Court File and Parties

Court File No.: Brampton 3111 998 20 2748 Date: 2020-12-22 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Deshawn Conroy

Before: Justice G.P. Renwick

Heard on: 07, 08, 09, 10, and 21 December 2020

Reasons for Judgment released on: 22 December 2020

Counsel

T. Powell — counsel for the Crown

A. Goldkind — counsel for the defendant Deshawn Conroy

Ruling on Charter Application to Exclude Evidence

RENWICK J.:

Introduction

[1] The Defendant applies to exclude a loaded handgun from his trial on the basis of Charter violations of his rights allegedly committed by the police.

[2] On consent of the parties, the evidence for the Application was taken during a blended voir dire which ran concurrent to the trial at large. The prosecutor called four witnesses and filed several exhibits, relied upon by the Defendant in furtherance of his Charter Application. The Defendant did not lead any additional evidence on the Application.

[3] The handgun at issue was first observed by police during a warrantless search of the Defendant's home. Without this evidence, the Defendant will be acquitted of three of the four charges he faces, leaving only a threat to damage his mother's computer tablet.

[4] The Defendant seeks a finding that police were invited into the Defendant's home solely to investigate the threat of property damage and to take a statement from the Defendant's mother. It is submitted that the patrol sergeant did not have permission or authority in law to conduct a cursory, walk-through search of the apartment once the scene was secure and the Defendant was outside the apartment safely detained by other officers. Moreover, the state, through its agents, has no business conducting "walkabout" searches of one's home without informed consent or a legal justification (such as "exigent circumstances"), which are absent here. Lastly, any evidence obtained from the walkabout search, or which gave rise to a search warrant, should be excluded from the Defendant's trial.

[5] The prosecutor does not acknowledge any Charter violations in the circumstances and offers several arguments to defend the Application. The police had responded to a 9-1-1 call from a distraught mother because threats had been made to harm her and her property. When police arrived the parties were clearly emotional and upset. The police were obligated to ensure the safety of everyone in the apartment, whether they were known by the police to be present or not. The cursory search was consented to, authorized by law, and justifiable. Alternatively, no evidence should be excluded even if there were Charter violations.

General Legal Principles

[6] Our common law has long recognized the sanctity of one's home, or the belief that one's home is one's castle:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. [1]

[7] This thread of law applies equally to private individuals and state actors.

[8] Police officers act as agents of the state and their behaviour is governed by the principle of legality: the individual may do anything but that which is explicitly forbidden by law and the state may do nothing but that which is expressly authorized by law.

[9] Warrantless searches are presumptively unlawful and contrary to s. 8 of the Charter. [2]

[10] To justify a warrantless search, the prosecutor must establish that any search was authorized by law, that the law itself is reasonable, and that the search was conducted reasonably. [3]

[11] The applicant seeking Charter relief is obligated to satisfy a court on a balance of probabilities that one or more of its rights were infringed by the state and a remedy ought to flow therefrom.

[12] As a trier of fact, I can accept some, none, or part of the testimony of any witness.

[13] In determining what are the facts of a case, I am obligated to consider the credibility of witnesses: do I believe the witness to be truthful. I am also obligated to consider the reliability of witnesses: is the account accurate.

[14] All witnesses are presumed equal. Neither one's station in life nor their rank in society gives them any disability or special accommodation. A trier of fact is not entitled to give less or more scrutiny to a witness's evidence on the basis of their role in the proceedings.

The Evidence and Findings of Fact

Andrea Conroy

[15] Ms. Conroy is the Defendant's mother. She testified and authenticated an audio recording of a 9-1-1 call she made seeking police assistance because she was fearful of her son. In the opening seconds of her telephone call Ms. Conroy alleged:

I'm inside of my house and my son is outside my door and, and, I'm-, yeah, please come to 30 Hanson Road, Mississauga.

The 9-1-1 call-taker asked, "And sorry, your son's not supposed to be there, or?" to which Ms. Conroy answered, "He is but he walks around with firearms and I'm really sick of it." Ms. Conroy continued:

…he threw my iPad off the building, I'm not dealing with this anymore, I'm being abused, I'm being threatened. I have many documentations, texts including my counsellors that see this and I'm sick of it. [4]

[16] During the 9-1-1 call, Ms. Conroy confirmed that her son is known to carry firearms, but when asked by the call-taker whether he had a firearm on him "right now," Ms. Conroy told the call-taker, "he has nothing on him, he was in the laundry mat."

[17] Ms. Conroy testified during her examination-in-chief that she had never actually seen the Defendant with a firearm, but she told police this because they "respond a lot quicker" if you say a firearm is involved and she wanted the police to come immediately. She also admitted during her evidence in chief that she did not see her iPad thrown off the building, but her son had threatened to do that, and she did recover her iPad after the police had searched her apartment, but she was unsure how the iPad was recovered.

