Her Majesty the Queen v. Richard Vader, 2012 ONSC 5418

COURT FILE NO.:

DATE: 20121101

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mark Moorcroft, for the Crown

Crown

• and -

RICHARD VADER

Defendant

Magdalena Wyszomierska, for the Defendant

HEARD: September 25-27, 2012

REASONS FOR JUDGMENT

LAUWERS J.:

[1] The accused is charged with a number of weapons offences. The only defences he raises flow from applications under the Canadian Charter of Rights and Freedoms in respect of various police activities. These are analyzed and the framework for assessing the exclusion of evidence under s. 24 (2) of the Charter established by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 is applied to each claimed breach and then cumulatively. For the reasons set out below, all but one of the Charter applications are dismissed, and the remaining evidence is sufficient to convict the accused on all counts.

[2] The accused is charged with various counts of the following offences, alleged to have been committed on October 4, 2011:

1. Possession of a firearm while prohibited (8 guns x 2 prohibition Orders), contrary to the Criminal Code, R.S.C. 1985, c. C-46 [the “Code”] s.117.01;

2. Possession of ammunition while prohibited, contrary to Code s.117.01;

3. Occupation of an automobile knowing of firearms, contrary to Code s.94;

4. Careless storage of firearms, contrary to Code s.86;

5. Knowledge of unauthorized possession of firearms, contrary to Code s.92;

6. Possession of firearms obtained by crime, contrary to Code s.96;

7. Possession of prohibited or restricted firearm, contrary to Code s. 95.

[3] The link between the evidence tendered by the Crown and these counts was explained by the Crown as follows:

Counts 1-28 are all counts of Possession of Firearms and Ammunition Contrary to 2 separate weapons prohibitions. Counts 1-15 relate to the prohibition dated February 9, 2007, and counts 16 to 28 relate to the prohibition dated July 20, 2009

1. Count 1 – 12 gauge ammunition – found in ammunition box in vehicle per items 10-12 on Exhibit 9, and in the apartment per items 65-70 on Exhibit 9, as clarified by Officer Roughley in testimony;

2. Count 2 – 410 ammunition – found in apartment per item 71 on Exhibit 9, as clarified by Officer Roughley in his testimony;

3. Count 3 - .22 long rifle cartridges – found in ammunition box in vehicle per item 14 on Exhibit 9;

4. Count 4 - .223 cartridges – found in the soft gun case that contained 2 guns in the truck behind the seat, per testimony of Officer Roughley;

5. Count 5 - .30-.30 cartridges – found in ammunition box per item 8 on Exhibit 9;

6. Count 6 - .255 cartridges;

7. Count 7 – Ruger rifle .223 – truck behind seat;

8. Count 8 – Harrington and Richardson firearm – truck behind seat;

9. Count 9 – Browning 12 gauge – truck behind seat;

10. Count 10 – Winchester .30-.30 firearm – truck behind seat;

11. Count 11 – Winchester lever action – truck behind seat;

12. Count 12 – Lakefield Mossberg 12 gauge – truck behind seat;

13. Count 13 – Marlin rifle – truck behind seat;

14. Count 14 – handgun – apartment;

15. Count 15 - 12 gauge ammunition – found in ammunition box in vehicle per items 10-12 on Exhibit 9, and in the apartment per items 65-70 on Exhibit 9, as clarified by Officer Roughley in testimony;

16. Count 16 - 410 ammunition – found in apartment per item 71 on Exhibit 9, as clarified by Officer Roughley in his testimony;

17. Count 17 - .22 long rifle cartridges – found in ammunition box in vehicle per item 14 on Exhibit 9;

18. Count 18 - .223 cartridges – found in the soft gun case that contained 2 guns in the truck behind the seat, per testimony of Officer Roughley;

19. Count 19 - .30-.30 cartridges – found in ammunition box per item 8 on Exhibit 9;

20. Count 20 - .255 cartridges;

21. Count 21 - – Ruger rifle .223 – truck behind seat;

22. Count 22 - Harrington and Richardson firearm – truck behind seat;

23. Count 23 - Browning 12 gauge – truck behind seat;

24. Count 24 - Winchester .30-.30 firearm – truck behind seat;

25. Count 25 - Winchester lever action – truck behind seat;

26. Count 26 - Lakefield Mossberg 12 gauge – truck behind seat;

27. Count 27 - Marlin rifle – truck behind seat;

28. Count 28 - handgun – apartment;

29. Counts 29-35 – occupant in a motor vehicle with a firearm – relates to 7 long guns found in truck;

30. Counts 36-42 – Careless storage, all relating to 7 long guns in vehicle;

31. Counts 43-49 – Possession without a proper licence of the 7 long guns found in the vehicle;

32. Count 50 – Possession without licence of handgun at apartment;

33. Count 51 – Possess loaded prohibited firearm – handgun at apartment;

34. Count 52 – Possess stolen Browning – truck behind seat (Meyer – owner);

35. Count 53 – Possess stolen Ruger Rifle – truck behind seat (Hannah);

36. Count 54 – Possess stolen Winchester 1894 – truck behind seat (Hannah);

37. Count 55 – Possess stolen Mossberg – truck behind seat (Hannah);

38. Count 56 – Possess stolen Marlin – truck behind seat (Hannah).

The defence does not contest that the accused possessed these items or the continuity of possession.

[4] The Crown filed a true copy of a Prohibition Order imposed on the accused as a result of his conviction on a robbery charge on February 9, 2007. The Crown filed another Prohibition Order in relation to the accused’s conviction of assault causing bodily harm dated July 20, 2009.

[5] Subject to the outcome of the defence’s applications under the Charter, the defence agreed to the admission into evidence, without the need to call witnesses, of the following:

1. The statement of Shawn William Meyer dated March 15, 2012, who states that he is the lawfully registered owner of a Browning Gold shotgun. The gun was stolen from the gun cabinet in his parent’s cottage. It is one of the guns seized from Mr. Vader;

2. The Agreed Statement of Fact for David John Hannah, who states that there was a break-in at his cottage between September 17, 2011, and September 23, 2011, in which seven guns and other items were stolen. Four of the guns were found in Mr. Vader’s possession, being a Ruger Ranch rifle, a Winchester 184, a Mossberg shotgun, and a Marlin rifle;

3. The will says of Sergeant James Rutherford, an officer with the Cobourg Police Service and an “Approved Verifier” recognized by the Registrar of Firearms, that all of the weapons were operational;

4. The statement of Firearms Officer Jason Elbers, who searched the Canadian Firearms Information System and did not find any certificate or licence issued to Richard Vader.

[6] Subject to the success of the accused’s Charter applications, I find that the offences charged are made out on the evidence.

The Charter Applications

[7] The accused alleges that the police violated a number of his Charter rights including those protected by ss. 8, 10(a), and 10(b). He challenges the voluntariness of statements he made to the police, and attacks the propriety of warrantless searches of the pick-up truck being operated by the accused and the apartment leased to the accused’s girlfriend Jessica Van Allen. The Crown pursued an application to verify voluntariness.

[8] The Crown initially resisted the defence’s proposal that all matters proceed by way of a blended voir dire, insisting that the accused’s assertion of a privacy interest in Ms. Van Allen’s apartment ought to proceed first with the onus on the defence. After Ms. Van Allen testified, the Crown agreed that the balance of the evidence could go in as part of a blended voir dire. Without putting too fine a point on it, the parties agreed that all of the evidence called would be available both in relation to the Charter challenges and the trial itself.

The Events of the Evening

[9] I address the legal issues as they arise in the narrative flow.

The Encounter between the Accused and the Police

[10] On October 4, 2011, the accused was driving a pick-up truck with one headlight out. Officer Roughley noticed the truck and followed it. The driver took some minor evasive actions and eventually pulled into a driveway on 358 John Street in Cobourg.

[11] Officer Roughley stopped his car, got out and approached the driver’s side door of the truck. The driver opened the door and got out of his vehicle when Officer Roughley walked up, leaving the door open. The Officer asked the driver, whom he identified as the accused, for a driver’s licence, an insurance certificate and the ownership of the vehicle for Highway Traffic Act, R.S.O. 1990, c. H. 8, purposes. The accused presented the ownership certificate for the vehicle and an expired insurance certificate. The accused advised Officer Roughley that his licence had been suspended.

[12] Officer Roughley instructed the accused to get back into the truck. The Officer went back to his car and did a records search. He learned that the accused had been unlicensed since 2006. This meant that the accused could not drive the truck away and that a tow would have to be arranged. He also learned that the accused was the subject of two firearm prohibitions. In cross-examination, Officer Roughley admitted that once he learned about the firearms prohibition he became “more attentive” and that his “level of concern” increased from “the regular”.

