ONTARIO COURT OF JUSTICE

Date: 2022 04 05 Court File No.: Toronto Region 20-75001119

Between:

HER MAJESTY THE QUEEN

— AND —

ENCAN ZHU

Before: Justice F. BHABHA

Heard on: October 4th, 5th, 6th; December 14th, and 15th, 2021; February 11th and 23rd 2022

Charter Rulings relating to sections 7, 8, 9, 10 (a) and 10(b) and 24(1) and 24(2) released April 4th, 2022

Ms. Vicky Hentz, counsel for the Crown/respondent Mr. Jake Shen, counsel for the applicant Encan Zhu

Bhabha, J.:

Introduction

[1] The applicant, Encan Zhu, alleges multiple violations of his rights under the Canadian Charter of Rights and Freedoms (the “Charter”) and applies for a stay of the proceedings under s. 24(1) of the Charter, or in the alternative, the exclusion of evidence under s. 24(2). The applications were heard in advance of his trial, which is scheduled for four days commencing on April 25th, 2022.

[2] On March 23rd, 2022, the Court provided brief oral reasons indicating the result of the applications. These are the written reasons that explain the court’s ruling denying the stay of proceedings but finding that the B.B. pistol (the “gun”) the police seized from the applicant’s residence should be excluded from the evidence at his trial.

[3] The applicant is charged with the following four offences:

1. Pointing a firearm namely a BB pistol at Lihuang Xie
2. Uttering a threat to cause bodily harm to Lihuang Xie
3. Using an imitation firearm, namely an imitation pistol
4. Possessing a weapon namely a BB pistol for a dangerous purpose

Overview

[4] The charges stem from what began as a landlord-tenant dispute that took place on February 28th, 2020. The applicant and a woman named Yisha Li were residents of a condominium apartment on the 22nd floor of a high rise residential building located at the intersections of Yonge and Bloor Streets, in the city of Toronto. The complainant, Lihuang Xie, was their landlady.

[5] The police initially attended the apartment at Ms. Li’s request. She called 911 to report the dispute with their landlady. Constable Farrell and his partner, Constable Meira responded to the call a few hours later. It was a low priority call. Ms. Li was unable to go down to the lobby to meet the officers, so it was the applicant who met them there. They then followed him to the apartment so that they could discuss the reason for the 911 call.

[6] Constable Meira was still in training having very recently graduated as a police officer. Constable Farrell took the lead. He spoke to the applicant and Ms. Li. After hearing their complaint, he explained that this was a landlord-tenant dispute and not a criminal matter. Neither he nor Constable Meira had any safety concerns while they were in the apartment. They then left the apartment.

[7] As the two officers made their way to the elevator, the landlady, Ms. Xi, and a few other individuals were still in the hallway. Constable Farrell spoke with her and her companion briefly. They explained the same thing to her that they did to the applicant, that this was a landlord-tenant matter not a matter for the police. Towards the end of her brief conversation with police, Ms. Xie asked “what about the gun?” She disclosed that Mr. Zhu had pointed a gun at her earlier that morning when she attended at the apartment to investigate complaints she had received about a foul odour emanating from the unit.

[8] This was an unexpected change in the nature of the investigation. Constable Farrell asked the complainant a few questions about the appearance of the gun and why she did not call 911. He also spoke to her companion briefly about the gun. He tried unsuccessfully to call for back-up. He determined that the situation raised officer and public safety concerns. He also explained that he, his partner, and the complainant and other individuals were in the hallway within 20 feet of the applicant’s apartment where he believed the gun to be. In addition, he was also concerned about the possible loss of evidence in the event the gun was discarded from the balcony onto busy Bloor Street below.

[9] Constable Farrell explained that he determined that obtaining a search warrant was not feasible given what he believed to be exigent circumstances. He decided that a warrantless entry into the residence was necessary, primarily for reasons of public and officer safety. He also expressed concerns about the gun being discarded should it thrown off the balcony.

[10] Constable Farrell and his partner returned to the apartment. Once again, he took the lead. He did not knock. Constable Farrell tried to open the door. It was locked. Mr. Zhu opened the door. The two police officers entered and immediately arrested him and Ms. Li and informed them that the reason for their arrest was for pointing a firearm and possession of a firearm.

[11] With the assistance of Constable Meira, Ms. Li and the applicant were handcuffed. Constable Farrell then answered questions that Ms. Li and Mr. Zhu had about their respective arrests. He recalled that they appeared confused by the situation and upset. He then asked them both where the gun was. Constable Farrell testified that Mr. Zhu denied that there was a gun, but Ms. Li disclosed to him that it was on the balcony. Constable Farrell attended on the balcony where he located the gun and seized it as evidence. It was a in a closed shoebox. The applicant gave a very different account of the exchange with Constable Farrell, but he testified that he had to ask Ms. Li where the gun was because she had put it on the balcony.

[12] Although she was initially arrested, Ms. Li was never charged with any offence because her role was determined to have been limited to merely handling the imitation firearm and placing it in the shoebox on the balcony.

[13] As noted, Mr. Zhu alleges violations of his rights under sections 7, 8, 9 and 10(b) of the Charter and seeks a stay of the proceedings, or in the alternative, an order excluding the gun as evidence on his trial.

Legal Issues

[14] The following are the issues raised on the Charter applications:

1. Can the Crown justify the warrantless entry into the applicant’s residence based on exigent circumstances?
2. If the Court finds that there were exigent circumstances that justified the warrantless entry into the residence, were the police authorized to search for the gun as part of their search powers incident to arrest?
3. If exigent circumstances justified the initial entry into the unit, did they also justify the police questioning of the arrestees before they had an opportunity to consult with counsel or was there a duty to hold off such questioning?
4. If the Court finds that the applicant’s Charter rights were infringed, should all the charges be stayed as a remedy under s. 24(1) or should the gun, be excluded from the evidence under s. 24(2) of the Charter?

Positions of the Parties

[15] The Crown submits that the warrantless entry was justified because of exigent circumstances. This investigation took an unexpected turn that gave rise to public and officer safety concerns requiring the police to act immediately. The urgent circumstances did not allow the time necessary obtaining a search warrant.

[16] The Crown further submits that the applicant has failed to establish the remaining Charter breaches he asserts. In the alternative, the Crown submits that should the Court find a section 8 or section 10(b) Charter breaches, they were neither serious enough to warrant the extreme remedy of a stay of proceedings, not do they warrant exclusion of the gun under section 24(2) of the Charter. The Crown asks the court to accept that it was Ms. Li who utterance led to the seizure of the gun. Since she is not a party to these proceedings, the applicant’s fair trial interests are not directly impacted by the breach of Ms. Li’s section 10(b) rights.

[17] The applicant submits that there were multiple and successive Charter violations that formed part of a pattern of abusive and egregious state conduct; conduct that warrants a stay of the proceedings under section 24(1) of the Charter. In the alternative, at a minimum, the Charter breaches should result in the exclusion of the gun from the evidence under section 24(2).

