ONTARIO COURT OF JUSTICE
DATE: 2022 12 15
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAVEION BROWN
Before: Justice Newton-Smith
Heard on: November 3, 4, 21 and 23, 2022
Reasons for Judgment released on: December 15, 2022
Counsel: C. Rhinelander and D. MacAdam................................................... counsel for the Crown L. Metcalfe and M. Sciarra............................. counsel for the accused Daveion Brown
RULING ON CHARTER APPLICATION (No.2) Sections 7, 8, 9, 24(1) and 24(2)
NEWTON-SMITH J.:
I. OVERVIEW
[1] The Applicant, Daveion Brown, is charged with trafficking in cocaine and possession for the purpose of trafficking in cocaine, and with possession and trafficking of a firearm.
[2] The charges arise out of a large multi-jurisdictional investigation named Project Sunder which involved multiple Part VI wiretap authorisations.
[3] Mr. Brown was first arrested and charged with the drug offences on July 14, 2020. The information for those offences was subsequently sworn on September 18, 2020.
[4] October 15, 2020 was takedown day for Project Sunder. On that day Mr. Brown was again arrested and further charged with possession of, and trafficking in, a firearm on May 26, 2020.
[5] At the time of his arrest on July 14, 2020 a quantity of cocaine was seized from a vehicle in which Mr. Brown had, immediately preceding his arrest, been an occupant.
[6] When Mr. Brown was arrested on October 15, 2020 he was arrested at 5am in his home pursuant to a Feeney warrant. The police used a battering ram to enter his home without first knocking. Mr. Brown and his girlfriend were asleep in bed and naked.
The Applicant’s Position
[7] Mr. Brown alleges that the manner in which the police executed the Feeney warrant on October 15, 2020 violated his section 7, 8 and 9 Charter rights. He further alleges that on both July 14 and October 15, 2020 there was a delay in implementing his right to speak with counsel which violated his section 10(b) Charter right.
[8] The remedy sought by Mr. Brown is a stay of proceedings with respect to all of the charges pursuant to section 24(1) of the Charter. Alternatively, he seeks the exclusion of the intercepted communications which led to the Feeney warrant, and the cocaine seized from the July 14, 2020 arrest, as a 24(1) remedy or pursuant to section 24(2) of the Charter.
The Respondent’s Position
[9] The Respondent concedes that the Feeney warrant did not authorise the police to enter Mr. Brown’s residence without knocking and therefore his section 8 and 9 Charter rights were violated.
[10] With respect to the alleged section 10(b) violations, it is the Respondent’s position that any delay in facilitating the Applicant’s right to counsel was reasonable in the circumstances.
[11] The Respondent takes the position that a stay is not an appropriate remedy in the circumstances of this case, nor is an exclusion of evidence. Rather, the Respondent takes the position that a reduction in sentence, restitution for the damage to Mr. Brown’s door or a judicial pronouncement are available section 24(1) remedies that are better suited to address the Charter infringing conduct in this case.
II. THE EVIDENCE ON THE APPLICATION
A. The July 14, 2020 Arrest
[12] On July 14, 2020, as result of information derived from the Project Sunder wires, DC Campbell was advised that Mr. Brown would be purchasing cocaine form a male identified from the wires as Mr. Zaidi. DC Campbell was the lead of a Guns and Gangs team that was tasked with locating and arresting both parties.
[13] Surveillance was set up and shortly after 7 pm Mr. Brown was located. He was followed to an Esso station in Brampton. He then drove away from the Esso station in tandem with another vehicle, an Acura. Officers followed the vehicles to a residential area where they both parked on a side street. The area was a partially constructed subdivision. Mr. Brown got out of his car and into the rear passenger door of the Acura. At 7:30 pm officers boxed in the Acura with the intention of arresting both parties. However, Mr. Brown immediately got out and fled on foot. He ran past the houses into the undeveloped area.
[14] DC Campbell ran after Mr. Brown. The pursuit continued on into the undeveloped area of the subdivision. DC Campbell, who was wearing a marked police vest, was shouting police and demanding that Mr. Brown stop. Eventually Mr. Brown lost his footing and fell to the ground and DC Campbell was able to handcuff and arrest him.
[15] Det. Morgan, who was also involved in the pursuit, caught up with them and relieved DC Campbell who was out of breath and unable to read Mr. Brown his rights. At 7:37 pm Det. Morgan walked Mr. Brown back to the vehicles.
