CITATION: R. v. Heera, 2012 ONSC 407
COURT FILE NO.: CR-08-0130-MO
DATE: 2012-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Elaine Burton for the Crown
- and -
MOHANLALL HEERA
D. Scott Murray for the Accused
Accused
HEARD: December 12 & 13, 2011 at Thunder Bay, Ontario
Mr. Justice J.S. Fregeau
DECISION ON CHARTER APPLICATION
Introduction
[1] The accused has brought an application seeking an order quashing a search warrant (the "warrant") issued September 15, 2008, in Thunder Bay, Ontario pursuant to s. 487 of the Criminal Code of Canada (the "Code"). The warrant authorized the search of the accused's residence at 86 Machar Avenue, Thunder Bay, Ontario and of the accused's motor vehicle. The items to be searched for were a "9 mm handgun, other firearms, ammunition, firearms license".
[2] Should the warrant be quashed, the accused seeks a declaration that the search conducted pursuant to the warrant was unreasonable and in violation of s. 8 of the Canadian Charter of Rights and Freedoms (the "Charter").
[3] Finally, the accused seeks an order for the exclusion of all evidence obtained as a result of the search, pursuant to s. 24(2) of the Charter.
Factual Background
[4] At approximately 4:30 p.m. September 14, 2008, officers from the Thunder Bay Police Services attended at a video shop located at 79 Machar Avenue, Thunder Bay, Ontario. The police were responding to a call alleging that a firearm had been discharged in the vicinity approximately three days previously and that the video shop had been hit with bullets.
[5] As a result of discussions with the owner of the video shop and other area residents, the police concluded that shots had been fired on September 11, 2008 and that three shots had struck the video shop. Police were told about gunshots being heard and people being seen in the street in the early morning hours of September 11, 2008. One witness advised police that he heard gunshots and saw a man on the street with an object in his hand go into the rear door of 86 Machar Ave, across the street from the video shop at 79 Machar Ave. Another witness heard and saw gunshots being fired in the area outside 86 Machar Ave. The witnesses were only able to say that the gun was a handgun of some sort.
[6] The police were aware that the accused had reported a break and enter to his residence during the early morning hours of September 11, 2008. A police CPIC inquiry confirmed that the accused was the registered owner of 86 Machar Ave. The police also confirmed that the accused had a valid firearms license and owned seven registered firearms, including three handguns, one being a Beretta 9 mm handgun.
[7] Later that afternoon, at approximately 5:30 p.m., while the police were canvassing the neighbourhood, the accused drove into a parking space adjacent to his home at 86 Machar Ave. Upon exiting his vehicle, the accused was immediately arrested. After his arrest, one police officer heard the accused say that he had chased away intruders on September 11, 2008 while brandishing his 9 mm handgun. The accused further advised this officer that he had fired shots at the intruders from outside his home. The accused told this officer, when asked where his guns were, that the 9 mm handgun was loaded and unlocked under the driver's seat of his car.
[8] The police confirmed the residence at 86 Machar Ave. was unoccupied. The residence and the car were then secured. A search of the area resulted in the police finding two empty 9 mm cartridges in a grassy area adjacent to 86 Machar Ave., in the area where the accused indicated he had shot from on September 11, 2008.
[9] The accused was taken to the police detachment. Subsequent to consultation with the Crown Attorney's office, the accused was charged with careless use of a firearm, contrary to s. 86(1) of the Code, pointing a firearm without lawful excuse, contrary to s. 87 of the Code and unauthorized possession of a loaded firearm in a motor vehicle to wit a 9 mm handgun, contrary to s. 94 of the Code. The accused remained in custody until released following a bail hearing.
[10] On September 15, 2008, Detective Constable Rybak of the Thunder Bay Police Services prepared materials to obtain a search warrant for the vehicle of the accused and his home at 86 Machar Ave. The details of the information gathered by Rybak from statements and reports taken by other officers involved in the investigation were presented to the Justice of the Peace (the "Justice") as Appendix "A" to the Information to Obtain a Search Warrant pursuant to s. 487 of the Code, dated September 15, 2008. The Information to Obtain and Appendix "A" are reproduced and attached to this decision.
