ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-2328
DATE: 20151019

B E T W E E N:

HER MAJESTY THE QUEEN

A. Bernstein and C. Coughlin, for the Crown

Respondent

• and -

JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL

J. Razaqpur, for the accused Jaswinder Singh; R. Lepore, for the accused Asogian Gunalingam; and F. Davoudi, for the accused Jora Jassal

Applicants

HEARD: September 15, 16, 17, 18, 19, 22, 23, 25, 26, November 3, 2014[^1]

RULING ON SECTION 24(2) APPLICATION TO EXCLUDE EVIDENCE AT THE IRESON HOME

COROZA J.

OVERVIEW

[1] At 4:00 a.m. on November 13, 2011, a male called 911 and reported that he saw something bad at 3068 Ireson Court in Malton. The male stated: “I see something, some people took the-, with some guns over there” and “yeah, I see something over there, I think big trouble there”. The call then disconnected.

[2] The 911 dispatcher immediately classified the call as a priority emergency call and dispatched the police to the address by broadcasting the call over the radio and sending the following message to the computer terminals in their police cruisers:

ML CALLED ON 911 SAID HE SAW SOMETHING VERY BAD AT THIS HOUSE THAT HE SAW SOMEBODY WITH A GUN OR SOMETHING THEN HUNG UP

[3] The police attended at the address. They discovered Jaswinder Singh urinating in the backyard.

[4] The police officers detained Mr. Singh. Mr. Singh confirmed he lived at the address. The police then entered the house to perform a sweep of the house to make sure no one was injured or armed. During the sweep, they found V.B. tied to a bed in a basement room. Mr. Singh was immediately arrested after Ms. V.B. had been discovered.

THE APPLICATIONS

[5] The accused are all charged with kidnapping, extortion and assault.

[6] Mr. Singh and Mr. Gunalingam apply to have evidence that was observed or seized by the police as a result of their entry into 3068 Ireson Court excluded on the basis that the police violated their rights pursuant to section 8 of the Charter. Mr. Jassal did not participate in the applications.

[7] Counsel helpfully agreed to conduct a “blended” voir dire. The Crown called a number of police witnesses and defence counsel were permitted to cross-examine these witnesses. Neither of the accused called evidence on any of the applications.

[8] With respect to the search, the burden of proof is on the accused to satisfy me on a balance of probabilities that his rights were breached and that evidence should be excluded. However, the Crown concedes that the search of the home was warrantless. Therefore, under section 8, there is a presumption of unreasonableness and the burden shifts to the Crown, again on a balance of probabilities.

FACTS

[9] A number of officers testified that at around 4:00 a.m. on November 12, 2011, a police dispatcher sent out a radio call and a dispatch on their mobile computers to attend at 3068 Ireson Court in the City of Mississauga regarding a gun and/or offensive weapon offence at that address. The officers were told that a 911 call had been made indicating that something bad was going to happen at that residence and that a gun was involved.

Mr. Singh is in the Backyard Urinating at 4:00 a.m.

[10] Shortly after 4:00 a.m., Cst. Holder and Cst. Mohammed arrived at the Ireson residence. Both officers testified that at some point they entered the backyard of the residence. Cst. Holder testified that he saw a male run through the backyard right across his line of sight. The officer asked the male to stop and the male complied but took out his penis and began to urinate. Cst. Mohammed testified that he asked the male to identify himself. The male identified himself as Jaswinder Singh with a health card. Mr. Singh was asked by the officers if he lived at the residence and Mr. Singh confirmed that he lived there.

The Detention

[11] Cst. Holder told Mr. Singh that he was being detained for an offensive weapon call and he told Mr. Singh that anything he said could be admissible in court. No rights to counsel were administered.

[12] Cst. Deol arrived at the scene at 4:05 a.m. and he took custody of Mr. Singh. He was told that Mr. Singh was under investigative detention. Cst. Holder and Cst. Mohammed then left to clear the Ireson residence. He did not read Mr. Singh his right to counsel or caution at this time. He also asked Mr. Singh whether he lived in the house. Mr. Singh told the officer that he lived upstairs.

The Discovery of the Woman Tied up in the Basement

[13] Cst. Holder and Cst. Mohammed entered the house through an open door at the back of the residence. Cst. Salvatore and Cst. Neilly eventually joined the search. Cst. Salvatore and Cst. Neilly searched the basement while the other officers searched and cleared the main floor and the upstairs portion of the residence.

