COURT FILE NO.: 14-0012 DATE: 2016-08-19 SUPERIOR COURT OF JUSTICE OF ONTARIO

BETWEEN :

HER MAJESTY THE QUEEN – AND – K.H.

Counsel: Marie L. Dufort, Assistant Crown Attorney for the Crown Alan Brass and Shira Brass, for the Defendant

HEARD ON: April 18 to 21 and July 12 to 15, 2016

ENDORSEMENT

JUSTICE Roger

Introduction

[1] The Applicant, Mr. H., brings an application pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter) to exclude all evidence seized at his residence, and to exclude all three statements made by the Applicant. He argues that the actions of the Ontario Provincial Police (OPP) breached his rights under sections 7, 8, 10(a) and 10(b) of the Charter. The Applicant also seeks to exclude his statements alleging that voluntariness cannot be established beyond a reasonable doubt.

[2] The Respondent, Her Majesty the Queen (the Crown), disputes the Charter breaches and seeks to tender into evidence the three statements made by Mr. H.

[3] On December 14, 2013, Mr. H. gave three statements to the OPP. There is no issue that they were made to persons in authority. Consequently, the Crown must prove their voluntariness beyond a reasonable doubt.

[4] Mr. H. gave a first statement shortly after meeting Detectives Olney and Brodie at about 11:20 a.m. At that time he mentioned that he knew where the gun is located, they gave him a big story about it, he didn’t know what to do, he filed the numbers off and locked it away. He gave a second statement shortly thereafter, after being cautioned and given his rights to counsel by Det. Brodie (shortly after 11:22 a.m.), generally to the effect that: the gun is in his room with the ammunition, that nobody knows where it is but him and that there are three long guns in the house as well. Finally, he gave a third, video-recorded statement at the OPP station to Det. Brodie in the afternoon of that same day.

Overview

[5] The Applicant has been committed to stand trial on multiple weapons charges and the trial is scheduled to start before me on September 6, 2016. Briefly, the background facts are as outlined below.

[6] On December 12, 2013, an OPP Detective reported that a lockbox containing his police issued firearm and other equipment went missing from the trunk of his unmarked police vehicle sometime after October 23, 2013. No signs of forced entry into his vehicle were observed. The contents of the missing lockbox were: a force-issued firearm (a Sig Sauer P229 semi-automatic handgun); three magazines for the firearm; an asp baton; handcuffs; container of pepper spray; and a portable radio.

[7] On December 12, 2013 a team of multiple OPP Detectives was assigned to investigate in a priority manner.

[8] S.Sgt. Zulinski, now an inspector, testified that he was the officer overseeing this project. He did not take part in direct investigation, but was acting as a coordinator.

[9] He testified that on December 12, 2013, the OPP sent out a zone alert to police forces in the area. As a result, at 20:45 on December 12, they received information that the OPP had received a call from Ottawa Police Services (OPS) on November 25, 2013, that OPP equipment was stolen from an unmarked police vehicle. However, at the time, this was disregarded and not investigated by the OPP. Now, acting on this lead, the OPP discovered that OPS had information from a young female that people stole police equipment from a vehicle in Carp and threw it in a river.

[10] The young witness was interviewed the morning of December 13. From what she indicated the OPP understood that on November 23 or 24, four young males saw the unmarked police vehicle with an open trunk, parked on the roadway on a residential street in Carp, Ontario. The youths observed a lock box in the trunk that was secured by a cable, which they removed. The box was ultimately opened and the youths panicked and dumped the box in a river.

[11] The youths, including T.H. (the son of the Applicant), were subsequently identified and, it is agreed, were all arrestable by the morning of December 14.

[12] The morning of December 14, a decision was made to arrest the youths if they were found off-property. Officers were assigned to cover a specific youth. In the course of this operation, Sgt. Foulkes attended at a residence and interacted with R.L. He cautioned R.L. and at 9:52 a.m. R.L. told him that T.H. had the gun at his residence and that everything else had been thrown in the river. Shortly after, at the station, Det. O’Brien interviewed R.L. After the interview, Det. O’Brien informed Sgt. Foulkes that the same information had been provided by R.L.

