ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-70000374-0000

DATE: 20150924

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN ALCOTT

Accused

Jennifer Armstrong, for the Crown

Frank Bernhardt, for the Accused

HEARD: June 9, 2015

PUBLICATION RESTRICTION NOTICE

Pursuant to s. 539 of the Criminal Code, the evidence taken at the preliminary hearing in this matter, as well as this application and ruling shall not be published in any document or broadcast or transmitted in any way before such time as, with respect to the accused, he is discharged, he is ordered to stand trial or the trial is ended.

B.A. ALLEN J.:

REASONS FOR DECISION

(Application, s. 24(2) of the Charter, admissibility of excluded evidence)

BACKGROUND TO APPLICATION

[1] The accused Jordan Alcott was charged on October 24, 2012 on nine firearms offences. Under a search warrant issued on Mr. Alcott’s home, the police seized a firearm described as a 9 mm semi-automatic blank firing pistol with the serial number obliterated. It contained a round of ammunition in the chamber and two rounds in the magazine.

[2] The defence challenged the validity of the search warrant. The defence brought an application under s. 8 of the Charter to have the firearm excluded on the basis the police breached Mr. Alcott’s right to be secure from an unreasonable search.

[3] By a decision released on June 21, 2015, I found the search warrant invalid and thus the search unlawful and ordered the firearm and ammunition excluded. The Crown now seeks under s. 24(2) of the Charter to have the firearm and ammunition admitted on the basis that exclusion of the evidence will bring the administration of justice into disrepute.

APPLICATION OF SECTION 24(2) OF THE CHARTER

The Inquiries

[4] A search and seizure conducted outside the prescribed standards constitutes a violation of a person’s s. 8 rights.

[5] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of a person’s Charter rights if the admission of the evidence would bring the administration of justice into disrepute. The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) sets down the inquiries that should be undertaken to determine whether to exclude or admit evidence. With the following three inquiries in mind, the application court must balance the effect that admitting the evidence would have on society’s confidence in the justice system.

[6] The three inquiries have been stated as follows: (a) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (b) the impact of the breach on Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (c) society’s interest in the adjudication of the case on its merits.

The First Inquiry

[7] The seriousness of the breach falls along a spectrum: “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.” On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 72 and 74 (S.C.C.).

[8] Where the police wilfully or flagrantly disregard the Charter the court may be required to dissociate itself from such conduct. The police are obligated as state agents charged with the authority to uphold those rights. Hence, police conduct that deliberately violates Charter protected rights tends to attract an order for the exclusion of evidence seized: R. v. Grant, para. 75.

[9] I do not find police conduct in the case before me showed undue disregard or neglect for Mr. Alcott’s rights particularly in view of the sensitivity that surrounds police entering a private home in the early morning hours.

[10] When the police arrived at the house, they knocked on the door. They did not force entry or batter the door as frequently happens when firearms are involved. Mr. Alcott’s mother answered the door. The police encountered a large barking dog and they allowed the mother to put the dog away before they entered. The mother opened the door and allowed the police to enter. The manner of entry was far from unreasonable, especially in view of the potential danger involved in executing a warrant to seize a firearm from the home. This conduct favours admissibility.

[11] There are two further factors that bode in favour of admissibility.

[12] The police were legally authorized to search Mr. Alcott’s home on the strength of a search warrant issued by an independent judicial officer. The search, therefore, cannot be said to have been unjustified.

[13] I excluded the firearm based on deficiencies in the information from a confidential informant in terms of the shortcomings in the information’s reliability, the lack of a compelling quality in the information and the insufficient corroboration of the information. However, I found no suggestion any of the information on the warrant that was in any way deliberately misleading or deceptive. I find the faults in the warrant were not the result of carelessness. These factors signal good faith on the part of the police and bode in favour of admissibility which I find reduces the need to dissociate from the state conduct: R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, at paras. 28 and 29 (Ont. C.A.).

[14] As the Court of Appeal stated in R. v. Blake:

The police were clearly aware of the need to obtain a warrant and proceed accordingly. They cannot be said to have acted negligently or in ignorance of any applicable Charter requirements. A finding of “good faith” obviously reduces the need for the court to disassociate itself from the state conduct that resulted in the infringement, and supports admissibility of the challenged evidence.

R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48, paras. 24 and 25 (Ont. C.A.).]

[15] In R. v. Rocha I regarded the police conduct as being on the more serious end of the spectrum, pointing to exclusion, due to factors that are distinguishable from the case at hand. In that case, the informer’s criminal record was not placed before the issuing court which left that court with incomplete information in its decision to grant the warrant. Also troubling in R. v. Rocha was that there were also deceptive and misleading information and areas of careless drafting in the warrant.

