COURT FILE NO.: CR-12-0124
DATE: 2013-10-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Gordon Fillmore, for the Respondent
Respondent
- and -
Glenn Pelto,
S. George Joseph, for the Applicant
Applicant
HEARD: July 2 and August 14, 2013,
at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Decision On Application
[1] Glenn Pelto is charged with two counts of making and possessing child pornography contrary to s. 163.1(2) and 163.1(4) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The police located the pornography during a search of Mr. Pelto’s home on the evening of June 17, 2011. Mr. Pelto brings a Charter of Rights and Freedoms application seeking exclusion of this evidence as he alleges it was obtained in breach of his rights under s. 8 of the Charter. The Charter application was heard by way of a blended voir dire in the trial.
[2] The police did not obtain a warrant to search Mr. Pelto’s home. Upon being detained by the police, Mr. Pelto specifically told them not to enter his home. They did so anyway relying on their statutory powers under s. 529.3 of the Criminal Code and their common law duties and powers of search and seizure in exigent circumstances.
[3] In this matter, there are two issues to be resolved. I prefer the manner in which the Crown has articulated the issues in its factum as follows:
Does the manner in which the police discovered the child pornography in Mr. Pelto’s residence constitute an unreasonable search and seizure in contravention of s. 8 of the Charter? and
If the answer to the first question is yes, should the evidence be excluded pursuant to s. 24(2) of the Charter?
[4] The parties agree the legal burden of proof with regard to issue 1 falls to the Crown as the search was done without a warrant. The parties also agree the defence bears the burden of persuading the court the evidence should be excluded if I determine the evidence was obtained in contravention of Mr. Pelto’s s. 8 rights. The defence also conceded the materials seized by the police are child pornography within the meaning of s. 163.1(2) and 163.1(4) of the Criminal Code.
The actions of the police during the evening in question regarding Mr. Pelto are not in dispute. The legal conclusion to be drawn as a result of their actions remains to be determined.
The Facts
[5] After hearing the evidence on the voir dire, I make the following findings of fact concerning the actions of the police regarding the search of Mr. Pelto’s home.
[6] At 18:20 on June 17, 2011, Thunder Bay Police Service Constables Prince and Racco were dispatched to a school yard at 1130 Georgina Avenue in regards to a suspicious male. School was out at that time but a citizen had called 911 to complain that a man was walking around the playground with his zipper down.
[7] Upon attending the school yard, the constables found several adults and young children playing in the area. They also found Mr. Pelto, face down on the ground, with his hands behind his back. After speaking to several witnesses, Constable Prince admitted that there was no basis for laying any criminal charges against Mr. Pelto for any of his actions to that point. There were no issues for the investigating officers of weapons, or drugs, or indecent exposure or causing a disturbance. Nevertheless the constables handcuffed Mr. Pelto and placed him in the back of their cruiser for “investigative detention”.
[8] The police then drove Mr. Pelto around the block to his home at 1304 West Mary Street. During this time in the cruiser, Mr. Pelto was speaking in an incoherent manner. He mentioned a number of things that did not make sense to the officers. He said things like, “he sold a gun to an Indian guy”, and talked about alien spacecraft and “chem trails”. He also mentioned a woman’s name, “Loraine Meyer”. It was not clear from the evidence if Mr. Pelto said her name more than once. However, with regard to this name, “Loraine Meyer”, Mr. Pelto did not say anything else, other than her name, that would give the officers any context about any relationship between Mr. Pelto and Ms. Meyer. This name was not known to the officers. They did not make any other inquiries about who Loraine Meyer was and whether she had any connection to the address Mr. Pelto had given them as his home address, 1304 West Mary Street.
[9] Mr. Pelto was also very adamant that the police were not to enter his home. Mr. Pelto said this without being prompted or advised by the officers that they intended to enter his home.
[10] Upon arriving at 1304 West Mary Street at 18:24, the police parked the cruiser, left Mr. Pelto handcuffed in the back of the car and went to the door of the house. The constables did not first do a perimeter search. They did not ask Mr. Pelto if he had a landline phone in the house so they could first call and see if anyone answered. The officers did not know if Mr. Pelto lived alone.