[13] Officer Roughley wrote up the Highway Traffic Act violations in his car, then got out and approached the truck. The accused once again stepped out of the truck and left the door open. Officer Roughley testified that when he told the accused that he would be getting a third ticket for the expired insurance certificate, the accused took a second look inside the truck in the glove compartment and in the centre console to see if he could find an up-to-date insurance certificate. The truck had a single bench seat, and the middle portion could be folded down to form the console.

[14] In the meantime the tow-truck arrived. Sergeant Paul Legere and Officer Michael Richardson also arrived but remained in their vehicle on the roadside.

[15] While standing beside the accused outside of the open driver’s side door, Officer Roughley saw a green metal box standing upright on the passenger side floor. He testified that he could not see the writing on it but knew that it was an ammunition box from his own work and from the movies. He asked the accused if it was an ammunition box. The accused said that it was. Officer Roughley then asked if there was ammunition in the box and the accused said that there could be.

[16] In cross-examination Officer Roughley denied that he began his criminal investigation at the point that he learned the accused was under a weapons prohibition. He expressed the view that the criminal investigation began when the accused answered his second question about whether there was ammunition in the box. He testified that he was surprised by the answer and admitted that he did not give a caution to the accused, or advise him of his right to counsel at that moment.

[17] The conversation about whether there was ammunition in the box was not recorded in Officer Roughley’s notes. He did not mention it in his evidence at the preliminary inquiry. He was challenged on whether he was making up this evidence and he denied it. I accept Officer Roughley’s evidence about the verbal exchange with the accused. It would have been quite natural in the circumstances and it fits with the Officer’s personal style.

[18] At that point Officer Roughley stepped back and motioned to his fellow officers to come over to him. He testified that he wanted to have a better look in the truck but for safety reasons he wanted another officer to watch the accused. Officer Richardson came over and escorted the accused to stand near Officer Roughley’s car, but told the accused not to speak to him. Officer Roughley agreed that at the moment that he motioned the officers over, the accused was detained. He admitted in cross examination that he did not ask the accused for permission to search the truck.

[19] Officer Roughley testified that when the accused was no longer standing in the open doorway of the truck, he was better able to look into the cab of the truck, and he noticed what appeared to be some rifle cases protruding from behind the seat back. The cases were, as far as he could tell from the driver’s side viewpoint, standing on the passenger side floor behind the bench seat pointing up through the middle of the seat where the central console was folded down. There were two soft cases and one hard. Officer Roughley reached in and squeezed one of the soft cases and felt what he thought were the barrels of more than one gun.

[20] Officer Roughley then went around to the passenger side to retrieve the items. He opened the door, pulled out the ammunition box, opened it and saw the ammunition. He undid the seat latch to flip forward the seat back and then took out the gun cases and put them on the ground. One soft case contained four rifles, the other had two and the hard case had one rifle in it. There were no locks or other safety mechanisms engaged on any of the rifles.

Possible Charter breaches concerning the failure to caution the accused and the seizure of the items in the truck

[21] The defence submits that Officer Roughley should have cautioned the accused and informed him of his right to counsel as soon as the detention changed from a routine stop under the Highway Traffic Act to an investigative detention for criminal purposes. She also contends that the Officer’s actions amounted to warrantless search of the truck.

Detention and the Right to Counsel

[22] In my view that transition from a routine stop under the Highway Traffic Act to an investigative detention for criminal purposes occurred at the moment that Officer Roughley saw the ammunition box and linked it mentally with the weapons prohibition orders against the accused: R. v. MacDonald, 2012 ONCA 495, [2012] O.J. No. 3210 at paras. 29 and 30. This was before he questioned the accused about the ammunition box.

[23] A police officer is not entitled to ask questions of the accused nor to conduct a search incidental to an investigative detention. The framework is set in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at paras. 37 and 45:

The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.

To summarize …, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. …I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

[24] An investigative detention gives rise to the right to retain and instruct counsel without delay. In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court held at paras. 37, 38 and 40, that:

Once an individual is detained, s. 10(b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel without delay, and to be informed of that right. The issue raised on this appeal asks whether the words "without delay" require the police to execute their duties to facilitate a detainee's right to counsel immediately upon detention, or whether this obligation can be fulfilled at a later point in time.

Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

[25] At paragraph 42 the court found that it would be unworkable, “to allow for delay between the outset of a detention and the engagement of police duties under section 10(b)”, except in circumstances where there are “concerns for officer or public safety”. I find no such concerns in this case. Consequently, in my view, Officer Roughley should not have asked the accused whether the box was an ammunition box or whether there was ammunition in it. I therefore find that Officer Roughley’s failure to caution the accused and to inform him of his right to counsel at the moment that he was detained was a breach of the accused’s right under s. 10(b) of the Charter. I note, however, that given his knowledge of the weapons prohibitions against the accused and Officer Roughley’s personal style, he would have checked out the ammunition box even if, perhaps especially if, the accused had denied that it was such a box or that it held ammunition.

Seizing the Items from the Truck

[26] The defence argues that Officer Roughley searched the truck without a warrant and so breached the accused’s s. 8 Charter right. Further, she submits that the search was the result of the accused’s response to the Officer’s improper questions in breach of s. 10(b) of the Charter, and was therefore a tainted search derivative of that breach.

[27] Warrantless searches are considered prima facie unreasonable: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. The governing precedent is Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, which stands for the proposition that any interference with the reasonable expectation of privacy must be done pursuant to a warrant or prior judicial authorization, or must fall within an exceptional circumstance such as exigency.

[28] This presumption of unreasonableness shifts the onus to the Crown of establishing that, under all the circumstances, the search was reasonable. The Crown can meet the onus of establishing the reasonableness of the search by showing that the search was authorized by law, where the law itself is reasonable, and the manner in which the search was carried out was reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at paras. 21-22.

[29] The Crown argues that Officer Roughly did not conduct a search, but rather merely seized the ammunition box that was in plain view. He did not need either statement by the accused to justify seizing the ammunition box. In other words, the seizure of the ammunition box was “authorized by law” because it was consistent with the application of the plain view doctrine, which also applies to the seizure of the gun cases.

The Application of the Plain View Doctrine

[30] The plain view doctrine was explained by the Ontario Court of Appeal in R. v. Jones, 2011 ONCA 632, 107 O.R. 3(d) 241, per Blair J.A., at para. 56:

The "plain view" doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however:

(i) The officer must be lawfully in the place where the search is being conducted ("lawfully positioned", in the language of the authorities);

(ii) The nature of the evidence must be immediately apparent as constituting a criminal offence;

(iii) The evidence must have been discovered inadvertently;

(iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes. [Citations omitted.]

[31] The defence argues that the plain view doctrine did not permit Officer Roughley to seize the ammunition box. At best the presence of the box indicated that the accused was possibly committing a criminal offence, so that if the ammunition box had contained something innocent then there would have been no offence; accordingly a search warrant should have been obtained for the truck.

[32] Applying the Jones criteria to the facts in this case, I find that the Officer was lawfully in the place where the impugned and alleged search was being conducted since he was in the course of a routine Highway Traffic Act stop. He was able to immediately identify the accused’s possession of the ammunition box as constituting a criminal offence. The evidence was discovered inadvertently. The ammunition box and the guns were amenable to seizure.

[33] In my opinion, the plain view doctrine, rooted as it is in the practical exigencies of police work, is flexible enough to permit an officer who has reasonable grounds to believe from a visual cue that a criminal offence has been or is being committed, to seize the item for inspection. In this case the inspection of the box immediately revealed the crime. R. v. Spindloe, 2001 SKCA 58, 154 C.C.C. (3d) 8, addressed this issue at paras. 39-41:

Similarly, the requirement that the criminal nature of the evidence be “immediately apparent” is not rigidly applied. Indeed Rehnquist J., again speaking in Texas v. Brown, criticizes the choice of the words “immediately apparent” since they can be taken to imply that an “unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the plain view doctrine” (see p. 513). In so far as the Court in Texas v. Brown upheld this requirement, the substance admitted into evidence in that case was contained in a balloon, was not visible until the balloon was opened and was not known conclusively to be heroin until examined by an expert. Words like “reasonable grounds to believe that the discovered item constitutes evidence of a crime” better express the need to provide direction to the police with respect to the application of the doctrine.

I am reluctant to impose rigid requirements, particularly in light of s. 8 of the Charter which relies not on rigid rules but on an assessment of reasonableness. Applying the first and second tests of Collins, one must conclude that the common law, given the jurisprudence on point, authorizes plain view seizures. The plain view seizure power cannot be exercised as a pretext for a planned warrantless seizure, but if the police are lawfully present in premises, they may seize property in plain view as long as there is probable cause to associate the discovered property with criminal activity. Linked as it is to the lawful presence of the police, it is a reasonable law. [Emphasis added]

[34] R. v. Harvey, 2007 NSPC 16, 255 N.S.R. (2d) 104, at para. 18 highlighted how the “immediately apparent” requirement does not require the police to be able to determine, with absolute certainty from immediate observation, that an offence has been committed.

