Ontario Court of Justice

Date: November 6, 2020

Central East Region (Oshawa)

Between:

HER MAJESTY THE QUEEN

— AND —

TARIQ RANA

Before: Justice F. Javed

Heard on: January 7, 8, March 5, April 17, September 28, 29, 2020

Submissions heard on: October 9, 2020

Reasons on Application and Judgment rendered: November 6, 2020

Counsel:

• G. Black, counsel for the Crown
• T. Rana, self-represented

F. Javed J.:

PART I: OVERVIEW

[1] Introduction

Tariq Rana ("Mr. Rana") was tried for the offences of careless storage of a firearm, namely a handgun, contrary to s.86(1) of the Criminal Code and contravening a regulation made under section 117(h) of the Firearms Act, in relation to storage of firearms and restricted weapons contrary to s.86(2) of the Criminal Code.

[2] Crown Election and Plea

The Crown elected to proceed by summary conviction on both counts. Mr. Rana pled not guilty to both offences and represented himself at trial.

[3] Scope of Reasons

These are my reasons on Mr. Rana's application seeking remedies for alleged violations under the Charter of Rights and Freedoms ("Charter") as well as the issue of whether the Crown has proven the offences beyond a reasonable doubt. The reasons are lengthy and will proceed in five parts. First, I will provide an overview of the trial proceedings, which will take some space in the reasons, but it is important context for Mr. Rana's Charter arguments. My discussion will reference an earlier mid-trial ruling launched by Mr. Rana seeking leave to raise additional Charter and legal issues. Second, I will outline the legal issues and the analytical order in which they are to be decided. Third, I will address Mr. Rana's remaining Charter arguments and whether any evidence should be excluded from under s.24(2) of the Charter. Fourth, I will address the merits of the prosecution with the admissible evidence, including whether the Crown has met their burden of proving the offences. Fifth, if the offences have been proven, whether Mr. Rana has met his burden of proving that the proceedings should be stayed under s.24(1) of the Charter. It should be noted that depending on how the issues are resolved, I may not have to decide other issues as they may be moot. For example, if I determine Mr. Rana's Charter argument succeeds in excluding the evidence of the firearm, it will gut the Crown's case.

A. The Charges

[4] Circumstances of the Charges

The circumstances of Mr. Rana being charged with the above criminal offences and the protracted litigation that followed are somewhat unusual. On October 15, 2018, Mr. Rana placed three 911 calls to the Durham Regional Police Service ("DRPS") to report that an unwanted male was in his home and refusing to leave. The trespasser was a disgruntled person known to Mr. Rana and his family. Mr. Rana told the 911 dispatchers he was a registered firearm owner and gets very violent and might kill him in self-defence, but later clarified, he wouldn't use his firearm. He asked for the police to attend at his residence, ostensibly, to remove the trespasser. Eventually, the police arrived and safely removed the trespasser who did not have a firearm. While inside the residence, and without a search warrant, the police investigated the circumstances of the firearm by asking Mr. Rana about its whereabouts. Ultimately, Mr. Rana, along with his spouse, Khudeja Rana ("Mrs. Rana"), turned over a 9mm Beretta handgun which was in a gun box. The firearm didn't have a trigger lock and the gun box was not locked. Mr. Rana was legally registered to possess and store the handgun, but the Crown says the handgun was being carelessly stored, given the manner in which it was discovered. Mr. Rana was charged accordingly.

B. Overview of the Charter Arguments

[5] Mr. Rana's Position

Mr. Rana's position is the police violated his rights under the Charter in several ways and this alleged impropriety spilled into the courtroom during the prosecution. He says the conduct of the both the police and the Crown Attorney's Office and in some cases, the conduct of the prosecuting Crown, Mr. Black, amounts to an abuse of process in law and the court should cure this injustice by staying the proceedings. Alternatively, Mr. Rana says the police violated his Charter rights and the evidence of the firearm should be excluded. In any event, he argues, he's not guilty of either criminal offence because the handgun was safely stored in a designated gun box which was stored in his wife's jewelry safe and therefore its' storage was not careless as it was in compliance with the storage regulation under the Firearms Act.

[6] Charter Complaints - Sections 8 and 9

Mr. Rana's Charter complaints are grounded in alleged violations of sections 7, 8 and 9 of the Charter. The sections 8 and 9 allegations involve an argument that the police entered and searched his home without a warrant and without reasonable grounds. Mr. Rana says he was arbitrarily detained in his residence in violation of s.9 of the Charter when the police began to question him about the whereabouts of the firearm and coerced him into searching for the firearm. He says there were no grounds for the police to conduct a safety search because they were called to remove a trespasser and their authority vanished shortly upon entry into his home. In addition, Mr. Rana alleges a separate violation of s.8 of the Charter on the basis that the police failed to file a Report to a Justice ("Report") in respect of the seized firearm which lead to it being unlawfully detained in police custody as it remained in their possession without judicial supervision. He says this problem was aggravated when the police secured its continued detention with a new Report during the trial based on trial testimony. As a remedy for these alleged violations, Mr. Rana seeks to exclude the evidence of the firearm under s.24(2) of the Charter.

[7] Crown's Response

The Crown concedes there was a warrantless search and arrest, which is a prima facie violation of section 8 but defended the actions of the police based on their common law powers to investigate emergency 911 calls. The Crown says this duty includes the authority to enter a residence and authorizes a search related to this purpose, including a broader purpose of protecting the safety of the public. The Crown says Mr. Rana was not detained when he was asked about the firearm because the police were not investigating him but rather responding to the 911 call. Further, the search was reasonably conducted with Mr. Rana and his spouse offering to assist with the search. The firearm was seized in plain view once the police had reasonable grounds to believe it was being stored carelessly. The Crown says the ss.8 and 9 complaints regarding the search should be dismissed or alternatively, were not serious police conduct which attract a Charter remedy under s.24(2). With respect to the s.8 complaint involving the Report issue, the Crown concedes the police failed to file a timely Report as required by the Criminal Code which resulted in a s.8 Charter violation but the Crown defends this complaint by arguing this was a technical violation, motivated by good faith and in any event, it was corrected during the trial when a new Report was filed. The Crown says the Charter violation flowing from the Report issue was not serious and should not result in a Charter remedy under s.24(2).

[8] Mr. Rana's Section 7 Complaints

Mr. Rana also complains that his right under s.7 of the Charter to life, liberty and security of the person was violated based on the conduct of the police and Crown counsel during his prosecution. First, he says the police forensically tested his firearm, despite an admission from him during a judicial pre-trial ("JPT") that the firearm met the definition under s.2 of the Criminal Code which would otherwise absolve the prosecution from proving this fact. He says this was abusive conduct because it was contrary to his admission and reduced the proprietary value of the firearm which was a legacy piece. Second, he says the police engaged in abusive conduct by filing a supplementary Report during his trial after discovering that a "perjured" Report had not been filed. Mr. Rana says the officer who sought to file the first Report deliberately lied about the circumstances of the discovery of the firearm and it was improper to file a new one based on trial evidence. Third, Mr. Rana complains that the conduct of Crown counsel during his trial was abusive. He identified three complaints including (i) the alleged improper exercise of Crown discretion in commencing a prosecution under s.86(2) of the Criminal Code after learning that the police had initially only charged him with an offence under s.86(1), (ii) not preventing the police from forensically testing the firearm despite his admission, and (iii) the conduct of Mr. Black who represented in written submissions that his firearm was stored "in a cardboard box" not, as the disclosure revealed, a gun box. Mr. Rana complains this undermined his fair trial rights. As a remedy for the above alleged violations, Mr. Rana seeks an order staying the proceedings, or stated differently, terminating the prosecution.

[9] Crown's Response to Section 7 Complaints

Crown counsel Mr. Black responds that all of the s.7 Charter complaints have no merit and should be dismissed. First, the Crown says there is nothing improper about charging a new and separate offence based on the same grounds as the original s.86(1) offence. Second, there is nothing improper about testing the firearm where there was no undertaking not to and third, while Mr. Black conceded referring to Mr. Rana's firearm "in a cardboard box" in written Charter materials, this was done inadvertently and was not done capriciously or with an intent to mislead. It was an honest drafting mistake and corrected during the trial and did not have the effect of undermining Mr. Rana's fair trial rights, a trial which he reminds was heard before a Judge and not a Judge and jury. Mr. Black invited the court to strike this drafting error from the written materials and consider the evidence heard on the trial when determining the verdict in this case. The Crown says there were no proven s.7 Charter violations and in any event, Mr. Rana has not met his onus under s.24(1) to stay the proceedings because this is not a clear case where the proceedings should be stayed.

C. Chronology of the Legal Proceedings

[10] Mr. Rana's Self-Representation

Mr. Rana chose to represent himself at trial. It was his constitutional right to do so. Mr. Rana conducted his defence ably because it is obvious, he is well educated, resourceful and respectful. Even though he advanced Charter complaints impugning the integrity of the police and the Crown Attorney's office, including Mr. Black, he did so professionally. While it remains to be seen whether any of these legal arguments have any merit, he advanced the arguments while conducting himself civilly and with some forethought, which is expected of litigants appearing before the courts. A criminal trial is not a mediation where the parties are expected to come to an agreement about disputed issues. Criminal cases are adversarial in nature. This case was no different.

[11] Conduct of the Trial

Criminal trials with self-represented litigants are challenging for courts and this case was no different. Courts have a duty to ensure a litigant receives a fair but not necessarily a perfect trial. This includes a duty to provide reasonable assistance to a self-represented litigant. This duty was realized in this case with the assistance of Crown counsel, Mr. Black, who as these reasons will demonstrate, also acted professionally by providing diligent assistance to both Mr. Rana and the court. Despite some of the Charter complaints levelled at his office and him personally, he reacted civilly. He assisted the court in making witnesses available for Mr. Rana to be called and responded with focused legal submissions in response to Mr. Rana's arguments. It is not lost on the court that Mr. Rana defended himself against the backdrop of feeling victimized by the administration of justice. As he repeatedly reminded the court, he called 911 for police assistance to remove a trespasser and ended up being charged with criminal offences. He says the police embarrassed him in front of the trespasser and his family. In his final written submission to the court he wrote: "The Crown has lost its way in prosecuting R. v. Rana". As the trier of fact, my function is to judge the evidence to determine if it proves his guilt to the requisite legal standard. I must do so dispassionately. Viewed in this context, the trial proceedings could have, but did not, devolve into a mud-slinging contest. Both parties should be commended for acting civilly and professionally.

D. The Witnesses

[12] Witness List

The Crown called two 911 operators who received the frantic phone calls of Mr. Rana and police witnesses involved in the search and seizure of the firearm from his residence (PC Dean Birmingham, PC Pallister and A/Sgt. Clauson). Mr. Rana elected to testify in his defence and also called his spouse, Mrs. Rana who testified with the assistance of an Urdu/Punjabi interpreter. Additionally, the Crown made some police witnesses available for Mr. Rana including PC Bryce Maclean, PC Peter Kirzsan and PC Francis Shahshani. Mr. Rana agreed to blend all the evidence on the trial and Charter issues. Finally, in support of his mid-trial Charter applications which I will review below, Mr. Rana filed a lengthy affidavit appending some of his disclosure materials. This too becomes part of the record although given its timing, the Crown did not have the opportunity to test this evidence through cross-examination.

E. The Admissions

[13] Agreed Facts

Mr. Rana conceded the admissibility of the three 911 calls which were made Exhibits 1. In addition, the parties agreed to admit certain facts pursuant to s.655 of the Criminal Code. First, the seized firearm was a restricted firearm within the meaning of s.2 of the Criminal Code as it was tested by the Centre of Forensic Sciences ("CFS"). The parties had secured this admission at the JPT proceedings on January 28, 2019. Prior to commencing the trial, Mr. Rana confirmed this admission on the record. Second, the parties agreed that PC Kriszan took 17 photographs of the firearm as a scenes-of-crime (SOCO) officer: Exhibits 3, 6. Third, the parties agreed to admit a factual issue which arose based on an assertion made in Mr. Rana's affidavit which was filed as part of his mid-trial Charter applications. Specifically, Mr. Rana alleged there was an abuse of process because the Crown in an unrelated proceeding before the Superior Court of Justice (SCJ) in Durham, was "leveraging the criminal proceedings, as part of their prosecution in the SCJ". When the court raised this issue with the parties mindful that it was treading bad character evidence, Mr. Rana insisted the evidence was relevant and admissible to his Charter claim of an abuse of process because he took the position that the Crown's decision to continue both prosecutions was motivated by an oblique purpose. Mr. Black argued that the court should summarily dismiss this claim because it lacked merit but in the event the court chose to screen the application and to avoid cross-examining Mr. Rana on his affidavit, the court should know the date of the alleged offence in the SCJ to have a full chronology of the events. Mr. Rana agreed to admit this fact for the limited purpose of filling in the narrative to his claim and acknowledged he was charged with the SCJ offences on June 14, 2019, thus, while on a release for the offences before me. Further, Mr. Black fairly took the position that despite Mr. Rana's concession to blend all the evidence for all purposes, the Crown would not to rely on any alleged bad character evidence as part of the Crown's burden of proving his guilt on these charges beyond a reasonable doubt. The parties agreed it would only be useful to screening the Charter argument to determine if it had a reasonable prospect of success. Ultimately, I ruled this specific complaint had no merit and it was summarily dismissed as it had no reasonable prospect of success: R. v. Cody, infra. These reasons will not address that issue. The fact of Mr. Rana's charge in the SCJ has not been factored into my evaluation of the issues in this case.

F. Mr. Rana's Mid-Trial Application Seeking Leave to Raise a Charter Issue

[14] Discovery of the Report

The trial proceedings commenced on January 7, 2020 with the evidence of PC Birmingham. After his examination-in-chief, Mr. Black came into possession of a Report in respect of the seized firearm which was authored by PC Birmingham. PC Birmingham was prepared to swear under oath to a Justice that the firearm was seized based on a "plain view" seizure and sought an order of detention until the completion of the case. However, the Report was never filed with a Justice which means that the order seeking detention of the firearm was never authorized. As part of the Crown's ongoing disclosure obligation, the Report was disclosed and Mr. Black fairly conceded a s.8 Charter violation, however, took the position that it was a technical violation given the circumstances of the case and should not warrant a Charter remedy. He cited the case of R. v. Garcia-Machado, 2016 ONCA 569, in support of this position. Armed with the Report, Mr. Rana completed his cross-examination of PC Birmingham suggesting he "perjured" himself by stating the firearm was found in plain view when the evidence would establish it was retrieved by Mrs. Rana and given to the police. PC Birmingham denied "perjuring" his evidence. It is important to note that the Report was never sworn before a Justice and thus never became the functional equivalent of evidence under oath. It did, however, provide fodder for Mr. Rana to test the credibility of PC Birmingham who was prepared to have it treated as evidence under oath.

[15] Application to Amend Charter Complaint

Mr. Rana sought leave to amend his original s.8 Charter complaint to also include the Report issue given the Crown's concession. As part of this application, he sought to call up to six (6) additional witnesses on the Charter voir dire as he would argue that in view of the illegal detention of the firearm, its testing by the CFS was unlawful, impacting both the s.8 Charter issue as well as amounting to an abuse of process under s.7 of the Charter. In support of this expanded application, he sought to withdraw his admission dispensing the requirement of the Crown to prove his handgun was a firearm because he was under the impression from the JPT that his firearm would not be forensically tested thereby depreciating its proprietary value. Mr. Rana took the position that all of these circumstances, including the late disclosure and testing of his firearm unbeknownst to him amounted to a s. 7 Charter violation framed as an abuse of process and warranted a stay of proceedings under s.24(1) of the Charter. I indicated to Mr. Rana that I would screen these applications if he chose to advance them in writing.

[16] Crown's Case Closed

On January 8, 2020, Mr. Black closed his case subject to any reply evidence on the blended voir dire. Mr. Rana testified in his defence and was by cross-examined by Mr. Black. Mr. Rana called Mrs. Rana who testified with the assistance of an Urdu interpreter. She completed her evidence in chief but was not cross-examined.

[17] Trial Estimate and Screening

The trial estimate by the parties secured at the JPT was two (2) days. This estimate had been extinguished and given the impending cross-examination of Ms. Rana's spouse by the Crown, I directed the parties to obtain one additional day to complete the trial along with a two-hour window in the intervening period to screen the issues raised by the late disclosure of the Report as well as the other issues raised by Mr. Rana. Given my duty to ensure an efficient and fair hearing, mindful of the delay that had already been perpetuated by an adjournment of the first trial date, I indicated to the parties that I would screen the new proposed applications to determine if they had a reasonable prospect of success before allowing the parties to set aside additional days of court time: R. v. Cody, 2017 SCC 31 at para. 38. To be clear, this was in relation to the new s.7 complaints, not the s.8 violation that the Crown had properly conceded. The parties secured a trial continuation date of June 2, 2020 with a motion date of March 5, 2020.

[18] Applications on March 5, 2020

On March 5, 2020, I heard submissions on Mr. Rana's applications to:

(i) withdraw his admission of fact in respect of the firearm as it was forensically tested without his consent;

(ii) expand his s.8 Charter complaint in respect of the Report issue which the Crown conceded amounted a Charter violation;

(iii) expand his s.7 Charter complaints alleging Crown misconduct by breaching an undertaking not to test the firearm and/or participating in an abuse of process by allowing the police and the CFS to test it despite his admission;

(iv) quash the information because it was a nullity including a separate application under s.7 alleging an abuse of process on the basis that the Crown decided to also proceed on the s.86(2) offence [violation of the storage regulation offence] when he was only originally charged with the s.86(1) [careless storage of the firearm offence], and

(v) application to call up to six (6) additional witnesses on the Charter voir dire, which was supported with an application to recall some witnesses who had already testified.

