sentence of two years: Criminal Code, R.S.C. 1985, c. C-46, s. 355(b). Accordingly, I would reduce this sentence to two years, to be served concurrently with the five-year sentence for possession of cocaine for the purpose of trafficking.

[39] Finally, the appellant submits in his factum that the trial judge should not have imposed a DNA order. At the hearing of the appeal, the appellant’s counsel did not make any arguments on this issue but said that he relied on the arguments in the factum. I see no error in the trial judge’s exercise of her discretion to impose a DNA order. She explained her reason for making the order, including that the appellant was not a first-time offender.

DISPOSITION

[40] I would dismiss the motion for fresh evidence and appeal from conviction.

[41] I would allow the motion to appeal from sentence, and allow the appeal from sentence with respect to the sentence for possession of proceeds, which I would reduce from five years to two years to be served concurrently with the five-year sentence for the possession of cocaine for the purpose of trafficking. I would dismiss the balance of the sentence appeal.

Released: January 5, 2023 “J.M.F”

“L. Favreau, J.A.”

“I agree, Fairburn ACJO”

“I agree, Doherty J.A.”