[14] Cst. Salvatore and Cst. Neilly discovered V.B. in the basement tied to a cot with pieces of cloth. Ms. V.B. had been reported missing two days earlier. Cst. Salvatore announced the discovery of the female over the radio. Ms. V.B. was untied and an ambulance was called.

Cst. Neilly Seizes Two Pieces of Mail

[15] Cst. Neilly stayed with Ms. V.B. in the basement but eventually escorted her out when the ambulance arrived. While they were waiting for the ambulance, Ms. V.B. told Cst. Neilly that she had injuries. Ms. V.B. also told Cst. Neilly what had happened and that the motive for taking her had been financial. Ms. V.B. asked Cst. Neilly to retrieve her purse and some gold bangles belonging to her. Ms. V.B. told the officer that her purse was present in the room with her gold bangles. The officer looked for the purse so she could review some photo identification and a health card because an ambulance was on the way. The officer looked at the floor and found the purse in a closet located in the room. The officer testified that she came across two pieces of mail with a name and address. She seized the mail and handed it over to Cst. Salvatore on her way out of the residence.

[16] Cst. Neilly testified that one envelope had the name of Ramandeep Rana and the other had the name of Ramandeep Rang.

[17] Cst. Neilly explained that she seized the envelopes more specifically because they had names on them and, given the circumstances, she believed that the mail might be of some assistance in the investigation. She explained that the circumstances included the information coming from Ms. V.B., the fact that there was a male with officers on the scene, and the fact that the mail had names on it which may have identified other victims or suspects.

[18] The mail contained the following names: Ramandeep Rana with an address of 5703 Tallaton Trail in Mississauga, Ontario and Ramandeep Rang with the same address.

ANALYSIS

ISSUE 1: The Police Were Authorized to go into the House

[19] I am not persuaded by the argument that the search of the Ireson home infringed the Charter rights of the accused. In my view, the officers were authorized to enter the house and look for suspects or members of the public who may have been in distress. The officers had a duty to make sure that no one was in distress or needed their assistance before they left the house[^2]. I say this for the following reasons. First, the 911 call in this case was not specific. The information that the dispatcher relayed to the officers contained three facts that made it imperative for the officers in this case to ensure that no one was hurt or in distress at the Ireson house:

i) the caller referenced something “very bad” at this house;

ii) the caller mentioned that a gun was involved; and

iii) the caller hung up.

[20] Second, I accept that the officers knocked at the front and side door and announced their presence. There was no response. Although the officers were challenged repeatedly on this point, I do not accept that they did not go to the front door or side door to ascertain if someone was home. The police were responding to a 911 call, and the suggestion that the police would not have gone to the front door defies common sense. After receiving no response at 4:00 a.m. from any of the occupants in the home, it is my view that the police would have to ascertain for themselves that no one needed their help before they departed.

[21] Third, the officers found Mr. Singh urinating in the backyard. This was an unusual sight. After ascertaining that he lived at the residence, I am not persuaded by the argument that the police were obligated to question Mr. Singh further before entering the house. In my view, the police were under no obligation to conduct inquiries of people found at the scene before entering the home quickly to make sure that no occupants needed their help. The Supreme Court of Canada has held that it would be unthinkable that the police, in responding to a 911 call, would take the word of a person who answers the door without further investigation.[^3] Should the police then have taken the word of Mr. Singh who was in the backyard at 4:00 a.m. urinating? I do not think so.

[22] Fourth, officers involved in a rapidly unfolding 911 call should be afforded considerable latitude in their judgment calls. Cst. Holder and Cst. Mohammed both testified that there was no realistic choice but to err on the side of caution. Cst. Mohammed testified:

…you get to one of these calls and everything’s-it’s happening quick. You’re making decision, decision, decision, you know what I mean? Things happen. The way I’ve been trained to respond to a type of call like this. The circumstances around it with a gun, the offensive weapon. I felt it was an appropriate choice…

…Maybe if I said, yeah, you know, [Cst. Holder], yeah everything’s fine. It was just a guy peeing in the backyard and then two days later someone finds, you know, the alleged victim in the incident. Hey Paul, you were the one at this call. What happened? What do you mean what happened? They found a lady injured or whatever the circumstance is. I have to justify why I didn’t do anything…

[23] The justifiability of the officers’ conduct in this case involves an assessment of a number of factors[^4]:

i) the duty being performed;

ii) the extent to which interference with the individual liberty is necessitated in order to perform that duty;

iii) the importance of the performance of that duty to the public good;

iv) the liberty interfered with; and

v) the nature and extent of the interference.