[11] The search warrant was executed upon the accused's vehicle and residence at 86 Machar Ave. during the afternoon of September 15, 2008. The police seized a loaded .357 calibre handgun from beneath the driver's seat of the car. The police seized all of the accused's registered firearms from inside the home, together with all ammunition. These firearms were properly stored inside a firearms vault.
[12] The police also located and seized, from inside the firearms vault, an Armscor AK 47/22, a semi-automatic .22 calibre rifle which is alleged to be a prohibited weapon. The searches and seizures resulted in several additional charges being laid against the accused, one being possession of a prohibited firearm with readily accessible ammunition, contrary to s. 95 of the Code.
Position of the Applicant
[13] The accused acknowledges that the information before the Justice included confirmation that the accused had a valid firearms license and was the owner of seven registered firearms, including three handguns, one being a 9 mm Beretta. The accused also acknowledges that the information before the Justice adequately connects the 9 mm handgun owned by the accused and his car to the alleged offences set out in the Information to Obtain, such that the warrant was properly issued in regard to the car. The accused submits that the Information to Obtain failed to disclose adequate grounds upon which the Justice could have issued the warrant in regard to the residence of the accused at 86 Machar Ave.
[14] The accused submits that the information before the Justice included statements of the accused that he had scared off the intruders on September 11, 2008 with his 9 mm handgun, that he had fired shots at or in the direction of the intruders with the 9mm handgun and that the 9 mm handgun was under the driver's seat of his car. The information also stated that the police had located two empty 9 mm cartridges at the location where the accused said he had shot from.
[15] The accused notes the three offences listed on the Information to Obtain – careless use of a firearm, point a firearm, and unlawful possession of a firearm in a motor vehicle, to wit a 9 mm handgun. It is submitted that there were not reasonable grounds to believe that a search of the house could have afforded evidence with respect to these offences. It is submitted that information before the Justice could establish that evidence with respect to the commission of these offences was in the car of the accused but that there was not sufficient information to suggest that a search of the house would afford evidence of these specific offences. The accused submits that the portion of the warrant authorizing the search of the house should be struck.
[16] The accused submits that the warrantless search of the house was prima facie unreasonable and in breach of s. 8 of the Charter. The accused submits that the Crown has failed to establish the reasonableness of the search of the house of the accused in the circumstances.
[17] The accused submits that all evidence obtained as a result of the search of the house should be excluded, having regard to all of the circumstances, because the admission of it would bring the administration of justice into disrepute. In support of this submission, the accused refers to the Information to Obtain - wherein the officer requested authorization for the search and seizure of "9mm handgun, other firearms, ammunition, firearms license" - in conjunction with paragraph 33 of Appendix "A" of the Information which reads as follows: "D/C Rybak believes it is in the public's interest to enter this residence and vehicle to seize all firearms that are registered to (the accused)...".
[18] The accused submits that the search of his residence was nothing more than a "fishing expedition" accompanied by an express intention to seize all firearms registered to him, whether or not they provided evidence with respect to the commission of the offences listed on the Information to Obtain. The accused submits that the information presented to the Justice, which was based on the accused's admissions at the time of arrest and corroborated by the finding of two empty 9 mm cartridges, point to a 9 mm handgun being used by the accused during the commission of the offences noted on the Information to Obtain and that this 9 mm handgun was in his vehicle.
[19] Considering all of these circumstances, the accused submits that the search of his residence was a serious breach of section 8 of the Charter and that the breach had a significant impact on him due to the high expectation of privacy in his home. The accused concedes that the exclusion of the evidence obtained as a result of the search of the residence will seriously impact the Crown's case in regard to two counts on the indictment, namely possess a prohibited firearm together with readily accessible ammunition contrary to s. 95 of the Code and possess a firearm without a license, contrary to s. 91(1) of the Code. However, the accused submits that exclusion of this evidence will not impact the Crown's case on the remaining five counts on the indictment. The accused submits that a balancing of the nature and seriousness of the breach against the effect of exclusion of the evidence should result in exclusion.
