Court File and Parties
Ontario Court of Justice
Date: 2019-06-06
Court File No.: Toronto 4817 998 19-75001586-01; 4817 998 19-75001586-02; 4811-998 18-15004826-00
Between:
Her Majesty the Queen
— and —
Charles Oliver Boucher-Savard and Jonathan Monette
Before: Justice W. B. Horkins
Heard on: April 15, 16, 17, 18, 23, 24, 25, 2019
Ruling on an Application to Exclude Evidence released on: June 6, 2019
Counsel
Ms. Emily Marrocco — counsel for the Crown
Mr. Kabir Sharma — counsel for the accused Charles Oliver Boucher-Savard
Mr. Arif Alibhai — counsel for the accused Jonathan Monette
W. B. HORKINS, J.:
Introduction
[1] The accused are before me for trial on charges arising from the discovery of two handguns in a downtown Toronto hotel room. The investigative chain of events leading to the discovery of the handguns has been the subject matter of a pretrial application to exclude this evidence from the trial.
[2] The accused submit that the evidence must be excluded under section 24(2) of the Charter because it is tainted by an accumulation of Charter breaches.
[3] A brief factual overview will provide the context with which to analyze the various particular points in the evolving investigative chain of events where the Canadian Charter of Rights and Freedoms is engaged.
FACTS
[4] The events take place in the eastern portion of downtown Toronto. Within that police division there are identifiable high crime areas characterized by frequent street crime, drug dealing and weapons. On the evening in question, Officers Esteves and Ko were assigned a general patrol. Driving near Sherbourne and Dundas, one of the well-known high crime areas, PC Esteves spots a known drug dealer, Marvin Small, at the window of a car stopped in the driveway of a small strip mall. It appears to Esteves that a hand-to-hand drug transaction is taking place. He asks Ko to "run the plate" of the buyer's car. As Ko was running the plate, Esteves pulls in behind the suspect vehicle, blocking it in. Both officers get out of their scout car and approach the accused's vehicle. Esteves goes to the driver's side and deals with the driver, suspected buyer, Boucher-Savard and Ko goes to the passenger side to keep an eye on the passenger, Monette.
[5] Esteves speaks to the driver, telling him that he just saw him make a buy. He asks for identification. Boucher-Savard has no driver's licence but gives his name and date of birth. He is told to get out of the car and is asked to produce the drugs. Boucher-Savard concedes that he has a 20-piece of crack cocaine and points to his pocket. Esteves seizes the drug and makes the formal arrest. He is advised of his rights to counsel, and indicates he understands and does not wish to speak to a lawyer at that time. He is then placed in the rear of the scout car and advised that the in-car camera system (ICC) is activated.
[6] None of these events prior to Boucher-Savard being placed in the rear of the scout car are captured on the ICC system. Not activating the camera is a departure from express police protocol. Esteves explained that as he drove in behind the suspect car, there was a flash of back up lights and he thought that they were about to back into him. He was distracted and immediately parked and exited, forgetting to activate the ICC system.
[7] What begins as a simple street drug bust starts to evolve into something more intriguing and more concerning to the officers.
[8] Boucher-Savard has no identification papers. He is seated in the driver's seat but has no driver's license. He volunteers his name and birth date. Although Boucher-Savard is a francophone, he appears to be functionally bilingual. He understands and acknowledges the warnings, cautions and advice given at the time of his initial arrest. Esteves conducts a pat-down and finds a "stack of 20s." Later, counted to be $640. The accused is placed in the back of the police car and told that it is equipped with an in-car camera system. This advice does not stop Boucher-Savard from making several utterances that are recorded. Almost all of what he has to say is either spontaneous or initiated by him, as opposed to being questioned by the police. Some of the content of his utterances feed the evolving investigative concerns of the police.
[9] The plate check informs the officers that the car is a rental. Boucher-Savard tells the officers that his girlfriend rented it. With Boucher-Savard in custody and Monette removed from the car, Esteves then does a "cursory search" of the car. He is searching for drugs "incident to arrest". He finds a live round of ammunition, a bullet. He is concerned that "where there is a bullet there is usually a gun".
[10] As Officer Esteves is dealing with Boucher-Savard, Officer Ko is dealing with Monette. As Ko approaches the passenger side of the car he sees Monette undo his seatbelt and place a phone in the console. Monette is told that they are being investigated for drugs. It is quickly apparent that as a francophone, Monette does not have enough English to understand fully. Ko manages to get Monette's name and date of birth, and has him get out of the car. They then stand by, waiting to see what is happening with Boucher-Savard. Ko inputs the names of both accused into the onboard computer system and receives a return of information, all in French. Neither of the officers understand French.