[18] The applicant testified in support of his Charter applications. Ms. Li, his girlfriend at the time, did not. In response to the crown’s submissions about the absence of this potential defence witness, the applicant submitted that her absence has no bearing on the analysis of whether the applicant’s Charter rights were breached or the seriousness of the alleged breaches. The applicant further submits that her absence could have been for tactical, logistic, or financial reasons.

[19] The applicant submits that there were no exigent circumstances that could justify the warrantless entry and search of his residence. In addition to the section 8 breach, he also complains that his section 7, 9 and 10(b) rights were violated. There is no section 10(a) application before the court, but the applicant also testified that he was not advised of the reason for his arrest until after he was transported to the station for booking.

[20] The applicant submits that the investigating officers, Constable Farrell, and Constable Meira, colluded to fabricate their notes and then their evidence to cover up the section 10(b) breach. He submits that Constable Farrell lied when he testified that Ms. Li disclosed the location of the gun, and Constable Meira lied when she testified that she did not hear Constable Farrell ask about the gun, nor did she hear a response from him.

[21] The applicant was asked in examination in chief why he disclosed the location of the gun. Although he testified that the officer was scary, he also testified that in fact he wanted to tell the officers about the gun so that the officers could see that it was just a toy gun. In his words: “I want him to locate it and find it to prove that’s only a toy gun”. But having last seen the gun on the top of the fridge, he first had to ask Ms. Li where it was. He acknowledged that she was the one who put it on the balcony.

[22] Mr. Zhu asks the court to accept his evidence as credible. He seeks a stay of the proceedings based on what he characterizes as successive and serious Charter violations that constituted a pattern of egregious and abusive police conduct. He also submits that if the gun were admitted into evidence, it would significantly impact trial fairness.

Summary of the Court’s Findings

[23] I accept Constable Farrell’s testimony as it relates to his reasons for entering the applicant’s residence without a warrant. I also find that objectively there were exigent circumstances justifying the warrantless entry into the apartment to effect the arrests of Mr. Zhu and Ms. Li. There were ample grounds to arrest Mr. Zhu. Since the arrest was lawful, the application under section 9 fails. There was no arbitrary detention.

[24] Once the applicant and Ms. Li were placed under arrest and handcuffed the threat to officer or public safety was contained. In the Court’s view the proper course of action should have been to secure the premises and to obtain a search warrant to locate the gun. There were solid grounds to obtain a search warrant. The “seizure” of the gun following the arrest in the absence of a warrant was not justified, especially considering that the officer learned about the precise location of the gun because he asked about it after having read the parties their right to counsel.

[25] I reject the notion that the officers colluded to fabricate their notes or that their testimony about who made the disclosure about the gun’s location was false. The applicant’s testimony that he disclosed the location of the gun was not credible. I find that it was Ms. Li who made the disclosure. I also find the applicant’s evidence that there was a search of the apartment after the gun was located not to be reliable or credible. He was inventive about his observations and generally had an inaccurate recollection of the events of the day. In short, the court cannot safely accept his testimony.

[26] Turning to police power to search incident to arrest, although arresting officers have broad powers to search incident to an arrest, that power is not unfettered. I find that in the circumstances of this case, the search of a closed shoe box on a balcony falls well beyond the purview of what was permissible in any search incident to the arrests of Mr. Zhu and Ms. Li. The search and seizure of the gun therefore cannot be justified on this alternate basis suggested by the Crown.

[27] I do not find that there was general search of the unit after the gun was found. The police officers who testified on this issue were unshaken in cross-examination.

[28] As for the s. 10(b) breach, once the parties were placed under arrest, I find that the concern about officer and public safety was no longer present. As well, any concern about the possible destruction of the evidence was allayed given that the two parties were handcuffed. Constable Farrell ought to have held of questioning Mr. Zhu or Ms. Li about the gun. Questioning the arrestees after they had indicated they wished to speak to counsel, and then “searching” for the gun after its location was divulged, was a clear violation of Mr. Zhu’s rights under sections 8, and 10(b) even though I also find that it was Ms. Li and not Mr. Zhu who disclosed to Constable Farrell that the gun was on the balcony.

[29] Finally, with respect to s. 24(1) and (2) analysis, I have considered the seriousness of the multiple Charter violations. I have also considered whether the disclosure of the location of the gun by a third party, co-resident, also under arrest at the time impacted Mr. Zhu’s fair trial rights. I have also considered other factors including the fact that the gun is real evidence that is reliable and that it would inevitably have been discovered had a search warrant been sought. I find that in the circumstances of this case, a case for drastic remedy of a stay of the proceedings under s. 24(1) has not been made out. However, balancing all the relevant factors, I conclude the gun should be excluded from the evidence under section 24(2) on the basis that the damage to the reputation of the administration by admitting the evidence of the gun is greater than by excluding it.

Exigent circumstances: The Evidence

[30] The court did not hear from the complainant directly, but the information she provided to the police is part of the relevant narrative for the purposes of deciding the Charter applications. It is the basis on which they arrested the applicant.

[31] The complainant, Lihuang Xie, was the applicant’s landlady at the relevant time. On the date in question the landlady and a male friend entered the applicant’s apartment to investigate complaints from management about a foul odour emanating from the apartment. While inside the unit she opened windows to ventilate the space. Mr. Zhu did not agree that the place needed cleaning or that the air needed ventilation. Words were exchanged after which the landlady and her friend left the apartment, but not the building. When the police arrived to speak to Mr. Zhu and Ms. Li, Ms. Xi and her companion were still in the hallway of the 22nd floor. They were accompanied by building security.

[32] Ms. Li and Mr. Zhu were upset that the landlady had entered the premises, without notice, and they had a difference of opinion regarding the cleanliness of the apartment. Although Mr. Zhu initially testified that it was he who called 911, he later agreed that it was in fact Ms. Li who called police to report their dispute with the landlady.

[33] Two hours after the initial 911 call, the police responded to what was deemed a low priority call. Ms. Li was not available, so Mr. Zhu met the two responding officers in the lobby. They went upstairs to the unit and passed by the complainant and other individuals in the hallway as they made their way to the unit. The officers did not stop to speak to the complainant at that time. Mr. Zhu recalled that the landlady tried to speak to the police, but the police ignored her.

[34] Once at Mr. Zhu’s residence, the officers were invited into the unit where they spoke with both Ms. Li and the applicant and made observations of the state of the apartment. The officers explained that this type of complaint was a landlord-tenant matter, not the subject of a police complaint.

[35] Constable Farrell testified that after he spoke to the tenants, he exited the apartment and went to speak to the landlady in the hallway. He recalled that he was regrettably abrupt with her and did not give her a chance to speak. She did however disclose to him that the applicant threatened her while pointing a gun at her earlier in the day when she attended at the apartment.

[36] Constable Farrell explained that based on the complaint about the gun, the nature of the service call changed significantly. What had previously been a low priority response to a landlord-tenant matter quickly escalated into a serious criminal allegation involving a firearm.

[37] The officer testified that he was unable at that time to call dispatch for back-up. He explained that poor reception in high rise buildings is not uncommon. Given that he and the landlady and other individuals were standing approximately twenty feet from the applicant’s apartment, he was concerned about public and police safety as well the potential for the destruction or loss of evidence.