[24] The duty being performed here was obvious: to respond to a 911 gun call in a residential area at 4:00 a.m. It is not disputed that this duty is important. While there is a high degree of privacy in the home, I note that the police testified that they entered through an open door in the back and that there is no evidence of any forced entry. The officers’ search of the house was non-intrusive, consisting of officers looking through the home with their own eyes.

[25] Mr. Razaqpur submits that there is an issue of improper note taking and that some of the evidence from the officers is incredible and suggests that they conferred before making up their notes. For example, counsel points out that it is a curious fact that both Cst. Holder and Cst. Mohammed made the same mistake about the number of bedrooms upstairs in their notes. Furthermore, both officers noted that the iPhone boxes on the dining room table were empty but denied picking them up and searching through them.

[26] I agree with counsel that the fact that both officers have empty iPhone boxes noted in their notes and three bedrooms instead of four is suspicious. That being said, for the purpose of this application, it is immaterial that they may have conferred on their notes in relation to how many bedrooms there were in the house and whether they looked into the iPhone boxes. The material parts of their evidence on this application are the reasons for going into the house.

[27] The fact that both officers have identical entries as to the iPhone boxes and made the same mistake as to the number of bedrooms does not detract from their testimony as to the reason why they went into the house. I accept their evidence that they decided to go into the house and clear it for possible victims and suspects. Once in the house they were lawfully entitled to make plain view observations of what was in that house.

ISSUE 2: Cst. Neilly was Authorized to Seize the Mail

[28] In light of my finding that the police officers were authorized to be in the home, it follows that they were entitled to make plain view observations of things in the home while they were searching for occupants. The authority to make plain view observations of items of criminality or potential evidence did not end with the discovery of Ms. V.B.

[29] Cst. Neilly was lawfully in the basement when she seized the two pieces of mail. I accept Cst. Neilly’s evidence that she searched the closet because Ms. V.B. specifically asked her to find her purse and gold bangles and that Cst. Neilly wanted to retrieve the purse to get Ms. V.B.’s identification and health card for the ambulance. The seizure of the envelopes was not planned nor was it orchestrated in advance.

[30] I am also satisfied that she was entitled to seize the envelopes as potential evidence. The following factors would have made their evidentiary nature immediately obvious to the officer:

i) Cst. Neilly had just discovered Ms. V.B. tied to a cot in the basement;

ii) Cst. Neilly was aware that Ms. V.B. had been reported missing two days prior to her discovery;

iii) the envelopes were in the same vicinity as Ms. V.B.’s purse;

iv) Ms. V.B. had provided Cst. Neilly with information about her captivity, including that the motive was financial; and

v) Cst. Neilly knew that there was a male outside who was in the custody of the police.

[31] Cst. Salvatore testified that he received what appeared to be financial documents from Cst. Neilly.

[32] Accordingly, I find that Cst. Neilly did not violate s.8 of the Charter by seizing the mail.

Section 24(2)

[33] In light of my conclusion that the conduct of the police in the present case did not breach any of the constitutional rights of the accused, it is not necessary for me to consider s.24(2) of the Charter. However, for the sake of completeness I will briefly consider whether the accused have satisfied me that the observations of the officers and any evidence seized from the house when they cleared the home ought to be excluded.

[34] In deciding whether evidence tainted by a Charter infringement should be excluded, the court will consider:

i. the seriousness of the Charter-infringing state conduct;

ii. the impact of the breach on the Charter-protected interest of the accused; and

iii. society’s interest in the adjudication of the case on its merits.

[35] The first factor does not favour exclusion of any evidence.

[36] The second group of factors would be serious in light of the very high expectation of privacy in the home.

[37] The third factor favours admission.

[38] Despite the significant intrusion in the home, the accused has not met the onus of demonstrating that any of the evidence should be excluded under s. 24(2).

Coroza, J

Released: October 19, 2015

[^1]: I released an endorsement on November 3, 2014 dismissing the application and promised to release written reasons. These are the reasons. The trial ended on June 2, 2015.
[^2]: See R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311.
[^3]: Godoy, at para. 20, supra.
[^4]: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 25.