[11] At this time two other officers arrive on scene. One of them, PC Conliffe, is bilingual. He is asked to translate the CPIC returns. As he does so, it becomes apparent that Monette has a serious criminal history and is "on conditions" not to possess any phones. He is therefore charged with failing to comply by virtue of having been seen with the phone in the car. He is provided with his rights to counsel in French and placed in a separate police car from Boucher-Savard.
[12] The group of officers huddle to plan what to do next. In addition to the earlier information, the group now has the understanding that they have two men from out of province with a rental car, rented in the name of a girlfriend who is back in Montreal. Boucher-Savard has an outstanding domestic assault charge. They are making a drug purchase from a known, local drug dealer. These individuals have criminal records with entries including weapons and criminal organization offences. Both are on conditions flowing from their records and from outstanding charges. Both are on firearm prohibitions with respect to possessing guns or ammunition, and a live bullet has been found in the car. While looking for the car rental agreement the police found a receipt for a hotel, the Econo Lodge, just down the street. Boucher-Savard has voiced a concern about not being at the room when someone they are expecting is coming to pick up some luggage. This seems odd to the officers. Monette has just checked into the room, why is someone coming to pick up luggage? All this is occurring in a high crime area, a block or so from where there was a very recent shooting. This constellation of factors leads the police to be concerned that there may be contraband, including firearms and drugs in the hotel room associated with the accused. They decide they need to investigate that room.
[13] Conliffe is sent to ask Monette for the key to the hotel room. He goes to the car and simply asks for it. Monette asks why he wants it and he tells Monette, in French, words to the effect of "it's of value to us." Monette tells him it is in his back pocket and raises himself up so Conliffe can get it. He is effectively giving it to the officer.
[14] A group of five officers then go to the hotel. Management is unable to tell them if anyone is in the room. The hotel camera system records them using the pass key to enter the room. There is no one in the room. A hand gun and a cell phone are seen on the bed, in plain sight. The police quickly leave the room without searching further. Two officers are stationed in the hallway to protect the room while a search warrant is obtained. When the warrant is executed the police find another handgun, a silencer, a quantity of cash and some drugs. The accused are then charged accordingly.
[15] In this chain of events there are several points at which the Charter rights of these accused are engaged. Counsel for the accused submit that there are several serious breaches leading to the discovery of the guns and other contraband, and that this evidence ought to be excluded pursuant to section 24(2) the Charter. The application seeking the exclusion of the guns found in the hotel room relies on a consideration of the impact of an accumulation of alleged Charter breaches.
INVESTIGATIVE DETENTION
[16] The Crown agrees that the accused were "detained" within the meaning of the Charter as soon as the officers boxed them in with their scout car.
[17] An investigative detention is authorized based on a reasonable suspicion of a particular criminal activity. An experienced police officer witnessing a hand-to-hand drug transaction with a "known dealer" would clearly have a reasonable suspicion that the suspect had engaged in that criminal activity. On the evidence of PC Esteves, the investigative detention of both accused was authorized by law.
[18] Counsel for the accused submit that the hand-to-hand drug transaction is a complete fabrication and they raise arguable concerns. Officer Ko was present, and he did not see any hand-to-hand drug transaction. This can be explained by the possibility that he was focused on the onboard computer, in running the license plate of the car after he heard Esteves say, "I think we have a hand-to-hand, run the plate". This direction for Esteves is not admissible for the truth of its contents but is evidence of Ko's focus at the time, and relevant to the suggestion that the drug buy was a complete fabrication.
[19] The in-car camera system on the police car was not activated at the commencement of the investigation. Failing to activate the onboard camera system in these circumstances is a breach of police protocol, and acknowledged as such. PC Esteves conceded this was an error and explained that as he pulled in behind the suspect car, there was a flash of the backup lights and he momentarily feared they were going to reverse into him. Distracted by this, he forgot to activate the camera system before getting out to approach the accused. As a result, the initial stages of the investigation and in particular, the early dealings with the accused at the car are not recorded. Intentionally failing to record the interaction would raise an adverse inference. I am not persuaded that the failure to record was anything other than an inadvertent mistake, and I draw no adverse inference from it.
