Her Majesty the Queen v. Matthew Melo, 2014 ONSC 1364

COURT FILE NO.: 11299

DATE: 2014/04/17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Rollings, for the Crown

• and -

MATTHEW MELO

P. Downing, for the accused

HEARD: February 18,19, 21 and 26, 2014

LEACH J. (ORALLY)

Overview

[1] By way of overview, the accused, Matthew Melo, is charged with seven Criminal Code offences. These are particularized in the indictment, in a slightly different order than the one used herein, but generally involve:

• One count of obstructing justice contrary to s.139(2);

• One count of unauthorized possession of a prohibited weapon, contrary to s.91(3);

• One count of possession of a firearm knowing its possession was unauthorized, contrary to s.92(3);

• One count of careless and unauthorized storage of a prohibited weapon, contrary s.86(3);

• One count of unauthorized possession of prohibited ammunition, pursuant to s.91(3);

• One count of possession of prohibited ammunition knowing its possession was unauthorized; and

• One count of careless and unauthorized storage of prohibited ammunition, contrary to s.86(3).

[2] The charges stem from events said to have taken place on April 28, 2012. Evidence in that regard is outlined in greater detail below. In broad terms, however, the Crown says:

• that the accused Mr Melo lived in a residence located near the scene of a shooting being investigated by the police, deliberately removed at least one spent shell casing from the scene, and thereafter deliberately withheld the casing and/or information about its whereabouts from the police;

• that a prohibited weapon, (an AK-47 rifle), was found in plain view in Mr Melo’s bedroom while the police were clearing and securing his residence to prevent the destruction of evidence, pending completion of efforts to obtain a formal search warrant; and

• that a search of Mr Melo’s bedroom pursuant to the subsequently granted warrant then revealed the presence of a magazine for the AK-47 which, while not containing bullets, still constituted “prohibited ammunition” insofar as it was capable of holding more than five cartridges for use in an automatic weapon.

[3] Insofar as the obstruction of justice charge is concerned, the defence says the Crown has failed to prove all elements of the offence beyond a reasonable doubt.

[4] Insofar as the remaining firearm and ammunition charges are concerned, the defence acknowledges that all elements of the offences charged will have been established, (including lack of authorization to possess and/or store the items, and their prohibited status), if the rifle and magazine are admissible evidence.

[5] However, by way of an appropriate formal application, Mr Melo contends that neither the weapon nor the magazine should be admissible, insofar as both items were seized or obtained by the police pursuant to alleged contraventions of Mr Melo’s right to be free from unreasonable search and seizure, (pursuant to section 8 of the Canadian Charter of Rights and Freedoms), in circumstances where, the defence says, the items accordingly should be excluded from evidence pursuant to s.24(2) of the Charter.

[6] The parties agreed that the matter should be addressed by way of a “blended” voir dire and trial proceeding.

Evidence – General Comments

[7] At trial, in addition to numerous exhibits, (including the weapon and magazine described above, a Firearms Analysis Report describing and confirming the attributes and status of those two items, a copy of the “Information to Obtain Telewarrant to Search” prepared by the police, and a copy of the police “call notes” relating to the events in question), the Crown presented testimony from the following witnesses:

• Christina Fleming, (formerly Christina De Long), a civilian witness who lived near the scene of the shooting and the nearby residence occupied by Mr Melo;

• Sergeant Nigel Stuckey, one of the investigating police officers who attended at the scene of the shooting and then at Mr Melo’s residence, where he interacted with Mr Melo before subsequently participating in the clearing and securing of that residence, prior to a formal search warrant being secured;

• Sergeant Christopher Stumpf, another of the investigating police officers who attended at the scene of the shooting and then at Mr Melo’s residence, where he arrested Mr Melo before transporting him to the police station for processing;

• Detective Mark McGugan, another of the investigating police officers who attended at the scene of the shooting and then at Mr Melo’s residence, where he participated in the clearing and securing of Mr Melo’s residence prior to a formal warrant being secured, (during which he says he noticed the weapon located in Mr Melo’s bedroom), as well as a later search of the residence after a formal warrant had been secured; and

• Detective Constable Brent Lipskey, another investigating officer who attended at the scene of the shooting, participated in the clearing and securing of Mr Melo’s residence after his arrest, prepared and processed the formal application for a search warrant, and then participated in the search of Mr Melo’s residence carried out after the warrant had been secured.

[8] On consent, the Crown also read in agreed evidence from two other officers who participated in the events of April 28, 2012, but who did not attend at trial:

• Constable Kellie Munro, another investigating officer who attended at the scene of the shooting, where she located a spent brass shell casing in the nearby grass in advance of the police attending at Mr Melo’s residence; and

• Constable Danielle Wright, an officer who participated in the search of Mr Melo’s residence after the search warrant had been obtained, and who located the relevant magazine (prohibited ammunition) in Mr Melo’s bedroom.

[9] While subjecting the Crown’s viva voce witnesses to cross-examination, the defence elected not to call any witnesses at trial.

[10] However, the defence did include, as part of the evidence tendered in relation to the Charter Application, an affidavit including the aforesaid police “call notes”, various “will say” statements prepared by a number of the investigating officers, (Bolger, Munro, Stuckey, McGugan, Stumpf, Lipskey and Loizides), and the aforesaid information prepared and submitted by Detective Constable Lipskey to obtain a telewarrant to search Mr Melo’s residence. The defence also relied on passages from the transcript of testimony given at the preliminary hearing in this matter and, through cross-examination of Detective McGugan, effectively was able to tender, in evidence, a photograph depicting certain aspects of Mr Melo’s bedroom furniture, (described in more detail below).

[11] Although all witnesses in the trial before me were called by the Crown, with Mr Melo electing not to lead or present evidence, and most of the remaining written evidence presented at trial emanated from police witnesses, I have in mind throughout my entire reasons and analysis the presumption of innocence and the burden of proof upon the Crown.

[12] In particular, according to the constitutional guarantee in s.11(d) of the Charter of Rights, Mr Melo is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to any and all of the alleged offences beyond a reasonable doubt. That is a heavy burden and, in relation to the elements of the charges against Mr Melo that are not admitted, never shifts.

[13] The accused Mr Melo has no obligation whatsoever to establish his innocence, and I accordingly attach no significance to the fact that he gave no evidence at trial, although pursuant to R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, I have taken into account that certain evidence presented to me, (e.g., in relation to certain conduct and statements of Mr Melo on the day in question), stands uncontradicted in the sense that there is no other evidence to consider in relation to such matters.

[14] Although the Crown has the overall onus at trial to establish Mr Melo’s guilt beyond a reasonable doubt, in relation to the alleged offences, I nevertheless also bear in mind that, insofar as Mr Melo’s Charter application is concerned, Mr Melo has the onus of proving, on a balance of probabilities, that there has been a constitutional infringement and that evidence obtained by any infringement should be excluded. See R v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at para.35.

[15] As a final general observation, before embarking on a more detailed review of the evidence and issues, it should also be made clear at the outset, (as it was by the Crown), that there was no evidence or suggestion being made at trial that either the weapon or the ammunition magazine found in Mr Melo’s bedroom had any connection to the shooting that left bullet holes in the residence at 579 Millbank Drive. To the contrary, Crown counsel indicated and confirmed that there was “absolutely no match” between bullets found at the shooting of 579 Millbank Drive and the weapon or magazine found in Mr Melo’s bedroom.

[16] Nor was it being implied or suggested by the Crown that Mr Melo otherwise participated in that shooting.

[17] Mr Melo was on trial before me solely because of his alleged conduct subsequent to the shooting at 579 Millbank Drive, in relation to shell casings apparently connected to that shooting, and because of the unrelated weapon and magazine then found in his bedroom in the circumstances described herein.

Evidence – General Facts

[18] With the above preliminary observations, I turn now to a review of the underlying evidence.

[19] While I will have more to say about certain aspects of that evidence later in my reasons, the following findings concerning the events of April 28, 2012, form the basic context of my further analysis:

• At approximately 4:00am that day, a person or persons unknown fired numerous bullets at a residence known by its municipal address as 579 Millbank Drive, London, which is a unit in a townhouse complex. The bullets left a number of clearly visible bullet holes in the windows, door and walls of the residence. (Subsequent police investigation indicated that at least 5 bullets hit the residence. Whether or not more were fired but missed the residence is unknown.) For whatever reason, however, the police would not be made aware of the incident for at least another 8 hours.

• At the time, Christina Fleming had lived at 595 Millbank Drive for approximately 2 years. She was familiar not only with the location of homes in the area, but with the accused Mr Melo. She saw and passed him frequently, they shared common friends, and he lived in a house “right behind” Mrs Fleming’s back yard. (Later witnesses, including Sergeant Stuckey, confirmed that the municipal address of Mr Melo’s residence was 607 Millbank Drive, which was also the home of Mr Melo’s grandfather and grandmother. It was a house located near to but just outside the townhouse complex; the “first house south” of the complex, along the street. In particular, Sergeant Stuckey testified that 607 Millbank Drive was “very close” to the residence at 579 Millbank Drive, and that the two homes were just a 45 second walk from each other. Sergeant Stumpf estimated that the two locations were approximately 100 feet apart.)

• On the morning in question, Mrs Fleming exited her home to attend a coffee shop and purchase coffee for herself and others. She then returned to the area. At that time, a girl named “Tori”, (the daughter of a neighbor and friend of Mrs Fleming’s named “Tara”), called Mrs Fleming over to point out obvious bullet holes in the windows and siding of 579 Millbank Drive, and to inform Mrs Fleming that Tara was making a “911 call” to the police. (Mrs Fleming says she personally had not heard the shots being fired as she had returned home at 3:30am, had been drinking, and “passed out”.)

• Mrs Fleming then observed the accused in the area, standing outside the residence at 579 Millbank Drive. She saw him knock on the front door of that residence, (knowing he was “good friends” with the people who lived there), but “no one was there”, and he received no response. Mrs Fleming then saw Mr Melo talking on a cellphone intermittently. In particular, she says he made approximately 5-6 calls during a five minute time frame. From where she was, Mrs Fleming could see that the accused “didn’t always get responses” to his “calling out”, but that he “did pick up and call out several times”. She herself “only heard one connection”, and only part of the end of that conversation. In particular, she heard Mr Melo say that he was “getting it done”, and that he was going to be meeting up with somebody to “see him soon”. (Mrs Fleming candidly acknowledged that she did not know who that “somebody” was, who may have been on the other end of the telephone calls, whether Mr Melo was speaking to a live person or an answering machine when Mrs Fleming overheard his comments, whether anyone was saying anything to Mr Melo, or what if anything may have been said to Mr Melo.) Following Mr Melo’s overheard telephone comment that he was “getting it done”, Mrs Fleming saw him then walk over to what she described as “the crime scene area”; a description she clarified as meaning an area of grass, beside a walkway, located towards the back of 579 Millbank Drive “behind the home”, near to the obvious bullet holes in the residence. Mrs Fleming then saw the accused bend down and, pulling his shirt sleeve over the end of the fingers of his hand, then use that hand to pick up a shell casing and put it in his pocket. Mrs Fleming indicated her belief at the time that there were multiple shell casings in the area, (based on the number of observable bullet holes in the residence), but also confirmed that she saw Mr Melo pick up and pocket only one shell casing before she then approached him to initiate a conversation. Mrs Fleming says she did so because she considered the accused to be a “great kid”, and she wanted to discourage what was happening. In particular, she thought he had become “tangled up with a bad bunch of kids”, and that he was doing something he “felt he needed to do”, but she “did not want to see him go down a bad path”. She therefore asked Mr Melo what he was doing. He responded by telling Mrs Fleming he “had to do it”. Mrs Fleming emphasized that he did not in fact have to do what he was doing, that it was “not his job” or “his problem”, and that he should leave the shell casing where it was. However, Mr Melo assured her that he did have to do what he was doing. Mrs Fleming also told Mr Melo that Tara was “on the phone with the police” as they were speaking. (Although Mrs Fleming used the word “believe” in describing that memory, as highlighted by defence counsel, she nevertheless seemed quite confident in her belief, and I think that, in furtherance of her very deliberate and active efforts to discourage Mr Melo from doing what he was doing, she almost certainly would have employed and conveyed her knowledge of the call being made to the police.)