[38] He further testified that he did not know if the applicant could hear what was going on in the hallway. In cross-examination he agreed that it was possible that the applicant and Ms. Li were both aware of the change in the nature of the investigation. However, he surmised that the applicant likely would assume that the police would speak to the landlady on their way out and may overhear the discussion about the gun.

[39] It was put to the officer that he did not know what was going on in the apartment he had just left and had no way of knowing if the occupants could hear what was going on in the hallway. He readily agreed that he had no way of knowing for certain what the occupants were doing or their ability to hear what was going on in the hallway. The applicant was not asked about whether he heard anything in the corridor before his arrest, but he did testify that when he was in his unit after his arrest he could people in the corridor. He knew the landlady and her companion were still there.

[40] Constable Farrell explained that given the new information he received from the landlady, the circumstances required immediate action. He and his partner then approached the door and attempted to re-enter the unit. The door was locked, but Mr. Zhu opened it and the officers immediately entered the apartment to arrest the young couple.

[41] Once inside the apartment, the officer Farrell testified that he advised the applicant and Ms. Li of the reason for their arrest and read the pair their right to counsel. Shortly thereafter, Constable Farrell asked them if the gun was still in the apartment. There was divergence in the evidence as to who responded to advise where the gun was located. According to Constable Farrell, it was Ms. Li who disclosed that the gun was on the balcony (in a shoe box) whereas Mr. Zhu testified that since Ms. Li was no longer speaking any English after her arrest, and it was he who wanted to tell the police about the “toy gun”. He did that so that they would know that it was not a real firearm. That is why he asked Ms. Li in Mandarin where the gun was and relayed that information to the police.

[42] After the gun was located, another pair of officers arrived on scene. Police records show they were there for approximately ten minutes before they let to transport Mr. Zhu to the station. There was a divergence in the evidence as to how long the 2nd set of officers were present and whether they participated in a further search of the apartment.

[43] I accept Constable Farrell’s evidence that prior to seizing the gun, his search of the unit involved a visual inspection for items in plain view. I also find that neither he nor the 2nd set of officers, Constables McCreadie or Van Buskirk, conducted a search of the unit after the gun was seized. The applicant called Constable Van Buskirk on the application. He testified that although his understanding was that he and his partner, McCreadie were attending the unit to help search the unit for a gun, by the time they arrived on scene, “there was a firearm on the kitchen table area, and we were no longer required to search at that point”. None of the other three officers were unshaken in cross-examination on this aspect of their evidence.

Analysis

Section 8 - Warrantless Searches and Exigent Circumstances

[44] Warrantless searches are presumptively unreasonable regardless of the venue and it is the Crown who bears the onus of establishing on a balance of probabilities that the search was justified.

[45] Private dwellings in particular hold a significant expectation of privacy. For that reason, a warrantless arrest in a dwelling house is prohibited in the absence of exigent circumstances: See R. v. Feeney, [1997] 2 S.C.R. 13.

[46] As the Supreme Court of Canada observed in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432:

Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. //…// [t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

Building upon the foundation laid by the common law, s. 8 of the Charter creates for "everyone" certain areas of personal autonomy where the state, including the police, cannot trespass. These areas we have now gathered up under the general heading of privacy.

At the same time, social and economic life creates competing demands. The community wants privacy, but it also insists on protection. Safety, security, and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures. (Emphasis added)

[47] As Justice Binnie emphasized in Tessling , privacy is a mutable concept, and “the difficult issue is where the "reasonableness" line should be drawn.”

[48] In R. v. Silveira, [1995] 2 S.C.R. 597, the Supreme Court of Canada was divided on the existence of a common law power to search and seize, especially a dwelling-house in exigent circumstances, as where the entry was required to prevent the destruction of evidence.

[49] After the 1995 decision in Silveira, supra, Parliament enacted 487.11 of the Criminal Code of Canada (the “Criminal Code”), in 1997. It provides the police with a broad warrantless power of search and seizure in exigent circumstances.

[50] Section 529.3 of the Criminal Code was also enacted in 1997, apparently in response to the decision of the Supreme Court of Canada in Feeney, supra. This section of the Criminal Code provides statutory authority for a peace officer to enter a dwelling-house to effect an arrest although the officer does not have a warrant to enter the premises. The provision defines some of the circumstances in which a warrantless entry may be made.

[51] Subsection (2) defines exigent circumstances that justify a warrantless search. Exigent circumstances include circumstances in which the police have:

a) reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

b) reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss of destruction of the evidence. (Emphasis added)

[52] Section 117 of the Criminal Code also specifically allows for warrantless searches where weapons are concerned. The provision states that where:

a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon //..// the peace officer may, where grounds to obtain the warrant … exist, but by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain the warrant, search for and seize any such thing, that is held by or in the possession of the person. (Emphasis added)

[53] Where the Crown seeks to justify a warrantless entry into a dwelling based on exigent circumstances, the Court must be satisfied that there is both a subjective and an objective dimension to the belief of the police that the entry was necessary. See: R. v. Duong (2002), 102 C.C.C. (3d) 242 (B.C.C.A.).

[54] The essence of Constable Farrell’s testimony is summarized at paragraphs 5-12 and 31-42 above. He testified that he had safety concerns for all individuals present at the scene given the proximity to the unit where he believed the applicant was still in possession of the firearm and the fact that he could not make a radio call for back-up from his location in the hallway. He also expressed a concern that the firearm could be tossed over the balcony to discard it. That raised public safety concerns given that the balcony faced Bloor Street, which is a busy thoroughfare. Constable Farrell explained the possible risk to members of the public who may have been on the sidewalk below should the applicant or his girlfriend have decided to discard the gun by throwing if off the balcony.

[55] I accept that when Constable Farrell received information from the complainant that the applicant had pointed a gun at her earlier that day and threatened to harm her, he formed a subjective belief that there was an imminent risk to the safety of all those in the hallway if he did not act immediately to arrest the applicant in attempt to locate the gun and eliminate the risk. The risk of harm was to all those present at the scene: the complainant and her companion, and the two officers present.

[56] I find that Constable Farrell’s subjective belief was objectively reasonable.

[57] The police had to act quickly in assessing the situation. After Constable Farrell made brief inquiries about whether the gun appeared real, he then had a duty to act on that information. It is evident by his conduct that he believed the gun was still present in the apartment. I find the most compelling of the circumstances he articulated was the concern that the gun would be discarded.

[58] That said, the other concerns he raised were also objectively reasonable. He did not know the applicant or Ms. Li. He had just spent some time with them in their residence responding to the 911 call and had no safety concerns at that time. When he received the complaint about the gun, the changed the circumstances, and must have been puzzling and unnerving.

[59] If the complainant’s account was credible, then the fact that the applicant and Ms. Li made the call could have meant that there were a few possible scenarios: 1) they discarded the gun earlier in the day before or around the time they made the 911 call; 2) the gun was still in the residence, but was removed from the location that the complainant said she saw the applicant gain access to it (from a box on top of the fridge which is where he also testified he last saw it) and possibly hidden elsewhere; 3) the gun was still in the residence and the occupants were prepared to use it if necessary, having heard or surmised that the complainant made the disclosure about the gun, or 4) the gun was still in the residence, but the occupants might be preparing to discard it by throwing it off the balcony, having heard or surmised that the landlady made a complaint about having been threatened with a gun.

