R. v. Balak
Court File No.: Toronto
Date: 2016-01-20
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Denis Balak
Before: Justice Mara Greene
Reasons for Judgment released: January 20, 2016
Counsel:
- A. Sandberg for the Crown
- J. Weisz for Denis Balak
Introduction
[1] Mr. Balak is charged with a number of gun related offences in relation to two revolvers found in the garbage area of 9 Roncesvalles Avenue in Toronto. At trial, there was no issue that the two revolvers found were restricted firearms. Nor was there any issue that Mr. Balak did not have a license to possess these weapons or that they were stored in a careless manner. It was also conceded that on the date that the guns were found, Mr. Balak was prohibited from possessing any firearms pursuant to a probation order and a weapons prohibition order. The main issues raised at trial related to alleged charter breaches and the issue of whether or not Mr. Balak was in fact in possession of the two revolvers found on April 12, 2012.
Summary of the Evidence at Trial
Mr. Balak's Move from 9 Roncesvalles Avenue
[2] Ms Moon-Soon Chang is the landlord at 9 Roncesvalles Avenue. Mr. Balak used to be her tenant. In early 2012, Mr. Balak was evicted from his unit by Ms. Chang in order to accommodate her son who needed an apartment. Mr. Balak was advised that he had to move out by March 31, 2012. Mr. Balak, however, did not end up leaving the apartment until sometime in early April. The exact date that he moved out is unknown as Ms. Chang was unclear about what date Mr. Balak moved out and no other evidence was presented on this point.
[3] According to Ms. Chang, on the date that Mr. Balak moved out, which was sometime prior to April 12, 2012, he packed up some of his belongings and left with them in a truck. Mr. Balak left the remaining items in his unit. Ms. Chang, her son and a friend helped her move the remaining items out of the unit. There were so many of Mr. Balak's belongings remaining in his unit that it took hours for the three of them to move all of Mr. Balak's belongings outside.
[4] According to Ms. Chang, she put all his belongings in a pile in the front of the apartment building expecting that Mr. Balak would return to retrieve them. When he did not return the following day, the items were all moved to the garbage area so that they could be thrown out.
[5] Photographs of the area where Mr. Balak's belongings were placed were entered as exhibits at trial. There were boxes and boxes of material there.
[6] According to Ms. Chang, Mr. Balak returned once to the building and the only item he inquired about was his television set. He did not ask about any of the other material removed from his unit. Ms. Chang was unclear about what day it was that Mr. Balak returned to the apartment asking about his television.
The Finding of the Firearms
[7] On April 12, 2012, at approximately 4:00 or 5:00 in the morning, Mr. Yorke was taking a morning walk when he noticed numerous boxes in a nearby laneway at Roncesvalles Avenue and Queen Street West. Mr. York looked through the items and seized a box full of what appeared to be household items as well as some other household items located amongst all the boxes in the garbage area. Once at home, Mr. Yorke opened the box and saw two guns inside and a sealed box of ammunition. Mr. Yorke continued to rummage through the items he seized, keeping a number of useful tools. He then packed up the remaining items in the box and returned the box to the area where he found it. He then contacted the police to advise them about the firearms. According to Mr. Yorke the police arrived approximately ten to fifteen minutes later.
[8] When asked for details about the items seized, Mr. Yorke explained that there had been numerous items around including toys, records and tools. Inside the box that housed the guns, Mr. Yorke recalled that there was a CD player, tools, razors, shampoo and many other smaller items. Mr. Yorke could not recall everything in the box. He was certain, however, that the guns were loose in the box as opposed to being inside a bag.
[9] PC Lavella arrived on scene in response to Mr. York's call at 6:51 am on April 12, 2012. According to PC Lavella, Mr. York was still present when he arrived. Mr. Yorke directed PC Lavella towards a white bag that was sitting amongst piles of boxes. Inside the bag, the officer located two firearms, a box of 50 rounds, numerous white bottles and a note with Mr. Balak's name on it indicating that a group meeting will take place on a particular date in January 2001. There was also a letter in the bag with the address of 245 Dunn Street. Within in this same area, PC Lavella also located a letter addressed to Pedro Juarez of 1336 King Street West and a letter addressed to Denis Balak. These latter items were not in the bag with the guns, just in the area of all the garbage.
[10] PC Lavella seized these items and pursuant to Det. Ruffino's instructions brought them to the police station. According to Det. Ruffino, two revolvers were located inside a white grocery style plastic bag along with paper work including a note that had Mr. Balak's name on it.
[11] Det. Ruffino testified that he did not go through all the items in detail nor did he document them all. He did examine the two firearms and then directed Det. Griffith, who was also working that day, to take photographs of all the items seized. Det. Griffith confirmed that photographs were taken of the items seized.
[12] At trial a bag of items that was allegedly seized on April 12, 2012 was placed in evidence. The officers, however, were unable to identify many of the items. The note with Mr. Balak's name on it was with this material and was identified by the officers as one of the items seized with the firearms.
The Arrest of Mr. Balak
[13] Det. Ruffino testified that he then ran a police check on the firearms found outside of 9 Roncesvalles Avenue. One of the firearms located was not registered at all. The other revolver was last registered to a Claude Joseph Myers from Saskatchewan. According to the databank, Mr. Myers would have been 110 years old. Neither firearm had been properly registered as required by law.
[14] Det. Ruffino testified that after running these checks, Mr. Balak was the main person of interest in the investigation. He did not have grounds to arrest Mr. Balak at this point in time but he did suspect that Mr. Balak was connected to the two revolvers. Det. Ruffino did not want to jump to conclusions about ownership and decided that the next investigative step was to interview Mr. Balak. Prior to attending at Mr. Balak's residence, Det. Ruffino ran a computer check on Mr. Balak and discovered that he was registered with SOIRA. He then contacted an official with SOIRA to determine whether or not Mr. Balak had notified them of his change of address. Mr. Balak had not.
[15] On April 23, 2012, Det. Griffith and Det. Ruffino went to 135 Tyndale Avenue, where Mr. Balak was now residing. Det. Ruffino testified that the purpose of the visit was to further the investigation as he did not yet have the grounds to arrest Mr. Balak. Det Griffith, on the other hand, testified that in his mind there were grounds to arrest Mr. Balak. He did not know why the decision was made not to arrest Mr. Balak right away. He did understand, however, that Mr. Balak might be arrested that day.
[16] Upon arriving at the apartment building at 4:14pm, Det. Griffith and Det. Ruffino attended at the management office to confirm Mr. Balak's unit number. The officers then went up to Mr. Balak's unit. Mr. Balak answered the door and then stepped outside of his unit to speak to the police. According to the officers, Mr. Balak's unit was so full of material that he could not even open the door the all the way. Once outside, Det. Ruffino asked Mr. Balak if he had notified the sex offender registry of his change of address. As noted above, Det. Ruffino already knew that Mr. Balak had not done this. Mr. Balak confirmed that he had not yet notified the sex offender registry of his change of address. According to Det. Ruffino, he then asked Mr. Balak if he knew a Claude Joseph Myers, to which Mr. Balak responded he "did not think so". Mr. Balak was then asked about the guns found outside. Mr. Balak immediately admitted to purchasing two revolvers 30 years earlier from a jeweller while he was travelling through Saskatchewan. He went on to state that he had forgotten all about them. According to Det. Griffith, Mr. Balak also stated that he had never used the revolvers. At this time, Det. Rufino advised Mr. Balak to stop answering any more questions and arrested him.
