Court File and Parties
Ontario Court of Justice
Date: 2019-09-27
Court File No.: 19-1753
Between:
Her Majesty the Queen
— and —
Phillip Grant
Before: Justice K.A. Wells
Heard on: August 6 & 7, 2019
Reasons for Judgment released on: September 27, 2019
Counsel
Ms. Seeta Scully ................................................................................. counsel for the Crown
Mr. Talman Rodocker ........................................... counsel for the accused Phillip Grant
WELLS J.:
Introduction
[1] On February 16, 2019, Phillip Grant was charged with numerous offences arising out of a police investigation and arrest, which led to a search of a bedroom and the discovery of a loaded firearm and a substantial amount of cocaine. The defence elected to have a trial in the Ontario Court of Justice. At the outset of trial, the defence applied for the exclusion of the firearm and cocaine pursuant to Section 24(2) of the Charter. The matter proceeded before me as a blended voir dire on August 6th and 7th, 2019. At the conclusion of trial, I indicated that I was excluding the firearm and cocaine from evidence, with reasons to follow at a later date. These are my reasons.
The Facts
Events Leading up to Police Arrival
[2] Andrew Grant is the father of Phillip Grant. He is a hard-working, law-abiding citizen who is employed by a logistics warehouse company. When he is not at work, he spends the rest of his time caring for the Defendant's young children.
[3] On February 16, 2019, Andrew Grant was at his residence at 1925 Brittania Road West in Mississauga where he lives with his daughter, Sable Grant. As of that time, Phillip Grant had also been staying at the residence for several months.
[4] In the early morning a commotion was heard by Andrew and Sable Grant, coming from the basement. Phillip Grant was in the company of an unknown woman and the two were engaged in a heated argument about their relationship. Phillip Grant and the unknown woman had been consuming alcohol and were both irrational and at times physically combative with one another.
[5] Andrew Grant attempted to de-escalate the situation so as not to have his young grandchildren exposed to the melee. Unfortunately, the Defendant refused to calm down and engaged in a physical altercation with his father. Eventually, Andrew Grant called the police.
Arrival of the Police on Scene
[6] Peel Regional Police Constables DaCosta and Kupernik arrived at the Grant residence at 6:36 a.m. and were received into the residence by Andrew Grant. While talking with Andrew Grant, the officers observed Phillip Grant downstairs and requested that he attend the main floor; they could also hear a female crying. After receiving information from the dispatcher regarding Phillip Grant's antecedents, the officers determined it was necessary to enter the basement right away.
[7] Phillip Grant was aggressive and belligerent with the police when they encountered him downstairs. When advised that he was being arrested for breaching the "keep the peace and be of good behavior" term of his probation order, Phillip refused to comply with commands to get on the ground, challenged police to a fight, and dared them to taser him. Eventually PC Kupernik deployed the taser and the defendant was placed under arrest.
[8] Phillip Grant was cuffed at 6:40 a.m. During the arrest of Phillip Grant, other PRP officers arrived on scene in response to the call for officers in need of assistance. According to PC DaCosta, while in the basement area, Officer Hart attended as well. Both DaCosta and Kupernik agreed other officers may have also attended the basement during the arrest of the Defendant, but their focus was on Mr. Grant. During their involvement with Phillip Grant in the basement, both Kupernik and DaCosta briefly saw a woman who left during the altercation.
[9] Shortly after the Defendant's arrest an ambulance arrived on scene to remove the taser prongs from his body. Phillip Grant was escorted upstairs where he continued to be combative with paramedics and repeatedly called his father a "bitch." Due to the Defendant's behavior, it was determined that he would be transported to Credit Valley hospital in a police cruiser for the removal of the final taser prong.
[10] While escorting Phillip Grant to the police cruiser, PC Kupernik encountered PC Lal. There was a brief conversation between the two officers during which Kupernik asked Lal whether he had seen a woman outside – Lal indicated he had not. PC Kupernik told Lal that he would like to identify the woman since Phillip Grant was on several recognizances with terms that he not be in the company of certain women.