[60] I find that objectively the scenario reported to Constable Farrell of someone allegedly pointing a gun at their landlady earlier in the day and then calling 911 to make a report against the landlady in and of itself raised the possibility unpredictable behaviour.

[61] It is possible that other officers in Constable Farrell’s position having assessed the same risks, may have chosen to take different steps to mitigate the immediate risk. However, immediate decisions of a police officer made in the course of duty are not generally to be assessed through “the lens of hindsight”: Crampton v. Walton, 2005 ABCA 81, 194 C.C.C. (3d) 207 (Alta. C.A.).

[62] Courts have cautioned against second guessing police decisions made in dynamic investigations. The Supreme Court of Canada in R. v. Silveira, supra, held that: “[o]rdinarily, recognizing that the police often need to act on the spot under “the pressures and dangers” associated with criminal activity, the courts should avoid reasoning or review that involved “dictating police tactics and techniques in the context of investigations and arrests.” This is particularly so where quick operational decisions, at times in risky circumstances, must be made by police officers with their on-the-scene appreciation of the dynamic of an unfolding situation in the context of their police training and experience: R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.). See also, R. v. White, [2007] O.J. No. 1605 (C.A.); R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, R. v. Polashek (1999), 134 C.C.C. (3d) 207 (Alta. C.A.).

[63] For all these reasons, I find that the warrantless entry was justified by exigent circumstances.

Section 9: Arbitrary Detention

[64] The Court has found that the applicant was lawfully arrested. As such, there is no need to address the complaint that the applicant was arbitrarily detained in violation of section 9 of the Charter.

Subsections 10(a) and (b): The Right to Counsel

s. 10(a) – The Informational Component

[65] Mr. Zhu testified in chief that he was not informed of the reason for his arrest until his first court appearance. He later clarified in cross-examination that he understood he was arrested for possession of a firearm, but not pointing a firearm. He maintained he only learned about that charge much later while at court. He also denied that he could have been told on the day of his arrest that the reason for his arrest was related to pointing a firearm and that he simply misunderstood because of his lack of proficiency in English.

[66] When confronted in cross-examination with incontrovertible videotaped evidence that he was in fact informed of the reason for his arrest at least twice on the day of his arrest, the applicant reluctantly accepted that he was in fact made aware of the reason for his arrest before he was transported to the station and again at the station. Not surprisingly, counsel for the applicant is not alleging a section 10(a) breach.

[67] Even though the applicant is not alleging a section 10(a) breach, his evidence concerning his Charter rights under section 10 is relevant to the court’s findings with respect to the reliability and credibility of his evidence as it relates to all of Charter applications he has brought, including the s. 24(1) and (2) analyses.

[68] Similarly, Mr. Zhu’s ability to understand English is also a factor on this application in that it informs his ability to recall details of the incident, specifically about what he heard and understood. Although Mr. Zhu’s first language is Mandarin and he required the assistance of an interpreter on the Application, he testified that he had no difficulty understanding the officers when he spoke with them in the lobby. He explained that the English they used was brief, and simple and easy to understand. Once in the apartment, he explained that his girlfriend, Ms. Li was the one speaking to the officers because her English was better than his. Yet, later under cross-examination when it was put to him that it as Ms. Li who responded to question about the gun because her English was better, he resiled from what he testified to previously. He testified: “on that day she did not speak English, only talk [sic] a few words in Chinese with me.” He later clarified that she did not speak any English after her arrest.

[69] Mr. Zhu also testified about a conversation he had with Constable Farrell when he asked the officer to take the firearm apart. He recalled that the officer was not willing to do that. He also testified that he asked the officer to check the gun carefully, but he was not willing to do that. This evidence was never put to Constable Farrell in cross-examination.

[70] The applicant testified that he saw the two back-up officers engaged in the collection of fingerprints. When he was asked whether the officers told him that is what they were doing, he denied they did, but maintained that he heard their conversation with the Constable Farrell. He later resiled from his testimony that he heard the officers speaking. He explained: “I could not hear” the back-up officers speaking on the balcony. Regarding other conversations among the officers, he may have overheard, he testified: “I may have heard, but I did not understand”.

[71] Firstly, I accept Constable Farrell and Constable Meira’s evidence that as soon as the applicant and Ms. Li were arrested they were informed of the reason for their arrests. They were advised it related to pointing a firearm. I also find that they were both informed of their right to counsel and indicated that they wished to exercise that right.

[72] The In Car Camera System shows that the applicant was re-informed of the reason for his arrest and the right to counsel before he was transported to the station for booking. Once at the station, he was reread his right to counsel and informed yet again of the reason for his arrest.

Delay in Implementation of Right to Counsel

[73] Section 10(b) requires that police implement the right to counsel without delay. This has been interpreted to mean immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. The law is clear that the police are permitted to delay implementation for purposes of officer safety, particularly

in the context of a search, in order to gain control of the surroundings. However, when this is done police must turn their mind to the specific circumstances of a case that justify delay, and also take reasonable steps to minimize the amount of delay. R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Rover, 2018 ONCA 745 at para. 26.

[74] I accept that there was a short delay in implementing right to counsel but find that the delay was explained and was reasonable in the circumstances.

[75] I do not accept that it was possible for both parties to have been transported to the station immediately after their arrest. The short delay to determine if Ms. Li would be charged was not unreasonable in the circumstances. As Constable Farrell testified, once an individual is booked, they will often be searched especially if the arrest is in relation to a gun. Such searches can be intrusive. In all the circumstances, the officer’s conduct cannot be reproached. I also note that no evidence was obtained from Mr. Zhu because of the delay in implementing his rights to counsel.

[76] Implementing rights to counsel from the scene of the arrest was not a practical option, nor would it have afforded the applicant with the privacy section 10 (b) demands.

[77] I therefore find no breaches of subsections 10(a) and 10(b) based on the adequacy of the informational or implementational aspects of the provision.

Section 10 and the Duty to Hold Off

[78] Section 10(b) of the Charter requires the police to hold off questioning an individual under arrest after they have invoked their right to consult with counsel.

[79] The Court cannot accept the Crown’s submission that Constable Farrell’s inquiry about whether the gun was in the unit was justified in the circumstances.

[80] Courts have allowed for narrowly tailored questions during a physical search provided they are motivated solely by safety concerns. See R. v. Patrick, 2017 BCCA 57 and R. v. Ashby, 2013 BCCA 334.

[81] Constable Farrell’s inquiry was not made during a pat down search of either the applicant or Ms. Li. It happened after they were handcuffed and patted down.

[82] I therefore reject the notion that there was any urgency relating to officer or public safety that would allow for the exception to the police duty to refrain from eliciting a statement from the applicant or Ms. Li. At the time Constable Farrell made his inquiry there were no pressing public or officer safety concerns.

Section 7: Self-Incrimination and the Principles of Fundamental Justice

[83] The applicant has also raised a s. 7 infringement that he relates directly to the section 10(b) violation. He submits that “Constable Farrell’s failure in arranging for a Mandarin interpreter before his interrogation was a deliberate tactic…deployed to create an imbalance dynamic in order to overwhelm the Applicant and force him to confess. The breach of s. 7 was calculated and deliberate.”

