R. v. Shomonov, 2016 ONSC 1553

CITATION: R. v. Shomonov 2016 ONSC 1553

DATE: 2016-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ERAN SHOMONOV

COUNSEL:

Frank Shembri, for the Crown

Dennis Morris, for Eran Shomonov

HEARD:

January: 11-14, 19-21

mcCOMBS J.

RULING

INTRODUCTION

[1] On March 18, 2013, at 8:39 p.m., a 911 call came from a boxing club in an industrial strip mall at 100 Bridgeland Ave. in North York. The caller reported that he and others in the club had heard a loud bang in the unit next door (unit B). They found a "pellet hole" in the wall, and a significant amount of blood outside the locked front door of unit B.

[2] Police arrived and secured the scene. Subsequent investigation revealed that Mr. Shomonov was the lessee of unit B. Police were given his cellphone number. An officer called him and he answered and told the officer he was being treated at hospital for an accidental wound to his hand from a "nail gun". Further investigation led to the discovery, inside unit B, of two unregistered firearms, ammunition, $18,000 in cash, and some marijuana. The "pellet hole" reported by the 911 caller was in fact a bullet hole from a .40 calibre firearm. Mr. Shomonov's injury was not from a nail gun; it was from the firearm.

[3] Mr. Shomonov was duly arrested and charged with various offences in relation to the guns, ammunition, cash and drugs.

[4] The Crown's case has two basic elements: (1) inculpatory statements; and (2) physical evidence seized from unit B. The statements were allegedly made to police by Mr. Shomonov as he was being treated in hospital for a gunshot wound to his hand. The physical evidence was obtained as a result of two entries into unit B. The first entry was warrantless, while the second was pursuant to a search warrant.

THE RULINGS ON THE VOIR DIRE

[5] A blended voir dire was conducted to determine the admissibility of the statements and the physical evidence. I heard from ten witnesses, including Mr. Shomonov.

[6] After hearing argument, I gave my rulings, with reasons to be provided later. I ruled that all of the relevant evidence seized in unit B and some of Mr. Shomonov's statements to police were admissible in evidence at trial.

THE SUBSEQUENT CONVICTIONS

[7] As a result of my rulings, Mr. Morris and Mr. Shembri collaborated and arrived at an Agreed Statement of Facts which was tendered the next day. The Crown then closed its case, and the accused elected to call no evidence. In the result, Mr. Shomonov now stands convicted of two firearms and ammunition offences, one count of careless use of a firearm, and one count of simple possession of marijuana. The Crown fairly conceded that there was insufficient evidence to prove that the $18,000 in cash was the proceeds of crime. That charge was dismissed and the money ordered returned to Mr. Shomonov.

[8] At the request of the defence, the case was adjourned to today's date for the sentencing hearing. As noted previously, I undertook to provide reasons for my voir dire rulings. These are my reasons.

REASONS FOR RULINGS ON VOIR DIRE

a) The Statements

[9] Two broad issues govern the admissibility of the statements. The first is the common-law obligation resting on the Crown to prove beyond a reasonable doubt that the statements were made voluntarily. The second issue relates to any alleged Charter breaches. There, the burden is on the accused to establish the breaches on a balance of probabilities, and that the breaches, if established, should attract a remedy of exclusion under s. 24(2) of the Charter.

[10] A number of issues were raised in evidence and in argument, but I will mention only the determinative issues. Mr. Shomonov had gone to the Emergency Department at North York General Hospital (NYGH) after the gunshot injury to his hand. When police learned of his whereabouts, two uniformed officers attended at NYGH. Shortly thereafter, at about 10 p.m., two detectives from the Major Crimes Unit attended at NYGH. They had been dispatched by Det. Sgt. Zajak, who was heading up the Major Crimes Unit at 32 Division that evening.

[11] I accept the evidence of the two Major Crimes Unit detectives, officers Gazey and Hawkins, that initially, they did not consider Mr. Shomonov to be a suspect in a crime, and there was no necessity to detain him. Before they arrived at the hospital, one of them had spoken to Mr. Shomonov on the phone. He had provided the "nail gun" story and apparently said he had been driven to the hospital by his girlfriend, who had been present at the time, and who had the nail gun. They thought there may be more to it than that, and so they were investigating. They learned that when Mr. Shomonov arrived at hospital, he had given a different story: that he had been the victim of a street robbery at the corner of Wilson and Dufferin, and that he didn't want the police involved. Understandably, the officers doubted Mr. Shomonov's nail gun story, and when they began speaking to him at about 10:11 p.m., they told him they didn't believe him. While they were there, they contacted Mr. Shomonov's girlfriend, who repudiated his story about the nail gun. She said she was not present and knew nothing about the incident.

