Court File and Parties

Ontario Court of Justice

Her Majesty the Queen Respondent

— AND —

Daniel Peter Applicant

Before: Justice Douglas B. Maund

Heard on: November 28 and November 29, 2013

Ruling released: December 17, 2013

Counsel:

• Ms. B. Neil — counsel for the Crown
• Mr. A. Paas — counsel for the accused Daniel Peter

Ruling

Maund, J.:

[1] Charge

[1] The Accused, Daniel Peter, stands charged that on the 25th day of January, 2013, at the Town of Caledon he possessed a controlled substance, marijuana, in an amount under 3 kilograms for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2] Application and Crown Concession

[2] This is a Ruling on an Application by the Accused as Applicant to exclude all evidence seized on the basis of an alleged breach of his rights pursuant to Section 8 and Section 9 of the Charter of Rights and Freedoms. During argument the Crown conceded that the warrantless search and seizure on these facts constituted a breach. This concession was on the basis that the facts in evidence on the Charter voir dire did not demonstrate exigent circumstances or were not otherwise a justifiable use of police powers to authorize a warrantless search.

[3] I agree with the Applicant and the Crown that a breach occurred in the circumstances. In the result, the Section 24(2) Charter exclusion analysis will determine the outcome of this Application.

The Facts

[4] On January 25, 2013, officers from the Caledon Ontario Provincial Police responded to a 9-1-1 call originating from a residence where Daniel Peter lived with his parents and two brothers in the Town of Bolton. Five officers testified on this voir dire as well as the Applicant's father, Anthony Peter.

P.C. Ryan Myette — First Responding Officer

[5] P.C. Ryan Myette was the first officer to respond. He testified that the call came in at approximately 6:48 p.m. on his radio. Essentially it indicated that the brothers were fighting in the house. It was reported that one brother had pulled a pair of scissors on the other which he used or brandished as a weapon. P.C. Myette also understood that one of the brothers said or threatened that he would pull a gun if the police did not come quickly to deal with the matter. P.C. Myette arrived at 6:58 p.m. and entered the residence through an open front door.

[6] On entering the house the police officer was met by the father, Anthony Peter. He saw two young males who he understood were the sons, Justin Peter and Daniel Peter, sitting at the dining room table. The other brother, Geoffrey Peter was nearby, seated on the living room couch. According to P.C. Myette the boys were engaged in screaming and arguing and the father was attempting to calm the situation when he first arrived.

[7] Along with his partner, P.C. Linton who was also on scene, P.C. Myette attempted to deescalate the situation and assess the incident. His conclusion was that Justin and Geoffrey, had been in a consensual fight which had gotten out of hand. Justin complained that he had been placed in a choke hold by Geoffrey and had wanted to stop the fight. Geoffrey countered that his brother had pulled out scissors and had attempted to stab him. Daniel Peter told the officer no scissors had been involved.

[8] P.C. Myette asked Geoffrey Peter if he had or owned a gun to which he replied that he did not. At that point, according to his evidence, the argument flared up again between the brothers and their father. He became increasingly concerned that it might escalate into violence and a possible safety issue.

[9] The argument between the father and Geoffrey got to the point where Anthony Peter announced that he did not want his son to remain in the home. Geoffrey agreed that he would leave the house but wanted to retrieve his jacket and some belongings from his room. At this point P.C. Myette had a concern about the possibility of access to a gun by Geoffrey Peter. He understood that Geoffrey was the brother who had made the original comment that he would obtain a gun during the fight. He testified that, for that reason, he did not want Geoffrey to go to the bedroom unsupervised. The officer's concern was not lessened by the indication from Geoffrey that he wanted to go to his bedroom to show them something. There was no reference to what that might be but, given the volatile nature of the situation and the previous comments, this caused P.C. Myette concern.

[10] P.C. Myette determined from the father that the bedroom was occupied by all three brothers. He questioned both parents about the possibility that Geoffrey might have a firearm in the house. The parents told him that they had never seen a gun and did not believe that he had one. Nevertheless, they also told the officer that Geoffrey had become obsessed with obtaining a firearm and there was at least a possibility that he had one. That was his impression of his conversation with the parents in any event. While Anthony Peter told Myette that he did not think his son Geoffrey had a firearm, he made it clear that he believed his son wanted one "really bad." The father added that he also feared that Geoffrey may have been involved in local gang activity.

[11] At this point, Geoffrey Peter started towards his bedroom. P.C. Myette offered to have an officer escort him to the bedroom but indicated that Geoffrey did not want anything to do with this suggestion.

