ONTARIO COURT OF JUSTICE

DATE: 2022 11 21 COURT FILE No.: Toronto 21-15005556

BETWEEN:

HIS MAJESTY THE KING

— AND —

TERRY HULL

Before: Justice Peter N. Fraser

Heard on: October 17-20, 2022 Reasons for Judgment released on: November 21, 2022

Counsel: A. Miller, counsel for the Crown N. DeBellefeuille, counsel for the accused Terry Hull

Fraser J.:

[1] The applicant, Terry Hull, stands charged with unauthorized possession of a firearm [s. 91(1)], possession of a loaded prohibited firearm [s. 95(1)], and failing to comply with a probation order directing him to possess no weapons [s. 733.1(1)]. He applies for the exclusion of the firearm from his trial on account of alleged breaches of his rights under ss. 8 and 10(b) of the Charter. The Crown submits there were no Charter violations and, in the alternative, that the firearm should not be excluded.

The 911 Call

[2] Police received a 911 call from the Four Points Sheraton at 2180 Islington Avenue in Toronto just before 10:00 pm on October 11, 2021. The hotel is a fourteen-storey high rise building that had been adapted for use as a shelter and Covid isolation facility at the time of these events.

[3] The 911 caller was the shelter site lead, Gary De Graaff. He told the dispatcher that a resident of the shelter had been held at gunpoint in one of the rooms for several hours. The incident had ended about 15 minutes before the 911 call was placed. The gunman was identified as Terry Hull and a date of birth provided. This information was communicated to the responding police officers by radio.

[4] The first officers on scene were PC Halagian, PC Murza, PC Virdee and PC Campbell. On route to the hotel, these officers performed checks through their on-board computers and discovered that Terry Hull had a criminal record with a firearms-related conviction from 2015.

Body-Worn Camera Video

[5] The officers arrived on scene at 9:59 pm. The entire series of events from that point up to the arrest of the applicant and the discovery of the firearm was recorded by police body-worn cameras. What follows is a summary of those events as captured by the video footage.

[6] The four officers met Gary De Graaff in the main lobby of the hotel. Mr. De Graaff told them he had received a report from a client named Shawn Crewson, alleging that Terry Hull had confined him at gunpoint in room 306 for several hours. Terry Hull resided in room 316, but was using drugs and dealing drugs out of room 306 with another male named Kyle Edward. Mr. De Graaff further reported that the complainant wanted nothing to do with police and did not want to make a formal report. But, according to Shawn Crewson, Terry Hull definitely had a gun. It was not a replica or a toy. It was described as a “45”. Mr. De Graaff drew a picture and the complainant confirmed its appearance and called the gun a “standard police issue.” Mr. De Graaff stated he was “pretty sure” Terry Hull was in the building and was in either room 316 or 306.

[7] PC Halagian was the most senior officer of the four and he took the lead. He quickly made the decision to proceed to the third floor, stating, “Let’s go to 316, cause they’re on the same floor right, okay we’ll have to go into both, but let’s start there.”

[8] As Mr. De Graaff led the officers to the elevator, he announced over a loud-speaker that the building remained on lockdown and that a “code purple” had been declared.

[9] The four police officers took an elevator to the third floor, accompanied by Gary De Graaff and a security guard from the shelter. There was another brief discussion about where the incident had happened and which room belonged to Terry Hull. The decision to go to the suspect’s room first was confirmed.

[10] PC Campbell led the way to room 316, armed with an assault rifle. When he reached the door, he turned back and engaged in a short dialogue with PC Halagian. This was the exchange:

PC Campbell: What’s the plan here then? Are they… we’re gonna go in first or they…

PC Halgian: Yeah, call for Terry, tell him to get his hands up.

[11] PC Halagian then directed Mr. De Graaff to unlock the door with his swipe card. At 10:02 pm, the officers attempted to open the door, but found it barricaded from the inside. They were only able to open the door a few inches. The officers called out, “police, open the door” and other words to that effect multiple times. One officer called out, “Terry, come here, open the door, it’s the police.”

