ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0079
DATE: 2015-09-04
B E T W E E N:
Her Majesty The Queen
Jane-Ann McGill, for the Crown
- and -
Arielle Angela Ritch and Joshua Michael Mynott,
Gil Labine, for the Accused, Arielle Ritch
George Joseph, for the Accused, Joshua Mynott
Accused
HEARD: June 23, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Applications To Exclude Evidence
Pursuant to Section 24(2) of the Canadian Charter of Rights and Freedoms
Overview
[1] Police officers conducted a warrantless search of an apartment occupied by Arielle Ritch and Joshua Mynott. Within the apartment the officers found an injured dog and charged Ms. Ritch and Mr. Mynott with “animal cruelty” contrary to s. 445.1(a) of the Criminal Code. The police allege that both stated that they did not possess any animals and charged both with obstructing a peace officer contrary to s. 129(a). Since Ms. Ritch was bound by an undertaking which required her to abstain from contact with Mr. Mynott she was also charged with breach of undertaking contrary to s. 145(3).
[2] Mr. Mynott and Ms. Ritch have brought applications to exclude evidence (the dog, any statements made by them, and Ms. Ritch's presence with Mr. Mynott) pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis of unreasonable search and failure to inform of right to counsel.
[3] The issues are:
Was the evidence obtained in violation of the Charter rights of the accused?
If so, should the evidence be excluded under s. 24 (2) of the Canadian Charter of Rights and Freedoms?
[4] A "blended" voir dire was held to determine the admissibility of the evidence.
Background
[5] Four members of the Thunder Bay Police Services testified.
[6] For the most part, the facts are not in dispute.
[7] During the early evening of January 22, 2014, the Thunder Bay Police Service received a call regarding suspected animal abuse in a residential unit at a subsidized housing apartment building. Upon arrival, the two responding officers, Constables Shoppoff and Tryvainen, spoke to the complainants who advised them that they had heard a dog "whining" or "yelping" from a nearby apartment. They also advised the officers that they had heard a male voice say "I am sick of this dog eating my food" and the sound of "flesh hitting bone". The complainants stated that these sounds came from Apartment No. 701.
[8] The officers went to Apartment No. 701 and stood outside the door. They listened. They could hear movement and a voice or cough within the apartment. Both officers testified that they knocked on the door and that there was not any response. They did not hear any further noise from the apartment. The officers knocked again and it was either on this or the third knock that they identified themselves as police officers. They knocked again and again identified themselves as police officers.
[9] In response, the door was opened slightly and a male appeared who told them that he was naked and would have to put on clothing. The male closed the door. Either at that point or before, the officers said that they were there to check on the welfare of an animal. Both constables testified that the male denied having animals.
[10] Once the door closed, the officers heard the sound of the door being locked. Both officers testified that the male said that they would need to get a warrant to enter the apartment. Constable Tryvainen testified that the male said "show me your warrant or go away".
[11] Constable Tryvainen, the Senior Officer, then radioed for "backup" and for Sergeant Gombola. He testified that the Sergeant's presence was necessary to authorize a "breach" or forcible entry. Five or ten minutes elapsed before the arrival of two more officers and Sergeant Gombola.
[12] Officers Shoppoff and Tryvainen confirmed that they did not hear any sounds coming from Apartment No. 701 indicating that any person or animal was in distress from the time they arrived at the door of Apartment No. 701 until the other officers arrived.
[13] Sergeant Gombola and Constables Hay and Battison arrived. The demand for entry was repeated and the male inside the apartment repeated that a warrant was required. Constable Shoppoff testified that the male stated three or four times that the police would require a warrant to enter his apartment.
[14] Sergeant Gombola authorized a forcible entry and the police announced that if the door was not opened they would force the entry. Constable Tryvainen testified that the police announced "if he did not open the door we would break it".
[15] Constable Shoppoff then kicked the door at the lock. The male then said "okay, okay" and unlocked the door. The officers entered the apartment. The male, who was identified as the accused Mynott, was naked. The officers handcuffed Mr. Mynott and placed him naked on a couch for "officer safety". Constable Tryvainen stayed with Mr. Mynott and the other officers began to search the apartment. Constable Tryvainen advised Mr. Mynott of his detention. Mr. Mynott denied that there were animals in the apartment.
