SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 139/10
DATE: 20120221

RE: R. v. Paul Pilon

BEFORE: The Hon. Madam Justice Patricia C. Hennessy

COUNSEL:
Serge F. Treherne, for the Crown
Michael J. Venturi, for the Defendant

HEARD: February 6, 2012

ENDORSEMENT ON MOTION TO EXCLUDE EVIDENCE

[ 1 ] Mr. Pilon brought a motion to exclude evidence found during a warrantless search of his apartment after he was apprehended under s. 17 of the Mental Health Act , R.S.O. 1990, c. M.7.

Background

[ 2 ] The police received a complaint that Mr. Pilon had written an email to the Royal Bank saying that when the bank opened on Monday he would rob the bank, harm employees and kill himself. Two officers attended at Mr. Pilon’s apartment and knocked on the door. Mr. Pilon responded and he refused them entry. He spoke to the officers outside of the building and confirmed that he had sent the note. He explained that he lost his job; that the bank had taken funds from his account; that he was suffering a great deal of stress as a result of his financial situation; that he was on pain medication; and that it was “an empty threat”. Mr. Pilon denied he was suicidal. The officers found Mr. Pilon to be lucid and that he had provided an explanation for the email.

[ 3 ] The officers formed the opinion that Mr. Pilon nonetheless needed to go to the hospital crisis department for an assessment by a psychiatrist. They informed him of this and he was cooperative when they searched him, handcuffed him and placed him in the cruiser. During the search of his person, the officers took the keys to his apartment.

[ 4 ] Constable Rintala told Mr. Pilon that Constable Kovala would go into his apartment to search for any weapons or means to carry out the threat he had made in the email. Mr. Pilon responded that, if the officer went into his apartment, they might as well take him to jail. Although Mr. Pilon’s statement concerned the officer, it was made after the search had been initiated. Constable Rintala replied by asking what they would find if they conducted a search: he asked: “Would they find guns, a body part or a grow op?”

[ 5 ] Constable Kovala searched the apartment while Constable Rintala stayed in the car with Mr. Pilon. While in the small one-room apartment, Constable Kovala observed what appeared to be a grow operation of marijuana plants in the cupboard. Mr. Pilon was taken to the hospital and assessed. He was discharged later in the evening. In the meantime, a telewarrant was obtained on the basis of Constable Kovala’s observation. The warrant was executed. Sixteen marijuana plants with lights and vents were seized.

[ 6 ] The defence argues that there were no grounds for either the detention under the Mental Health Act or the search.

Detention Under the Mental Health Act

[ 7 ] In order to detain a person under s. 17 of the Mental Health Act , the officer must be of the opinion that the person is apparently suffering from a mental disorder of a nature or quality that will “likely result in serious bodily harm”. After speaking with Mr. Pilon, the officers’ primary concern was what might be in his apartment that would allow Mr. Pilon to carry out his threat. They did not know what they would find but they were concerned by Mr. Pilon’s comments. Constable Rintala’s opinion was not expressed in the exact words of s. 17, however, on the basis of all of the evidence, I can infer that he was of the opinion that Mr. Pilon was apparently suffering from a mental disorder of a nature or quality that would likely result in bodily harm.

[ 8 ] I accept that the admitted threat, the expression of frustration and the ongoing health problems of the defendant were sufficient to allow the officer to come to this conclusion. I find there was no breach in detaining Mr. Pilon.

The Warrantless Search

[ 9 ] A warrantless search is not justified simply on the basis that there has been a detention under the Mental Health Act . Mr. Pilon had specifically denied consent to the officers to enter his residence. The officers justified their search on the grounds that they needed to discount or substantiate the threat Mr. Pilon had made, and the only way to do this was to enter the apartment. Both officers were of the view that it was common procedure to investigate the environment of a person detained under the Mental Health Act .

[ 10 ] The facts in this case are distinguishable from the facts in R. v. Tereck , 2008 MBCA 90 , where the police conducted a sweep search after they had entered the apartment of a person who they had reasonable grounds to believe had a loaded gun and wanted to kill himself. There were officer and public safety issues at the forefront in that case. Here, the officers had no information about weapons and they were leaving the premises to take the defendant to the hospital.

[ 11 ] Only where there are concerns of a threat to life or personal safety will a warrantless entry and search be justified: see R. v. Larson , 2011 BCCA 454 , at para. 39 . Prior to the search, the officers only knew that Mr. Pilon had made the threat and refused them entry to his apartment. Exigent circumstances did not exist at the time of the search. There was an opportunity to obtain a telewarrant, given that Mr. Pilon was detained and on his way to the hospital. Neither officer considered obtaining a warrant. The police possessed no information that suggested an imminent danger to the public. Had the police wanted to further investigate the threat made in the email, they were obliged to obtain a warrant.

[ 12 ] I am not satisfied that in all of the circumstances the search was reasonable. There was no objective support for the subjective belief of the police officers that it was necessary to enter the home in order to protect Mr. Pilon or the public. Accordingly, I find that the search was not lawful.

Section 24(2) Analysis

[ 13 ] Section 24(2) of the Charter allows the Courts to exclude evidence obtained in breach of an accused’s Charter protected rights. In R. v. Grant , [2009] S.C.C. 32, the Supreme Court of Canada identified three lines of inquiry that should guide a court when considering whether to exclude such evidence. Those lines of inquiry are:

(1) the seriousness of the Charter -infringing state conduct;

(2) the impact of the breach on the Charter -protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits.

[ 14 ] I find that the breach of Mr. Pilon’s privacy right was not motivated by bad faith on the part of the police officers. Nor was there evidence of a systemic problem in regards to detentions under the Mental Health Act . However, the officers did not appear to appreciate that detention under the Mental Health Act is not equivalent to an arrest, nor that concerns about mental health are not sufficient to justify a warrantless search and does not give rise to any authority to search. They did not direct their minds to whether they required a search warrant to proceed. It appears that the officers were operating under a misapprehension that they had authority to search incidental to the detention. This absence of consideration regarding their authority to enter a personal residence renders this breach serious.

[ 15 ] Regarding the second line of inquiry, it must be remembered that every person enjoys a high expectation of privacy in his personal dwelling. Mr. Pilon made it abundantly clear that he did not want the officers to enter his home. The search therefore resulted in a significant intrusion on Mr. Pilon’s reasonable expectations of privacy.

[ 16 ] I turn now to the third line of inquiry. It is likely that the Crown’s case will fail in the event that the evidence is excluded. This case of a small grow operation of sixteen marijuana plants will therefore not be decided on its merits. The long term goal of ensuring that police officers appreciate their limited authority under the Mental Health Act trumps society’s interest in the adjudication of this matter on its merits.

[ 17 ] Therefore, after balancing the assessments made under the three inquiries, I grant the application to exclude the evidence.

Madam Justice P.C. Hennessy

Date: February 21, 2012