[17] Mr. Balak was arrested at shortly before 4:35 p.m.
[18] While Mr. Balak was arrested in front of his unit, he was not handcuffed until he was outside the building and near the police cruiser. Det. Griffith and Det. Ruffino afforded Mr. Balak this courtesy because they did not want to embarrass him at his new apartment. Moreover, Mr. Balak had been cooperative so they did not have any security concerns at this time.
The Strip Search
[19] Upon arriving at the station at 4:51pm, Det. Ruffino spoke to Sgt. Johnson, the officer in charge of the station. Sgt. Johnson was tasked with determining whether or not Mr. Balak should be stripped searched. Det. Ruffino testified that he told Sgt. Johnson that Mr. Balak was charged with possessing two unregistered restricted firearms and breaching probation. He also conveyed the circumstances of the arrest at Mr. Balak's home. Sgt. Johnson was not told about how the guns were found, where they were found, or Mr. Balak's statement (which Det. Ruffino acknowledged that he believed) that the firearms were purchased 30 years earlier and that he had forgotten all about the firearms. Det. Ruffino then testified that Sgt. Johnson ordered a level three search. The reason for ordering the strip search, according to Det. Ruffino was that Mr. Balak was charged with possessing firearms which are small and can be concealed.
[20] Detective Ruffino in cross-examination conceded that he believed Mr. Balak's explanation for the guns, was of the opinion that Mr. Balak was clearly a hoarder given the amount of stuff in both apartments and that the guns found were eight inches long and weighed approximately two pounds each. Nonetheless, he maintained that a strip search was necessary in this case because firearms can be hidden inside a person's underwear and that whenever someone is charged with possession of a weapon a strip search is ordered. It was not, however, his decision to make. He only recommended to Sgt. Johnson that a strip search be conducted.
[21] Sgt. Johnson testified at trial that he ordered the level three search. He had no notes of what took place the morning of Mr. Balak's arrest and had no independent recollection of why he ordered the search. According to Sgt. Johnson his reason for ordering the search would have been stated out loud in the booking area and recorded. Unfortunately, on April 12, 2012, someone in the station had turned the volume down so low on the recording device that no audio was recorded. At trial, Sgt. Johnson attempted to speculate as to why he ordered the search, but could not recall specifically why this order was made. He speculated that the search was ordered because of the nature of the charge, for the safety of persons in the station and for the safety of the officers. He also speculated that the search was ordered because at the time of booking it was unclear whether or not Mr. Balak would be held for a show cause hearing or released from the station.
[22] The best evidence presented at trial for why the level three search was ordered was found in the strip search order form filled out by Sgt. Johnson. The form was filed with the court. The form lists reasons for the ordering of a level three search. The officer filling out the form is required to check off the reason that applies in each case. The different options are as follows:
a) Reasonable grounds possession of item that could cause injury.
b) Reasonable grounds that items will help with an escape.
c) Reasonable grounds possession of weapon.
d) Reasonable grounds re: possession of evidence.
e) Heightened safety concerns applicable to show cause.
f) Other safety concerns.
The only box checked off was the last one "other safety concerns" however, what these safety concerns were, was not noted on the form and no one at trial could recall why this box was checked off. When questioned about this form, Sgt. Johnson testified that the form itself is just for statistical purposes so he may not have filled it out accurately. He could not explain why he only checked off the last box nor he could he explain what the other safety concerns might have been in this case. Sgt. Johnson did ultimately concede that if he had reasonable grounds to believe that there was an anything on Mr. Balak that could cause injury he should have checked off this box.
[23] Det. Griffith testified that he participated in the strip search along with P.C. Rouselle. While Det. Griffith could not recall specific details of the strip search, he was confident that it was conducted according to protocol and that Mr. Balak was never left completely naked in the search room. Instead one article of clothing would be removed at a time until Mr. Balak had only his underwear or undershirt on. Then the underwear would be removed while Mr. Balak's shirt would have stayed on. The underwear would have been put back on and then the shirt would have been removed. P.C. Rouselle, on the other hand, testified that it was his understanding that the strip search protocol only prohibited a detainee from being completely naked at any time. It was his opinion that this protocol could be satisfied as long as the detainee's socks were left on. P.C. Rouselle could not recall specifically how the strip search was conducted in this case.
[24] Det. Griffith testified that the strip search lasted five minutes. According to the booking video it started at 4:57 a.m. and ended after 5:06 a.m.
[25] The booking video was played in court. Mr. Balak was seen being placed in the strip search room at 4:57 am. At 5:01 am, an item was thrown from the strip search room onto the bench near the room. At 5:02 it becomes clear the items that were thrown out were Mr. Balak's pants. Sgt. Johnson explained that this could have been done to remove strings from pants. Mr. Balak's jacket was then removed from the search room before the pants were returned. An officer can be seen on the video checking the pants. At 5:03 the pants were returned to the room. It appears from the video that that Mr. Balak was left alone in the search room, in just his underwear for a couple of minutes. Sgt. Johnson conceded that this was an odd occurrence.
[26] It is also clear from the video that the door to the search room was wide open the entire time that Mr. Balak was being stripped searched. At 5:06 a.m., Mr. Balak was still in the search room with the door wide open. It appears that Det. Griffith was still inside but P.C. Rouselle stepped out of the room. Det Ruffino then walked up to the search room door way and looked inside for a moment and then walked away.
[27] Sgt. Johnson was shown the video of the strip search and asked about the open door. He testified that in his opinion it was alright to leave the door open during the strip search because no one else can go through that area and look in as the room is at a dead end. He further testified that the door is kept open to assist in recording the comments and utterances made by the defendant and the police during the strip search.
[28] P.C. Rouselle, who was the booking officer on April 12, 2012, testified that that search room was not at the end of the hallway but that the hallway outside the room led to the sally port, a toilet area and the cells. P.C. Rouselle was asked these questions prior to being shown the video of the open door during the strip search. PC Rouselle further testified that when conducting strip searches he either closes the door or leaves it open only a crack. The video of the search was then played for P.C. Rouselle. He could not recall why the door was left open on this morning. He speculated that he may have thought it was not a problem because no one else was around so there would have been no danger of losing privacy.
Mr. Balak's Statements to the Police
[29] As noted above, Mr. Balak was questioned outside his apartment door about the firearms located outside 9 Roncesvalles Avenue and admitted to purchasing them 30 years previously but had since forgotten all about them.
[30] At the station, Mr Balak was advised of his right to speak to counsel. He was then stripped searched. After being stripped searched, Mr. Balak was permitted to speak to his lawyer.
[31] After speaking to counsel, Mr. Balak agreed to participate in a videotaped interview. In this interview, Mr. Balak advised the officers that he had purchased the revolvers approximately 40 years earlier in Saskatchewan. Mr. Balak, who was clearly a hoarder as can be seen from the items in his apartment and the items removed by Ms. Chang from the Roncesvailes apartment, further advised that over the years he had completely forgotten about the firearms. He had last seen them in a box in a storage room in his apartment. Mr. Balak further told the police that he did know that his landlady was going to remove his belongings from his apartment. It was his intention to return at some point to retrieve the rest of his belongings. When he moved out, however, he had completely forgotten that the guns were there.