The third aspect of the test requires that it be apparent that the item seized be evidence of an offence. Clearly the test does not require that the police be able to determine from immediate observation at the scene that an offence has been committed. The seizure of drugs under the plain view doctrine would in that case be impossible because the substance observed had, at the time of its seizure not been analyzed. While finding a rifle in the back seat of an unlocked vehicle that had been evading police moments before does not establish all of the elements of an offence, it was certainly not unreasonable on the part of the officers to have concluded that the unsecured rifle was at least evidence of the offence of unsafe storage or transportation of a firearm. The seizure was justified under the plain view doctrine. [Emphasis added.]

[35] The defence further submits that even if the Officer were permitted by the plain view doctrine to seize the ammunition box, he then went on to search the truck without a warrant. The defence argues that the Officer breached the accused’s rights under s. 8 of the Charter by peering into the cab of the truck when the accused was out of the way, and by reaching in and squeezing the gun cases.

[36] I see the Officer’s actions to be more in the nature of a seizure within the meaning R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 than a search within the meaning of R v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at para. 18. I reject the defence submission that the officer’s actions amounted to a search rather than a seizure. I find the suggestion that the officer was obliged to put on notional blinders at the moment that he noticed the ammunition box to be absurd; it would amount to a form of judicial micromanagement of the application of the plain view doctrine in the context of investigative detention that is simply not sensible in the field where difficult and potentially dangerous police work is done.

[37] Even if Officer Roughley’s second look inside the truck when the accused was out of the way, making the view plainer, was in some sense a breach of the accused’s reasonable expectation of privacy and therefore of his right to be free of a warrantless search, which I reject, there is no doubt that the gun cases would have come into view when the officer went around to the passenger side to open the door, reach in, and retrieve the ammunition box as he was entitled to do. It would then have been within the scope of the plain view doctrine for the Officer to touch the gun cases and to take them out for the purpose of inspecting them, as he did. In short, I find that Officer Roughley was permitted by the plain view doctrine to look into the truck. Once Officer Roughley saw the gun cases, whether his head was inside or outside of the truck, he was permitted under the plain view doctrine in the course of seizing the gun cases to reach in and ascertain whether they contained guns by squeezing them on the reasonable inference that they contained guns.

[38] There is no doubt that an innocent use could be made of an empty gun case. In the course of cross-examination defence counsel tried unsuccessfully to get Officer Roughley to admit that one could carry fishing rods in a gun case; that possibility is obvious. That said, the analysis of the plain view doctrine is the same for the gun cases as it was for the ammunition box. Moreover, having lawfully retrieved the ammunition box and having ascertained that it contained ammunition, the readily apparent gun cases took on a more sinister appearance. It was reasonable for Officer Roughley to draw the inference, in the circumstances, even without the “squeeze” that the gun cases held weapons, not fishing rods.

[39] In reaching this conclusion, I distinguish R. v. Stevens, 2011 ONCA 504, 106 O.R. (3d) 241, where the court dealt with the seizure of gun cases found in an apartment. Upon executing an eviction order that should have been rescinded, Sheriff’s officers discovered gun cases and contacted the police. Officers arrived, opened the cases, and found the guns. They then waited at the apartment for an ex post facto search warrant to be issued. The accused appealed his conviction for careless storage. Armstrong J.A. found at para. 48 that “the execution of the eviction order on the inadvertent and mistaken instructions of the landlord cannot diminish the expectation of privacy of the appellant in the apartment, which was his home.” After doing the Grant analysis the court excluded the evidence.

[40] In the course of his decision, Armstrong J.A. referred to the Supreme Court’s decision in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, concerning the plain view doctrine at paragraph 43, and in the analysis adverted briefly to the plain view doctrine at paragraph 51:

The Superior Court judge appeared to rely on, and the Crown advocates, the “plain view” doctrine because the gun cases were located in a room of the apartment where they could be readily observed - thus reducing the expectation of privacy. While the gun cases were in plain view, the guns were not and I do not agree that the plain view doctrine is of assistance.

[41] I distinguish this decision on five bases. First, and most importantly, the court in Stevens found that the police officers were not lawfully present in the apartment when they saw and opened the gun cases. This was also true of the situation in Buhay; see para 37, where Arbour J. stated: “[t]he “plain view” doctrine requires, perhaps as a central feature, that the police officers have a prior justification for the intrusion into the place where the “plain view” seizure occurred.” This was enough to displace the plain view doctrine in Stevens. Here I have found that the Officer was lawfully present.

[42] Second, as noted earlier, there is a diminished right of privacy in an automobile, compared to a residence. Third, the determination of how the plain view doctrine operates is context-sensitive. In this case the Officer was in the course of a criminal investigation because he was aware of the weapons prohibitions against the accused and had seen the ammunition box. The Officer opened the ammunition box and found the live ammunition before he opened the gun cases. This would have had the effect of increasing both the subjective and objective likelihood that the gun cases contained guns. There was a criminal immediacy to the items seen by the Officer that did not exist in Buhay, where Arbour J. observed: “[i]t stretches the meaning of “plain view” to argue that an item placed in a duffel bag inside a locked locker is somehow in plain view of the police.” In short, in this case there was an aura of criminality in the context that did not exist in Stevens, which involved an eviction.

[43] Fourth, with the greatest of respect, it appears that the full reach of the plain view doctrine was not argued either before the Court of Appeal or before the Superior Court judge on appeal from the Ontario Court of Justice (see [2009] O.J. No. 2883 (S.C.)); no reference was made to Spindloe and Harvey, for example.

[44] Finally, no reference was made to s. 489(2) of the Criminal Code, which provides:

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

See R. v. B. (E.), 2011 ONCA 194, 232 C.R.R. (2d) 18, leave to appeal refused [2011] S.C.C.A. No. 455. This section may be seen as a more relaxed version of the common law plain view doctrine. It clearly applies to these facts.

The application of s. 24(2) of the Charter to the stop and the seizure of the items in the truck

[45] On the assumption that my application of the plain view doctrine is mistaken, in this section of the reasons I proceed: first, to describe the Grant framework; second, to apply it to the facts and the law that I have found; and third, to apply it.

The Grant Framework

[46] The analytical framework for the application of s. 24(b) of the Charter is set by the Supreme Court’s decisions in R. v. Grant and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The Court framed the test for relief under s. 24(2) of the Charter at para. 71 of Grant:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) 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 (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

1. The Seriousness of the Charter-infringing Conduct

[47] In Grant, the Supreme Court noted at para. 72 that the function of the first line of inquiry into the “seriousness of the Charter-infringing state conduct,” is “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.”

[48] The focus is on the nature and degree of police misconduct. The Court stated at para. 72 that “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, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”

[49] As Fuerst J. observed in R. v. Little, [2009] O.J. No. 3385 at para. 17:

Deliberate police conduct in violation of Charter standards will tend to support exclusion of the evidence, as will wilful or flagrant disregard of the Charter, or evidence that the conduct was part of a pattern of abuse. Good faith on the part of the police, or extenuating circumstances such as the need to preserve evidence may attenuate the seriousness of the conduct.

2. The Impact of the Breach on the Charter-protected Interests of the Accused

[50] In Grant, the Supreme Court noted at paragraph 76 that the second line of inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” This requires the court to assess the particular right in issue as raised by the facts.

[51] A consideration of the first two branches of the Grant analysis involves situating the seriousness of the breach and the significance of the impact on the accused along a continuum: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, per Doherty J.A.

3. Society's interest in the adjudication of the case on its merits

[52] The third branch of the Grant analysis involves a consideration and weighing of society's interest in the determination of the charges on their merits. It is concerned with promoting the central purpose of a trial – to seek out the truth. The court must consider whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79), assessing factors that include, but are not limited to, the reliability of the evidence in question and the importance of the evidence to the prosecution's case.

Applying the Grant Framework to Officer Roughley’s Questions and the Answers

[53] I have found that Officer Roughley breached the accused’s s. 10(b) Charter rights by asking the accused two questions after he was detained. I am obliged to consider the effect of that breach under s. 24(2) of the Charter. The defendant submits that both answers to the questions posed by Officer Roughley should be excluded along with the hard evidence found in the truck.

[54] Considering the first line of inquiry in Grant, the defence urges the court to consider the breach to be serious and worthy of sanction, not the least because Officer Roughley was the very officer whose conduct gave rise to the Supreme Court of Canada’s decision in Suberu. In other words, he ought to have known what he was doing, and cannot claim that he was acting in good faith or that he was mistaken.

[55] The majority in Grant recognized that misconduct by state agents covers a wide spectrum, from inadvertent or minor violations at one end, to wilful or reckless disregard for the Charter rights of accused persons at the other end. As misconduct approaches the wilfulness end of the spectrum, exclusion of evidence flowing from such misconduct approaches the level of inevitability. In addition, “evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion” (Grant, at para. 75). As I discuss in more detail below, I find no such pattern here.