[19] Parties' Approach to Applications

The parties elected to not call any evidence on the above applications. Instead, they agreed to argue the issues based on oral submissions and the court's consideration of the evidence that had already been adduced on the blended proceedings. In other words, the evidence on the voir dires which had previously been adduced could be used by the court during its screening function and if the motions were permitted to be argued, could also be applied to the applications with the proviso that additional evidence may be adduced. Mr. Rana ably and dutifully followed the courts direction by filing the applications in writing and with proper notice to the Crown. Mr. Black also responded in writing and took the position that Mr. Rana's s.7 complaints had no merit and should be summarily dismissed. With respect to the application to quash the information and related Charter issues, he said they should be argued at the end of the proceedings, not mid-trial. Further, without formally conceding the relevance of any witnesses to the issues, he agreed to make police witnesses available to Mr. Rana so they could be called by him. They included: Sgt. Storrey, PC Krizsan and DC MacLean. After hearing submissions, I reserved my ruling to April 17, 2020. I indicated that to promote an efficient hearing, I would deliver my ruling electronically to the parties prior to the return date.

G. The Court's Ruling in Respect of the Mid-Trial Application

[20] Summary of Ruling

On March 13, 2020, the court delivered a written ruling in respect of the above issues. [1] In summary, I ruled as follows:

(i) I granted Mr. Rana to expand his s.8 Charter complaint to include the Report issue and permitted him to seek a Charter remedy under s.24(2) and or s.24(1) in respect of this issue;

(ii) I denied his application to withdraw his admission in respect of the firearm, but permitted him to call evidence in relation to the testing of the firearm in support of his Charter complaints as the evidence was potentially relevant in meeting his burden on seeking a Charter remedy under 24(2) and 24(1);

(iii) I denied his application seeking permission to argue that the conduct of Crown counsel amounted to an abuse of process under s.7 as this argument had no reasonable prospect of success;

(iv) I adjourned his application seeking to quash the information on the basis that it was a nullity until the end of the proceedings;

(v) I ordered the Crown to have DC Shahshani available as a witness on the Report issue as he was involved in filing the second report which Mr. Rana says was "abusive". Without making this finding, I was prepared to have Mr. Rana explore the issue in view of the Crown's related s.8 concession. As well, on the Crown's invitation, I ordered that the three above mentioned police witnesses be made available for Mr. Rana to call but decided that the other two witnesses sought by Mr. Rana were irrelevant. This latter order was made without prejudice to Mr. Rana and subject to review as the circumstances unfolded.

Along with the above ruling, the court gave directions as part of the court's case management powers to ensure an efficient and fair hearing along with ordering a transcript of the proceedings on January 8, 2020 to allow the parties to properly prepare. The court directed the parties to secure an additional one and-a-half (1.5) days of trial time, on top of the one day in June, to complete the trial given the expansion of the Charter applications.

H. The Shuttering of the Court Due to COVID-19

[21] Court Closure

On April 17, 2020, the matter did not proceed as scheduled because in late March, the court shuttered due to the COVID-19 pandemic. Given the directives of the Ontario Court of Justice ("OCJ"), the matter was presumptively adjourned for 12 weeks.

[22] May 25, 2020 Communication

On May 25, 2020, the court communicated with the parties by email advising of the court's continued closure due to the pandemic and advising the trial would not continue on June 1, 2020 as scheduled. Instead, the matter would be presumptively adjourned pursuant to the OCJ directive for 12 weeks to August 10, 2020. The parties were invited to attend the remote appearance on June 1, 2020 by audio-conference if they desired. I directed that should the court be opened by August 10, the parties should secure two and-a-half (2.5) days of trial time to complete the matter as directed in the court's ruling. The parties were reminded to request an Urdu interpreter for Mrs. Rana's evidence.

[23] August 6, 2020 Communication

On August 6, 2020, the court communicated again with the parties by email to advise that the remote appearance on August 10 would be adjourned to August 14, 2020 to accommodate the court's schedule.

[24] August 14, 2020 Appearance

On August 14, 2020, the parties attended remotely by audio-conference. With the assistance of the trial coordinator, the parties secured trial continuation dates of September 28, 29 and October 9, 2020.

I. Mr. Rana's Second Mid-Trial Applications

[25] New Applications Filed

In the intervening period, Mr. Rana filed two new applications, including:

(i) an application under s.490(15) of the Criminal Code seeking access to the firearm prior to the trial continuation to "examine the firearm and its case and all the accessories of the firearm in order to refresh its recollection in the matter and to create a photographic record of the firearm and its case and accessories to be tendered as exhibits in court"; and

(ii) notice of an impending application under s.11(b) of the Charter alleging a violation of his right to a trial within a reasonable time.

The above applications were not served and filed electronically as required by the Rules of Criminal Proceedings following the COVID-19 filing protocol. Accordingly, the court communicated with the parties on September 10, 2020 by email, appending the new filing protocol.

[26] September 28, 2020 Proceedings

On September 28, 2020, the trial proceedings resumed. With respect to the applications referenced in paragraph 25 of these reasons, Mr. Rana advised he would not be pursuing the application to retrieve the firearm (item i) as it was moot and would not pursue the application under s.11(b) of the Charter (item ii). For clarity, I was not asked to rule on a s.11(b) application at any point during the litigation. In the intervening period, Mr. Rana had launched two new applications in writing styled: (i) Application for Remedies for Abuse of Process and (ii) Application to Exclude Testimonial Evidence. In support of these applications, he filed an affidavit from himself appending disclosure materials and copies of the trial transcripts including the aforementioned reference to a new criminal charge being prosecuted in the Superior Court of Justice.

[27] Crown's Response to New Applications

Mr. Black, in his written materials, argued both applications should be summarily dismissed because among other things, they did not adhere to the Rules of Criminal Proceedings and lacked merit. Mr. Rana was objecting to the admissibility of evidence already tendered and was seeking to raise a new Charter issue. As a matter of law, an objection to the admissibility of evidence should be made no later than the time the evidence is tendered. This principle applies both at common law and to exclusion of evidence under the Charter: R. v. Kutynec (1992), 70 CCC (3d) 289 (Ont. C.A.), at 294-295. However, there will be many situations in criminal litigation where the interests of justice will require a court to consider, either with late notice or no notice at all, Charter implications related to already-admitted evidence: R. v. Gundy, 2008 ONCA 284, at paras. 22-23. Courts have cautioned that the need to run efficient and focused trials cannot outweigh the need to do justice in an individual case, and trial judges "generally should be reluctant to foreclose inquiry into an alleged Charter violation": R. v. Tash, [2008] O.J. No. 200 (S.C.J.), at para. 15; Gundy, at para. 24.

[28] Court's Ruling on New Applications

In view of the above principles, I ruled Mr. Rana's application to exclude his testimonial evidence on the basis that he thought it was unfair that the Crown was using his evidence against him to prove the offences, had no merit. I summarily dismissed this application. Mr. Rana chose to testify in his defence on both the Charter and trial issues after I explained to him that he had the option to not testify at all, testify on one hearing and not the other or testify on both. I was satisfied he made an informed decision to testify and be cross-examined once, and to have his evidence on the Charter issues apply to the trial issues. While the permutations of blended hearings may be difficult for some self-represented litigants, Mr. Rana is an exceptional self-represented litigant. I repeat, he proved to be an able advocate for himself. His oral submissions and legal materials are objective proof of his exceptional abilities. Mr. Rana may have felt disadvantaged from a skillful cross-examination by Mr. Black, but this is was an informed risk Mr. Rana took. It did not amount to an unfair trial nor an abuse of process. Mr. Black's cross-examination of Mr. and Mrs. Rana was fair and never crossed the line. I advised Mr. Rana I would consider his submissions on what weight I should attach to his evidence because the court can accept some, all or none of the evidence of a witness. With respect to the Abuse of Process application, it recycled some of the earlier complaints which I had previously ruled would be addressed at the end of the trial but also included a new complaint alleging the failure of the Crown to establish jurisdiction over the s.86(2) offence, ostensibly, because it was added to the 86(1) offence, and amounted to an abuse of process. I did not summarily address this argument and permitted Mr. Rana to pursue it along with his application to quash the information as both arguments rested on similar legal footings. One addressed the jurisdiction of the court to consider the s.86(2) offence and the other was whether its consideration amounted to a s.7 Charter violation deserving of a Charter remedy. Mr. Rana agreed with the courts' framing of the issue.

[29] Trial Resumed

After addressing the above issues, the trial resumed with Mrs. Rana being cross-examined by Mr. Black with the assistance of an interpreter. Mr. Rana also called three police witnesses including PC Kriszan, DC MacLean and DC Shahshani. While Mr. Black made Sgt. Storrey available as a witness, Mr. Rana chose not to call him. Mr. Rana closed his case on both the Charter and trial issues. Mr. Black considered seeking leave to recall A/Sgt. Clauson, but, decided against it.

[30] Adjournment for Final Submissions

Mr. Rana sought an adjournment of the proceedings to prepare for final submissions. The Crown was prepared to proceed but did not argue against the request. I granted Mr. Rana's adjournment request. Prior to remanding the matter for final submissions, I reviewed, again, the elements of the two offences before the court and provided directions about the exchange of written submissions between the parties in order to ensure an efficient hearing on the scheduled date for submissions: October 9, 2020. Ultimately, Mr. Rana served and filed a one-page document titled "Closing Summary" while Mr. Black filed a twelve-page (12) document titled "Closing Submissions".

[31] October 9, 2020 Submissions

On October 9, 2020, I heard submissions from the parties on all Charter and trial issues. At my suggestion, Crown counsel agreed to proceed first, allowing Mr. Rana to focus his submissions in reply. Mr. Rana declined this offer and vowed to go first as he had prepared "Final Submissions" which were twenty-nine (29) pages in length, appended with various disclosure materials and legislation. Mr. Rana read this prepared document into the record. After hearing the Crown's submissions, he did not wish to make any reply submissions. A date was fixed for judgment.

[32] Reply Submissions

In the intervening period, Mr. Rana sought leave to file reply submissions in writing. After convening by audio-conference to hear submissions, Mr. Black did not oppose the request. The reply materials include a two-page email which I directed the clerk to attach to the information to complete the record. For clarity, I have considered all of the oral and written submissions of both parties in these reasons.

PART II. THE ISSUES

[33] Legal Issues to be Addressed

With the above backdrop in mind, these reasons will address the following legal issues:

1. Is the information charging the two offences a nullity because it is "defective"?

2. Was there a s.8 Charter violation on the basis of the police entering and searching Mr. Rana's residence without a search warrant and by failing to file a Report and/or filing a Report during the trial proceedings?

3. Did the police form lawful reasonable and probable grounds to arrest Mr. Rana for the offences before the court?

4. Was Mr. Rana arbitrarily detained by the police in his home under s.9 of the Charter?

5. If there were proven Charter violations, has Mr. Rana met his onus to exclude the evidence of the firearm under s.24(2)?

6. If the evidence of the firearm is admissible, has the Crown proven beyond a reasonable doubt that he carelessly stored his firearm contrary to s.86(1) of the Criminal Code?

7. Has the Crown proven beyond a reasonable doubt that Mr. Rana contravened a regulation under s.117(h) of the Firearms Act in respect of storage of a firearm under s.86(2) of the Criminal Code?

8. Has Mr. Rana proven on a balance of probabilities that his rights under s.7 of the Charter were violated resulting in an abuse of process?

9. Has Mr. Rana met his onus on a balance of probabilities to stay the proceedings under s.24(1) of the Charter?

PART III: THE CHARTER APPLICATIONS

[34] Summary of Evidence

Before I turn to the Charter issues, I will summarize the evidence of the witnesses. It is common ground that Mr. Rana placed three (3) 9-1-1 calls which I will itemize below. While there is no conflict that the police entered his residence, there is a credibility dispute about what happened in his residence including the circumstances of the search that lead to the discovery of the firearm. In summary, the defence position is that the firearm was stored in a locked jewelry safe and removed by Mrs. Rana after Mr. Rana called 9-1-1 and illegally seized after the police demanded its whereabouts, after the trespass call had dissipated. The Crown's position is the police lawfully responded to the 9-1-1 emergency call and there was no locked safe. Instead the firearm was unsafely stored in a gun box in a bedroom closet and lawfully turned over to the police. I will commence with a summary of Mr. Rana's evidence.

A. Evidence of the 911 Calls

[35] First 911 Call - Context

On October 15, 2018, Mr. Rana called 9-1-1 to have a trespasser removed from his home. The 9-1-1 calls were played in the courtroom and made Exhibit 1 on the blended voir dire and trial proceedings. To provide some context to the calls, Mr. Rana testified a family acquaintance, Mr. Rihan Quershi, attended at his house uninvited and was let in by Mr. Rana's teenage daughter. Mr. Quereshi proceeded to blame Mr. Rana for instigating his (Mr. Quereshi's) daughter's divorce. Mr. Rana explained he had previously testified in court proceedings, which ultimately led to some dissention in the Quereshi household. Mr. Rana asked Mr. Quereshi to leave and he refused. Mr. Quereshi began to raise his voice and threatened him. Mr. Rana testified he never threatened him in response but became scared as his children were in the house. As a result, he decided to call 9-1-1 to have the police remove Mr. Quereshi as a trespasser.

[36] First 911 Call - Details

The first 9-1-1 call was made at approximately 6:31 pm, with Mr. Rana speaking with the dispatcher, Ms. Alana Timmers. She testified Mr. Rana told her about Mr. Quereshi as the father of his wife's best friend. He reported that Mr. Quereshi is threatening his 16 year-old daughter with violence. The other salient aspects of the first 9-1-1 call include the following comments made by Mr. Rana:

• "Please have an officer here immediately [to remove a trespasser, Mr. Quereshi]"
• "I don't want to go down [in the living room] because I might kill him"
• "I get very violent and I can take care of him and I don't want to do that"
• "I haven't even spoken to him face to face, it's just my wife who mentioned that he is in the house"
• "I haven't even spoken to him face to face, just my wife told me he's in the house"
• "he's known to use alcohol and drugs"

[37] Second 911 Call - Details

Mr. Rana testified he was expecting the police would arrive immediately after the first 9-1-1 call, but they did not. As a result, he called 9-1-1 again at 6:44 pm, and told the 9-1-1 dispatcher, Ms. Pauline McKnight that he previously called 9-1-1 and nobody responded to the call. The following are salient aspects of what Mr. Rana said on this call:

• "I already called 911 and there's no police here, I need them here as soon as possible"
• "I have a weapon and I will use it on him"
• "I do have a weapon, I have a lawfully obtained weapon"
• "I am not going to use any weapon"
• "It's a registered 9mm handgun"
• "I have a firearms license for that"
• "he's there to threaten me"

[38] Dispatcher's Assessment

According to Ms. McKnight, Mr. Rana appeared animated and agitated, with a clear undertone of anger in his voice. Based on the above information she changed the priority of the call from an unwanted party to a person with a weapon. This information was reflected in the police call card which would be available to any police officer that was dispatched to the call. In cross-examination, she confirmed the call card would have also reflected Mr. Rana's status as a certified firearm registered owner or CFRO and his comment he wouldn't use his weapon.

[39] Third 911 Call

The third 9-1-1 call commenced with a dropped call followed with Mr. Rana advising the dispatcher in an excited state: "I have a weapon and I need to defend my family, hurry up". Mr. Rana repeats the complaint of the trespasser and is clearly anxious and upset, repeating "just hurry up".

B. The Police Investigation

[40] Police Response

The 9-1-1 calls were responded to by various members of the DRPS including Police Constables Dean Birmingham ("PC Birmingham"), Brian Pallister ("PC Pallister"), Sergeant Robert Storrey (Sgt. Storrey) as well as Acting Sergeant Robert Clauson ("A/Sgt. Clauson"). In the end, PC Birmingham was assigned to be the lead investigator, which involved completing the Report to a Justice in respect of the seized firearm. I will review his evidence as well as the evidence of Police Constable Francis Shahshani who forwarded a second Report to Justice during the trial proceedings. In addition to the above officers, Mr. Black made other officers available for Mr. Rana. These officers were called by Mr. Rana and included: DC Bryce MacLean who examined Mr. Rana's firearm and PC Peter Krizsan who was present during the photographing of some of the items seized from Mr. Rana's residence. The evidence of the latter two officers is less controversial and I will review them when considering the Charter issues.

(i) Evidence of PC Birmingham

[41] PC Birmingham's Arrival

PC Birmingham testified he was dispatched to Mr. Rana's residence at Unit 21-1087 Ormond Drive in Oshawa shortly before 7pm. While in transit he learned about the 9-1-1 calls involving a male trespasser and information that the caller (Mr. Rana) had a 9mm handgun and would defend himself. Upon arriving at the residence, he saw Mr. Rana at the front porch standing by himself. After speaking with him quickly, he determined Mr. Rana was not in possession of any weapon.

[42] Entry into Residence

PC Birmingham testified given the nature of the information on the 9-1-1 call involving a 9mm handgun, the police entered Mr. Rana's residence to ensure the safety of "anyone who may be inside". Upon entering, he saw a male sitting on the couch, later identified as Rihan Qureshi. He spoke to him briefly. He also confirmed the presence of Mrs. Rana who was inside the house. He confirmed there was nobody in the home with a firearm who needed medical attention. He said the scene was chaotic as everybody appeared agitated. It was apparent there was a heated argument in a language that was not English which he could not understand. After speaking with Mr. Quereshi, he learned there was some sort of dispute between him and Mr. Rana's family.

[43] Search for Firearm

PC Birmingham turned his attention to the 9mm handgun referenced in the 9-1-1 calls. He attended upstairs after A/Sgt. Clauson had gone upstairs with Mrs. Rana. When he arrived upstairs, he saw A/Sgt. Clauson with a box. While he did not search the premises, he learned from A/Sgt. Clauson that the box contained a handgun that was retrieved from a closet in a bedroom, which in his view, did not appear to be a room where one might store a firearm. He ensured the firearm was "proven safe" which means it was not loaded with ammunition. He testified there was no trigger lock on the firearm, nor was the gun box able to be secured with a lock.