[84] The Court finds a breach of section 10(b) but finds that there was no infringement of section 7 of the Charter. The Court has found that the utterance regarding the gun’s location was made by Ms. Li and not the applicant. The circumstances under which the utterance was made, and the nature of the exchange are relevant considerations in determining whether there was a causal link between the state conduct and the making of the statement.

[85] Both Ms. Li and the applicant demonstrated that their proficiency in English was sufficient to have a basic conversation with the officers prior to their arrests. After informing the parties of the reason for their arrest and their right to counsel, Constable Farrell should never have asked Ms. Li or the applicant if the gun was still in the unit. That said, the question was a simple, if improper, one. It is one which, on the applicant’s evidence, he had no difficulty understanding or answering. He in fact testified that he was eager to let the officers to know that the gun was not a real gun and he implored them to take it apart, but they ignored him.

[86] On the evidence, the court finds that there is no evidentiary foundation for the applicant’s assertion that for reasons related to his poor language skills in English he felt overwhelmed or was confused when the simple, but improper, question about the gun was put to him. He has therefore failed to satisfy the court that there was a calculated and deliberate breach of section 7 based on the assertion that Officer Farrell had a “calculated and deliberate” plan to overwhelm him when he asked him about the gun knowing that English was not his native language.

Did Police Powers to Search Incident to Arrest Justify the Seizure that Followed?

[87] The power to search incident to arrest is not limited to a search of the accused’s person. Provided the search incident to arrest is temporally and a spatially connected to the arrest, the power to conduct such a search extends to anything in the accused’s possession or immediate surroundings. See Cloutier v. Langlois, [1990] 1 S.C.R. 158.

[88] Although the police are statutorily empowered to effect an arrest inside a dwelling in exigent circumstances, that power is not unfettered. Once the arrest or arrests are made and the risks allayed, the police do not have further authority to search the premises or otherwise intrude on a resident’s privacy or property. See R. v. Duong, supra.

[89] In R. v. Caslake, [1998] 1 S.C.R. 51, the seminal case on the issue of search incident to arrest, the Supreme Court of Canada in set out the preconditions for a valid search incident to arrest:

1. the arrest must be lawful,
2. the search must be truly incidental to the arrest, and
3. the search must be conducted in a reasonable manner and not in abusive fashion

[90] The three recognized purposes that justify a search incident to arrest are:

1. to ensure the safety of the police and the public
2. to protect evidence from destruction
3. to discover evidence of the offence for use at trial

[91] The authority to search incident to arrest does not require exigent circumstances. The common law permits warrantless searches incident to arrest to discover evidence of the offence for which the person was arrested even if there are no exigent circumstances. See Caslake, supra at para. 20.

[92] In R. v. Caslake, the court observed:

... all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arresting question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual's interest in privacy.(Emphasis added)

[93] I find that in the circumstances, once the applicant and Ms. Li were arrested, the police, for officer safety reasons, were authorized to conduct a safety sweep to see if the gun was in plain view or easily accessible.

[94] As a function of his search powers incident to the arrests, Constable Farrell was also authorized to go out to the balcony to confirm whether there was a gun on the ground below or if there was anyone on the ground level appearing to collect a discarded item. Had he seen the gun in plain view while out on the balcony that would have resulted in a fortuitous, but still lawful, search incident to arrest. Once the check of the balcony was complete, and any safety concerns allayed, no further searches or seizures should have taken place without a warrant.

[95] I find on the evidence that there was ample time to remove the applicant and Ms. Li from the premises which could have been secured while Constable Farrell obtained a search warrant. Unfortunately, that is not what happened.

[96] The way the seizure of the gun came about was not “truly incidental” to the arrests. It came about because of improper police questioning of the applicant and Ms. Li which violated their section 10(b) rights.

Section 24(1): Stay of Proceedings

[97] The applicant seeks a stay of the proceedings as a remedy for what he has characterized as successive and egregious Charter breaches in addition to racist and deceitful conduct and false testimony attributed to the investigating officers.

[98] The applicant asserts the investigating officers engaged in bad faith, in the form of note falsification, and [racial] profiling in this investigation compounded by deceitful testimony designed to mislead the Court about their violations of the applicant’s Charter rights.

[99] The applicant therefore submits a stay of the proceedings is the remedy is necessary “to send a strong message not just to the individual officers, but also the Toronto Police Service (“TPS”) that there is a culture of cavalier attitudes towards individual’s [sic], especially racialized individual’s [sic], Charter protection in order for the TPS to … address its systemic failure”.

[100] A stay of proceedings is a drastic remedy that the Supreme Court of Canada has referred to as “that ultimate remedy”. R. v. Reagan, 2002 SCC 12, [2002] 1 S.C.R. 297. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met.

[101] Such a remedy should only be resorted to in the clearest of cases. For the reasons indicated, this is case is not one of them.

[102] The assertion that the police engaged in profiling is baseless. There is nothing in the evidence that grounds any of the bare but very serious allegations of police misconduct in this regard. This was not a questionable “random” motor vehicle stop. Instead, the investigation began when the applicant’s girlfriend, Ms. Li, called 911 and the officers responded to that call. The nature of the investigation changed only when the police received a complaint while at the building from the applicant’s landlady, Ms. Xie, that he had pointed a firearm at her in the apartment earlier that day.

[103] There is no basis in the evidence that suggest that the police profiled the applicant or his girlfriend at any time during the investigation. As for the allegations of note falsification and deceitful testimony, the Court finds them to be without merit for the reason I will explain.

[104] While Constable Farrell’s failure to hold off questioning the applicant and Ms. Li was a clear violation of their Charter rights, on the evidence I accept, I do not find that the applicant has established that there was a pattern of abusive state conduct or a widespread systemic problem that requires that the Court disassociate itself from by granting such a drastic remedy as a stay.

[105] I reject outright the applicant’s allegation that Constables Farrell and Meira colluded in the making of their notes to cover up the violation of the applicant’s right to counsel. Both officers were chastised in cross-examination for the many shortcomings in their respective notes relating to this investigation. Both steadfastly denied any collaboration or collusion in “crafting” their notes to conceal a Charter violation.

[106] In addition, I find the submission that they did so defies common sense and logic. If the aim was to conceal and deceive, the unsatisfactory state of their allegedly concocted notes undermines that objective. If the aim was to conceal and deceive, then one would expect that there would be a semblance of a uniform narrative with one officer’s notes supporting the other’s on the alleged concocted version of the incident. It does not take too much imagination to conceive that the best deception would have been for the officers to concoct a story that there was a spontaneous utterance by either Ms. Li or the applicant; that no question was ever put to them after they were informed of their right to counsel. That way there would be no admission of any Charter breach related to section 10(b).

[107] Instead, there was no effort to conceal how the utterance came about. Curiously, Constable Meira’s notes are silent on the critical point: the source of the utterance. I find that the lack of important details in her notes speaks to her inexperience. She was a complete novice constable who was still in training. As well, if Constable Farrell acting as the “coach officer” exerted power over “the rookie”, as the applicant alleges, neither his notes nor hers demonstrate the cunning and guile one would expect of an elaborate plan to engage in subterfuge to cover up a sloppy investigation rife with multiple Charter violations.