[56] In this case I find that the questioning was “minimally intrusive,” per MacDonald at para. 35, and quite natural in the circumstances. The first question verges on the innocuous although the second question had an edge. I am not persuaded that Officer Roughley knew that he was breaching the accused’s right, nor that he thought that he might be doing so and went ahead regardless. I find the breach to be minor and inadvertent and, accordingly, at the lower end of the spectrum.

[57] The second line of inquiry in Grant relates to the particular right at issue on the facts. In the context of a statement, in Grant the Court noted at para. 77, that the affected right is “the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 44.” In Grant, at para. 81, the Court noted:

Public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

[58] As Doherty J.A. explained in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 40:

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.).

[59] This line of inquiry favours the accused because it normally calls for the exclusion of statements taken in breach of the Charter, as Grant notes at para. 96. This is because, as noted by the Court at para. 95:

The failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual's interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.

[60] The third Grant line of inquiry requires the court to take into account the prospect that the exclusion of the evidence might well prevent the prosecution of the offence. Here, while the statements were reliable, the exclusion of the statements alone would not prevent the prosecution. The countervailing influence is not sufficient to displace the normal rule that statements taken in breach of the Charter are to be excluded. Taking the three Grant lines of inquiry together, I therefore conclude that it would be appropriate to exclude the answers to the questions posed by Officer Roughley to the accused from the evidence in this prosecution, and I do so.

[61] The defence urges the court to go even further and to exclude the ammunition box, the gun cases and their contents from the evidence. The defence relies heavily on the Court of Appeal’s decision in MacDonald, which it submits is on all fours with this case. In MacDonald the police stopped the accused for speeding. The officer noticed a brown cardboard box in the van that, in his experience, caused him to become “suspicious that the box contained contraband cigarettes.” The officer asked the accused what was in the box. The accused initially denied that he knew and then he said that there were cigarettes in the box that he was taking to a pow-wow.

[62] The officer went back to the cruiser and obtained authorization to detain and search the vehicle under s. 24 of the Tobacco Tax Act, R.S.O. 1990 c. T.10. The Court of Appeal found that the search under the Act was properly authorized.

[63] The court found, however, that the accused was detained and his s. 10 Charter rights were crystallized “when the nature of the question shifted towards a TTA investigation (at para. 28)”. The court held that “[t]his new jeopardy triggered the appellant’s section 10 rights, especially his right to consult counsel (at para. 30).”

[64] The court ultimately found that: “[s]ince the police officers would not have had reasonable and probable grounds to search the van without the appellant’s answer to the question about the contents of the box, it follows that the marijuana and cigarettes would not have been found by the police had the appellant not made the self-incriminating response (at para. 36.” The court then excluded both the answer to the officer’s question and the contents of the box, which turned out to contain both contraband cigarettes and marijuana.

[65] I distinguish MacDonald from this case on three bases. First, I find that the accused’s statements did not cause Officer Roughley to search the truck despite his testimony that in his view the criminal investigation started with the accused’s answer to his question about what was in the ammunition box; what he did was seize the items in plain view. As I noted earlier at para. 25, given his knowledge of the weapons prohibitions against the accused and Officer Roughley’s persona, he would have checked out the ammunition box even if, perhaps especially if, the accused had denied that it was such a box or that it held ammunition.

[66] Second, the plain view doctrine did not apply in the MacDonald case because a cardboard box is not plain and obvious evidence of criminal activity. In my view, for the reasons set out above, the Officer was justified by the plain view doctrine in seizing the ammunition box, looking inside it, and doing the same with respect to the gun cases that he also saw, which were all in plain view. In view of the weapons prohibitions on the accused, there was a sufficient reason in his simply seeing the ammunition box, and then the gun cases, for the Officer to do what he did.

[67] Third, unlike this case, in MacDonald the vehicle was not subject to seizure under the Highway Traffic Act. There is no doubt that the guns and the ammunition would have come to the attention of the police through a routine inventory of the contents of the truck that would have followed its seizure under the Highway Traffic Act, since the accused was not licensed to drive it away from the stop and a tow truck was ready to take it. The evidence would in any event have come to the attention of the police without a search warrant. As McLachlin C.J.C. observed in Grant at para. 122: “[t]he more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination.” See also R. v. Nicolosi, (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417.

[68] There is therefore no Charter reason to exclude the ammunition box, the gun cases or their contents from the evidence in this case.

[69] Before moving on, I will comment on a further aspect of the impugned seizure. I have found that Officer Roughly had authority to seize the ammunition box. But did he then have the authority to look into the box? I conclude that he did in the particular circumstances of this case. The s. 8 analysis must be done contextually in every case, and protects against unreasonable searches. It protects the privacy interests of the accused person from unreasonable intrusion. In this instance, I find that the accused did not have a reasonable expectation of privacy in the ammunition box in view of the prohibition orders against him. Opening the ammunition box was, in the circumstances, not unreasonable.

Applying the Grant Framework on the Basis that the Plain View Doctrine Does not Apply

[70] I now consider and apply the Grant framework on the basis that my application of the plain view doctrine was mistaken and that a warrant should have been obtained before Officer Roughley took the items out of the truck. This requires the assessment of the evidence of the guns and ammunition found in the truck on the basis that they are the tainted fruit of an improper search or improper questioning.

[71] Considering the first line of inquiry in Grant, as noted above, the focus is on the nature and degree of police misconduct. The defence asserts that this was a warrantless search, which is prima facie contrary to the accused’s s. 8 Charter right. There is no good reason for the failure to get a warrant. The truck was not going anywhere and the circumstances were not exigent.

[72] At the same time, Officer Roughley “was not engaged in a Mellenthin-like fishing expedition conducted at a random highway stop,” to borrow the words of MacPherson J.A. in MacDonald at para. 35. He had objects in plain view that he could, and did, see from outside the vehicle that were genuinely suspicious in the context of an accused subject to weapons prohibitions. These contextual facts serve to mitigate the nature and degree of any police misconduct. I find that, in relation to any search of the truck, Officer Roughley did not know that he was breaching the accused’s right, nor did he think that he might be doing so and went ahead regardless. I find the nature and degree of police misconduct to be on the less serious end of the spectrum.

[73] As I observed earlier, the evidence would in any event have come to the attention of the police without a search warrant.

[74] The second line of inquiry in Grant requires an assessment of the right in issue. As Fuerst J. noted in Little at para. 19:

The judge must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. In the context of s. 8, “[a]n 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] paragraph 78.

[75] The cases are clear that an accused’s right to privacy in a vehicle is relatively low. See R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 15; Nicolosi, at para. 9; and Little, at para. 21.

[76] The third Grant line of inquiry takes cognizance of the prospect that the exclusion of the evidence might well prevent the prosecution of the offence. At para. 83 of Grant, the Court noted that “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.” While the exclusion of the accused’s statements would not gut the prosecution, the exclusion of the hard evidence found in the truck would. That evidence is highly reliable.

[77] I am mindful of the caution referred to by the Supreme Court at para. 40 of Harrison, citing with approval the words of Cronk J.A.:

Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means.'”

[78] I found the nature and degree of police misconduct to be on the less serious end of the spectrum. I found the expectation of privacy in the truck to be relatively low, and that the evidence would have come to light in any event. I found that the exclusion of the physical evidence would gut the prosecution’s case. These are serious offences. The scourge that gun crimes represent in our communities is well documented. Given the modesty of any breaches involved, the exclusion of the evidence would be more disreputable than its reception. Taking the three Grant lines of inquiry together, I conclude that it would not be appropriate to exclude the physical evidence found in the truck from the evidence in this prosecution, and I decline to do so. I would reach the same conclusion even if the officer’s actions amounted to a search of the truck that was found to be the tainted result of a statement received from the accused through improper questioning in breach of his Charter rights; I do not find that either minimally intrusive breach sufficiently aggravating, alone or together, to tilt the balance in the accused’s favour, and decline to exclude the evidence.

[79] I now return to the narrative.

Arresting and Transporting the Accused

[80] After finding the guns and the ammunition Officer Roughley immediately went out to the street and placed the accused under arrest for being in possession of guns while prohibited. He did a pat down, took a knife from one of the accused’s pockets, and then put him in the back of his cruiser. Officer Roughley again told the accused that he was under arrest and the accused indicated that he knew that. The accused said: “I’d like to talk to you about these guns when we get to the station.”

[81] At 20:40 Officer Roughley read the accused his rights from a notebook and asked him whether he wanted to call a lawyer, to which the accused responded: “I’m really not sure”. Officer Roughley responded that the accused could call a lawyer at any time. The accused said that he understood and said: “That would be fine.” Officer Roughley completed reading the full caution and said: “Do you understand that, Richard?” The accused said that he understood. The officer then asked the accused if he wanted to say anything to him and the accused responded: “I do, but not now.” At 20:56 Officer Roughley transported the accused to the station.