[12] The officers forced their way through the barricaded door and gained entry less than a minute later. They found the applicant lying half on and half off the bed nearest to the door. There also was a woman, later identified as Ginger Jones, inside unit 316. Both of them were ordered to the ground and handcuffed.

[13] PC Murza helped the applicant up and began a pat down search of his person with the help of one other officer. PC Murza asked if the applicant had anything sharp on him or any weapons and the applicant responded “no.” The officers detected something in the pocket of the applicant’s jeans and asked what it was. The applicant responded, “I don’t know.” PC Murza then searched his pockets, removing a lighter, a package of cigarettes and some other small items.

[14] At 10:06 pm, PC Murza advised the applicant he was being investigated for an incident involving a firearm. He cautioned the applicant and advised him of his right to call a lawyer. The applicant said he had a lawyer and wanted to speak to her. PC Murza advised that would be accommodated as soon as they were able. PC Murza then asked a short series of questions about what had happened in room 306 earlier.

[15] At 10:10 pm, the officers discussed searching the room. The decision was made to remove the applicant and Ginger Jones from the room and conduct a search.

[16] The officers searched a small safe. They lifted up the mattress the applicant had been lying on when they entered. They found a loaded handgun wrapped in a black and white bandana there.

[17] At 10:17 pm, the applicant was placed under arrest for possession of the firearm and read his rights to counsel. The applicant stated again that he wished to speak to his lawyer.

[18] PC Murza and PC Campbell continued the search. They searched under the frame of the first bed; under the mattress of the second bed; two dresser drawers; and inside a small box in the corner of the room.

[19] At 10:24 pm, the officers paused to discuss their next investigative steps. PC Halagian re-entered the room and advised they were going to stop the search and seal the room. He had been in contact with the Major Crime Unit and was waiting for their direction as to whether a warrant was required to search the rest of the unit.

Section 8 – Warrantless Entry

[20] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. As the search in this case was conducted without a warrant, the burden is on the Crown to show, on a balance of probabilities, that the search was reasonable: R. v. Shepherd, 2009 SCC 35 at para. 16. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable, and it is conducted in a reasonable manner: R. v. Grant, 2009 SCC 32 at para. 56; R. v. Fearon, 2014 SCC 77 at para. 12.

[21] The Crown concedes that room 316 was the applicant’s residence, and that a warrant would normally be required to enter and search the room: see R. v. Feeney, [1997] 2 S.C.R. 13 at para. 52. However, the Crown argues that in this case the warrantless entry was justified under the law of exigent circumstances. The applicant responds that the police officers’ belief there was a firearm in the residence was not reasonable and the information was not sufficiently reliable to justify a forced entry into a dwelling-house.

The Law of Exigent Circumstances

[22] The doctrine of exigent circumstances, as expressed in the common law, the Criminal Code and the Controlled Drugs and Substances Act, recognizes that privacy protections may be overridden under exigent circumstances. This doctrine is an exception to the general requirement that police obtain prior judicial authorization for certain investigative procedures. The Criminal Code makes reference to exigent circumstances in several places, including: s. 117.04(2) [seizure of weapons]; s. 529.3(1) [arrests inside a dwelling-house]; and s. 487.11 [search warrants]. [1]

[23] Other sections of the Criminal Code provide for judicial authorizations of various kinds, but make no express reference to exigent circumstances. In these areas, the common law doctrine continues to offer an exception to the usual requirement of a warrant. For example, in R. v. Bakal, 2021 ONCA 584, the Court of Appeal found that police officers were justified in tracking the accused’s cell phone without prior authorization under s. 492.1.(2) on the basis of exigent circumstances.

[24] At common law, exigent circumstances have been defined to include the imminent loss or destruction of evidence or an imminent threat to police or public safety: R. v. Feeney, supra, at para. 52; R. v. Campbell, 2022 ONCA 666 at para. 80. That definition fundamentally accords with the definition contained in s. 529.3(2) of the Code. R. v. Paterson, 2017 SCC 15 at para. 32.