[20] The accused also submit that it is incredible that the officers would focus on these two accused doing a hand-to-hand, as opposed to pursuing the known drug dealer Marvin Small. However, as Officer Esteves explained, they knew where to find Small anytime they wanted to find him.
[21] These are appropriate concerns to which I have given due consideration. They are very speculative, and I find that they are insufficient for me to reject the uncontradicted evidence of the officers.
[22] I find that the Crown has established that this was an authorized investigative detention.
RIGHTS TO COUNSEL UPON DETENTION
BOUCHER-SAVARD
[23] Immediately upon being detained a suspect must be advised of the reason for their detention and given their "rights to counsel".
[24] The accused Boucher-Savard was immediately told why he was being detained. However it would appear that in the two to three minutes between his initial detention and formal arrest, he was not advised of his rights to counsel. When arrested and advised of those rights, he expressly waived the opportunity to access counsel. The gap in time between detention and arrest was very brief. However, it was during that interim period that the accused was asked to identify himself and whether he had anything in his possession that he should not have. He gave his name and admitted to having the drugs in his pocket, which were seized.
[25] There was compliance with section 10(a) of the Canadian Charter of Rights and Freedoms, but a breach of 10(b) as he was not immediately advised of his right to access counsel nor cautioned against responding to questions.
[26] Once arrested, the accused fully understood the cautions and rights, and indicated he did not wish to speak to a lawyer. He was then placed in the back of a scout car and told that the onboard camera system was engaged. Despite all these warnings and cautions, he made several unsolicited utterances, some of which ultimately feed into a constellation of circumstances upon which the officers relied in pursuing a further investigation.
[27] As a factual matter, the time gap between detention and formal arrest was exceptionally brief. It is only the fact of the obtaining of the identification and the seizure of the drug that make it a concern. The officer had ample grounds to arrest from the outset and once the arrest was effected, he would be authorized to seek the identification of the accused and to search him to preserve the evidence.
[28] In my view, the officer was authorized to obtain the accused's identification and seize the suspected drugs as part of the investigation and arrest flowing from the drug transaction that he had just witnessed.
[29] There was a breach of section 10(b) relating to the questioning and seizure during the interim period from detention to arrest. The seriousness of that breach is considerably mitigated by the fact that the accused was going to be arrested whether he identified himself or not, and whether he produced the just-purchased cocaine or not. Once under arrest he was fully "Chartered" and cautioned, and still proceeded to waive his rights to access counsel and in fact, freely confirmed that he had just purchased the cocaine, just as PC Esteves said he had observed. I would conclude that if there is a breach of 10(b) on these facts, it was not serious, impacted the accused marginally, and does not seem to have been operative in producing the information and evidence which then led to the further investigation of these accused.
MONETTE
[30] While PC Esteves is dealing with the accused Boucher-Savard, PC Ko is standing by with Monette until the French-speaking officer, PC Conliffe, arrives. As Crown counsel pointed out in submissions, the way in which Monette was treated is significant. Although he is legally detained, he is not handcuffed, he is not put in the back of the police car, and no efforts are made to elicit any information from him prior to there being grounds for his arrest. Officer Ko's conduct is some evidence of the Charter-sensitive nature of the police team involved in this investigation.
[31] Although there was a clear language barrier from the outset, Monette was advised of why he was being detained. Within about ten minutes of the initial detention the bilingual officer, PC Conliffe, was on scene. His first task was to translate the French CPIC returns from the onboard computer for the arresting officers. As he did so, the officers became aware of the criminal histories of both accused. With respect to Monette, there is a significant, serious criminal record that includes guns and criminal organization convictions. More significantly, he was subject to weapons and ammunition prohibitions, and bail conditions prohibiting the possession of phones. As soon as PC Ko became aware of the cell phone prohibition, Monette was arrestable for failing to comply. He was arrested and advised of his rights to counsel, then cautioned; all in French.
[32] There is a 20-minute delay in providing French language Charter rights to Monette. PC Conliffe's first order of business might arguably have been to find out and convey to Monette why he was being detained, and to advise him of his rights to counsel immediately. I find as a fact that there was no significant impact on Monette or his Charter rights by Conliffe, firstly, assisting the arresting officers with the translation of the computer returns and, then, "Chartering" the accused Monette.