[13] Sgt. Foulkes conveyed the information received from R.L. to Detectives Brodie and Olney, who were tasked with attending at the residence of the Applicant to locate and arrest his son, T.H.

[14] Sgt. Foulkes had no recollection of a call to Det. Brodie prior to 11:00 a.m. on the morning of December 14. He had no recollection of an earlier conversation at 9:57 a.m., and had no notes of a call to Detectives Brodie and Olney at 9:57 a.m. He testified that at 10:58 a.m., he called Det. Brodie to let them know they had information from R.L. that the gun is in Dad’s (the Applicant) gun safe and Dad doesn’t know the gun is in the safe.

[15] However, Sgt. Foulkes admitted that the statement obtained from R.L. contains nothing about Dad not knowing the gun is in the safe. He admitted that he has nothing in his notes supporting that Dad doesn’t know the gun is in the gun safe. Sgt. Foulkes agreed that his memory of these telephone conversations is not precise. He answered candidly that he could not remember the timing of the call or calls to Detectives Brodie and Olney, that he might have the timing out of phase. He admitted that he could not recall what Detectives Olney or Brodie might have relayed back to him.

[16] The statement generated from the interview of R.L. was filed as an exhibit. R.L. indicates that the theft occurred about mid-November. The youths present at the time are identified, including T.H., the son of the Applicant. R.L. explains that those involved panicked when they saw the box “full of OPP stuff” and were going to dump the contents. He explains that the next day he was informed that T.H. had kept the gun.

[17] In answer to a question whether T.H. would still have the gun, R.L. answers; “Yeah. Apparently, it’s all…they put…apparently, he grinded off the serial numbers on it and put it in his gun safe.” He was asked whether T.H. has a gun safe and responds “His Dad does”. He indicates that this was done the day following the theft. No follow-up question was asked about Dad’s knowledge or lack of knowledge and no additional information about this was provided by R.L. during this interview. I note this as the apparent contradiction with the information conveyed by Sgt. Foulkes is confusing.

[18] The confusion is the following. On one hand, the OPP are told, during the December 14 interview of R.L., that the stolen handgun is in the gun safe of T.H.’s Dad since the day after the theft, which R.L. dates back to about mid-November. This statement logically implies, at least until further investigation, a realistic possibility that Dad might be aware, as the gun is said to have been in his gun safe for close to a month. No follow-up questions are asked about this yet, and on the other hand, the notes of the officers contain not only that the gun is in Dad’s gun safe (which is the information relayed to them by R.L.) but the additional information that Dad doesn’t know the gun is in the safe.

[19] Logically, to arrive at the conclusion that Dad doesn’t know the gun was in his gun safe for close to one month, one would expect some notation or some explanation about how this conclusion or information came about. However, none of the officers had any notes about this nor did they have an explanation as to how this information was generated.

[20] S.Sgt. Zullinski, now inspector, admitted that he has nothing in his notes supporting the father not being aware that the gun was in his gun safe. He recalled that he was given this information at the time by one of the officers but it is not in his notes.

[21] Detective Olney was a lead on this project. On December 14, he and Detective Brodie were tasked with attending at the residence of T.H. as information had been received that T.H. was in possession of the stolen police handgun.

[22] Detective Olney testified that they arrived at the Applicant’s residence at 10:27 a.m. It is located in a rural area and they were the only car, parked about half a kilometer away in an unmarked Mazda. He indicated that at 9:57 a.m., he received a call from Sgt. Foulkes that the box was dumped in the river and the gun was located at the residence of T.H. At 10:28 a.m., he received information from Det. Empey that T.H. was believed to still be in possession of the handgun. A decision was made to try to contact T.H.’s parents to ask to speak to T.H.

[23] He testified that at 10:58 a.m. they received another call from Sgt. Foulkes that, according to R.L., the serial number was filed off and the gun is in Dad’s gun safe but Dad doesn’t know it’s there. Detective Olney agreed that Dad’s lack of knowledge is not mentioned in the statement of R.L., but stated that this is what he was told at the time by Sgt. Foulkes. His partner, Det. Brodie had left a telephone message with the Applicant and at 11:18 a.m., the Applicant returned the message and called Det. Brodie. Despite being asked by S.Sgt. Zulinski to speak to T.H., Detective Brodie asked the Applicant to attend at their car and at 11:19 a.m., the Applicant came out to meet them. Detective Brodie testified that both he and Detective Olney felt that it would be preferable to firstly ascertain the whereabouts of T.H. from the Applicant. During cross-examination, it was pointed out that this could have been done on the phone and that T.H. could have been asked to come out to be arrested as was done with the other youths.