[82] On the short drive to the station, in response to Officer Roughley’s questions the accused indicated that the guns were stolen and that he had bought them, but that he wanted to wait to get to the station to speak to the Officer “to look you in the eye”. He also disclosed to the Officer that he was on a Methadone program. They arrived at the station at 20:59.

Possible Charter breaches relating to the accused’s response to the caution and the right to counsel

[83] The defence submits that the admission made to the officer by the accused that the guns were stolen and that he had bought them ought to be excluded from the evidence in this case on the basis that the accused had not waved his right to counsel.

[84] The defence submits that the accused’s answer to Officer Roughley’s question on whether he wanted to call a lawyer, being, “I’m really not sure,” does not constitute waiver of the right to counsel. She cites the decision of the Court of Appeal in R. v. Badgerow, 2008 ONCA 604, 237 C.C.C. (3d) 107, at paras. 45-46.

As the trial judge noted, there is also ample authority that what the police are required to say and do in a particular case to fulfill their duties under s. 10(b) will depend on what the accused says and does and what the police could reasonably surmise in the circumstances: (Internal citations omitted).

Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights.

[85] The defendant argues that Officer Roughley ought to have probed the accused to determine why he was “not sure” whether he wanted to call a lawyer. The defendant cites the Supreme Court of Canada’s decision in R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at para. 25:

The Crown contends that there was no infringement of the right to counsel because the respondent had waived his right by answering the police officer's questions. While a person may implicitly waive his rights under s. 10(b), the standard will be very high (Clarkson, supra, at pp. 394-95). In my view, the respondent's conduct did not constitute an implied waiver of his right to counsel. It seems that he did not intend to waive his right, as he clearly asserted it at the beginning and at the end of the questioning. Rather, the form of the questioning was such as to elicit involuntary answers. The police officer asked two innocuous questions followed by a baiting question which led the respondent to incriminate himself. In addition, where a detainee has positively asserted his desire to exercise his right to counsel and the police have ignored his request and have proceeded to question him, he is likely to feel that his right has no effect and that he must answer. Finally, the respondent had the right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered the questions. Otherwise, the right not to be asked questions would only exist where the detainee refused to answer and, thus, where there is no need for any remedy or exclusionary rule.

[86] In my view the assessment of whether the right to counsel has been waived must be determined contextually. In Badgerow, the court determined that the accused was “still seeking assistance from his own lawyer” (at para. 47). The accused was looking for legal counsel. Similarly, in Manninen the accused wanted to speak to a lawyer. In that context the court, at para. 23, endorsed from words from an earlier Ontario Court of Appeal decision: “[i]f the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel.”

[87] In this case the accused’s words, “I’m really not sure,” must be considered in the overall context. Earlier he had said: “I’d like to talk to you about these guns when we get to the station.” In response to the accused’s statement that he was “not sure”, Officer Roughley told the accused that he could call a lawyer at any time; the accused responded that he understood, saying “That would be fine”. At that point the accused had heard both about his right to silence and about his right to consult a lawyer. In response to the officer’s question about whether he had anything to say, the accused said “I do, but not now.” The evidence is that the accused wanted to speak to the officer. At no time did he express any interest in contacting a lawyer.

[88] The accused was fully aware of his right to silence and his right to counsel. He decided, despite these rights, to speak to the Officer. Even so, I agree with the defence that the accused did not implicitly or explicitly waive his right to counsel.

[89] That said, in my view the defence is asking the court to impose an additional duty on a police officer to go beyond providing the caution and presenting the right to consult counsel. I see no reason to take that extra step in the circumstances of this case and there is no support for doing so in the case law. The duty to hold off questioning is only engaged where the detainee expresses a positive desire to speak to counsel. I find that in this case, the accused did not express such a desire.

Applying the Grant Framework to the Right to Silence and to Counsel

[90] Assuming that I am mistaken in my holding that Officer Roughley was not obliged to discontinue questioning until the accused positively waived the right to counsel, I must assess whether the accused’s statements that that the guns were stolen and that he had bought them should be excluded.

[91] Considering the first line of inquiry in Grant, as with Officer Roughley’s questions at the door of the truck, I would find the conversation in the cruiser to be minimally intrusive. I note, however, that Officer Roughley reasonably believed that the accused, given the accused’s statements that he did not wish to speak to counsel, was prepared to answer questions. Further, the circumstances were not especially intimidating. Although the accused was under arrest and in a police cruiser, the Officer was driving and the accused was in the back seat. There was no eye contact and no physical intimidation possible. I find any police misconduct to be at the low end of the spectrum.

[92] The second line of inquiry in Grant requires an assessment of the right in issue. In this instance it is the right to counsel. The right to silence and the right to counsel are related, as Doherty J.A. observed in R. v. Sawatsky, (1997), 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767 (C.A.) at paras. 30 and 33. It seems to me that the form of the Grant analysis is the same as it was regarding the accused’s responses to Officer Roughley’s questions about the ammunition box. It follows that in this eventuality the evidence would ordinarily be excluded, as noted in para. 96 of Grant.

[93] The third Grant line of inquiry takes cognizance of the prospect that the exclusion of the evidence might well prevent the prosecution of the offence. The substantive content of the statement is minimal and the fact that the guns were stolen can be independently verified.

[94] Taking the three lines of Grant together, and assuming that I am mistaken in my holding that Officer Roughley was not obliged to discontinue questioning until the accused positively waived the right to counsel, I would find that the statements should be excluded.

The Booking Process and the Accused’s Signed Statement

[95] At 21:05 the booking process began. It is fully and fairly shown on the exhibited video, and a transcript was attached to the Crown’s Notice of Intention to Respond to the Charter application.

[96] Officer Roughley reports to Sergeant Legere the following:

He is currently under arrest for possession of firearms, ammunition while prohibited. He understands why he’s under arrest. He’s been read his rights to counsel and understands his rights to counsel. And he’s deferred on calling a lawyer at this time. He’s also been read his caution. Is that correct, Richard?

Richard Vader: Yes.

[97] The booking process continues without incident. Mr. Vader is cooperative. The video shows that there was no tension or atmosphere of oppression. During the course of the booking Sergeant Legere makes the following comment:

So Richard, for now you’ve indicated that you don’t want to call a lawyer at this time. I’ll just get you to sign here to indicate that this is your wish currently. Okay. You can have a seat in the cell here for a little bit until we get your paperwork together and figure out what your resume is all about.

Richard Vader: Sure.

[98] The record of arrest identified as Exhibit 18 records: “Decline legal”. The box marked “call not desired” was checked and the time was entered as 21:11. That box was signed by the accused and initialled by Sergeant Legere.

[99] At no time did the accused ask to speak to a lawyer. At no time after this exchange did the police renew the offer to have the accused call a lawyer.

[100] Officer Roughley testified that as he was escorting him to the cell after the booking process, the accused said “I’ve got to tell you something, can we talk?” Officer Roughley testified that he went to the door of the video room in the cell block building but it was occupied by a photocopier so he did not use it. Instead he took the accused to the nearby “report room,” being a room in which officers write reports from time to time.

[101] Once they were in the room, Officer Roughley testified that the following exchange occurred:

I ask him, “Okay, Richard, what’s up?” And then he states, “There’s another gun at the apartment”. I ask “What is it?” He responds, “It’s a 22 pistol”. I ask, “Where is it?” He responds, “It’s in my book bag”. [The Officer misspoke-his other evidence shows that he meant to say “backpack”.] I ask, “Does Jessica know it’s there?” He responds, “Yes, but it’s mine. I bought all these guns for protection and, yes, I have been driving the truck around for a couple of months.”

[102] Officer Roughley admitted that when the accused spoke about the handgun that his jeopardy increased but he did not caution him again and did not advise him again of his right to counsel.

[103] Officer Roughley testified that he exited the room and asked Sergeant Legere to stand by while he got statement papers. He also said that he told Sergeant Legere that the accused had mentioned a pistol at the apartment. His notes do not say that he told Sergeant Legere about the handgun in the corridor conversation but Officer Roughley asserted that he would have done so. I accept his evidence that he left the room to get paper and that he would not have left the accused alone. Sergeant Legere testified that Officer Roughley did not advise him about the pistol at that time and that it is something that he would remember. I accept Sergeant Legere’s evidence and conclude that Officer Roughley’s evidence is mistaken.

[104] Officer Roughley returned to the report room with the paper and then the accused began to fill it out. Most of the document is in the accused’s own handwriting except for the insertions written by Officer Roughley. The time of the statement is set out as 21:25. Officer Roughley’s signature appears at the end of the document with the time entry of 21:42.