[18] I have a great deal of difficulty accepting much of what Ms. Conroy said during her testimony. She has lived a complicated life and she struck me as someone who would say anything if it suited her purposes. Where it was not corroborated by other evidence, I cannot give much weight to Ms. Conroy's testimony. Initially, in her examination-in-chief, Ms. Conroy claimed that "at least four or five" officers came into her apartment, and shortly after, "if I recall, at least two or three" officers entered. Ms. Conroy testified that she had been drinking hard liquor that day, but she did not believe that she was intoxicated to any extent. She described herself as a "functionable" alcoholic.

[19] At one point, in listening to the 9-1-1 audio, a male says, "you're a fucking rat." The call-taker asks if Ms. Conroy's son is talking and she confirms that he is. Because I can hear a male apparently upset because Ms. Conroy has called the authorities, I conclude that this part of her 9-1-1 call is accurate.

[20] In the 9-1-1 call, as the police arrive, Ms. Conroy describes looking through her peephole and watching the police have her son empty his pockets. In her cross-examination, she testified that she could not actually see this, but she heard the police directing her son to do that. When asked directly, how long it was after the police arrived that they asked her son to empty his pockets, Ms. Conroy testified, "Normally within a minute, that's procedure." This evidence and the clarification that followed (she would be "guessing," from the words she heard) do little to satisfy me what took place when police first confronted the Defendant. On the basis of Ms. Conroy's evidence alone, I am unable to find that the police directed the Defendant to empty his pockets when they first approached him in the hallway of his apartment.

[21] One of the key issues in this Application became whether or not Ms. Conroy gave Sergeant Paul Wallbank permission to walk around or take a look around her apartment. In her evidence in chief, Ms. Conroy testified that she did not give him permission to "randomly" walk around her home. She said that he just started to walk around and she did not know if she had spoken to him. Ms. Conroy admitted at this point, "he might have" said something to her but she did not know.

[22] This evidence became more definitive in cross-examination. Just before the lunch recess on the day she testified, Ms. Conroy was asked if she was certain that the officer never said, "do you mind if I look around." She answered, "I can't recall that." When asked if it was possible but she did not remember, Ms. Conroy testified, "No, he didn't ask me." This evidence was confirmed at least twice during the cross-examination.

[23] Later in cross-examination, it was put to Ms. Conroy if an officer said, "do you mind" if he looks around, would she know what she had said, or would it be "speculating" what she might have said. She answered, "I wouldn't know necessarily why." She suggested that she would want to know why he wanted to look around, "tell me a reason," and "maybe" she would not have an issue.

[24] In re-examination on this point, Ms. Conroy offered a reason why she would not have permitted the officer to look around, even if he had given her sufficient justification, "I just don't want anybody in my home." When pressed, she claimed, she just did not like people going in her home, she is a "germophobe," she is uncomfortable with people in her home, and she did not like men.

[25] Overall, I am satisfied that Ms. Conroy's evidence was inconsistent, likely untruthful in several parts and mostly unreliable. For similar reasons, and given Ms. Conroy's stated motivation (to have her son removed), absent corroboration, I am unable to conclude which parts of the 9-1-1 call, if any, are accurate.

Paul Wallbank

[26] Paul Wallbank was one of the two sergeants who also attended Ms. Conroy and the Defendant's apartment in response to Ms. Conroy's 9-1-1 call.

[27] Based on his evidence, I found Sgt. Wallbank to be conscientious and cautious as a police officer. He testified that he felt responsible for the safety of his colleagues, the complainant, the Defendant, and anyone that could be affected by the situation. Sgt. Wallbank testified that it was his responsibility to ensure that there was a safe working environment for the officers he supervised. This evidence is plausible, it was unchallenged by any other evidence and I accept it.

[28] The Defendant, through counsel, suggests that Sgt. Wallbank has re-written history in much of his testimony. The main attack suggests that Sgt. Wallbank did not receive, or even seek, permission from Ms. Conroy to walk around the apartment to look for others present. It is also suggested that the officer's suspicions that Ms. Conroy's actions were incompatible with the report she was making, is an ex post facto justification for safety concerns that he did not have at the time. Lastly, it is suggested that Sgt. Wallbank is experienced, calculating, and his evidence concerning why he searched the Defendant's apartment is fabricated. On this theory, the sergeant was not looking for any other persons present, or to minimize any purported safety risks, he had no reason to be concerned about anyone's safety, and he walked through the apartment to look for incriminating evidence.

[29] I reject the Defendant's theory. It is not founded upon any evidence. To the contrary, I find that Sgt. Wallbank was truthful, balanced, candid, professional, and reliable. Despite that his testimony did not align perfectly with Ms. Conroy's or Constable Co's evidence, I had no concerns that Sgt. Wallbank was less than truthful at any point during his testimony. His evidence, though challenged vigorously during a comprehensive cross-examination, was not undermined in any significant respect. A few examples from Sgt. Wallbank's testimony may explain my acceptance of his evidence.