[16] Once Mr. Brown was secured the Acura was searched and a package of cocaine was found on the rear passenger seat.
[17] DC Campbell testified that there were two or three other occupants of the Acura although he did not deal with them.
The Counsel Call
[18] At 7:45 pm, once they had returned to the vehicles, Det. Morgan read Mr. Brown his rights to counsel. Mr. Brown told the officer that he wanted to speak with his lawyer Mr. Weisberg and provided his number. Det. Morgan then handed custody of Mr. Brown over to the Peel officers who had arrived to transport him to the station.
[19] At 8:04 pm PC Aljanazra took custody of Mr. Brown. He searched Mr. Brown, placed him in the rear of his cruiser and shortly thereafter read him his rights to counsel. Mr. Brown said that he understood and gave PC Aljanazra the contact information for Mr. Weisberg. He was then taken to the station which was approximately a 15-20 minute drive away.
[20] At the station there was some unspecified delay and the officers had to wait in the sally port with Mr. Brown before they could be let into the station. At approximately 8:50 pm, once Mr. Brown had been booked, PC Aljanazra contacted Mr. Weisberg and Mr. Brown was transferred to the privacy booth to speak with him.
[21] Det. Morgan was asked at trial if he was in a position to facilitate a call to Mr. Brown’s lawyer at the scene. Det. Morgan explained that at the time of Mr. Brown’s arrest the police only had their personal phones which contained confidential information and were not intended to be used for detainees to speak to counsel. However, since then it was his understanding that phones were now being issued to officers that could be used to facilitate calls to counsel on the road. It was Det. Morgan’s understanding that this had occurred as a result of developments in the case law and “adverse findings” that had been made specifically with respect to the failure of Guns and Gangs officers to facilitate access to counsel prior to arriving at the station.
B. The October 15, 2020 Arrest
[22] October 15, 2020 was takedown day for Project Sunder and numerous people were arrested including Mr. Brown.
The Feeney Warrant
[23] On October 6, 2020 DC Johnston swore an Information to Obtain [ITO] a warrant to arrest Mr. Brown in his dwelling [the Feeney warrant]. Included in the ITO was information with respect to Mr. Brown’s alleged involvement in firearms trafficking on May 26, 2020 and cocaine trafficking in July of 2020. Also included was information that during the course of the July 14, 2020 arrest Mr. Brown had fled from police and been arrested after a short foot chase.
[24] The warrant form contained the following provisions, beside which were marked spaces for the informant to initial and request a no knock entry for the purposes of executing the warrant:
AND WHEREAS there are reasonable grounds to believe that prior announcement of the entry would:
(a) expose the peace officer or any other person to imminent bodily harm or death; or
(b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.
[25] The Feeney warrant was authorised on October 9, 2020. The warrant authorised officers to enter the basement unit of 18 Morning Dew Crescent between 9 am on October 9 and 11:59 pm on October 15, 2020 for the purposes of arresting Mr. Brown. Neither of the above provisions were checked off and consequently the warrant did not authorise an no knock entry.
[26] The affiant, DC Johnston, did not participate in the execution of the warrant.
The Entry to the Apartment
[27] A decision was made to execute the warrant on October 15, 2020 before dawn. DC Gomes was the supervisor in charge of the Guns and Gangs unit tasked with the execution of the warrant. Six Guns and Gangs officers participated. Three of those officers, DC Gomes, DC Dunlop and DC Getty, testified at trial. Two uniformed officers were also present at the scene to transport Mr. Brown to the station.
[28] At 4am DC Gomes held a briefing with his team. They were provided with a briefing package which included information that Mr. Brown resided in the basement of the address and that there were upstairs tenants. It was DC Gomes’ understanding that the only access to the basement unit was through the garage.
[29] His plan, as told to the team at the briefing, was to knock on the main door in order to gain access to the basement unit, and once at the basement unit to breach the door if it was locked. This plan was DC Gomes’ decision and not the result of any discussion at the briefing.
[30] DC Getty testified that they were told at the briefing that they could expect to find Mr. Brown and his girlfriend in the unit. He did not see the Feeney warrant.
[31] Following the briefing, DC Getty did a drive by of the house. He observed that the house was in darkness and that 3 cars were in the driveway. He then stood by for the execution of the warrant with the rest of his team.