• The conversation between Mrs Fleming and Mr Melo then ended with both leaving the place where they had been speaking. In that regard, Mrs Fleming was adamant that the accused did not head into the complex towards its courtyard, where others may have been standing. She instead watched the accused, after their conversation, leave the townhouse complex, traverse a walkway to Millbank Drive, and then turn left towards his home. Mrs Fleming candidly acknowledged that she did not actually see him enter his residence, but emphasized that it was just two houses away from where she last saw Mr Melo, and that he was heading towards his home when he passed out of her sight. She therefore thought he had gone there after speaking with her.

• Mrs Fleming’s evidence as to her movements that morning, and as to the precise timing of her conversations with Tori, her observations of the accused, and her conversation with him, was not consistent. For example, at various points in her testimony, she suggested that she had left her residence at approximately 9:00am, that she returned to the complex and spoke with Tori approximately 30 minutes later, and that she provided her initial verbal statement to the police when they arrived on scene early that morning. However, she later noted that, in addition to attending a coffee shop that morning, she also then spent time delivering coffee to a number of friends. As noted above, she also had been up quite late the night before, and had not gone to bed until 3:30am. Mrs Fleming was nevertheless clear that her conversation with the accused took place shortly after Tori informed Mrs Fleming that Tara was in the process of calling the police, and while the “911 call” was being made by Tara. Mrs Fleming also was quite certain that she spoke with police to provide her information shortly after their arrival, and approximately 15-30 minutes after she last spoke with the accused and saw him walking towards his home with the pocketed shell casing. (In that regard, Mrs Fleming testified that she returned to her residence for a short time, but saw the police when she came out again and immediately approached them to tell them what she knew. This is consistent with the “will say” statement of Constable Munro, whose notes include reference to “a female citizen” providing information to the police, (at some point after the time of Constable Munro’s arrival and her discovery of one spent shell casing but before arrival of Sergeant Stuckey and Detective McGugan or entry into 579 Millbank Drive), about an individual named “Matt”, currently residing at 607 Millbank Drive, coming over and picking up shell casings that were outside 579 Millbank Drive. Moreover, the “will say” statement of Constable Bolger indicates that there then were additional conversations with “residents around the address”, following initiation of police efforts to clear 579 Millbank Drive, that made further reference to the “Matt” living at 607 Millbank Drive.) Having regard to the series of events described by Mrs Fleming, the contemporaneous notations on the police call notes indicating when the 911 call was made and when officers were dispatched to the scene, as well as evidence from the police call notes and attending officers indicating their time of arrival, (all of which is set forth in more detail below), I find that Mrs Fleming’s observations of the accused and her conversation with him on April 28, 2012, actually took place early that afternoon. In particular, having regard to the entry in the police call notes, at 12:27pm, wherein the telephone complainant was indicating that youths “have arrived” to pick up casings and specifically referring to Mr Melo, I find that Mr Melo probably left the crime scene with the pocketed shell just before the police arrived on scene at 12:28pm.

• The police received a “911 call” at 12:08pm on April 28, 2012, from a complainant saying that shots had been fired at or near 579 Millbank Drive in London much earlier in the day; i.e., at 4:00am. The caller indicated that previous attempts to call the police “Core Unit” had been unsuccessful, and that the complainant was “very fearful”.

• Officers were dispatched to the scene at 12:20pm, (with the above information being relayed verbally over police radio and by mobile data terminals in police vehicles), and officers were en route to the scene by 12:21pm. Because the reported shots had not been fired recently, officers were not dispatched on a “Code 1” (highest priority) basis.

• At 12:27pm, the telephone complainant reported that “youths have arrived to pick up casings” and, in that regard, specifically mentioned an individual named “Matt” who lived at 607 Millbank Drive. That further information was added to the police call notes, and conveyed orally and electronically to officers en route to the scene.

• At 12:28pm, (one minute after entry of the complainant’s further report of youths picking up shell casings), Constable Brandon Bolger was the first police officer to arrive on scene, and found no males at the rear of 579 Millbank Drive.

• Constable Munro arrived shortly thereafter and, observing a shell casing in the grass by the sidewalk to the rear of the unit, took the item into her possession to immediately secure that evidence, (having regard to reports of shells being “picked up” from the scene). The police call notes, being updated on a contemporaneous basis, indicate that the first shell casing had been located by 12:36pm, so Constable Munro had arrived on scene and had time to find the casing by then.

• Other officers then arrived, including Detective McGugan, Sergeant Stuckey and Sergeant Stumpf. (The precise order and timing of their respective arrival on scene was not entirely certain. However, a collective review of all the “will say” statements prepared that day and filed in evidence makes it clear to me that the three arrived after Constable Munro’s finding of a shell casing, and prior to 579 Millbank Drive being entered by the police no more than 24 minutes later. Detective McGugan’s will say statement and testimony suggest that he arrived only a few minutes before that happened.)

• Having regard to the multiple bullet holes in 579 Millbank Drive, (two through a main door, two through a main floor window, and two through the unit’s external siding), the attending officers formed an understandable concern that someone might be inside the residence and injured. When there was no answer to repeated police efforts to secure a response from inside the residence, steps accordingly were taken to breach, enter and clear the home at 579 Millbank Drive. The police managed to enter that residence at approximately 1:00pm, and remained inside for approximately 10 minutes. When no one was found therein, the police exited the home and 579 Millbank Drive was secured pending further investigation.

• Following up on the information provided by the telephone complainant and Mrs Fleming, the police then decided to attend at 607 Millbank Drive with a view to locating Mr Melo, at his indicated residence, and speaking to him about his alleged removal of one or more shell casings from the crime scene at or near 579 Millbank Drive. In particular, Sergeant Stuckey, Sergeant Stumpf and Constable Bolger went to 607 Millbank Drive for that purpose.

• Upon arrival at 607 Millbank Drive, at 1:15pm, (approximately 48 minutes after Mr Melo had left the crime scene with the pocketed shell casing), Constable Bolger attended at the rear door of the residence while Sergeant Stuckey and Sergeant Stumpf, (both in uniform), knocked or rang the bell at the front entrance. The front door was opened either by the accused or an older man, (later identified as Mr Melo’s grandfather), who called for the accused. In any event, at some point during the ensuing conversation, both the accused and his grandfather were present at the front door, and the police accordingly were aware of at least the grandfather’s presence in the house. Sergeant Stuckey and Sergeant Stumpf confirmed that neither Mr Melo nor his grandfather demonstrated any aggression or anger.

• Once the accused had come to the door of the residence and been identified, Sergeant Stuckey asked the accused if he had “picked up rounds over there”, and the accused said “Yes”. Sergeant Stuckey asked the accused why he had done it. Mr Melo responded that he “had not seen these before” and “was interested”. Constable Stumpf did not believe that answer, thought the accused likely still had one or more shell casings in his possession, and therefore challenged the accused by saying: “You are lying. Why did you pick it up? What happened to the round you picked up?” The accused responded by saying: “I gave it to somebody; it’s gone.” Sergeant Stumpf then asked the accused: “Who did you give it to?” Although Sergeant Stumpf heard and recalled the accused giving no answer to that question, (as reflected in notes made by Sergeant Stumpf shortly afterwards), he deferred to the memory of Sergeant Stuckey, who indicated that he heard the accuse respond by stating that he “did not know”.

• At approximately 1:18pm, the accused then was arrested for obstruction of justice in connection with the police weapon/firearm investigation. He was handcuffed, and removed from the residence at 607 Millbank Drive. He was also searched by Sergeant Stumpf, who performed the search, (via a “pat down” and putting his hands into Mr Melo’s pockets), not only to address officer safety concerns but also to see if Mr Melo had any evidence relating to the firearms investigation, and any shell casings in particular, on his person. Nothing, (including the missing shell casing), was found on Mr Melo’s person to further the investigation. Sergeant Stumpf and Sergeant Stuckey then both walked the accused to a police vehicle, parked down the street, for his transport by Sergeant Stumpf to the London police station.

• Sergeant Stumpf left with Mr Melo for the London police station cells at approximately 1:29pm. While en route, Sergeant Stumpf initiated a further conversation with the accused, repeatedly asking questions, such as: “Where are the bullets?” Mr Melo responded by saying: “I told you – I got rid of them, and there was only one.” Sergeant Stumpf asked Mr Melo where he found it, and Mr Melo replied: “By the fence.” When Sergeant Stumpf asked whether that had been on the pavement, Mr Melo responded: “No, in the grass.”

• On arrival at the police station and cells at approximately 1:48pm, Mr Melo was searched again, albeit in a more in-depth manner. Once again, nothing, (including the missing shell casing), was found on his person to further the investigation.

• Meanwhile, as the supervising officer on scene, Sergeant Stuckey had continued to liaise directly with all attending officers. This included his returning to 579 Millbank Drive to receive further updates on developments, including information as to whether any additional shell casings had been located. Some had been found, but the number located still fell short of the five noticeable bullet holes, even if one assumed that no additional rounds had been fired without hitting the residence. (Ultimately, only four shell casings were found by the police outside 579 Millbank Drive.) In a telephone call made at approximately 1:30pm, Sergeant Stuckey briefed his supervisor Staff Sergeant Gilpin, and conveyed an interest in securing the residence at 607 Millbank Drive, in order to prevent the possible destruction of evidence therein, and the missing shell casing or casings in particular, pending efforts to obtain and execute a formal search warrant. In response, Staff Sergeant Gilpin suggested that the officers first complete a quick background check on Mr Melo, (which then was done). This was followed by further discussions with attending officers and the Major Crime Section, (with Detective McGugan initiating a call to Detective Steve Newton of the Major Crime Section at approximately 1:42pm).