[30] An example of the plausibility of Sgt. Wallbank's evidence is found in both his examination-in-chief and cross-examination. This witness explained that because the information that the Defendant has been known to possess a firearm came from the Defendant's mother, he believed she was a reliable source for this information. The officer reasoned that it would be difficult for a parent to give this type of information to the police, because it would implicate the parent's child in a serious offence. For this reason, Sgt. Wallbank believed that the information was more compelling, than if it had been received from a confidential informant. I accept this evidence as reasonable and accurate. Knowing very little about Ms. Conroy, when he first saw her, there would be no reason to doubt her claim that her son possesses a firearm.

[31] I accept as a fact that Sgt. Wallbank believed this information and, understandably, he was in a heightened state of awareness of the risks to everyone present that a firearm may be involved. Both officers who testified after Sgt. Wallbank shared a similar heightened awareness. To some extent, this supports Sgt. Wallbank's evidence that he believed the information and it raised his concern for the protection of life.

[32] During cross-examination, Sgt. Wallbank testified that the Defendant's agitated state and the mercurial nature of Ms. Conroy's emotional presentation did not correspond with a call about Ms. Conroy's iPad getting damaged. He was well placed to make this observation. Sgt. Wallbank testified, and there is no reason to doubt, that in his 16 years of policing he has been to "hundreds" of incidents involving property damage.

[33] Moreover, there was no evidence that contradicted Sgt. Wallbank's observation that the Defendant was agitated. Constable Co's evidence supports the sergeant's testimony that the Defendant had made anti-police statements and he was upset. Constable Hunter's testimony confirmed that Ms. Conroy was "upset," "very excitable," "very emotional," "crying," and she had "tears running down her face."

[34] It is suggested that Sgt. Wallbank's evidence was a fabricated pre-text or a ruse he created after a firearm was found and knowing he would have to justify his claim of a plain-view search of the Defendant's bedroom because of safety concerns he never actually had. There is no evidence to support this suggestion. I completely reject it.

[35] One can legitimately question the necessity to conduct a protective search of the Defendant's apartment in the circumstances known to police at the time (see the analysis below), but short of disbelieving Sgt. Wallbank's evidence for no reason, and despite the impeccable logic that a mother's claim of her son possessing firearms is likely reliable information, there is no rational basis upon which to dismiss or discredit the material aspects of Sgt. Wallbank's testimony.

[36] I find that Sgt. Wallbank was balanced in his testimony. He admitted where he had made mistakes or could have done things differently (in cross-examination he agreed that it was possibly a mistake that the Defendant was not immediately detained for the alleged property damage). To use his words, "things could have happened a lot smoother that day." Sgt. Wallbank was candid that he did not inform Ms. Conroy that she could refuse him permission to walk around the apartment to look for others present. Most importantly, Sgt. Wallbank admitted that he had no reasonable answer for why he said he looked into the Defendant's bedroom a second time. He "just did." These examples assist me in concluding that Sgt. Wallbank was truthful while testifying.

[37] One tack of cross-examination focussed on Sgt. Wallbank's notes of his discussion with Ms. Conroy about other occupants in the apartment and his desire to look around. In his examination-in-chief, he testified that she told him nobody else was present but when he asked if he could look around, she said, "fine." In cross-examination, it was pointed out that his notes reflected that Ms. Conroy said, "yes." Sgt. Wallbank explained that he had not put quotation marks in this part of his notes because he was recording her agreement and not her exact response. This was a reasonable explanation. It accorded with his apparent practise, as found in another part of his notes where he had cited the Defendant's exact words in quotation marks.

[38] This variance in the evidence involved a key issue. Constable Hunter could only confirm that Sgt. Wallbank had asked about others in the apartment. Constable Hunter had noted this and the fact that Sgt. Wallbank had found a firearm in plain view. His notes were not an exemplar of memorialisation.

[39] I accept Sgt. Wallbank's general evidence that he followed up the discussion about anyone else present with a request to look around. Like all of his notations of the incident, he recorded this before the apartment was searched pursuant to a search warrant. Though it was known at that time that an object resembling a firearm had been seen, Sgt. Wallbank testified, and it is unchallenged, and I accept, that he did not handle the item he saw in the Defendant's bedroom. He would have had no real way of knowing that it was a functioning, loaded firearm that would lead to criminal charges. Even though he had directed the arrest of the Defendant on the belief that he had found a firearm, Sgt. Wallbank would have had little reason to begin to concoct his notes in the manner suggested to include a conversation with Ms. Conroy that never took place. The fact that his notes did not purport to capture her exact words or a quote from Ms. Conroy weakens the suggestion that he fabricated this part of his notes to support his actions.