[44] Cross-Examination of PC Birmingham

In cross-examination, PC Birmingham confirmed his authority to enter Mr. Rana's residence and search for the firearm was vested in "his common law powers". In other words, he did not say he relied on any statutory authority. He explained he did not have to knock on Mr. Rana's door as Mr. Rana was standing outside of his residence on the porch and was invited inside. Further, he added that upon entering the residence and confirming that nobody was in immediate danger of a firearm, he still felt prudent to ask about the firearm as it was the basis for the 9-1-1 call. He stated: "[my] purpose for being there was not to take away your gun, per se, my purpose for being there was to ensure the safety of everyone, including your own – because you called us." Finally, PC Birmingham also testified he wasn't involved in the search of the firearm from the bedroom and it was never in his plain view until after it was shown to him by A/Sgt. Clauson.

(ii) Evidence of Acting Sergeant Robert Clauson

[45] A/Sgt. Clauson's Background and Dispatch

Officer Clauson has been employed as a police officer for approximately 11 years. On the date in question, he was on duty as an Acting Sergeant in a supervising capacity. He was working alone and responded to a radio call for an unwanted person at Mr. Rana's residence. He was operating a fully marked cruiser. A/Sgt. Clauson said he learned from dispatch that a caller had a 9mm handgun and if necessary, would use the firearm to defend himself. There was also information that the caller said he can act violently.

[46] A/Sgt. Clauson's Arrival and Decision to Search

At 7:07 pm, he arrived at Mr. Rana's residence. PC Birmingham and PC Pallister were already on scene. Mr. Rana was standing outside the residence and learned he was the 9-1-1 caller. He spoke to Mr. Rana about the 9mm firearm and testified Mr. Rana told him the firearm was "located upstairs in a box". A/Sgt. Clauson determined there were exigent circumstances in locating the firearm given the nature of the 9-1-1 call including the reference that it may be used in self-defence. As such, he decided to enter the Rana residence without seeking a search warrant and search for the firearm.

[47] Discovery of Firearm

Upon entering, he observed a male and female inside the residence. Mr. Rana escorted him upstairs into a bedroom which was already open. Mr. Rana proceeded to look for the firearm in the bedroom and on a shelf, but he could not find it. At this point, Mrs. Rana entered the bedroom and went to the walk-in closet and began "rifling" through the laundry and presented him with a blue box which was buried underneath some clothing, "not a locked cabinet". The blue box had a Beretta USA symbol inscribed on it which he understood to be a firearm. Exhibit 3 are SOCO photographs of the firearm and box identified as DSC0002 to DSC0005. He observed that the box was not locked. He opened it and saw a 9mm pistol with a magazine seated in the receiver. He removed the receiver. There were no rounds in the magazine. Nor was there a trigger lock. A/Sgt. Clauson testified that he did not obtain a search warrant for the Rana residence as the 9-1-1 calls made it clear the caller had a 9mm handgun and "it was urgent that we locate this firearm forthwith."

[48] Cross-Examination of A/Sgt. Clauson

In cross-examination, A/Sgt. Clauson confirmed he's not designated as an "inspector" under the Firearms Act which permits entry into a home but instead entered the home under his "common-law powers" to investigate a possible criminal offence of threatening somebody with a firearm, which he learned from the 9-1-1 call. He said upon entering Mr. Rana's residence, he didn't know if anybody had a firearm and did not search Mr. Quereshi nor Mr. Rana or his spouse. When asked if he still believed the circumstances were exigent in his mind after entering, he stated: "Absolutely. I don't know where - who had access to the firearm". A/Sgt. Clauson confirmed, while inside the residence, he did not know if PC Birmingham had a conversation with him (Mr. Rana) about the firearm.

[49] Further Cross-Examination

A/Sgt. Clauson was challenged by Mr. Rana about whether Mrs. Rana handed over the gun box to him directly or whether she gave it to Mr. Rana who handed it over to the police. Ultimately, A/Sgt. Clauson conceded he couldn't recall for sure how the box ended up in his hands, but he was clear that it was retrieved by Mrs. Rana from a walk-in closet. He was also adamant that the never entered the walk-in closet and instead stood at the threshold of the closet. When asked why he didn't enter the closet, he responded: "Given the size of the closet and the fact that there's a potential of a firearm being in there, for my safety, I'm not going to stand beside you in small confined space like that". When challenged on his grounds for the search, A/Sgt. Clauson said: "… I did not know where your firearm was at that time, and I believed you had a firearm. You had a firearm registered to your residence, as well you made reference to the call-taker, 9-1-1, that you had a firearm and you would use it".

(iii) Evidence of Police Constable Bryan Pallister

[50] PC Pallister's Arrival and Initial Assessment

PC Pallister was called in-chief by Mr. Rana. He has been a police officer with the DRPS for over 25 years. On the date in question, he too was dispatched to Mr. Rana's residence and arrived within seconds of PC Birmingham and A/Sgt. Clauson. He testified he parked his cruiser a few homes away and walked to Mr. Rana's residence which is depicted in photographs marked as Exhibit 4. Upon arriving at the residence, he saw Mr. Rana standing outside, and spoke to him about the circumstances of the firearm which according to him, Mr. Rana "downplayed". In his view, Mr. Rana was not being deceptive but also was not forthcoming about the firearm. While he couldn't recall the exact conversation, Mr. Rana was focused on the intruder in his home and wasn't volunteering information about the firearm which raised his suspicion.

[51] PC Pallister's Radio Communication

At 7:09 pm, PC Pallister advised dispatch over radio that the matter had been "overblown". He testified he did this because he suspected other officers, including the K-9 unit, would also be dispatched to the home, possibly in haste given the information about the firearm, and wanted them to slow down. In the end, he said other police officers did not have to attend, except for Sgt. Storrey which is routine when there's a call of a firearm. Sgt. Storrey was made available for Mr. Rana to call but never ended up testifying. PC Pallister said Sgt. Storrey arrived and spoke with the other officers on scene. He briefed Sgt. Storrey on why Mr. Quershi was present in Mr. Rana's home and after doing so, Sgt. Storrey left without entering the home because the situation had calmed down.

[52] PC Pallister's Entry and Search

PC Pallister said he entered at the same time with PC Birmingham and Acting Sgt. Clauson. He was likely the first person to enter. Upon entry, he saw a person sitting on a couch in the living room. He spoke with Mr. Qureshi and did a pat down search and a quick search of the couch. He was searching for a firearm but didn't find anything of interest. Unlike Mr. Rana, Mr. Quereshi was forthright and said he had no gun. He didn't search anybody else for a firearm. He testified that based on the call card, he believed the firearm was either on Mr. Rana or Mr. Qureshi. Mr. Quereshi told him he was in the home because Mr. Rana was speaking to his daughter which he did not like. PC Pallister added while knew other officers were searching for the firearm, he was not involved in the search. PC Birmingham remained on the main level, but he was unsure about the whereabouts of Acting Sgt. Clauson. Eventually, he saw Acting Sgt. Clauson holding the firearm but did not speak to him about its discovery. In cross-examination, he said the police did not apply for a search warrant as "other officers were dealing with the matter".

[53] PC Pallister's Cross-Examination

In cross-examination by the Crown, PC Pallister confirmed he was not involved in the search for the firearm. He said he remained in the home until he saw A/Sgt. Clauson bring the firearm downstairs, and after determining it was safe to leave, left. He confirmed that the exigency of the police investigation dissipated after the firearm been retrieved.

C. The Evidence of Mr. and Mrs. Rana

(i) Evidence of Mr. Rana

[54] Mr. Rana's Background

Mr. Rana chose to testify in his defence after it was explained to him that it was his constitutional right to remain silent and have the Crown prove his guilt beyond a reasonable doubt. He further agreed to have his evidence on the Charter voir dire apply to the trial issues to avoid being cross-examined twice. He is 50 years old and does not have a criminal record. As noted above, he is a highly intelligent man with a degree in biochemistry and business administration. He also completed a couple of years of medical school. Mr. Rana has been married to his spouse, Mrs. Rana for years. The couple have three children. The parties moved to Oshawa from Ottawa several years ago.

[55] Firearm History

Mr. Rana explained while living in Ottawa, he enlisted with the Canadian Armed Forces and was a commission officer as a second lieutenant medical in training. He received firearms training in Borden, Ontario and developed a passion for firearms. In 1990, he purchased a 9mm Beretta semi-automatic handgun ("the firearm") as a legacy item to pass on to his children. The firearm was "never used", "never touched" and had no ammunition. Mr. Rana applied for and was granted a CFRO in respect of this firearm. There is no evidence before me that his spouse, Mrs. Rana, was also lawfully permitted to possess and store firearms on the date in question.

[56] Storage of Firearm

Mr. Rana testified that the firearm was stored in a locked safe, which was a metal box advertised to hold valuables. Over time, the safe was mainly used to store his wife's jewelry. In cross-examination, Mr. Rana provided further details about this safe. He said he purchased the safe about 25 years ago, possibly from Walmart and added: "My wife has taken it over for her use". And, "she has the key to that safe". On the date in question, the safe was stored on the floor of his bedroom closet. When pushed further about its' exact location in the walk-in closet, he said it was on the "right half" side of the wall upon entering the walk-in closet, which is the corner furthest from the door of the bedroom. The implication of this evidence is that somebody standing at the threshold of the bedroom may not be able to see a safe in the closet. Mr. Rana added that his wife had the key to the safe. Crown counsel, Mr. Black challenged him on this issue producing this evidence:

Q. Only your wife had access to the safe?

A. Yes.

Q. And only your wife had been the one using the safe for a number of years?

A. Yes.

Q. I take it, there was only one key for the safe you're aware of?

A. Yes.

Q. And you didn't have possession of that key?

A. No.

Q. Your wife had possession of the key?

A. Yes.

[57] Mr. Rana's Intent and Admissions

Mr. Rana testified it was never his intention to use the firearm to threaten Mr. Quereshi. Further, the firearm could not be used as it had no ammunition and there was ammunition in the residence. With respect to the 9-1-1 calls, Mr. Rana acknowledged in hindsight, his choice of language to the 9-1-1 operators was careless because he was frustrated the police didn't attend at his residence immediately. He admitted Mr. Quereshi was at most a trespasser, and he was prepared to "mislead" the 9-1-1 dispatcher in leaving a false impression about the circumstances of the urgency to "gain an advantage" in having the police attend more quickly. Mr. Rana said it was the first time he called 9-1-1. I note, parenthetically, Mr. Rana was never charged with an allegation of public mischief. It is arguable whether sufficient grounds existed for this offence based on his careless use words which would have the effect of inciting an emergency involving a handgun – and possibly threatening to use it in self-defence which has a specific legal meaning. Mr. Rana added he was clear with the 9-1-1 operator he would not use the firearm. In his testimony before the court, but not to the 9-1-1 operator, he added: "She [his spouse] has access to it and she would never give it to me".

[58] Control Over Firearm

With respect to control over the firearm, the pertinent evidence was as follows:

Q. So, during those, that period of time, that extended period of time you wife as far as you were aware, knew that apparently the gun was in the safe? As far as you were aware, your wife knew that the gun was in the safe?

A. Correct.

Q. And she had access to it and control over the safe, right?

A. Correct.

Q. You didn't have control over the safe, right?

A. I can't have control to open the safe.

Q. Right.

A. But the safe was there.

Q. And in fact, when you wanted the handgun for yourself, you weren't able to get it were you?

A. When I wanted the handgun, no.

Q. Sir, you're the only one in the household to possess a firearm, right?

A. Yes.

After establishing that Mr. Rana knew the inherent dangers of firearms, including a 9mm handgun, Mr. Rana acknowledged he knew it was important to prevent handguns from being handled from people who are not trained to handle firearms. He admitted he knew he was "clearly responsible" for the handgun that was in his home.

[59] Removal of Firearm from Safe

Mr. Rana explained he went upstairs to his bedroom to call 9-1-1. While on the call, he saw his wife go into the closet with the locked safe. Mr. Rana confirmed it had "probably been a couple of years" since he last saw the firearm and knew it would be in the locked safe. Mr. Rana was challenged on whether he knew his wife had removed the firearm from the closet. He stated:

I asked my wife for the, for the gun. She said "No." I asked her again. She was, she was not willing to remove the handgun from the safe. Then I, then I asked her again and she relented, removed the handgun from the safe and removed it from the box. I asked for the handgun, she said "No". And then at that time, she had it with her and she left the bedroom and I was upstairs.

I called 911. I asked her for the gun, she refused. I asked again, she refused. She finally, the kids were alone downstairs, and she opened the safe, removed the gun, left the box in the closet and took the gun with her and said to me that I, you know, the police are coming, you don't need it. So, she just had the gun and took it.

Mr. Rana testified he saw his spouse put the firearm under her "chador", which is an Urdu word for a traditional shawl worn by a woman to cover her entire body and walk out of the room. He knew she went downstairs even though he was distracted and still on the line with 9-1-1. He told his spouse: "Make sure you put it back in the safe".

[60] Mr. Rana's Actions After Calling 911

After calling 9-1-1, and knowing his firearm was no longer in the locked safe, he went downstairs and directly went outside and waited on the porch to avoid any conflict with Mr. Quereshi. He did not take possession of the firearm which was still in the possession of his spouse because he knew she couldn't have returned it to the safe as she remained in the kitchen with the children. He saw a number of police cruisers situated 50 feet away. Mr. Rana tendered a number of photographs depicting their position as Exhibit 8. He waved them down and did so to assuage any concerns that he may be in possession of firearm. He testified PC Pallister asked him about the firearm and he told him he didn't have it on his person. Mr. Rana acknowledged he wasn't forthcoming about the firearm because the basis of his 9-1-1 call was to remove Mr. Quereshi from his home and he wanted the police to remove him, but they seemed to be fixed on the firearm. While he spoke with other officers as well, nobody searched him for a firearm.

[61] Police Questioning About Firearm

PC Pallister was first to enter his residence with the other two officers following behind. Both PC Birmingham and A/Sgt. Clauson began to immediately ask him "where is the gun". He repeated he didn't have one. Mr. Rana testified PC Birmingham said: "you said you had a gun in the 911 call". A/Sgt. Clauson went outside and returned and told him he was on a 911 call and said you had a 9mm Beretta and said you would use it. Mr. Rana testified he felt "harangued" by PC Birmingham about the location of the firearm. When he refused to reveal the location, he testified PC Birmingham told him he would charge him with public mischief for calling 9-1-1 and saying he had a gun that he was threatening to use it. Again, he was never charged with public mischief. Mr. Rana said this was uttered to him with his children present and he felt humiliated as he was a registered firearm owner.

[62] Search for Firearm Upstairs

Mr. Rana testified he admitted he had a firearm and kept it upstairs, however, he felt pressured to divulge its whereabouts. When asked where, he responded the bedroom. Unlike the police account, he did not say it was in a box. He was worried he would be charged if he didn't respond to the police questions. He went upstairs with A/Sgt. Clauson into his bedroom. PC Birmingham remained downstairs and came up afterwards. A/Sgt. Clauson stood at the threshold of the closet as Mr. Rana began to look for the firearm in the closet. He could not find the firearm and called for assistance from his spouse and Mrs. Rana came upstairs with PC Birmingham. In cross-examination, he was challenged on this evidence resulting in the following exchange:

Q. If you don't have access to the safe though, how could you look for it?

A. I told my wife to put it back in the safe.

Q. So, did you look in the safe when you went up to the closet?

A. No.

Q. So, you had no idea where the firearm was, right?

A. Yes, at that point in time, I did not know where the firearm was.

[63] Handover of Firearm

Mr. Rana testified his spouse located the firearm in the closet and handed him the gun box which was heavy. Based on the weight alone, he knew the gun was in the box. Before giving it to him, he tried to open it to make sure it was inside. A/Sgt. Clauson "forbade" him not to open it. He handed the gun box to A/Sgt. Clauson and his spouse left the bedroom. A/Sgt. Clauson opened the box and pulled the firearm out, ejecting the magazine. It had no ammunition. He accompanied A/Sgt. Clauson and PC Birmingham downstairs. He believed PC Birmingham tried to embarrass him by placing the firearm on the console in plain view of Mr. Quereshi, who was still in the residence. PC Birmingham told him he would be charged with criminal offences as the firearm was unsafely stored, the box was not locked, and the firearm did not have a trigger lock. Mr. Quereshi was ultimately told he could leave and left.

(ii) Mr. Rana's Detention and Arrest

[64] Detention

Mr. Rana testified after the gun box was taken downstairs and "displayed" for everyone to see, PC Birmingham told him he would be charged with unsafe storage of a firearm, but he wasn't formally arrested or charged at this point. Instead, the police asked him for his firearm registration certificate which he produced, and A/Sgt. Clauson took both the firearm and the certificate outside and told him to "standby". In my view, any reasonable person standing in the shoes of Mr. Rana at this point, objectively, would feel detained. This arguably amounted to a detention for purposes of the Charter because he was told to "standby" which means he was not free to move around or leave the house. Even if the police meant for him to wait, the waiting was in relation to confirming the grounds they had just acquired to suspect a criminal offence not something else. As I will explain later in these reasons, I am satisfied Mr. Rana was detained at this juncture and not earlier, as he was clearly suspected of committing a criminal offence. The police were asking him questions (about his registration certificate) related to the reasons for the detention: R. v. McSweeney, 2020 ONCA 2, at paras. 42-44. This triggered a police duty to provide him with his rights to counsel "without delay" or immediately, upon being detained: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42. There was no evidence lead as to this occurring. A/Sgt Clauson confirmed PC Birmingham issued Mr. Rana an appearance notice which might have been a function of him being arrested in his home but it doesn't erase the obligation to provide timely rights to counsel.

[65] Prior Consistent Statements

Mr. Rana testified during his examination-in-chief, upon learning he would be charged with an unlawful storage offence, A/Sgt Clauson told him the gun box didn't have a lock. As a result, he testified in a manner which might suggest he made some out of court utterances upon being confronted with this allegation which would otherwise be inadmissible as prior consistent statements. This did not invite an objection from the Crown, and I have carefully reviewed this evidence and have determined that the utterances were not actually uttered to the police at the time but rather constituted his trial testimony as to what was in his mind. Either way, in R. v. Edgar, 2010 ONCA 529, the Court of Appeal observed that an admissibility inquiry for this kind of evidence must consider three factors: (i) the accused must testify, (ii) the statement must be made when the accused was arrested or when first accused of committing a crime and (iii) the statement must be spontaneous. Here, there were no utterances per se, but I will assess the evidentiary impact, if any, of his reaction to the charges below.