[11] Constable Prince entered the home first upon announcing in a loud voice that he was a Thunder Bay police officer. Constable Racco was junior to Constable Prince and, following his instructions, accompanied him into Mr. Pelto’s house.
[12] According to Constable Prince, he entered the residence to search for, and check on the welfare of a female, Loraine Meyer, whose safety and welfare he was concerned about. The officers claim these exigent circumstances justified their entry of Mr. Pelto’s home without warrant. The officers also had a secondary reason to search the home. They had formed the intention to take Mr. Pelto to the hospital at the Thunder Bay Regional Health Sciences Centre for observation, and were looking for any medications he had. The officers had not asked Mr. Pelto if he was on any medications prior to their entering his home. Mr. Pelto had not mentioned any medications and had not asked the officers to retrieve these from the home.
[13] Mr. Pelto’s home is a small 1200-square-foot bungalow. It has a ground floor and a basement. The officers found the home to be unkempt. They searched the basement. The light was poor. The last room the officers searched was in the basement in the northeast corner of the home. It was Mr. Pelto’s bedroom. The room was dark and the officers were using their flashlights to search. They could not locate the light switch in the room and there was not any natural light directly in the room, only that coming from the stairwell to the first floor. Other officers who searched the room later located a table lamp. Constables Prince and Racco did not switch on the table lamp. They did not search the closets or under Mr. Pelto’s bed.
[14] In plain view, in Mr. Pelto’s bedroom, the officers saw objects, which to them, appeared to be pipe bombs. They observed copper coloured tubes, closed at one end, wrapped with red wire. The officers believed they had discovered items which were a danger to public safety. They did not testify about locating the items of child pornography during that first search.
[15] Neither officer had any special training in dismantling explosive devices so they decided to exit the house and call for a supervisor to attend. While waiting for a supervisor to attend, the officers did not make any further inquiries of Mr. Pelto as to what they had found.
[16] Sergeant Tinnes arrived at 1304 West Mary Street at approximately 19:10. Sergeant Tinnes first spoke to Mr. Pelto. What Mr. Pelto was saying did not make any sense to Sergeant Tinnes. Sergeant Tinnes was told by Constables Prince and Racco about the alleged pipe bombs. Relying on this information, at 19:10, Sergeant Tinnes entered Mr. Pelto’s residence without prior judicial authorization. Sergeant Tinnes testified there were exigent circumstances that permitted him to search Mr. Pelto’s home.
[17] Upon entering the house, Sergeant Tinnes observed a kitchen area in the basement where there was paraphernalia which he described looked like a “science experiment”. The “science experiment” did not particularly look dangerous, but Sergeant Tinnes agreed that the long copper pipe objects he observed in Mr. Pelto’s bedroom were cause for concern. Sergeant Tinnes did not testify as to any observations he made of child pornography being present in the home when he did his search.
[18] Sergeant Tinnes made the decision to call the Ontario Provincial Police Explosive Disposal Unit (“bomb squad”). Three members of that unit, fully kitted up to deal with explosives attended at Mr. Pelto’s home at about 21:00. No members of that unit were called to testify at the voir dire about their work.
[19] Sergeant Tinnes and Constables Prince and Racco briefed the OPP bomb squad members about what they had observed prior to the bomb squad officers going into Mr. Pelto’s home. Sergeant Tinnes and Constables Prince and Racco did not attend inside Mr. Pelto’s home again once the OPP bomb squad commenced their work. No other member of the Thunder Bay Police Service attended inside Mr. Pelto’s home while the OPP bomb squad was inside.
[20] During the search of the home by the OPP bomb squad, other devices were located in the upstairs of Mr. Pelto’s home. It was determined that all the copper tube devices found in Mr. Pelto’s home were not in fact pipe bombs, and did not pose any threat to public security. The devices were taken to a secure location and destroyed by the OPP bomb squad.
[21] During the time the OPP bomb squad was working inside Mr. Pelto’s home, no member of the Thunder Bay Police Service was inside the home. However, once the OPP were finished, three new Thunder Bay police officers conducted a search of Mr. Pelto’s home.