[33] It was clearly obvious to Monette that Boucher-Savard was being investigated for the drug buy that had just transpired. The language barrier made it difficult to meaningfully communicate anything to Monette. Officer Ko did exactly what he should have done in simply holding Monette off to the side until Conliffe arrived. Considering the dynamically unfolding situation into which PC Conliffe was suddenly involved, I am not prepared to be overly critical of his decision to commence by translating the information that the arresting officers needed from the onboard computer checks, as opposed to telling Monette that he was detained while they investigated the drug buy, and that he would have access to counsel as soon as practicable. Nothing flowed from the delay, and it had no negative impact on Monette.
[34] It is significant that in the course of translating the CPIC checks, it became apparent to the officers that they were dealing with individuals with serious criminal histories and outstanding Court-ordered conditions. As soon as this information was translated, Monette was properly arrested and "Chartered".
WARRANTLESS SEARCH OF THE CAR
[35] The accused were now lawfully under arrest. The power to search incident to arrest is limited but permits a search to preserve evidence in possession of the accused or in their proximity. Both accused were in the car when the drug buy took place. The car was a rental and was to be towed. Seeking to establish ownership was reasonable. Checking for drugs was reasonable. Collecting the phone that Monette was seen with in the car was reasonable.
[36] The search of the car was well within the permissible scope of a search incident to the arrests in this investigation. What they found was the phone, a bullet and the hotel receipt.
[37] There is no section 8 breach in the search of the car.
SEARCH OF MONETTE
[38] Counsel for the accused submit that the warrantless search of Monette to obtain the pass key was a breach of section 8. I disagree. Again, based on all that has been considered above, this was a valid search incident to arrest. In any event, the pass key could have been discovered in short order as part of an authorized search incident to detention and arrest in connection with the drug buy and the "fail to comply" investigations. The pass key would certainly have been seized as part of the booking process at the police station. Also, consider, the police were going to enter the room with or without the pass key. In the circumstances, Monette's expectation of privacy was much reduced, and not significantly impacted.
WARRANTLESS SEARCH OF THE HOTEL ROOM
[39] The police now had reasonably based, escalating concerns that there were more serious issues to be investigated. The basis of the investigative team's concerns was the entire constellation of circumstances and information that they had become aware of in this evolving investigation. Their collective concerns precipitated a group decision that further investigative steps were necessary. The decision was made to investigate the hotel room down the street.
[40] A guest has a significant expectation of privacy in a hotel room. The police considered there to be exigent circumstances requiring them to enter the room prior to obtaining a warrant. The police had no intention of doing anything more than freezing the room until a warrant was obtained. The primary police concern was that the hotel room might contain a handgun, other contraband, a third-party, or a victim. They have two men in custody from out of province, with serious criminal antecedents, buying drugs in a high crime area. They are in a rental car, driving while suspended and have no proper identification papers. They are in breach of Court-ordered conditions and have outstanding charges, including an assault charge. There is a live bullet in the car. There is a concern from one of them that someone is due to arrive at the hotel to collect luggage. There had been a recent shooting in the area. The bullet found in the car raised the spectre of there being a handgun at the hotel. As one experienced officer said, "where there is a bullet there is usually a gun."
[41] Counsel submit that the warrantless entry of the room was not justified and amounts to a s. 8 breach. The warrantless entry of a person's hotel room by the police is presumptively an unreasonable search, and there is an onus on the Crown to establish lawful authorization for doing so; "...in the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable".
[42] Exigent circumstances will authorize a protective sweep of premises if there is a reasonable safety concern.
[43] An exception to the prior judicial authorization requirement may also exist when there are "exigent circumstances" as codified in s. 529.1 of the Criminal Code:
… circumstances in which the peace officer (a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
[44] The law has always granted considerable leeway to the police in searching for guns when there is a legitimate safety concern. The expectation of privacy in a home or "dwelling-house" raises the bar significantly with respect to the authorization for a warrantless search. The degree of "exigency" must be significant to justify the warrantless entry into a hotel room. The degree of exigency in this case is not extreme, but is it sufficient to justify the warrantless entry?
[45] The concern that a "victim" might be in the room seems to me to be remote, but any concern of that nature, even if remote, cannot be dismissed as irrelevant. The concern that contraband might be in the room seems reasonable in that one of the accused mentioned that someone was on the way to pick up "the luggage". That by itself would not justify a pre-warrant entry. The criminal antecedents of the accused and the presence of a live bullet in the car established a reasonable concern that there was a matching handgun in their room. There was no gun in the car and the accused, who were from out of town, have a hotel room nearby. All this occurs in a high crime pocket of downtown Toronto. These circumstances legitimately fed the officers' belief in exigent circumstances. There is no doubt that the totality of the circumstances justified freezing the room while a warrant was sought. But, was there a legitimate need to actually enter the room in advance?