[40] Sgt. Wallbank acted professionally in his dealings with the other officers and Ms. Conroy that day. He was professional in his demeanor while testifying. He was dealing with a distraught complainant who had called the police to arrest her son. His claim to have sought her permission, even though he believed he would have searched the apartment for others present regardless of her answer, because she was a "victim" and he did not want to "barge" around and be "unprofessional," made sense. Sgt. Wallbank testified that he did not know how many people lived in the apartment. It was reasonable to ask if anyone else was present. It was not unreasonable for Sgt. Wallbank to satisfy himself that nobody else was present. He would have had no reason to suspect that Ms. Conroy would not want him to verify that she was being truthful in denying the presence of others. I find as a fact that he asked Ms. Conroy to look around and she agreed that he could.

[41] Another reason to believe Paul Wallbank's evidence was his candour. This officer admitted that he did not see the firearm when he looked into the Defendant's bedroom the first time, and he only saw it when, for no reason that he can articulate, he decided to look into the room a second time. This is a potentially damning admission. It undermines his claim that the firearm was in plain-view and the purported reason for looking into the bedrooms of the apartment, to seek other occupants. He had already satisfied himself that the Defendant's bedroom was unoccupied. The photograph of the bedroom shows an open closet door. The room appears small in the photograph. There was no articulable reason to search the Defendant's bedroom a second time, and certainly no apparent reason to look closely in the far corner of the room on the top of a chest of drawers. But that was his evidence. I accept it as truthful.

[42] The entire attack upon Sgt. Wallbank's evidence is directed at his sincerity. It is posited that he has obfuscated his behaviour, his discussion with Ms. Conroy, and his motivation animating his cursory apartment search during his testimony. There was no independent attack upon the accuracy of his evidence apart from its truthfulness. I have concluded that Sgt. Wallbank testified truthfully, and where his evidence differs from Constable Co's whether he asked if the Defendant had been searched for weapons, I am not satisfied on the basis of Constable Co's evidence or Ms. Conroy's that this did not occur, but even were this not the case, I can accept that this was an insignificant detail in the overall context of the sergeant's activities that day, he had not noted this event in his memo book, he may simply be mistaken about this, and it does not detract from his overall reliability as a witness.

[43] In his initial factum filed with the Defendant's Application, he included an excerpt of Ms. Conroy's statement to the police once they left the apartment after the Defendant's arrest. The transcript of her entire police statement was part of the Applicant's materials, but never referred it to during oral argument. I find in respect of Sgt. Wallbank's visual search that Ms. Conroy told police that evening that "they were just looking around to see like is anybody here-, else here, or if the place is calm." This also provides limited support for the view that Sgt. Wallbank had communicated his interest to search the apartment for anyone else present, even though Ms. Conroy's statement is silent whether or not she acquiesced or provided her consent for this.

Michael Hunter

[44] There was no challenge to this officer's evidence. Indeed, this officer's testimony fortifies the Defendant's position that Sgt. Wallbank only asked Ms. Conroy about the presence of others in the apartment and there was no request to look around.

[45] Constable Hunter's credibility was not challenged. Nor was his reliability. However, in considering the value of the apparent discrepancy between this officer's notes and his recollection with Sgt. Wallbank's testimony concerning a request to walk through the apartment, I have considered the following:

i. While testifying, this witness candidly admitted that he was "blanking" on some of the events and he was "just checking" his notes so he is "not missing" anything;

ii. Other than asking if anyone else was present, "that was pretty much the extent" of what he could recall Sgt. Wallbank asking Ms. Conroy;

iii. He testified in chief, "I don't remember him saying anything more;"

iv. He did not remember as he entered the apartment that Ms. Conroy was on the telephone, yet his voice is heard in the background as he enters during the end of the 9-1-1 call;

v. His memory vacillated on whether he knocked on the apartment before he was let inside;

vi. When asked in cross-examination if his memory was at a standard of perfection he admitted, "I don't remember everything;"

vii. Constable Hunter made no notes of Ms. Conroy's utterances in response to Sgt. Wallbank;

viii. In cross-examination Constable Hunter answered that he did not know if Sgt. Wallbank said anything else after Ms. Conroy confirmed what she had told Constable Hunter (that nobody else was present); and

ix. When cross-examined about what Sgt. Wallbank may have said to Ms. Conroy about giving a statement to police, Constable Hunter testified, "I don't remember what he may have said to her, exactly."

[46] Given the findings I have made respecting the accuracy and truthfulness of Sgt. Wallbank's evidence and the inability of Constable Hunter to contradict the sergeant's testimony of a request to walk through the apartment, I have assessed the value of this evidence as neither confirming nor contradicting Sgt. Wallbank on this key issue.

Mark Co

[47] It is difficult to assess the value of Constable Co's evidence. He appears earnest and well-intentioned. Nonetheless, he testified poorly. He was extremely cautious in the way he answered questions. I did not believe that he was intentionally misleading the court, but I cannot say that I had confidence that he was answering questions simply and accurately without actively trying to avoid some perceived trap. As a result, it was difficult to listen to his evidence.