[11] Around 7:00 a.m., Phillip Grant was placed in the rear of PC DaCosta and PC Kupernik's cruiser. Prior to departing for the hospital, PC Lal entered the passenger side of the vehicle and accessed the onboard computer to review the names of the women that Phillip Grant was not to associate with. According to PC Kupernik, whose evidence I accept, PC Lal was questioning Phillip Grant by asking one by one if the women named on the Orders had been the one he was in the company of when police arrived. Eventually PC Kupernik said to PC Lal, "He is not cooperating he is not going to tell you."
[12] At 7:07 a.m. PC DaCosta and PC Kupernik departed the scene for the hospital with Phillip Grant. At 7:08 a.m. PC Kupernik continued reading Phillip Grant his rights to counsel in relation to the arrest for failing to comply with a probation order by not keeping the peace. Phillip Grant indicated he understood his rights and provided the name of his lawyer.
The Search of the Basement
[13] PC Lal had arrived on scene while Phillip Grant was on the ground downstairs after having been tasered. PC Lal observed that Phillip Grant was aggressive, uncooperative and "verbally assaultive" towards police and his father. PC Lal testified that PC Kupernik had asked whether he had seen a woman leave the residence (which he had not). PC Lal agreed that he had indeed sat in the passenger seat of the police vehicle (while Phillip Grant was under arrest in the back) and read out the names of the number of females. He denied that he was asking Phillip Grant about the names, and insisted instead that he was reading out the names for the benefit of PC Kupernik.
[14] By the time PC Kupernik and DaCosta had left the scene with Phillip Grant, PC Lal was aware that the Defendant had been arrested for Breach of Probation to wit, failing to keep the peace and be of good behavior. PC Lal testified that he was concerned for the safety of the unknown woman who had been in the basement and he thought that possibly Mr. Grant had committed another offence of a "domestic breach." As such, PC Lal decided that he would re-enter the Grant residence to search the basement for evidence of the putative offence.
[15] Around 7:05 a.m. PC Lal re-attended the basement of 1925 Brittania to look for "anything to identify her – name, purse, female make-up kit or something like that." He surveyed the room and hunched over looking at the ground to see if he could find a purse in the rather unkempt room. According to Lal, the mattress was not completely flush with the box spring and thus was obscuring his view of the floor. He gave the mattress a two-handed push and saw what he thought was the barrel of a gun. He then lifted up the mattress and confirmed it was in fact a handgun. PC Lal did not touch the firearm and consulted with a senior officer to determine next steps.
[16] The investigation was turned over to the Criminal Investigations Bureau. The scene was held for approximately twenty-four hours pending a search warrant. On February 17th, 2019, a search warrant was executed. The following items were located:
- A loaded firearm under the mattress;
- A gym bag containing: approximately 350 grams of cocaine; documentation in the name of Phillip Grant; and a letter addressed to Phillip Grant from his criminal lawyer, among other items;
- Documentation throughout the room in the name of Phillip Grant.
Issues and Analysis
[17] Two issues arise in the assessment of the admissibility of the impugned evidence in this case. They are as follows:
(1) Did Constable Lal have any legal authority to enter the Grant residence and search the basement?
(2) If the search of the basement was not lawful, and therefore in violation of section 8 of the Charter, should the evidence be excluded pursuant to section 24(2) of the Charter?
Issue #1: Was the Search of the Basement by PC Lal Lawful?
Position of the Parties
Crown
[18] It was the position of the Crown that PC Lal was authorized to search the basement as a search incident to the arrest of Phillip Grant for the general and overall offence of breach of probation. She argued that notwithstanding that Phillip Grant was arrested for the offence vis-a-vis breaching the term "keep the peace and be of good behaviour," a search incident to arrest could encompass evidence in relation to breaches of any condition of his probation order.
[19] In written submissions, Crown counsel argued that the Supreme Court of Canada's decision in Cloutier v. Langlois, [1990] 1 S.C.R. 158, was the leading authority and that "exceptional circumstances" were not required to justify the search of a dwelling house incident to arrest. In oral submissions, however, Crown counsel conceded that the Ontario Court of Appeal decision in R. v. Golub, [1997] O.J. No. 3097, considered the SCC decision in Cloutier, supra, and is the governing law in Ontario.