[12] P.C. Myette testified that he then had further conversation with Anthony Peter and Mr. Peter agreed that the police could search the bedroom for a possible firearm. His recollection of that discussion was that Mr. Peter was insistent that they search for a possible weapon as he did not want to have a firearm in his home.

[13] It was subsequent to this conversation, according to the evidence of P.C. Myette, that Sergeant Kinapen arrived on the scene. This was after Geoffrey Peter had left the house. P.C. Myette had a brief conversation with Sergeant Kinapen outside the residence and relayed his concerns as well the comments of the parents concerning a possible firearm. He also indicated his belief that the police had consent to search from Anthony Peter. Sergeant Kinapen instructed him to search the bedroom area. P.C. Myette added that he also had concerns about volatile past behaviour on the part of Geoffrey Peter. He was aware that Geoffrey had had some unspecified association with local gangs.

[14] Accordingly the search of the bedroom area of the home was conducted. The basis for the search without warrant, according to P.C. Myette, was for public safety due to exigent circumstances. The search was conducted with P.C. Linton and certain items, including drugs, were located as well as drug paraphernalia. I will not detail the specifics of the search and the nature of the seizures for the purpose of these reasons.

[15] On cross-examination P.C. Myette agreed that while the situation upon his arrival was volatile because of the escalating argument, he had concluded that the incident between the two boys did not justify charges from the information provided. He believed the fight was consensual and he did not believe that a weapon had in fact been used or threatened. He also agreed that Geoffrey Peter told him that he did not have a firearm and added that he had only said this because he wanted the police to come to the house more quickly. P.C. Myette also indicated that he never entered the bedroom with Geoffrey prior to the young man leaving the house.

[16] While not recorded in P.C. Myette's notes, he testified on cross-examination that the parents both told him that they did not believe that their son Geoffrey had a gun but they would not be surprised if he did have one. He proceeded with the search on the basis of his understanding that Anthony Peter would actually welcome the search because of his concern about the possibility of his son having a firearm in the house. He also indicated that he did not initiate the search of the bedroom until he received the approval to proceed from his Sergeant. He did not recall any conversation between the officers about the possibility of obtaining a search warrant before the search or securing the scene while a warrant might have been obtained.

P.C. Steven Linton — Partner Officer

[17] Constable Steven Linton of the OPP was partnered with P.C. Myette and arrived at the residence with him that evening. He was also aware of the circumstances of the radio call and the reference to someone pulling a gun during a dispute. This officer confirmed Myette's evidence or impressions of the scene they encountered when they entered the house. He recalls being told by Geoffrey Peter that his brother, Justin, had been in a fight with him and had held scissors to his side. However, according to the Daniel Peter the fight had been a mutual one and no scissors had ever been involved.

[18] P.C. Linton described Geoffrey Peter as appearing very angry, nervous and fidgety during this encounter. P.C. Linton specifically asked Geoffrey about the reference to a gun. He was told by Geoffrey that he had been "just saying that" and also that if he were to get arrested everybody in the house would get arrested.

[19] Geoffrey told the officers that he wanted to show them something. When asked what this was, he did not respond but indicated that he wanted to get it from his bedroom. P.C. Linton shared the concern of his partner that there was possibly a gun in the bedroom. He was not willing to let Geoffrey go to the bedroom unescorted. According to P.C. Linton, Anthony Peter told them that he wanted his son Geoffrey out of the house. The father told the police that he did not believe his son had a gun in the house.

[20] According to P.C. Linton P.C. Myette walked to the bedroom with Geoffrey to retrieve some money and a jacket so he could leave the house. However, he later clarified that he was not in a position to see whether either Geoffrey and his fellow officer actually entered the bedroom at that point.

[21] P.C. Linton also spoke with the mother. She believed that Geoffrey would get a gun if he were able to do so, but she did not believe that he had one in the house. He did not understand that either parent had an issue with respect to a search of the room on account of their mutual concern about the gun. Ultimately, it was Sergeant Kinapen who gave the go ahead to search the room. Linton believed this search was due to the exigent circumstances. He also had some general knowledge that Geoffrey may have been affiliated with gangs in the Bolton area and he believed that he was wearing the blue colours worn by one of those gangs. The subsequent search was conducted by P.C. Myette with Linton documenting the seizures.

[22] On cross-examination P.C. Linton confirmed that while there was a lot of yelling going on after they arrived at the residence, there was never any physical confrontation while they were there.