• At approximately 1:50-1:55pm, a decision then was made to enter, clear and secure the residence at 607 Millbank Drive, pending completion of efforts that then would be undertaken to seek and obtain a formal search warrant for the home. (Sergeant Stuckey estimated the decision was taken at approximately 1:54pm to 1:55pm, but Detective McGugan indicated that he, Sergeant Stuckey and Constable Lipskey – who works with Detective McGugan and who had arrived on scene by that point – had formed their decision and were heading towards 607 Millbank Drive by 1:50pm.) Sergeant Stuckey and Detective McGugan each emphasized that the purpose of entering, clearing and securing the home at that time, prior to obtaining a formal warrant, was the preservation of evidence; i.e., to make sure that no one in the residence was going to disturb, destroy or eliminate evidence before the police could complete the necessary steps to obtain and execute a formal warrant. In particular, police concern at the time was focused on preservation of the shell casing or casings that Mr Melo was believed to have picked up from the crime scene. (As noted by Sergeant Stuckey, spent shell casings of the type being sought are small cylindrical objects that fit easily within a person’s hand. As emphasized by Constable Lipskey, items of that relatively small size might easily be put beyond the reach of police and destroyed, for all practical purposes, by the simple flushing of a toilet.) However, Sergeant Stuckey and Detective McGugan candidly acknowledged that the desire to preserve evidence also extended to other possible but unknown evidence inside that might connect the accused with the shooting. (At the time, the accused already had “associated himself” to the incident by his removal of evidence from the scene. However, the precise extent of that association was unknown, as was the identity and location of the shooter, and the nature and location of the weapon or weapons involved.)

• Within minutes of the decision to enter and clear 607 Millbank Drive being made, (and certainly by 2:00pm), Sergeant Stuckey, Detective McGugan, Constable Lipskey and Constable Loizides then attended at that residence, where they encountered Mr Melo’s grandfather and grandmother. The situation was explained to the grandparents, who were instructed to leave the premises so that the house could be cleared and secured pending efforts to obtain and execute a formal warrant. The grandparents then left, without complaint or resistance. (All concerned agreed that the grandparents were directed by the police to leave, and did not invite the police to enter the home.) Before leaving, the grandparents indicated that they were the only ones present in the residence when the police entered. (Sergeant Stuckey had no note or memory of that, and the “will say” statements of Constables Lipskey and Loizides make no mention of it either. However, Detective McGugan recalled the grandparents indicating that, and noted the indication in his later “will say” statement.)

• After the grandparents had left the home to wait outside, Sergeant Stuckey, Detective McGugan, Constable Lipskey and Constable Loizides proceeded to “clear” the residence; i.e., by proceeding from room to room to ensure that there were no persons left inside prior to the home then being secured. The officers testifying at trial indicated they did not open drawers or perform similar search actions during this attendance at 607 Millbank Drive, emphasizing again that they were not looking for objects at that point, but for people; i.e., anyone who might otherwise tamper with or destroy evidence, pending completion of efforts to obtain and execute a formal warrant.

• While clearing a bedroom later confirmed to be that of Mr Melo, Detective McGugan then located the weapon giving rise to several of the charges against the accused. In that regard:

o Furniture in the bedroom included a bed, a dresser positioned along a wall opposite the foot of the bed, and a chair located in a corner of the room between the far end of the dresser and far wall, (vis-à-vis the bedroom door).

o Detective McGugan took steps to ensure the room was clear of people by successively looking in the room’s closet, around and under its bed, and then behind the chair in the corner. He says that leaning over and taking a “quick peek” behind the chair led to his discovery of the weapon, which was wrapped and covered in a green garbage bag, and protruding approximately 3-4 inches from the space between the dresser and the wall behind the dresser.

o At trial, Detective McGugan testified in chief that his “instinct” told him the protruding and wrapped object was a firearm, given his training and background, and that the item was so tightly wrapped in the green garbage bag that its distinct outline was visible and replicated exactly by the outside of the garbage bag. (Detective McGugan compared the situation to that of seeing a tightly wrapped hockey stick, whereby one could tell it was a hockey stick but “wouldn’t know for sure” until it was unwrapped.) He then reached down to touch the wrapped object, which “verified” for him that it was a hard object consistent with the butt of a firearm. After doing so, he removed it from behind the dresser, observing that the wrapped object was entirely covered by the green garbage bag, (so that no part of it could be seen directly), and more loosely wrapped in the areas further away from the weapon’s butt and closer to its barrel. Detective McGugan testified that, at that point, he could tell it was a firearm because of its length from the butt to the barrel. He then unwrapped the weapon, removing it from the green garbage bag and securing it to ensure that it was safe.

o In cross-examination, Detective McGugan nevertheless conceded that his indication of the weapon being tightly wrapped in the green garbage bag, to the point of making its nature clear like a tightly wrapped hockey stick, was something that did not appear in his notes or “will say statement”, (both prepared as soon as possible after the event to record important information), and that the indication emerged only at the preliminary hearing for this matter. Detective McGugan also acknowledged and confirmed other testimony, given by him at the preliminary hearing, indicating that he was merely “suspicious” that the item in the green garbage bag was a gun, and that he “couldn’t confirm it was a gun” before feeling and handling it through the bag and then removing the wrapping. (This was consistent with the relevant entry made by Detective McGugan in his notebook, almost immediately after the event, which reads as follows: “14:03 – green garbage bag sticking out end – felt end – rifle butt – pulled out – Appears to be AK-47”.) Detective McGugan similarly acknowledged and confirmed additional testimony, given by him at the preliminary hearing, that he could have waited, left the item where it was, and relayed his observation for use in the warrant application, rather than seizing it immediately. The detective further acknowledged that, even if the visible and tightly wrapped protrusion looked and felt like a rifle butt, that was not necessarily indicative of an item demanding seizure, (e.g., insofar as it might have been a permissible and legal object such as a “BB gun”).

o In the course of cross-examination, it also was suggested to Detective McGugan that no one realistically could have been behind the chair, and that the detective looked there not because he was clearing the room but because he was really engaged in a warrantless search. In furtherance of that suggestion, a photograph of the bedroom chair and its surroundings, taken and produced by the defence, was entered as an exhibit through Detective McGugan, who believed it was an accurate depiction of what he had seen. However, the detective firmly denied that his look behind the chair had not been part of his effort to clear the room of any possible occupants. In that regard, he emphasized his experience of people hiding in very small spaces, and thought the possibility of someone being behind the chair was a definite possibility even if the chair was but 12” from the wall. He also stressed the importance of his duty to make absolutely sure that no one was in any “cleared” room, given the possible adverse implications for the safety of officers then assigned to secure the residence from the outside. To the extent necessary, I accept, for the reasons he gave, Detective McGugan’s assertion that his intent in looking behind the chair was directed towards ensuring that the room was definitely clear of any hidden occupants, and not an intended search for objects carried out in bad faith, in the guise of clearing the room. (In that regard, I note that the photograph of the bedroom chair shows it piled high with various items of bedding and other opaque objects. If the photo is an accurate depiction of how the chair and surrounding area looked at the time of Detective McGugan’s warrantless entry to clear the room, I think it natural and understandable that he would have looked at least briefly behind the chair to ensure no one was there.) Having said that, a “good faith” look behind the chair does not necessarily mean that weapon then was in “plain view”, and I will return to that important question later in my reasons.

• The Firearms Analysis Report confirms that the weapon in question, (formally presented and entered as an exhibit at trial), was and is a “Norinco 84S-7 Chinese State Arsenal, 5.56 mm x 45 calibre semi-automatic rifle”, with a design commonly known as an “AK-47 rifle”. It is a weapon formally classified as a “Semi-Automatic Firearm”, which reloads and fires once the trigger has been pressed and released. The report indicates the weapon also can be converted to fully automatic function with minimal instruction, easily accessible on line. At the time of testing, it nevertheless had not been converted to fully automatic function. It is still classified as a “Semi-Automatic Firearm”.

• At the time of its discovery by Detective McGugan, the weapon clearly was missing its ammunition magazine, and further examination confirmed there was also no round in the barrel or trigger mechanism.

• Detective McGugan was alone in Mr Melo’s bedroom when the weapon was located, but alerted the other attending officers to its presence. After the check to ensure that the weapon was not loaded, it was removed from the residence and secured.

• The house at 607 Millbank Drive was cleared and secured by 2:10pm, at which point all officers had left the house and it was secured by the police maintaining a presence immediately outside, pending completion of efforts to obtain and execute a formal warrant. From start to finish of their warrantless entry, the police had been inside the house for no more than 10-15 minutes.

• Over the course of the next several hours, Constable Lipskey then gathered together information from various sources and his own observations to prepare, swear to and submit, pursuant to ss. 487 and 487.1 of the Criminal Code, a formal “Information to Obtain Telewarrant to Search”, (hereinafter referred to as the “ITO”). In doing so, Constable Lipskey had access to all of the written statements prepared by officers participating in the investigation, (which were all posted to the electronic data collection system), but also had spoken directly with a number of the officers involved. (This is consistent with numerous indications in the “will say” statements, and by the officers testifying at trial, that the investigating officers were communicating with each other at the time and readily sharing available information.) The ITO prepared and submitted by Constable Lipskey was entered as an exhibit at trial, and its detailed content is addressed in more detail below. For now, I note that it indicated a desire to search 607 Millbank Drive to recover:

o shell casings removed by Mr Melo from 579 Millbank Drive, (as evidence related to that shooting offence as well as Mr Melo’s apparent obstruction of justice);

o Mr Melo’s cellular telephones, (with anticipated evidence relating to Mr Melo’s intent and planning of the apparent obstruction of justice); and

o the ammunition and required magazine for the AK-47 weapon located in the residence by Detective McGugan during the warrantless entry by police.

• A formal warrant to search 607 Millbank Drive was issued and transmitted to the police at approximately 6:05pm. Its receipt was followed by a corresponding police search of the residence commencing at 6:50pm. During the course of that warranted search, police did not locate the shell casing they were looking for. However, Detective McGugan located documents confirming that Mr Melo lived in the home, and Constable Danielle Wright located, in Mr Melo’s bedroom, (and more particularly within a white sport sock in a top drawer of the dresser), a large capacity ammunition magazine designed for use with an AK-47 magazine the rifle. The magazine, (formally presented and entered as an exhibit at trial), had no ammunition in it at the time of its discovery. It nevertheless was capable of holding more than 5 bullets at a time, thus making it “prohibited ammunition” for the purpose of the offences with which Mr Melo is charged.

Analysis

[20] With the above evidence and principles in mind, I turn first and separately to the “obstruction of justice” charge set forth in Count 1 of the indictment, as all concerned agree this involves significantly different considerations than those relating to the remaining counts on the indictment.

OBSTRUCTION OF JUSTICE

[21] The formal “obstruction of justice” charge in Count 1 alleges that Mr Melo, “on our about the 28th day of April in the year 2012, at the City of London in the said Region, did wilfully attempt to obstruct, pervert or defeat the course of justice by knowingly withholding evidence pertaining to a firearms investigation, contrary to s.139(2) of the Criminal Code of Canada”.

[22] For me to find Mr Melo guilty of obstructing justice, Crown counsel must prove, beyond a reasonable doubt, each of the following essential elements of the offence:

i. that Mr Melo is guilty of the conduct alleged, (i.e., that he withheld evidence pertaining to a firearms investigation);

ii. that his conduct had a tendency to obstruct, pervert or defeat the course of justice; and

iii. that Mr Melo intended, by his conduct, to obstruct, pervert or defeat the course of justice.

[23] By way of general principles applicable to the determination of such issues, I note that they include the following:

• Although “the course of justice” in this context includes judicial proceedings, either existing or proposed, it is not limited to such proceedings. The offence under s.139(2) also includes attempts by a person to obstruct, prevent or defeat a prosecution which he contemplates may take place, notwithstanding that no decision to prosecute has been made; see R. v. Spezzano (1977), 34 C.C.C. (2d) 87 (C.A.).