[105] The statement provides:

The night of Tuesday, October 4^th, I was driving my mom’s Chevy and happened to get pulled over by the Cobourg Police. At this time the officer had come to realize that I had a suspended licence, also as well noticed an old ammo box on floor of truck. He advised his fellow officers and conducted a search of the truck. Upon finding ammunition and firearms, the officer came and placed me under arrest. After reading me my rights, I was put in the back seat of cruiser and brought to the downtown station where I was kept to prepare this letter.

The accused’s initials and the initials of Officer Roughley are then placed on the document.

[106] The next paragraph states:

Upon being at the station, I had admitted to the officer that I had purchased the firearms knowing that I was prohibited. Also at the station I advised him of another firearm that I had stored at fiancé’s house (apt). I had told, admitted also that I had bought the weapons for protection, where the people had been out to get me.

The accused then signs with a time entry of 9:43 p.m. That entry is also initialled by the accused and Officer Roughley.

[107] There was another brief text on the statement:

All of the rifles were bought a week ago Saturday. But this was bought in the mid-July time frame, and they were bought by myself without the knowledge of Jessica. (fiancé).

Again Mr. Vader’s signature appears with the time entry of 9:50 as do the initials of Officer Roughley.

[108] Officer Roughley admitted that he could have had the interview with the accused videotaped. He is aware that there is a portable voice recorder at the station but he did not look for it. The accused told Officer Roughley that he was not comfortable in going on video but that he would be willing to write up his own statement.

Possible Charter breaches relating to the statements after the booking procedure

[109] The defence makes two arguments. First, she submits that the accused ought to have been given another opportunity to speak to counsel either before or immediately after disclosing the existence of the gun at the apartment because the accused’s jeopardy increased. Second, she argues that the written statement is inadmissible as an involuntary confession.

The Right to Counsel in Light of the Increased Jeopardy

[110] The conviction for the possession of a handgun, being a prohibited or restricted firearm, exposes the accused to a mandatory minimum sentence of three years’ punishment of imprisonment under s. 95(2) of the Criminal Code. This is an increase in jeopardy beyond the other charges faced by the accused, one of which involves the imposition of a one year minimum sentence on conviction.

[111] The defence argues that the clear waiver of counsel signed by the accused during the booking process does not absolve Officer Roughley from the obligation, in light of the increased jeopardy, of once again informing the accused of his right to counsel.

[112] Instead of cautioning the accused again and advising him of the right to counsel Officer Roughley set about obtaining a written statement. The defence invokes Sawatsky, per Doherty J.A. at paras. 30- 33:

The link between a detained person's need to understand the extent of her jeopardy; that is the nature and extent of her risk of self-incrimination, and the effective exercise of the right to counsel, provides the key to the determination of when the police will be required to reiterate the right to counsel in the course of an ongoing detention. If the risk of self-incrimination changes, the right to counsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk may change either because the reason for the detention changes or the focus of the police inquiry changes. Referring to the latter situation, McLachlin J. in R. v. Evans, supra, at pp. 306-307 wrote:

... I do, however, affirm that, in order to comply with the first of the three duties set out above [the police duty to inform the detainee of the right to counsel] the police must restate the accused's right to counsel where there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. [Emphasis added by Doherty J.A.]

I also reject the contention that the police are not under an obligation to re-advise a detainee of her s. 10(b) rights where it is the detainee, rather than the police, who initiates the shift in the focus of the investigation. Where, as here, the detainee brings up other offences during an interview, the police will not be required to immediately advise the detainee of her s. 10(b) rights in relation to the other offences. If, however, the police embark on an investigation of the offences brought up by the detainee, they must restate the detainee's s. 10(b) rights before questioning her concerning those offences: R. v. Whittle, supra, at p. 35.

[113] The defence submits that there were two different criminal investigations in this case. The first had to do with the rifles in the truck and the second was about the handgun in the apartment, which would not have been discovered but for the verbal statement to Officer Roughley, reflected incompletely later in the written statement as “another firearm that I had stored at fiancé’s house (apt).” She also cites R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, and submits that the waiver of counsel did not extend to the increase in jeopardy. At paras 33- 34, McLachlin J. stated:

This evidence, viewed as a whole, is capable of supporting the inference that Smith was aware that his situation was one of the most grave seriousness. In those circumstances, it cannot be said that the trial judge erred in holding that the accused possessed sufficient appreciation of the extent of his jeopardy to permit him to validly waive his right to counsel.

The fact that the accused knew that he was in jeopardy for a most serious offence distinguishes this case from one in which the description given minimizes the legal consequences of the acts committed by the person under detention. In such cases the description by the police may allay the concerns that the detainee might otherwise have. It would then be wrong for the court to conclude that the detainee ought to have inferred from the circumstances the extent of his or her jeopardy.

[114] In Smith, however, the Crown conceded that, as McLachlin J. explained in para. 18: “[a] breach of section 10(a) is established by the failure of the police to tell the accused Smith upon arresting him that he was being detained, not only in connection with a shooting incident, but in connection with a shooting incident that had caused a death.” Despite the concession, the Supreme Court did not exclude the evidence under s. 24(2) of the Charter.

[115] The Crown submits that, under the principle in Smith, the difference in jeopardy is not sufficient to conclude that the waiver of counsel was not effective in respect of the disclosure of the handgun. The “gist” of the charges is the same even though the jeopardy is increased.

[116] Analytically, it appears to me that there are three places where the obligation to once again inform the accused of his right to counsel could be placed. The first is when the accused said “I’ve got to tell you something, can we talk?” The second is immediately after the accused said: “There’s another gun in the apartment.” The third is when the accused told the Officer that the gun was a pistol.

[117] I find that the accused’s waiver of counsel during the booking process was clear and unequivocal. He was fully aware that he could request contact with counsel at any time. In my view there was nothing in the accused’s request to talk that should have alerted Officer Roughley to the need to repeat the offer of access to counsel. Nor was there anything in the disclosure that there was a gun at the apartment to increase his jeopardy.

[118] In my view, the increase in jeopardy occurred when the accused disclosed the existence of the handgun. That occurred before the prospect of any need to re-caution the accused could have come to Officer Roughley’s attention, since he had no idea what the accused was going to say. As a result, I find that the accused’s disclosure of the existence of the handgun at the apartment is an admissible statement.

[119] Any obligation on Officer Roughley to re-inform the accused of his right to counsel before proceeding to take his written statement arose after the accused verbally made the critical disclosure of the existence of the pistol at the apartment. As such, the defence submission that the written statement should be excluded must be separately assessed. The issue here comes down to whether Officer Roughley should then have re-informed the accused of his right to counsel before proceeding to take his written statement, as a result of the increase in jeopardy.

[120] I return to the decision of Doherty J.A. in Sawatsky, at paras. 28-29;

“Jeopardy” in this context includes the detained person's risk of self-incrimination. That risk cannot be measured without knowledge of the reason for the detention and the subject matter of the police inquiries.

Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed: R. v. Borden, supra, at p. 419. In most cases, disclosure of the reason for detention will also reveal the subject matter about which the police wish to question or otherwise investigate the detained person. Compliance with s. 10(a) of the Charter will, in those cases, provide the necessary information as to both the reason for the detention and the subject matter of the investigation. In other cases, however, the reason for the detention will be different than the subject matter which the police intend to address in their contact with the detainee: R. v. Young, supra; R. v. Chartrand (1992), 1992 CanLII 4020 (MB CA), 74 C.C.C. (3d) 409 (Man. C.A.). In those cases, the police must inform the detained person of both the reasons for detention and the proposed subject matter of the interview so that the detainee may make an informed decision whether to seek the assistance of counsel: R. v. Young, supra at p. 297.

[121] In the context I find that the difference in jeopardy to the accused is not sufficient to give rise to a new obligation on Officer Roughley to re-inform the accused of his right to counsel before proceeding to take his statement. To pick up the language of Doherty J.A, the accused was clearly aware “of the reason for the detention and the subject matter of the police inquiries.” This is not a case in which the new activity being investigated involves “different subject matter.”

[122] Nor is this a case in which the difference between the initial jeopardy and the final jeopardy is especially pronounced. The decision of the Supreme Court in Smith implies that the Crown’s concession in that case that the increase in jeopardy required re-cautioning should not have been made, because: “the accused knew that he was in jeopardy for a most serious offence” as McLachlin J. noted at para. 34. This is true for Mr. Vader as well.

[123] The accused faced a large multiplicity of weapons charges, one of which draws jeopardy of a minimum sentence of one year. The existence of the pistol exposed the accused to jeopardy of a minimum sentence of three years. The accused has criminal antecedents and well knew, in light of the weapons prohibitions he defied, that the charges were very serious, making the mandatory sentence prospect relatively less significant.

[124] Finally, the accused had waived counsel only minutes before so his right to request counsel was alive to him. It seems unlikely that he would have asked to speak to counsel if he had been re-cautioned just before sitting down to write the statement.

[125] I find that the circumstance did not give rise to an obligation on the police to re-caution the accused.