[12] I accept that the officers' questioning was confrontational, but I am also satisfied that initially, Mr. Shomonov was not detained.

[13] At about 10:20 p.m., one of the officers told Mr. Shomonov that he believed the injury to his hand was not from a nail gun but from a firearm. Mr. Shomonov then stated that he had purchased two guns a couple of days earlier, and that he had accidentally shot himself in the hand. He also made reference to another male individual having been with him, and that he had the keys to the unit.

[14] In my view, it is not necessary to discuss the law concerning admissibility of statements in any detail. The Crown fairly conceded that Mr. Shomonov was effectively under detention at the point when one of the officers told him he believed his hand injury was from a firearm not a nail gun. I accept the Crown's concession, and conclude that at that point, the police were under an obligation to comply with s. 10(b) of the Charter, and they failed to do so in a timely fashion.

[15] The detention began at 10:20 p.m. I am satisfied that in the circumstances, any statements after that time are inadmissible against Mr. Shomonov by reason of the Charter breach.

[16] I pause here to note that although I have concluded that these statements are not admissible as incriminating evidence against Mr. Shomonov, they may be considered on this voir dire because they are relevant to the state of mind of the investigating officers when the decision was made to enter unit B without a warrant.

[17] With respect to the statements made by Mr. Shomonov prior to 10:20 p.m., I am satisfied beyond a reasonable doubt that they were made voluntarily and that he was not detained as that term is meant in the context of a Charter analysis.

[18] With respect to the issue of voluntariness, I am aware that statements against interest are presumptively inadmissible and the Crown must prove voluntariness beyond a reasonable doubt. In order to do so, the Crown must provide "a sufficient record of the interaction between the suspect and the police": R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 at para. 65 (Ont. C.A.). The best practice is to video-record the statements, but that obviously was impractical in this case. Failure of the police to video-record is not fatal to the statements' admissibility: R. v. Oickle 2000 SCC 38, [2000] S.C.J. No. 38 at para. 46; R. v. Ducharme, 2004 MBCA 29, [2004] M.J. No. 60, 182 C.C.C. (3d) 243 (Man. C.A.), leave to appeal refused [2004] S.C.C.A. No. 124 (S.C.C.); R. v. Quinn, 2009 BCCA 267, [2009] B.C.J. No. 1168 at para. 96 (B.C.C.A.).

[19] In this case, the Crown called all of the officers who had contact with Mr. Shomonov. In doing so, the Court was provided with a sufficient record of the events to allow me to evaluate the issue of voluntariness.

[20] Mr. Shomonov acknowledged in his testimony that he did not want the police to enter unit B, where he knew the contraband would be found. I am completely satisfied that Mr. Shomonov's statements about the nail gun and the claim that his girlfriend had been present and had the nail gun, were intentional falsehoods voluntarily given in an attempt to lie his way out of a difficult situation. I accept that he was in pain and perhaps even in shock, and that may have made it more difficult for him to think of a credible story, but his lies, however transparent they may have been, were statements made voluntarily.

b) The Warrantless Search of Unit B

[21] The warrantless entry and search of unit B began at 11:14 p.m. Detective Constable Doyle was on scene and led the entry. He had been apprised of the information from detectives at the hospital that Mr. Shomonov had stated there were two guns in the unit, and that he had accidentally shot himself in the hand. By then, he was also aware that Mr. Shomonov had lied to hospital intake personnel by claiming that he had been the victim of a robbery at the corner of Wilson and Dufferin and didn't want the police involved.

[22] I accept D.C. Doyle's evidence that he became very concerned about the possibility that there was someone inside who may have been injured and could be bleeding out. Doyle testified that he had made up his mind that he was going to enter the unit because of this concern.

[23] D.C. Doyle contacted Detective-Sergeant Zajak, the head of the Major Crime Unit at 32 Division that evening. Det. Sgt. Zajak was supervising the investigation from his location at 32 Division and was receiving information from police sources at the scene and also at the hospital where Mr. Shomonov was being treated.

[24] Detective-Sergeant Zajak authorized the warrantless entry into unit B. Det. Sgt. Zajak gave credible evidence that was not shaken in cross-examination. I accept without reservation his and DC Doyle's evidence that they had a shared concern that someone could be injured inside the unit. Given the information they had at the time, I find their concern to have been reasonable.

[25] Det. Sgt. Zajak acknowledged that, in his words, he "didn't know what the deal was", but he had enough information that he was seriously concerned that someone could be inside, injured from a gunshot wound. He also had concerns about officer safety, and the possibility that someone could be inside getting rid of evidence, but those concerns were secondary to his concern about a possible injured victim inside the unit. In response to the suggestion from Mr. Morris that there were no exigent circumstances and that he could have waited for a warrant, Det. Sgt. Zajak said that he couldn't live with himself if he went in 5 or 6 hours later and found a dead person who had bled out: "that's something I would have to live with for the rest of my life".