[16] In conclusion, I find the police conduct to have been in good faith and in accordance with the law. As the court in R. v. Blake found, the conduct of the police cannot be placed anywhere on the continuum of misconduct as set out in R. v. Grant: R. v. Blake, at para 25.

The Second Inquiry

[17] The second inquiry into the seriousness of the impact of the breach on the Charter-protected interests of an accused requires an assessment of the extent to which the breach undermined the interests protected by the right infringed.

The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant, para. 76.

R. v. Grant, para. 78

[18] The Crown does not dispute the impact on Mr. Alcott’s rights of the police entering Mr. Alcott’s private dwelling in the early hours of the morning.

[19] It is well established that the second inquiry is founded on a cherished societal expectation that people should be free to relax in the comfort and protection of their homes without fear of unwarranted interference by state agents. As stated in R. v. Grant:

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

[R. v. Grant, at para 78.]

[20] The police searched Mr. Alcott’s home, including his bedroom, a very private area of a home. Intrusions by state agents into more private domains such as homes meet with more critical scrutiny and are considered more serious breaches than interferences in less private spheres: R. v. Grant, para. 76. I also considered a further factor. The police interfered in Mr. Alcott’s private space on the word of an untested informant. This, I find, has a compounding effect on the seriousness of the breach. Having said that, however, I find the more restrained manner of entry into the home has a tempering effect on the outcome of this inquiry.

[21] In conclusion, while I find the intrusion into Mr. Alcott’s home was on the more intrusive end of the spectrum, pointing toward inadmissibility of the firearm, it was not on the scale of the most profound intrusion.

The Third Inquiry

[22] A central focus of the third inquiry is the seriousness of the offence.

[23] R. v. Harrison addressed the application court’s task on the third inquiry. In that case, the court found that a large quantity of drugs procured through Charter violations to be highly reliable. There is a similar consideration with the firearm found in Mr. Alcott’s home. The firearm offers conclusive proof of Mr. Alcott’s knowledge and possession. As the Supreme Court of Canada held, that type of evidence is critical to the trier of fact’s search for the truth at trial: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 81 and 82 (S.C.C.).

[24] The firearm seized was a loaded, prohibited firearm, a modified 9 mm semi-automatic blank firing pistol with ammunition. It was modified so as to be capable of discharging live ammunition and being fatal to human life. Other courts have recognized the risk posed to people and communities by persons with handguns and have stressed the importance of police efforts to take them off the streets: R. v. Clayton (2005), 2005 16569 (ON CA), 194 CCC (3d) 289; 27 CR (6th) 197, at para. 41 (Ont. C.A.); aff’d at 2007 SCC 32, [2007] 2 S.C.R. 725 (S.C.C.).

[25] R. v. Harrison cautions, however, that the application court should avoid over emphasizing the seriousness of the offence. The court observed that the seriousness of the offence cuts both ways. Serious consequences to our justice system can result from a failure to prosecute a serious crime because critical evidence was excluded. But what must also be considered is the longer term effect on the justice system of prosecuting a crime where the evidence was procured through serious violations of an accused's rights. This sentiment is expressed in the following passage:

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus.

[R. v. Harrison, supra, at para. 84.]

[26] Without the firearm, the Crown will have no case. There is no evidence the Crown can rely upon at trial outside that which was recovered through the breach. The firearm has strong probative value and weighed against this is the seriousness of the violation of the Charter- protected right. When I weigh these considerations I find, on balance, that society’s interests in adjudicating the case on its merits are best served by allowing the firearm into evidence.

CONCLUSION

[27] The final step in determining the admissibility of the firearm requires a balancing of the three R. v. Grant factors. The court must engage in a qualitative balancing of the three factors, a weighing that has no mathematical formula. It is not simply a question in a particular case of looking at whether the majority of the factors favour exclusion. The weighing must consider the effect that admitting the evidence would have on the long-term repute of the administration of justice: [R. v. Harrison, at para.36].

[28] I find that while the impact on the Charter right to privacy in Mr. Alcott’s home was serious, the conduct of the police cannot be faulted in any meaningful way. They did not enter in an unduly aggressive manner when this might have been warranted with a warrant for a firearm. I found the police acted in good faith and with no deliberate or careless disregard of the rules or Mr. Alcott’s rights. I do not find their actions were such as would foster public disapproval. Again, possession of a prohibited weapon capable of taking human life is a serious offence. Its inclusion is critical to the truth-seeking function and the Crown’s ability to move this matter to trial.

[29] I find in weighing the three factors the balance tips in favour of admitting the firearm.

DISPOSITION

[30] The 9 mm semi-automatic blank firing pistol with blank ammunition is admitted.

B.A. Allen J.

Released: September 24, 2015