[16] Constable Hayes entered the bedroom and found Ms. Ritch laying in bed under covers. She appeared to be naked. He testified that he asked her whether there were any animals, in particular a dog, in the apartment and he reported that her answer was that she was not aware of a dog in the apartment.
[17] Constable Hay then opened another door in the bedroom and found an injured dog. The officers described the dog as malnourished and with various apparent injuries. Photographs taken by the police were filed as exhibits. The photographs show the dog with blood dripping below its right eye, blood coming from around its nose and an injury with a great deal of blood around the left eye. The dog appears quite thin in the photographs.
[18] Constable Tryvainen testified that Mr. Mynott then said that he found the dog in that condition the day before and that he was going to get help for it.
[19] Constable Tryvainen arrested Mr. Mynott for "animal cruelty" and "obstruct police" and advised him of his right to counsel and gave him the caution.
[20] It is not clear who arrested Ms. Ritch but she was also handcuffed and charged with the same offences. It is not clear who handcuffed her and who, if anyone, cautioned her and advised her of her right to counsel.
[21] The Crown did not lead any evidence about the procedure to obtain a warrant or the time required to obtain a warrant to search a residence. In cross-examination, Constable Shoppoff testified that there was some discussion about a warrant but he could not remember what was said about a warrant. He had been a police officer for only one month at the time. He testified that he did not know how long it would take to get a search warrant.
[22] In cross-examination, Constable Tryvainen testified that he did not remember any discussion about getting a search warrant. He also has never applied for a search warrant and did not know how long it would take to get a search warrant.
[23] In direct examination, Sergeant Gombola testified that he did not believe that there was a discussion about a search warrant with the other officers. He acknowledged that Mr. Mynott had insisted on a warrant but testified that, with the information received from the complainant, "he did not find it in the best interest to apply for a warrant that may or may not take a period of time". In cross-examination, he testified that it could take 30 minutes "possibly" or "at times longer" to obtain a search warrant. He also testified that it could take less than 30 minutes.
Positions of the Parties
[24] The Crown concedes that the opening of the door by Mr. Mynott in response to the kick does not turn this into an entry on consent.
[25] The Crown concedes that this was a warrantless search and that the onus is upon the Crown, on a balance of probabilities, to establish that the search was not unreasonable. The Crown argues that there was no Charter violation because the exigent circumstances justified warrantless entry into the apartment. The Crown relies upon R. v. Ringler, 2004 ONCJ 104.
[26] In the alternative, if I find a Charter violation, the Crown argues that consideration of the third factor from R. v. Grant, 2009 SCC 32 - society's interest in the adjudication of the case on its merits - should lead the Court to conclude that the evidence should not be excluded.
[27] The Crown further argues that any statements made were made prior to detention and therefore admissible.
[28] Counsel for Mr. Mynott and Ms. Ritch argue that the right to enter a dwelling without a warrant pursuant to exigent circumstances is a special power that must be limited to truly exigent circumstances necessary to protect human life. They argue that Ringler is distinguishable on the facts.
[29] Both counsel also argue that any statements made by the accused were made after they were detained and prior to being cautioned and advised of their rights.
The Law
The Warrantless Entry
[30] "By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only when necessary": R. v. Kelsy, 2011 ONCA 605, at para. 35. The Court of Appeal also states in Kelsy, at para. 24:
Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstances appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges when there is a concern for public or police safety." [Emphasis added].
[31] While warrantless entry may be justified in emergency circumstances such as a "cut off" 911 call the "intrusion must be limited to the protection of life and safety": R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, at para. 22, emphasis added.
[32] Section 529.3 of the Criminal Code, which sets out the authority to enter a dwelling without warrant to arrest defines exigent circumstances as including circumstances where the peace officer "has reasonable grounds to suspect that entry into the dwelling house is necessary to prevent imminent bodily harm or death to any person" (emphasis added).