[22] Detective Constables Rybak and Laamanen and Sergeant John Reed entered Mr. Pelto’s residence without Mr. Pelto’s consent and without a warrant. This search was done at approximately 23:40. The officers were advised by members of the OPP bomb squad that certain items which they characterized as “precursors” remained in Mr. Pelto’s home and needed to be removed for public safety purposes. These “precursors” were solvents and other chemicals, which are commercially available to the general public but could be used to make explosive devices according to the members of the OPP bomb squad. An environmental clean-up company had been contacted by the OPP to do the actual removal, but Detective Constables Rybak and Laamanen and Sergeant Reed entered Mr. Pelto’s home to assist with this process. Sergeant Reed was not available to testify at this trial as he was on a deployment in Afghanistan.
[23] The officers were also going in to search for a large quantity of cash that had been observed by the OPP bomb squad.
[24] In the course of his search, Detective Constable Rybak observed numerous sheets of obvious child pornography in Mr. Pelto’s bedroom in the basement. He testified this material was in plain view. He also saw magazines and printed images on Mr. Pelto’s bed. Because there was a computer in the room, Constable Rybak determined there were reasonable and probable grounds to believe that there would also be child pornography on the computer. A warrant was obtained to search the computer.
[25] On cross-examination, Detective Constable Rybak admitted nothing prevented him, Detective Constable Laamanen or Sergeant Reed from obtaining a warrant for their search of Mr. Pelto’s home while they were waiting for the OPP bomb squad to finish their work.
[26] Detective Constable Laamanen also observed the items of child pornography in plain view on Mr. Pelto’s bed. The items were collected by Sergeant Reed. This was the only Crown evidence about the child pornography as there was no evidence from Constables Prince or Racco or from Sergeant Tinnes about child pornography in Mr. Pelto’s home.
[27] Mr. Pelto was transported to the hospital at the Thunder Bay Regional Health Sciences Centre at 21:08. There was no specific medical evidence led on the voir dire in regard to Mr. Pelto’s medical or mental health condition other than the direct observations of the officers who testified. There was evidence that Mr. Pelto was subjected to a Form 1 Assessment under the Mental Health Act, R.S.O. 1990, c. M.7, once he was taken to the hospital by Constables Prince and Racco. From the observation evidence of Constables Prince and Racco and Sergeant Tinnes, I am prepared to find that Mr. Pelto was suffering from some mental health issues on the night in question. The mental health issues caused him not to speak coherently at least so far as being able to give the officers any context or basis to understand him.
The Law
Issue #1: Does the manner in which the police discovered the child pornography in Mr. Pelto’s residence constitute an unreasonable search and seizure in contravention of s. 8 of the Charter?
[28] Section 8 of the Charter:
(a) offers a broad protection against unreasonable search and seizures;
(b) is engaged where there is a reasonable expectation of privacy; and
(c) makes a warrantless search presumptively unreasonable.
[29] To avoid infringing s.8, any interference with a reasonable expectation of privacy either must be pursuant to a warrant, statute, or the common law (Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] S.C.R. 145, referred to as Hunter v. Southam [Hunter]).
[30] Generally, a warrantless search of a dwelling is presumptively a violation of s. 8 of the Charter, and the onus is on the party who performed the search to prove its reasonableness (R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13).
[31] There is an extremely high expectation of privacy in a home (Feeney, supra para. 30 at para. 43, R. v. Tessling, 2004 SCC 67 at para. 22).
[32] Sections 529.3 and 487.11 of the Criminal Code provide for warrantless searches in the case of exigent circumstances.
[33] The Criminal Code provisions noted above are not exhaustive of all circumstances in which warrantless entry of a residence may be justified. The police are under a common law duty to act to protect life and safety, and entry into a dwelling house may be justified when the totality of the circumstances is considered (R. v. Godoy [1991] 1 S.C.R. 311 [Godoy]).
[34] Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. The jurisprudence that addresses this issue appears to rest on two bases. The first relates to the risk of imminent loss or destruction of evidence or contraband before judicial authorization can be obtained. The second basis emerges where there is a concern for the public or police safety.
[35] In Canada, a test set out by an English court in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) has been adopted by the Supreme Court of Canada in Godoy as the standard for determining the common law powers of police with respect to the interference of an individual’s liberty or freedom. The Waterfield test informs the court on how to evaluate the common law powers and duties of the police where there is a prima facie interference with a person’s liberty or property. The courts must conduct the following two part analysis:
a) does the conduct fall within the general scope of any duty imposed by statute or recognized at common law? and
b) does the conduct, albeit within the general scope of such a duty, involve an unjustified use of power associated with the duty?