[46] The officers said that they had in mind a recent experience of a gun being removed from a hotel room by someone climbing in an open window while officers guarded the hallway door. They also were concerned that someone else associated with the accused might be in the room, and were concerned with freezing a room that might have a hostile occupant inside with a gun.
[47] The conclusion that the circumstances were "exigent" is, objectively, borderline reasonable. The drug buy was a small amount. A single bullet in a car with no other indication of any firearm may be concerning but minimally alarming. The criminal antecedents of a detainee legitimately raise an investigative concern but are insufficient to disqualify that person from Charter protection.
[48] However, the decision of these officers to make a pre-warrant sweep of the hotel room has to be accessed in the context of the educated concerns of experienced, inner city police officers. These officers work in a high crime area and were involved in an active street investigation with a growing body of suspicious circumstances. Some deference is owed to the experience of the officers involved as a foundation for their honest belief that a pre-warrant entry was justified.
[49] Considering all of these factors, I conclude that there was a sufficient degree of "exigency" to authorize freezing the room, proving the situation safe and applying for a warrant.
[50] There is no doubt in my mind that these officers gave the matter of actually entering the room very careful, collective consideration. They were aware that they were navigating through a Charter-sensitive situation, and they honestly believed that a brief entry and protective sweep of the room was both reasonable and necessary. With the benefit of hindsight, it is at least arguable that their conclusion was not objectively reasonable. However, on a balance of probabilities, I find that the Crown has established that the pre-warrant sweep of the room was both a reasonable decision and reasonably executed. I am not persuaded that in these particular circumstances there was a s. 8 breach committed by conducting a limited pre-warrant sweep of the hotel room.
[51] There is no application before me to quash the warrant. The affiant was cross-examined on the voir dire and the issuance of the warrant was clearly appropriate, especially in light of the handgun seen in plain view by the officers that swept the room. It is noteworthy also that once they saw that no one was in the room and that there was a gun in plain sight, there was no further search conducted until the warrant was issued.
EXCLUSION OF EVIDENCE
[52] If I am wrong about whether there were s. 8 breaches in this investigation, it may be of assistance for me to consider the s. 24(2) analysis taking that conduct into consideration.
[53] The 24(2) analysis is conducted with the framework articulated in R. v. Grant to determine if, having regard to all the circumstances, the admission of constitutionally-tainted evidence would bring the administration of justice into disrepute. Following Grant, admissibility under s. 24(2) is approached by examining:
- the seriousness of the Charter-infringing conduct;
- the impact of the breach on the Charter-protected interests of the accused;
- society's interest in an adjudication on the merits.
[54] I begin by instructing myself in accordance with the framework of analysis articulated by Doherty J.A. in R. v. McGuffie, at paras. 59 to 64:
59 Section 24(2) directs that where evidence is obtained in a manner that infringes a right guaranteed by the Charter, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
60 Section 24(2) recognizes that the admission of constitutionally tainted evidence and the use of that evidence to convict persons may bring the administration of justice into disrepute. As observed in Grant, at paras. 67-71, s. 24(2) is premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter. At the same time, however, s. 24(2) accepts that the exclusion of evidence can also bring the administration of justice into disrepute. In Grant, the Supreme Court provided the framework for differentiating between those cases in which the exclusion of the evidence would promote the proper administration of justice and those cases in which the proper administration of justice would be further harmed by the exclusion of otherwise relevant and probative evidence.
61 After Grant, at paras. 71-86, the admissibility of evidence under s. 24(2) is approached by examining:
- the seriousness of the Charter-infringing state conduct;
- the impact of the breach on the Charter-protected interests of the accused; and
- society's interest in an adjudication on the merits.
62 The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, at paras. 33-34.
63 In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favor of admissibility: see e.g. R. v. Côté, 2011 SCC 46, at paras. 81-89; R. v. Morelli, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.
64 The three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests.
[55] Without doubt, there is police conduct in this investigation that skates close to and, perhaps at times, just over the line of Charter compliance. However, none of it is sufficiently offensive to warrant exclusion of the firearms ultimately found in the hotel room associated with these accused.