Position of the Crown
[20] The Crown submits that the warrant issued September 15, 2008 is presumed to be valid and that the burden rests on the accused to satisfy this court that it was improperly issued. The Crown suggests that the accused has failed to establish that the warrant could not have issued to authorize the search of the house of the accused as well as his car.
[21] The Crown acknowledges that the Information to Obtain included the utterances of the accused that he had used his 9 mm handgun to scare off intruders on September 11, 2008 and that the 9 mm handgun was in his car at the time of the arrest. It was also acknowledged that the information provided by the accused was corroborated by the police finding two empty 9 mm cartridges at the location from where the accused indicated he discharged the 9 mm handgun.
[22] However, the Crown notes that the Information to Obtain confirmed that the accused owned seven registered firearms, including three handguns. It is submitted that the police and the Justice were not required to consider the utterances of the accused in isolation. It is also suggested that these utterances could be viewed with skepticism and could not be believed in their entirety. In support of this suggestion, the Crown points to paragraph 17 of Appendix "A" of the Information to Obtain, wherein it is noted that the accused failed to mention to the officers investigating the September 11, 2008 break and enter that he had fired shots at the intruders.
[23] The Crown submits that the warrant was applied for and obtained early in the investigation and that it was open to the police to assume that it may not have been the accused's 9 mm handgun that was used on September 11, 2008. Given the fact that the accused owned two other handguns, the Crown submits that there was some evidence to suggest to the Justice that a search of the house could afford evidence with respect to the offences listed on the Information to Obtain.
[24] The Crown submits, based on all of the information presented to the Justice, and the reasonable inferences which could be drawn from that information, that it was appropriate that the warrant be broad enough to authorize a search of the house as well as the car.
[25] Should the warrant authorizing the search of the house be quashed, the Crown concedes that the warrantless search of the house was prima facie unreasonable and in breach of the accused's s. 8 Charter rights. The Crown submits that the evidence obtained as a result of the search is nonetheless prima facie admissible and that the onus is on the accused to establish on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. The Crown suggests that the accused has failed to discharge this onus.
[26] The Crown submits, in assessing the seriousness of the breach, that the police acted in good faith, having obtained judicial authorization for the search of the house. It is submitted that this authorization was granted on the basis of a complete and fair Information to Obtain. The Crown notes that there is no suggestion of misconduct in the execution of the warrant.
[27] In addressing the impact of this alleged breach on the accused, the Crown concedes that there is a high expectation of privacy attached to a person's residence. However, the Crown submits that when the warrant was obtained and the search executed, the police knew that the accused was alleged to have been discharging a handgun late at night on a public street and that the accused owned seven registered firearms, including three handguns.
[28] The Crown also submits that a search of the house was inevitable because the search of the car resulted in the seizure of a .357 calibre handgun, not the 9 mm handgun the accused told police he had used on September 11, 2008. Thus, even if the warrant had been restricted to the car in the first instance, there would have been a further request for a search of the house when the 9 mm handgun was not located in the car. This, in the Crown's submission, mitigates the seriousness of the breach.
[29] In regard to society's interest in a trial on the merits, the Crown submits that the evidence obtained as a result of the search of the house is real, highly reliable and crucial to the prosecution of two serious charges against the accused. The Crown submits that, in all of the circumstances, the exclusion of the evidence would have a negative impact on the repute of the administration of justice.
The Issues on this Application
In reviewing the information provided to the Justice in support of the search warrant application, was there some evidence that might reasonably be believed on the basis of which the Justice could have issued the warrant authorizing the search of the house?
If there was not, was the warrantless and prima facie unreasonable search of the house of the accused reasonable?
If the search of the residence is found to be unreasonable and it is found that there has been a breach of the accused's right to be secure against unreasonable search and seizure, should the evidence obtained as a result of that search be excluded?
Analysis
The Law
[30] s. 8 of the Charter provides that "everyone has the right to be secure against unreasonable search and seizure." A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the search is carried out in a reasonable manner. R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at p. 278.