(Godoy, supra para. 33 at paras. 14-16, 18).
Discussion
[36] Counsel for Mr. Pelto argued that there were four distinct and separate searches conducted by police of Mr. Pelto’s home during the evening of June 17, 2011. The first by Constables Prince and Racco. The second by Sergeant Tinnes. The third by the OPP bomb squad. The fourth by Detective Constables Rybak, Laamanen and Sergeant Reed. The defence argues that only the third search by the OPP bomb squad could remotely be considered lawful as occurring under exigent circumstances.
[37] The Crown did not concede that four searches were conducted but agreed that if the first search by Constables Prince and Racco was found to be in violation of Mr. Pelto’s s. 8 Charter rights, then the other searches could not be independently considered, and the analysis would then move to a consideration of the application of s. 24(2) of the Charter.
[38] In my view, the only search which is relevant to determine whether Mr. Pelto’s s. 8 rights were violated involved the first search by Constables Prince and Racco.
[39] Both counsel agree that the leading case on the law in this matter is Godoy. Counsel for the Crown argues that the facts in Godoy are analogous to the present case.
[40] Godoy involved police forcibly entering a dwelling after receiving a 911 call from inside that dwelling where the person making the call hung up before the operator could obtain any facts about why the call was made. When police attended the dwelling, the accused met them at the door and told them there was no problem and attempted to prevent the police from entering. The police forcibly entered and found a woman who had been assaulted by the accused. The forced entry was found not to be a violation of the accused’s s. 8 rights based on the common law duties of the police to ascertain the reason for the 911 call and to verify no emergency had occurred. The Crown argues that Mr. Pelto mentioning a woman’s name and then asking the police not to enter his home is analogous to the actions of the accused in Godoy. I disagree.
[41] In this matter, the initial 911 call directed the police to attend at a school playground, not Mr. Pelto’s home. At the playground, the police found Mr. Pelto face down, with his hands behind his back. His actions were certainly unusual, but were not criminal. In fact, Constable Prince acknowledged that apparently Mr. Pelto had not committed any criminal acts on the playground before they arrived. What he was doing was saying words that did not make sense to the officers.
[42] However, I do not find that this lack of coherence on Mr. Pelto’s behalf justified the actions taken by Constables Prince and Racco. In my view, just because Mr. Pelto stated a female name, while in police investigative detention, and told the police not to go into his house, that would not lead any reasonable person to conclude, without any other context or evidence, that a female was in danger inside Mr. Pelto’s home.
[43] Mr. Pelto was not acting in a violent way. He was submissive when first approached by police. He did not say anything about Loraine Meyer other than her name. He didn’t say anything that would indicate his relationship to this person, or why he was saying her name. I do not accept this as analogous to a 911 call for help from inside a residence. From the evidence, I cannot accept it as reasonable for Constable Prince to have made the logical leap to determine that a woman was in danger in Mr. Pelto’s home.
[44] In my view, there was no urgency in the circumstances as they presented to Constables Prince and Racco. Even if the officers had these suspicions, they had other means, other than a warrantless search of Mr. Pelto’s home to investigate this hunch. These other means were put to the officers in cross examination. They could have done a search of phone records to see if Mr. Pelto had a land line, and then called the house. There was no evidence placed before me one way or the other if such a land line existed. They could have done a perimeter search or looked in the windows of the home to see if anyone was there. They could have sought the assistance of police headquarters to do a police database search to see if the name Loraine Meyers was associated to Mr. Pelto or his address.
[45] I appreciate the argument of the Crown that police must often make split second decisions which are easy to criticize well after the fact. However, I do not accept that this decision was made in this kind of situation of urgency that might otherwise excuse a prima facie violation of Mr. Pelto’s right to be protected from unreasonable search. I agree with the argument of the defence that the right to privacy in one’s home is a very significant right and one that should give police pause to consider in the carrying out of their duties. I agree with the argument of defence counsel that the vigour with which property crimes such as house invasions are pursued by the Crown is good and proper confirmation of the value to which our society places on the sanctity of one’s home. The police should be respectful of these rights.