[24] Detective Olney testified that they identified themselves as police officers and asked the Applicant to sit in the car. The Applicant was polite and friendly. Detective Olney testified that Detective Brodie told the Applicant at about 11:20 that they were investigating his son whom they believed to be involved in the theft of police equipment, that they wanted to talk to his son, and that the Applicant was not in any trouble, but that his son was.

[25] Detective Olney testified that the Applicant indicated where the gun was. The Applicant said that they had told him what they did, gave him a big story, that he did not know what to do, that he filed the serial number and locked it away. Detective Olney testified that this came out quickly and that at 11:20 a.m., Detective Brodie stopped the Applicant and cautioned him and that at 11:22 a.m., Detective Brodie read the Applicant his right to counsel. The Applicant then indicated that the gun and ammunition were in his room and that nobody knew where they were but him. The Applicant identified five other people in the residence, including his son T.H., his wife and daughter. The Applicant also said he had three long guns in his house.

[26] Detective Brodie also testified. He also indicated that they received a call from Sgt. Foulkes at 9:57 a.m. that the gun is believed to be at the residence of T.H. and a call from Det. Empey at 10:28 a.m. that as recently as two days ago, the gun is believed to be in the residence of T.H. He also made reference to a call from Sgt. Foulkes at 10:58 a.m. to relate the statement of R.L., that the serial numbers were filed off, the gun is in the father’s gun safe and the father is not aware. He also obtained information at 11:13 a.m. that this residence was flagged for mental health issues relating to a S.H.

[27] Shortly after 11:13 a.m., Detective Brodie left a message on the cell phone of the Applicant (he could not remember if he had left messages during his two earlier calls), identifying himself as a police officer and asking him to call back. At 11:18 a.m., the Applicant called back and was asked to meet them at the car, which he did. Detective Brodie explained to the Court that they wanted to talk to the Applicant to ascertain the whereabouts of T.H. He testified that the Applicant was polite and cooperative.

[28] Detective Brodie testified that he told the Applicant that his son, T.H., is involved in the theft of a police firearm, that the Applicant was not in trouble, and that the Applicant blurted out that he knew where it was and could take them to it…(as indicated above). Detective Brodie testified that he stopped the Applicant and at 11:20 a.m., read him a caution for possession of stolen property and unauthorized possession of a firearm and thereafter read him his right to counsel. The Applicant did not want to speak to a lawyer and told him that the gun was in the Applicant’s room with the ammunitions and that nobody knows where it is.

[29] Detective Brodie then left the car to call and report to S.Sgt Zulinski and by 11:31 a.m. a decision was made to enter the residence to retrieve the guns. While Detective Brodie was outside the car, the Applicant made the second statement referred to above and mentioned the three long guns in answer to questions from Detective Olney.

[30] Detective Brodie testified that they came to a decision that there were exigent circumstances once the Applicant told them the gun was not secured with five people in the house. He could not recall what he told the Applicant about their decision to go in and get the gun and has no notes about what he told the Applicant about this. He explained that this was not a consent search. They were going in to retrieve the gun on exigent circumstances no matter what.

[31] By 11:33 a.m. they were in the residence, retrieved the guns and ammunitions and left the residence by 11:40 a.m. He testified that they asked K.H and T.H to follow them to the station to be interviewed, which they did.

[32] Detective Brodie testified that if he had known that the father was aware of the gun, he would have waited for a warrant but that this was not his understanding from the 10:58 a.m. call from Sgt. Foulkes. He admitted that by 10:58 a.m. there were no exigent circumstances and that by then they had reasonable and probable grounds to obtain a search warrant. He indicated that at 10:58 he knew the gun was probably in the house but did not know if T.H. was in the house. He explained that the investigation was ongoing which is why he invited the Applicant to the car. In cross-examination he indicated that he would have cautioned the Applicant father if he had believed that the Applicant was a suspect, however the information was that he was not involved.