• The term “course of justice” also includes an investigatory stage which may lead to a prosecution: R v. Wijesinha, [1995] 3 S.C.R. 422.

• Although framed in the language of an “attempt”, s.139(2) in fact creates a substantive offence, the gist of which is the doing of an act which has a tendency to prevent or obstruct the course of justice and which is done for that purpose; see R. v. May (1984), 13 C.C.C. (3d) 257 (Ont.C.A.), leave to appeal to the S.C.C. refused, [1984] 2 S.C.R. vii.

• It is not necessary that the tendency materialized; see R. v. Graham (1985), 20 C.C.C. (3d) 210 (Ont.C.A.), affd 1988 94 (SCC), [1988] 1 S.C.R. 214. The gravamen of the offence under s.139(2) is the wilful attempt to obstruct justice, and it does not matter that the attempt was not only unsuccessful but could not have been successful; see R v. Hearn (1989), 48 C.C.C. (3d) 376 (Nfld.C.A.), affd 1989 14 (SCC), [1989] 2 S.C.R. 1180.

• The offence nevertheless requires the specific intention to obstruct justice; see R. v. Charbonneau (1992), 74 C.C.C. (3d) 49 (Que.C.A.).

[24] With those general considerations in mind, I turn to the specifics of this case, and a consideration of whether the Crown has proven all elements of the obstruction of justice charge beyond a reasonable doubt.

[25] In relation to the first element of the offence, in my opinion the evidence presented, (and the evidence of Mrs Fleming, Sergeant Stuckey and Sergeant Stumpf in particular, which includes evidence of the unchallenged statements and admissions of the accused), makes it absolutely clear that Mr Melo engaged in conduct that included attendance at the shooting crime scene, retrieval and pocketing of a shell casing that clearly was evidence relevant to the shooting incident to be investigated by the police, removal of the item from the crime scene, and failure to produce that evidence to the police or direct them to its location in response to police inquiries about that shell casing.

[26] In relation to the second element of the offence, if “to obstruct” means to interrupt, make difficult, get in the way of something, impede or hinder, “to pervert” means to lead astray, turn away from the right course or corrupt, and “to defeat” means to prevail over, pervert or frustrate, I am satisfied beyond a reasonable doubt that a reasonable person, aware of the circumstances, would consider or conclude that what Mr Melo did would have a tendency to obstruct, pervert or defeat the course of justice. In that regard:

• The shell casing was, in my opinion, clearly and self-evidently evidence relevant to the shooting incident about to be investigated and/or being investigated by the police. At a minimum, shell casing evidence inherently would assist in providing the police, sooner rather than later, with more reliable indications as to the number of shots fired, (not necessarily the same as the number of observable bullet holes), the number of weapons involved in the incident, and the nature of the weapon or weapons involved. Depending on the nature of the ammunition and loading mechanisms involved, shell casings inherently may or may not also have the ability to provide police with fingerprint evidence, in turn providing evidence of those who may have been involved in the shooting.

• The conduct of Mr Melo in removing such evidence from the crime scene therefore had a tendency, at the very least, to impede, hinder and “get in the way” of the police investigation, and make the job of the police investigating the shooting more difficult. Removal of the evidence alone had that tendency. However, Mr Melo’s subsequent failure to then turn the item over to the police, or provide any direction or assistance allowing the police to retrieve the item, then compounded that tendency.

• All of this is true, regardless of whether or not the police eventually were able to locate and secure other shell casings at the scene, and whether or not that other shell casing evidence may or may not have provided police with evidence to which the additional missing shell casing may have added little or nothing; something which now can never be known with certainty, because of Mr Melo’s actions. However one looks at the matter, Mr Melo’s conduct resulted in relevant evidence effectively being withheld from the police investigating the shooting. In any event, it certainly had that tendency, which is all that is required for purposes of the offence.

[27] This leaves, for consideration, the third and final element of the “obstruction of justice” charge; i.e., whether Mr Melo intended to obstruct, pervert or defeat the course of justice.

[28] This question obviously has to do with Mr Melo’s state of mind at the time of his conduct.

[29] To prove this essential element, Crown counsel must satisfy me beyond a reasonable doubt that Mr Melo meant to obstruct, pervert or defeat the course of justice. In other words, it is not enough that Mr Melo’s conduct accidentally may have had that effect. I must be satisfied beyond a reasonable doubt that Mr Melo knew that what he was doing had a tendency to obstruct, pervert or defeat the course of justice, and that he intended that it do so.

[30] In that regard, I am mindful of the reality that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from something he does intends that consequence. In particular, if a person forsees that his conduct is certain or substantially certain to obstruct, pervert or defeat the course of justice, it is reasonable to conclude that he intended that to happen.

[31] In this case, defence counsel highlighted or suggested, during the course of cross-examination, that many aspects of the evidence elicited and relied upon by the Crown, as circumstances indicative of Mr Melo’s intent, were capable of alternative and innocent explanations. For example:

• Considered in isolation, the comments overheard by Mrs Fleming that Mr Melo was “getting something done” and/or intending to meet soon with someone might well be construed as having meanings entirely unrelated to the shooting incident, or the collection and transmission of evidence related to that shooting. (Defence counsel suggested the task being done may have had nothing whatsoever to do with picking up shell casings, and that the intended meeting may have been a simple social occasion such as a meeting for coffee.)

• Similarly, considered in isolation, the actions of Mr Melo may have been those of a person who simply happened on the shell casing, and innocently picked it up and retained it, or shared it with someone else, as an interesting object not seen before, in circumstances where Mr Melo was not aware of its significance or relevance to a police response and investigation that was imminent if not already underway.

• Defence counsel also suggested that Mr Melo’s indication to Mrs Fleming that he “had to” pick up the shell casing or casings may simply have been indicative of entirely innocent obsessive or compulsive behavior on his part.

[32] However, to the extent the Crown is relying on circumstantial evidence to establish the requisite intent for obstruction of justice, I am mindful that a finding of guilt requires my being satisfied that Mr Melo’s guilt is the only reasonable inference from the evidence considered as a whole.

[33] In particular, I am mindful of the following direction from the Court of Appeal in R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011 (C.A.), at paragraph 13:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p.361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p.76.

[34] In this case, applying common sense and having regard to all the evidence, (including Mr Melo’s conduct, and statements to and by Mr Melo), I am satisfied beyond a reasonable doubt that Mr Melo had the specific intention required to make out the obstruction of justice offence.

[35] In my view, this simply and clearly was not an occasion where Mr Melo simply happened upon, removed and effectively eliminated relevant evidence without being quite aware of what he was doing and its implications on the course of justice.

[36] To the contrary, the overall circumstances, including the obvious and readily noticeable bullet holes indicative of a serious shooting-related crime, (making it obvious that a police investigation was inevitable once the incident came to their attention), Mr Melo proceeding directly to the location of shell casings immediately after telling a person or persons unknown that he was “getting it done” before an imminent meeting with that person or persons, Mr Melo’s efforts to pick up the shell casing in a manner obviously suggestive of a desire to avoid leaving his own fingerprints on the item, (itself indicative of a realization that the shell casing was an item that might be examined eventually for its evidential value), Mr Melo’s statement that he was obliged to do what he was doing, and his persistence in leaving with the pocketed shell casing even after Mrs Fleming informed him that he should not be doing what he was doing and that the police were being called to investigate the incident, (in circumstances where any reasonable person would have known that such an investigation was a prelude to possible criminal prosecution), collectively makes it quite clear to me that Mr Melo did what he did in a deliberate attempt to hinder investigation and/or prosecution associated with the shooting.

[37] I therefore am satisfied that the Crown has proven, beyond a reasonable doubt, all elements of the s.139(2) offence alleged in Count 1 of the indictment.

CHARTER ANALYSIS – GENERAL PRINCIPLES

[38] For the reasons noted above, whether or not the Crown has proven the remaining charges on the indictment turns on the outcome of the defence application to exclude the prohibited weapon and/or prohibited ammunition magazine from evidence, based on alleged contraventions of Mr Melo’s section 8 Charter right to be free from unreasonable search and seizure, and application of s.24(2) of the Charter.

[39] In that regard, applicable general principles relating to s.8 of the Charter include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure, and it follows that warrantless searches are ordinarily inconsistent with s.8 of the Charter, and prima facie unreasonable under s.8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. See Canada v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Feeney, [1997] 2 S.C.R. 13, at para.52.

• A warrantless search will respect s.8 if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable. See R. v. Feeney, supra, at paragraphs 46 and 5, reiterating principles from R. v. Collins, [1987] 1 S.C.R. 265.

• Reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s.8 of the Charter for authorizing searches and seizures. See Canada v. Southam Inc., supra.

• A warrantless entry into a residence for the purpose of securing and protecting evidence, pending efforts to then obtain and execute a formal warrant, should be treated as a warrantless search for the purpose of determining whether or not there has been a s.8 violation. See R. v. Silveira, [1995] 2 S.C.R. 297, at paragraphs 41-45.

• There may be exigent circumstances where a warrantless entry is reasonable, (and therefore not inconsistent with s.8 of the Charter), including reasonable grounds to believe that entry is necessary to prevent the imminent loss or destruction of evidence. See R. v. Feeney, supra, at para. 52, and R. v. Duong (2002), 2002 BCCA 43, 162 C.C.C. (3d) 242, leave to appeal to S.C.C. refused, [2002] 3 S.C.R. vii.

[40] Applicable general principles relating to s.24(2) of the Charter include the following:

• Anyone whose guaranteed Charter rights or freedoms have been infringed may apply to the court to obtain such remedy as the court considers appropriate and just under the circumstances. Where the court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”: Canadian Charter of Rights and Freedoms, ss. 24(1) and 24(2).

• Accordingly, more than a violation of a Charter right is necessary before such evidence will be excluded. The evidence must not only have been obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter, but it also must be established that the admission of the evidence “would bring the administration of justice into disrepute”. See R. v. Genest (1989), 45 C.C.C. (3d) 385 (S.C.C.), at p.401.

• The person seeking to exclude the evidence bears the burden of persuading the court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, “dispassionate and fully appraised of the circumstances of the case”. See R v. Simmons (1988), 45 C.C.C. (3d) 296 (S.C.C.), at p.323.

• When faced with an application for exclusion of evidence under s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. The subsection is not aimed at punishing the police or providing compensation to the accused. Rather, its focus is on the “broad impact of admission of the evidence on the long-term repute of the justice system”. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

• 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. In particular, when faced with an application for exclusion pursuant to s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following:

o First, the seriousness of the Charter-infringing state conduct that led to the discovery of evidence, (bearing in mind that admission of the evidence may send the message that the justice system condones serious state misconduct). The more severe or deliberate the violation, the more likely the evidence ought to be excluded. Extenuating circumstances and “good faith” on the part of the police must be weighed in the balance. However, ignorance of Charter standards must not be encouraged, (especially in the very persons who are charged with upholding the law), and courts must not equate wilful blindness with good faith.

o Second, the extent to which the Charter breach undermined the protected interests of the accused, (bearing in mind that admission of the evidence may send the message that individual rights count for little). The more serious the incursion on these interests, the greater the risk that admission of the tainted evidence would bring the administration of justice into disrepute.

o Third, society’s interest in the adjudication of the case on its merits. This aspect of the three-pronged inquiry requires the court to evaluate whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence, and reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Factors to be weighed into this balance include the reliability of the evidence, and its importance to the Crown’s case. Moreover, the court must consider not only any negative impact of the admission of the tainted evidence, but also the impact of failing to admit evidence.