[48] Although there was a discrepancy between Constable Co's evidence (that he had initially searched the Defendant and he never had any discussion with Sgt. Wallbank about this) and Sgt. Wallbank's evidence, I cannot resolve this on the basis of this witness' evidence. I am not prepared to draw a negative inference about the veracity of Sgt. Wallbank's evidence on the point in light of the unsatisfactory nature of Constable Co's evidence.

[49] To a limited extent, Constable Co's testimony supported Sgt. Wallbank's evidence that the Defendant was upset and expressed anti-police sentiments before he was arrested.

Analysis

[50] The Defendant has alleged several Charter violations and related arguments:

i. The initial pat-down search of the Defendant violated s. 10(a);

ii. The warrantless apartment search conducted by Sgt. Wallbank was not consented to by any of the apartment's occupants and violated the Defendant's s. 8 Charter right;

iii. It was not objectively reasonable for Sgt. Wallbank to conduct a protective search of the apartment;

iv. There were no reasonable grounds to arrest the Defendant and the search of the apartment was not incident to any arrest; and

v. The firearm must be excluded pursuant to s. 24(2) of the Charter.

[51] The prosecutor defends the Application on four bases:

i. Ms. Conroy gave the police permission to conduct a visual search of her apartment;

ii. The Defendant was arrestable and the search, although it preceded the arrest, was incident to arrest;

iii. The quick visual scan of each room was justified under R. v. MacDonald, 2014 SCC 3; and

iv. Alternatively, any Charter violation should not result in a s. 24(2) remedy.

There Was a Valid Consent Given to Sgt. Wallbank to Search the Apartment

[52] I have found that Ms. Conroy gave Sgt. Wallbank permission to search the apartment. The Defendant has argued that the consent given was inadequate in that it did not conform with the requirements of R. v. Wills.

[53] For the purposes of this analysis, I assume that the strict requirements laid down in that case apply to the consent given by Ms. Conroy, although she was not a suspect, she was never charged, and she is not the Defendant before the court.

[54] In Wills, the court held that the following must be established by the prosecution on a balance of probabilities, to establish a valid consent:

i. there was a consent, express or implied;

ii. the giver of the consent had the authority to give the consent in question;

iii. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

iv. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

v. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,

vi. the giver of the consent was aware of the potential consequences of giving the consent.

[55] The prosecutor did not address the Wills requirements orally or in writing.

[56] For the reasons stated, I am satisfied on a balance of probabilities that consent was expressed by Ms. Conroy to permit Sgt. Wallbank to walk around the apartment.

[57] There is no question that Ms. Conroy, as a tenant of the apartment, had authority to permit the police to walk through the Defendant's home.

[58] There is no suggestion that Sgt. Wallbank was anything other than professional and respectful in his dealings with Ms. Conroy leading up to the walkthrough search. The cross-examination of Ms. Conroy satisfies me that there was no oppressive conduct on the part of the police which could have negated her free choice in the circumstances.

[59] It also seems obvious, given the statement later made by Ms. Conroy to police, that she knew the extent of what Sgt. Wallbank wanted to do and why he sought her permission.

[60] If there is any contest to the consent given, it appears to reside in the fifth factor: was Ms. Conroy aware of her right to refuse Sgt. Wallbank's request.

[61] As her evidence at the conclusion of her examination-in-chief made clear, Ms. Conroy is no stranger to the criminal justice system.

[62] During re-examination, Ms. Conroy was asked what reason Sgt. Wallbank could have given her that would have altered her purported mindset to refuse to let him walk around the apartment, had he asked. Ms. Conroy answered that if the officer had showed her a "judge's order" to demonstrate his "authority" to do so, that [would have made a difference].

[63] I am satisfied on the basis of this evidence, and in light of her life experiences that Ms. Conroy had an awareness of the limits of the officer's authority and she knew that she could refuse the sergeant's request.

[64] The sixth and final factor is somewhat obvious. Ms. Conroy knew what Sgt. Wallbank wanted (to look around), and she knew why (she expressed to police that he was concerned that others may be present). I find that Ms. Conroy knew that the consequence of giving Sgt. Wallbank her consent meant that he would walk through her apartment and look around. Could she have known that Sgt. Wallbank may find evidence of an offence (illegal contraband, which she claims not to have known existed) and her son could be arrested; could she know the innumerable other possible consequences of a police walkthrough of her apartment (estrangement from her son or difficulties with her continued tenancy, among others)? How direct or remote must the potential consequence be to confirm or vitiate consent?

[65] Informed consent requires that an individual must know what is being asked by the state and why. The possible consequences of giving consent with that awareness must not devolve into a theoretical exercise of every conceivable outcome. Were that the test, no court could ever find a consent truly informed, absent explicit evidence solely from the person challenging the existence of consent.