[32] DC Dunlop was the central note taker. He testified that the team arrived at the address at 4:15 am. The residence was a semi in a residential court with a garage and a backyard. They knocked on the front door at 5:05 am and the owner answered. He was cooperative and directed them towards the basement unit. The owner was not asked for a key to Mr. Brown’s unit.
[33] DC Dunlop testified that the information that they had with respect to how to access the basement unit was unclear and that this was the reason that they knocked on the front door.
[34] DC Gomes testified that he tried the door to Mr. Brown’s unit and it was locked. He did not knock or announce their presence prior to breaking in by using the battering ram to force the door open. All six officers then rushed in with firearms raised.
[35] DC Gomes testified that he believed that the safest thing to do was to enter without knocking because he did not know Mr. Brown and he did not know what was behind the door. This tactical decision was made by DC Gomes as a result of the information available to him from the briefing package, and not as a result of any thing that occurred after the briefing.
[36] When asked why he chose a dynamic entry with the use of a ram, DC Gomes responded that it was his understanding that Mr. Brown was being charged with trafficking in firearms and narcotics. He testified that for the safety of Mr. Brown, the officers and any other residents the plan was to affect the arrest as quickly and as safely as possible. DC Gomes testified that they did not know if Mr. Brown would answer the door if they knocked, nor did they know if he had access to weapons or if there was another door or window that he could have escaped from. He was also aware that during the course of a previous arrest Mr. Brown had run from the police.
[37] DC Gomes testified that he was aware that they were executing a Feeney warrant, but did not know if the authorisation specifically allowed for a dynamic entry. He could not recall if he had looked at the warrant to see if a dynamic entry had been requested or permitted. When it was put to him in cross-examination that it was not uncommon to make that request of the issuing justice, DC Gomes answered “possibly”. He testified that it was his understanding and belief that “these things” were decided on a “case by case” basis.
[38] DC Dunlop testified that he had been involved in the execution of over 100 search warrants and that the use of a ram to enter was “fairly common”. He testified that a ram, as opposed to an announced entry, is used in guns and gangs firearms investigations “more often than not”.
[39] The ram caused damage to the door frame and to the door. DC Dunlop estimated the damage at around $500.
The Execution of the Arrest
[40] Shortly after 5 am Mr. Brown’s door was forced open with the ram and the six officers ran in.
[41] DC Getty was the first one into the bedroom. Mr. Brown and Ms. Agapen-Mullings were in bed covered with a blanket. The blanket was ripped off to reveal them lying there naked. DC Getty immediately took physical control of Mr. Brown and handcuffed him to the rear. The officer then pulled Mr. Brown, who was naked and handcuffed, off of the bed.
[42] DC Getty testified that there was a pair of boxer shorts on the ground by the bed which he picked up. It was his evidence that he put the boxers on Mr. Brown before walking him out to the living area. Since Mr. Brown was handcuffed at the time, DC Getty testified that he had Mr. Brown step into the shorts and pulled them up, dressing him “as you would a child”.
[43] When asked how long he was in the bedroom with Mr. Brown, DC Getty testified “under a minute”.
[44] Mr. Brown was sat in a chair in the living area. DC Getty testified that once things calmed down he got some clothing for Mr. Brown from the bedroom. Again he had to dress Mr. Brown who was handcuffed.
[45] It was DC Gomes’ recollection that Mr. Brown was provided with his clothing, “probably within about 5 minutes”. DC Gomes recalled the female being wrapped in a blanket.
The Counsel Call
[46] DC Getty testified that as soon as he got Mr. Brown some boxer shorts and sat him on a chair in the living area, he gave Mr. Brown what he described as a “soft” rights to counsel. DC Getty explained that he did not have the right to counsel card on him so was just advising Mr. Brown as soon as he could what his charges were and that he had a right to call a lawyer. He explained to Mr. Brown that once the transport officers arrived he would be given his full rights to counsel on camera in the cruiser and would be able to call his lawyer from the station. Mr. Brown responded that he understood and that he had a lawyer that he wanted to call. DC Getty did not get the lawyer’s name from Mr. Brown at the time.
[47] At 5:35 am DC Doupe, one of the uniform officers, took custody of Mr. Brown, placed him in a cruiser and read him his rights to counsel. Mr. Brown indicated that he wanted to speak with his lawyer Adam Weisberg and provided the officer with his lawyers’ contact information. At 5:40 am they left for 23 division.