[66] Collateral Damage

Finally, Mr. Rana added "in the interests of full disclosure", he wanted the court to know that the criminal charges resulted in significant collateral damage, thus he commenced civil proceedings against the DRPS, and they remain outstanding. He also mentioned his charges in the SCJ as he is now on the police's radar. In cross-examination, he confirmed the civil proceedings are not in relation to the specific officers in this case but "some of the material" (from this case) is mentioned in the civil proceedings. Again, the charge in SCJ plays no role in my determination of the issues.

(iii) Evidence of Khudeja Rana

[67] Mrs. Rana's Testimony

Mrs. Rana was called by Mr. Rana and testified with the assistance of an Urdu interpreter. She was examined in-chief by Mr. Rana and cross-examined by Mr. Black who explored the possibility of bias in that her husband told her what to say. On several occasions, she denied "being coached" by her husband.

[68] Firearm Storage

Mrs. Rana confirmed the evidence of her husband that he is a registered firearm owner who possessed the 9mm handgun which had been purchased in 1990 and stored in her jewelry safe which remained locked. The safe was with them in Ottawa and brought to Oshawa when the moved. It was stored in the master bedroom closet, which has a walk-in closet. Mr. Rana had never asked for the firearm and to her knowledge, their kids didn't even know he had a firearm.

[69] Events of October 15, 2018

On the night in question, Mr. Quereshi, who is a family friend, attended at their house as an unwanted guest. Mr. Rana immediately called 911 to have him removed and asked her for the firearm. She refused. Mr. Rana asked her to open the safe, and she refused again. She refused both requests because she feared the firearm might be used to scare Mr. Quereshi and she wanted to avoid conflict. Without telling her husband, she removed the firearm from the locked safe and removed it from the gun case and hid the firearm under a shawl knowing that the police had been contacted and were on their way. She told Mr. Rana she had the firearm on her and went downstairs.

[70] Police Arrival

Prior to the police attending, Mr. Rana told her to "put the gun back into the safe immediately". She was in the living room with her children, focused on Mr. Quereshi and refused because to return it she didn't want to leave him alone with her children as Mr. Rana was waiting outside. When the police arrived, one police officer entered the residence and searched Mr. Quereshi. The other two officers followed Mr. Rana upstairs to the bedroom. She said one officer began to shout: "where is the gun, called 911". He became furious, insisting that if Mr. Rana didn't turn over the gun, he would be arrested.

[71] Handover of Firearm

Mrs. Rana said she still had possession of the firearm but didn't say anything as she became scared. She did not volunteer she had the firearm because nobody asked her, and her children were in ear shot. Mr. Rana proceeded to go upstairs with a police officer and yelled down at her asking where is the gun? She went into the bedroom and without anybody seeing, removed the firearm from her shawl and deposited it into the box which was on top of the safe. She handed over the gun box to Mr. Rana. She confirmed Mr. Rana was not in the closet with her. Finally, she saw Mr. Rana holding the gun and attempting to open the gun box but a police officer said, "no let me open it". The officer took the firearm and the box from Mr. Rana.

[72] Cross-Examination

In cross-examination, Mrs. Rana was challenged by Mr. Black as to whether she reviewed any material with Mr. Rana in preparation of her testimony. She adamantly said "No" explaining she can't read English and only speaks English "a bit". Further, she was aware of the courts' order not to discuss the evidence and abided by it. She repeated there was no need to discuss the evidence because she was present for the events and saw what happened.

[73] Safe Details

Mrs. Rana confirmed she was not a licensed firearm owner at the time of the incident. She was aware that Mr. Rana was a licensed owner and stored the firearm in a safe which she described as a black box that opens with a key. She said it was stored in the closet "in the middle [of the closet] but behind things". She was the only person who had access to it because it only contained her jewelry and the gun. She added that it was stored in the master bedroom, which at the time was being used by Mr. Rana as she was sleeping with her kids in a different room. That said, her items were still in the master bedroom, including her clothes and jewelry.

[74] Removal of Firearm

Mrs. Rana was firm in her position that prior to police arriving at her home, Mr. Rana asked her for the gun, and she said no. This resulted in an argument and she went into the closet, unlocked the safe and took the gun with her and hid it under her shawl because the police were on their way. She left the gun box on top of the safe and went downstairs into the kitchen to be with her kids as Mr. Quereshi was still in the house and Mr. Rana was outside. She said Mr. Rana knew she had the gun because he was on the phone with the police. She was worried about Mr. Rana having a firearm in his hand when the police arrived. Mr. Black asked her as the keeper of the key to the safe, why didn't she just leave the gun in the safe and hold on to the key. She stated: "it all happened very fast, if he [Mr. Rana] finds the key, he could take gun out of the safe and he would be in trouble". She added she was scared and confused and worried about what might happen between her husband and Mr. Quereshi. When pushed on what Mr. Black suggested was an illogical explanation, she added: "You might be right, but at that time, I kept it with me".

[75] Final Account

Finally, she said when the police arrived, they kept asking her husband about the gun. She didn't speak up because nobody asked her about the gun. And she began to worry about having the gun on her. When her husband called for her, she went upstairs into the bedroom and without anybody seeing, removed the gun from her shawl and placed it in the gun box which was still on top of the safe. She handed the gun box with the gun to Mr. Rana, not a police officer.

D. FINDINGS AND ANALYSIS

[76] Overview of Analysis

I now turn to my findings of fact and analysis of the legal issues commencing with Mr. Rana's argument that the information charging him with the two offences is a nullity depriving the court of any jurisdiction to try the offences. This jurisdictional argument was raised mid-trial as part of the package of mid-trial applications, and not prior to commencing the trial. It was not revived after the Crown closed its case on a directed verdict application. Instead, it was left for determination at the end of the trial given that Mr. Rana also relied on the argument as part of his s.7 claim, namely the Crown decision to add the s.86(2) offence amounted to an abuse of process. I propose to address these issues together as the evidence overlaps.

Issue 1: Validity of the Information & s.7 Charter Claim

[77] Mr. Rana's Argument

Mr. Rana argued the information sworn by a peace officer, T. Papparella, charging him with the two offences before the court should be quashed because it contained a "latent defect" as PC Papparella did not have reasonable grounds to believe an offence had been committed which is a precondition to swearing an information. Specifically, PC Papparella had no grounds to believe there was a restricted firearm in his residence which was unlawfully stored.

[78] Crown's Position

Mr. Black's position is the information does not suffer from a latent defect and there is nothing legally improper with the Crown proceeding on a new offence arising from the same evidence as Mr. Rana was not prejudiced. The Crown invites the court to dismiss the argument.

[79] Court's Ruling

In my view, Mr. Rana's argument about the information being defective has no merit. As articulated in my reasons on March 13, 2020, the golden rule of a charging document is to give a defendant adequate notice of the charge against him or her: R. v. Cote, [1977] S.C.J. No. 37. Mr. Rana clearly had notice of all the charges against him. The information had been particularized by the police alleging two discrete offences of carelessly storing a firearm and contravening a regulation under the Firearms Act in respect of storage of firearms. The effect of particularizing the information was to put Mr. Rana on notice of the specific charges which are related to storage of the firearm, not something else such as carrying or using the firearm.

[80] Informant's Knowledge

Mr. Rana's complaint that Officer Papparella didn't have the requisite grounds to swear the information because the officer relied on the hearsay evidence of PC Birmingham is also without merit. This complaint fails because an informant does not need personal knowledge of all or even some of the facts in support of a criminal allegation to swear an information which is required to commence a criminal proceeding. Officer Papparella was entitled, as a matter of law, to rely on the grounds furnished by PC Birmingham to swear the information. The Officer did not have to personally investigate the merits of the information. See for example, R. v. Sharma [2019] O.J. No. 481 (O.C.J.). Mr. Rana's complaint is really with the grounds that PC Birmingham acquired, not those he conveyed to Officer Papparella, who acted on them. In this respect, the information was not invalid on its face or suffering from a latent defect.

[81] Crown's Decision to Proceed on s.86(2)

Mr. Rana's second complaint with respect to the conduct of the Crown Attorney's office in proceeding on a second charge under s.86(2) when the police only laid an offence under s.86(1) is also without merit. Crown counsel, as quasi-ministers of Justice, work independently of the police and enjoy the constitutional freedom to make decisions free of partisan concerns. An important role for Crown counsel is to make independent decisions about whether to proceed with a prosecution once the police have presented the evidence to them. Crown counsel conduct this role by assessing if there is a reasonable prospect of conviction and whether it's in the public interest to proceed with a prosecution: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] S.C.J. No. 45, [2002] 3 S.C.R. 372. Crown counsel are not immune from oversight and regulation. Decisions made by Crown counsel can be reviewed by courts. In Krieger, supra, the Supreme Court of Canada distinguished between two types of discretion exercised by the Crown in criminal cases: "prosecutorial discretion", which is owed great deference, and the ordinary discretion exercised by counsel in matters of "tactics or conduct before the court", which may not be owed deference.

[82] Prosecutorial Discretion

The Supreme Court held that the "core elements" of this [prosecutorial] discretion "involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for: Krieger, supra at para, 47. Mr. Rana's complaint with respect to the decision to proceed with a prosecution under s.86(2) and s.86(1) is in my view, a discretionary decision which is owed deference unless it can be shown it was abusive. There is no evidence that the decision to pursue the s.86(2) offence, which is largely regulatory in scope, and arguably carrying less stigma than the s.86(1) offence was abusive. It rested on the same evidence. There is no evidence it was motivated by dishonesty or bad faith. There is not a scintilla of evidence that the decision amounts to abusive conduct. It was entirely proper and done early in the proceedings and did not prejudice Mr. Rana's fair trial interests.

[83] Conclusion on Information

For the above reasons, the information is valid and there is no basis to quash it. Further, I do not find the conduct of Crown counsel proceeding on the s.86(2) offence amounts to an abuse of process. This s.7 complaint is dismissed.

Issues 2, 3, 4: Sections 8, 9 of the Charter

A. Overview

[84] Charter Complaints

Mr. Rana advances two arguments under s.8 of the Charter. The first complaint involves the police entering and searching his home without a search warrant leading to the seizure of the firearm. The second involves the failure of the police to file a timely Report authorizing lawful detention of the firearm. A corollary of the first s.8 argument is a complaint he was arbitrarily detained in his home in violation of s.9 of the Charter. A third and related complaint to the Report issue is a separate complaint under s.7 based on the police filing a new Report during his trial which he says amounts to an abuse of process. I will address issues 2, 3 and 4 together as the evidence overlaps.

B. The Legal Principles

[85] Section 8 of the Charter

Section 8 of the Charter guarantees the right of every person to be secure against unreasonable search or seizure. It serves to protect the privacy of individuals from the intrusive conduct of the state. Section 8 is engaged when agents of the state intrude upon a reasonable expectation of privacy: R. v. Evans, [1996] 1 S.C.R. 8, at para. 11. The right to privacy protected by s.8 of the Charter is connected to the underlying values of dignity, integrity and autonomy: R. v. Plant, [1993] 3 S.C.R. 281 at p.292 and R. v. Davidson, 2017 ONCA 257 at para. 20. The Supreme Court has repeatedly held that people have a strong expectation of privacy in their dwellings which includes the ability to exclude people from and deny entry to their dwelling: R. v. Feeney, [1997] 2 S.C.R. 13.

[86] Collins Test

It is common ground that the police did not have a search warrant to enter or search Mr. Rana's residence. In the absence of a warrant, it falls to the Crown to justify the search. In order for a warrantless search to be constitutional, the Crown must meet their burden on a balance of probabilities in proving (i) the search was authorized by law, (ii) the law must be reasonable, (iii) the search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265. The parties did not make submissions on the second prong of this test and instead focused on the first and third requirements. I will address them all.

(i) Was the Warrantless Search Authorized by Law?

[87] Common Law Powers and Emergency Response

The Crown defends the warrantless search of Mr. Rana's residence by arguing the police were permitted to make a warrantless entry into his home based on their common law powers which exist when responding to emergency 9-1-1 calls. Further, the safety search that followed was an extension of this permitted entry: R. v. Godoy (1999), 131 CCC (3d) 129 (SCC). R. v. Waterfield (1963), [1964] 1 Q.B. 164 (Eng. C.A.); R. v. Dedman, [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 25; R. v. MacDonald, 2014 SCC 3, [2014] S.C.R. 37. These principles are well settled but can sometimes be challenging in their application. A recent decision from the Ontario Court of Appeal provides a succinct two-step framework. In R. v. Stairs 2020 ONCA 678, Fairburn J.A. held at paragraph 14:

The first step involves considering whether the police were operating within the scope of a duty imposed by statute or by the common law. If so, the second step involves considering whether the actions taken in fulfillment of that duty constitute a justifiable use of power: Godoy, at para. 12; Mann, at paras. 24-25. In other words, the question is whether the exercise of power was reasonably necessary in the circumstances.

[88] Application to This Case

In this case, I agree with the Crown that that the police were justified in entering Mr. Rana's residence because they were acting within their common law duties to respond to emergency 9-1-1 calls and there were exigent circumstances in doing so. There is no controversy that 9-1-1 calls were placed about an intruder and information intimated to the dispatcher involved the caller stating he was a registered gun owner who may use his firearm in self-defence as he gets violent. The clear implication of this is that the caller would use the firearm, possibly as a lethal weapon. That's important context for the police action in this case. Even though Mr. Rana clarified his intention of not using the weapon, the police would have been negligent in not treating this as an emergency or with exigency. Fairburn J.A. held as follows in Stairs, at para. 15:

"[To] a large extent, the common law duties of the police rest in sync with their statutory duties. For instance, at common law, the police have a duty to preserve the peace, prevent crime, and protect life and property: Dedman, at p. 32. Similarly, s. 42(1)(c) of the Police Services Act, R.S.O. 1990, c. P.15, requires that the police keep the peace, prevent crime, assist with crime prevention, apprehend criminals and other offenders, and assist victims of crime".

I accept the evidence of the police officers who all testified they were responding to a 9-1-1 call armed with information the caller was ready to use a firearm as a lethal weapon. They were squarely within their common law duties to preserve the peace, prevent crime and to protect life. If Mr. Rana had just placed a 9-1-1 call asking for help to remove a trespasser without reference to possibly using a firearm, I seriously doubt the police would have had any lawful authority to enter his residence. As the cases make it clear, a person has a very high expectation of privacy in their own home. The scope of the police's implied invitation would have ended at the doorway absent them being let in Mr. Rana, if the 9-1-1 call was only a trespass call. Here, they were called by Mr. Rana and invited into the home in response to a true emergency flowing from the 9-1-1 call: Godoy, supra. The first step in the analysis is easily met.

[89] Second Step Analysis

The more vexing question is the second step involving the actions taken by the police in response to the 9-1-1 call and whether it was a justifiable use of the police power. After entering the Rana residence, the police pursued a search of the firearm within the residence. The Crown defends this action based on two planks, arguing that either would be sufficient. First, the search was justified as an exigent circumstance and second, it was justified for safety purposes because of the nature of the 9-1-1 call. Mr. Rana says there was no longer an exigency once the trespass aspect of the 9-1-1 call had been extinguished and the search was not done for safety purposes. Instead, he says the search was unlawful because (i) he was investigatively detained in his home without reasonable suspicion, (ii) there were no grounds to suspect any safety concerns because as he was a registered firearm owner and (iii) there were no reasonable and probable grounds to arrest him for a criminal offence which would have provided the police a lawful avenue to search him and his immediate surroundings incident to an arrest.

[90] Consent and Coercion

Mr. Rana further argues that on the third prong of the Collins analysis, the Crown has not met their burden of proving the search was conducted reasonably because he never consented to being searched and any purported consent was secured through coercion because he was threatened with a mischief charge if he didn't participate. The Crown says the manner of search was reasonable because the police were lawfully in the residence, Mr. Rana was not detained until his arrest and there existed lawful grounds for the search. Further, Mr. Rana simply assisted with the search on his own accord.

[91] Feeney Warrant Issue

Mr. Rana's related complaint on the s.8 issue is that the police arrested him in his home without a warrant which is contrary to the Supreme Court's decision in Feeney. The Crown says a Feeney warrant was unnecessary in the circumstances and did not amount to a separate s.8 Charter violation.

[92] Detention Analysis

In assessing the second step of the analysis, a number of questions must be resolved including whether Mr. Rana was detained within the meaning of the Charter and if so, when. Mr. Rana's legal status as a detained party may impact the analysis about the permitted scope of police powers. I turn to this issue next.

(i.a) Was Mr. Rana Detained in His Home Within the Meaning of s.9 of the Charter?

[93] Detention Analysis

Mr. Rana says he was detained in his home when the police entered the residence and began to search for the firearm. If he is right, this would have meant the police were required by law to provide him his rights to counsel and caution him that anything he said or did could have an incriminating effect. I disagree Mr. Rana was under investigative detention when he first encountered the police and conclude that his detention crystalized when he was told by PC Birmingham that he would be charged with a criminal offence of unlawful storage and to "standby", ostensibly so police could investigate the circumstances of his registration. Therefore, while he was detained in his home, it much later during the police encounter.

[94] Legal Framework for Detention

In R. v. Grant, 2009 SCC 32, at paras. 30-31, the Supreme Court held a psychological detention by the police can arise in two ways: 1) where an individual is legally required to comply with a direction or a demand by the police or 2) where there is no legal requirement but a reasonable person would feel obligated to comply. In assessing when a detention has crystalized, it is important to keep in mind not every interaction between the police and a person will amount to a detention. Rather a detention requires "significant physical or psychological restraint": Grant, supra at para. 27; Suberu, supra at para. 23 and Mann, supra at para. 19. In R. v. Le, 2019 SCC 27, 2019 SCC, at para. 27, the Supreme Court held that even when a person under investigation for criminal activity is questioned, that person is not necessarily detained.