The three-pronged inquiry is intended to flexible, and there is no precise rule as to how the balance of these factors is to be struck.

See R. v. Collins, supra, at para.31; R v. Genest, supra, at p.87; R v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-1220; R v. Kokesch, [1990] 3 S.C.R. 3, at pp.32-33; R. v. Silveira, supra; and R. v. Grant, supra, at para. 71.

ALLEGED CHARTER VIOLATION - WEAPON

[41] In this case, the police and the Crown in turn readily acknowledge that the weapon giving rise to Counts 3, 4 and 7 of the indictment was found during the course of a warrantless entry by police into Mr Melo’s personal residence and bedroom.

[42] However, they say that the entry and resulting discovery of the weapon were nevertheless lawful and reasonable, and therefore not a constitutional infringement of Mr Melo’s s.8 Charter rights, insofar as entry was justified by exigent circumstances and the weapon was found in plain view.

[43] The onus of proof in that regard reverts to the Crown, given that the warrantless conduct of the police in relation to the weapon was prima facie unreasonable, pursuant to the authorities outlined above. In other words, the Crown must rebut the presumption of unreasonableness.

[44] Turning first to the question of exigent circumstances:

• As noted above, our courts recognize that it may not be reasonable in every instance to insist on a prior formal authorization order to validate government intrusions on individuals’ expectations of privacy. See Canada v. Southam Inc., supra.

• In particular, a warrantless entry and/or search may be reasonable and justified by “exigent circumstances”, usually involving situations where immediate action is required for the safety of the police and/or to secure and protect evidence of a crime. See R. v. Feeney, supra, at para. 52. For example, there may be exigent circumstances where warrantless entry is reasonable, (and therefore not inconsistent with s.8 of the Charter), because the police have reasonable grounds to believe that entry is necessary to prevent the imminent loss or destruction of evidence. See R. v. Duong, supra.

[45] For the proffered reasons outlined above, that was the principal “exigent circumstances” rationale adopted and relied upon in this case by the police, and in turn by the Crown.

[46] In cross-examination and submissions, defence counsel challenged and criticized, on a number of grounds, the police suggestion and corresponding Crown argument that the warrantless entry into 607 Millbank Drive had been justified by exigent circumstances.

[47] For example, questioning by defence counsel repeatedly sought to confirm that, when the police entered 607 Millbank Drive prior to obtaining a warrant, they had no evidence or information that there was any evidence therein relating to the shooting incident. It was suggested that various police witnesses had acknowledged this.

[48] However, it seemed to me that, in the course of the relevant questions and answers, both at trial and at the preliminary hearing, defence counsel and the police witnesses effectively were speaking at cross-purposes. In particular, as emphasized repeatedly by Sergeant Stuckey, and then by Constable Lipskey, there is a distinction between having no direct evidence or information indicating or confirming the presence of evidence in a residence, (which is what the police witnesses seemed ready and willing to concede), and having no such evidence or information at all, either direct or circumstantial, (which is what defence counsel appeared intent on confirming). In my view, the relevant questions and answers at trial, and similar questions and answers quoted from the preliminary hearing transcript, effectively turned on that semantic but important distinction.

[49] In this case, when the police entered 607 Millbank Drive without a warrant to clear and secure the residence, they may not have had any direct evidence available indicating or confirming that evidence related to the shooting incident definitely had been taken into Mr Melo’s residence, or that any such evidence was still there.

[50] In particular, as emphasized by defence counsel, while Mr Melo may have been seen walking away from the crime scene with at least one shell casing, there was no evidence confirming that he had proceeded with the casing directly into his home without first going to other locations where the evidence may have been discarded, no evidence negating the possibility and assertion by Mr Melo that he had given the casing to someone else prior to entering his residence, and no evidence confirming that the casing, even if taken into the residence, was still present there when the police entered without a warrant.

[51] However, I think it neither fair nor accurate to suggest that the police had no evidence giving rise to reasonable and probable grounds for believing that the casing was taken by Mr Melo into his home at 579 Millbank Drive and left inside, therefore warranting exigent steps to clear and secure the home to preserve such evidence until a formal warrant could be obtained.

[52] To the contrary, when the police decided to clear and secure the home, their available evidence and information, (from the telephone complainant, Mrs Fleming, the accused, and their own observations), indicated:

a. that the accused definitely had evidence relevant to the shooting on his person when he left the crime scene;

b. that the accused no longer had the evidence on his person when he was searched by the police a relatively short time later, (approximately 48 minutes);

c. that the accused accordingly must have left the evidence somewhere in the interim;

d. that the movements of the accused in the interim obviously included entry into his home for some period of time, (as he was found inside when the police attended to question him); and

e. that the accused had been seen heading in the direction of his home, and within a very short distance of that home, immediately after taking the evidence from the crime scene.

[53] In my view, these circumstances collectively suggested reasonable grounds for believing that the accused had taken the evidence to his home at 607 Millbank Drive and left it inside, where its small size might easily facilitate its effective loss or destruction, before the police could secure a formal warrant, unless interim measures were taken on an exigent basis to clear and secure the house in the meantime.

[54] To the extent defence counsel suggests that no such exigent measures were appropriate in such circumstances, in the absence of direct evidence confirming that the shell casing had indeed been taken inside the home and was still there, in my opinion that would set the bar for taking such measures to protect and preserve evidence too high. Reasonable grounds for the police belief were required, but not certainty.

[55] Defence counsel also suggested that, by the time the police effected entry without a warrant to clear and secure 607 Millbank Drive, any “exigency” effectively had lapsed with the passage of time, insofar as:

a. the relevant shooting had taken place almost 9-10 hours earlier, (thereby negating any sense of urgency, as reflected in the fact that officers were not dispatched on a Code 1 basis); and

b. there already had been ample opportunity, in defence counsel’s submission, for the accused or others to destroy evidence, either between the time of Mr Melo taking the shell casing and the time of his arrest, (65 minutes or less), or between the time of Mr Melo’s arrest and the time of the police decision to enter and clear the residence, (approximately 37 minutes).

[56] In my opinion, neither point has merit, in terms of undermining the exigent circumstances relied upon by the police. In particular:

a. It seems to me that the first point fundamentally confuses the urgency of police efforts to secure and preserve fresh evidence of a recent shooting with the urgency of police efforts to secure and preserve evidence of a “stale” shooting that undoubtedly has been subjected to a recent taking from a crime scene. The priorities and timing concerns involved in those two situations are, I think, inherently and self-evidently different. In particular, the exigent steps taken in this case were focused on preservation and possible retrieval of evidence removed from the crime scene just a relatively short time before; a removal confirmed not only by the information provided to police by the telephone complainant and Mrs Fleming, but also by the admissions of the accused. The extended lapse of time between the shooting and removal of evidence relating to the shooting is not relevant, in my view, to the immediate concern being addressed by the police in clearing and securing the house in an effort to preserve the recently taken evidence.

b. Defence counsel’s second timing criticism, taken to its logical conclusion, would suggest that the police effectively must “give up” and take no exigent steps to preserve evidence in any case where there are definite indications of intent to obstruct justice by the removal and/or destruction of evidence, but also a possibility of the evidence having already been destroyed. In my view, acceptance of such a suggestion, coupled with the myriad ways in which mere possibilities of destroying evidence might arise, would largely negate, in most cases, the court recognized ability of police to take exigent steps to protect and preserve evidence.

[57] Defence counsel also argued that it was unreasonable and inappropriate for the police to proceed with efforts to clear 607 Millbank Drive, by going through the house, in the face of the grandparents’ indication that no one else was present in the home and without the police having any evidence that others may have been in the house.

[58] In particular, it was suggested that the police instead should have withdrawn from the residence once the grandparents had given that indication and left the home, with the police then simply securing the home from the outside by way of a simple watch pending arrival of a formal warrant, (if any).

[59] Again, I disagree.

[60] In my view, legitimate efforts by police to preserve and prevent the possible destruction of evidence in exigent circumstances also would be frustrated and prevented all too easily if police generally were obliged to accept, at face value, verbal indications or suggestions from an accused’s relatives or friends that such measures are unnecessary.

[61] In this particular case, the police were confronted with a situation where there already were indications of deliberate obstruction of justice resulting in loss of evidence relating to their firearms investigation, in circumstances where the person responsible had been in telephone contact with another person or persons, confirming his efforts and indicating an intention to meet with the other person or persons shortly thereafter. In such circumstances, and having reasonable grounds to believe that the shell casing taken by Mr Melo may still have been in his residence, it was not unreasonable for the police to pursue and complete their own independent clearing of the house to ensure that no one else was there. They were not obliged to simply accept that the grandparents’ indications in that regard were honest and accurate.

[62] Moreover, as emphasized by a number of the police witnesses, while clearing of the house was undertaken primarily to protect and preserve evidence, ensuring the absence of anyone else in the home also was a reasonably necessary precaution, in the circumstances, to ensure the safety of the officers who then would be assigned to remain immediately outside the residence pending completion of efforts to obtain a formal warrant.

[63] In that regard, I note in particular that, when the police cleared the residence at 607 Millbank Drive, there clearly had been a weapon or weapons and a shooter or shooters in the immediate vicinity earlier that day, (all of which/whom had yet to be located), the police had evidence and indeed an admission that Mr Melo had connected himself to the incident under investigation by removing evidence from the crime scene, and a civilian witness had provided information to the police indicating, for the reasons outlined above, not only an intention to obstruct justice but evidence that Mr Melo was communicating with one or more other persons about his actions.

[64] Contrary to the submissions of defence counsel, I believe the situation in this case therefore is readily distinguishable from that in R. v. Feeney, supra, where the court indicated that a simple exterior watch would have been appropriate pending efforts to obtain a formal warrant.

[65] In that case, (unlike the one before me), there apparently was no evidence of firearm involvement or anything else to indicate that maintenance of an exterior watch of the accused’s residence would have entailed possible risk to officer safety. Moreover, the police in that case had no knowledge whatsoever of any evidence that might be destroyed, no indication that loss of evidence already had taken place or was threatened, and indeed nothing but a mere “suspicion” or “hunch” that the accused was involved in the crime they were investigating.

[66] Having regard to the evidence as a whole, I therefore am satisfied that the initial warrantless entry by the police into Mr Melo’s residence at 607 Millbank Drive, to clear and secure the premises, was indeed justified by exigent circumstances; i.e., for the primary purpose of preserving and preventing the destruction of evidence, and the ancillary purpose of ensuring officer safety while the home then remained secured pending a formal warrant. Entry and clearing of the house, although done without a formal warrant, therefore was still reasonable and lawful.

[67] However, the circumstances which justified entry and clearing of the house, and rendered those actions lawful and reasonable, also inherently circumscribed and constrained the limits of what the police might then reasonably do in that regard.