[31] In this case, s. 487 of the Code gave the Justice authority to issue the search warrant. The argument before me is that the search of the house was not lawful because the Justice should not have issued the warrant authorizing the search of the house in addition to the search of the car. An unlawful search is presumptively unreasonable.
[32] Section 487 of the Code requires that the police have reasonable grounds to believe that an offence has been committed and that there is evidence of the offence to be found in the place of search. R. v. Morris, 1998 NSCA 229, [1998] N.S.J. No. 492 (CA) at para. 28. Section 487 of the Code provides:
- (1) Information for search warrant – A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or
(c.1) any offence-related property,
may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
d) to search the building, receptacle or place for any such thing and to seize it, and
e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1
[33] The existence of reasonable grounds is therefore critical to the balancing of the values of privacy and effective crime detection. To repeat often used words:
"The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly based probability replaces suspicion". Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc, (1984) 33 at page 15.
[34] The test to be applied by a judge reviewing the sufficiency of information underlying a search warrant is set out by the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421
"The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere".
[35] The correct approach for a reviewing judge has also been described as follows:
"If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter". See Garofoli para. 55.
Issue 1:
Was there some evidence which might reasonably have been believed on the basis of which the Justice could have issued the warrant authorizing the search of the house?
[36] In reviewing the totality of the information provided to the Justice in the Information to Obtain, and in considering all inferences which might reasonably be drawn from this explicitly stated information, I have concluded that there was not sufficient evidence before the Justice such that he could have issued the warrant authorizing the search of the residence of the accused at 86 Machar Ave. on September 15, 2008.
[37] The Justice was made aware that the break and enter complaint made by the accused on September 11, 2008 omitted any mention by the accused of having displayed and/or used any firearm. The Justice also had evidence that shots were fired on the night of September 11, 2008 and that witnesses saw a male with a handgun standing in front of and then entering 86 Machar Ave.
[38] The information before the Justice included the utterances made by the accused upon his arrest on September 14, 2008, wherein he elaborated on his actions at the time of the September 11, 2008. The accused specifically stated that he chased the intruders out of his house after grabbing his 9 mm handgun and that he had fired shots both in the air and at the intruders. The accused also indicated where he had shot the 9 mm handgun from. Upon being asked, the accused told officers that his 9 mm handgun was at that point in time loaded and in his car.
[39] The Justice was further made aware that two spent 9 mm casings had been recovered by the police as a result of the information obtained from the accused. In addition, the Justice was made aware that the accused had a valid firearms license and owned seven registered firearms, including three handguns, one being a 9 mm Beretta.
[40] The Information to Obtain suggests that there were reasonable grounds to believe that a search of both the house and residence for a "9mm handgun, other firearms, ammunition, firearms license" would provide evidence with respect to the offences of careless use of a firearm, unlawfully pointing a firearm, and unlawful possession of a 9 mm handgun in a motor vehicle. However, the evidence before the Justice suggests that only a handgun was allegedly used in the commission of these offences, and that handgun was the accused's 9 mm handgun which was in his car at the time of his arrest.
[41] In support of the warrant extending to the house, the Crown submits that neither the police nor the Justice was required to believe everything the accused said. This argument does not bear scrutiny. The police had reasonable and probable grounds to believe the accused when he stated that he had fired shots at the intruders because they laid the first two charges noted on the Information to Obtain. The police had reasonable and probable grounds to believe the accused when he stated that the 9 mm handgun was in the car, because they laid the third charge noted on the Information to Obtain. The accused's statements as to where he had shot from and with what firearm were corroborated when the police found two spent 9 mm cartridges at that location. To then suggest that the accused should not be believed and that a search of the house for other firearms could provide evidence as to the offences listed on the Information to Obtain is illogical.
[42] I do not accept the Crown's submission that the warrant could validly have been broad enough to include the house because the accused owned three handguns and that it is reasonable to conclude that he could have used one of his other handguns in the commission of these offences. This conclusion was not expressly provided to the Justice for his consideration. In my opinion, it is not a reasonable inference for the Justice to have drawn based on the totality of the evidence in the Information to Obtain.