[66] I am also satisfied on a balance, that Ms. Conroy's mindset at the time was different than she recounted during her testimony. She had called the police due to her frustrations and concerns with her son. Ms. Conroy wanted the police to remove her son, who had a legal right to be present (he was also a tenant on the lease), because she found his behaviour abusive. Ms. Conroy's iPad was still missing. I have no difficulty finding that Ms. Conroy wanted Sgt. Wallbank to satisfy himself that the scene was secure and she willingly permitted the cursory visual sweep that he conducted.

There was No Search Incident to Arrest

[67] A valid search incident to arrest presumes a lawful arrest. The prosecutor submits that a search conducted "incident" to an arrest need not follow the arrest. This may be so. However, on the evidence before the court, the grounds for an arrest had yet to be formulated much less believed by Sgt. Wallbank.

[68] During cross-examination, it was suggested to Sgt. Wallbank that his walk around the apartment was in no way "a search incident to arrest" and he "absolutely" agreed with that suggestion.

[69] I find that Sgt. Wallbank lacked any subjective belief that the Defendant could be arrested when he conducted the protective search he employed. Without a subjective belief, there could be no lawful arrest, nor could a pending arrest justify the search that took place here.

Is a Protective Visual Search Authorized by Law

[70] The prosecutor also sought to justify Sgt. Wallbank's warrantless search as reasonably necessary to fulfill the police duty of protecting life and ensuring the safety of everyone at the scene that day.

[71] In R. v. MacDonald, 2014 SCC 3, the Supreme Court of Canada considered the limits of "safety searches." Recognizing the two-step test from R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), our highest court held:

At the first stage of the Waterfield test, the court must ask whether the action falls within the general scope of a police duty imposed by statute or recognized at common law. For safety searches, the requirement at this first stage of the analysis is easily satisfied…

At the second stage, if the answer at the first is affirmative, as it is in this case, the court must inquire into whether the action constitutes a justifiable exercise of powers associated with the duty. [5]

[72] The interference with the privacy rights must be necessary to carry out the police duty, and it must be reasonable having regard to the nature of the interference with liberty.

[73] The police were responding to a disturbance involving two adult family members. Both the complainant and the suspect were emotional. In Sgt. Wallbank's opinion, the Defendant was "emotional" and "agitated." This call for service provided two sources of information (Ms. Conroy and the police database) that the Defendant may be armed or have possession of weapons (a firearm or a baton). The Defendant was demanding to be arrested and expressed that he hated the police. For Sgt. Wallbank, Ms. Conroy was unusually distressed, given the complaint of alleged minor property damage.

[74] In my view, this was a dynamic and potentially volatile situation. The police were justified to take reasonable measures to ensure the safety of everyone present, even if that meant minimal interference with personal liberties.

[75] The question becomes what was reasonably necessary in the circumstances. The Defendant was separated from the object of his distress (his mother) and any potential source of weapons (kitchen utensils, for instance) within the apartment.

[76] Sergeant Wallbank never articulated that he had a "reasonable suspicion" or "reasonable grounds to believe" or even "grounds to be concerned about the possibility of violence." [6]

[77] However, Sergeant Wallbank was clear and unshaken in his testimony that he was concerned that there may be others present at the apartment who could be in distress, or worse, and it was for their potential benefit that he wanted to take a look around. He stressed that the safety of everyone at the scene was his greatest concern. I accept this evidence without reservation. Though it was vigorously challenged in cross-examination and during submissions, there is no basis to doubt the veracity of this professed concern. I find that Sgt. Wallbank's language tracks the reasonable grounds standard articulated in MacDonald. [7]

[78] Is this a sufficient justification to have walked through the Defendant's home, in the circumstances known at the time?

[79] There are difficulties with justifications based merely upon police suspicion or unsubstantiated hunches: these assessments are devoid of content, they are prone to exaggerated significance, and they are susceptible to manipulation to mask impermissible considerations (grounded in baseless fear or prejudice). Hunches and bald suspicion find no rung on the ladder of proof in criminal investigations. Police are required to consider objectively discernible factors which may be subsequently assessed for their evidential value.

[80] I am satisfied that there were objective indicators of the potential for harm if a reasonable safety search was not conducted:

i. Both parties were emotional; the Defendant was agitated;

ii. Sgt. Wallbank was unfamiliar with either party, their thresholds for distress, their tolerance of turmoil, their motives, or even whether or not Ms. Conroy was under the influence of alcohol or drugs, given that her eyes were "unfocussed;"

iii. Sgt. Wallbank was aware that minor property damage (a minor act of aggression/violence) had been alleged;

iv. Sgt. Wallbank was unable to learn from police checks how many people resided at the apartment;

v. According to Ms. Conroy, the Defendant was allegedly known to have carried a firearm; if such an item existed, it was unaccounted for;

vi. According to the police database, the Defendant was allegedly known to have carried a baton; if such an item existed, it was unaccounted for;

vii. The Defendant was acting in an unusual way; he was demanding to be arrested;

viii. The Defendant professed his hatred for police (exhibiting possible animus and the potential for aggression/violence); and

ix. Ms. Conroy was consenting to a cursory search of the apartment.