[95] Objective Test for Detention

A detention must be measured objectively, not purely from a subjective point of view. The question is would a reasonable person in the place of Mr. Rana (who placed calls to 9-1-1) feel that they had to comply with the police? In Grant, supra at para. 44, the Supreme Court adopted three non-exhaustive factors to consider when determining if a detention has occurred: 1) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual, 2) the nature of the police conduct and 3) the particular characteristics of the individual, where relevant. In my view, the three factors militate towards finding that Mr. Rana was detained only when the police determined they would charge him with a criminal offence. It did not crystalize before. I say this for the following reasons.

[96] Circumstances of Encounter

First, the police attended at Mr. Rana's residence not because they had determined he had committed a criminal offence but rather to investigate a 9-1-1 call where the caller said he would use a lethal weapon in self-defence. Even though this was tempered by subsequent calls, it was the driving force behind the call with a trespass concern as ancillary to the primary purpose of fending off a gun fight. The police were trying to prevent a possible crime before it happened. Safety was foremost in their mind. Mr. Rana was not an accused or even a suspect during the initial police contact.

[97] Nature of Police Conduct

Second, I find that the police politely asked Mr. Rana about the whereabouts of a firearm in a general way because they had no idea if and who was armed. Their actions in searching Mr. Quereshi are evidence of this. Mr. Rana was not targeted or accused of being in unlawful possession of the firearm. Further, I find PC Birmingham probably did say to Mr. Rana he would charge him for mischief if he didn't assist with the investigation of the firearm. However, I don't accept this materially impacted Mr. Rana's decision to offer to search for the firearm because as the evidence establishes, he didn't believe he was doing anything wrong with respect to its storage. It was Mr. Rana who led the charge with A/Sgt. Clauson behind him who was not in front of him or directing him to a specific room. The other officers stayed downstairs and did not use "loud stern voices, curt commands and clear orders about required conduct": Le, supra. While a detention can arise even without this conduct, the evidence establishes Mr. Rana never exhibited conduct to suggest he felt detained. Nor is there evidence of him asking the officers to leave his residence.

[98] Particular Characteristics

Third, Mr. Rana is an intelligent man cognizant of his rights. The police did not take advantage of a vulnerable man. On his own admission, he used careless language on a 9-1-1 call which fueled a chaotic scene when he said he would use a lethal weapon in self-defence. He was quick to prove to the police he was not breaking the law and enlisted the help of his spouse in this regard. I do not accept Mr. Rana was under investigative detention when the police first saw the unlocked gun box because there were still no objective grounds to dispel the information of him being a registered gun owner. The detention, in my view, only crystalized moments later after the police inspected the gun box and PC Birmingham communicated to him he would be charged with an offence and to standby so they could investigate the circumstances of the registration. At this point, Mr. Rana's status changed from a member of the public to a suspected party. While this issue wasn't fully argued by the parties, where there are objective facts that give rise to a detention, the onus shifts to the Crown to prove the detention wasn't arbitrary. It does not matter that Mr. Rana was detained in his own home because a detention can arise in one's home: McSweeney, supra at paras. 38, 39, 55. Prior to the police command to "standby", Mr. Rana was able to move around freely in his home and ask his wife for help in searching for the gun. It is arguable whether he could have left his house after the police took his registration certificate. Accordingly, I find Mr. Rana was detained when he was told to standby and him waiting for the police to confirm their suspicion without any Charter rights was arbitrary. However, this period was very brief and did not also include Mr. Rana's complaint of being arbitrarily detained from the inception. No evidence was acquired during this period of detention. Mr. Rana didn't say anything nor was he asked questions about the firearm. There was at most, a notional violation of s.9 and 10(b).

(i. b.) Was the Search Justified by Exigent Circumstances?

[100] Exigent Circumstances Analysis

The Crown says in addition to the common law powers in response to a 9-1-1 call, the police were authorized to enter the Rana residence because of exigent circumstances. Mr. Rana says there was no exigency. Section 487.11 of the Criminal Code was enacted in 1997 as a response to the Supreme Court's judgment in R. v. Silveira, [1995] 2 S.C.R. 297, where Cory J. found that the police had violated the appellant's s.8 rights by entering his apartment to clear it and freeze it while waiting for a pending search warrant. Section 487.11 provides that an officer can search a residence without a warrant if the conditions for the warrant exist, but by reason of exigent circumstances it would be impracticable to obtain a warrant. While s.487.11 does not define exigent circumstances, useful guidance can be gleaned from s.529.3, which sets out two situations that amount to exigent circumstances. First, where an officer has reasonable grounds to suspect that entry into a residence is necessary to prevent imminent bodily harm or death to any person. Second, where the officer has reasonable grounds to believe that evidence relating to an indictable offence is present in the residence and that entry into the residence is necessary to prevent the imminent loss or destruction of evidence.

[101] Application to This Case

Here, I am satisfied there was a bona fide exigent circumstance which permitted the police to enter the residence to prevent imminent bodily harm or death to a person. A/Sgt Clauson testified there remained exigent circumstances after entry because as he put it, he didn't know who had access to the firearm. This is measured against the 9-1-1 call where the caller said he "gets violent" and may use it "in self-defence" which can reasonably mean discharging it, possibly causing death or imminent bodily harm. There was no way for the police to know for sure it could not cause death or bodily harm because there was no ammunition in the firearm. While Mr. Rana said he wouldn't use it, the police were entitled to assume the worst and hope for the best. Their belief of exigency was perfectly reasonable. Just because they were satisfied the trespasser didn't have a firearm doesn't mean the urgency had vanished. It didn't because of what Mr. Rana told the 9-1-1 operator. Had he not uttered those words, there may not have been an urgency. This is not a case where the police action caused the exigent circumstances which are later used to justify resorting to the doctrine: R. v. Phoummasak, 2016 ONCA 46, at para. 15. The police did not set out to create exigent circumstances. They responded to an alarming 9-1-1 call with multiple scout cars. The situation was urgent. In my view, the police were justified in entering the residence because of exigent circumstances.

(i. c) Was the Search Also Justified Pursuant to the Common Law?

[102] Safety Search Doctrine

Mr. Black also justified the police decision to conduct a safety search within the residence as an adjunct to their common law powers to respond to an emergency 9-1-1 call. Mr. Rana argues that after the police had tended to the 9-1-1 call after entering his home, the principles in Godoy limit the police to the origin of the 9-1-1 call and once that had dissipated, they were no longer authorized to remain in his home and search based on "safety" reasons. I disagree.

[103] Scope of Safety Search

The Supreme Court has recognized that police officers who are responding to 9-1-1 calls, may conduct warrantless searches of premises for safety purposes: R. v. MacDonald, 2014 SCC 3. The evidence must reveal a reasonable basis for this belief. MacDonald was a case that discussed the scope of safety searches in the context of a person who is investigatively detained. In this case, Mr. Rana was not under investigative detention when the police entered, thus his full panoply of Charter rights were not triggered. The detention arose later. Whether or not an unauthorized search is justifiable in the exercise of the duty to protect the public is generally fact-driven and depends on the circumstances of the individual case": R. v. Jones, 2013 BCCA 345, 298 C.C.C. (3d) 343 at para. 27. The standard is objective, and the evidence must reveal a reasonable basis for a police officer's subjective belief that public safety concerns necessitated a search: Jones, supra at para. 27.

[104] Reasonable Basis for Safety Search

In this case, I am satisfied that the police honestly believed when entering the Rana residence that subjective grounds existed which were supported by objective facts that necessitated a search for safety reasons. The police were consistent in their account that they entered the residence because Mr. Rana called 9-1-1. As PC Birmingham responded to Mr. Rana: "I didn't go into your house under the Firearms Act, I went into your house because you called 911". In summary, there were ample grounds which included the confluence of the following factors (i) Mr. Rana's frantic and repeated 9-1-1 calls suggesting he may use a firearm as a lethal weapon in self-defence, (ii) information that he was a firearm owner suggesting it was not a fictitious threat, (iii) information that he gets violent, thus a motive to use the firearm and (iv) the presence of a third party in the home when they arrived, suggesting the 9-1-1 calls actually bore fruit. In other words, they had an objective basis to believe that not only would Mr. Quereshi's safety be in peril if they didn't investigate the firearm, but things could have gotten worse after they left the residence. It would have amounted to police negligence if they simply left Mr. Rana with a handgun in his residence when he told the police he was ready to use it. His vacillating position on the 9-1-1 calls wasn't enough to negate any objective facts that suggested he would use the handgun in self-defence. Overall, the police reference to "safety concerns" was more about the exigency of exploring the firearm threat. Either way, the police had ample authority in law to search based on the unique information known to them.

(ii) Is the Law Reasonable?

[105] Reasonableness of the Law

The next prong of the Collins analysis is whether the Crown has proven that the law itself is reasonable. There wasn't any argument on this prong but in my view, this has also been proven. The legal principles permitting police entry into a home and conducting reasonable searches because of exigent circumstances are well settled. Indeed, as noted above, the principles were codified after Silveira in s.487.11. This provides the police with ample notice on the limits of their powers.

(iii) Was the Search Conducted Reasonably?

[106] Manner of Search

The final prong of the Collins test is whether the Crown has proven the police conducted the search reasonably. The Crown argues the police conduct when viewed as a whole, was reasonable. Mr. Rana complains it was unreasonable because he was coerced into searching for the firearm. In my view, this complaint is misplaced because it conflates the manner of the search with the lawfulness of the search. The Crown did not defend the lawfulness of the search by arguing Mr. Rana gave consent. Rather, it was defended based on exigent circumstances because the police reasonably believed there was a firearm in the home that could cause imminent bodily harm or injury given his 9-1-1 calls. In other words, even if Mr. Rana communicated no consent, the police still had lawful grounds to search the residence. They did not need his consent. I will therefore examine the consent issue under this lens as well as including Mr. Rana's next argument about whether the arrest that followed was unlawful because it was warrantless: Feeney, supra.

[107] Knowledge of Firearm Location

First, when the police first arrived at Mr. Rana's residence, they did not know he had a firearm on him because even Mr. Rana said his purpose in waving them down was to assuage any concerns he was armed. This belief continued when they did a quick pat-down search of Mr. Querehsi. I accept Mrs. Rana's evidence that she was hiding the firearm in her shawl but of course, this means the police could not have known she had the firearm without having to go upstairs when Mr. Rana decided to search for the firearm.

[108] Mr. Rana's Disclosure

Second, I find it was Mr. Rana who told the police the firearm was upstairs when the police asked him in a general way, where's the firearm. Again, he was not detained during this interaction and there was no legal compulsion. The question was in response to the frantic 9-1-1 calls indicating it would be used in self-defence.

[109] Threat of Mischief Charge

Third, I accept as well that PC Birmingham probably told him he would be charged with mischief for threatening to use a gun when he didn't have one, if he didn't divulge its whereabouts. While this wasn't the most gentle way of dealing with this issue, the police already had grounds to search for the firearm based on the calls. If Mr. Rana was unprepared to assist, it simply would have meant the police had the grounds to search for the firearm knowing it was in the house which would have required a police officer staying in his home to prevent him from using his firearm to cause the very mischief they were there to avoid, given his calls. This would have done more damage to his expectation of privacy in his home. In this way, while PC Birmingham's choice of words wasn't ideal, it didn't have the coercive effect that Mr. Rana complains of given the unique circumstances as they unfolded.

[110] Lawfulness of Arrest

In this way, I am satisfied that Mr. Rana's warrantless arrest was lawful and did not require a Feeney warrant. Feeney decided it is necessary to obtain judicial authorization to effect an arrest inside of a residence, resulting in the enactment of a statutory scheme to accommodate these entries: Criminal Code, ss. 529(1), 529.1. I disagree that a Feeney warrant was required in the unique circumstances of this case. I agree with the observation of Fairburn J.A. in Stairs, supra at para. 32 when she made the same point that I have made above regarding impracticality:

[32] In any event, as important as a Feeney warrant is for protecting the privacy of those inside of private dwellings when the police come to effect arrests, they authorize the police to "enter a dwelling-house described in the warrant for the purpose of arresting or apprehending" a person: Criminal Code, ss. 529(1), 529.1. The whole purpose of the Feeney warrant is to protect the elevated privacy interests in a home, requiring certain grounds to be met before entry can be made to effect an arrest. Yet, in this case, the police had already legitimately entered a dwelling-place under the ancillary powers doctrine. They were lawfully inside of the residence and it would make no sense to require them to leave to obtain an authorization to enter again, only to effect an arrest that they could clearly make without warrant if it was anywhere other than a private dwelling.

[111] Manner of Search - Continued

Fourth, despite PC Birmingham's choice of words, I find Mr. Rana was anxious to find the firearm himself without real police influence. The police did not enter his walk-in closet even though A/Sgt Clauson was told the firearm was in the closet. It would have been unsafe to simply allow Mr. Rana to retrieve a lethal firearm on his own while the police waited downstairs with his trespasser. And, I think it was safer for Mr. Rana to search in the closet with the police maintaining a safety position as opposed to rifling through a closet while Mr. Rana looked on. Further, it was Mr. Rana who called his spouse for help in finding the firearm. The police never made any demands, questions or other coercive measures to encourage him to solicit the help of others.

[112] Mr. Rana's Volition

Fifth, Mr. Rana acted largely on his own volition because as the facts reveal, in his mind, he didn't believe he was committing any criminal offences because his firearm was safely stored. In this way, he wasn't really compelled to incriminate himself.

[112] Scope of Search

Sixth, the police limited their actions to searching for a firearm and not something else. They didn't start rummaging around the home looking for other things. They didn't ransack the home. In R. v. Kelsy, the Court of Appeal upheld the constitutionality of a forced entry where the police believed armed male assailants might have taken a hostage, but the court held that the power to enter did not extend to a right to search the female occupant's backpack. Likewise, in Ahmed-Kadir, the British Columbia Court of Appeal considered a case where a police officer responded to a 911 call for a domestic disturbance and conducted a sweep of the apartment but also looked inside a shopping bag in a closet in a bedroom and found a handgun. The court held that the officer was not entitled to look in every closet in every room in order to protect officer safety. None of this occurred in this case. The police stayed within their lawful boundaries of the search which involved the firearm.

[113] Conclusion on Search

For the above reasons, I am satisfied the Crown has proven on a balance of probabilities that the search was reasonably conducted. As such, all three prongs of the Collins test have been proven and the warrantless search and seizure of the firearm was reasonable. Turning next to Mr. Rana's argument whether the police had lawful grounds for an arrest.

(iv) Did the Police Have Reasonable Grounds for an Arrest?

[114] Reasonable Grounds for Arrest

Section 495(1) (a) of the Criminal Code sets out the statutory basis upon which a warrantless arrest may be made. This was explained further by the Supreme Court in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51. As set out in Storrey, there is both a subjective and objective component to the test for a warrantless arrest on an indictable offence. The subjective component requires that the police hold an honest belief that the person committed the offence. In my view, there can be no controversy that A/Sgt. Clauson honestly believed he had reasonable grounds to arrest Mr. Rana for careless storage of the firearm because it was given to him in a gun box that was unlocked. The objective component requires that the officer's belief be objectively reasonable in the circumstances known to the officer at the time of the arrest: Storrey, at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21. At the time of the arrest, he was never aware of Mr. Rana's position at trial that it was stored in a locked safe. Nor was it incumbent on him as a matter of law to test this belief when he saw the circumstances of the search unfold before his very eyes. The most a firearm registration certificate would do is provide further information about whether he was in fact a registered owner but the grounds were still present for an arrest. An officer doesn't need grounds beyond a reasonable doubt to effect an arrest. There were ample grounds for a warrantless arrest. This argument also fails.

[115] Conclusion on Section 8 and 9

For the above reasons, I find there was no s.8 Charter violation on the basis of the police entering Mr. Rana's home and doing a safety search which lead to Mr. and Mrs. Rana searching for the firearm, which was then seized by the police once grounds existed it wasn't properly stored. There was no s.8 Charter violation and a notional violation of s.9 and s.10(b). I now turn to the Report issue.

C. The Report to Justice Issue

[116] Crown's Concession

The Crown admits there was a s.8 Charter violation on the basis of PC Birmingham's failure to file a timely Report, however, the Crown defends this error by arguing it was a technical violation and should not result in a Charter remedy. Mr. Rana says the error was more nefarious because it permitted the police to keep possession of his firearm without judicial authorization and lead to the firearm being forensically tested despite an admission on his part that it not be. Further, the error was compounded when the police filed a new Report during the trial based on evidence adduced during the trial. He says the conduct of the police and Crown in this fashion amounts to an abuse of process and warrants a remedy of staying the proceedings, but alternatively, an exclusion of the firearm under s.24(2).

[117] Examination of Charter Violations

I will first examine if there were any proven Charter violations before I turn to the issue of whether Mr. Rana had met to be awarded a Charter remedy. Given the Crown's proper admission of a Charter violation, I will first examine if the evidence remains admissible. While the Crown conceded the breach, there are some additional facts which warrant discussion for context and consideration on the Charter remedy issues.

[118] Statutory Framework

When the police make warrantless seizures or seizures pursuant to statute, s.489.1(1) of the Criminal Code provides that the police officer shall "as soon as practicable" seek detention of the seized item through judicial supervision. The failure to do so can amount to a violation of s.8 of the Charter because the owner of the seized item retains a post-seizure expectation of privacy over the item. These principles were discussed by the Ontario Court of Appeal in Garcia-Machado, supra where the court observed that s.489.1(1) of the Criminal Code is tied to the provisions in s.490 which allows property owners a "summary procedure" by which to seek return of their property which is no longer required to be detained by the state. Section 490 provides notice to the property owner to avoid cumbersome actions in civil court. Mr. Rana's complaint appears to be that he never received notice that his firearm would be forensically tested in which case he would have sought its return before it was tested, and this is tied to the police failure to file a Report which ostensibly would have given him notice of the police intention to retain his firearm. Some additional facts are necessary to evaluate this position.