Applying the Grant Framework to the Written Statement

[126] I must apply the Grant framework on the assumption that I am mistaken in concluding that Officer Roughley was not obliged to re-caution the accused. The Grant framework applied to the written statement yields the same result as the analysis of the admissibility of the accused’s answers to Officer Roughley’s questions outside the truck, covered at paragraphs 53-61 above, and the analysis of the statement he made in the cruiser, covered at paragraphs 90-94, with necessary modifications. On the assumption that I am mistaken in concluding that Officer Roughley was not obliged to re-caution the accused, I would find the written statement to be inadmissible.

The Voluntariness of the Written Statement

[127] Defence counsel submits that the written statement should be excluded on the basis that it was not voluntary. She asks the court to draw that conclusion from the text of the statement itself and from the fact that it was not videotaped or audiotaped.

[128] I agree with Boswell J.’s statement in R. v. Miller, [2009] O.J. No. 1673, at para. 48:

The voluntariness rule, also known as the "confessions rule", has as its central purpose the assurance that statements given by detained persons are given voluntarily. The primary concern is reliability. Statements given involuntarily are less likely to be reliable.

[129] Iacobucci J. held in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 69- 71:

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[A] court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above.

[130] In cross-examination Officer Roughley denied “dictating” the written statement to the accused. He did, however, admit that a number of the phrases in the document were more in the nature of police lingo than ordinary speech, for example, using the word “firearm” instead of “gun”.

[131] Defence counsel fairly states that much of the information in the statement does not come from the accused, but appears to describe what Officer Roughley did and said. To explain the use of language, Officer Roughley theorized that the accused was picking up the language in some of the questions that he was asking the accused as they sat there. Officer Roughley also denied in cross-examination telling the accused that if he provided a statement, then Ms. Van Allen would not get in trouble.

[132] The language of the written statement certainly shows signs of collaboration between the accused and Officer Roughley, but that, in and of itself, does not show that the statement was not voluntary. Mr. Vader was very co-operative and biddable. This is evident on the video and comes through clearly in Officer Roughley’s evidence. While there is no doubt that it would have been better if the statement had been videotaped or audiotaped, the fact that it was not is not fatal and I decline to draw an adverse inference. There is, in my view, no evidence of threats, promises, oppression, or police trickery. There is no evidence that Mr. Vader was under the influence of a substance that would impair the operation of his mind. I find that the Crown has proven beyond a reasonable doubt that the statement given by Mr. Vader to Officer Roughley was voluntary and is therefore not to be excluded.

[133] Defence counsel also submitted that if the statement is excluded then the handgun should also be excluded, since the only evidence of the handgun comes from the statement as tainted evidence. Even if I had found that the written statement was inadmissible, I also found that the existence of the handgun was disclosed to Officer Roughley before his obligation to re-caution the accused arose. That evidence is therefore not tainted and is not subject to exclusion on that ground.

[134] I return again to the narrative.

The Police Visit to the Apartment

[135] After taking the written statement Officer Roughley put the accused in the cell and spoke to Sergeant Legere. He testified that he and Sergeant Legere discussed briefly whether they would get a warrant to search the apartment where the accused told Officer Roughley that he had left the handgun. Sergeant Legere denies discussing a warrant; I accept his evidence and find that the officers did not discuss getting a warrant to search the apartment.

[136] At 22:20 Officer Roughley and Sergeant Legere left the station and arrived at the apartment building at 22:23. A resident let them in and they were at the door to the apartment at 22:26.

[137] Ms. Van Allen answered the door and identified herself. Officer Roughley told her that the accused had been arrested on gun charges. Officer Roughley stated that “[s]he opened the door, stood back and invited us in”. The police officers stepped into the apartment. At that point Officer Roughley told Ms. Van Allen that the accused had told him that he had a pistol in a camouflage backpack at the apartment. From inside the doorway, since the apartment was open concept, Officer Roughley could see the backpack on the floor. Ms. Van Allen said that he could take it. His evidence on what he said at the door and inside the apartment to Ms. Van Allen was corroborated by Sergeant Legere.

[138] Officer Roughley testified that he went into the living room and picked up the bag. He opened it and found a .22 calibre pistol revolver in a black canvass holster with ammunition, knives, bandana, binoculars, gloves, a head band with a light on it, and a flashlight, in short, what the Crown described as a “robbery kit”.

[139] The gun was a seven-shot revolver with rounds in the chambers. It was not locked. Officer Roughley put the gun back into the holster. A second black backpack was close by and appeared to be empty. He explained that he wanted to isolate the pistol and keep it in its original container, so he put the other material into the other backpack to take back to the station. In addition, he seized 10 boxes of ammunition in plain view sitting on top of a Rubbermaid storage container because it because it was not secured and was in open, unsafe storage. The ammunition was consistent with the calibre of the long guns that had been seized.

[140] Officer Roughley said that he did not search the rest of the apartment because he had no warrant. He was just there to pick up the handgun on the ground of public safety and he picked up the rest of the material because it was in plain view. Officer Roughley testified that he read back to Ms. Van Allen the content of their conversation as recorded in his notebook and she initialled the pages. She signed the notebook in which he listed what he was taking. He also got two Methadone carries with the accused’s name on them. They left at 22:36. Ms. Van Allen did not complain about the police conduct.

[141] In cross-examination Officer Roughley testified that he told Ms. Van Allen at the door that he wanted to speak to her about the accused. He advised her that the accused had been arrested for guns, and that the accused had told him about a handgun at the apartment to be found in a camouflage backpack. This was the first time he had gone to a private residence in at least a decade, so he had no “usual practice.” He testified that he did not tell Ms. Van Allen that the purpose of the visit was to retrieve the gun until after they were inside the apartment. At no point did he advise Ms. Van Allen that she could refuse entry or that she could wait for a warrant or speak to a lawyer.

Possible Charter breaches relating to the Police Visit to the Apartment

[142] The defence submits that the police entered and searched the apartment without a warrant, consent, or exigent circumstances; the accused had a reasonable expectation of privacy in the apartment that was violated and seeks the exclusion of the handgun and the ammunition that were seized at the apartment under s. 24(2) of the Charter. Any claim to police good faith should be rejected, says the defence, because the police officer was ignorant of Charter standards, negligent, and wilfully blind or ignorant as to the scope of his authority: R. v. Mann, at para. 55.

Standing

[143] The Crown submitted that the accused has no standing to bring the section 8 application since he was living in another county with his mother. While he might have been is a regular guest at his girlfriend’s apartment, he did not live there and had no reasonable expectation of privacy there. Although the Crown did not advance this argument in final submissions, I find that the evidence does not support the Crown.

[144] The Show Cause Hearing Report cover sheet marked as Exhibit 22 records the accused’s address as 330 King Street East, apartment 230 and also notes that the accused “resides with Jessica Van Allen”. In the course of the discussion during the booking process, the accused identified her as his fiancé living at 330 King Street East, and says that: “I do stay there quite often, yes.” The accused identified Ms. Van Allen as the person to whom the police should report if something happened to him. In addition, the accused notes that his Methadone carries are at Ms. Van Allen’s apartment. Ms. Van Allen testified in the voir dire that she and the accused lived in the apartment although her name was on the lease, that the accused was residing there, that the accused’s clothing was in his dresser and in the closet, and that he had personal items in the nightstand in the bedroom.

[145] The factors to assess in considering whether a person has a reasonable expectation of privacy are set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] S.C.J. No. 11 at para. 45. I have no hesitation in concluding that the accused had a reasonable expectation of privacy in the apartment because, on the evidence, it was often his home.

Was the Search of the Apartment Unreasonable?

[146] As noted earlier, a warrantless search is presumptively unreasonable and the onus is on the Crown to establish reasonableness. I assume for the purpose of the analysis that the police visit amounted to a search of the apartment.

[147] In my view the Crown has met the onus of establishing that the search of the apartment was reasonable. The principal occupant of the residence, Jessica Van Allen, invited the police into the apartment. After hearing their explanation of why they were there, she consented to their retrieval of the camouflage backpack in which the pistol was found. The ammunition they retrieved was in plain view. The issue of whether a person in Ms. Van Allen’s position can give access to the police over the presumed objection of the other occupant was discussed in two cases with contrary results. In R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.), affirmed [2002] O.J. No. 3144 (C.A.), Hill J. held:

40 On the second point, the lawfulness of the entry to the house, as a matter of fact, the Van Wyks were joint owners of the home and property and Mr. Van Wyk conceded that his spouse could grant entry to persons of her choosing.