Exigent Circumstances under Section 117.04(2)

[25] The Crown places primary reliance on s. 117.04 of the Criminal Code. Subsection (1) authorizes what are commonly known as “public safety warrants” to search for and seize weapons where there are reasonable grounds to believe a person has one and such possession “is not desirable” in the interests of public safety. Subsection (2) authorizes the search and seizure of a weapon without warrant, where the grounds for a warrant exist but, by reason of a possible danger to public safety, “it would not be practicable to obtain a warrant.”

[26] I would first observe that none of the officers who testified indicated any knowledge of this section of the Code. Although the police need not be versed in the "minutiae of the law", they must be aware of the essential requirements for the constitutional discharge of their basic functions: R. v. Genest, [1989] 1 S.C.R. 59 at para. 46; R. v. N.N.M., [2007] O.J. No. 3022 (SC) at para. 418. The fact that none of the officers invoked this police power has some bearing on its applicability to this case.

[27] In R. v. Hurrell, [2002] O.J. No. 2819 (CA), the Court of Appeal considered the constitutionality of an earlier version of this provision. One basis for the constitutional challenge was that the section permitted intrusions into highly private spaces, including dwelling-houses, where there was no reason to suspect any criminal activity. In rejecting this argument, Justice Moldaver held as follows, at para. 31:

Section 117.04(1) is not offence-based legislation. It does not involve a search for evidence designed to show that a criminal offence has been or is being committed, nor does it place the liberty interest of the subject at risk. Rather, s. 117.04(1) is preventative in nature. Its primary purpose is the prevention of serious injury and death resulting from the use of firearms and other dangerous objects.

[28] The Court in Hurrell struck down the section on other grounds, and Parliament subsequently re-drafted the provision to accord with the ruling. In my view, the purpose of the section remains as set out in the passage above.

[29] Shortly after Hurrell, the Court in R. v. Stearman, 2003 BCPC 359, found that police had improperly used s. 117.04 for investigative purposes and in an attempt to gather evidence of a criminal offence. The trial judge held as follows, at para. 44:

My concern in this case is that, either by misunderstanding or design, s. 117 has been invoked to facilitate an offence-based investigation against Mr. Stearman and has not been used for its proper purpose. I consider that the grounds of belief, while capable of forming the basis for a revocation hearing, do not justify the search of Mr. Stearman's home and should not have been used to achieve this end.

[30] In R. v. Clarke, 2016 BCSC 1323 at para. 119, the Court considered the same issue in connection with the amended version of s. 117.04 and held as follows:

Section 117.04 is not offence-based legislation, but rather is aimed at the prevention of harm resulting from the use of firearms and other dangerous objects: R. v. Hurrell, [2002] O.J. No. 2819 (CA) at para. 31 (C.A.). Such a warrant does not require the police to have reasonable grounds to believe that an offence has been committed; nor does it allow the police to search for evidence that an offence has been committed.

[31] The Crown relies on R. v. Hudson, [2007] O.J. No. 2335 (S.C.), where s. 117.04(2) of the Code was held to justify a warrantless search of a dwelling-house that ultimately led to criminal charges. Importantly, the decision in Hudson hinged on the trial judge’s finding that police were acting “for the purpose solely of public safety” and “not ancillary to or in addition to a search for evidence as part of the investigative process.” In fact, Crane J. expressly disavowed that use of the section at para. 37 of the decision:

I further conclude that when the police purpose is to enter a dwelling to search for evidence, clearly s. 117.04 is not applicable and gives no authority. In those circumstances, the authority would have to be tested under the ancillary powers of s. 487.11, all upon exigent circumstances; or, of course, by warrant.

[32] In the present case, there is no question that the police were investigating a criminal offence. The investigating officers were acting on information that the applicant had forcibly confined Shawn Crewson at gunpoint. They knew the applicant had a criminal record with a firearms-related conviction. PC Halagian even told the applicant that if they found a gun in the room, he would be arrested.