[43] Of significant concern to me, in reviewing the totality of Appendix "A", is the statement of D/C Rybak that he "believes it is in the public's interest to enter this residence...and to seize all firearms that are registered to (the accused)."
[44] The offences noted on the Information to Obtain, two by implication and the third directly, relate to the alleged use by the accused of a 9 mm handgun on September 11, 2008 and the presence of that 9 mm handgun in his car at the time of his arrest on September 14, 2008. The police were aware that the accused had a valid firearms license and owned seven registered firearms. The police expressly stated that it was their desire to enter his home to seize all of his firearms, ammunition and firearms license, in pursuit of the "public interest", regardless of the fact that no other firearms, and certainly no rifles or "firearms license" were allegedly used in the commission of the three offences listed in the Information to Obtain.
[45] I am persuaded that, while the police appropriately sought a warrant to search the car for the 9 mm handgun they had reason to believe the accused used on September 11, 2008, they also sought a warrant to enable them to enter the accused's home and seize all of his firearms and his firearms license, despite the fact that these firearms were not connected to the offences listed on the Information to Obtain.
I find that there was insufficient evidence for the Justice to have issued the warrant authorizing the search of the residence of the accused at 86 Machar Ave. on September 15, 2008. The portion of the warrant authorizing the search of the residence was improperly issued and invalid.
Issue 2:
Was the warrantless and prima facie unreasonable search of the house of the accused reasonable?
[46] Section 8 of the Charter provides that "everyone has the right to be secure from unreasonable search and seizure." The search of the accused's home on September 15, 2008 was not authorized by law because I have found that the warrant authorizing this search was improperly issued. The warrantless and therefore unlawful search of the residence is presumptively unreasonable and has not been shown to be reasonable in the particular circumstances of this case.
[47] There was no urgency alleged in regard to the search of the home of the accused, for which he had a high reasonable expectation of privacy. The accused was in custody and his residence had been secured. In the first instance, the application for the warrant, or the warrant that in fact issued, could have been restricted to the car. If the search of the car had failed to reveal the 9 mm handgun the police were seeking, they could then have validly applied for authorization to search the house.
[48] The search of the house was a warrantless search of a private residence, at least partially motivated by an expressed intention to seize the registered firearms of an accused person who had a valid firearms license, in pursuit of what the police believed to be the "public interest". I find this search, in these particular circumstances, to have been unreasonable and a violation of the accused's s. 8 Charter rights.
Issue 3:
Should the evidence obtained as a result of the search of the house be excluded?
[49] Section 24(2) of the Charter provides that evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[50] The Supreme Court of Canada, in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, provided trial courts with a revised approach to s. 24(2) of the Charter. In noting that the term "administration of justice" goes beyond just criminal investigation and trial to include the maintenance of the rule of law and the defence of Charter rights in the justice system as a whole, the majority placed the phrase "bring the administration of justice into disrepute" within the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Taking a long-term view, the inquiry objectively asks whether a reasonable person, informed of all 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 focus is both prospective (seeking to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system) and societal (aimed not at punishing police but at systemic concerns). See The Law of Search and Seizure in Canada, Eighth Edition, page 992.
[51] When faced with an application for exclusion under s. 24(2), Grant held that a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to;
The seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones serious state misconduct);
The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and
Society's interest in the adjudication of the case on the merits.
[52] The Supreme Court's analysis in Grant creates a new decision tree on a section 24(2) application. A trial court's role is to balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute: see Grant, at para. 71.
A. Seriousness of the Breach
[53] The first consideration under Grant necessitates an evaluation of the seriousness of the state conduct that led to the breach:
"The first line of inquiry relevant to the s.24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law".
see Grant, at para. 72
[54] I am of the opinion that the breach of the accused's s. 8 Charter rights was neither minor nor inadvertent. Based on the results of their investigation to the point in time when the warrant was applied for, the police had adequate reasonable and probable grounds to lay the charges listed on the Information to Obtain the search warrant. There were also adequate grounds for the Justice's issuance of the search warrant for the car.