[81] In all the circumstances, I have no difficulty concluding that it was both reasonable and necessary to ensure that there were no other parties involved or in need of assistance beyond the immediately visible confines of the Defendant's apartment. It must also be remembered that there was a realistic risk that given the firearm complained of by Ms. Conroy was not on the Defendant's person, that it could be located with his other effects inside his home. If another person had been present with the then-unaccounted for firearm, the risks to the safety of everyone in that vicinity were immeasurable.

Is the Law Permitting Protective Searches Reasonable

[82] There was no submission by either party on this issue.

[83] Given that the source of the protective or safety search is the Supreme Court decision in Macdonald, there can be little debate that this common law power, if it meets the threshold of reasonable necessity on an objective basis, is a reasonable exercise of police authority.

Was the Protective Search Carried Out Reasonably

[84] There was no submission by either party on this issue.

[85] The evidence establishes that Sgt. Wallbank was respectful of the occupier's privacy interests. He did not disturb any property or enter any bedrooms, until he approached what he believed to be a firearm, only to confirm his suspicion. The search was momentary and did not involve bodily integrity, intrusive techniques (such as going through drawers or personal effects), or even manual manipulation of the items seen.

[86] Once the officer was satisfied that the item he observed was a firearm, he secured the premises and sought judicial authorization to gather further evidence and seize the suspected item. Again, I have no hesitation in concluding that the cursory visual search of the apartment was carried out reasonably.

Section 24(2) of the Charter

[87] Although I have not found that Sgt. Wallbank violated the Defendant's right to be free from unreasonable search or seizure, I will conduct an analysis to determine where I would situate the alleged gravamen on a continuum of harm.

[88] Having dealt with the Applicant's arguments concerning the nature of the s. 8 violation and the police conduct leading up to it, I will now turn to whether or not the admissibility of the firearm in the Defendant's trial would bring the administration of justice into disrepute.

[89] The parties agree that the three-prong test from R. v. Grant, 2009 SCC 32 governs the exclusion of evidence under s. 24(2) of the Charter.

[90] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect that tainted evidence has upon public confidence in the criminal justice system.

[91] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Defendant; and

iii. Society's interest in the adjudication of the case on its merits.

[92] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor "pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case." [8]

Seriousness of the Charter Infringement

[93] This case involves a violation of a significant Charter right: The right to be left alone from the prying eyes of the state when in the sanctuary of one's home. Perhaps only searches involving bodily integrity are potentially more intrusive upon one's privacy rights.

[94] The Defendant rightfully asserts that if a s. 8 violation is established this factor favours exclusion of the firearm evidence. However, I would note that there are mitigating factors also relevant to the seriousness assessment.

[95] The following factors mitigate the seriousness of any Charter violation in this case:

i. Based upon all of the information known to police at the time Sgt. Wallbank began his walkthrough search, the police were close (if not already there) to having sufficient grounds to seek a search warrant for the Defendant's apartment (to search for both the missing iPad and a firearm);

ii. Sgt. Wallbank sought the consent of Ms. Conroy; if he missed the mark in terms of informed consent, it was not by much (fifth and/or sixth factors only);

iii. The manner of the search was minimally intrusive;

iv. The police recognized the need to obtain judicial authorization to confirm the suspicion that a firearm had been found and to seize it; and

v. A search warrant was granted. There is no issue that the warrant was appropriately granted, the warrant was lawful, and the subsequent warranted search was carried out reasonably.

[96] The s. 8 violation, if any, was of modest seriousness in all of the circumstances.

[97] I have also considered what, if any, effect a concurrent s.10 violation has in the circumstances. The breaches were occasioned by different state actors and were unrelated but overlapping in time.

[98] The Defendant was detained for approximately 20 minutes while the police spoke to his mother about an alleged property offence and possible threatening behaviour. He was not told why he should empty his pockets or remain present, but there can be no doubt that he would have felt compelled, surrounded by three uniformed police officers, to remain at the scene. Given the situation when the police arrived (the Defendant was yelling and banging on the apartment door), the Defendant would not have needed much information to understand the reason for his detention.

[99] Also, the Defendant was not given his s. 10(b) rights to counsel (not that his Application or oral submissions has advanced this complaint), or even the informational component of these rights until his arrest, some 20 minutes after police confronted him outside his residence.

[100] I do not conclude that there is a pattern of Charter violations or the kind of cascading breaches that reflect a significant ignorance of or disregard for constitutional norms. The situation was dynamic, potentially violent, and the police actions were exploratory while the investigation was still nascent. The brief detention did not involve physical touching, abusive police conduct or language, or demands, beyond the initial pat-down search. If anything, the Defendant was arrestable for property damage and the detention inured to his benefit by the lack of physical restraint or the warning of criminal allegation and the potential loss of liberty. I find that the s. 10 violation was minor and would not have significantly altered the assessment of the first Grant factor.