[108] I find that there was no elaborate subterfuge as alleged. The plan that has been ascribed to the officers on its face was deeply flawed and extremely risky. It left the two officers vulnerable in that there was only Constable Farrell’s account to counter the two likely accounts of Ms. Li and the applicant. A gaping hole in the plan was that there was no way for the officers to know when they allegedly concocted their scheme that Ms. Li would not be called as defence witness on these applications. The entire plan could so easily be upended if Ms. Li testified that it was the applicant who made the utterance, not her.

[109] Sometimes the truth can be stranger than fiction. This is one of those cases. I find that the poor quality of Constable Meira’s notes are simply a function of her lack of experience. There is no question that her notes are woefully lacking. But I consider that this was her first month as a police constable. She was still in training. She reported feeling overwhelmed by the dynamic turn of events in this investigation. Her shift ended soon as the arrests were made, and she moved on to other duties the next day.

[110] I also accept her evidence that she and Constable Farrell made their notes separately and he did not tell her what to write. Constable Meira left me with the impression that she was genuinely embarrassed by the state of her notes from that part of her early career. The notes are not acceptable even for an officer in training, but I accept Constable Meira’s evidence as truthful.

[111] As for her memory of the events, it is indeed odd that she remembered that the landlady was very upset and shaking when she made the disclosure about the gun, but she did not remember whether it was Ms. Li or the applicant who indicated to Constable Farrell where the gun was located. She explained that she was focused on the two arrested parties, that this was her first time having drawn her firearm. She had no recollection of the applicant and Ms. Li speaking in Mandarin and no recollection of Constable Farrell asking them where the gun was. She simply remembered that he went to the balcony and returned with the gun.

[112] As his cross-examination underscored, Constable Farrell’s notes of this investigation are also not a model of perfection. I find this was likely a function of the dynamic nature of the investigation and perhaps also a reflection of his note-taking skills, or a combination of the two. Constable Farrell did not leave me with impression that he was misleading the Court. He may have tried to justify some of the actions he took, but I do not find that he fabricated his evidence out of whole cloth while exerting influence over his partner/trainee.

[113] By contrast, I found the applicant’s evidence very problematic. I do not propose to address all the internal and external inconsistencies in his evidence. I have already noted, his testimony about whether he was informed of the reason for his arrest raised significant concerns for the Court. The inconsistencies in his testimony are not minor in nature but go to the heart of his ability to accurately recall the events as well as his credibility. It is not sufficient for the applicant to minimize his evidence on the s. 10(a) issue by indicating that that is not an issue being pursued on this application. I have addressed those concerns at paragraphs 65-70 above.

[114] Many of the applicant’s responses seemed to change to suit his narrative. This related to what he observed, or overheard following his arrest, as well as his ability to understand English. Perhaps the least credible of his evidence was his account of Ms. Li’s sudden silence in English following her arrest. Her English was better than his. She was the one to call 911, and yet, he maintained that following her arrest, she only communicated in Mandarin and did not speak any English. He then contradicted himself when he testified that Ms. Li asked Constable Meira if she would be charged. He recalled that Constable Meira responded that she did not know yet.

[115] For the reasons I have explained, I find that it when Constable Farrell asked where the gun was, Mr. Zhu initially responded that there was no gun. After that exchange, it was Ms. Li and not Mr. Zhu who disclosed that the gun was on the balcony. This makes sense even on the applicant’s evidence. He recalled that when he last saw the gun it was where he had left it: on top of the fridge. On his evidence, it was Ms. Li who put the gun in a shoebox on the balcony. It makes sense that she was the one to disclose its location because she knew exactly where it was. I also reject the notion that Ms. Li whose English was more proficient in English simply decided not to speak English after her arrest. This stands in contrast with the person Constable Farrell described after the arrest: asking many questions of the officer in English.

[116] Ms. Li was not charged with any offence because it is not an offence to possess or handle an imitation firearm. Ms. Li’s utterance is therefore not, strictly speaking, “conscriptive evidence” as it relates to the applicant. It would be if he made the utterance.

[117] I reject the applicant’s evidence that he made the utterance disclosing the location of the gun. It is an odd and unusual circumstance where an individual charged with pointing a firearm at another person is so eager to draw a direct connection to the weapon alleged to have used in the incident, even if only for tactical reasons related to a Charter application. For that reason, his evidence on this issue must come under greater scrutiny.

[118] In short, I find the applicant’s evidence to be highly problematic. It was rife with inconsistencies. He demonstrated himself to be a very poor historian at best and at worst, a dishonest witness.

[119] As an example of his lack of care with details, in his examination in chief he testified that it was he who called police both times. Yet, in cross-examination when it was suggested to him that it was Yisha Li who called the police on both occasions, he readily agreed explaining that she made the calls because her English was better than his. I am prepared to accept that this may be example of carelessness with his evidence, but it does cause the court concern about the reliability of his evidence in general.

[120] At another point in his evidence, Mr. Zhu was asked about recollection of the details of his interaction with the police, he testified that he did not need to make notes of the incident because it left a deep impression on him, yet he also testified that he did try to make notes in his cell at the station. Apart from being contradictory, the response on its face is difficult to fathom. The court takes judicial notice that prisoners are not permitted writing instruments or electronic devices in their cells. Such items are routinely removed from prisoners when they are booked at the station. I find that it is difficult to determine with certainty when the applicant’s testimony was accurate and sincere and when he was being inventive to suit his purposes.

[121] There were instances where his evidence was simply difficult to accept as credible on its face. He testified that he was calm after being handcuffed and wanted to know why he was handcuffed but he did not ask. This is simply not credible when he also testified that he later acknowledged that he knew he was arrested in relation to possession a firearm. As well, I contrast, the applicant’s testimony with Constable Farrell’s. The officer recalled that immediately after they were arrested, both Ms. Li and Mr. Zhu were asking him lots of questions and he was trying to answer them.

[122] For the reasons noted, I find that the applicant has failed to demonstrate that this is one of the clearest cases where a stay of proceedings is warranted. Instead, in my view, section 24(2) of the Charter is better suited to address any remedy required to address any prejudice to the applicant’s fair trial rights.

Section 24 (2) Analysis - the Grant Factors

[123] The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, requires the Court to consider the following factors in assessing whether in all the circumstances, the admission of the evidence, the BB gun, would bring the administration of justice into disrepute:

• first, the seriousness of the Charter-infringing state conduct,
• second, the impact of the breach on the Charter-protected interests of the applicant, and
• third, the societal interest in a trial on the merits.

[124] As the Supreme Court emphasized in Grant, supra, the focus of section 24(2) is societal. The remedy in the provision is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The focus is on the broad impact of admission of the evidence on the long-term repute to the justice system.

The Seriousness of the Breach

[125] I find that there were interrelated infringements of both sections 10(b) and 8 of the Charter that can be characterized as a single continuing breach. I say this because it is difficult to divorce the questioning of the applicant and Ms. Li and the latter’s utterance from the subsequent seizure of the gun from the balcony.