[23] P.C. Linton added that the mother told them that their son Geoffrey had had an obsession with obtaining a gun since the time that a friend of his had been stabbed. After Geoffrey left the home the situation calmed down. That was the situation by the time Sergeant Kinapen arrived. Given all of the circumstances known to him, he testified that he would not have been comfortable leaving the house that night without searching for a potential gun. And he believed that the parents were consenting to a search of the bedroom. He denied the suggestion that the officers were putting pressure on the parents to conduct this search. His belief was that they were both concerned about any possibility that a gun might be in their home. He remembers no apparent concern by the parents that their privacy was being invaded. He also did not remember any discussion amongst officers about the possibility of obtaining a search warrant before proceeding into the bedroom.

P.C. Brendan Magee

[24] The third officer to testify was Constable Brendan Magee. He was not primary at the scene and his evidence was somewhat limited. P.C. Magee testified that the parents told the primary officers that they did not believe there was a gun in the home. They said they would have seen one. But the parents added that their son Geoffrey wanted to obtain a gun. He also recalled from his notes that one of the two other brothers in the house, he is not sure which one, told the police that he did not believe their brother Geoffrey had a gun at the residence.

P.C. Andrew Mitchell

[25] P.C. Andrew Mitchell was also in the house in response to the call that night. The information relayed to him was that someone had threatened to use scissors on another person in the residence. There was also an indication from the original call that if the police did not arrive quickly, the complainant said he would get a gun. When P.C. Mitchell arrived the parties had been separated. He heard Anthony Peter order his son Geoffrey out of the house. After that he stood by to help keep calm. P.C. Mitchell arrived on the scene at the same time as Sergeant Kinapen. He had some familiarity with Geoffrey Peter in connection with calls involving fights between young people. However, in his past association with Geoffrey during these incidents, the youth was never at the center of trouble but just nearby on the periphery.

Sergeant Andrew Kinapen — Supervising Officer

[26] Finally, Sergeant Andrew Kinapen testified that he was the supervisor of the O.P.P. platoon on duty at the relevant time. He arrived at the scene at 7:17 p.m. He also had received the radio dispatch information which referenced a potential gun being involved. Sergeant Kinapen had past dealings with Geoffrey Peter. His understanding was that Geoffrey had been yelling in the 9-1-1 call words to the effect that police had better be on their way or he would pull a gun.

[27] Prior to arriving at the scene Sergeant Kinapen had been receiving updates from P.C. Magee. Based on his understanding of the circumstances, he came to the conclusion that exigent circumstances existed to search for the gun in the residence. He was also concerned about issues of public safety. He testified that he was met at the residence by officers' Linton and Myette. Kinapen believed that on his arrival the officers' had already started the search in the bedroom and that no gun had been located. He then briefly searched the area on foot to attempt to locate Geoffrey Peter before returning to the residence.

[28] When he returned to the house Sergeant Kinapen spoke with the parents, Anthony Peter and Mary Peter Watkins. He informed them that the police were going to search for the firearm and they told him they understood. He later participated in the search and cut open one of the bags which was located in the bedroom. Sergeant Kinapen indicated that he later made a request to the parents to search the entire house, which they declined.

[29] Sergeant Kinapen testified on cross-examination that he decided that a search of the residence was required despite his knowledge that Geoffrey Peter had left by the time of his arrival at the house. It was nevertheless his belief that a threat still existed and it was in the public interest that the officers conduct a search for a possible gun. He instructed that the search be undertaken. I understood Sergeant Kinapen's evidence was that he authorized the search to continue after he spoke with the primary officers at the scene. His evidence was not clear as to what extent any ongoing search had already been conducted or where.

[30] When questioned about the availability of a search warrant in the circumstances, Sergeant Kinapen indicated that due to safety concerns, he believed he had proper legal standing to authorize the warrantless search. His final opinion was based on the nature of the 9-1-1 call, what he heard from the scene officers and his understanding of the volatility of Geoffrey Peter who had left the house. He believed that the police had a responsibility to ensure that the persons remaining in the house were safe in the event that Geoffrey returned. And while Sergeant Kinapen was aware of the procedure and the availability of telewarrants in investigations, it was his opinion that the police could not wait to initiate that procedure. As a result of his safety concerns, he decided that the search should continue.

Anthony Peter — Father of the Accused

[31] Finally, the father of the Applicant, Anthony Peter testified on the voir dire. Mr. Peter testified that when he arrived home with his wife that evening his son Geoffrey was on the phone in the course of a 9-1-1 call. He remembers Geoffrey yelling that there was a gun in the house during the call. Mr. Peter took the phone from him and told the 9-1-1 operator that there was no gun in the house and that as far as he was concerned, it was just two brothers fighting. However during the call he clearly remembered his son in the background yelling that he had a gun.