[48] DC Belza and another officer were stationed at 23 division that day and tasked with facilitating the lawyer calls in anticipation of the execution of numerous Project Sunder arrests. There was only one private booth for lawyer calls at the station, but they were also using another telephone with a cord long enough to reach an interview room.
[49] The arrestees began arriving just before 6 am. DC Belza described them as coming in a “steady stream” throughout the morning. DC Belza testified that as a result of the covid measures in place at the time things were slower than usual. Additional covid questions needed to be asked during the booking process and the booking area, phones and phone rooms had to be sanitised between users.
[50] Mr. Brown arrived at 23 division at 6am. However there was a large line up of cruisers with Project Sunder arrests ahead of them waiting to get into the station for booking. Shortly after they arrived at the station parking lot Mr. Brown asked the officers to loosen his handcuffs which they did.
[51] Two hours later, just before 8 am, Mr. Brown asked the officers what time it was and told them, “I feel like I’ve been in these cuffs for over 2 hours. My shoulders are cramping. Wow.” Just before 8:15 am they were allowed into the sally port and Mr. Brown was told that he would be paraded shortly. He responded, “when can I call my lawyer?”.
[52] A few minutes before 9 am, DC Belza was notified that Mr. Brown was in the station and wanted to speak with his lawyer. As soon as he received this information DC Belza place the call. Mr. Weisberg answered but was just going in to a judicial pre-trial and said that he would phone back.
[53] Four hours had passed since Mr. Brown’s arrest and a call being placed to Mr. Weisberg. At 9:33 am Mr. Weisberg called back and Mr. Brown was put in touch with him.
The Guns and Gangs practice with respect to Counsel Calls
[54] DC Getty testified that on October 15, 2020 there had been no discussion with respect to allowing Mr. Brown to have a call with his lawyer while at the scene. The plan was to transport Mr. Brown to the station and facilitate the call there. He testified that it would not have been possible to give Mr. Brown privacy for a call to his lawyer from the apartment. Since they were not executing a search warrant, the apartment had not been searched and they could not leave Mr. Brown alone with the privacy needed for a call to his lawyer.
[55] DC Getty testified that the practice at Guns and Gangs had since changed and officers were now being issued with phones that could be used to facilitate counsel calls on the road. It was his evidence that this change in practice had come about as a result of judicial rulings criticizing the failure of Guns and Gangs officers to facilitate lawyer calls expeditiously at the scene.
[56] DC Dunlop also testified that, as a result of judicial findings, the practice with respect to facilitating counsel calls had changed at his Guns and Gangs unit. It was DC Dunlop’s evidence that in the past “timing” had only been an issue if they were going to take a statement. He testified that they were now finding ways to facilitate calls more expeditiously by doing things like allowing lawyer calls to be done from their unmarked cruisers which do not have cameras. At the time that he gave his evidence, DC Dunlop testified that Guns and Gangs officers had been issued with phones to be used for counsel calls for over a year.
C. The Defence Evidence
[57] The defence called two witnesses on the Charter Application, Mr. Brown and his girlfriend Ms. Agapen-Mullings
The Evidence of the Applicant Mr. Brown
[58] On October 15, 2020 Mr. Brown was 25 years old. He was renting the basement apartment at 18 Morning Dew Crescent. It was a small one-bedroom studio apartment that could be entered either through a door in the garage or through the upstairs house. Only he and the owners who lived upstairs had a key.
[59] Mr. Brown testified that he was asleep in bed with his girlfriend Danielle Agapen-Mullings. They were naked except for the blanket that was covering them. He was awoken to the sound of the door “flying open”. His first thought was that he was being robbed. Officers then burst into the bedroom with guns drawn shouting at him and yelling police. Mr. Brown described it as a “wild scene” that was disorienting and traumatic.
[60] He recalled being handcuffed and taken out to the living room without any clothes on. Once in the living room he was given a pair of undershorts and told that he was being arrested and what the charges were. Mr. Brown agreed that he was given the undershorts “pretty quickly” and that he couldn’t recall exactly when and where that happened.
[61] Mr. Brown testified that cold air was coming in through the door which had been “kicked in”. He was very cold and repeatedly asked for clothes to wear. Eventually he was given a track suit, he thought that it was maybe 5 – 10 minutes after he was taken to the living room.
[62] Ms. Agapen-Mullings was also brought to the living room. When Mr. Brown saw her in the living room she was still naked but covering herself with something, although he could not recall what it was.