[20] The Crown conceded that there were no exigent circumstances that could justify PC Lal's search of the residence.
Defence
[21] In his written submissions filed in advance of trial, Mr. Rodocker argued on behalf of the defence that the Ontario Court of Appeal's decision in Golub was binding authority on the point at issue and that there was simply no lawful basis for the search by PC Lal. I agree.
Law
[22] Writing for the Court in Golub, Justice Doherty at paragraph 27 said the following:
The scope of power to conduct a warrantless search upon arrest has been considered in three decisions of the Supreme Court of Canada, two of which post-date this trial: Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257; R. v. Stillman, supra; R. v. Feeny, supra. In Cloutier, at pp. 274-276, it was recognized that the power to search upon arrest was a pragmatic recognition of legitimate state interests and the arrested person's reduced expectation of privacy. Those state interests include the need to secure the custody of the arrested person, protect those at the scene of the arrest and locate and secure evidence relevant to the arrested person's guilt or innocence. These state interests, while valid, do not, however, give the police a licence to conduct any and all searches which might advance those legitimate goals. L'Heureux-Dube J. for the court, said at p. 276:
However, while the common law gives the police the powers necessary for the effective and safe application of the law, it does not allow them to place themselves above the law and use their powers to intimidate citizens. This is where the protection of privacy and individual freedoms becomes very important.
[23] In Cloutier, the Court was considering the existence and scope of the power of the police to search a person who had been lawfully arrested. Upon arrest, Cloutier was "frisk" searched by officers Langlois and Bedard before transporting him to the station. Later, Cloutier filed an Information against both officers alleging that he had been unlawfully arrested and that the arrest and search constituted assaults. After a series of proceedings, the Quebec Court of Appeal held that the arrest was lawful, but the search illegal and therefore an assault. Ultimately, the Supreme Court in Cloutier held that police do have the right to perform a "frisk" search incident to a lawful arrest, provided the search is for a valid objective and not conducted in an abusive fashion.
[24] It was with the benefit of the principles set out by the Supreme Court in Cloutier that the Ontario Court of Appeal in Golub had occasion to squarely address whether, and to what extent, the power to search incident to a lawful arrest extends to a dwelling.
[25] In Golub, police were responding to a call concerning a male with a concealed weapon that had made serious threats. Police located the defendant outside of his apartment and arrested him. After the defendant was arrested, police learned of information suggesting a second individual armed with a firearm was in the defendant's residence. Police entered the apartment without a warrant to search and in doing so located a semi-automatic rifle and ammunition. The question facing the Court was whether the warrantless search of the residence and seizure of the rifle violated s.8 of the Charter.
[26] In the specific and unique set of facts that officers faced in Golub, the Court did not find a violation of s.8 of the Charter, as the police were faced with "exceptional circumstances" requiring immediate action. The Court confirmed, however, that absent exceptional circumstances the search of a residence as incident to arrest are generally prohibited. Writing for the majority of the Court of Appeal in Golub, Justice Doherty said at paras. 40 – 41:
(40)… Feeney fixed the constitutional limit of the exercise of a police power to enter a home as an incident of an arrest. This case also involves the exercise of an ancillary police power involving an intrusion into the home. Where a search of a home is said to be an incident of an arrest, the same privacy interest is engaged as when the police enter a home to make an arrest. Furthermore, that interest comes in conflict with the same law enforcement interests.
(41) In my opinion, searches of a home as an incident of an arrest, like entries of a home to effect an arrest, are now generally prohibited subject to exceptional circumstances where the law enforcement interest is so compelling that it overrides the individual's right to privacy within the home. After Feeney, the general principles governing the scope of searches as an incident of arrest set down in Cloutier do not control where the place to be searched is a residence. Those principles are still helpful in that they identify relevant considerations. However, those considerations must be looked to, not to balance competing interests, but to determine whether the circumstances are sufficiently exceptional to justify overriding the general prohibition against warrantless searches of the home. [emphasis added]
Application of the Law to the Facts of this Case
[27] There were no exceptional circumstances justifying PC Lal's re-entry into the Grant home. Although PC Lal's evidence revealed that he has little to no understanding of the scope of police powers to search a residence, it was clear that he entered the basement to search for evidence of a "possible" domestic breach (separate and apart from the offence that the Defendant had been arrested for). The following exchange that occurred during cross-examination is illustrative of PC Lal's basis for his search of the basement:
Q. Does it matter to you when you are embarking upon a search incident to arrest? Does it matter to you to know the specific charge for which he has been arrested?