[32] Mr. Balak admitted that he knew he had a court order not to possess any firearms. He also admitted that he never obtained a proper license for the guns.
[33] After providing this statement, Mr. Balak was released from the station on a Form 10.
Issues Raised at Trial
[34] The following issues were raised at trial:
a) Should the statements made by Mr. Balak to the officers at his residence and at the station be excluded because the Crown has failed to prove that the statements were made voluntarily?
b) Did the police violate Mr. Balak's rights as guaranteed by section 10(b) of the Charter?
c) Did the police violate Mr. Balak's section 8 charter rights when they stripped searched him at the police station?
d) Did the police violate Mr. Balak's section 8 charter rights when the failed to strip search Mr. Balak in private?
e) If Mr. Balak's section 8 rights were violated, should a stay of proceedings be granted?
f) If not, should the statements made at his residence and at the station be excluded under section 24(2) of the charter?
g) Has the Crown proven that Mr. Balak was in possession of the firearms located in the garbage outside of 9 Roncesvailles?
Analysis
a) Has the Crown Proven Beyond a Reasonable Doubt that the Statements Made by Mr. Balak Were Voluntary?
[35] In the case at bar, Mr. Balak made two statements to the police, one at his residence and one at the police station. Defence counsel argued that given the inconsistencies between Detective Rufino's evidence and Detective Griffith's evidence, the absence of an audio recording of what was said to Mr. Balak during the booking, the failure of the police to advise Mr. Balak of his right to counsel prior to questioning Mr. Balak in his doorway and, the fact that Mr. Balak was released from custody immediately after providing an inculpatory statement, the Crown has failed to prove beyond a reasonable doubt that the statements made by Mr. Balak to the police were voluntary.
[36] I agree with counsel that Detective Griffith and Detective Ruffino were inconsistent in many of the details about the statement taken from Mr. Balak while outside his residence. These inconsistencies, however, are easily explained and do not, in my view, raise issues with the voluntariness of the statement. I note that neither officer took notes of the conversation while it was taking place. The comments made by Mr. Balak were only recorded in their notebooks later that day. As a result, their notes of what Mr. Balak said were not verbatim. Instead, both officers recorded the important utterance, which was Mr. Balak's admission that he had purchased the firearms located outside 9 Roncesvalles. It equally makes sense that Detective Ruffino has more detail in his notes about the conversation as he was the officer who had conducted the majority of the investigation, knew to whom one of the firearms had previously belonged and had asked the majority of the questions when speaking to Mr. Balak at his front door. I appreciate that there are times when inconsistencies support the inference that one or more witnesses are not being truthful with the court. In the case at bar, however, I am satisfied that the inconsistencies between the officers' testimony are merely because their memory of the event has faded over time.
[37] This leads to the second issue raised by defence counsel, that the statements made by Mr. Balak at both his residence and the police station were not recorded adequately such that there is uncertainty about what was actually said to Mr. Balak prior to him making his statements and uncertainty about what words Mr. Balak used. Counsel for Mr. Balak argued that the inadequacy of the recordings raise a real issue about the voluntariness of the statements. I agree that there is an inadequate recording of what was said at Mr. Balak's door step given that the officers did not write the statement down at the time but only later on at the station. I also agree that there is an inadequate recording of what was said in the booking area at the police station because the audio was not recorded. I disagree, however, that this leaves me with a reasonable doubt that the statements made by Mr. Balak were voluntarily. The officers testified that they did not make any threats to Mr. Balak, did not make him any promises or hold out any favours to him before he provided a statement. I accept their evidence on this point. There is no evidence to the contrary, the officers were consistent on this point and there is nothing that I can point to that would cause me to doubt the officers' evidence on this issue.
[38] Counsel for Mr. Balak further argued that it is open to the court to infer that an inducement was made to Mr. Balak because he was released from custody immediately after he provided an inculpatory statement. In my view, the mere fact that Mr. Balak was released after he made an inculpatory statement is not a basis to have a reasonable doubt about the voluntariness of the statement. It is pure speculation to conclude that Mr. Balak was promised a release in return for a statement. Ultimately, I accept the officers' evidence that no inducement or threat was made to Mr. Balak.
[39] Finally, in my view there was no evidence to suggest that Mr. Balak gave the statements to the police because of any element of oppression. I am therefore satisfied that the Crown has proven beyond a reasonable doubt that the statements made by Mr. Balak to the police were voluntary.
b) Section 10(b) of the Charter
[40] Pursuant to section 10(b) of the Charter, everyone, upon arrest or detention, has the right to retain and instruct counsel without delay and to be informed of that right.
[41] The purpose of section 10(b) of the Charter is to provide detainees arrested by the police with an opportunity to be informed of their legal rights and obligations and to obtain advice on how to exercise those rights. Section 10(b) of the Charter contains both an informational component and an implementational component. The latter is triggered when the person under arrest indicates a desire to speak to counsel. Therefore, upon arrest, an accused must be advised of his right to counsel. If he or she wishes to speak to counsel, he or she must be afforded this opportunity and the police must refrain from questioning the arrestee or detainee until he or she has been given a reasonable opportunity to consult with counsel (see R. v. Bartle, 92 C.C.C. (3d) 289 (S.C.C.)).
[42] In the case at bar, the Crown argues that the police were not under any obligation to provide Mr. Balak with his right to counsel when they arrived at his doorstep to interview him, as Mr. Balak was not detained. Counsel for Mr. Balak argued that Mr. Balak was detained and as such ought to have been advised of his right to counsel.
[43] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada held that there are different forms of detention. The form of detention that arises in the case at bar is psychological detention without legal compulsion. Counsel for Mr. Balak acknowledged that there was no evidence that Mr. Balak was under physical constraint nor was there any evidence that he was under a legal compulsion to remain and speak to the police. Instead, counsel for Mr. Balak argued that a reasonable person in Mr. Balak's position would feel compelled to speak to the police. To that end, counsel pointed to the following factors:
a) That Det. Griffith admitted he had grounds to arrest Mr. Balak prior to asking him any questions;
b) While Det. Ruffino denied that he had the grounds to arrest Mr, Balak, he had sufficient information to detain Mr. Balak;
c) Det. Ruffino initiated the discussion by alerting Mr. Balak to the fact that he was not complying with his SOIRA order, creating an atmosphere where any reasonable person would feel detained;
d) The officers spoke to Mr. Balak for a period of approximately fifteen minutes;
e) The officers asked very directed questioned; and,
f) Mr. Balak was arrested during the course of the conversation.
[44] The Crown argued that no psychological detention existed because the officers did not have grounds to arrest Mr. Balak and the conversation was brief. She argued that in light of this, any reasonable person in those circumstances would have felt free to leave.
[45] In R. v. Grant, supra, the court made the following comments about assessing whether a person was psychologically detained (at paragraph 44):
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[46] Applying these factors to the case at bar, I note the following:
i) I accept Det. Ruffino's evidence that he did not have the grounds to arrest Mr. Balak. Mr. Balak, however, was their lead suspect and it is clear that there was a strong possibility that Mr. Balak would be arrested after or during the interview;
ii) Det. Ruffino did not ask general questions. He asked directed questions about the firearms located; and,
iii) Mr. Balak was arrested during the interview.