[63] As he was being taken out of the apartment Mr. Brown asked the officers for his wallet and phone which they gave him. He also asked Ms. Aagapen-Mullings to put some money in his wallet which she was allowed to do.
[64] Mr. Brown recalled thinking that the charges were very serious and telling the officers that he had a lawyer and asking them to call. He agreed that he understood that he would be given an opportunity to speak to his lawyer once at the station.
[65] Mr. Brown testified that when they got to the station the parking lot was packed and they had to wait for hours. He was very uncomfortable and had to ask the officers to loosen his cuffs.
[66] Mr. Brown described the events as traumatic. While he and Ms. Agapen-Mullings were still together, they could not talk about what happened. It was too difficult and he did not want to bring it up again.
[67] Mr. Brown had to pay $500 to have the door fixed himself.
The Evidence of the Ms. Agapen-Mullings
[68] At the time of trial, November of 2022, Ms. Agapen-Mullings was 23 years old and studying to be a personal support worker.
[69] Ms. Agapen-Mullings had been in Mr. Brown’s car on July 14, 2020 when he was first arrested. She was also charged but ultimately the Crown did not proceed and Ms. Agapen-Mullings’ charges were withdrawn. She does not have a criminal record.
[70] She testified that on October 15, 2020 she and Mr. Brown were in bed sleeping when she was awoken by the sound of a loud bang and men shouting police. Within seconds the bedroom door burst open and the blanket was ripped off of them. They were both naked underneath. There were four male officers in the room and Ms. Agapen-Mullings was directed to get up. She tried to cover herself with her hands as an officer took her out of the room. She was directed to sit on the living room couch and given a blanket to cover herself. Ms. Agapen-Mullings testified that the apartment was small and felt like it was full of officers, all of whom were male.
[71] Once she was in the living room Ms. Agapen-Mullings could see that Mr. Brown, who was wearing only boxer shorts was shivering. She recalled him asking several times for clothes before he was given any. Ms. Agapen-Mullings herself remained naked and covered with a blanket the entire time that the officers were there. It was not until they left that she was able to get herself some clothes to wear.
[72] Ms. Agapen-Mullings described herself as scared, confused and embarrassed. She testified that she found it too hard to talk to anyone about what had happened.
[73] It was clear from the manner in which she testified that Ms. Agapen-Mullings was traumatised and had a great deal of difficulty revisiting the events of that morning.
III. ISSUES AND THE LAW
A. Reasonable Delay in Facilitating Calls to Counsel
[74] Section 10(b) of the Charter provides that everyone has the right on arrest or detention,
(b) to retain and instruct counsel without delay and to be informed of that right
[75] The question of what constitutes “without delay” was summarised by the Supreme Court in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at para 24:
The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention, and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
[76] While it is clear that police have an obligation to hold off on questioning and otherwise eliciting evidence from a detainee until the detainee has been provided with the opportunity to speak with counsel, the fact that the police do so hold off cannot itself justify a delay. The significant psychological impact of delaying access to counsel was recognised by the Ontario Court of Appeal in R. v. Rover, 2018 ONCA 745, at para 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[77] Where access to counsel is delayed, the delay must be reasonably grounded in the specific circumstances of the case and not premised on a general practice or protocol: Rover, at para 33.
[78] The delay here in providing Mr. Brown access to counsel was, in both instances, as a result of the decision of the police to wait until he was at the station to facilitate his rights to counsel.
[79] The question is was that decision reasonable.
The July 14 Arrest
[80] I do not find that there was anything apparently unreasonable about the decision that was made on July 14, 2020. The officers did not, at that time, have phones issued to them that could be used to facilitate calls to counsel on the road. Mr. Brown was brought to the station promptly, processed within a reasonable amount of time and given access to his lawyer as soon as that was done. No attempt was made to elicit evidence from him during this time.
[81] There was no reason for the officers to think that Mr. Brown’s ability to access his counsel would be unreasonably or significantly delayed. Nor do I find that it was.
The October 15 Arrest
[82] The situation on October 15, 2020 was the same with respect to the ability of the officers to provide Mr. Brown with a phone prior to his arrival at the station. At that time the officers had only their personal phones while on the road, phones which contained access to sensitive private police and personal information. There was no evidence before me to suggest that on that day the officers had available to them a phone which could have been used for Mr. Brown to speak with counsel prior to his arrival at the station.