A. In this specific situation, that charge was irrelevant to me at the time, because I was now looking at a different criminal charge, but I was not searching for that. I was looking for evidence of this charge...
Q. Very good.
A. ...of the breach.
Q. Had you arrested Mr. Grant on a charge of breach of probation, to wit: a no-contact order?
A. No.
Q. In fact, at any time that day did you arrest Mr. Grant on such a charge?
A. That's – no.
Q. Are you aware of anyone arresting Mr. Grant on the charge of breach no-contact that day?
A. He did not get arrested for that, no.
Q. And he wasn't that entire day, correct?
A. Sorry, he wasn't arrested the whole entire day for breach of contact order?
Q. Correct.
A. Yes, that's right.
Q. So, your search incident to arrest was irrelevant of the charge of breach of probation, to wit: keep the peace. It was in respect of a theoretical, possible charge of a further breach, namely, no contact.
A. I don't know if his prohibition order had that no-contact order on it. That's – like, I don't know – if I know he was breaching a prohibition order, that I was looking to see if there a no-contact was part of his breach or a no prohibition order if he was breaching another prohibition order. I was looking for evidence of the breach.
[28] The police were free to investigate the identity of the woman who had been in the Grant basement to determine whether she was in fact named in one of the no-contact orders. The police were not free to pursue that objective by engaging in a warrantless search of the Defendant's bedroom. PC Lal had no lawful authority to re-enter the Grant residence to search for evidence. The evidence obtained in support of the eventual search warrant was done so in clear violation of the Applicant's rights under section 8 of the Charter. But for the illegal search, the warrant would never have been obtained.
Issue #2: 24(2) of Charter
[29] Having found a breach of Phillip Grant's rights under section 8 of the Charter, I now turn to the analysis under section 24(2).
[30] To determine whether the evidence obtained should be excluded pursuant to s. 24(2), I am required to undertake an analysis of the three factors mandated by the Supreme Court of Canada's decision in R. v. Grant, 2009 SCC 32, [2009] 3 S.C.R. 353.
[31] The court must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to the following three factors: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the claimant's Charter-protected interests; 3) society's interest in the adjudication of the case on its merits.
Seriousness of state conduct
[32] I find the seriousness of the Charter-infringing state conduct to fall at the extreme end of the spectrum. Unlawful intrusions into a citizen's private home strike at the heart of a free and democratic society. This factor of the Grant analysis favours exclusion of the evidence.
[33] In this case, the breach is made all the more serious by PC Lal's complete ignorance of Charter standards and his cavalier attitude towards the rights of the Defendant.
[34] I am unable to agree with Crown counsel that the seriousness of the breach should be mitigated by PC Lal's "good faith," his role as a "junior" officer, and the fact that he is an "honest officer."
[35] At the time of this investigation, PC Lal had been a police officer for more than three years. While I am prepared to accept that in the span of a policing career there is much to learn, I cannot excuse a total lack of knowledge of the basic right to be free from unlawful search and seizure. Throughout the entirety of his testimony PC Lal vacillated between insisting his authority to search the basement stemmed from his powers incident to arrest, and his belief that it was "exigent" to determine who the woman was. As the Supreme Court stated in R. v. Grant, 2009 SCC 32, at para. 74 "ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith." Whether PC Lal has been deprived of adequate training, or he is simply willfully blind to the limitations of his authority, I am unable to conclude that he acted in good faith.