[68] In particular, exigent circumstances may have justified a warrantless entry into the residence to ensure that it was cleared of persons, (thereby preventing the destruction of any evidence therein and ensuring the safety of officers then assigned to secure the house from the outside), but not a warrantless search of the house.

[69] The police and Crown acknowledge this, but relied and rely on the “plain view” doctrine to support their position that the weapon was located and taken into police possession pursuant to a lawful seizure and not an unlawful search.

[70] The subject of “plain view” seizures, including the distinction relied upon by the police and Crown, is addressed in Fontana & Keeshan, The Law of Search and Seizure in Canada, (7th ed.), at pp.551-552, which read in part as follows:

“Plain view” occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view he has had; and such items have been held to be subject to seizure.

When an officer finds such evidence – contraband, stolen property or crime evidence – unexpectedly in the course of his duties, in circumstances where it is at once obvious and visible without positive action on the officer’s part to make it observable, he has the right to seize it. It may arise in circumstances where the officer is already lawfully in the premises (under valid warrant, in hot pursuit of a fugitive, emergency, etc.) and in the course of these duties he comes across seizable items in plain view … The prior intrusion may be pursuant to a warrant, a valid warrantless search or a search incident to arrest. …

[T]he plain view doctrine is, in reality, a power to seize, not a power to search, and as such cannot be extended to those items that are not visible. …

[R]eliance on the plain view doctrine [depends] on three requirements:

(1) First, the officer must be lawfully in a position from which the evidence was plainly in view.

(2) Second, discovery of the evidence must be inadvertent, that is, the officer must not have knowledge of the evidence in advance.

(3) Third, it must be apparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure.

[Emphasis added.]

[71] In the case before me, if the weapon came into “in plain view” of Detective McGugan in the sense required, while he was properly engaged in a warrantless but lawful entry into the home to clear it of persons to preserve evidence and ensure officer safety, then its seizure was reasonable, (insofar as it really was effected without a search and as an incident to Detective McGugan performing his otherwise lawful actions), and therefore not a violation of Mr Melo’s s.8 Charter rights.

[72] However, if the weapon was not in “plain view” of Detective McGugan, it effectively was located and seized during a warrantless search of the residence not authorized by exigent circumstances, which was therefore unreasonable, in turn constituting a violation of Mr Melo’s s.8 Charter rights.

[73] In determining what may and may not have been “apparent” to Detective McGugan at the time, I take into account the absence of any indication in his generally contemporaneous notes or “will say” statement of the “tight wrapping” and “obvious outline” of the object emphasized in his testimony at the preliminary hearing and at trial. In that regard, I agree with defence counsel that this was a significant point, and that, as noted in authorities such as R v. Lozanovski, 2005 ONCJ 112, [2005] O.J. no. 1322 (O.C.J.), at paragraph 14, and R. v. Bowman, [2007] O.J. no. 2751 (O.C.J.), at paragraph 23, failure to include such an important observation in an officer’s contemporaneous notes and statements should be approached with caution.

[74] On balance, I find Detective McGugan’s “quick peak” behind the chair may have been carried out in a good faith, and in a manner consistent with efforts to clear the house for legitimate exigent circumstances relating to the preservation of evidence, but it did not bring the weapon into “plain view”.

[75] To the contrary, I think it clear from Detective McGugan’s acknowledgements at trial, and at the preliminary hearing, that what he immediately saw behind the chair gave rise to suspicions, but that it really was not “apparent” to him that the wrapped item may have been evidence of a crime, or otherwise subject to seizure, until he then took further active measures, (i.e., feeling, removing, handling and then unwrapping the green plastic garbage bag), to confirm what was inside.

[76] In my view, taken as a whole, Detective McGugan’s actions in exploring and confirming the nature of the wrapped item he noticed suggest “discovery through affirmative search as opposed to discovery through inadvertence”, to quote the distinction emphasized in R. v. Nielsen (1988), 43 C.C.C. (3d) 548, at p.556.

[77] Moreover, bearing in mind the overall s.8 context of the present inquiry, the particular circumstances of this case reinforce my view that Detective McGugan’s further exploratory and “confirming” measures, and his resulting seizure of the weapon during the warrantless search, were not “reasonable”.

[78] The reality is that the wrapped and protruding item noticed by Detective McGugan was not “going anywhere”, once the bedroom and house were cleared and secured pending police efforts to process the warrant application. In such cases, where the nature of the item was not apparent, steps should not have been taken to investigate and confirm Detective McGugan’s suspicions until the warrant had been obtained.

[79] As the weapon was not in “plain view”, its discovery and seizure went beyond the proper bounds of the warrantless police entry into 607 Millbank Drive; an entry otherwise justified by exigent circumstances to clear and secure the residence with a view to preserving and preventing the destruction of evidence, and ensuring officer safety.

[80] For the above reasons, the accused has satisfied me, on a balance of probabilities, that there was a constitutional infringement of Mr Melo’s right to be free from unreasonable search and seizure, pursuant to s.8 of the Charter, as far as the prohibited weapon is concerned.

ALLEGED CHARTER VIOLATION - MAGAZINE

[81] As outlined above, the magazine for the weapon was not located during the warrantless entry by police into 607 Millbank Drive. It was found, rather, during the subsequent police search of Mr Melo’s home pursuant to the warrant issued in response to the ITO and application submitted by Constable Lipskey.

[82] As indicated on its face, that ITO was prepared, submitted and processed pursuant to article 487 of the Criminal Code, which reads in part as follows:

487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act … has been or is suspected to have been committed ;

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence … ; [or]

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act …

(d) to search the building, receptacle or place for any such thing and to seize it …

[Emphasis added.]

[83] Defence counsel acknowledged that the relevant weapon magazine was located and seized during the course of a search carried out pursuant to a formal warrant, but essentially challenged validity of that warrant.

[84] In doing so, defence counsel did not suggest that the justice could not have issued the warrant based on the information disclosed on the face of the ITO. Rather, defence counsel went behind the form of the underlying ITO to attack or impeach the reliability of its content, and its inclusion of reference to evidence derived from the warrantless entry into Mr Melo’s home. Relying on such concerns, the defence submits that:

a. that the police had insufficient information to obtain a search warrant at the time of their warrantless entry at 607 Millbank Drive;

b. that evidence of the weapon seized during the warrantless entry (and in contravention of Mr Melo’s s.8 Charter rights) should not have been included in the ITO; and

c. that if one excludes demonstrably inaccurate and unreliable information from the ITO, along with information regarding evidence derived from the warrantless entry into 607 Millbank Drive, (i.e., mention of the weapon found in Mr Melo’s bedroom), the remaining facts set forth in the ITO did and do not contain sufficient evidence for a Justice, acting judicially, to determine that a warrant should issue.

[85] The principles relevant to such warrant validity challenges recently were reviewed, reiterated and summarized in detail by our Court of Appeal in R v. Sadikov, supra, (e.g., at paragraphs 37-38 and 81-88), and include the following:

• A “facial validity challenge” to the validity of a warrant requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant. The record examined on such a “facial review” of the warrant is fixed and limited to what is in the ITO; i.e., without any consideration of an “amplified or enlarged” record.

• A “sub-facial challenge” to the validity of a warrant goes behind the form of the underlying ITO to attack or impeach the reliability of its content. While such challenges involve and permit consideration of an “amplified” record, they do not expand the scope of review to permit the reviewing judge to substitute his or her own view for that of the authorizing judicial officer. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant. To make that determination, the reviewing judge must carefully consider whether sufficient reliable information remains in the amplified record; i.e., information that might reasonably be believed, on the basis of which the enabling warrant could have issued.

• Where the statutory standard for issuing a warrant is “reasonable grounds to believe”, (as it is in relation to s.487 of the Criminal Code, pursuant to which the warrant in this case was obtained), the standard does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability.

• The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued.

• It should be remembered that the authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO.

• Warrant review begins from a premise of presumed validity, and the onus of demonstrating invalidity therefore falls on the party who asserts it.

• The scope of warrant review is narrow. In particular, the review is not a de novo hearing of the ex parte application, and the reviewing judge does not substitute his or her view for that of the issuing judge. Rather, the standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence would be found at the specified time and place of search. Said in another way, the test is whether there was reliable evidence, that might reasonably be believed, on the basis of which the warrant could – not would – have issued.

• The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge. Evidence relied upon to amplify the record also must be evidence available to investigators at the time the ITO was sworn, and not information acquired later.

• The information to be excised from the ITO is information that is erroneous. Information to be excised from the ITO does not include information that is correct, information that simply contradicts other information, or information with which the reviewing judge does not agree.

• Warrant review requires a contextual analysis. In particular, inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant; however, they are neither a prerequisite to the review, nor dispositive of the review.

• It is not part of the reviewing judge’s mandate to determine whether he or she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge’s role to draw inferences, or prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued.

[86] In this case, I have considered carefully the suggestions and submissions of defence counsel, raised in cross-examination and argument, that a search warrant could not have issued in the circumstances of this case, but for inclusion of references to the weapon already found in Mr Melo’s bedroom, (located in violation of Mr Melo’s s.8 Charter rights), and numerous other suggested deficiencies, “inaccuracies” and “exaggerations” in the warrant application process, (and the information sworn by Constable Lipskey in particular).

[87] The suggested ITO deficiencies, inaccuracies and exaggerations relied upon by defence counsel were said to include such matters as indications:

i. that Mr Melo had told the officers that he was asked to clean up the casings;

ii. that Mr Melo refused to identify the person who had asked him to clean up the shell casings;

iii. that Mr Melo similarly refused to identify the person to whom he allegedly had given the shell casing; and

iv. that Mr Melo had been located in his residence only “moments after” reports that he had been collecting a shell casing at 579 Millbank Drive.

[88] In my view, the extent to which these various points constitute deficiencies, inaccuracies and/or exaggerations in the ITO varies greatly, particularly when one has regard to the amplified record before me in the blended voir dire and trial.

[89] On the first point, for example, cross-examination confirmed that none of the police officers testifying at trial could recall Mr Melo telling them that someone had asked him to pick up or clean up shell casings. Nor could they recall relaying such an indication to other officers, including Constable Lipskey. Nor do any of the written statements of the participating officers indicate their receipt of any such admission by Mr Melo. The ITO indication that Mr Melo “told the officers that he was asked to clean up the casings” therefore was not accurate. However, the amplified record indicates that, by the time of warrant application, the police had been provided with Mrs Fleming’s information, which would have included her observations about Mr Melo’s cellphone communications with another person or persons indicating that he was “getting it done”, and his statements to Mrs Fleming, while picking up shell casings, that he had an obligation to do it. Therefore, while the indication of a relevant admission to police was erroneous, there was information available to the police at the time of the warrant application to support a conclusion that Mr Melo, by his conduct and statements vis-à-vis Mrs Fleming, had acknowledged being asked to retrieve the shell casings. The ITO’s further express indication that the police were hoping to locate Mr Melo’s cellphone, in order to obtain corroborating information of relevant texts or calls, reinforces the conclusion that the police were focused on the information provided by Mrs Fleming about Mr Melo’s cellphone conduct and statements immediately before he embarked on efforts to retrieve shell casings. Thus, while the ITO may not have accurately described the circumstances of the suggested admission or to whom it was made, the inclusion of information in the ITO supporting a view that Mr Melo effectively had made such an admission was not entirely erroneous or without foundation. Inclusion in the ITO of such additional information or clarifications from the amplified record would have corrected the inaccuracies while generally leaving the essence of the suggested admission intact.