[83] The difference on October 15 was that it was takedown day for Project Sunder. The police were aware that there would be a large influx of arrestees into the station that morning. Some planning was put into place to accommodate the potential volume of lawyer calls. Two officers were specifically assigned the role of facilitating lawyer calls and while the station only had one dedicated counsel phone booth room, a second phone was repurposed for that use.
[84] Still this did not prevent the situation which occurred. The large number of arrests that morning created a long line of cruisers waiting to get into the station. Coupled with the covid protocols in place at the time, the result was long delays in processing the arrestees prior to giving them access to counsel.
[85] It is clear that the police could have done better on October 15. Had they turned their minds to it, and thought about how they could facilitate counsel calls on the road, the police could have come up with alternative solutions when planning the Project Sunder arrests. As many of the officers testified they now have done.
[86] Four hours is a long time to have to wait to speak to a lawyer. However, I am not prepared to go so far as to say that the officers acted unreasonably in the circumstances as they were at the time. Mr. Brown was not in the dark as to what was happening, or what the delay was. He was told that he would be able to speak to his lawyer once they were at the station. Mr. Brown could see that they were in a long queue to get into the station and he could hear the officers complaining about it.
[87] While Mr. Brown suffered discomfort waiting handcuffed in the cruiser for so long, had he been able to speak to his lawyer prior to departing for the station, this would not have changed. No attempts were made to elicit evidence or otherwise engage Mr. Brown in the investigation while the officers waited to be able to book and process him. The delay was regrettable, and with hindsight probably could have been handled better, but it was not itself unreasonable in the circumstances.
B. The Police Power to Enter Dwelling-houses to Carry out Arrests
[88] In 1997 the Supreme Court, in R. v. Feeney, 1997 SCC 343, [1997] 2 S.C.R. 117, held that privacy rights under the Charter demand that police obtain prior judicial authorisation before entering a dwelling house to make an arrest. The Court further held that the protection of privacy does not end with a warrant; before forcibly entering a dwelling house to make an arrest with a warrant for an indictable offence, proper announcement must be made. The exception being where the police are in hot pursuit: Feeney at para 51.
[89] The requirement of proper announcement set out 22 years earlier in Eccles v. Bourque, 1974 SCC 191, [1975] 2 SCR 739, was re-affirmed in Feeney:
Except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry. Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied.
[90] The Criminal Code was subsequently amended that same year to make the requirement for prior judicial authorisation statutory. The Criminal Code also provides for authorisation for the police to enter without prior announcement, provided certain conditions are met. Cases of hot pursuit still remain an exception to the statutory and Charter requirement of prior judicial authorisation, as do exigent circumstances: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 at para 18.
[91] The police powers to enter private dwellings, to search or to arrest, are circumscribed by the Charter requirement to do so in a manner that reasonably respects the privacy and dignity of the inhabitants. As earlier stated by then Chief Justice Dickson in R. v. Landry, 1986 SCC 48, [1986] 1 S.C.R. 145 at p.161, requirements like proper announcement act to, “minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the doorway and surrendering himself.”.
[92] Other examples include the requirement, affirmed by the Ontario Court of Appeal in R. v. MacDonald, 2012 ONCA 244 at para 37. As Justice Campbell described in R. v. Boussoulas, 2014 ONSC 5542, “…dynamic nighttime entries of residences are, without question, terrifying experiences for everyone who happens to be inside. But, as the Criminal Code ensures, they are only permitted with prior judicial authorisation and based upon “reasonable grounds”: R. v. Boussoulas, 2014 ONSC 5542 at para 85.
The Charter Violations
[93] The knock and announce principle may be departed from where exigent circumstances exist. The reasonableness of searches where the police depart from the knock and announce principle was reviewed and discussed by the Supreme Court in Cornell.
[94] This case has an important distinguishing feature from search cases. Here the warrant was a Feeney warrant, not a search warrant. Unlike for search warrants generally, the Criminal Code, and the format of the Feeney warrant itself, provides for judicial authorisation for no knock entry if requested and the necessary grounds exist.
[95] That request was not made of the issuing justice in this case. The judicial authority that the officers had to execute the warrant did not extend to a no knock entry.
[96] It is permissible for the police to enter a dwelling without prior announcement to execute a Feeney warrant, even when the warrant does not authorise them to do so, if exigent circumstances arise.
[97] The circumstances that the officer in charge of executing the Feeney warrant testified were his grounds for the no knock dynamic entry existed well prior to the granting of judicial authorisation. They were also known to the affiant who included them in the information provided to the issuing justice, but who did not request a no knock entry. They could not be described as exigent.