[36] PC Lal's lack of good faith is further illustrated by his testimony that prior to entering the residence to search, he sought the permission of Andrew Grant "as a courtesy." While PC Lal testified that Andrew Grant was agreeable to his search of the basement, he also made clear that he had every intention of searching regardless of Andrew Grant's permission. The following exchange occurred during PC Lal's examination-in-chief:
Q. You told us you asked his permission to go down. Is that right?
A. I did.
Q. Okay. Why did you do that?
A. I had already left the residence and I want him to think – I don't want him to think I'm just going down for the fun of it, that I'm entering his house, again, for no reason, that I wanted him to know that there's a reason why I'm here again. He saw all of us leaving, now it's – it'd be weird for him to just see me ignore him and walk back downstairs. So, I just let him know what I was doing, why I was there and for his permission.
Q. Okay.
THE COURT: So do you want his permission or did you think you had justification to go by yourself, anyway?
A. Yeah, I didn't, I didn't need his permission, at the end of day, Your Honour. I was going to go down anyway. It made my – I was going down, acting on my own authorities, but it makes it better for public perception and interaction with police to let him believe that he wanted – that he'd be okay with me going downstairs.
THE COURT: So if he had said no, what would you....
A. I would've said, sorry, sir, well, I was asking before, but I'm just letting you know I am going downstairs.
The very fact that Officer Lal turned his mind to the "appearance" of him re-entering the basement, demonstrates to me that he was at the very least willfully blind to the fact that he was without lawful authority. Moreover, presenting a citizen with a "fake" option to consent to engender positive police/community relations further aggravates the seriousness of the Charter-infringing state conduct.
Impact of the Breach on Phillip Grant's Charter-protected Interests
[37] The second factor of the Grant analysis also favours exclusion of the impugned evidence. It was revealed at trial that Phillip Grant is in fact a co-owner of the home at 1925 Brittania Road West in Mississauga, and that it was his bedroom in the basement where the search occurred. Short of bodily searches, it is difficult to conceive of someone having a higher expectation of privacy than within one's own home.
[38] Subsequent to the illegal search of his residence, the Defendant spent seven months in pre-trial custody because, quite understandably, his family members refused to assist him given what had been located in the basement. Phillip Grant was deprived of his liberty for a substantial period as a result of the illegal search. I conclude that the impact of the breach on the Defendant's Charter-protected interests was significant.
Societal interest in adjudication on its merits
[39] The evidence sought to be excluded is reliable. It is vital to the Crown's case. Society has a substantial interest in the meaningful prosecution of cases involving guns and drugs. In the weeks since this trial ended, there have been several shootings and senseless loss of lives due to the exchange of gunfire in Peel Region. The proliferation of gun crime is unacceptable in a civilized society and people want it to stop. Against that backdrop, the truth-seeking function of the criminal trial process would be better served by the admission of the evidence. This factor of the Grant analysis favours inclusion.
24(2) Conclusion
[40] The first and second branches of Grant heavily favour exclusion of the evidence in this case. The third factor, which favours inclusion, is not sufficient to tip the balance in favour of admissibility. Having regard to all of the circumstances, it is my view that the admission of the evidence in this case would bring the administration of justice into disrepute.
[41] As Doherty J.A. held in R. v. McGuiffie, 2016 ONCA 191, at para. 63: "[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility." This approach has been widely followed in recognition of the reality that where exclusion is supported by the first two grounds, crucial evidence will often be excluded in order to protect the repute of the administration of justice. The negative effects of the loss of reliable, important evidence, must be balanced against the need to uphold the constitutionally protected rights of the accused.
[42] I do not take the exclusion of a loaded firearm and drugs lightly, particularly when they were in a home with young children. I also appreciate that the majority of citizens, who are law-abiding, expect the justice system to deal harshly with people found to be in possession of guns and drugs. However, it is fundamental to our society that all people be treated equal under the law and receive the equal benefit of our rights enshrined in the Charter. The law imposes clear limits on police authority, even though those limits may frustrate the detection and prevention of gun crime. The fact remains that but-for the unlawful search of his residence, the items at issue in this case would never have been located. Phillip Grant is entitled to equal protection from unlawful state action just as any other citizen would be. The firearm and drugs are excluded from evidence.
Released: September 27, 2019
Signed: Justice K.A. Wells