[47] While the above factors are relevant, in my view the strongest indicator that Mr. Balak felt detained arises from the fact that prior to asking about the firearms, Det. Ruffino pointed out to Mr. Balak that he was in breach of his SOIRA Order. It was open to Det. Ruffino to arrest Mr. Balak for failing to comply with the Order. This fact would not have been lost on Mr. Balak or any other person in Mr. Balak's position. In my view any reasonable person would have felt detained the moment it was pointed out to him that he was in breach of a court order. In my view the fact that Det. Ruffino did not arrest him immediately for the breach is irrelevant. It does not take away from the fact that any reasonable person would appreciate the officer could arrest and would not feel free to leave.
[48] When I consider all these factors, I am satisfied on a balance of probabilities that Mr. Balak was detained when he told the police at his doorway that he had purchased the guns found in the garbage but that he had forgotten about them. The police were required to advise Mr. Balak of his right to counsel. They failed to do so. I therefore find a breach of Mr. Balak's 10(b) charter rights.
c) Section 8 of the Charter – Grounds to Conduct the Strip Search
[49] In the case at bar the Applicant makes two complaints about the strip search conducted on Mr. Balak. Firstly, that the police did not have sufficient grounds to conduct a strip search and secondly, that the manner of the search was unreasonable as it was not conducted in private.
[50] Pursuant to section 8 of the Charter, all persons have a right to be secure against unreasonable search and seizure. It is well established that police may search persons incident to arrest and that in certain cases, a strip search will be justified (see R. v. Caslake, 121 C.C.C. (3d) 97 (S.C.C.) and R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679).
[51] Having said that, in R. v. Golden, supra, the majority of the Supreme Court of Canada held that a higher degree of justification is required when the police conduct a strip search. This is because strip searches "represent a significant invasion of privacy and are often humiliating, degrading and traumatic experiences for individuals subject to them" (p. 83). Because the strip search is inherently humiliating and degrading for detainees, the Court held that strip searches "cannot be carried out simply as a matter of routine policy" (at page 90). In R. v. Golden, supra, at p. 94 Iacobucci and Arbour J.J. stated "whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search." [emphasis added]. The police must establish that "they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest" (see R. v. Golden, supra, at p. 98). The burden lies with the Crown to justify the search on a balance of probabilities.
[52] The majority of the Court in the Supreme Court of Canada, in R. v. Golden, appears to have drawn a distinction between a strip search conducted incident to an arrest and searches related to safety issues in a custodial setting. Iacobucci and Arbour J.J., stated at p. 96:
It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment.
[53] In the case at bar, Det. Ruffino recommended a strip search because of the nature of the charges and the possibility that weapons might be found. I note that the possibility that weapons might be found does not meet the test as set out by the Supreme Court of Canada in R. v. Golden, supra. Moreover, if Det. Ruffino recommended the strip searches solely because of the nature of the charges without considering any of the circumstances relevant to the offence, the only reasonable conclusion is that the strip search was recommended because of routine or policy without any consideration of the specific facts of the case. This is directly contrary to the holding in R. v. Golden, supra. This reality, however, while relevant, is not fatal to the Crown's case because Det. Ruffino did not authorize the search and in fact he had no authority to do so. At most he could make a recommendation to Sgt. Johnston, which is what he did.
[54] Sgt. Johnston was the officer that ordered the level three search in the case at bar. His reasons for doing so are unknown because by the time of trial he could no longer recall why he ordered the strip search. He assumed, however, that he ordered it either because of the nature of the charges or because there was a risk Mr. Balak would not be released from the station. While these were Sgt. Johston's assumption at trial, the form he filled out about the reasons for the strip search is a more reliable source of information about why the search was ordered. As noted above, this document required the officer to check off the reason for the strip search. It is telling, in my view that the officer failed to check of any of the options except "other safety reasons". While he speculated at trial that there was just cause in ordering the search because Mr. Balak might have been held for a show cause hearing, or that the strip search may have been ordered because of the nature of the charges, when given the chance to note that on this document, Sgt. Johnston failed to do so. During his testimony, Sgt. Johnston attempted to downplay the significance of this document by stating it was for statistical purposes only. He also raised the possibility that he did not fill in the form accurately. I note, however, that Sgt. Johnston had no recollection at trial of filling in this form. He could not state that he did in fact fill the form in wrong nor could he explain why he would fill out the form incorrectly. In my view, the only reasonable approach to the evidence is that this document properly reflects the thinking at the time.
[55] The form indicates that the sole reason for ordering the strip search was "other security concerns'. Sgt. Johnston was unable to articulate or recall what these were. Moreover, given the facts that were known to the police at the time, there appears to have been no real ongoing concerns that justified a strip search. The officers were not concerned with suicide. Mr. Balak had been cooperative – so much so he was not handcuffed immediately upon his arrest and, the arresting officers believed Mr. Balak's statement that he purchased the guns 30 years earlier and had forgotten all about them. Moreover, the guns were not in Mr. Balak's immediate possession, but were found in a garbage bin. There was also no suggestion the guns had been used. Finally, it is important to note that Mr. Balak was released from the station on an undertaking. When I consider all the evidence, I am satisfied that the Applicant has met his burden and established a section 8 violation. There is nothing before the court to support a finding that the officers had the appropriate grounds to conduct a strip search.
d) Did the Police Violate Mr. Balak's Section 8 Rights in the Manner in Which They Conducted the Strip Search?
[56] Counsel for Mr. Balak further argued that not only were there insufficient grounds to conduct the strip search, the manner of the search also violated Mr. Balak's section 8 charter rights. To that end, he referred to the evidence that the door to the search room was left wide open while Mr. Balak was in there for approximately ten minutes. He further argued that while there is no direct evidence that Mr. Balak was left completely naked in the search room, there is evidence that supports this inference. Crown counsel argued that the manner in which the search was executed was completely appropriate and not in violation of section 8 of the Charter.
[57] It is clear from the video that the door to the room where Mr. Balak was strip searched was left wide open. Sgt. Johnson testified that the door is always left open so that any comments made could be recorded. He further testified that there is no risk that anyone will walk by because the door is at the end of a hallway so there is no real risk that anyone would walk past the door.
[58] PC Rouselle, the booker that night and one of the officers who conducted the strip search on Mr. Balak testified that it is unusual to leave the door to the search room open and that normally when he conducts strip searches the door is closed. He further testified, contrary to what Sgt. Johnson said during his testimony, that the strip search room is not at a dead end, but that the sally port area, the toilet area and the cells are down the hallway from the strip search room.