[119] PC Birmingham's Report

PC Birmingham testified that as the lead investigator in this case, he was assigned the task of completing and filing a Report. Exhibit 3 is a Report to a Justice which is a two-page pre-printed form and filled out by PC Birmingham. He completed the form and dated it November 15, 2018. PC Birmingham stated that the police seized the firearm pursuant to the "common law". The details of the search were listed as follows:

"21-1087 Ormond Dr. City of Oshawa, master bedroom closet, a 9mm Beretta handgun was located, in plain view, improperly stored on the 15th day of October 2018 at 1745 hours, the homeowner turned the firearm over to the police"

PC Birmingham added the firearm was detained at DRPS property bureau. The Report contains a second page which was not made an Exhibit but instead attached to the Affidavit of Mr. Rana filed on the Charter applications which is therefore evidence for the court to consider. Page 2 of the form is titled Order of Disposition of Items Seized pursuant to s.490(1) of the Criminal Code. This page was also completed by PC Birmingham and sought an Order of Detention until the completion of the case. While PC Birmingham completed and signed the form, there is no evidence before me that it was placed before a Justice which means the detention of Mr. Rana's firearm was not judicially supervised.

[120] PC Birmingham's Testimony on Report

PC Birmingham testified he filled out the Report and inadvertently forgot to file it. In cross-examination by Mr. Rana he was asked about his choice of language on page 1 of the Form where he said the handgun was located in "plain view". He responded he was not involved in the search and "It was not in plain view to me until it was located". He did not seize the firearm and "it could very well be a typo". He denied committing perjury by saying it was discovered by him in plain view. In re-examination on this point, PC Birmingham acknowledged that the Report could be misconstrued by meaning that he himself conducted a "plain view" search which resulted in the firearm being seized. At the time, he believed the information intimated to him by A/Sgt. Clauson that the firearm was found "in plain view" was accurate and his use of the template was not careful. He was not involved in the search and never intended to mislead a Justice in this respect.

[121] DC Shahshani's Second Report

DC Shahshani was involved in a second Report which was filed during the trial proceedings. On February 21, 2020, he received a Report filled out by PC Rodriguez of the DRPS which he digitally signed as PC Rodriguez did not have clearance to sign the Report herself. On the same date, he forwarded it to the court, and it was approved by Justice of the Peace Renee Rerup. This Report became Exhibit 9. It is a three-page document and Mr. Rana's complaint is that it contains different grounds than those relied on by PC Birmingham because PC Rodriguez relied on the trial testimony about the circumstances of the search and seizure of the firearm, including no reference to the earlier passage, which Mr. Rana said was false, namely that PC Birmingham seized the firearm in "plain view". DC Shahshani testified he had no reason to doubt the grounds relied on by his colleague and simply filed the Report as a matter of expedience as his colleague didn't have clearance. Otherwise, he had no involvement in the matter.

[122] Timing of Report

The firearm was seized on the date of the alleged offence namely, October 15, 2018 and the first Report was filled out on November 15, 2018. Mr. Rana didn't argue that this delay was impracticable and thus a separate violation of s.8. In my view, thirty days is entirely reasonable, and I find no s.8 violation on this basis. However, I do agree with the Crown that the failure to file the Report at all did amount to a violation of s.8 because it amounted to non-compliance with s.490 of the Criminal Code as the firearm was detained without judicial supervision.

[123] Testing of Firearm

Mr. Rana asserted that the s.8 Charter violation was exacerbated by the testing of the firearm which was despite his admission during a JPT that it was a firearm. In my earlier ruling, I addressed this issue in the context of Mr. Rana's argument to withdraw his admission. I denied that request because I found the Crown never undertook not to test the firearm and there was nothing wrong with the police choosing to test the firearm. I also addressed Mr. Rana's argument under s.7 of the Charter that the testing of the firearm despite his admission amounted to an abuse of process because of police and/or Crown misconduct. I dismissed that complaint as well and will not repeat my reasons here. Suffice to say, the reason for doing so was related to its evidentiary value which was a valid reason for doing so. In doing so, however, I did permit Mr. Rana to call evidence on the testing of the firearm as part of meeting his onus on being awarded a Charter remedy under s.24(2) and or s.24(1).

[124] Evidence on Testing

As a result, Mr. Rana called two witnesses on this issue: PC Krizsan and DC MacLean, both of the DRPS. Pursuant to s.655 of the Criminal Code, the parties also agreed to admit the evidence of PC Henderson. He was involved in taking several photographs of the firearm and the gun box: Exhibit 7. The pertinent aspects of his evidence is that the firearm as depicted in the photographs has a yellow trigger lock which was not the case when it was seized. Indeed, a trigger lock could not be used as the gun box was designed to store the firearm without a trigger lock. It was placed on the firearm after it was seized.

[125] PC Krizsan's Evidence

PC Krizsan was the SOCO officer who was detailed by PC Birmingham to take photographs of the firearm and its case. He stated he took control of the firearm from PC Birmingham to "prove it safe" which he described as ensuring there is no ammunition in the firearm. Again, there as no ammunition in the box or the firearm. He handled the firearm before photographing it and said: "it looked very clean, there was no residue in the chamber". He went on to opine that despite not being a firearms officer, in his opinion it appeared it had never been used. It "just looked clean". In cross-examination he clarified his position as not knowing for sure but simply offered an opinion on its condition.

[126] DC MacLean's Evidence

Mr. Rana also called DC Bryce MacLean. He is employed as a forensic investigator with the DRPS. He was assigned the task of examining the firearm by DC Duxbury. He is not a firearms officer but has training through the Canadian Firearms Registry. On April 23, 2019, he began to examine the firearm. During a JPT held on January 28, 2019, Mr. Rana had "admitted" that the firearm met with the definition under s.2 of the Criminal Code. The timing of the testing is important because Mr. Rana says it supports his abuse of process argument. DC MacLean testified that the examination of the firearm was part of standard procedure in a firearms related case and was assigned to him as a matter of course. When asked if the Crown Attorney asked him to examine it, he responded: "[that's] not the standard procedure" and there was "no request from a Crown". He proceeded to examine the firearm in the usual course, for fingerprints and DNA as well its functionality which includes test firing. In doing so, he followed standard protocol of using chemicals such as cyanoacrylate which is not corrosive and will "stick" to the surface of the firearm to lift any prints. In the end, he said the chemicals did not impact the functionality of the firearm. On May 15, 2019, he performed three test fires by closing the slide on the firearm. He didn't pay too much attention to the position of the trigger after racking the slide. After conducting the ballistics test, he secured its original packaging and placed it on the property shelf in the police station. He confirmed that a Crown Attorney never told him not to test the firearm either. In cross-examination, he said he was never interested in damaging the integrity of the firearm and was not aware, through his training, that conducting test fires would cause long-term damage to the firearm. There is no specific evidence before me that there is damage of any variety to the firearm.

[127] Abuse of Process Argument

Mr. Rana argues that the testing of the firearm despite his admission amounts to an abuse of process and results in a s.7 Charter violation. I disagree. The doctrine of abuse of process makes it possible to punish any inappropriate use of the judicial process when the result is manifestly unfair to a party to the litigation which brings the administration of justice into disrepute: R. v. O'Connor, [1995] 4 S.C.R. 411. In my earlier reasons, I explained why the action (or inaction) of the Crown in preventing the firearm from being tested did not amount to a s.7 Charter violation. I also explained why this didn't amount to proof of Crown misconduct or the improper exercise of Crown discretion. I do not propose to repeat those reasons here. Nothing in the expanded record based on what I permitted Mr. Rana to advance after his failed applications change my reasons for doing so. With respect to the new complaint that the new Report was filed using trial evidence, this too doesn't prove on a balance of probabilities, alone or along with the rest of the reasons cited above, there was an abuse of process. I note that while Mr. Rana initially sought to have it released for inspection, he abandoned that request because it was never made an exhibit. Further, the record establishes he never sought to have it returned to him formally prior to learning about the Report issue, which might suggest that the judicial process was being used improperly to prevent him from doing so. The firearm was lawfully seized which is different from whether it was lawfully detained pending the outcome of the trial. There is a distinction to be drawn by its evidentiary value and its proprietary value. It is not my function to assess its proprietary value, but as a piece of evidence that the Crown must prove, the police simply tested the firearm in the usual course to prove it's a restricted firearm. For these and my earlier reasons, I do not find the testing of the firearm despite the admission to amount to an abuse of process under s.7.

[128] PC Birmingham's "Plain View" Language

Mr. Rana argues the failure to file the initial Report was not only a violation of s.8 but also abusive police conduct because PC Birmingham "perjured" himself by stating he seized the firearm in plain view. I disagree this is abusive conduct because of two reasons. First, I accept PC Birmingham's explanation that his choice of words was not ideal. In fact, it was probably careless because the term "plain view" has an ordinary meaning and a legal meaning. While it is true that the firearm was in his plain view when presented to him by A/Sgt. Clauson, using the legal term "plain view" before a Judicial officer on a Report could easily leave the wrong impression about a possible lawful seizure. I find that PC Birmingham never intended to mislead the Justice and instead used careless language without intending to mislead.

[129] Distinction Between Filling Out and Swearing

Second, I do not find the use of this term or the filing of the subsequent Report to be abusive conduct that triggered his s.7 rights because there is an important distinction between stating information on a Form and swearing to this information before a Justice. Recall, PC Birmingham filled out the first Report, stating facts he believed to be true, but never took the additional step of swearing to them under oath. In other words, while he was prepared to attest to their truth, the record proves he never did. This may be fortuitous but important because it does not prove he committed "perjury" as alleged by Mr. Rana. There was no false evidence sworn under oath. While this may impact PC Birmingham's credibility as a witness, it does not prove he lied under oath. In my view, this is simply an extension of the casual approach taken to the detention of seized property which is properly a violation of s.8 but not does not also mean it amounts to an abuse of process. Frankly, I fail to see how the failure to file a Report at first instance or filing a second one after acknowledging the error amounts to abusive conduct. In fact, the Crown took the appropriate step of correcting the unlawful detention of the firearm by ameliorating the error and mitigating any incursion on Mr. Rana's continued expectation of privacy in his firearm. If this step was not taken, it would perpetuate the incursion further, not reduce it. Nor do I see anything improper with the grounds relied on by PC Rodriguez in completing the second form. Grounds can be acquired in many ways and using the trial evidence – indeed evidence adduced under oath is quite proper. That said, I accept the Crown's concession that the failure to file a Report in the first instance is a viable s.8 Charter violation. I will address the impact of this violation when discussing s.24(2).

[130] Summary of Charter Violations

In summary, I will examine whether Mr. Rana has met his burden to be awarded a Charter remedy in light of breaches of his rights under s.8 based on the Report issue, and two notional violations of s.9 and 10(b). I note the latter two violations were not raised by either party. I do not criticize the Crown for not raising the issue because Mr. Rana capably raised a number of issues and chose not to raise them. As part of my duties to provide reasonable assistance to a self-represented litigant, including raising Charter issues that arise on the uncontested evidence, I will assess the impact of these violation. As I will explain, I do not find the violations were serious that shift the calculus on the s.24(2) issue.

Issue 5: Section 24(2)

[131] Charter Violations Found

I have found a s.8 Charter violation on the failure of the police to file a Report as required by s.489.1(1) and 490 of the Criminal Code. I have also found a s. 9 violation when he was arbitrarily detained in his home when told to standby prior to being arrested, which resulted in a related s.10 (b) violation because the police failed to give Mr. Rana his rights to counsel. This requires a consideration of whether the evidence of the firearm should be excluded under s.24(2) of the Charter.

[132] Threshold Issue

First, as a threshold issue, I am prepared to assume, given the Crown's concession that the failure to file a timely Report, and the other two issues, meet the threshold requirement of whether the evidence was obtained in a manner that offended the Charter for the purposes of engaging s. 24(2): R. v. Pino 2016 ONCA 389, R. v. Rover, 2018 ONCA 745 at para 35. It is arguable if in fact they do meet the threshold, but I will assume they do to give full credence to Mr. Rana's Charter arguments.

[133] Section 24(2) Test

There is no issue with the test to apply when considering exclusion of evidence under s. 24(2): R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. I must consider the seriousness of the police conduct constituting the breach, the impact on the protected rights of the accused person, the public interest on a trial on the merits, and the overall balancing of the long-term repute of the administration of justice in admitting or excluding the impugned evidence.

i) Seriousness of State Conduct

[134] Spectrum of Conduct

Police conduct must be placed along a spectrum of conduct from minor or inadvertent violations to wilful or reckless disregard of an accused's Charter rights: R. v. Marakah, 2017 SCC 59, [2017] S.C.J. No. 59, at para. 61; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 74.

[135] Garcia-Machado Analysis

With respect to the untimely filing of the Report, I am persuaded by the comments of Hoy J. writing on behalf of the Court of Appeal in Garcia-Machado, supra, at paragraphs 57-69 who held that the trial judge in that case erred in excluding evidence because of a similar s.8 Charter violation. The trial judge's s.24(2) ruling was overruled based on the failure to consider several relevant factors.

[136] Technical Error Analysis

In my view, the failure to file a timely Report was, as the Crown says, a technical error motivated by good faith. First, this is not a case where the police didn't advert to the statutory requirements of filing a Report. PC Birmingham was aware of his obligation, filled out a Report but through inadvertence, forgot to file it. Second, the police had lawful means to enter Mr. Rana's home pursuant to their statutory authority to search under exigent circumstances and their common law powers to respond to an emergency 911 call, thus the untimely report must be considered in this context. The seizure of the firearm was lawful at first instance because objectively, it was not being properly stored. Put a different way, the police had no reason to believe at the time of seizure, it was properly stored which might impact Mr. Rana's privacy interest in the firearm at the point of seizure. Third, the fact that a second Report was filed, is further proof of good faith because the police attempted to correct an oversight. To borrow the language of Hoy J., "this was a case of delayed compliance, not of complete non-compliance": Garcia-Machado, supra at para. 65. The first factor strongly favours inclusion of the evidence. See also R. v. Pahle 2017 ONSC 6164 at para. 97.

[137] Section 9 and 10(b) Violations

With respect to the related s.9 and 10(b) violations, both were insignificant. While there is very little specific evidence about these issues because the issues were not argued, a review of the entire record shows possible oversight as Mr. Rana was charged and arrested inside his residence. However, it's clear no evidence was gathered during the very brief period when he stood idle and therefore in legal limbo while the police confirmed their suspicion of careless storage. The errors were not serious and harmless.

ii) Impact on Charter Protected Rights

[138] Privacy Interest Analysis

The second factor is the degree of impact on the protected rights of the accused person. This calls for an evaluation of the extent to which the breach(es) actually undermined the interests protected by the right(s) infringed. I accept Mr. Rana had a high expectation of privacy in his residence and a similar interest in his firearm but this has to measured against the circumstances of the lawful entry and reasonable search which was promulgated by his frantic calls to 9-1-1. The police were responding to a true, not hypothetical emergency. It involved the possible use of a lethal weapon. If PC Birmingham had filed a timely Report as required, it most certainly would have resulted in the detention of the firearm "until the completion of the case" as he sought. There was nothing about the Report that suggests it would have been denied or was improper or misleading. The use of the term "plain view" when it was in fact a seizure with the assistance of Mr. and Mrs. Rana does not mean a Justice could not have granted the Order seeking detention. I realize the term plain view is a term of art.

[139] Evidentiary Value

Further, the property here, namely the firearm, was used for the very purpose for which it was detained: its evidentiary value as a restricted firearm. It was tested by the police as it normally would to prove a fact that the Crown would have to normally prove beyond a reasonable doubt. I have already explained why Mr. Rana's admission did not re-calibrate this position because had Mr. Rana reneged on his admission, which as a self-represented litigant, may not be unreasonable, the Crown would have no recourse during a trial. Testing the firearm despite an admission was not unreasonable, abusive or improper. The firearm was tested in the usual course. As Hoy J. held in Garcia-Machado, supra, at para. 62:

[Mr. Rana] "did not have an objectively reasonable expectation that the property seized would not be used for the very purpose for which it was lawfully obtained".

In this case, it was obtained because it was objectively stored unsafely and contrary to the regulations. There's no evidence Mr. Rana protested this fact at the time by announcing it was secured lawfully which may have undermined the police' objective grounds. Moreover, the new Report filed mid-trial had the putative effect of reducing the intrusion on his expectation of privacy in the property as the trial was still underway. Further, the nature of the property is an important consideration because I accept that the firearm has sentimental value to Mr. Rana but there's no evidence that anything untowards was done to the firearm by the police causing damage. DC MacLean was clear it was still functioning despite some use of chemical substances that would be used on any firearm. The police action did not fundamentally change the nature of the detained property, thereby causing a great impact on Mr. Rana's Charter protected rights. A final point. Even if the Report had been timely filed, I am not convinced that Mr. Rana would have succeeded in an application seeking return of the firearm during his trial when it was objectively being stored improperly by a registered gun owner. In saying this, I am in no way shape or form finding that a Firearms Officer would be successful in seizing his firearm pursuant to a hearing if there was one as that issue is not before me. Nor am I saying that the Crown would inevitably be successful at a future hearing if launched in having the firearm forfeited as that issue is also not before me. I am simply observing that if Mr. Rana sought return of the firearm if the Report had been filed in a timely way, there were lawful means under the Criminal Code for the Crown to keep the firearm until the end of his trial. This factor also militates against a continuing privacy interest in the firearm. I find that the second factor favours inclusion of the evidence.

[140] Section 9 and 10(b) Impact

With respect to the s.9 and 10(b) issues, again there is little evidence on these factors. I note Mr. Rana did not raise them, which suggests they were not in the forefront of a litigant who is keenly aware of his Charter rights. More importantly, no evidence was collected and there's nothing to suggest Mr. Rana needed the "lifeline" of counsel during this very brief detention. These factors weigh in favor of inclusion of the evidence.

iii) Adjudication on the Merits

[141] Societal Interest

The third Grant factor is the societal interest in adjudication on the merits. The evidence seized is real and reliable evidence. As noted above, the untimely report and the two notional violations were technical errors which did not seriously undermine Mr. Rana's Charter protected interests.

iv) Conclusion on s. 24(2)

[142] Overall Balancing

In the overall balancing, all three Grant factors in this case favor inclusion, not exclusion of the evidence.

[143] Application Dismissed

For all the above reasons, Mr. Rana's application to exclude the evidence is dismissed. The evidence of the firearm is admissible. I now turn to the merits of the prosecution before I have to consider if Mr. Rana has met his onus to stay the proceedings under s.24(1) of the Charter.