[32] When the police arrived Mr. Peter indicated that Geoffrey was still very agitated and continued to yell and scream about the fight with his brother. Mr. Peter does not remember specifically telling Geoffrey to leave the home but he remembers that the decision to leave was made. Before doing so, Geoffrey was escorted by the police to his room to get his jacket. As to the search, he remembered essentially being told by the officer that they had probable cause and were going to search for a gun. While he did not tell them that they had permission for the search, he assumed that they were going to conduct a search in any event. He therefore told them that they could search the room occupied by his three sons but no other part of the house.

[33] Mr. Peter told the police before the search that there was no gun in the house and this information was repeated to them by the other family members. He also remembers Geoffrey telling the police that he wanted to show them something in his bedroom and also telling them "I have a gun." This specific comment attributed to Geoffrey that he had a gun was not part of the evidence of any of the officers at the scene. However, it was a specific recollection by Anthony Peter. While Mr. Peter told the police that he was sure that Geoffrey did not have a gun, he did tell them that he knew his son would like to obtain one but he lacked the money. At the conclusion of the search Mr. Peter confirmed Sergeant Kinapen's evidence that the police then requested a search of the entire house which Anthony refused.

[34] According to Mr. Peter, his son Geoffrey had been saying to the family that he wanted to obtain a gun for a year or longer. Despite this, he did not believe it was possible that Geoffrey had a gun because, as he indicated, "I just know my son". He agreed with the Crown that it was an uncommon occurrence for Geoffrey to call 9-1-1 and to indicate in the call that he had access to a gun. While he agreed that his son had told the police that he wanted to show them something in his bedroom, he disagreed that they might have a reasonable concern from this and all of the previous comments which might suggest Geoffrey was going to retrieve a gun.

[35] Mr. Peter acknowledged that there were issues with anger and disputes escalating into fighting in the past with Geoffrey. He had no idea why his son would refer to a gun as he did in the course of this family dispute. The father was nevertheless "one hundred percent sure" that his son would never have a gun in his home. And finally Mr. Peter testified that Geoffrey said during the incident at least two or three times, including the reference in the 9-1-1 call, that he had or was going to get a gun.

Breach Finding

[36] As I have already indicated, I agree with counsel that a breach of the Applicant's Charter rights took place on these facts. A warrantless search of a dwelling house is presumptively unlawful unless authorized by a search warrant or is otherwise permitted by law.

[37] However, I find that the officers called to the scene on this call were carrying out their duties in good faith. The circumstances, both of the 9-1-1 call and the scene that they encountered initially, were volatile. In my view, the police had good reason to be apprehensive about potential risks from the outset.

[38] Nevertheless, I also find that these risks diminished significantly as they assessed the situation in the house. The situation calmed down. The person who made reference to getting a gun, Geoffrey Peter, was allowed to leave the residence. The officers also became aware of some indication from the family that Geoffrey's reference to getting a gun was just attention seeking talk. Equally, they could not rule out the possibility of a firearm on the available facts. While the police had a duty to treat seriously any call with reference to use of a gun, they also were obliged to assess the reality of that reference in their investigation.

[39] To rely on exigent circumstances, there must be a real risk of the loss or destruction of evidence or an imminent risk to public safety which cannot abide the obtaining of prior judicial authorization. As stated in the caselaw, there must be in the circumstances, no reasonable alternative to an immediate search. Despite what I find was a sincere but mistaken belief in their legal authority, these facts did not justify a search on the basis of exigent circumstances or common law police authority. A telewarrant could have been sought with the scene remaining secured in the meantime. I rely upon the extensive analysis of the relevant legal principles by the Ontario Court of Appeal in R v. Kelsy, 2011 ONCA 601 in coming to this conclusion.

[40] Notwithstanding this finding, the facts and their context as found by this Court are relevant to my section 24(2) Charter analysis. I find that the concern by the officers that Geoffrey Peter might have access to a firearm was not unsupported by available facts. The evidence was clear that Geoffrey was obsessed about getting hold of a gun after his friend was stabbed the preceding year. He was acting in an angry, volatile and suspicious manner at the residence. This included Geoffrey's statements that he wanted to show the officers something in his bedroom and his refusal to say what that was. Geoffrey Peter was also known or suspected by the police to have some sort of possible association with youth criminal gangs in the area. And while the parents told the police they did not believe he had a gun, Anthony Peter remembers his son saying at least two or three times during the incident that he did have one.

[41] I find that the concern or suspicion on the part of the officers was real. They had a public duty to continue their investigation to determine if there was a firearm in the house.