[90] On the second point, there seems to be nothing in the amplified record to support the ITO indication of available information that Mr Melo “refused to identify the person who asked him to clean up the casings”. At trial, the police witnesses were unable to recall or provide any information confirming that Mr Melo had ever been asked about that, let alone that he refused to provide such information in response to any questions about that. (Constable Lipskey indicated that, at the time of the ITO’s preparation, his source of that particular information was Detective McGugan, whom Constable Lipskey regarded as a highly reliable source of information, based on their years of working together. However, Detective McGugan indicated that his information about what Mr Melo may have been asked or may have said would have come from other officers, and by the time of trial, Detective McGugan had no relevant memories or notes in that regard. Nor is there any apparent reference to any such request or refusal in the various notes and police statements prepared shortly after the events in question.) All of this suggests that, while the indication of such a refusal may have been honestly conveyed to Constable Lipskey, who in turn then diligently incorporated it into the ITO, it was in fact an erroneous suggestion that should have been excised.

[91] On the third point, however, I disagree with defence counsel’s suggestion that the same is true of the ITO indication that Melo “refused to turn over the evidence which was removed by him and claimed that he gave it to a friend, who (sic) he also refused to name”. The record clearly indicates that, by the time of the warrant application, the police repeatedly had asked Mr Melo, (at the entrance to his home and again en route to the police station), to provide information about the location of the shell casing he admittedly had taken from the crime scene, and that this included questions about what Mr Melo had done with the round, and the person to whom he supposedly had given the item. In response, Mr Melo supplied neither the casing nor any further information to assist in identification of the person to whom the shell allegedly had been given. Although defence counsel disputes characterization of that response or lack of a response as a “refusal”, (as opposed to a professed inability to respond because Mr Melo claimed not to know the answers), it seems to me that the distinction is one of semantics rather than substance, and that the substance of the relevant ITO indication was essentially accurate. Whatever his reasons, Mr Melo was asked for certain very relevant information that he reasonably might be expected to have, but declined to provide it. Moreover, on this point, I note that, at the time of the warrant application, the notes and “will say” statement of Sergeant Stumpf both indicated that, when asked immediately prior to arrest to indicate the person to whom he was said to have given the shell casing, Mr Melo provided “no response”, which provides a stronger basis for characterization of Mr Melo’s reaction to these police inquiries as a “refusal”. At most, inclusion of a reference to a “refusal” therefore represents the inclusion of information available at the time of the warrant application, albeit information perhaps contradicted by other available information. As noted above, contradictions alone are not reason to exclude information from an ITO.

[92] On the fourth and final point, defence counsel focused on Constable Lipskey’s comment in paragraph 11(b) of the sworn ITO, suggesting that “Moments after MELO was reported to be collecting the shell casing at 579 Millbank Drive he was located by police at his residence next door at 607 Millbank Drive”. I agree with defence counsel that, having regard to any normal use of the term “moments”, this suggested characterization was quite inaccurate insofar as the comment, read in isolation, might suggest to the reader that Mr Melo was picking up shells only moments before he was found in his residence by the police. Again, the time interval between the first reports of Mr Melo retrieving shells, (noted in the police call notes at 12:27pm), and his location by police at his residence, (at 1:15pm), clearly involved not “moments” but “minutes”; approximately 48 minutes, and this was acknowledged by Constable Lipskey in cross-examination. In fairness, however, it perhaps also should be noted that the relevant ITO comment, as worded, actually refers to Mr Melo being located at his residence within moments of reports that he was picking up shells, (i.e., rather than to his being located there within moments of his picking up shells), and, as noted above, there appear to have been multiple and successive reports of Mr Melo’s involvement received by the police before they went to his residence. (Again, these included not only indications received from the telephone complainant, but also those noted by Constable Munro to have taken place between the time of her arrival and the arrival of Sergeant Stuckey and Detective McGugan prior to clearing of 579 Millbank Drive, and further police discussions with local residents about Mr Melo noted by Constable Bolger to have taken place after efforts to clear 579 Millbank Drive but before the police went to Mr Melo’s address.) The relevant ITO comment does not clarify which of the multiple reports was being referenced. More importantly, however, any suggestion that the ITO comment in question was intended to mislead, or reasonably could have had that effect, is negated, in my view, by review of the ITO as a whole. As emphasized by the Court of Appeal, warrant review requires a contextual analysis, and the entire context therefore must be considered. In this case, the questionable reference to Mr Melo being located at his residence “within moments” of reports that he was picking up shell casings does not stand in isolation. To the contrary, the ITO also includes express reference to the report received by police, at 12:27pm, indicating that youths including Mr Melo “had arrived at the scene and were picking up shell casings”, followed by ITO indications of police arrival, and the steps then taken by police to inspect the crime scene, receive further citizen complaint information, and clear and secure the residence at 579 Millbank Drive, before police then attended at 607 Millbank Drive to speak with the accused and arrest him at 1:17pm (sic). In my view, anyone reading the ITO as a whole accordingly could and would not have been under any misapprehension that Mr Melo was located at his residence “within moments” of picking up any shell casings at the crime scene.

[93] For the above reasons, I find that most of the suggested deficiencies, inaccuracies and exaggerations in the ITO are relatively minor, when viewed in the overall context of the ITO, and/or actually find support or justification in the amplified record, capable of correcting and clarifying what I would regard as good faith errors or disputed characterizations by the police.

[94] Nothing inherent in the suggested errors or inaccuracies, or the extended cross-examination of Constable Lipskey or the other police witnesses, satisfied me that the police were acting in bad faith or intending to mislead the justice dealing with the warrant application, as suggested by defence counsel.

[95] Rather, my overall review of the circumstances and amplified record strongly suggests that, to the extent there were distortions and inaccuracies in the ITO, this likely resulted from the relatively large number of officers involved in the investigation of this matter, and their pooling and repetition of information that was honestly conveyed and documented, (with Constable Lipskey doing his best to then expressly indicate the manner in which he received or obtained the information conveyed in the ITO, without any alterations or omissions designed to increase the likelihood of a warrant), but which increasingly may have been information effectively received on a second, third or fourth hand basis.

[96] In any case, I am of the view that, even if one were to excise the particular indications and information that the defence says should not have been before the issuing judge, (including all reference to the weapon found during the warrantless search, any suggestion that Mr Melo had admitted to police that he was asked to pick up shell casings, any suggestion that Mr Melo refused to disclose the name of any person or persons who had asked him to pick up shell casings or to whom he had given the shell casing, and any suggestion that the time between Mr Melo picking up shell casings and his location in his house was anything less than 48 minutes), the amplified record contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued.

[97] In particular, as noted above, the ITO indicates that, while an added purpose of the desired warrant was desired assistance in recovering ammunition and the required magazine for the AK-47 style automatic rifle located in the residence, the police also believed that a search of 607 Millbank Drive would result in location of shell casings related to the shooting investigation at 579 Millbank Drive and to Mr Melo’s apparent obstruction of justice, and cellular phones related to the latter.

[98] In that regard, the ITO and amplified record contain, at a minimum, the following information available to the police at the time of the warrant application:

• that there clearly had been a significant shooting incident at 579 Millbank Drive;

• that Mr Melo definitely had taken evidence relevant to that shooting from that crime scene, (i.e., at least one shell casing);

• that Mr Melo was seen, immediately after leaving the crime scene with that evidence on his person, within an extremely short distance from his residence at 607 Millbank Drive and heading towards that residence;

• that police located Mr Melo inside that residence approximately 48 minutes later; and

• that Mr Melo did not have the shell casing on his person when he came to the door of that residence to speak with police.

[99] In my view, such circumstances alone form sufficient credible and reliable evidence permitting a justice to find “reasonable grounds to believe” that an offence has been committed, (the shooting if not also Mr Melo’s obstruction of justice), and that evidence of that offence, (the shell casing if nothing else), would be found in Mr Melo’s residence.

[100] Again, the defence emphasized the absence of evidence indicating or confirming that Mr Melo had proceeded directly to his residence from the crime scene with the shell casing, and/or that the shell casing was or remained inside his residence at the time of the warrant application.

[101] In that regard, for example, the defence suggested in cross-examination and argument that, in the interval between leaving the shooting crime scene and being located in his residence by the police, Mr Melo might very well have gone elsewhere, turned the shell casing over to another person as he claimed, and/or that the shell casing otherwise might already have been discarded or destroyed.

[102] In my view, however, the available information was sufficient to establish “reasonable grounds to believe” that an offence had been committed and that there was evidence to be found at the place of the proposed search, and that was/is enough.

[103] A warrant therefore could have issued, authorizing the police to search 607 Millbank Drive for the shell casing, if nothing else, and defence counsel acknowledged that a properly authorized search of the residence for an object the size of a shell casing inevitably would have led to police discovery of the much larger magazine for the weapon, (and the weapon itself, had it still been located in the residence and previously undiscovered at the time of a warranted search for the shell casing).

[104] In my view, the defence accordingly has not met its onus of demonstrating invalidity of the warrant, in any relevant or meaningful way, that in turn would satisfy the defence onus of proving, on a balance of probabilities, that the weapon magazine was obtained by police through constitutional infringement of Mr Melo’s s.8 Charter rights.

[105] Before leaving that issue, I note, for the purpose of clarity, that my conclusion about the statutory standard of “reasonable grounds to believe” being met was in no way dependent on the additional testimony, offered by Constable Lipskey during cross-examination, that available information effectively relied upon by police in seeking a warrant included police experience that people who improperly take or remove property then frequently take it home – in turn suggesting a high probability that Mr Melo had taken the pocketed shell casing to his home.

[106] Relying on the very recent Supreme Court of Canada decision in R. v. Sekhon, 2014 SCC 15, [2014] S.C.J. No. 15, defence counsel argued at the close of trial that this particular evidence of Constable Lipskey should be treated as prejudicial and inadmissible opinion evidence that failed to satisfy “the Mohan criteria”, including relevance and necessity, and had no probative value. (In that case, which required a determination as to whether the Crown had proven knowledge as an essential element of the alleged importation and possession of cocaine for the purpose of trafficking, the trial judge was faulted for admitting and relying upon police testimony that, in the officer’s many years of experience, he had never encountered a courier transporting such large quantities of cocaine without knowing of the drugs in question.)

[107] Having reviewed and considered counsel submissions and the particular circumstances of R. v. Sekhon, supra, I question whether the rationale for a decision focused on the requirements of evidence admissible to prove guilt beyond a reasonable doubt should be transferred and applied readily to a quite different context, where the court is determining whether the circumstances meet the much lower standard of “reasonable grounds to believe” required to obtain or validate a warrant.

[108] In the circumstances of this particular case, however, it is not really necessary for me to decide after the fact whether Constable Lipskey’s evidence concerning the frequent habits of persons taking property is admissible. Again, I find satisfaction of the relevant statutory standard of “reasonable grounds to believe”, even without that additional evidence of Constable Lipskey.

REQUEST TO EXCLUDE EVIDENCE – 24(2) ANALYSIS

[109] For the reasons set out above, I have found that the weapon underlying counts 3, 4 and 7 of the indictment was obtained by police through a constitutional infringement of Mr Melo’s s.8 Charter rights, but that the same is not true of the weapon magazine underlying counts 2, 5 and 6 of the indictment.