Issues

[33] The issues on this application are:

1. Has the Crown established, beyond a reasonable doubt, that the statements of the Applicant were voluntary?
2. Has the Applicant established, on a balance of probabilities, a breach of sections 7, 10(a) and 10(b) of the Charter? If the Court concludes to such a breach for one, two or three of the statements, then as indicated in the Crown’s written submissions, the statement(s) should be excluded.
3. Has the Crown established, on a balance of probabilities, that the warrantless search and seizure was not unreasonable or not in breach of section 8 of the Charter?
4. If the search was unreasonable and in breach of section 8 of the Charter, should the evidence seized (the handgun, ammunitions and long guns) be excluded pursuant to section 24(2) of the Charter?

Disposition

[34] In my view, for reasons outlined below:

1. The first statement is in breach of the accused Charter rights and is excluded;
2. The second statement is tainted by the above and is consequently also inadmissible;
3. The third statement is inadmissible as voluntariness could not be established; and
4. The evidence is excluded as in breach of the accused Charter rights, the admission of which would bring the administration of justice into disrepute.

Analysis

Voluntariness

[35] The test for voluntariness is established in R. v. Oickle, 2000 SCC 38: whether an accused person’s will in choosing whether or not to speak to the police is overborne by improper police promises or threats, oppressive circumstances, or whether the police employed such trickery that would shock the conscience of the community.

[36] The common law confessions rule is that where an accused makes a statement to a person in authority, the Crown bears the onus of proving the voluntariness of the statement beyond a reasonable doubt as a prerequisite to its admission into evidence. This rule addresses concerns about the reliability of confessions and the dangers of false confessions in that it protects an accused's rights without unduly limiting society's need to investigate and solve crime.

[37] In Oickle, Iacobucci J., for the majority, held that the application of the rule requires a contextual approach that considers all relevant factors to assess whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community.

[38] As indicated by Justice Charron, in R. v. Moore-McFarlane, there is no absolute rule requiring the recording of statements. She explains that the inquiry into voluntariness is contextual in nature, requiring the trial judge to consider all relevant circumstances. However, as she indicates, the completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement as the court must determine whether or not sufficient evidence has been provided to satisfy the onus on the Crown to prove voluntariness beyond a reasonable doubt.

[39] As explained below, I have concerns with the record from 11:25 a.m. onward and conclude that the Crown cannot establish voluntariness beyond a reasonable doubt with regards to the third statement.

[40] The Crown must establish an adequate record, sufficient for the Application judge to be able to determine voluntariness, as the onus is on the Crown to establish voluntariness. In this case, the Crown has not established threshold reliability underlying the voluntariness of the third statement at the admissibility stage as I cannot, from the evidence presented on this application, properly assess voluntariness to determine the admissibility of the statement.

[41] The Applicant places significant emphasis on the fact that Detective Brodie made a mistake when he testified in earlier proceedings before the Ontario Court of Justice. There, he testified that he told the Applicant at the outset of their interaction that his son was not in any trouble. His explanation was that this was said by mistake, that he had meant to say, in the Ontario Court proceedings, that the Applicant was not in any trouble but that his son, T.H., was. Detective Olney testified that Detective Brodie advised the Applicant that his son had been involved in an incident, and that the Applicant was not in any trouble at that point. Officer Olney stated that Detective Constable Brodie did not tell Mr. H. that his son was not in trouble. This is confirmed later by Detective Brodie during the third statement where he confirmed with the Applicant what he had said earlier “…you weren’t in any … any trouble whatsoever… we were investigating your son…” I accept the Crown’s submissions that this is sufficiently explained.

[42] Nonetheless, in dealing with this apparent contradiction during his cross-examination, Detective Brodie referred to his notes that your son is involved in an incident and he is not in any trouble. He admitted that his notes are confusing about what he told the Applicant. In his words, that there’s confusion about what I wrote in my notes and that this is my problem. This particular instance is not a problem as I agree with the Crown that this was sufficiently addressed during the third statement, as indicated above. However, the scant notes from 11:25 a.m. onward and particularly the lack of adequate notes during the search of the house relating to conversations with the Applicant is a serious problem for the Crown relating to the admissibility of the third statement.