PART III: THE MERITS OF THE PROSECUTION

Issues: 8, 9: Has the Crown Proven the Two Offences?

A. Overview

[144] The Two Offences

Mr. Rana was charged with two but related offences alleging careless storage of a firearm contrary to s.86(1) and storage of the firearm in violation of the Firearms Act regulations, contrary to s.86(2). In these reasons I will refer to the s.86(1) offence as the "careless storage offence" and the s.86(2) offence as the "unlawful storage offence". As I will explain, the careless storage offence is a true criminal law offence while the unlawful storage offence is more regulatory in nature. I will first examine both offences, juxtaposing their similarities and differences to highlight what the Crown must prove to secure a conviction.

B. The Offences

[145] Section 86(1) of the Criminal Code

Section 86(1) of the Criminal Code provides:

Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

[146] Particularization of Charge

Mr. Rana was charged with the particularized offence of unlawfully storing a firearm, namely a handgun, in a careless manner. He was not charged with the careless use, carrying, handling etc. Nor was the offence particularized to allege an offence based on failing to take reasonable precautions or safety of other persons. As the Supreme Court has held, "[It] is a fundamental principle of criminal law, that the offence, as particularized in the charge, must be proved": R. v. Saunders, [1990] 1 SCR 1020 at 1023 per McLachlin J (as she then was).

[147] Section 86(2) of the Criminal Code

Section 86(2) of the Criminal Code provides:

Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.

[148] Restricted Firearm Definition

Section 117(h) of the Firearms Act permits the Governor in Council to regulate the storage, handling, transportation, shipping, display, advertising and mail-order sale of firearms and restricted weapons. There is no dispute in this case that the 9mm handgun that was being stored in Mr. Rana's residence is indeed a restricted weapon. Even without Mr. Rana's admission, this was proven by the evidence of DC MacLean who testified as much.

[149] Storage Regulations

The storage of restricted firearms is governed by Part 6 of Regulation SOR/98-209. It provides:

6. An individual may store a restricted firearm only if

(a) it is unloaded;

(b) it is

(i) rendered inoperable by means of a secure locking device and stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into, or

(ii) stored in a vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked ; and

(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in

(i) a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into, or

(ii) a vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked.

[150] Purpose of Regulations

In R. v. Felawka (1993), 85 C.C.C.(3d) 248 (S.C.C.), the Supreme Court considered the Regulations, albeit in a somewhat different context, and said they are "designed to protect people from the threat of violence that results from the public presence of firearms" (at 262). Implicit in these comments is the recognition that the regulations are intended to provide minimum standards for the manner in which firearms are stored and transported.

[151] Regulatory Scheme

The offences created by s.86 of the Criminal Code prohibit an act or omission which constitutes the offence of careless storage of a firearm. In R. v. Durham; R. v. Stratigeas, 10 O.R. (3d) 596, the Ontario Court of Appeal upheld the constitutionality of the careless storage provision and said it is part of an overall regulatory scheme which imposes a duty upon all persons in possession of firearms to handle, store and use their weapons carefully. This is consistent with the purpose of the Regulations.

[152] Distinction Between Offences

Courts have recognized a distinction between the two offences of careless storage in s.86(1) and unlawful storage in s.86(2). The unlawful storage offence requires the Crown to prove only that Mr. Rana contravened the relevant storage provisions of the Regulation to the Firearms Act. Unlike the careless storage offence in s.86(1), the unlawful storage offence does not include any element of "reasonableness" or "carelessness" in the manner in which the firearm is stored. Storage of the firearm contrary to the prescription of the relevant Regulation makes out the offence under s.86(2).

[153] Mens Rea for Section 86(2)

In R. v. Libon (2013), 106 W.C.B. (2d) 261, [2014] B.C.J. No. 653 (C.A.), the British Columbia Court of Appeal held that guilt for an unlawful storage offence in s.86(2) requires only that the offender fail to comply with the applicable Regulation. "Failure to advert to the safety risk of storing ammunition and firearms together is not a component of the mens rea of the s.86(2) offence: R. v. Smillie (1998), 129 CCC (3d) 414 (BCCA) at para. 35. The legal manner of storage is prescribed by the Regulation and not to be judged by the "reasonable person" standard of safety.

[154] Careless Storage Offence

In contrast, the careless storage offence under s.86(1) requires the Crown to prove beyond a reasonable doubt that the conduct of Mr. Rana in storing his 9mm handgun constituted a marked departure from the standard of care expected of a reasonably prudent person in the circumstances. It is the conduct of Mr. Rana, and not for example, Mrs. Rana, which is to be measured on an objective standard: R. v. Gosset (1993), 83 C.C.C. (3d) 494 (S.C.C.). In R. v. Finlay (1993), 83 C.C.C. (3d) 513, the Supreme Court described section 86(1) of the Criminal Code as involving "a specific and rigorous duty of care". In Finlay, the Supreme Court held:

The objective test for negligence is discussed in R. v. Gosset, S.C.C., No. 22523 released this same day. In Gosset, I found that the proper interpretation of the fault element under s. 86(2) is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person. If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow. In Gosset, I found that the objective assessment of fault also had to consider the capacity of an accused to meet the standard of care required in the circumstances, and the accused's ability to control or compensate for his or her incapacities. There is, however, no "reverse onus" on an accused to establish on the balance of probabilities that he or she exercised due diligence in order to negate a finding of fault under s. 86(2).

Further, the Supreme Court of Canada also indicated in Finlay that even if a marked departure is established, section 86(1) allows for "the existence of a reasonable doubt as to either the sufficiency of the precautions taken by the accused to avoid the creation of risk, or the capacity of the accused to meet the standard of care of a reasonably prudent person in the circumstances."

[155] Two-Step Test

In summary, in order to obtain a conviction under section 86(1) of the Criminal Code the Crown must prove that Mr. Rana stored his handgun, even for a temporary nature, in a careless manner. A modified objective test applies. This requires proof of conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in the circumstances. If a reasonable person in the position of the Mr. Rana would not have been aware of the risk or would not have been able to avoid creating the danger, an acquittal will ensue. The decision in R v Blanchard (1994), 103 CCC (3d) 360 (YKTC) encourages a two-step test to the determination of liability under ss. 86(1), with the Regulations serving not as an element of the offence, but setting the standard of care.

[156] Distinct Offences

Further, courts have held that the two offences are distinct offences and can invite different verdicts. In other words, if the Crown fails to prove one offence, this does not foreclose a conviction on the other. Breaching the pertinent Regulation, if proven, does not in and by itself constitute a violation of section 86(1) of the Criminal Code: R. v. Gorr, [2003] O.J. No. 3252 (Ont. C.J.). The careless storage offence in s.86(1) is broader in scope than the unlawful storage offence because it can be proven through carelessness, which is not an element in the unlawful storage offence: Garrard, supra, at para. 37. The provisions of the Regulations are but one piece of evidence that may be considered in determining whether the careless storage offence has proven: R v Gouliaeff, 2012 ONCA 690 at para 7.

[157] Meaning of "Kept Securely Locked"

Finally, in R. v. Porter (2007), 2007 BCCA 39, 221 CCC (3d) 309 (BCCA) leave to appeal to SCC refused, [2007] 2 SCR. vii., the British Columbia Court of Appeal considered the meaning of "kept securely locked" in the above Regulation. At paragraph 28, the court agreed with the reasons of the trial judge who found that the regulations were intended to set out, and did set out, a certain and clear method of storage by way of conventional locking, and that other methods of storage were simply non-compliant.

C. The Positions of the Parties

[158] Crown's Three Pathways

Mr. Black argues there are "three pathways to liability" in support of his submission to find Mr. Rana guilty of both offences. In my view, the third pathway is really a submission about Mr. Rana's liability on the careless storage allegation. The first two pathways have more bearing on the unlawful storage offence. The three pathways were identified as follows:

(1) The firearm was not stored in a safe. There was no trigger lock on the handgun. Further, storing the handgun in a closet is in violation of the Regulation, or

(2) If the firearm was stored in a safe, the safe was a household safe for valuables, not constructed or modified for a restricted firearm. The safe is not kept securely locked. Either way, Mr. Rana was in violation of the Regulation.

(3) Regardless if there was a safe or not, Mr. Rana's conduct in storing his firearm for which only he is licensed in a jewelry safe controlled by his spouse amounts to a marked departure from the standard of care of a reasonably prudent person in the circumstances.

[159] Mr. Rana's Position

Mr. Rana's overall position is that the Crown hasn't proven either offence. First, he invites the court to accept the defence evidence that the firearm was stored in a locked jewelry safe and was not, as testified to by A/Sgt Clauson, removed from a pile of laundry in his bedroom. He alleges A/Sgt. Clauson committed perjury by stating he was given the gun box by Mrs. Rana which he says is contradicted by the defence evidence. Second, he urges the court to interpret the unlawful storage provision in a way "to avoid an absurd result". He says the Regulations permit a registered owner to have a restricted firearm in a box designed for its storage and remain unlocked provided the gun box is in a locked safe, as was the case here. Further, he says the safe "may be attended by anyone authorized by the licensed owner of the firearm" which in this case was present because Mrs. Rana was authorized to "use his firearm under his direct and immediate supervision in accordance with Criminal Code Section 95(3)". Finally, he says the Crown didn't tender expert evidence from a Firearms Officer to interpret the storage regulations.

D. The Crown's Burden of Proof and Credibility

[160] Credibility Assessment

The determination of how Mr. Rana's firearm was stored at the material time and the circumstances of its discovery requires the court to embark on a credibility evaluation. There is a conflict in some of the evidence based on the account of Mr. and Mrs. Rana as well as the police, but namely, A/Sgt. Clauson who came into possession of the firearm. I will review these principles below.

[161] Burden of Proof

The burden of proof rests on the Crown to prove the two offences beyond a reasonable doubt. In the case of the s.86(1) offence, there must be prima facie proof of the offence before the onus shifts to Mr. Rana to prove he had a lawful excuse. Mr. Rana didn't focus his submissions on having a lawful excuse to store the firearm in the manner he did although he did say it was only removed by his spouse because he told her to take it out of storage so he could use it in "self-defence". The s.86(2) offence does not statutorily provide for the shifting of the onus to the accused to prove a lawful excuse if there is prima facie proof that the Regulation is not being followed. In other words, if the Crown proves Mr. Rana was contravening the Regulation as prescribed, the offence is made out without resort to Mr. Rana having a lawful excuse which still might be relevant to proof of his mens rea.

[162] Standard of Proof

In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada indicated that proof beyond a reasonable doubt "does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt." In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, however, the Court pointed out that the burden of proof placed upon the Crown lies "much closer to absolute certainty than to a balance of probabilities."

[163] W.(D.) Analysis

Further, because Mr. Rana chose to testify, I must assess his evidence applying the reasonable doubt standard. The judgment of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, sets out the approach in assessing a person's credibility by using a three step analysis. Those steps are as follows:

(1) Do I believe the evidence of Mr. Rana?

(2) If I do not accept his evidence does Mr. Rana's evidence leave me with a reasonable doubt about his guilt?

(3) If the answer to the above is no, when I consider the totality of the evidence, has the Crown proven Mr. Rana's guilt beyond a reasonable doubt.

E. Summary of Legal Conclusions

[164] Findings on Unlawful Storage

After considering the evidence as a whole, I have concluded that the Crown has met their burden of proving that Mr. Rana's manner of storing his restricted firearm violated the provision in Regulation 6(b)(ii) of the Firearms Act. I cannot rule the possibility of the firearm being stored in Mrs. Rana's jewelry safe prior to it being removed by her. However, this does not mean it was being stored in accordance with the Regulation. I disagree with the interpretation of the Regulation urged upon me by Mr. Rana. In my view, the Regulation must be given a purposive meaning and I agree with the Crown that the firearm was not being stored in a safe designed for its use. Even if I am wrong about this conclusion, it certainly was not being stored securely in a locked setting as Mr. Rana divested control and storage of the firearm to his spouse. Mr. Rana made a conscious decision to store his firearm in this manner and meant for it to be stored in this manner, which was contrary to the Regulation.

[165] Findings on Careless Storage

That said, I disagree with the Crown that his conduct in knowing and intending for the firearm to be stored in violation of the Regulation also means his conduct amounts to proof beyond a reasonable doubt of a marked departure from a standard of care of a reasonably prudent person in the circumstances. In summary, the conduct of a person in his shoes who chose to store a firearm in an unlocked gun box but one that is stored in a locked jewelry safe, does not necessarily amount to a marked departure from the standard of care of a reasonably prudent person. It may be a departure, but the offence requires proof of a marked departure. Alternatively, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Rana took unreasonable precautions in failing to discharge his duty in the circumstances. Put simply, while Mr. Rana's manner of storage was in violation of the Regulation, the following factors militate against proof of the careless storage offence beyond a reasonable doubt: (i) the firearm did not have a trigger lock but was in a gun box designed for it, (ii) the firearm was only accessed by Mrs. Rana when she tended to her jewelry and (iii) the firearm had no ammunition thereby the risk created by careless storage was remote. As for the Crown's additional submission that the firearm was carelessly stored by Mr. Rana when he became aware that Mrs. Rana stored it in her shawl with his knowledge, in my view, that is not enough conduct to ground criminal liability for a true criminal law offence which attracts high moral stigma. The gravamen of the s.86(1) offence is the historical storage of the firearm. In any event, I have a reasonable doubt that a person in Mr. Rana's shoes ought to have known that Mrs. Rana would, despite his instructions to the contrary, not return the firearm to the locked safe where it would be unlawfully stored, but not carelessly stored. Either way, the Crown has not proven this count.

F. Findings and Discussion

[166] Credibility Assessment

I now turn to my findings in support of the above legal conclusions. For the most part, there isn't much conflict in the facts except for a divide in the evidence of A/Sgt Clauson and Mr. and Mrs. Rana about the circumstances of discovering the firearm. A/Sgt Clauson testified he never saw the gun box being removed from a safe and instead saw it produced from a pile of laundry in the walk-in closet. He also says Mrs. Rana produced the gun box directly to him which is contrary to the defence evidence that the gun box was given by Mrs. Rana to Mr. Rana who then turned it over to the police.

[167] Assessment of Mr. Rana's Credibility

Overall, I found Mr. Rana to be an articulate and thoughtful witness. He was not evasive. I agree with the Crown that he was not completely forthright with the 9-1-1 operator and was prepared to mislead them as to the urgency of the call in order to "gain an advantage" but I have been careful in not using this evidence to support propensity type reasoning that just because he would mislead the 9-1-1 operator, he would also mislead the court. Context is important. There is no doubt that Mr. Rana was very careless in the language he used when he called 9-1-1, but it was done with the intent of having the police arrive quickly because he was desperate to have the intruder removed. His conduct on the call was foolish and may even constitute legal mischief but he was also clear he was a registered firearm owner and wouldn't use his firearm. He wasn't hiding he had a firearm. I have to test the substance of his evidence.

[168] Initial Reluctance

I also don't hold his initial reluctant position with the police against him because in his mind, he didn't think the police were there to investigate a gun call. They were there to investigate a trespass call. Again, this was a foolish thought in light of what he said but his equivocation when first asked about the gun doesn't detract from his credibility especially because he was more than forthright in helping the police find the gun later.

[169] Safe Evidence

Mr. Black says both Mr. and Mrs. Rana are not credible on the safe issue and it's a "ruse" designed to mislead the court and the court should prefer the evidence of A/Sgt. Clauson who said he watched Mrs. Rana search for the gun box and found it in a pile of laundry. After considering the evidence as a whole on this issue, I have a reasonable doubt and find there was a black household safe in the closet. I say this for the following reasons.

[170] Mr. Rana's Background

First, Mr. Rana's evidence that he purchased the 9mm Beretta gun as a legacy piece must be viewed in context of his prior training in the armed forces. There is also no dispute that he's a registered firearm owner. It was obvious that the firearm holds value to him and it's not unreasonable that he would know its storage would require a vessel to preserve its value. He said he bought the safe at the time he acquired the firearm. This evidence was supported by Mrs. Rana who knew about the safe. While there was most certainly an opportunity to collude, I'm not prepared to find there was, in fact, collusion. She was not shaken on her evidence that her husband bought a safe and kept the firearm in the safe and she had access to the key because her jewelry was also in it. Quite frankly, it was open to the police to obtain a statement from Mrs. Rana to preserve her evidence because she was clearly a witness to the careless storage allegation. The police chose not to do so and complaining there's possible taint and collusion after the fact, is with respect, not tenable on this record.

[171] Mrs. Rana's Credibility

Second, Mrs. Rana came across to me as an unsophisticated witness. She testified with an Urdu and Punjabi interpreter and she was skilfully cross-examined by the Crown. Her unsophistication was clear in her demeanor suggesting she had nothing to hide and was telling it like it is. There is some friction between herself and Mr. Rana caused by private issues which aren't necessary to explore in these reasons, but she had very little motive to lie to support his position. In the end, I don't think she had the capacity to cobble a sophisticated ruse about there being a safe. She was challenged on the physical aspects of the safe including how it opened and closed. She withstood these questions with credible answers. Where I was left troubled by her account is the illogic of her actions on the date in question. She was asked why she removed the firearm from a safe when she had the key and said she was worried her husband might access it and create a volatile situation with Mr. Quereshi. It was put to her that if that was her purpose, it would make more sense to keep the key and prevent her husband access. Clearly that is sensible, but she testified things happened quickly, she panicked and thereafter, the police arrived before she could correct her mistake of taking the firearm and hiding it. I am satisfied she hid a firearm under her clothing to prevent her husband to access it. The shawl evidence was not concocted and is on the surface, somewhat bizarre giving it the ring of truth. This supports my finding that she did panic, she was confused and she not thinking straight. After all, she hid a firearm which is a criminal offence of carrying a concealed weapon. Logic dictates most people try not to commit criminal offences. She wasn't going to use the firearm but instead was trying to prevent her husband from using it. I accept her evidence that Mr. Rana asked her to remove the firearm from the safe and she said no then poorly took matters into her hands.