41 Ms. Van Wyk enjoyed ostensible and actual authority to permit entry to the residence. The Van Wyks had joint or co-equal access and control of the property, and accordingly, Ms. Van Wyk, as a co-inhabitant, could lawfully admit the police at least into the front hall of the residence. This case is quite dissimilar to the facts in Regina v. Blinch (1993), 1993 CanLII 1433 (BC CA), 83 C.C.C. (3d) 158 (B.C.C.A.), referred to by counsel for Mr. Van Wyk, where a neighbour with a key, who was in effect "house-sitting" only, exceeded her authority in providing police investigators access to the suspect's residence.

42 The police knocked and identified themselves as police officers and, in an objective sense, exhibited no coercive conduct capable of exercising compulsion upon Ms. Van Wyk. Indeed, the police, on all of the evidence, made no request to enter the residence. Ms. Van Wyk, in her own testimony, invited the police into the home. Her motivation in doing so, respect for the police, and an upbringing favouring cooperation with the authorities, does not undermine the lawfulness of the entry. Nor, in my view, does the act of the investigators, prior to entering the home, of failing to disclose fully to Ms. Van Wyk the nature of the proposed communication with her husband, vitiate the consent to enter or cause her invitation to be uninformed.

43 In the end result, the police attendance at the door, and in the hallway, of the Van Wyk residence did not violate the accused's s. 8 Charter right.

[148] By contrast, in R.v Brilhante, [2001] O.J. No. 1987 (S.C.J.), Hambly J. held that the accused's common law wife had no authority to consent to a police search of his home and noted:

27 The accused was in custody when the police asked Tina Crane for her consent to enter the matrimonial home to search for weapons and explosives. Because it was late in the day a justice of the peace was not available. The bail hearing, which was set for the following day, could have been held down until later in the day or adjourned to the following day to give the police time to obtain a search warrant and to conduct a search. There were no exigent circumstances.

28 The accused's common-law wife had no authority to waive his right to privacy in his own house. By sharing the home with her, the accused did not assume the risk that she would consent to the police searching the home for evidence that he had committed a criminal offence.

29 The search by the police of the accused's dwelling house without prior judicial authority was a violation of his right to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter.

[149] In the unique circumstances in this case I adopt the approach in Van Wyk. I find that Ms. Van Allen was in control of the premises and as such had authority to permit the police to enter regardless of the accused’s desires. The accused’s own actions favour this approach. Although he did not explicitly consent to the visit by the police to the apartment, it is reasonable to infer from his eagerness to disclose the existence and the location of the handgun at the apartment, and his clear description of its receptacle, that he wanted and expected the police to retrieve the weapon and was implicitly consenting to their actions. He was not under any compulsion to disclose existence of the handgun or where it could be found but did so voluntarily.

Were the Circumstances Exigent?

[150] In the event that I am mistaken in finding that the search of the apartment was reasonable, I consider whether the circumstances were exigent.

[151] In cross examination Officer Roughley stated that he spoke to Sergeant Legere about getting a warrant. He admitted, however, that he was not interested in getting a warrant because he had serious concerns about waiting. Those concerns are not set out in his notes.

[152] Officer Roughley testified that he did not give much thought to getting a search warrant in view of the delay that doing so would cause in a situation that he identified as having exigent elements. He cited the elements as follows: He was aware that the accused was not careful about securing firearms since there were seven unsecured long guns along with ammunition in his truck. The accused had told him he had the guns because he felt threatened and wanted protection. Officer Roughley believed that the handgun would be found there together with live ammunition and that both the gun and the ammunition would be unsecured. The accused was also on Methadone, as was Ms. Van Allen. Officer Roughley testified that he did not know who frequented the apartment and was concerned that they might not be savoury characters. He expressed his belief that public safety was an issue and that every effort should be made to go and retrieve the gun as soon as possible without waiting for a warrant.

[153] There is a certain degree of plausibility to the reasoning that Officer Roughley laid out for the court. I am not sure how much of it came to his mind at the time that he went off to the apartment to retrieve the weapon. The timing tells against the urgency that Officer Roughley now claims he was under.

[154] The timing may be best taken from the video of the booking in conjunction with Officer Roughley’s notes. The video shows that Officer Roughley and the accused left the booking room at about 21:05 p.m. By 21:15 Officer Roughley knew that there was a loaded handgun at the apartment. He did not, however, take steps to secure the gun until after he got the statement signed which appears to be at about 21:50. His notes indicate that the accused was put back into the cell at 21:57. His notes go on to say that he and Sergeant Legere left the station at about 22:20, got to the apartment building at 22:23 and were at the apartment by 22:26.

[155] Looking at these times, it strikes me that an emergent situation would have required a much quicker response by someone. There were five officers on duty at the time according to Officer Roughley. Delaying the departure until after the accused signed the statement suggests to me that Officer Roughley did not really believe the situation was as exigent as he testified. The search could not be justified on the basic of exigent circumstances. I surmise that Officer Roughley thought that he could talk himself into the apartment as he did and did not want to bother with a search warrant. The better practice would have been to get a search warrant.

Applying the Grant Framework to the Search in the Apartment

[156] This analysis assumes that I am mistaken in holding that the search of the apartment did not involve a Charter breach. In the first line of inquiry in Grant the focus is on the nature and degree of police misconduct. The defence asserts that this was a warrantless search, which is prima facie contrary to the accused’s s. 8 Charter right. There is no good reason for the failure to get a warrant, and I have found that the circumstances were not exigent.

[157] At the same time, Officer Roughley was not engaged in a random search. He had been directed to the apartment by the accused who was evidently himself concerned about the presence of the handgun there. The police did not break into the apartment but were let in by Ms. Van Allen. There was no trickery involved; the police were honest about their purpose. The search was limited to the handgun and the loose ammunition that was found in plain view, and did not extend to the rest of the apartment. I find the nature and degree of police misconduct, if any, to be on the less serious end of the spectrum.

[158] The second line of inquiry in Grant requires an assessment of the right in issue. With respect to a person’s home, “the highest degree of privacy is expected”: R. v. Sutherland (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.) at para. 15; R. v. Jones, 2001 CanLII 28336 (Ont. S.C.) at para. 31.

[159] The third Grant line of inquiry takes cognizance of the prospect that the exclusion of the evidence might well prevent the prosecution of the offence. To repeat for convenience the words of the Court in Grant at paragraph 83, the Court noted that “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.” In this case I have found that the accused’s statement that there is a handgun at the apartment is admissible. The handgun was found, corroborating his statement. That evidence is highly reliable. How could one explain that the statement is admissible but the handgun itself is not admissible without drawing public disdain about an excessive degree of judicial logic-chopping?

[160] I found the nature and degree of police misconduct to be on the less serious end of the spectrum. I found the expectation of privacy in the apartment to be at the high end of the spectrum. Given the accused’s admission, the exclusion of the physical evidence would not gut the prosecution’s case. But excluding the evidence would in my view bring the administration of justice into disrepute. The possession of a handgun is a serious offence. Given the modesty of any breaches involved, the exclusion of the evidence would be more disreputable than its reception. Taking the three Grant lines of inquiry together, I conclude that it would not be appropriate to exclude the handgun from the evidence in this prosecution, and I decline to do so.

[161] Next in the narrative are the interactions between Officer Roughley and the accused from 1:39 a.m. and through the booking process with Officer James Egas, which I do not recite since the accused raises no issues about them.

Taking the breaches cumulatively

[162] Looking at the series of events in this case in overview and cumulatively, there was a single Charter breach on which I excluded the evidence, being the answers to the questions posed by Officer Roughley to the accused as he stood by the truck. The particular rights breached were the right to silence and the right to counsel.

[163] On the assumption that I was mistaken about the admissibility of the accused’s comments to Officer Roughley in the cruiser, discussed at paragraphs 83-94, and in relation to the written statement, discussed at paragraphs 110-126, I would have excluded the evidence. In relation to the alleged warrantless search of the truck, for the reasons set out at paragraph 78, and the search of the apartment, for the reasons set out at paragraph 160, I would have admitted the evidence.

[164] Considering the first line of inquiry in Grant, the issue is whether, in the overall, the pattern of police misconduct was significant. I find no real pattern and no significant misconduct.

[165] The discussion comes down to the third Grant line of inquiry. If the evidence taken in the warrantless searches were to be excluded the prosecution would be gutted. Given the minor nature of any police misconduct, in my view excluding the evidence, being a veritable arsenal of illegal weapons and ammunition, would be a disproportionate judicial response; the exclusion of the evidence would be more publicly disreputable than its reception. Taking the three Grant lines of inquiry together, I conclude that it would not be appropriate to exclude the physical evidence from this prosecution, and I decline to do so.

[166] As noted, all but one of the Charter applications have been dismissed. I have excluded from the evidence the answers to the questions that the accused gave outside the truck door when he was asked about the ammunition box and its contents. The exclusion of that evidence had no effect on the reception of the physical evidence, and I find that the Crown has proven the guilt of the accused beyond a reasonable doubt on all the counts in the indictment. I therefore convict the accused on all the counts in the indictment.

Justice P.D. Lauwers

Released: November 1, 2012