[46] There was no evidence given on this voir dire about any police directives or policies or any specific training the police officers had in this case in dealing with persons who presented with symptoms that would lead an officer to conclude the person had a mental illness.
[47] Mr. Pelto clearly told the police not to enter his home. This is an important fact. Unlike the facts in Godoy, the police did not have the precedent fact of a 911 call emanating from Mr. Pelto’s home to give them cause to investigate pursuant to their common law duty as articulated in Waterfield. The parties agreed that the police have a common law duty to protect life and maintain public safety. The issue in this case is whether in light of all the circumstances, it was reasonable for Constables Prince and Racco to enter Mr. Pelto’s house without warrant.
[48] I do not accept the Crown’s argument that the mere fact that a person with mental health issues telling the police not to do something, justifies their suspicion and makes it reasonable for them, without anything else, to do that very thing. Crown counsel in argument made the analogy that Mr. Pelto telling the police to stay out of his house was like a “tell” in a poker players face. I think the metaphor is apt. Continuing the poker metaphor, when someone “tells” the police to stay out of their house, the police had better have a winning hand before they call the bluff and go “all in”.
[49] Therefore, in this case, and this case alone, it is difficult for me to make any determinations as to why Mr. Pelto, even acting the way he was, should have been treated with any less deference regarding the sanctity of his home than a person who presents as not experiencing the same issues. Particularly because Mr. Pelto was being adamant about the police not going into his home, in my mind, this raises (switching to a car racing metaphor), a cautionary yellow flag, rather than a green “go search the house” flag. Apparently Constable Prince did not read these signals in the same way.
[50] Also, I do not accept as genuine, the explanation that the police were looking for Mr. Pelto’s medications before they took him to the hospital. There was no evidence that Mr. Pelto had any objective items on his person like a medic alert bracelet that would give first responders cause to be concerned that he needed medication. Also, since Mr. Pelto had not told the police anything about being on medication and had not asked them to get his medications, it did not seem to me a reasonable justification for the police to enter his home without a warrant and in the face of his express request that they do not do so.
[51] I therefore find that the search of Mr. Pelto’s home by Constables Prince and Racco was in violation of his s. 8 Charter rights. While a house search is within the scope of the police’s common law duties, in this case, I find it involved an unjustifiable use of police powers in the circumstances.
[52] As noted above, the Crown conceded that if I made such a ruling regarding what the defence characterized as the “first search”, that the matter would then proceed to an analysis of the application of s. 24(2) of the Charter. I therefore do not find it necessary to address the argument made by the defence that there were four distinct searches. Also, I do not find it necessary to make findings with respect to what the defence characterized as searches 2 and 4 at least so far as the determination of the breach of Mr. Pelto’s s. 8 Charter rights are concerned. I do note however that in my view, none of the evidence presented would confirm for me a situation of urgency for a warrantless police search of Mr. Pelto’s house once the OPP bomb squad had been called upon and had completed their duties.
Issue #2: Should the child pornography evidence be excluded pursuant to s. 24(2)?
[53] Subsection 24(2) of the Charter provides where evidence is obtained in violation of a right protected by the Charter it shall be excluded if its admission, having regard to all of the circumstances, would tend to bring the administration of justice into disrepute.
[54] In determining an application for exclusion of evidence, the court must balance the effect of admitting the evidence on the repute of the administration of justice with regard to:
(1) the seriousness of the state Charter-infringing conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits (R. v. Grant, 2009 SCC 32 at para. 71 [Grant]).
[55] In assessing the seriousness of the conduct, extenuating circumstances such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. The degree to which this inquiry militates in favour of excluding the evidence will depend on the extent to which the conduct can be characterized as deliberate or egregious.
[56] Good faith on the part of the police will also operate to reduce the need for the court to disassociate itself from the police conduct (Grant, supra para. 54 at para. 75).
[57] In determining the impact of the breach on the Charter-protected interest of the accused, the court looks to the interest engaged. An unreasonable search by intruding on an area where the individual enjoys a high expectation of privacy, such as his residence, is a serious breach (Grant, supra para. 54 at paras. 77, 78, 113).