[26] There were security cameras inside unit B. They captured the police entry and the subsequent search. The videos show that the officers conducted themselves professionally as they searched the unit. They were in the unit for 20 minutes. They made observations but seized nothing. After leaving, they secured the unit to await the obtaining of a search warrant.

[27] I have no hesitation in concluding that the officers had an honest and reasonable concern that there could be an injured victim inside the unit. They were not prepared to take a chance by waiting for several hours until a search warrant could be obtained.

[28] In my opinion, in entering unit B without a warrant, they made the right decision. The fact that the search revealed that there was no injured victim inside the unit does not mean that the decision was the wrong one. There was a reasonable belief that a person's safety could be at risk.

[29] If the search in question had been of a dwelling house, the test for authority to enter without warrant is governed by the provisions of s. 529.3 of the Criminal Code. Subsection 539.3 (2) (a) provides that exigent circumstances justifying a warrantless entry of a dwelling house are present when a 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". Privacy expectations are higher for a dwelling house than for a commercial location. It would be anomalous if the test for exigent circumstances were higher for a commercial establishment than for a dwelling house.

[30] A reasonable belief that a person's safety could be at risk meets the exigent circumstances test, and justified a warrantless search in this case: R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59, R. v. MacDonald, 2014 SCC 3, 303 C.C.C. (3d) 113, R. v. Peterkin 2015 ONCA 8, [2015] O.J. No. 100, 319 C.C.C. (3d) 191 (C.A.), per Watt J.A. at para. 59.

[31] This was not an unreasonable search. Thus, s. 8 of the Charter was not violated.

[32] If I am wrong in concluding that s. 8 of the Charter was not violated by the warrantless search, then I want to make it clear that I am completely satisfied that the officers acted in good faith and that application of the criteria set out in R. v. Grant (2009) SCC 32 favours admission of the evidence.

c) The Validity of the Search Warrant

[33] An affidavit (ITO) was prepared and submitted to a justice of the peace in support of an application for a search warrant. Police entered the unit pursuant to the search warrant at 5:16 a.m. They seized two guns, two firearm magazines loaded with ammunition, $18,000 in cash hidden in a dishwasher, $460 cash on a desk, and a quantity of marijuana.

[34] The ITO contained information that should be excised in light of the exclusion of some of the statements of Mr. Shomonov. If my rulings concerning the statements and the warrantless search are correct, then paragraphs 14 to 17 should be excised from the ITO and consideration should then be given to whether the search warrant could have been issued with those paragraphs omitted. Clearly, the balance of the information in the ITO provides an abundant basis for the conclusion that reasonable grounds existed to permit the issuance of a search warrant.

[35] If I am wrong in concluding that the warrantless search was justified and did not constitute a violation of the Charter, then paragraphs 19 and 20 should also be excised. Again, with those paragraphs omitted, there is still a more-than-adequate basis for the issuance of the search warrant.

[36] The search warrant was lawfully issued. If I am wrong, then under the Grant criteria, I would have declined to grant the remedy of exclusion of the evidence. I am satisfied that the administration of justice would not be brought into disrepute by inclusion of the evidence.

d) Summary of Conclusions

[37] In summary, I reach the following conclusions:

A. Statements Allegedly Made by Mr. Shomonov

The statements allegedly made prior to 10:20 p.m. on March 18, 2013 are admissible. The statements allegedly made after 10:20 p.m. are not admissible to support the guilt of Mr. Shomonov on the charges before the Court. The utterances allegedly made after 10:20 p.m. are, however, admissible in this voir dire as part of the narrative of events and to provide context in which to evaluate the reasonableness of the decision to conduct a warrantless search of unit B.

B. The Evidence From the First Search of Unit B

The warrantless search of unit B at 100 Bridgeland Avenue was a lawful exercise of the police duty to protect the public. If I am wrong in holding that the warrantless search was lawful, I have also considered the Grant criteria, and conclude that the analysis favours inclusion of the evidence obtained in the warrantless search. In my view, the repute of the justice system will not be compromised by inclusion of the evidence.

C. The Evidence From the Second Search of Unit B

The evidence discovered and seized in the subsequent search of unit B pursuant to a search warrant is also admissible. Although some of the contents of the affidavit sworn in support of the issuance of the search warrant, (commonly known as the "ITO") must be excised, the remaining information provides a sufficient basis upon which the justice of the peace could have issued the warrant.

J. D. McCombs J.

March 31, 2016