[33] I find that the investigation of a criminal offence was at least an ancillary purpose for the search of room 316. Therefore, the warrantless entry was not authorized by s. 117.04(2) of the Criminal Code.

Exigent Circumstances at Common Law

[34] In the alternative, the Crown submits that the warrantless entry and search were authorized at common law. In R. v. Godoy, [1999] 1 S.C.R. 311 at paras. 16-22, the Supreme Court held that police had the authority to effect a forcible entry without warrant into a dwelling-house to ensure the safety of a 911 caller. In that case, the police were responding to “unknown trouble” as the call was dropped before the caller could speak. The Supreme Court found that police officers have a general duty to protect the lives and safety of the public and held as follows, at para. 23:

A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency.

[35] This authority continues to exist alongside the statutory iterations of the doctrine of exigent circumstances: see, for example, R. v. Lai, 2019 ONCA 420 at para. 4; R. v. Lowes, 2016 ONCA 519 at paras. 9-14; R. v. Zarama, 2015 ONCA 860 at para. 9.

[36] The applicant argues that the common law power in Godoy does not apply to this case, as the complainant was no longer in danger when the police arrived at the Four Points Sheraton. The information they had was that Shawn Crewson was in his room on the sixth floor and the applicant was in either room 306 or 316.

[37] There is authority for the proposition that the police powers expressed in Godoy are not limited to ascertaining the condition of the complainant. As the Supreme Court observed in Godoy itself, at para. 16, “The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call.”

[38] In R. v. Depace, 2014 ONCA 519, the accused’s mother-in-law called 911 and reported that her grandson had called her and said that his parents were fighting. Police records indicated the occupant of the house was associated with the Hell’s Angels. Applying Godoy, the Court of Appeal found that police were justified in entering the house without warrant when no one answered the door. The Court further held that the officers were justified in searching the second floor and the basement even though the child and his parents were all found on the main floor of the house. It was unclear whether there were others in the house and, given the exigent circumstances, police were entitled to satisfy themselves that no one else was at risk.

[39] In R. v. Kelsy, 2011 ONCA 605, the Court of Appeal found that police officers were entitled to forcibly enter a residential apartment unit under the common law powers expressed in Godoy. The police were justified in entering in order to investigate the 911 call and to apprehend two assailants armed with firearms. In that case, the residents of the unit were already under the protection of the police.

[40] In R. v. Bakal, supra, the Court of Appeal found that police were justified in tracking the accused’s cell phone without prior authorization. The Court found that exigent circumstances existed, even though the complainant was safe and accounted for, concluding, at para. 25:

The police are charged with the responsibility of protecting the community's safety. To this end, what the police knew was that the appellant had just violently assaulted his girlfriend on a bed while his firearm lay next to them. The police had been informed that the appellant had a history of violence, including previously threatening his girlfriend with his gun. They also knew that he had left this highly volatile situation with his firearm in the waistband of his pants. It is against that factual backdrop that the trial judge concluded that the concerns over public safety were well-founded.

[41] The facts upon which the Court of Appeal found exigent circumstances to exist in Bakal are very similar to those in the instant case. And while entering a residence is a greater intrusion than tracking a cell phone, the Court’s analysis of what constituted a legitimate threat to public safety applies with equal force to the circumstances before me.

[42] These authorities support the proposition that the common law power to enter a dwelling-house pursuant to Godoy does not necessarily end with the discovery of the 911 caller or the person who was originally thought to be in danger. This police power can extend to apprehending a suspect who poses a danger to the public at large. The scope of legitimate intrusions under exigent circumstances will depend on the specific circumstances of each case: R. v. Godoy, supra, at para. 11.