[55] The police, being aware that the accused owned a total of seven registered firearms, including the 9 mm handgun, sought and obtained judicial authorization to enter and search the accused's home. They sought this authorization having expressed an intention to seize all of the accused's firearms, ammunition and firearms license, presumably knowing they could not afford evidence of the offences listed on the Information to Obtain. This course of action was expressly stated to be in pursuit of the "public interest".
[56] Had the police wanted to revoke the accused's firearms license and seize his registered firearms due to the nature of the allegations against him, the Code provides them with the authority to do so and outlines the procedure which is to be followed. The police were either aware of this or should have been aware of it. In either case, their chosen course of conduct resulted in a serious breach of the accused's Charter rights. As stated in Grant at para. 75,
"...ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith."
B. Impact of the Breach on the Accused's Charter Rights
[57] This second consideration requires an assessment of the extent to which the breach undermined the interests protected by the right infringed. As set out in Grant:
"This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.": see Grant, at para. 76.
"Similarly, an unreasonable search contrary to s.8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.": see Grant, at para. 78
[58] All citizens, including those accused of serious criminal offences, reasonably enjoy a high expectation of privacy in their homes. The search of the home of the accused which occurred on September 15, 2008 was thorough and therefore profoundly intrusive. The search included entry into, and photographing of, all rooms in his home.
[59] The Crown submits that, because the 9 mm handgun the accused said he used on September 11, 2008 was not found in the car, a search of the house was inevitable, presumably pursuant to a second warrant. This, it was suggested, mitigates the seriousness of the breach. However, it can also be argued that the availability of a second, valid warrant to search the house when the search of the car failed to disclose the 9 mm handgun aggravates the seriousness of the breach. The decision of the police not to pursue this method of investigation in the first instance suggests to me that the primary motivation for seeking authorization to search the house was simply to seize all of the accused's registered firearms and his firearms license.
[60] This was an unreasonable search into a private residence in which the accused enjoyed a high expectation of privacy, resulting in a serious impact on his Charter rights.
C. Society's Interest in an Adjudication of the Merits
[61] The third line of inquiry on a s. 24(2) analysis examines whether the truth seeking function of the criminal justice process would be better served by admission of the evidence or by its exclusion:
"Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law". R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence": see Grant, at para. 79.
[62] As a result of the search of the accused's home, the police found, in the firearms vault with the registered firearms, a non-registered, semi-automatic, .22 calibre rifle and ammunition. Due to its particular characteristics, this rifle is alleged to be a prohibited firearm. This firearm is the subject of two counts in the seven count indictment the accused faces.
[63] This evidence is real, reliable and essential to the Crown's case on these two counts. The exclusion of relevant and reliable evidence important to the Crown's case may undermine the truth seeking function of the justice system and thereby bring the administration of justice into disrepute. However, the view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter's affirmation of rights and inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all of the circumstances, not just the reliability of the evidence: See Grant at para. 80.
[64] The seriousness of the alleged offence is another valid consideration under this third line of inquiry, but the court in Grant suggests that this factor has the potential to "cut both ways":
"Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus....Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.": see Grant, at para. 84.
[65] The long-term repute of the justice system is the focus of a s. 24(2) analysis. Bearing in mind that the evidence is reliable and important to the Crown's case, in all of the circumstances of this case would the long-term repute of the justice system be negatively affected more by the admission or the exclusion of this evidence?
[66] Having balanced the seriousness of the breach, the impact of this breach on the accused's s. 8 Charter rights and society's interest in a trial on the merits, I am satisfied that the accused has discharged the onus of establishing that the admission of the evidence obtained as a result of the search of the accused's home on September 15, 2008 would bring the administration of justice into disrepute. This evidence is therefore inadmissible in the trial of the accused.
___"original signed by"
The Hon. Mr. Justice J.S. Fregeau
Released: January 17, 2012
CITATION: R. v. Heera, 2012 ONSC 407
COURT FILE NO.: CR-08-0130-MO
DATE: 2012-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MOHANLALL HEERA
DECISION ON CHARTER APPLICATION
Fregeau J.
Released: January 17, 2012
/mls