[172] Inconsistencies

Third, the Crown says the Rana's are inconsistent about the exact location of the safe in the closet. Mr. Rana said it was in the back of the closet and Mrs. Rana said it was in the center. I don't view this as a material inconsistency. The important point is whether a safe existed at the time. I simply can't rule this out on this record.

[173] A/Sgt Clauson's Evidence

Fourth, A/Sgt Clauson testified he saw Mrs. Rana remove the gun box from a pile of laundry and not from a safe. I agree with the Crown that his evidence was straight forward, but this doesn't impugn the position of Mr. Rana. I find A/Sgt Clauson never went into the walk-in closet where he would have been able to take inventory of all the items in the closet. The evidence is clear there was clothing in the closet and Mrs. Rana said she removed the firearm from the safe and the gun box and only took the gun with her. This means she would have left the gun box behind and when summoned upstairs, return the firearm in the gun box where she found it. The events unfolded quickly, and nobody saw fit to ask about a safe because it wasn't on anybody's mind. I agree with the Crown that A/Sgt Clauson was credible but there is a gap in the evidence with respect to the safe because he never searched inside the closet. I'm also mindful that the scene was chaotic and there were some language barriers with Mrs. Rana.

[174] No Legal Obligation to Speak

Fifth, there was no legal obligation on Mr. Rana to speak up about a safe at the time of his detention or arrest. In R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), the Court of Appeal held that evidence of an accused's reaction to allegations is of limited probative value because it rests on assumptions about how a "normal" person would react. Mr. Rana was placed on notice he would be charged with an unsafe storage offence based on the circumstances of an unlocked gun box in which the firearm did not have a trigger lock. That was the comment intimated to him by A/Sgt Clauson. A safe was never on anybody's radar.

[175] Finding on Safe

While the safe evidence is somewhat bizarre, viewed in context of this case, I have a reasonable doubt and find one existed which was housing the firearm prior to its removal from Mrs. Rana.

[176] Circumstances of Storage

Turning next to the circumstances of the storage. Mr. Rana testified he was the sole registrant of a firearm in his house. He bought a safe and knew the firearm didn't have a trigger lock because the gun box was designed for the firearm to not have a trigger lock. This makes sense because the gun box would not close with a trigger lock. The photographs bear this out. However, he knew the gun box didn't have a lock because he couldn't find a lock for the gun box and thought about it and was satisfied it was safe because in his mind, it would be stored in a locked safe. He knew handguns were inherently dangerous and confirmed in unambiguous language only his wife had a key to the safe and he had no control over it. As he put it: "I can't have control to open the safe". The clear implication of this evidence is Mrs. Rana had full reign of access to the safe and as the evidence establishes, the means to withhold his access, when she refused to retrieve the firearm at his request.

[177] Discovery of Firearm

With respect to the discovery of the firearm, I find Mr. Rana initially looked for the firearm in the walk-in closet and A/Sgt Clauson remained at the threshold of the closet and didn't enter to search inside the closet. Further, A/Sgt Clauson could not recall with precision about how he received the gun box. In cross-examination he acknowledged he wasn't entirely sure if it was given directly to him by Mrs. Rana or if it was given to Mr. Rana who later turned it over to him. On the whole of the evidence, it is sensible that Mrs. Rana turned it over to her husband who had summoned her and was in the closet with her. However, this does not mean as Mr. Rana asserts, A/Sgt Clauson committed perjury. I am entitled to accept some all or none of the evidence and simply didn't find his evidence on this discrete point to be reliable. It does not mean he also wasn't credible. Reliability deals with a witness's ability to recall, recollect and observe. It does not address honesty of a witness. I found both A/Sgt Clauson and PC Birmingham whose evidence was challenged in this case to be honest witnesses who had an imperfect memory of the chaotic events. And for good reason.

[178] Regulation Interpretation

With the above findings in mind, I will now explain why the Crown has proven the unlawful storage count. In doing so, I will address some arguments raised by Mr. Rana.

First, there is no dispute that only Mr. Rana was registered to store the firearm. There is no evidence before me that Mrs. Rana was also registered to store it or that a condition existed on his license permitting her to store it. Mr. Rana says the safe may be attended to by anyone authorized by the licensed owner of the firearm. I disagree with this argument. For starters, this defeats the purpose of the licensing regime which authorizes a specific person to store the firearm as that person would have passed the licensing requirements to do so. The CFRO didn't give permission to Mrs. Rana to store the firearm. Mr. Rana says if this were not the case, it would result in an absurd result because if firearms are stored in a business for trade or sport, everybody would need a license to access the firearm. This argument is without merit because the Firearms Act has a separate licensing regime for businesses. Different considerations apply to businesses than individuals who are given permission to store handguns.

[179] Authorization to Use Firearm

Second, Mr. Rana says his spouse was "fully authorized by Mr. Rana to use his firearm under his direct and immediate supervision". The problem with this submission is two-fold. First, the license did not authorize Mrs. Rana to use his firearm under his supervision because only he had authorization to store it and second, it flies in the face of his evidence that he relinquished control over the firearm to his spouse. He didn't even have a key. Only Mrs. Rana could have possession of the firearm and could do so without his consent, which is what she did on the night in question.

[180] Absurdity Argument

Third, Mr. Rana says the Crown is being "stubbornly unreasonable" with proceeding with the prosecution for this offence. I disagree. Mr. Rana divested his duty to store his firearm to his spouse. He didn't bother checking on the status of the storage for years. Mr. Rana says possession implies control over the firearm and he was in possession of it. In my view, Mr. Rana was only in possession by title and registration but was clearly not in control over the contents of his wife's safe. He drew an analogy in support of his absurdity argument stating if he parked his car on the driveway of his residence whose title belongs to his spouse, it does not mean he has bequeathed his vehicle to his spouse. I don't find this analogy persuasive because it misses the point in this case. Staying with the driving analogy. Driving a car is regulated activity. It is a privilege not a right. A person has to acquire a driver's license to have the lawful privilege to drive. A person who does not have a license to drive cannot drive a car even, if they own one. If Mr. Rana as a licensed driver chose to store his car in his garage that he jointly owned with his spouse, Mrs. Rana would not be permitted by law to move the car from the garage irrespective of who owned it. Put simply, the Regulation did not permit him to bequeath his obligation to safely store the firearm to his spouse.

[181] Safe Storage Requirements

Fourth, while Mr. Rana stored the firearm in a gun box within a locked safe, I disagree with him that the safe "need not be securely locked when it's being attended to". The purpose of the Regulation is to prescribe minimum standards for licensed gun owners and to promote safety, so guns don't get in the hands of the wrong people. The licensing regime expects gun owners to follow the Regulations to promote safety. Here, Mr. Rana chose to store an unlocked gun box, albeit with no ammunition, in a locked safe. He admitted he had no control over this safe because his wife had the key. There is evidence the safe was being used for jewelry, not just the firearm which means it was being accessed for other reasons apart from storing the firearm. This would entail Mrs. Rana going into the safe with a key (not a keypad for example). It would be open when she obtained her jewelry and the obligation would fall on her shoulders to lock it, not Mr. Rana, the licensed owner. He had no idea when his wife was going in and out of the safe. In this way, it was not kept securely locked. It was not in a vault or a special room with sole access by the registered owner. It is entirely conceivable that a household safe could be stolen during a break and enter. Mr. Rana could only hope his spouse would keep it securely locked. Simply put, that does not meet the minimum standard required by the Regulation. It may not be the most egregious violation of the Regulation but that's a consideration for the s.86(1) offence.

[182] Conclusion on Unlawful Storage

Proof of violating the Regulation does not require the Crown to prove Mr. Rana was unreasonable or careless, only he didn't follow the prescribed Regulation. Mr. Rana made a conscious decision to store his firearm in this manner and intended for it to be stored this way. I find the Crown has proven this count beyond a reasonable doubt.

[183] Careless Storage Analysis

Turning next to the careless storage offence. The Crown invited a conviction on this count largely for reasons that I have enunciated above. In other words, the Crown says once it has been proven the storage of the firearm was in violation of the Regulation, a conviction for the careless storage offence follows, because of similar reasons. Respectfully, I disagree.

[184] Gorr Principle

First, as Justice Stone made it clear in Gorr, if there is proof the accused has violated the Regulation, it does not necessarily follow that there is proof of carelessness. As stated above, the gravamen of the offence is the historic storage of the firearm. Even if I am wrong about that and have to judge storage at the time it was investigated by the police, I don't think the evidence goes that far in proving guilt on either theory.

[185] Marked Departure Test

Second, Mr. Rana was in violation of the Regulation in the historic storage of his firearm. He would have also been in violation for its temporary storage without lawful excuse, but all this means is he was in violation of the standard of care required of a reasonably prudent person in respect of how the firearm should be stored. But does this mean his conduct in allowing this occur was a marked departure from this standard of care?

[186] Crown's Burden

The Regulation assists in framing this standard of care about how a reasonable person should behave in storing the firearm. There is no doubt his decision as to how to store the firearm departed from the standard of care required of him and a reasonable person but the pertinent legal question is whether it was a marked departure or whether reasonable precautions were taken to discharge the duty of care. Again, the burden of proof rests with the Crown to prove both the actus reus and mens rea beyond a reasonable doubt. This is a heavy burden.

[187] Reasonable Doubt

Courts have been clear that if a reasonable doubt exists, either with respect to whether Mr. Rana's conduct was a marked departure or whether reasonable precautions were taken to discharge the duty in the circumstances, then guilt cannot be found: R v Gunning, 2005 SCC 27 at para. 21. The onus is on the Crown to establish, beyond a reasonable doubt, that the manner of storage gave rise to the potential for danger: R v Lulic, 2003 CarswellOnt 4963 (Ont Ct J) at para 11.

[188] Factors to Consider

To determine if Mr. Rana's conduct amounted to a marked departure from the standard of care of a reasonably prudent person in the circumstances, I must analyze the location of the firearm, the location of the ammunition (if any), the surrounding environment, the manner in which he dealt with the firearm and ammunition in terms of their physical status, and the reasonably foreseeable presence of other persons, both children and adults: R v Lamoureux, 2003 ABPC 104 (Alta Prov Ct) at para 25. The presence of children has been given significant weight in establishing risk throughout case law.

[189] Conclusion on Careless Storage

When considering my findings in context of the evidence as a whole, I conclude the Crown has not met their heavy burden. I have a doubt on both questions. I say this for the following reasons.

[190] Firearm Storage

First, the firearm was being historically stored in a designated gun box in a locked safe. While this was a poor choice perhaps motivated by ignorance, it was in violation of the Regulation. this is one factor in the analysis – it does not overwhelm the analysis.

[191] No Ammunition

Second, there is no evidence that the firearm had any ammunition let alone readily accessible ammunition in the closet or home.

[192] Location

Third, the firearm was being stored in a safe in the bedroom, out of view of his family members. Indeed, I accept that his kids didn't even know he had a firearm in the house.

[193] Frequency of Access

Fourth, it does not appear the firearm saw the light of day often, except when it would be handled by Mrs. Rana when she tended to her jewelry. In other words, there's no evidence to suggest Mr. Rana paraded it in the house or permitted his children to handle it where the risk of returning it to the safe where Mrs. Rana may have forgotten to lock it was remote.

[194] Spouse's Control

Fifth, Mrs. Rana had control over the key, thus even if there was a risk that Mr. Rana in a fit of anger wanted to use the firearm, he would have to go through her as well. This tempers the risk to public safety as well.

[195] Case Law Comparison

Sixth, when Mr. Rana's conduct is measured against the cases in Canada, it offers support for my conclusion that Mr. Rana's conduct was not a marked departure or that his conduct amounted to taking unreasonable precautions to mitigate risk. In R v Boutilier, 2006 NLTD 32, 257 Nfld & PEIR 91, O'Regan J. from the Newfoundland and Labrador Supreme Court (Trial Division) determined that the temporary storage of a handgun under the seat of a car, with no ammunition in the near vicinity, was not a marked departure from the standard of care of a reasonable person, because the unloaded gun was incapable of causing damage to anyone (at para. 10). The court noted that had the accused been charged under ss. 86(2), guilt would have been established – which of course is the result in the case.

[196] Lulic Analysis

In Lulic, supra, the court held at paragraph 6:

Carelessness has been defined as doing or failing to do that which results or might reasonably be expected to result in some danger to others by reason of the inherently dangerous characteristics of firearms and ammunition: See R. v. Wright, [1980] 4 W.W.R. 92 (Sask. Prov. Ct.); R. v. Pawlivsky (1981), 8 Sask. R. 356 (Sask. Dist. Ct.), affirmed (1981), , 10 Sask. R. 179 (Sask. C.A.). So defined, it can be seen that "careless" has essentially the same meaning as the phrase in the latter part of the section "without reasonable precautions for the safety of other persons", though the two are disjunctive. [Emphasis added]

[197] Lulic Continued

The court in Lulic proceeded to consider the relationship between the Regulations and the objective test under ss. 86(1) at paragraphs 9 to 10:

However, while the regulation sets the standard of care, the test under subsection 1 is a marked departure from that standard of care. Failure to comply with the regulation, while a departure from prudence, is not necessarily a marked departure. The Crown argues that where, as here, the defendant has failed to comply with three of the 4 requirements under the regulation, it must be considered a marked departure. I cannot agree. It is possible to imagine a situation where none of the requirements of the regulation were met - say a loaded firearm kept in a hermit's remote cabin - where no danger was created by that manner of storage. Conversely, it is possible to imagine compliance with all of the requirements of the regulation while still being careless within the meaning of subsection 1 - say by doing what the regulation requires but then leaving the required keys with a 10 year old boy.

In my view, under subsection 1, the Court must assess the danger or risk created by the manner of storage, and determine whether, in all of the circumstances, there has been a marked departure from the standard of care of a reasonable person. It is a fundamentally different and separate issue from that of regulatory compliance. [Emphasis added]

[198] Application to This Case

The court in Lulic ultimately concluded that the conduct of the accused in storing his gun did not amount to a marked departure from the standard of care of a reasonably prudent person in the circumstances.

In this case, Mr. Rana was in non-compliance with one and possibly two aspects of the Regulation by allowing it to be stored in a household safe which wasn't kept securely locked. There was no ammunition. In my view and largely for similar reasons in Lulic, a full consideration of all the evidence leads to me to conclude that the Crown has not met its very high burden in proving this offence. Like Mr. Lulic, Mr. Rana effectively gave the key to storing his firearm to his spouse, but this very poor and unlawful choice cannot be equated with a marked departure to prove carelessness.

PART V: SHOULD THE PROCEEDINGS BE STAYED?

Issues 8 and 9: Has Mr. Rana Met His Burden to Prove That the Proceedings Be Stayed Under s.24(1) of the Charter?

[199] Stay of Proceedings

Having concluded that the Crown has proven one count but not the other, I will briefly consider whether Mr. Rana has met his burden in staying the proceedings under s.24(1) of the Charter due to any Charter violations. This would mean that despite a finding of guilt, the proceedings would be terminated on the basis of a Charter violation and the finding would not be registered.

[200] Charter Violations Found

I found violations of s.8 of the Charter based on the Report issue and notional violations of s.9 and s.10(b) but decided against a Charter remedy under s.24(2) as Mr. Rana did not meet his onus. I did not find a s.7 Charter violation based on an alleged abuse of process. Nor did I find a s.7 violation based on alleged prosecutorial misconduct or trial unfairness. I will not repeat my reasons here which have been outlined above. I rely as well on my Reasons on Application released on March 13, 2020 in which I dismissed the other s.7 complaints as not having a reasonable prospect of success. In my view, as the record progressed through the trial, none of Mr. Rana's s.7 Charter issues became stronger to have a potential for success. I also don't find a violation of s.7 on any allegation of trial unfairness based on filing a new Report during the trial. I have already explained why there was no Charter violation under s.8 on this basis and there is no violation of Mr. Rana's right to life, liberty and security of the person by the police taking corrective steps to assuage his private interests by seeking lawful detention of his firearm. Nor did the police act dishonestly in placing the new Report before a Justice. In summary, none of Mr. Rana's s.7 Charter complaints have merit and they are all dismissed.

[201] Application Under s.24(1) Dismissed

In view of the proven Charter violations, it is my view that Mr. Rana has not met his onus to stay the proceedings under s.24(1) of the Charter. The Charter issues do not come close as constituting a "clear case" deserving of a Charter remedy. I rely on my reasons in respect of the s.24(2) issues on this point. Terminating the prosecution is not a "just and appropriate" remedy for the above issues and permitting the prosecution to continue would not undermine the administration of justice.

[202] Applications Dismissed

The application under s.24(1) of the Charter along with s.24(2), is also dismissed.

PART VI: CONCLUSION

[203] Verdict

In view of the failed Charter applications, the evidence of the firearm is admissible. For reasons stated, Mr. Rana will be found guilty of the quasi-criminal (regulatory) offence of unlawful storage of his firearm under s.86(2) and not guilty of the criminal offence of careless storage of his firearm under s.86(1).

[204] Final Remarks

This result may not be the medicine for the sour taste left in the mouth of Mr. Rana who called 9-1-1 for assistance but the evidence establishes he made a poor choice in unlawfully storing his firearm. Even if Mr. Rana's storage of the firearm was not proven to be careless, his words to the 9-1-1 operator were most certainly careless, setting off this litigation which was completely avoidable.

[205] Firearms Officer Determination

The result in this case does not mean I have adjudicated on the issue of whether Mr. Rana should or should not be permitted to possess and store restricted firearms. That is a separate issue and one that the Chief Firearms Officer may or may not choose to pursue. To be clear, this ruling did not require me to address that issue.

[206] Commendation

In parting, I would be remiss if I did not repeat and stress my earlier comments that despite the protracted litigation, both parties acted civilly and professionally. I would like to commend their conduct and in particular, the conduct of Crown counsel Mr. Black who upheld the finest traditions of the Crown Attorney's office in discharging his duties to the court and the administration of justice.

Released: November 6, 2020

Signed: Mr. Justice F. Javed

[1] R. v. Tariq Rana, (Unreported: released electronically on March 13, 2020)