[59] While I accept most of Sgt. Johnson's evidence, there are portions that I reject. For example, as noted above I reject the officer's evidence that he does not attempt to fill in the search form correctly. This comment defies common sense. Sgt. Johnston is a respected high level officer. It is difficult to imagine anyone reaching this high level authority by having a laissez-faire attitude about their job. In my view, this portion of his evidence was solely an attempt to bolster the grounds for a strip search where on its face there appeared to be no reason for it. Similarly, I reject his evidence that the door to the strip search room is normally kept open and that the strip search room went to a dead end. Firstly, I note that in many of the cases involving strip searches, the courts note that the search room door is closed. This is consistent with the guidelines arising out of R. v. Golden, supra, that strip searches be conducted in private whenever possible, with as few officers present as necessary. Moreover, I note that Sgt. Johnson's evidence about this policy and the risk to privacy arose at the end of a lengthy cross-examination where it was clear counsel was taking issue with the grounds and manner of the strip search and only after he had seen the video where the door the strip search room had clearly been left open. Sgt. Johnson's evidence was also contradicted by P.C. Rouselle. An officer whose evidence I do accept on these points.
[60] PC Rouselle was one of the officers who conducted the level three search on April 12, 2012. He testified that he normally does close the door to the room to ensure privacy of the detainee. P.C. Rouselle further testified that the hallway in front of the strip search room does not lead to a dead end but to the sally port, toilets and cell area.
[61] I accept PC Rouselle's evidence that normally the door to the strip search room is closed to ensure privacy, that for reasons unknown it was not closed on the day Mr. Balak was searched, and that while no one did walk past the open doorway during the search, the hallway in front of it lead to areas where the possibility of other officers walking by and seeing in the room existed. I found PC Rouselle to be an honest and reliable witness. Moreover, he appeared to have a better recollection of the events than Sgt. Johnston and was asked about the strip search and the hallway prior to being alerted to the fact that the door to the strip search room was left open. I therefore find that the door to the strip search room was left open, that there was no general policy to keep the door open and that, in most cases, the door is kept closed to ensure privacy for the detainee. I further find that while no one did walk past the door while Mr. Balak was in the strip search room, there was a real risk that someone would walk by given the reality that the hallway by the room leads to the sally port, toilets and cell area of the station.
[62] Defence counsel also urged me to find that Mr. Balak was left completely naked in the search room for a period of time. Despite his able arguments, I am unable to make this finding. I appreciate that PC Rouselle's interpretation of the guidelines requiring that detainees not be left completely naked while in the search room is problematic, of which I will speak more about under the 24(1) analysis, there is no evidence that this took place. The officers could not recall their exact process on this date and Mr. Balak did not testify as to what happened, so I have no evidence about what state of undress Mr. Balak was left in while in the strip search room. To conclude that he was completely naked would be to engage in speculation.
[63] When I consider all the evidence I am satisfied that Mr. Balak's section 8 rights were violated in two ways. Firstly, because the officers did not have the grounds to conduct a strip search; and secondly, because the officers did not take the necessary steps to ensure that the search was conducted in private.
e) Section 24(1) of the Charter
[64] Counsel for Mr. Balak argued that given the egregious nature of the section 8 breach the appropriate remedy is a stay of proceedings. Crown counsel argued that while a stay of proceedings may be an appropriate remedy where someone is charged with impaired driving, given the serious nature of the offences before this court, a stay of proceedings is not an appropriate remedy. Instead she argued that the appropriate remedy would be a sentence reduction, if Mr. Balak is convicted of the offences before the court.
[65] It is well established that the remedy of a stay of proceedings is a remedy that should only be resorted to in the clearest of cases given society's interest in having matters tried on their merits. In R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (CA), the Court of Appeal summarized the relevant legal principles as they relate to a stay of proceedings:
(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
(ii) no other remedy is reasonably capable of removing that prejudice.
(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.
[66] The court went on to state that where the residual category is being relied upon, the focus is on the integrity of the justice system. The residual category, however, is not a means for courts to address all on going systemic problems. Instead, the court must "consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against the accused outweigh the interest in having the case decided on the merits?"
[67] In the case at bar, trial fairness is not impacted by the charter breach. The defendant therefore is relying on the residual category to support the remedy of a stay of proceedings. Counsel for Mr. Balak provided the court with a number of cases where the courts stayed the proceedings as a remedy for a section 8 violation relating to a strip search. I note however, that none of these cases involved firearms, in fact many of them related to impaired drivers. Moreover, in many of the cases, the defendants were young persons, adding a level of harm not present in the case at bar.
[68] It is also an important consideration that the section 8 breach was not causally connected to the investigation. In R. v. Iseler, [2004] O.J. No. 4332 (CA), in assessing the appropriateness of granting a stay of proceedings where the police held Mr. Iseler in a cell for 11 hours without any police contact or explanation for the detention, the Court noted that the conduct in question took place after the investigation had been completed and did not impact trial fairness. The court concluded that a stay of proceedings was not warranted. The Crown argued that given the similarities between the two cases, the charges in this case ought not be stayed.
[69] In R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (S.C.J.) the reviewing court, in assessing the appropriateness of a stay of proceedings for a section 8 breach, stated:
When assessing whether any case is one of the "clearest of cases" requiring a stay, the Court must keep in mind that a stay of proceedings is a prospective remedy. This Court must follow the instruction of the Supreme Court, as set out at para. 91 of Tobiass, as above,
• A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor, at para. 82 ... The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well -- society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.
[70] In finding that a stay of proceedings was not appropriate, the appellate Court in R. v. Mok, reminded itself that a stay of proceeding is a remedy of last resort and in the absence of evidence that the breach was a result of systemic issues, the police should have been given an opportunity to remedy the problem.
[71] In the case at bar there is some suggestion of systemic issues at play. I note that Det. Ruffino testified that he would usually order a strip search whenever someone was charged with a gun offence, regardless of the specific facts. This is consistent with his failure to advise Sgt. Johnston with all the mitigating details surrounding the offences allegedly committed by Mr. Balak. Moreover, there was evidence that some officers truly did not understand just how degrading a strip search is and the necessity to take all reasonable steps to preserve as much human dignity as possible during the strip search. The officers' failure to shut the door to the room, Det. Ruffino looking inside the strip search room while Mr. Balak was still inside even though he was not participating in the search, and PC Rouselle's interpretation of the policy that a detainee should never be completely naked during the search being satisfied if the detainee was wearing nothing but socks, all suggest a systemic issue with the officers' understanding of the law arising from R. v. Golden, supra, a case that is over 10 years old.
[72] On the flip side, Mr. Balak is facing very serious charges including two counts of unauthorized possession of a restricted weapon, two counts of possession of a restricted weapon without a license, two counts of careless storage of two firearms and careless storage of ammunition. Mr. Balak was also on a probation order not to possess firearms or ammunition and a prohibition order not to possess firearms or ammunition. However, it is important to note that on the scale of seriousness of gun offences in general, these offences fall on the less serious end given the fact that Mr. Balak did not put the guns or the ammunition outside in the garbage, had owned the guns for years and just forgotten about them and had never fired them.
[73] One other factor I can and should consider is the availability of alternative remedies. In the case at bar, having found a section 10(b) breach, I may consider the section 8 breach when I consider the appropriate remedy for the 10(b) charter breach.