[58] Public interest in truth finding is a relevant consideration under s. 24(2) and the reliability of the evidence is an important factor in respect of that line of inquiry. “Real evidence” such as drugs, weapons or in the case at bar, child pornography, is highly reliable which generally tends towards admission (Grant, supra para. 54 at para. 81).
[59] The importance of the evidence to the prosecution’s case is another important factor. Exclusion of highly reliable evidence may impact negatively on the repute of the administration of justice where the remedy effectively “guts” the prosecution’s case. Where the evidence is “real evidence” and forms the basis of the offence, as in this case, its admission is crucial to the Crown’s case and, as in the matter at bar, is a significant factor favouring its admission (Grant, supra para. 54 at para. 83).
[60] The seriousness of the offence is a factor which cuts both ways in respect of society’s interest in adjudicating the matter on its merits. While the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system beyond reproach, particularly where penal stakes for the accused are high (Grant, supra para. 54 at para. 84).
Discussion
[61] In considering the application of s. 24(2) of the Charter to this matter, I begin with the first branch, the “seriousness of the state Charter-infringing conduct”. The Crown argues that, in this matter, even if I find, as I did, that the first search was done in violation of Mr. Pelto’s s. 8 rights, the officers were acting in good faith. Grant stands for the proposition that a finding of good faith on the part of the police is sufficient reason for the Court not to have to disassociate itself from Charter-breaching conduct.
[62] In this matter, in my view, it is the actions of Constables Rybak and Laamanen and Sergeant Reed that must be examined in particular with regard to the seriousness of the Charter-infringing conduct. It was these three officers who located the evidence which forms the basis of the charge at issue.
[63] In my view, the warrantless search of Mr. Pelto’s residence by all members of the Thunder Bay Police Service, and in particular, the search by Constables Rybak and Laamanen and Sergeant Reed represented a serious Charter violation. The issue becomes whether or not it can be said the officers acted in good faith in a manner that would permit the court not to have to distance itself from this serious breach (Grant, supra para. 54).
[64] Constables Rybak and Laamanen testified they believed they had exigent circumstances to search Mr. Pelto’s house without a warrant. They testified their motive to search without warrant was based on their desire to secure the house, seize a sum of cash that the OPP bomb unit had detected and to remove certain commercially available items which may have been used to make other explosives. They clearly had a subjective belief they needed to search the home and didn’t need a warrant to do so.
[65] In assessing whether or not it can be said that Constables Rybak and Laamanen and Sergeant Reed were acting in good faith, the specific time at which they entered Mr. Pelto’s property and the reasons they gave in evidence for not obtaining a warrant for their activities must be examined.
[66] I find it was significant that the officers were entering a home after the specific tactical unit charged with dealing with explosives had verified that the house was “clear”. The only objective conclusion one can draw from that fact is that there was, at the time they entered Mr. Pelto’s home, no immediate or even imminent threat to public safety. Also, by the time the OPP had completed their work, it had been determined that the “copper objects” were not in fact “pipe bombs” as originally thought, but were harmless to humans. From that fact it would appear that, objectively, Mr. Pelto’s activities in making copper pipe objects, were unusual but not dangerous. The direction by the OPP for the officers to secure and remove items, which by themselves are commercially available, and were present in quantities in Mr. Pelto’s home that did not seem out of the ordinary, did not create a circumstance of either urgency or one that could be considered exigent within the meaning of the Criminal Code or the common law.
[67] The OPP bomb squad determined that Mr. Pelto wasn’t making bombs. The OPP thought he might make them. But he was in custody. Also the items that were to be seized were by themselves benign, commercially available and apparently not present in quantities that appeared out of the ordinary and, in any event were going to be handled by civilians who do environmental clean-ups. No situation of urgency was present. No reasonable threat to public safety was present in my view.
[68] With regard to the rationale put forward by the officers that they wanted to secure the large amount of cash that the OPP bomb squad had noticed, this in my view cannot be said to have any aspect of urgency or any element of protecting the public. At best, the officers were protecting Mr. Pelto from a very remote possibility of an economic loss as they testified while being cross examined. At worst, they were protecting themselves from accusations that money went missing during the OPP search. However none of those reasons in my opinion can provide a good faith basis for the search of Mr. Pelto’s home without warrant.