[43] In this case, the police were responding to a 911 call where a serious criminal offence involving a firearm was reported. They had information that the gun was real, and it was definitely not a toy or a replica. It was described in detail as a “45” and a standard police issue firearm. The allegation was recent and connected to a specific location – room 306 of the Four Points shelter. There was information that the suspect was using and dealing drugs out of that room. The suspect was identified by name as Terry Hull. Police had confirmation from Gary De Graaff that Terry Hull resided in room 316 of the Four Points shelter, on the very floor where the offence was said to have occurred. Mr. De Graaff advised that Terry Hull was most likely still in the building, which was under lockdown, and that he would be in one of two rooms. The police on-board computer checks revealed that Terry Hull had a criminal record with a firearms-related conviction.

[44] The fact that the information was third-hand and the complainant did not want to be involved with police was a factor to consider, but not a determinative one. PC Halagian testified that this was very common in the shelter system and did not mean to him the report was not credible. I would observe that in R. v. Depace, supra, the original report was also third-hand, having come to the police through the young boy’s grandmother.

[45] Based on the all the circumstances known to the officers, it was reasonable for them to treat the report as credible and to consider Terry Hull a danger to the public. They had reasonable grounds to believe there was a gunman at large who was willing to use a firearm in a crowded high rise building full of vulnerable members of the community. In my view, the officers had a duty to respond and to protect the public from this serious threat. Their legitimate priority was to find the gunman as soon as possible and apprehend him.

[46] I find that that the forced entry into room 316 was a justified use of police powers under the common law doctrine of exigent circumstances. The warrantless entry occasioned no violation of the applicant’s rights under s.8 of the Charter. [2]

Unannounced Entry

[47] The applicant argues that police officers should have knocked on the door of unit 316 and announced their presence. PC Halagian and PC Murza were the decision makers in connection with the unannounced entry. They testified they wanted to get a visual of the applicant before he was alerted to their presence to ensure their own safety and that of their fellow officers.

[48] Some guidance with respect to this issue may be found in s. 529.4(3) of the Criminal Code. That section authorizes entry into a dwelling-house to arrest a person without prior announcement where the peace officer has reasonable grounds to suspect the prior announcement would expose him or herself, or any other person, to imminent bodily harm or death.

[49] In this case, the police officers had credible information that the applicant was armed with a handgun and had used it in the commission of an offence. The officers were aware that the applicant had a criminal record for firearms and were concerned he might fire upon them if they gave him advanced notice of their presence. PC Halagian had learned through police training videos and information sharing with other officers that suspects could fire at them through doors or drywall partitions and that the element of surprise could minimize that risk. PC Murza testified that the situation was dangerous and they needed to get a visual of the suspect before announcing their presence. In my view, these were reasonable concerns based on the information available to the officers and the unannounced entry was a reasonable precaution.

[50] PC Halagian and PC Murza articulated reasonable grounds to suspect that prior announcement of the entry would expose them and the other officers to imminent bodily harm or death. I find that the unannounced entry was reasonable in the circumstances and occasioned no breach of the applicant’s rights under s. 8 of the Charter.

Section 8 – Warrantless Search of the Room

[51] The applicant submits that, even if police were justified in entering room 316, they were not justified in searching it. The applicant argues that once police had detained him and gained control over the room, the exigent circumstances were over. At that point, the police could have sealed the room (and room 306) and requested a search warrant.

[52] As stated above, the respondent relies on s. 117.04(2) of the Code, which can authorize entry into and search of a dwelling-house. I have already found that section does not apply to this case.

[53] It remains to be determined whether the search was authorized under the common law power to enter a dwelling-house under exigent circumstances. In my view it was not. I agree with the applicant that, once he was safely in custody, the danger which had justified entry into room 316 was largely extinguished. All of the officers acknowledged that, at this point, they could have sealed the room and obtained a search warrant.

[54] In R. v. Godoy, supra, at para. 22, the Supreme Court emphasized that the intrusion must be limited to the protection of life and safety:

The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy or property.

[55] I find that, once the applicant had been detained, the risk to other residents of the Four Points shelter was dramatically reduced. The presence of a firearm in the building was still a safety risk, but it was no longer so pressing as to override the applicant’s right to privacy in his dwelling-house. As a result, the search of the applicant’s room was not authorized under the common law doctrine of exigent circumstances. This search constituted a breach of the applicant’s section 8 rights under the Charter.