[42] The Crown concedes that there was not an unequivocal consent on the part of the parents to search the bedroom of the residence. The evidence of potential consent was in conflict. Anthony Peter testified that he essentially acquiesced in the search of the bedroom when it became clear to him that the police intended to search it in any event. P.C. Myette and P.C. Linton believed that Mr. Peter was entirely supportive of the search as he did not want a firearm to be in his home. While not an unequivocal consent, I find that the perception by the police that Anthony Peter supported their conduct of a search was not an unreasonable one on all of the available facts.

[43] Finally, I am unable to reconcile part of the evidence of Sergeant Kinapen with that of both Myette and Linton in one respect. According to Sergeant Kinapen, the search had already started to some unspecified extent when he arrived on the scene and authorized his officers to continue. He said he had made his mind up enroute, based upon the 9-1-1 call, his prior dealings with Geoffrey Peter and what was conveyed to him by P.C. Magee from the scene that a search would be required. After obtaining further details from Myette and Linton at the residence, he had them continue the search and later took part in it. According to the two primary officers, they did not enter the bedroom to search until authorized by their platoon Sergeant.

[44] The version by officers Myette and Linton is more logical and is supported by their notes. It may be that Sergeant Kinapen, who was late arriving and on the periphery of this investigation, was simply mistaken about whether the search had already commenced before his arrival. He gave no details about that in his evidence.

[45] As I have already found a breach, this conflict in the police evidence does not significantly affect my view of the police conduct in this warrantless search. The primary officers had already decided that a search was required. However, they testified that they waited for direction from their Sergeant to proceed. Sergeant Kinapen says he authorized the final search but only after speaking to his officers.

[46] On either version, I do not find that the police were acting in an arbitrary or egregious fashion. While they lacked legal authority to conduct a search and should have obtained a warrant, the police had an objective basis for their public safety concerns. While mistaken in law, I find that the police acted in good faith.

Section 24(2) Charter Analysis

[47] Having found a breach, the Applicant bears the burden of proof that the admission of the evidence seized during the search would bring the administration of justice into disrepute. The Court must balance the three well known tests in the analytical framework set out in R v. Grant, [2009] 2 S.C.R. 351.

(1) Seriousness of the Charter Infringing State Conduct

I have already characterized my general view of the police conduct on these facts. I concluded that the officers were acting in good faith in conducting this warrantless search in the mistaken belief that it was justified by exigent circumstances. In this finding, I do not conclude that they flagrantly disregarded well known legal principles. As demonstrated by the extensive analysis by Justice Rosenberg in Kelsy, the legal principles in this area of the law are not easily understood or applied. Particularly in response to a volatile and potentially violent 9-1-1 call, decisions to immediately remove potential weapons from the scene can be understood. There is always a sense of urgency on such calls. The police should have at least considered the availability of a warrant. But I do not find that their actions were arbitrary or wilful in context.

There was no unequivocal consent to search. But I accept the evidence of officers Myette and Linton as to their understanding of what was said to them by Anthony Peter. Mr. Peter's consent may have been equivocal but his concerns about a possible weapon being in the home at least supported the conclusion of the police that they could search.

On these facts, I cannot conclude that there is a need on the part of the Court to disassociate itself from this police conduct. Nor do I feel that it is necessary to preserve public confidence in the criminal justice system by excluding the evidence for this reason. I do not find, in the circumstance, that this police conduct was serious in that sense.

(2) Impact on the Applicant's Charter-Protected Interests

Section 8 of the Charter protects a reasonable expectation of privacy. Section 9 is designed to ensure the protection of liberty interests generally.

The Charter protected interest of privacy within the sanctity of one's home has been an essential constitutional right for centuries under English and Canadian common law. An unlawful and unauthorized search of a residence must invariably be viewed as serious. It led directly to the arrest and prosecution of Daniel Peter who, ironically was not even involved in the altercation at the house which gave rise to the 9-1-1 call.

(3) Society's Interest in the Adjudication of the Case

The drugs seized are reliable and essential evidence for the Crown. The exclusion of such evidence would effectively end the prosecution. And an allegation of possession of an illicit substance for the purpose of trafficking is inevitably very serious.

The third test usually favours the prosecution which contends that the public interest must be served by charges being heard on the merits. This is a concern on the part of the public which is frequently articulated.

Conclusion

[48] Balancing the tests in Grant ultimately is about maintaining public confidence in the criminal justice system. The Court must protect and uphold vital Charter rights which can impact upon a fair trial. But, the broader public interest in the prosecution of offences on the evidence must also be served.

[49] Applying and balancing these facts to the tests in Grant, I do not conclude that the admission of the evidence seized would bring the administration of justice into disrepute. Accordingly, the evidence will be admitted.

Released: December 17, 2013

Justice Douglas B. Maund