THE SERIOUSNESS OF CHARTER-INFRINGING STATE CONDUCT
[56] The failure to advise Boucher-Savard of his "rights to counsel" immediately upon his detention violates s. 10. However, I am not persuaded that Officer Esteves misunderstood the immediacy requirement. It is clear that this was a dynamic, evolving situation. The formal arrest followed very closely after the initial detention. Acquiring Boucher-Savard's identification and seizing the drug he was seen buying would have happened, in any event, upon arrest. The level of seriousness of this violation, and the impact on the accused when balanced against the nature of the evidence, and the social interest in the prosecution, weigh against excluding the evidence. If tainted, the stain is minimal.
[57] If I am in error in finding that the entry of the hotel room was justified for the limited purpose of freezing it and proving it safe, then I would still not exclude the evidence found upon execution of the warrant.
[58] The warrantless entry to a private hotel room is a serious breach of s. 8 and would normally tend to favor exclusion. Although not actually present in the room when it was entered, the impact of the entry on the Charter-protected privacy interests of these accused is obviously serious. The contraband discovered has exposed them to serious criminal charges. This again would tend to favor exclusion.
[59] I find as a fact that these officers were very conscious of the need to minimally intrude on the Charter rights of the accused and governed themselves accordingly. The decision to sweep the hotel room before obtaining a warrant was a collective decision, made in good faith, believing that it was necessary for reasons of both safety and preservation of evidence.
[60] The evidence ultimately discovered when the warrant was executed – two handguns and a silencer – is real evidence. Absent the pre-warrant entry by the police, I think that it is safe to assume that these firearms would have been discovered by the hotel staff when their guests, being held in custody, failed to return.
[61] The social interest in gun-related crimes being prosecuted on their merits is substantial. R. v. Williams, at para. 280:
… While there is no presumptive admission respecting a seized firearm (Fountain, at paras. 53-56), unlawful possession of a firearm remains a matter of "a very serious nature that is of considerable public concern": Johnson, at para. 53; Rafiq, at para. 5.
[62] After the hearing of this application the Supreme Court released its judgment in R. v. Omar. The adoption of the dissent of Brown J.A. in our Court of Appeal reinforces my conclusion to admit the evidence in this case.
[63] Justice Brown makes two relevant observations. One, that the borderline of Charter-compliant police conduct is often fuzzy from the perspective of the police "on the street" in dynamically unfolding investigations. Assessing the seriousness of Charter breaches made in such circumstances ought to be tempered by an understanding of that reality.
[64] Secondly, as Justice Brown states at paragraph 123, although there is no gun exception to 24(2):
"… I would respectfully submit that to fail to give some recognition to the distinctive feature of illegal handguns -- which are used to kill people or threaten them with physical harm, nothing else -- and, instead, to treat them as fungible with any other piece of evidence risks distorting the Charter's s. 24(2) analysis by wrenching it out of the real-world context in which it must operate."
[65] His further observations are also relevant to the exercise of balancing the appropriate considerations in the 24(2) assessment in this case:
136 We judges must never forget the impact that our decisions have on the day-to-day reality in which most of our fellow Canadians live -- and from which we are by and large insulated.
137 I completely agree with my colleague that it is "fundamental to our social order that the police, like all other state actors, perform their duties in accordance with the law and that they respect Charter rights": at para. 55. At the same time, it is equally fundamental to our social order that Canadian citizens can walk their public streets and exercise their Charter liberty rights without finding themselves at the wrong end of an illegal handgun. In R. v. Chan, 2013 ABCA 385, the Alberta Court of Appeal put the matter as follows, at para. 49: "[W]e consider society's interest in the adjudication of the merits to be greater where the offence is one that so literally involves the safety of the community."
138 It is, of course, a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis.
[66] A balancing of the applicable factors compels the admission of the challenged evidence despite any marginal Charter violations.
[67] I find that the evidence tendered by the Crown is admissible.
Released: June 6, 2019
Signed: "Justice W. B. Horkins"
Footnotes
[1] R. v. Wawrykiewicz, [2017] O.J. 418
[2] R. v. Caslake, [1998] 1 S.C.R. 51, at para. 22; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 29
[3] R. v. Golub, 117 CCC 3rd 193 OCA
[4] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
[5] 2016 ONCA 365
[6] [2018] O.J. 3217 SCJ
[7] R. v. Omar, 2019 SCC 32, [2019] S.C.J. 32 SCC reversing 2018 ONCA 975, [2018] O.J. 6346. See also Moldaver J.A. in R. v. Le, 2019 SCC 34, [2019] SCJ 34 paragraphs 298-303