[74] In my view, this is a close call. I can see many reasons why a stay of proceedings may be appropriate in this case given the aggravating features of the breach. However, when I consider the nature of the charges and the strong societal interest in this case proceedings on its merits, I am unable to conclude that a stay of proceedings is the appropriate remedy.
f) Section 24(2) of the Charter
[75] The applicant argued that given the three charter breaches noted above, the statements made by Mr. Balak at his residence and at the police station should be excluded pursuant to section 24(2) of the Charter. Pursuant to section 24(2) of the Charter, the Applicant has the burden of establishing on a balance of probabilities that admission of evidence obtained in a manner that violated the Charter would put the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) The seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct)
(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) Society's interest in the adjudication of the case on its merits.
The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[76] The phrase "obtained in a manner" has been interpreted by the court to require a nexus between the denial of the charter rights and the evidence the Crown is seeking to introduce. Justice Trotter highlighted in R. v. Austin, [2015] O.J. No. 5374 (S.C.J.) at paragraph 54 what this nexus entails. He stated,
To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case specific analysis: Simon at para 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para 21. ; R. v. Strachan, [1988] 2 S.C.R. 980 (S.C.C.), at p. 1005. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, casual, or the three in combination: Plaha, at para. 45 ; Wittwer, at para. 21; and R. v. Goldhart, [1996] 2 S.C.R. 463 (S.C.C.), at para 40. Remote or tenuous connections fall short of establishing the necessary nexus: Goldhart, at para. 40 ; Plaha, at para. 45; and Wittwer, at para 21.
[77] Justice Trotter further noted that generally a temporal nexus between the charter breach and the acquisition of evidence will suffice to make out the nexus required under 24(2) of the Charter (R. v. Austin, Supra, at paragraph 55).
Application of the Law to the Case at Bar
(i) Obtained in a Manner that Violated the Charter
[78] Given my findings above, I have no difficulty concluding that the statement made by Mr. Balak at his resident was obtained in a manner that violated the Charter. There is a clear causal and temporal connection between the section10(b) violation and the statements being made. The statements made later on at the police station are a little more complicated.
[79] In the case at bar, there is no causal connection between the charter breaches and the statement taken at the station. To that end, I note that the strip search occurred prior to the statement being taken and by the time Mr. Balak spoke to the police at the station he had been provided the opportunity to consult with counsel. I nonetheless find that there is a sufficient nexus between the Charter breaches and the statements at the station to engage in a 24(2) analysis. I make this finding in light of the strong temporal nexus between the strip search and the statement taken at the station, the fact that it was the same officers taking the statement at the station as the officers who took the statement at Mr. Balak's door, that the officers were covering the same ground as what was covered at Mr. Balak's residence, and that no significant period of time had passed between the taking of the first and second statements.
(ii) Seriousness of the Charter-Infringing State Conduct
[80] In the case at bar, there are two charter breaches, the section 10(b) breach at Mr. Balak's residence and the section 8 breach as a result of the strip search at the station.
[81] In relation to the 10(b) violation at Mr. Balak's residence, on the continuum of seriousness, in my view this breach falls somewhere in the middle. It is not a mere technical breach but it is also not the most aggravating of breaches. This is not a case where the officers arrested Mr. Balak and then intentionally chose not to give him his right to counsel. I have found this to be a case of psychological detention. What is aggravating about this breach, in my view, is that Detective Ruffino clearly intentionally structured his order of questions so that Mr. Balak would feel as though he had no choice but to remain and speak to the police. Det. Ruffino's main purpose for attending at Mr. Balak's residence was to investigate the guns found outside of 9 Roncesvalles Avenue. Prior to arriving at the residence Det. Ruffino knew that Mr. Balak had not yet reported his change of address to SOIRA. While Det. Ruffino testified that this was also part of his investigation, this assertion lacks sincerity. He already knew that Mr. Balak was in breach but instead of just advising Mr. Balak of the breach and encouraging him to attend at the registry office with his new address, Det .Ruffino feigned a lack of knowledge and asked Mr. Balak if he had reported the new address. Once Mr. Balak confessed that he had not, instead of putting Mr. Balak's mind at ease that he would not be arrested for this breach, Det. Ruffino started to question him about the guns. The only interpretation to the manner in which this interview was conducted is that Det. Ruffino created a very clever way of engaging with Mr. Balak so as to make him feel detained without taking active steps to overtly advise him of the detention.
[82] In my view this was a sophisticated plan by Det. Ruffino to compel a statement from Mr. Balak without giving him his rights to counsel. I am mindful, however, that once Mr. Balak admitted ownership of the guns, Det. Ruffino advised him to stop talking and gave him his right to counsel. To some extent this establishes some regard by Det. Ruffino to Mr. Balak's charter rights. On the other hand, by the time Mr. Balak was told to stop talking and given his rights to counsel, nothing more needed to be said, Mr. Balak had already made the necessary admission.
[83] The second charter violation is the section 8 breach. The section 8 breach did not lead to any evidence being found, but there is still a close temporal connection between the strip search and the statement taken at the station. Moreover, it is relevant under this subsection because it speaks to a pattern of disregard for Mr. Balak's charter rights.
[84] As I stated earlier in this judgment, the unlawful strip search and the manner in which it was conducted are highly aggravating in that the conduct suggests a complete lack of appreciation as to the degrading and humiliating impact of a strip search.
[85] Equally relevant under this heading is the fact that there were essentially three separate charter breaches, the 10(b) breach, the section 8 breach because there were no grounds to conduct a strip search and the section 8 breach because of the manner of the strip search.
[86] In my view, this prong militates in favour of exclusion of both the statement at Mr. Balak's residence and the statement at the police station.
(iii) Impact of the Breach on the Charter-Protected Interests of the Accused
[87] In my view the impact of the section 8 breach on the charter protected interests of the accused are substantial and militate in favour of some remedy. As noted in R. v. Golden, supra, strip searches are inherently humiliating and involve a serious invasion of one's privacy. It is for this reason that officers should have specific grounds to conduct a strip search. In my view the breach here went to the core of what section 8 was meant to protect. In relation to the manner of the search, I cannot find that this breach had a substantial impact on Mr. Balak's section 8 rights given that while the potential for others to walk by existed, no one did, hence the search was effectively conducted in private.
[88] In relation to the 10(b) violation, the purpose of section 10(b) is to allow a detainee to make an informed choice about whether or not to speak to the poilce about the events in question. Mr. Balak was denied this opportunity by the officer's failure to advise him of his right to counsel. As a result, in my view, this prong militates in favour of exclusion of both the statements.
(iv) Society's Interests in Adjudication on Its Merits
[89] The charges before the court are gun related charges. There is obviously a strong societal interest in the charges being tried on their merits. Moreover, there is no suggestion that the statements are unreliable. This prong supports inclusion of the statements.
[90] In balancing all three factors, I am satisfied that both statements should be excluded. In my view, the administration of justice would be brought into disrepute if the statements were admitted at trial.
g) Has Crown Proven Beyond a Reasonable Doubt that Mr. Balak Was in Possession of the Firearms and Ammunition?
i) If Mr. Balak's Statements to the Police Are Not Admissible at Trial Has Possession Been Proven?
[91] Mr. Yorke arrived in early morning hours on April 12, 2012 and found a large pile of household items and boxes in the back of 9 Roncesvailles. He returned home with these items. In one box he found two guns. He also found ammunition that was in packaging. The guns were loose in the box. According to Mr. Yorke, there were other items in the box, including shaving material, tools and tapes. Mr. Yorke could not itemize the entire contents of the box. Mr. Yorke removed the items he wanted to keep from the box and then returned the remaining items and the box to the area where he sized it and called the police.