Section 8 – Search Incident to Investigative Detention

[56] PC Murza placed the applicant under investigative detention as soon as he entered the hotel room. There is no dispute that the detention itself was lawful: R. v. Mann, 2004 SCC 52 at paras. 34, 45; R. v. McGuffie, 2016 ONCA 365 at para 35; R. v. Ahmad, 2020 SCC 11 at para. 46. PC Murza proceeded to search the applicant’s person by way of a pat-down search over the clothing and by turning out the contents of his pockets.

[57] The Crown submits that the search was a legitimate safety search incident to investigative detention. The defence argues that the search of the applicant’s pockets exceeded the scope of a permissible safety search.

[58] The Supreme Court of Canada set out the four criteria for a lawful safety search incident to investigative detention in R. v. Mann, supra, at paras. 40-45:

• First, the investigative detention itself must be lawful.
• Second, the police officer must have a reasonable belief that his safety or the safety of others is at risk.
• Third, the search must be conducted in a reasonable manner.
• Fourth, the investigative detention should be brief.

[59] A safety search is not an automatic adjunct to an investigative detention. It is a search anchored in safety concerns and is generally confined to locating weapons. As the Supreme Court directed in R. v. Mann, supra, at para. 40:

The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

[60] In this case, there was a lawful investigative detention. The applicant further concedes that the officer had a reasonable belief that his safety or the safety of the others was at risk. The detention was brief, as the firearm was located shortly thereafter and the investigative detention was converted into an arrest. The point of contention between the parties is whether the search was conducted in a reasonable manner and, specifically, whether it should properly have extended to the applicant’s pockets.

[61] A safety search is not, in all cases, limited to a pat-down or frisk search. In R. v. Ellis, 2016 ONCA 598 at par 25-31 the Court of Appeal found that a search of a detainee’s pockets was lawful. In R. v. Plummer, 2011 ONCA 350, at paras. 51-59, 77-79, the Ontario Court of Appeal found the search of a bag under the seat of a car incident to investigative detention did not violate section 8 of the Charter. And in R. v. Lee, 2017 ONCA 654, at paras. 27-65, 91, the Court sanctioned the search of the trunk of a car incident to investigative detention. In her concurring reasons in Lee, Pardu J.A. cited with approval the case of R. v. Sheck, 2015 BCCA 471 from the British Columbia Court of Appeal. In Sheck the police searched a bag hanging from the accused’s shoulder. The Court found the search to be lawful, and concluded that the permissible scope of searches incident to investigative detention had been “modestly expanded” to include fanny packs: R. v. Sheck, supra, at para. 54.

[62] PC Murza testified that he was searching for weapons and that the search of the applicant’s pockets was for this reason. He testified he was also concerned there could be fentanyl on the applicant’s person. The police were given information that the applicant was a drug dealer and a drug user. There was drug paraphernalia in plain view inside the room. The danger that fentanyl poses to anyone who comes into contact with it, including first responders, is well known: R. v. Parranto, 2021 SCC 46 at para. 93-97; R. v. Olvedi, 2021 ONCA 518 at paras. 38-44.

[63] In all the circumstances, I find that the safety search was authorized by law and caused no breach of the applicant’s rights under s. 8 of the Charter.

Section 10(b) – Rights to Counsel

[64] Section 10(b) provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. In R. v. Suberu, 2009 SCC 33 at para. 2, the Supreme Court held that police officers are required to inform a detainee of his or her rights to counsel immediately upon arrest or detention, “subject to concerns for officer or public safety.”

Failure to Hold-Off Questioning

[65] Once a detainee has asserted his right to counsel, police must refrain from attempting to elicit incriminatory evidence until the detainee has had a reasonable opportunity to consult with counsel: R. v. Smith, [1999] O.J. No. 969 (CA) at para. 16; R. v. Fountain, 2017 ONCA 596 para. 28.