[33] I also note that entry without warrant is justified under the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 when an inspector or agent of the Society has reasonable grounds to believe that there is an animal that is an immediate distress in any building or place, other than a dwelling.
[34] Ringler is clearly distinguishable on its facts. In that case the Society agent was invited into the house by the accused who was concerned for the health of his animals. While inside the residence with permission, the Society agent observed animals in distress. It was not, therefore, a warrantless entry. The re-entry into the house was made necessary by the arrest of the accused outside the house. The exigent circumstances were, in part, caused by the fact that there was no longer anyone present to care for the animals who required attention.
Detention and the Right to Counsel
[35] Police are able to detain individuals for investigative purposes. For it to be a lawful investigative detention, it “must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence”: R. v. Mann, 2004 SCC 52, at para. 34.
[36] Section 10(b) of the Charter imposes a duty on the police to refrain from attempting to elicit evidence from the accused until they have a reasonable opportunity to retain and instruct counsel: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233. The right to retain and instruct counsel arises immediately upon detention so as to avoid self-incrimination, as outlined in R. v. Suberu, 2009 SCC 33, at paras. 40 – 42.
Disposition
Was the evidence obtained in violation of the Charter Rights of the accused?
[37] In this case, the evidence was that it would take in the range of 30 minutes to obtain a search warrant. Five police officers were present. There was only one entrance to the apartment. Even if officers had to leave the premises to obtain a warrant one officer could have been stationed by the door pending arrival of the search warrant.
[38] I conclude that exigent circumstances as defined in Kelsy did not exist. I conclude that the "public and police safety" justification for violation of privacy rights does not extend to this case. I, therefore, find that the Crown has failed to discharge its onus to prove that the search was not unreasonable.
[39] However, I am satisfied on the evidence that Mr. Mynott did tell the officers prior to the entry into his apartment that he did not have any animals and that this statement was not obtained in violation of his Charter rights.
[40] The same is not true with respect to Ms. Ritch. I find that Ms. Ritch was effectively detained once the male officer entered her bedroom to search. I conclude that, then, she should have been cautioned and advised of her right to counsel. She was in a most vulnerable situation being naked in her own bed. Therefore, I find that her statement was obtained in violation of her Charter rights.
Should the evidence be excluded under s. 24(2) of the Charter?
[41] Section 24(2) provides that where "… a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this 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" (emphasis added).
[42] Grant describes the court’s function as follows at paragraph 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[43] In this case, the circumstances include the following:
• exigent circumstances did not exist;
• this was a private residence;
• Mr. Mynott clearly and unequivocally insisted on his rights –"show me your warrant or go away";
• a warrant could have been obtained within approximately 30 minutes;
• five officers entered the apartment and Mr. Mynott was handcuffed while naked for "officer safety" without being given the opportunity to dress; and
• five male officers entered the apartment and at least two of the male officers were in the bedroom in which Ms. Ritch was laying naked in a bed under covers and searched the apartment.
[44] I do not conclude that the officers acted in "good faith". They did not seriously consider a warrant despite the insistence of Mr. Mynott that a warrant was required.
[45] I conclude that the Charter breach is serious and that the admission of the evidence would indicate that the justice system condones serious state misconduct. I conclude that the impact on the accused's Charter rights are significant. The right to privacy is a precious right and the accused was entitled to insist on his right to privacy. While society does have an interest in the adjudication of this case on its merits, I conclude that the admission of this evidence would bring the administration of justice into disrepute.
[46] I am satisfied, in balancing the factors set out in s. 24(2), that the accused have demonstrated that this evidence should be excluded.
[47] Accordingly, for the reasons given, I would exclude the evidence obtained by the search, namely, the dog and the presence of Ms. Ritch with Mr. Mynott. Also, I would exclude the statement made by Ms. Ritch.
______”original signed by”
The Hon. Mr. Justice W.D. Newton
Released: September 4, 2015
COURT FILE NO.: CR-14-0079
DATE: 2015-09-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
Arielle Angela Ritch and Joshua Michael Mynott,
Accused
REASONS ON APPLICATIONS TO EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Newton J.
Released: September 4, 2015
/mls