[43] The Applicant alleges that Detectives Olney and Brodie did not make verbatim notes of what they said to the Applicant and of what the Applicant said and that the notes do not contain the questions and answers, none of which is necessarily required. Both Detectives indicated that they made their notes as they went along, with some exceptions relating to conversations about the search of the home, however neither had a satisfactory explanation as to why in these circumstances (in the car and later in the house with two officers present) neither took better notes. I do not have an issue with the fact that the notes are not verbatim, rather my issue is with the limited extent of the notes at times that are important to the assessment of voluntariness. This proves particularly important in this case considering the rather limited independent recall of the officers.

[44] Despite the contradiction described above as to what was said to the Applicant about who was in trouble, despite the absence of notes as to whether earlier telephone messages were left with the Applicant, and the absence of clear recall as to whether earlier messages were left, I am not overly concerned about this up to about 11:25 a.m. considering all of the evidence of the officers and the fact that some of this was sufficiently addressed during the third statement. However, I am seriously concerned by the lack of notes and lack of recall relating to what was said to the Applicant from the moment the officers decided to go into the home until they left the property.

[45] There are no notes about what was said to the Applicant prior to going into to the house to retrieve the guns and Detective Brodie did not recall what was said. Officer Brodie stepped out of the car at about 11:25 a.m. and from thereon, given the scant notes and limited recall, there is no reliable record of what took place in the car. Indeed, upon returning to the car officer Brodie announced that they were going into the house to obtain the gun and there are no notes of this conversation.

[46] The officers were in the house from 11:33-11:40, with Officer Olney leaving earlier at an unnoted time. While they were inside the home, the notes are limited with not sufficient information about what was said to the Applicant in the house while the guns were being retrieved (a period of about 7 minutes) and the Detectives did not particularly recall what was discussed in the house other than it was polite.

[47] The detectives admittedly spoke to the Applicant and to his son, T.H., but have no notes and no clear recall of what was discussed. This is particularly troubling as conversations in the house subsequently resulted in both the Applicant and his son agreeing to follow the officers to the police station to give the third statement.

[48] None of this assists the Crown in establishing sufficient reliability of the record at least to meet the threshold level of allowing this Court to properly assess voluntariness as it relates to the third statement. As the onus is on the Crown to establish voluntariness beyond a reasonable doubt, I find that it has not met its onus for the third statement.

[49] It should be apparent from the above that I am not as concerned as the Applicant with the scant notes at the police station (while the Applicant waited) as I accept the evidence of the officers that the Applicant was essentially left waiting in the lobby and in his vehicle as this was on the weekend. Nonetheless, again these would be examples of very few notes and limited recall.

[50] Considering my conclusions relating to the first statement and the second statement, it is not necessary at this time for me to pursue my analysis relating to voluntariness in relation to these two statements as any further analysis relating to voluntariness for these two statements is rendered moot and is not required.

Violations of Sections 7, 10(a) and 10(b)

[51] In assessing whether there were any breaches of sections 7, 10(a) or 10(b) of the Charter I must first determine whether the Applicant was detained.

The concept of psychological detention was clarified in Grant:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
2. In cases where there is no physical restraint or legal obligation, to determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider the following factors: a. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. b. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. c. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[52] Psychological detention questions whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with police direction or demand. This must be determined objectively considering all circumstances as the subjective intention of the police are not determinative. Importantly, the Supreme Court in Grant indicated, at para. 32:

…where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.

[53] In my view, the circumstances are such that Mr. H. would reasonably have come to the conclusion that he had no choice but to comply with police directives. He was called on a number of occasions and at least one message was left. He called back and was asked to come out to the car. Even if this was an unmarked vehicle, still he was met by two officers and asked to sit in the back of the car. He was at this point of the investigation singled out and the nature of the police conduct, the place of the interaction and the nature of the inquiry would suggest to a reasonable person that he must comply. From my perspective, very little in the evidence points in the opposite direction and the subjective intent of the officers is not sufficient considering the objective circumstances.