[66] The Crown concedes, correctly in my view, that the police breached this duty by asking investigative questions after Mr. Hull had asserted his right to counsel. PC Murza asked a number of questions that were clearly investigatory in nature and designed to elicit evidence.

[67] I find there was a breach of the applicant’s rights under section 10(b) of the Charter.

Prosper Warning

[68] The applicant submits that police should have issued a Prosper warning in this case. In R. v. Prosper, [1993] 3 S.C.R. 236, the Supreme Court held that where a detainee has asserted his right to counsel and subsequently changes his mind, an additional caution is required. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity: see, also, R. v. Fountain, supra, at para. 27.

[69] In this case, the applicant did assert his desire to speak to counsel upon arrest. When he was re-read his rights to counsel after being paraded at the police station he declined to speak to his lawyer as it was by then 2:00 am on Thanksgiving Day. Importantly, the applicant was not asked any questions and no evidence was elicited from him after this point. Defence counsel did not press this ground in oral argument and was unable to provide any authority for the proposition that a Prosper violation arises where no attempts to elicit evidence are made. I find no s. 10(b) Charter breach on this basis.

Delay in Implementing Rights to Counsel

[70] The applicant also asserts there was some delay in the implementation of his rights to counsel. Defence counsel did not press this point and conceded it would not amount to a stand-alone Charter breach. Rather, she submitted that it was context for the other breaches and was an aggravating feature for the purposes of the s. 24(2) analysis. I disagree. I accept the evidence of PC Virdee that there was no opportunity to afford the applicant the requisite level of privacy prior to their arrival at the police station.

[71] The applicant was taken directly to an ambulance on account of his injured hand after being arrested. He was then transported to hospital and treated. The applicant was moved from room to room within the hospital as his treatment dictated. He was in a private room for a period of time, but hospital staff were coming in and out, and the room was not sufficiently soundproofed as to afford him privacy.

[72] In my view, the conduct of the officers was reasonable and there was no impairment of the applicant’s s.10(b) rights on account of the delay.

Section 24(2) – Remedy

[73] Having found breaches of the applicant’s rights under ss. 8 and 10(b) of the Charter, I turn now to a consideration of the appropriate remedy.

[74] Section 24(2) of the Charter directs that evidence obtained in a manner that infringes a Charter right shall be excluded if its admission would bring the administration of justice into disrepute. This question requires a consideration of three areas of inquiry: (1) the seriousness of the Charter-infringing conduct; (2) the impact on the Charter-protected rights of the accused; and (3) society’s interest in adjudicating criminal charges on their merits. A trial judge must balance these assessments in deciding whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. The onus rests with the applicant on a balance of probabilities: see R. v. Grant, supra.

Seriousness of the Charter-Infringing Conduct

[75] The first line of inquiry focuses on the conduct of the state actor involved in the breach. I find that the Charter-infringing conduct here falls toward the lower end of the spectrum in terms of seriousness.

[76] The questioning of the applicant after he had asserted his rights to counsel was a clear Charter breach, in a well-settled area of law. That being said, a short series of questions is far less serious than police conduct that intrudes into protected spheres of privacy or compromises the personal dignity or bodily integrity of the subject.

[77] The search of the applicant’s room was more serious. There is no question that a high expectation of privacy attaches to a residence: R. v. Godoy, supra, at para. 19; R. v. Stairs, 2022 SCC 11 at para. 49. In this case, however, it is important to remember that the police entered the home under lawful authority. In large measure, the intrusion into the applicant's residence had already occurred and it was justified in law. The brief search of the room was a further intrusion, but its impact was substantially attenuated by that fact.

[78] In my view the police officers were acting in good faith. They were dealing with a quickly changing and potentially dangerous situation.