[98] This is why the Crown, rightly, concedes that the method of entry was a violation of Mr. Brown’s section 8 and 9 Charter rights.
[99] The defence submits that Mr. Brown’s section 7 rights were also violated.
[100] Section 7 of the Charter provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[101] The rights enshrined in sections 8 through 14 of the Charter address specific deprivations of the right to life, liberty and security of the person. Those rights are subsumed in the principles of fundamental justice: Reference re Section 94(2) of the Motor Vehicle Act, 1985 SCC 81, [1985] 2 S.C.R. 486.
[102] Unlike a search warrant, which is authorised for the purpose of gathering evidence, a Feeney warrant authorises the collection of a person and thus engages the right to liberty and security of the person.
[103] Section 529 of the Criminal Code codifies what is required in order for judicial authorisation to be given to police to enter dwelling houses to carry out arrests. The purpose of the section is to ensure that such arrests are Charter compliant and respect the dignity and privacy of the arrestee.
[104] I agree that the manner in which the Feeney warrant was executed here was a violation of both Mr. Brown’s section 7 and section 8 Charter rights.
C. Remedy
[105] When Mr. Brown was arrested on October 15 no evidence was seized. The evidence relied upon by the Crown arises from the earlier investigation and is primarily based on the wires. This is not a case where the defence seeks to have the fruits of an unlawful search excluded. The remedy sought by Mr. Brown is a stay of the proceedings.
[106] There are two types of state conduct that may warrant a stay of proceedings. The first, or “main”, category is conduct that compromises the fairness of an accused’s trial. The second, or “residual”, category is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process.
[107] It is the residual category that Mr. Brown here invokes and submits warrants a stay of proceedings with respect to all of the charges before the Court. Alternatively, he submits that the wire-tap evidence which led to the charges and Feeney warrant be excluded.
[108] The Crown, having conceded that Mr. Brown’s section 8 and 9 rights were violated by the manner in which the Feeney warrant was executed, agrees that this is a residual category case, but submits that there are alternative remedies available such as a reduction in sentence, restitution for damage to the door or a judicial pronouncement. In light of the fact that the Crown’s case rests primarily on the wires, it is the Crown’s position that excluding the wiretap evidence is effectively the same as a stay of the entire prosecution.
The Test for a Stay of Proceedings
[109] A stay of proceedings for an abuse of process will only be warranted in the clearest of cases. There are, however, “limits on the type of conduct society will tolerate in the prosecution of offences”. The test for determining when those limits have been met has three requirements:
(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,
(2) there must be no alternative remedy capable of redressing the prejudice, and
(3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.
[110] In Babos Justice Moldaver, writing for the majority, clarified the proper analysis to be undertaken when the residual category is invoked.
The First Stage of the Inquiry
[111] At the first stage the court must consider, “whether proceeding would lend judicial condonation to the impugned conduct”. Where the state engages in conduct that is offensive to societal notions of fair play and decency such that proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system the first stage of the test will be met: Babos at paras 35 and 38.
[112] Judicial authorisation is required to arrest a person in his or her dwelling unless the police are in hot pursuit. The Supreme Court made this clear 25 years ago in Feeney, and the government promptly followed up with statutory codification. Recognising the sanctity of the home and the Charter values of privacy and dignity the Supreme Court further held that, absent exigent circumstances, where a person is arrested in their home the police must knock. This minimises the invasion of privacy and gives the person the opportunity to be arrested with dignity. Again, the government wrote this requirement into the Criminal Code.
[113] Here the police properly sought and were granted a Feeney warrant to arrest Mr. Brown in his home. What was not sought was judicial authorisation to break through the door without knocking. And consequently such authority was not granted. However, the officers in charge of executing the warrant did not pay attention to what the warrant authorised them to do.
[114] It could be the case that circumstances arise after a warrant has been authorised which warrant a no knock dynamic entry. That is not what occurred here. There was no change in circumstances between the time that the warrant was issued and the time that it was executed. Nor was it the case that the officer in charge of executing the warrant looked at it, and in considering the information available to him, made the determination that in fact an unannounced entry was necessary and so returned to the informant to discuss why one had not been requested.