[92] PC Lavelle, the officer who arrived on scene in response to Mr. Yorke's call, testified that the guns were located in a white plastic bag inside a box. Mr. Yorke was specifically asked if the guns could have been in a bag. It was his recollection that they were loose in the box only. He was certain that the guns were not in a bag.
[93] PC Lavelle testified that inside the bag with the two firearms he also found a box of 40 rounds, numerous white bottles, a note with Mr. Balak's name on it from 2001 and a letter for an address at 245 Dunn Street. He also located a letter to Mr. Balak and a letter to a Mr. Pedro Juarez.
[94] Det. Ruffino testified that the items seized by PC Lavelle were brought to the station. He went through them and examined the firearms. He also noted that there was paper with Mr. Balak's name on it in the bag with the firearms. The papers were removed and photographed.
[95] Ms. Chang, the landlord at 9 Roncesvailles testified that at some point in April Mr. Balak moved out of her apartment building. When he left, he failed to take all his belongings, so she and some friends removed the items. It was her belief that Mr. Balak would return that day and retrieve his remaining belongings. Mr. Balak failed to return and the items were placed in the garbage area for pick up. Ms. Chang was not certain what day it was that the items were thrown out. Nor was she certain what day Mr. Balak moved out or when he returned to ask about his television. At times, Ms. Chang testified that Mr. Balak moved out the day before the guns were located. At other times during her evidence, Ms. Chang testified that that Mr. Balak moved out a few days before the police arrived. When I consider her evidence as a whole, I cannot be certain as to what day Mr. Balak's items were placed by the garbage area. I therefore cannot be certain as to how long his belongings were outside before Mr. Yorke located the firearms. I found Ms. Chang's evidence to be confusing and inconsistent on this point. In light of these inconsistencies, I cannot find that Mr. Balak moved out the day prior to Mr. Yorke locating the firearms. It is equally likely that Mr. Balak moved out days before this and that the items had been outside for a few days.
[96] When I consider all the evidence, I am left in a reasonable doubt that Mr. Balak was in possession of the revolvers and ammunition found outside of 9 Roncesvalles Avenue.
[97] I reach this conclusion for the following reasons:
a) Mr. Balak's belongings had been outside for at least 12 hours and potentially for up to a week before Mr. Yorke took the box and found the firearms and ammunition. Anyone could have come by and placed additional items in the large pile of trash during this time;
b) I appreciate that firearms are expensive and are not the type of item that one would easily throw away thereby supporting the inference that that the guns were not discarded by some third party. Having said that, if someone did in fact want to discard their firearms and ammunition, placing them in a pile of other garbage is the perfect place to do so. While it is not a common occurrence, it cannot be said to be so unlikely as to make it unreasonable to conclude that someone else may have chosen to discard his/her guns and ammunition by adding them to an already large pile of garbage;
c) The firearms and ammunition were located in a bag with some papers that had Mr. Balak's name on them in an area where Ms. Chang had put all the excess items from Mr. Balak's residence. This does provide some evidence that the items found outside came from Mr. Balak's residence. However, it is important to note that other paper work was found in that bag that had another person's name on it. Moreover, as noted above, someone could have placed the guns and ammunition into the bag that already had Mr. Balak's old paper work in given the amount of time the garbage was potentially left unattended outside.
d) Some of the items seized by Mr. Yorke from different boxes could have been accidentally mixed in with the firearms. I appreciate that Mr. York denied this possibility, but as noted above, Mr. York's evidence about what he found is not that reliable. Mr. Yorke was adamant in his evidence that the guns were found in a box. He did not make mention of any paperwork in that box. He was clear that the guns were not in a bag. When the police arrived, they found the guns in a bag. The officers were there to investigate firearms. They took notes of their observations and seized the bag that the guns were in and the bags were searched at the police station. Moreover, the officers had no reason to lie about where the guns were found – in a bag as opposed to a box. I accept their evidence that he guns were found in a bag. The logical conclusion from this finding is that Mr. Yorke, some two years later, when asked to recall what he seized, is mistaken about the guns not being in a bag. If this is the case, then he could equally be mistaken about whether or not he mixed up items from different boxes as he rifled through the material in his residence. It is clear to me that Mr. Yorke took a number of items from the garbage pile, went through it all at home, took what he wanted to keep and then returned with the guns and called the police. There is a real risk that material from one box or bag ended up accidentally being mixed with material from a different box or bag, raising a further doubt about the connection between the paper work with Mr. Balak's name on it and the guns;
[98] Ultimately, I agree with Det. Ruffino, that the information from the landlady coupled with the location of the guns in the garbage, even with paper work with Mr. Balak's name on it, is suspicious but does not prove beyond a reasonable doubt that Mr. Balak owned those guns. Det. Ruffino concluded that this information did not even give him reasonable and probable grounds to arrest. I agree. At its highest this evidence leads me to suspect that the firearms belonged to Mr. Balak but does not amount to proof beyond a reasonable doubt.
ii) Is the Offence Made Out if One Takes Into Account the Statements Made by Mr. Balak?
[99] If I am wrong, and the statements made by Mr. Balak ought to have been admitted then there is evidence before the court that the two revolvers and the ammunition came from Mr. Balak's unit and that he had purchased the revolvers some thirty years ago. Defence counsel argued that even with this admission the offences before the court are still not made out as there is no concordance between the actus reus (possessing the firearms and ammunition) and the mens rea (knowledge of the firearms). Crown counsel argued that momentary forgetfulness is not a defence to the charges before the court.
[100] In order to address this argument, I will briefly repeat the relevant evidence and factual findings. The firearms were removed by Ms. Chang from Mr. Balak's unit after he moved out. The firearms were not visible to any of the parties removing items from Mr. Balak's unit. It was Ms. Chang who placed the firearms in the garbage. Even weeks after moving out, Mr. Balak did not return to retrieve these firearms. Mr. Balak advised the police that he purchased the revolvers approximately 30 years earlier from a jeweler in Saskatchewan. The firearms had never been fired and had for years been put into a storage place and forgotten. While this statement was made to the police and not subject to cross-examination, both parties agree that it is worthy of belief. I agree with counsel on this point largely because the statement is corroborated in many key respects:
a) The guns were found with paperwork dating back to 2001;
b) Mr. Balak was clearly a hoarder. The tremendous number of boxes found outside in the garbage all removed by Ms. Chang coupled with the fact that within a couple of weeks of moving into his new residence his place was so full of items that the officers could not get in all support this finding; and,
c) The firearms were left in Mr. Balak's unit along with many other items. Mr. Balak never returned to retrieve the firearms;
[101] Having reviewed the relevant findings of fact, I now turn to the relevant legal principles. In my view the proper starting point is to remember that all criminal offences have both an actus reus and a mens rea and these two elements must coincide. As was noted by the Supreme Court of Canada in R. v. Williams, 2003 SCC 41, 2003 S.C.C. 41 at paragraph 35,
To constitute a crime "at some point the actus reus and the mens rea or intent must coincide": R. v. Cooper, [1993] 1 S.C.R. 146, at p. 157. See also R. v. Droste (1979), 49 C.C.C. (2d) 52 (Ont. C.A.), at pp. 53-54. Here, however, before November 15, 1991, there was an endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment. Therein lies the essence of the Crown's problem in this case.