[69] The Crown also argues that R. v. Peters, 2007 SKQB 128 [Peters], stands for the proposition that an extenuating circumstance occurs when officers have been found to have a good faith subjective belief in exigent circumstances, such as public safety, even where there were insufficient objective grounds to find exigent circumstances capable of rendering the search reasonable. However a closer reading of Peters indicates it is distinguishable from this case on the facts.
[70] In Peters, the officers actually discussed the possibility of obtaining a warrant and they testified that a telewarrant was not available. The officers were dealing with a sale of firearms and felt they had no option but to err on the side of caution and do a warrantless search of a home. However, unlike this case, the search of the house was done with the permission of the landlord and with a demonstrated need for a speedy search.
[71] I find that none of the circumstances confronting Constables Rybak and Laamanen or Sergeant Reed contained any aspect of urgency, or threat to public safety or exigent circumstances. There was no risk that evidence was going to disappear. There was no suggestion that the cash was proceeds of a crime. Second, because they were going to be dealing with items of Mr. Pelto’s personal property that by themselves did not represent evidence of a crime, a warrant should have been obtained. The police were going to take hold of Mr. Pelto’s goods, which he had paid for, on the suspicion that they might be used to make bombs, at a time when the police knew that Mr. Pelto wasn’t actually making bombs. This, in my view, made it incumbent on the police to seek a prior judicial authorization to continue to enter Mr. Pelto’s home. It was a serious Charter violation. I cannot find that the actions of the police were done in good faith. The actions of the police were not sufficient to permit the Court to do anything other than distance itself from this behaviour. The seriousness of the state Charter-infringing conduct militates in favour of exclusion of the evidence.
[72] I turn now to a discussion of the second branch, the “impact of the breach on the Charter-protected interest of the accused”. It was acknowledged in argument that privacy is a principal concern when considering the impact of the protection against unreasonable search and seizure. A dwelling house attracts a higher expectation of privacy than a place of business or an automobile. In this case Mr. Pelto, despite exhibiting symptoms of mental illness, clearly advised the police not to go into his house. As I have found, there was no urgency and no reasonable belief that either the public or a person were in such immediate danger that a warrantless search of a residence was justifiable. Mr. Pelto has suffered a serious impact on a Charter-protected interest which militates in favour of exclusion of the evidence, in my view.
[73] I turn finally to a consideration of the third branch of the test, “society’s interest in the adjudication of the case on its merits”. On this branch, there is no question that the evidence is reliable and represents the “guts” of the Crown case. Possession and making of child pornography is a serious crime. The exploitation of children is particularly reprehensible. Society does have a significant interest in adjudication of this type of case on the merits. With respect to this branch of the test, reliability of this evidence would militate in favour of permitting the child pornography to be admitted into evidence.
[74] However, despite the seriousness of the offence and the significant societal interest in adjudication of these types of cases on the merits, I must also consider my findings with regard to the other two branches of the test. Taking into account all three branches of the Grant test, I am persuaded that in this case, the repute of the administration of justice would be better protected by excluding the child pornography evidence. There was no reasonable explanation for the failure of the police to obtain a warrant once the OPP bomb squad had cleared the residence. The evidence at issue was not the primary reason for the search at first instance although I am cognizant of the comments of Mills J. in Peters to the effect that evidence obtained unrelated to the original reason for the search should not have an impact on whether its admission would bring the administration into disrepute.
[75] In my view, this case necessitates the exclusion of the evidence in order to preserve the integrity of the administration of justice as the evidence was obtained well after the initial entry into the home, the first three officers on the scene did not notice it despite the fact it was later said to be “in plain view”, and there was no reasonable explanation given as to why the police did not obtain a warrant. By the time the child pornography was discovered, there was no urgency for the search. There was no risk to public safety. In my view there was inattention to constitutional standards by the police. There was a serious impact on the important Charter rights of Mr. Pelto.
[76] Therefore, in my view, the provisions of s. 24(2) of the Charter require this evidence to be excluded from this trial.
“Original signed by”
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: October 18th, 2013
COURT FILE NO.: CR-12-0124
DATE: 2013-10-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and –
Glenn Pelto,
Appellant
DECISION ON APPLICATION
Fitzpatrick J.
Released: October 18, 2013
/mls