[101] Having concluded that the seriousness of the Charter violation(s) was/were modest, I find that this factor pulls firmly toward the exclusion of evidence.

Impact of the Charter Violation(s)

[102] Contrary to the allegations made by the Defendant, the behaviour of the police did not establish a cavalier attitude regarding constitutional rights. I found that the police were professional and acted respectfully toward the Defendant.

[103] The Charter breach relating to the unauthorized search involves a well-established principle (the home is inviolable without informed consent or prior judicial authorization), and an attempt to obtain consent in circumstances that were perceived to be possibly life-threatening. The police had been invited into the Defendant's home by his mother. That the officer initially made fleeting visual observations of the contents of the Defendant's bedroom, through an opened door, from the threshold of the room, as an invited guest into the home would have had a minimal impact upon the Defendant's privacy interests. He did not live alone. He had chosen to leave his bedroom door propped open by a laundry basket. His behaviour had caused his mother to call the police to their home. He had left his firearm in a position where it could easily be observed from outside his bedroom. All of the circumstances satisfy me that the sergeant's visual search of the inside of rooms only feet away from where the police were invited to be, where the articulated basis if it fell short of reasonable grounds for a protective search was only minimally so, lead inexorably to a finding that the effect upon the Defendant was minimal.

[104] Had nothing of consequence been found, the expense upon the Defendant's privacy interests to quell the sergeant's safety concerns would have been negligible. The ultimate consequence (criminal arrest and charges) does not justify a different sum in the calculus of harm. From the Defendant's perspective, knowing where he had left the firearm, once he was locked outside the residence by his mother, he would have known that she could have easily discovered his illegal firearm and provided it to the authorities. This may explain his determination to re-enter the home once he was barred or his insistence upon an arrest and hopeful transportation away from this damning evidence.

[105] Lastly, because the police were likely to continue the investigation for the firearm and may well have sought and received a search warrant for the apartment, the discoverability of it also minimizes the effect of the s. 8 violation.

[106] The s. 10 breaches were almost of no moment. As indicated, an unlawful detention could not have impacted the Defendant more significantly than a lawful arrest for property damage, for which there was an abundance of grounds. It was as if the police who dealt with the Defendant wanted time to elapse to reduce the emotions at play before deciding whether or not to make an arrest. Fortunately, no evidence was solicited from the Defendant during his detention.

[107] In terms of the ultimate effect of these assumed Charter violations, it would be minimal. There is no complaint of any excessive police conduct, either in the detention and arrest of the Defendant or the execution of either the warrantless or warranted search.

[108] The effect of these Charter violations, if they existed, only minimally pull in favour of exclusion.

Society's Interest in the Adjudication of the Case on its Merits

[109] In McGuffie, the Ontario Court of Appeal spoke about the tension between the three considerations:

The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case. In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [9]

[110] There is no doubt that the firearm existed independent of any Charter-infringing conduct. It is real evidence and does not emanate from the Defendant, who was not conscripted in any way to participate in an investigation to incriminate himself. Its exclusion results in a windfall acquittal on almost all of the charges before the court.

[111] It must not be forgotten that the third Grant factor cuts both ways. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. The right to be left alone by the state in the privacy of one's home is fundamental to our enjoyment of life. It is equally true that a failure on the part of courts to appropriately sanction improper state intrusions upon our greatest privacy interests would also harm the public's perception of the administration of justice.

[112] There was much said by the Defendant that Sgt. Wallbank insisted that he would have conducted his cursory protective search regardless of Ms. Conroy's objections. Though this evidence is irrefutable, it is also hypothetical. What may have occurred did not. Moreover, given the officer's serious and significant concerns that everyone's safety was at risk, he may well have been justified to have held this view, but as it did not arise, I need not decide it. I have little concern that the sergeant's emphatic view was not open to re-consideration if he had been presented with the occupier's denial of consent. Given the potential for harm, his undeterrable caution was not necessarily unwarranted.

[113] There is no evidence that the failure of Sgt. Wallbank or Constable Co is long-standing, widespread, or systemic within the Peel Regional Police. I tend to the view that disapprobation of their conduct by the court is commensurate with the misbehaviour occasioned. If the police conduct fell short in this case, it was not by much, or to great effect.

[114] I do not find that the long-term effect of admitting the firearm evidence in the circumstances of this case would bring the administration of justice into disrepute. To the contrary, the exclusion of reliable, crucial evidence that was ultimately discoverable and unrelated to the violation of the Defendant's Charter rights would undermine confidence in the justice system.

Conclusion

[115] I am not satisfied on a balance of probabilities that any evidence ought to be excluded in this trial. Were I to have found any of the alleged Charter violations had occurred, which I have not, I would not have granted any remedy under s. 24(2) of the Charter.

[116] The Application is dismissed.

Released: 22 December 2020

Justice G. Paul Renwick