[79] PC Halagian and PC Campbell believed the applicant was under arrest, and they viewed the search for the gun as a search incident to arrest. The Crown did not seek to justify the search on this basis, as the video clearly shows that PC Murza placed the applicant under investigative detention (the applicant was not arrested until after the gun was found). That being said, the officers likely had sufficient grounds to make an arrest before they found the gun. A search of the applicant’s immediate surroundings could well have been permissible as incident to arrest, had one actually been effected. The common law power to search the area around an arrested person incident to arrest (for safety, to prevent escape, or to obtain evidence) is unaffected by the officers’ presence inside a residence under exigent circumstances, so long as the area searched is under the control of the person arrested: R. v. Stairs, supra, at paras. 56-61. In this case, the applicant was on the bed where the gun was found.

[80] PC Murza testified that the search for the gun was for officer safety and public safety. It is at least arguable that a search of the bed could fall under a search incident to an investigative detention. That question is a complicated one that lawyers and judges could debate at length in the safety of the courtroom and with the benefit of hindsight. This officer was in a dynamic situation, where decisions about officer and public safety had to be made in minutes. And there was no bright line test for him to apply.

[81] Ultimately, the search was not authorized by law. But in all the circumstances, I do not view the Charter-infringing conduct to be egregious.

Impact of the Breach on the Charter-Protected Interests of the Accused

[82] The second line of inquiry requires the court to evaluate the impact of the state conduct on the accused’s rights. I find the impact of the breaches to be at the low end of the spectrum in this case. The questions asked of the accused were minimally intrusive and yielded no evidence. The search of the room had a greater impact, but was attenuated in the unique circumstances of this case. I repeat here that the sanctity of the home is well established under our law; however, the police entered this residence under lawful authority. The further intrusion occasioned by the brief search was, therefore, relatively minor.

[83] In my view, the firearm was also independently discoverable. When the police officers entered room 316, they found the applicant barricaded inside. They found evidence of drug use that was consistent with the information provided in the 911 call. Based on all the circumstance known to the police at that point, they would have been able to secure a search warrant and they would have found the gun.

[84] While the discoverability of the evidence is no longer a decisive factor in the s. 24(2) analysis, the Supreme Court has asserted the continued relevance of the doctrine of discoverability in R. v. Grant, supra, at para. 122:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence.

[85] The Court concluded at para. 125 that, “If the derivative evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely.” See also, R. v. Cote, 2011 SCC 46 paras. 69-70.

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

[86] The defence acknowledges that the third branch of the Grant analysis favours admission, as it almost invariably will. In this case, the firearm is real evidence and there is no question as to its reliability. Furthermore, the exclusion of the firearm would end the prosecution of the charges before me. In R. v. Blake, 2010 ONCA 1 at para. 31, the Court of Appeal remarked that, “Society's interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.” This is particularly so where the evidence effectively guts the prosecution’s case.

Balancing

[87] The sum of these various lines of inquiry favours the admission of the evidence in this case. And as the Supreme Court observed in R. v. Grant, supra, at para. 111, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence may be admitted.

[88] In all the circumstances, I find that the admission of the evidence would not bring the administration of justice into disrepute. I therefore decline to exclude the evidence of the firearm pursuant to section 24(2) of the Charter.

Released: November 21, 2022 Signed: Justice Peter N. Fraser

Footnotes:

[1] Exigent circumstances are also referred to in s. 11(7) of the Controlled Drugs and Substances Act [dealing with search powers].

[2] I am aware that the exercise of police powers may be justified according to a distinct line of authority known as the Waterfield doctrine: R. v. Godoy, supra, at para. 7. In the classic English case of R. v. Waterfield, [1963] 3 E.R. 659 (C.C.A.), a two-part test for determining the scope of police powers at common law was posited. Police conduct which interfered with an individual’s liberty or freedom would be authorized if: (1) the police were acting in the course of their duty when they effected that interference, and (2) the conduct of the police did not involve an unjustifiable use of powers in the circumstances. In R. v. Kelsy, supra, at paras. 51-52, Justice Rosenberg observed that the Waterfield test and the exigent circumstances doctrine are related and will sometimes overlap, but emphasized that the two inquiries should operate independently of each other. In the circumstances of the present case, I find that the two lines of inquiry do overlap and that the Waterfield test would produce the same result.