[126] The circumstances are therefore not as serious as if there had been two factually and temporally unrelated Charter breaches.

[127] Another factor to consider in assessing the seriousness of the breach is whether the law was settled. At the time of the breaches, the law as it related to warrantless searches of a residence and the duty to hold of questioning after rights to counsel have been given was not uncertain or in a state of flux. It was settled.

[128] The legal obligation of a police officer to hold off any questioning of an arrestee to avoid eliciting incriminating utterances is and was clear and unambiguous. An officer of Constable Farrell’s experience should have known better that to ask about the location of the gun in question.

[129] I find that on the evidence Constable Farrell simply wanted to take a shortcut. He hoped to avoid the time consuming and tedious job of obtaining a warrant; and the equally time consuming and labour intensive job of conducting the search once the warrant was issued. The concern he had was the one he expressed to the back-up officers earlier in the day: there were many places to search, even within the small apartment.

[130] The fact that Constable Farrell was a coach officer training an inexperienced officer aggravates the situation. He ought to have been focused on setting a good example of how to conduct an effective, professional, and Charter-compliant investigation. Thankfully, Constable Meira did not have much recollection of the events surrounding the question and answer between the officer and Ms. Li and she will not have to unlearn a bad lesson.

[131] Constable Farrell, having arrested the pair and read them their rights to counsel, should have secured the premises, and applied for a warrant to search the residence. That is what the police did in R. v. Duong, infra, where the British Columbia Court of Appeal upheld the trial judge’s Ruling that the warrantless entry into a dwelling was justified by exigent circumstances and that the police acted reasonably in securing the residence to obtain a warrant to continue with a judicially authorized and therefore lawfully searched the premises.

[132] In this case, there were ample grounds for a search warrant. I have no doubt that had a search warrant been sought, it would have been granted and the gun would inevitably have been found. Instead, Constable Farrell made the decision to continue the investigation in a different way; by asking Mr. Zhu and Ms. Li where the gun was.

[133] I do not accept his evidence that his reason for doing so was to inquire if they had discarded the gun from the balcony. If he was concerned about that, he could have checked by going onto the balcony himself to see for himself. He could also have asked the second pair of officers who attended to check the area before they headed up to assist him. But Constable Farrell did none of those things. On the evidence, I find that his main concern was finding the gun and finding it quickly and effortlessly without regard to Mr. Zhu or Ms. Li’s Charter rights.

[134] In the circumstances, I cannot find the breaches occurred inadvertently or in circumstances that otherwise demonstrated good faith.

[135] Constable Farrell was a seven year veteran of the force and was in fact acting as Constable Meira coach officer that day. More was expected of him.

[136] This factor militates exclusion.

The Impact of the Breach

[137] I turn now to consider the impact of the Charter breaches on Mr. Zhu’s fair trial interests.

[138] The more serious the Charter-infringing conduct by the state, and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. See R. v. McGuffie, 2016 ONCA 365.

[139] In order to properly give effect to this branch of the test, I begin with the Court’s factual findings relating to who made the disclosure to police. In the unusual circumstances of this case, the applicant insists it was he would responded to the officer’s inquiry about the gun. However, as noted, I do not find the applicant’s evidence on this point to be credible.

[140] The Court has found that the elicited statement came from Ms. Li, not Mr. Zhu. It was she who responded to Constable Farrell. She is not a party to the proceedings. However, it cannot be said that the breach of section 10(b) had no impact on the applicant. The impact on him, I find, is indirect.

[141] As part of the s. 24(2) analysis, the Court cannot lose sight of the fact that the gun was discoverable. Even without the improperly elicited utterance obtained from Ms. Li, there were ample grounds to obtain a search warrant, and had it been sought, I have no doubt it would have been granted and the gun would inevitably have been found.

[142] This factor tilts towards inclusion.

Societal Interest in Adjudication on the Merits?

[143] The allegations are serious. They involve an alleged threat to cause violence while pointing a firearm. Society has an interest in the adjudication of the case on its merits.

[144] The prosecution of the case does not rest entirely on the admission into evidence of the firearm. While the admission of the gun might be helpful to the prosecution, the Crown still has a prosecutable case without it. This factor favours exclusion.

Conclusion

[145] Applying the Grant, factors, including the final balancing, I find that the gun, the BB pistol, ought to be excluded from the evidence. The failure to “hold off” questioning the arrestees which led to the seizure of the gun was a serious violation by an experienced officer who was acting as a coach officer at the time.

[146] The Court recognizes that the disclosure of the location of the gun by Ms. Li indirectly impacts the applicant’s fair trial interests and that the gun was discoverable. However, when I consider the impact the admission of the evidence would have on the reputation of the administration of justice, and on balancing all the relevant the factors, the Court finds that the applicant has established a case for the exclusion of the BB gun.

[147] In the result, the BB pistol that was seized from the applicant’s residence is ordered excluded pursuant to s. 24(2) of the Charter.

Released: April 5th, 2022 Signed: Justice F. Bhabha

Footnotes:

[1] See Evidence of Encan Zhu, Transcript - December 15th, 2021, in chief at p. 3, ll. 17-31 [2] See Evidence of Constable Farrell, Transcript - October 4th, in chief, at p. 6, ll. 7-15, and p. 7, ll. 1-14 and 25-28, p. 8, ll.10-17 [3] Ibid, at p. 8, ll. 17-30 [4] Ibid, p. 8, l. 27 to p. 9, l. 14, p. 11, ll. 9-15, in cross-examination, p. 47, l. 18 to p. 50, l. 16 [5] Ibid, p. 11, l. 16 to p. 13, l. 29 [6] Ibid, p. 25, l. 31 to p. 27, l. 18, in cross-examination, p. 55, l. 13 to p. 56, l. 28 [7] Ibid, p. 14, ll. 5-12 [8] Ibid, p. 16, l. 2 to p. 17, l. 32; In cross-examination, p. 10, l. 1-21, p. 13, l. 10 to p.14, l. 4; Evidence of applicant, Encan Zhu, transcript of December 15th, 2021, in chief p. 14, ll.1-7, in cross-examination, p. 65, l. 9 to p. 66, l. 32 [9] Ibid, p. 23, ll. 7 to p. 24, l. 1 Constable Farrell explained why Ms. Li was not charged with an offence: the Code makes it an offence to point an imitation gun, however, mere possession of an imitation gun is not a criminal offence. [10] See Evidence of applicant Encan Zhu, Transcript – December 15th, 2021, in chief, p. 12, ll. 12-16 [11] Evidence of Constable Farrell, Transcript - October 5th, 2021, in cross-examination p. 8, l. 26 to p. 9, l. 16 [12] See Evidence of Encan Zhu, Transcript - December 15th 2021, in chief at p. 5, l. 22 to p. 6, l. 20; in cross-ex. at p. 37, ll. 29 to p. 38, l. 18; and p. 44, ll. 2-6 [13] See Evidence of Encan Zhu, Transcript - December 15th 2021, in chief at p. 7, ll. 15-20 [14] Constable Farrell described seeing cat feces and urine on the floor in the kitchen and throughout the unit as well as garbage inside the unit when he was initially invited into the apartment. See Evidence of Greg Farrell, Transcript - October 4th 2021, in chief at p. 9, ll. 4-9, and in cross-ex. at p. 43, ll. 3-7 [15] See Evidence of Constable Farrell, Transcript - October, 4th 2021, in cross-ex. at p. 47, l. 19 to p. 49, l. 22 [16] Ibid, p. 9, l. 13 to p. 10, 28, p. 13, ll. 21-29 [17] Ibid, Evidence of Constable Farrell, Transcript - October 4th, 2021, in chief, at p. 11, ll. 16- 25, p. 13, l. 24 to p. 14, l. 3; p. 12, l. 26 to p. 13, l.3, p. 26, l. 26 to p. 27, l. 18 [18] Ibid, p. 26, l. 11 to p. 27, l. 1, in cross-examination, p. 58, l. 18 to p. 59, l. 10 [19] See Evidence of applicant, Encan Zhu, Transcript - December 15th, 2021, in chief at p. 37, ll. 5-7 [20] See Evidence of Constable Farrell, Transcript - October 4th, 2021, p. 13, ll. 16-29 [21] Ibid, p. 14, ll. 5-10 [22] Ibid, p. 14, l. 10 to p. 15, l. 30 [23] Ibid, p. 16, ll. 6-27 [24] See Evidence of Constable Farrell Transcript - October 4th, 2021, in chief, p. 16, l. 28 to p. 17, l. 31; See Evidence of the applicant Encan Zhu Transcript - December 15th 2021, p. 13, l. 24 to p. 14, l. 13, in cross-examination, p. 42, l. 21 to p. 44, l. 6, p. 55, ll. 2-6, p. 64, l. 31 to p. 66, l.33 [25] Evidence of Constable Van Buskirk, Transcript – December 14th, 2021, p. 27, l. 19 to p. 27, l. 28, p. 28, l. 5 to p. 29, l. 3, p. 30, l. 31 to p. 31, l. 13, p. 32, l. 19 to p. 33, l. 8 [26] Evidence of Constable Farrell – Transcript – October 4th, 2021, in chief at p. 24, ll. 2-11, Transcript - October 5th, 2021, in cross-examination, p. 9, l. 28 to p. 11, l. 16, Evidence of Constable McCreadie – Transcript - December 14th, 2021, in chief at p. 12, ll. 12-25, in cross-examination at p. 22, l. 17 to p. 25, l. 7, Evidence of Constable Meira – Transcript – October 6th, 2021, at p. 60, l. 8 to p. 61, l. 26, [27] (1997) 1997 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.) at 153 [28] (2004) 2004 SCC 67, S.C. J. 63 at paras. 13, 15, and 17 [29] at paragraph 25 [30] (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450 [31] (2002), 102 C.C.C. (3d) 242 (B.C.C.A.) at p. 254 [32] (2005), 2005 ABCA 81, 194 C.C.C. (3d) 207 (Alta. C. A.) at 221 [33] (1997), 1997 6316 (ON CA), 117 C.C. C. (3d) 193 (Ont. C.A.) at 210, 212 (leave to appeal refused [1997] S.C.C.A. 571, [1988] 1 S.C.R. ix) [34] [2007] O.J. No. 1605 (C.A.) at paras. 53-54 [35] (2001), 2003 SCC 38, 157 C.C.C. (3d) 481 (Ont. C.A.) at 510 (aff’d (2003), 174 C.C.C. (3d) 481 (S.C.C.)) [36] (1999), 134 C.C.C. (3d) 207 (Alta. C.A.) at 221 [37] Evidence of applicant, Encan Zhu, Transcript - December 15th 2021, in chief at p. 21, l. 1 6 to p. 21, l. 1. [38] Evidence of applicant, Encan Zhu, Transcript - December 15th 2021, in cross-examination at p. 73, ll. 20 to p. 74, l. 23 [39] Evidence of applicant, Encan Zhu, Transcript - December 15th 2021, in cross-examination at p. 75, l. 11 to p. 78, l. 17; See also Exhibit #3 – In Car Camera and Booking Hall Videos [40] Ibid. at p. 42, l. 22 to p. 43, l. 4 [41] Ibid. at p. 43, l. 28 to p, 44, l. 6, p. 54, l. 29 to p. 55, l. 7; p. 58, ll. 1-13 [42] Ibid. at p. 65, ll. 3-20 [43] Ibid. at p. 70, ll. 17-24 [44] Ibid. at p. 58, l. 1-13 [45] Ibid. p. 72, ll. 10 -22 [46] See Exhibit 3 – In Car Camera Recording and Booking Video [47] 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 41-42 [48] R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980; R. v. Rover, 2018 ONCA 745 at para. 26 [49] See Evidence of Constable Farrell, Transcript - October 4th, 2021, in chief p. 21, l. 4 to p. 25, l. 6, Transcript - October 5th, 2021, in cross-examination, p. 23, l. 26 to p. 24, l. 12, p. 32, l. 28 to p. 33, l. 20, Evidence of Constable Van Buskirk, Transcript – December 14th, 2021 in chief (by applicant) at p.32, l. 19 to p. 33, l. 31 [50] Ibid, p. 21, ll. 3-29 [51] 2017 BCCA 57, at paras. 111-113 [52] 2013 BCCA 334, at paras. 64-65 [53] See Written Submissions of the applicant, at p. 53, para 116. [54] Evidence of applicant, Encan Zhu, Transcript – October 15th 2021, in cross-examination, at p. 70, ll. 17-24 [55] See Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C. R 158 at paras 53, 61 [56] 1998 838 (SCC), [1998] 1 S.C.R. 51 [57] See Caslake, supra at para. 20 [58] at pages 107-8 [59] R. v. Reagan 2002 SCC 12, [2002] 1 SCR 297 at para. 53 [60] See Evidence of Constable Farrell Transcript - October 5th, 2021, p. 49, l. 21 to p. 54, l. 19 [61] Ibid, at p. 44, l. 7 to 12; See Evidence of Constable Meira Transcript - October 6th, 2021, in chief, p. 5, ll. 3-26, p. 7, ll. 11-29, in cross-examination, p. 32, ll. 5-27, p. 71, l. 14, p. 80, l. 26 to p. 82, l. 1, to p. 85, l. 24, p. 88, l. 29 to p. 92, l. 26 [62] Ibid, at p. 85, ll. 15-24 [63] See Evidence of Constable Farrell, Transcript - October 5th, 2021, at p. 49, l. 18 to p. 54, l. 19 [64] Ibid, p. 19, ll.1-9 [65] See Evidence of applicant, Encan Zhu, Transcript – December 15th, 2021, in chief, at p. 18, l. 23-29, in cross-examination, at p. 43, l. 28 to p. 44, l. 6, p. 54, l. 29 to p. 55, l. 7, p. 64, l. 32 to p. 65, l. 20 [66] Evidence of applicant, Encan Zhu, Transcript – Dec. 15th 2021, at p. 73, ll. 7-32 [67] 2009 SCC 32 at paras. 71-98, and 112-115 [68] See R. v. McGuffie, 2016 ONCA 365, at para. 63