[115] The officers here had no regard for what they were judicially authorised to do. They treated the warrant as if it were a search warrant and did not consider that a Feeney warrant is a different and distinct warrant. The officer in charge of the execution of the warrant testified that he could not recall if he had read the warrant. And could answer only “possibly” to the question of whether or not he was aware that for Feeney warrants the affiant can request an unannounced and/or dynamic entry.
[116] This was a planned arrest in a series of planned arrests for a large scale project with a pre-determined takedown date. It was no last minute surprise to any of the investigating officers that Mr. Brown was going to be arrested. The warrant was requested on October 6, authorised on October 9 and executed on October 15. There was ample time to clarify and correct any deficiencies in the warrant.
[117] It is offensive to our societal notions of fair play and decency when the police through ignorance or carelessness choose to ignore the terms of a judicial authorisation and take it upon themselves to force their way into someone’s home, damaging the door and storming into a bedroom where people are asleep and naked.
The Second Stage of the Inquiry
[118] The second stage of the inquiry asks whether there are alternative remedies available that are capable of redressing the prejudice. At the second stage of the inquiry, “the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.”: Babos at para 39.
[119] The remedy sought here by the Applicant is a stay of all of the charges. The question is, are there remedies short of staying the entire prosecution, that will redress the prejudice. The Crown suggests that having the police pay for the damage to the door is adequate, or alternatively giving Mr. Brown a reduction in sentence will suffice.
[120] Neither of those remedies would serve to dissociate the justice system from the conduct here in question. Those remedies would only serve to accomplish exactly what Justice Moldaver clearly stated is not the goal here, compensating Mr. Brown. Attaching a monetary figure, or attributing worth in a number of custodial days, months or even years is not an appropriate method of dissociating the judicial system from the impugned conduct.
[121] The Crown lastly suggests a “judicial condonation”. A sternly worded judgment does not address police conduct which ignored the terms of a judicial order.
[122] The Applicant’s alternative suggestion of excluding the wiretaps is tantamount to staying all of the charges before the court.
[123] There is, however, in the unique circumstances of this case, a remedy that is an alternative to staying the entirety of this prosecution.
[124] Mr. Brown is facing both gun related offences from May 26 of 2020 and drug offences for which he was arrested in July of 2020. The information on the drug charges was sworn in September of 2020. When he was arrested on the Feeney warrant he was charged with the gun related offences from May of 2020. It is possible, in the unique circumstances of this case, to stay the gun charges and not the cocaine trafficking charges. While still a stay of proceedings, it is not a stay of the prosecution in its entirety.
The Third Stage of the Inquiry
[125] The third stage of the inquiry is the balancing stage. At this stage the court must decide whether the integrity of the system is better protected by staying the proceedings or by having a trial despite the impugned conduct. With respect to the residual category this balancing is of particular importance.
[126] Factors that must be considered at this stage are the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. At this balancing stage, “When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process”: Babos at para 41.
[127] When the police act on a judicial authorisation, but do not review and consider its terms, a serious affront to the judicial authorisation process, and in turn to the integrity of the justice system, occurs. Here I do not have the evidence before me to suggest that this is a systemic ongoing problem, but the evidence I do have suggests that the officers involved were either not aware of, or did not understand, the important distinction between Feeney warrants and search warrants. I have heard evidence that most warrants executed by the Guns and Gangs unit are no knock dynamic entries. I have not heard evidence as to how many of those warrants are Feeney warrants, and of those Feeney warrants how many actually authorised this type of entry. None of the officers who testified appeared to understand or appreciate the difference.
[128] Mr. Brown and Ms. Agapen-Mullings are young black people living in Toronto. It is particularly egregious that, as members of a racialized community with a history of over policing which has been, and continues to be, acknowledged by our Court of Appeal and Supreme Court R. v. Le, 2019 SCC 34; R. v. Morris, 2021 ONCA 680, they were subjected to such an invasion of their dignity and privacy without judicial authorisation.
[129] In balancing these factors it is an important consideration that there is a remedy available here which provides for a disposition on the merits of very serious charges, while staying the charges most directly related to the impugned conduct.
IV. CONCLUSION
[130] In considering all of the factors and the unique circumstances here, I find that the remedy of a partial stay of these proceedings is the just and appropriate one. The charges of possession of a firearm and trafficking in a firearm from May 26, 2020 will be stayed. The remaining counts of trafficking in cocaine and possession of cocaine for the purposes of trafficking will not be stayed.
Released: December 15, 2022 Signed: Justice Newton-Smith