[110] As evidence of the weapon was obtained in a manner that infringed Mr Melo’s right to be free from unreasonable search or seizure, it is necessary to consider whether, pursuant to s.24(2) of the Charter, it should be excluded from evidence because, having regard to all the circumstances, its admission in these proceedings would bring the administration of justice into disrepute.

[111] I therefore turn to the three-pronged analysis clarified and confirmed by authorities such as R. v. Grant, supra, outlined above, starting with seriousness of the Charter-infringing conduct that led to discovery of the weapon.

[112] In that regard, relevant considerations in this particular case include, I think, the following:

• Although it had lasting implications, the infringement of Mr Melo’s s.8 Charter rights stemmed from conduct of Detective McGugan that was relatively fleeting. In particular, given my analysis and findings above, the conduct resulting the violation of Mr Melo’s Charter rights was not the entirety of the warrantless entry into 607 Millbank Drive, (which itself lasted only 10-15 minutes), but the brief actions carried out by Detective McGugan to explore and confirm the nature of the wrapped object, only a small portion of which was protruding from behind the dresser. As described to me at trial, those particular actions, which strayed beyond the purposes of the otherwise legitimate and justified warrantless entry, realistically would have occurred in less than a minute.

• Although the relevant actions of Detective McGugan were “deliberate” in the sense he meant to explore and confirm the nature of the wrapped object sticking out from behind the dresser, there was nothing in the evidence before me to suggest it was premeditated or done in bad faith; e.g., that Detective McGugan or the other officers were intent on using the pretext of clearing the house of persons as an excuse to embark on a warrantless search for evidence. The short duration of the entire entry, the failure of the police to locate or seize other relevant items during the warrantless entry, (including not only the magazine and documents confirming Mr Melo’s residence in the home, but also a cellular phone which the ITO says was in plain view during the warrantless entry), suggest otherwise. Similarly, as Detective McGugan was quite aware of the intention to secure and execute a formal warrant after the residence was cleared and secured, and would have known that nothing would occur to disturb the wrapped object in the interim, this supports an inference that he had a sincere albeit mistaken belief that the item was indeed in “plain view”, justifying his immediate actions vis-à-vis that object, prior to the formal warrant being obtained.

• Although the weapon itself may not have been in “plain view”, (for the reasons outlined above), the wrapped object was clearly visible, in circumstances at least giving rise to a suspicion, based on actual observations, that the wrapped item may have been an unsecured and possibly loaded weapon. The inherently dangerous nature of such an item might, in turn, naturally foster an inclination to take immediate measures to render the item safe if/as necessary.

[113] On balance, having regard to such considerations, I am inclined to regard the seriousness of the constitutional infringement in this case as being on the lower end of the scale, which in turn weighs in favour of the evidence being admitted rather than excluded.

[114] I turn next to consideration of the second aspect of the s.24(2) analysis highlighted by R. v. Grant, supra; i.e., the extent to which the relevant Charter breach undermined Mr Melo’s protected interests.

[115] In that regard, there is no question that the common law has always placed a high value on the security and privacy of the home, and that the legal status of the privacy of the home significantly increased in importance with the advent of the Charter. An unlawful search of a person’s dwelling house therefore should be viewed as a very serious violation of that person’s s.8 Charter right, which militates strongly in favour of exclusion of evidence found during the unlawful search. See R v. Silveira, supra, at paragraphs 41 and 46; and R. v. Feeney, supra, at paragraphs 43 and 77.

[116] In this case, while initial entry of the police into Mr Melo’s residence may have been justified by exigent circumstances, discovery of the weapon resulted from the otherwise lawful entry temporarily digressing into what was really an unlawful search of Mr Melo’s private dwelling, (insofar as Detective McGugan’s actions to explore and confirm the nature of what he initially observed took the matter outside proper application of the “plain view” doctrine). As that inherently was a serious violation of Mr Melo’s right to be free from unreasonable search and seizure, that normally weighs heavily in favour of excluding evidence of the weapon.

[117] I turn next to the third required aspect of the s.24(2) analysis highlighted by R. v. Grant, supra: i.e., society’s interest in the adjudication of a case on its merits.

[118] In that regard, I begin by noting the obvious; i.e., that evidence of the weapon itself is absolutely essential to the Crown’s case in relation to all charges relating to the weapon. Without evidence of the weapon, there is simply no basis for the charges in Counts 3, 4 and 7 of the indictment, and they clearly would have to be dismissed.

[119] I also accept and agree with the Crown’s submission that the weapon itself is evidence that is reliable and “non-conscriptive”, in the sense that Mr Melo was not compelled to participate in its creation or discovery, (for example, in contrast to cases where an accused is compelled to incriminate himself by means of a statement, the use of his body, or his production of bodily samples). The weapon existed independently in a form useable by the state. In that respect, its admission in evidence would not render the trial unfair. (See R. v. Feeney, supra, at paragraphs 62-64.)

[120] The Crown also has satisfied me, on a balance of probabilities, that the weapon would have been discovered in any event by alternative non-conscriptive means, which also favours its admission from a fairness perspective. (Again, see R. v. Feeney, supra, at paragraphs 62-64.)

[121] In particular, for the reasons outlined above in relation to my warrant review analysis, I believe a warrant could and would have been issued, (even on the basis of an ITO excised so as to exclude all the information in respect of which the defence expressed concern), permitting the police to at least search Mr Melo’s residence for the missing shell casing. As acknowledged by defence counsel, a police search directed towards an object the size of a shell casing would have resulted in police discovery of the much larger prohibited weapon found in Mr Melo’s bedroom.

[122] For all these reasons, society’s interest in the adjudication of a case on its merits, (the third required consideration in the analysis mandated by R. v. Grant, supra), therefore heavily favours admission of the weapon in evidence.

[123] The final required step in s.24(2) Charter analysis is a balancing of the above factors and considerations, in order to determine whether, having regard to all the circumstances, evidence of the weapon found in Mr Melo’s bedroom should be excluded because its admission in these proceedings would bring the administration of justice into disrepute.

[124] As noted above, there is no precise rule as to how one should balance the various considerations raised by the three-pronged s.24(2) analysis mandated by the Supreme Court of Canada. As that court emphasized in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, at paragraph 36:

The balancing exercise mandated by s.24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence of each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[125] In my view, formed after careful consideration of the factors considered in detail above, the balance in this case tips against exclusion of the weapon from evidence.

[126] For the reasons outlined at length above, the seriousness of the constitutional infringement is at the lower end of the scale, and society’s interest in adjudication of a case on its merits strongly favours admission of the evidence.

[127] Moreover, as far as offsetting considerations under the second prong of the mandated analysis are concerned, while an unlawful search of a private dwelling inherently constitutes a serious violation of the right to be free from unreasonable search and seizure, which in turn normally militates heavily in favour of evidence exclusion, I think one must not lose sight of the realities in this case when considering the impact of admitting or excluding evidence on the long-term repute of the administration of justice.

[128] In particular, while “unlawful search of a private dwelling” might normally connote images of police effecting such a search through unlawful warrantless entry into a person’s home, in this case police presence in Mr Melo’s private dwelling and bedroom generally was lawful, despite warrantless entry, for the detailed reasons set forth above.

[129] In other words, when considering the impact of this particular Charter breach on the long-term repute of the administration of justice, and concern that the public might possibly think that admission of the weapon into evidence indicates that the general sanctity of one’s home really counts for little in our system of justice, the relevant Charter breach cannot be isolated from its context. The public therefore also would need to take into account that police presence in the home and bedroom was lawful, and that the Charter breach was limited to the incremental steps taken by Detective McGugan to explore the nature of the wrapped item seen behind the dresser.

[130] Having regard to all the particular circumstances of this case, and all of the factors and considerations outlined above, I find it difficult, on balance, to think that admitting the weapon into evidence would bring the administration of justice into disrepute in the long term. To the contrary, I rather think exclusion of the evidence would do so.

Conclusions

[131] In the result, my analysis and conclusions may be summarized as follows:

i. The Crown has proven to my satisfaction, beyond a reasonable doubt, all elements of the obstruction of justice charge set forth in Count 1 of the indictment. Mr Melo took and withheld evidence pertaining to the police firearms investigation, which conduct had a tendency to obstruct, pervert or defeat the course of justice, and the circumstances indicate that was Mr Melo’s intention.

ii. In relation to all counts on the indictment relating to the prohibited weapon, (namely counts 3, 4 and 7 of the indictment), it is acknowledged that the Crown has proven all elements of the offences charged, if evidence of the weapon is not excluded because of an alleged breach of Mr Melo’s section 8 Charter right to be free from unreasonable search and seizure, warranting its exclusion pursuant to s.24(2) of the Charter. In that regard:

a. I find that that there was a violation of Mr Melo’s section 8 Charter rights, insofar as the weapon is concerned, not because the weapon’s discovery occurred during a warrantless entry into Mr Melo’s residence that was unlawful. To the contrary, I find that the entry for exigent circumstances to preserve evidence was lawful. However, Mr Melo’s section 8 Charter rights were violated because the limits of lawful entry were exceeded by the specific police conduct immediately preceding location of the weapon. In particular, I find that the weapon was not in “plain view”, but was instead located through what really was a warrantless search of Mr Melo’s residence or, at least, certain aspects of that residence.

b. Although the weapon was located by the police in a manner that infringed or denied Mr Melo’s right to be free from unreasonable search and seizure, pursuant to section 8 of the Charter, I am not persuaded that, having regard to the considerations set forth in R. v. Grant, supra, it should be excluded from evidence pursuant to s.24(2) of the Charter.

c. If the weapon remains in evidence, all elements of Counts 3, 4 and 7 have been established,

iii. In relation to all counts on the indictment relating to the prohibited magazine, (namely counts 2, 5 and 6), it similarly is acknowledged that the Crown has proven all elements of the offences charged, if evidence of the magazine is not excluded because of an alleged breach of Mr Melo’s section 8 Charter right to be free from unreasonable search and seizure, warranting its exclusion pursuant to s.24(2) of the Charter. In that regard:

a. I find that that there was no violation of Mr Melo’s section 8 Charter rights, insofar as the magazine is concerned. The magazine was found pursuant to execution of a formal search warrant, which could have been granted, having regard to the amplified record, and in a manner destined to result in discovery of the magazine, even if all references to the previously discovered weapon or other aspects of the earlier warrantless entry into the residence had been excluded.

b. As there was no violation of Mr Melo’s section 8 Charter rights, insofar as the magazine is concerned, it unquestionably remains in evidence, such that all elements of counts 2, 5 and 6 have been established.

[132] Stand up please Mr Melo.

[133] For the reasons set out above, I find you guilty of all counts set forth on the indictment.

[134] Despite that formal finding, after receipt of further submissions from the Crown in relation to the application of the principles emphasized by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729, (submissions with which the defence expressed agreement), the charges in relation to counts 6 and 7 of the indictment shall be conditionally stayed, while convictions shall be entered in relation to the remaining counts of the indictment.

[135] The verdicts should be noted and documented accordingly.

JUSTICE I. F. LEACH

Released: (Orally) April 17, 2014