[102] In Beaver v. the Queen, [1957] S.C.J. No. 32, the Supreme Court of Canada held that the offence of possession is only made out where the mens rea and the actus reus co-exist. The court stated,
To constitute "possession" within the meaning of the criminal law it is my judgment that where, as here, there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control.
[103] More recently, in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court of Canada specifically addressed the definition of possession. The court stated at paragraphs 15-17:
15 For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.
16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.
17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.
[104] The issue of whether forgetting that one owns an item negates the mens rea for the offence of possession has been considered by other courts but has not been addressed in great detail. For example, in R. v. Corbett, [1986] B.C.J. No. 84 (B.C.C.A.), Mr. Corbett was charged with possession of marijuana in relation to some marijuana found in the lining of his jacket. Mr. Corbett testified at trial that he had forgotten about the marijuana until the police found it. The British Columbia Court of Appeal did not address the issue of forgotten possession but instead held that because Mr. Corbett became aware of the marijuana at the time of the search, this created a sufficient nexus between the possession and the knowledge to support a conviction. The court stated,
In this case, in my view, it is unnecessary to go into the question of whether forgetfulness can, in some circumstances, negate knowledge. In the view of the facts taken by the judge, and well supported by the evidence, the appellant at the moment of search by the officer and the discovery of the marihuana in his jacket, knew, had knowledge of it being there and what it was, and it is irrelevant that he may have forgotten its presence in his jacket pocket for some prior period.
In my view, the court did not rule out the possibility that forgetful possession could be a full defence to the charge in some circumstances.
[105] In R. v. Manuel, [2003] N.J. No. 75 (Prov.Crt), the court rejected the argument that forgetfulness negates the mens rea for the offence of possession. In doing so the court made the following comments,
I accept that Mr. Manuel may indeed have forgotten about the presence of the vial in his jacket. However, forgetting about the presence of a controlled substance that you knowingly had possession of earlier, does not affect the existence of the necessary mens rea and actus reus for the offence of possession. In R. v. Martindale, [1986] 1 W.L.R. 1042 (C.A.), for instance, the accused was also charged with possession of a small amount of an illegal substance. The substance was in his wallet and he testified that he had forgotten about it. The Court of Appeal concluded that this did not constitute a defence to the charge of possession, as possession does not "depend upon the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails" (at page 1044). Simply put, it "is irrelevant that [Mr. Manuel] may have forgotten its presence in his jacket pocket for some prior period" (R. v. Corbett, [1986] B.C.J. No. 84 (C.A.).
[106] In a more recent Ontario case, the defence of "forgetfulness" was rejected. In R. v. Carswell, 2009 ONCJ 297, [2009] O.J. No. 2624, Justice Dawson considered the above quote from R. v. Manuel, supra, and noted that in her opinion this finding was somewhat inconsistent with the law of possession as originally defined in Beaver v. the Queen, supra. Justice Dawson stated at paragraph 452,
I must confess that I have some difficulty reconciling this position with the statement in Beaver v. The Queen (1957), 118 C.C.C. 129 (S.C.C.) by Justice Cartwright quoting O'Halloran, J. in R. v. Hess (Number 1) (1948), 94 C.C.C. 48 (B.C.C.A.):
• "To constitute "possession" within the meaning of the criminal law it is my judgment, that whereas here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control."
[107] Ultimately Justice Dawson did not have to decide the case on this point but she did allow for the potential for an acquittal where the person could not recall ever possessing the item found on him/her. Justice Dawson also referenced academic literature indicating that many jurisdictions have rejected the notion that forgetting that you owned an item negates the mens rea for possession.
[108] It is easy to consider many policy reasons for why forgetfulness should not negate the mens rea for the offence of possession. This is largely because at one point in the past the defendant would have clearly been in "possession" of the item in issue. Moreover, many possession offences relate to dangerous objects like narcotics, knives or firearms. People who intentionally possess dangerous items should not receive a benefit because they negligently put a dangerous item somewhere and then forgot about it. Finally, in some ways such a narrow view of possession defies common sense. If one possessed a diamond ring and put it in a locked box in their house for safekeeping and then, because it was never worn, forgot it was even there until it was stolen during a break in, no one would claim in these circumstances that the ring was not in the victim's possession such that it was not stolen. Common sense dictates that an item remains in one's possession (be it manual or constructive possession), until the owner decides to actively rid him/herself of the item.
[109] On the flip side, the criminal justice system only sanctions those that are morally culpable on the date articulated in the information or indictment. One who has forgotten that they are in possession of an unlawful object such that they could not voluntarily rid themselves of the item because it was no longer in their mind, is not morally culpable.
[110] To that end, it is helpful to return to the language of possession from R. v. Morelli, supra. In that case, the court defined constructive possession (which is in issue in this case as the guns were not physically on Mr. Balak) as having three components:
a) Knowledge of the character of the object;
b) Knowingly keeps the object in a particular place; and,
c) Intends to have the object for his use or benefit.
The law of possession broken down in this fashion is very helpful given the facts in the case at bar. Mr. Balak for many years knew the character of the firearms located in his apartment and he knowingly placed the firearms in his unit. At the time that he placed them there it can be inferred that he intended to have the object there for his use or benefit. On April 12, 2012, however he did not. By this date, Mr. Balak had completely forgotten about the firearms. Mr. Balak moved out of his apartment sometime prior to this date. Mr. Balak left many items there and only came back on a later date to retrieve his television. He did not move the firearms outside of his unit and by the time the police located them, they were in the garbage area awaiting the arrival of the garbage truck. In my view, the only conclusion that can be drawn from this evidence is that Mr. Balak, at the time noted in the information, lacked the intention to keep the firearms for his use or benefit. This is evident from his failure to remember that he even had the firearms and his failure to take any step to secure the firearms and move them to his new apartment.
[111] In reaching this conclusion, I am not making a sweeping finding that forgetfulness will always negate the mens rea for the offence of possession. It is my view, however, that given the unique facts of this case, that on the date specified in the information Mr. Balak lacked the knowledge and intention to have the firearms in his possession.
Conclusion
[112] In light of my finding that the Crown has not proven beyond a reasonable doubt that Mr. Balak was in possession of the firearms and ammunition located outside of 9 Roncesvailes Avenue in Toronto, Mr. Balak will be found not guilty of counts one through four and counts eight and nine on the information as all these counts require proof beyond a reasonable doubt that Mr. Balak was in possession of the two firearms and the ammunition. In relation to counts five through seven which relate to careless storage of the two firearms and the careless storage of ammunition, I further find that the Crown has failed to prove these offences beyond a reasonable doubt. On all the evidence presented at trial, Mr. Balak did not store the firearms and ammunition in the garbage area outside 9 Roncesvailles on the date listed in the information. As the Crown has not made out any of the firearm related charges, there is also no evidence that Mr. Balak breached his probation on the date listed in the information or that he breached the prohibition orders. I therefore find Mr. Balak not guilty of counts ten through fourteen.
Released: January 20, 2016
Justice Mara Greene