[54] I find that detention arose as soon as the Applicant entered the police vehicle.

[55] Consequently, the Applicant’s rights under sections 7, 10(a) and 10(b) were breached as the officers did not provide Mr. H. with his Charter rights immediately upon detention and prior to the first statement.

[56] Although he was cautioned prior to providing the second statement, in my view the second statement is tainted by the first.

[57] Although slightly different, I find the circumstances of this case sufficiently similar to those in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235. Adopting a purposive and generous approach, I find a sufficient temporal and causal relationship between the initial breach, the first statement and the second statement. Further, the second statement is part of the same transaction with a sufficient contextual connection to the first. In these circumstances, the fact that the first statement was made was surely a substantial factor contributing to the making of the second.

Section 8: Warrantless Search and Seizure of Evidence

[58] As this was a warrantless search, the burden is on the Crown to prove, on a balance of probabilities, that the search was reasonable.

[59] The Crown argues that the search was authorized under any of the following sections of the Criminal Code (s. 117.04(2) or 487.11) or under common law or the Waterfield doctrine, on the basis of (1) exigent circumstances and (2) at the invitation of the Applicant.

[60] Addressing the later point first, it is clear from the evidence of the two officers that this was not a consent search. In their words, they were going in no matter what. In any event, any invitation was tainted by the earlier breaches of the Applicant’s Charter rights.

[61] Any such consent or invitation was temporally and causally related to the earlier breaches. It was part of the same transaction or course of conduct. The earlier statements were a substantial factor contributing to any such consent or invitation being provided. Consequently, any such consent or invitation was tainted and cannot be said to have been voluntary or informed. Such tainting cannot be rectified by whatever was said during the third statement.

[62] This brings us to exigent circumstances, as it is not disputed that the Crown must identify an express statutory or common law power to have lawfully entered a dwelling.

[63] The necessity of protecting individuals from unjustified state intrusions is well recognized and was expressed in Hunter v. Southam Inc., 1984 SCC 33 as:

…That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

[64] At about 10:30 am on December 14, 2013, the officers involved had a conversation about whether grounds existed for a search and seizure without a warrant. By then, the OPP had sufficient grounds to believe that the gun was still at the house and could have proceeded to obtain a warrant. They had assigned an officer to this task the day before and did not inquire how long obtaining a warrant might require.

[65] Exigent circumstances are extraordinary powers that are to be used only when necessary. On the evidence presented on this application, it was not necessary to invoke exigent circumstances. The OPP had many other options opened to them, as outlined in the Applicant’s written submissions.

[66] I do not accept the arguments of the Crown that life was in danger or that there was a need to act to protect life, prevent injury, prevent the commission of an offence or protect the evidence. The presence of a gun, in and of itself, does not necessarily pose a risk to the public or to life. The existence of such a risk depends on the circumstances and here there was nothing in the circumstances that suggested that the public, life or the evidence was at risk.

[67] The gun had presumptively been with the Applicant for close to one month without incident. The Applicant was polite, friendly and cooperative. The officers indicated that they had no reasons not to trust him when he told them that the gun was hidden and only he knew where it was. The Applicant was with the officers and the officers testified that, at this point, they would not allow him to call home or return home. The person with psychiatric issues was not in the home and only family members were in the home. The Applicant and the Applicant’s son were not known criminals and no known criminal or any otherwise presumptively dangerous person was known to be in the home. The concerns raised by the officers are not supported by the circumstances that existed at the time. To conclude otherwise would allow warrantless searches based upon exigent circumstances where the risk is premised on mere speculation and extremely remote possibilities. As an aside, the casual manner in which the officers entered the residence does not assist their argument of exigent circumstances.

[68] There was essentially no change in earlier circumstances and the OPP, in the absence of exigent circumstances, should have proceeded to obtain a warrant on an expedited basis, taking whatever steps they deemed appropriate to contain the scene. Consequently, in my view this was an unreasonable search and seizure.

Section 24(2) Analysis

[69] As Charter breaches have been established, the Court must determine if, pursuant to section 24(2), the Charter-infringing evidence should be excluded. The Crown has indicated at paragraphs 91 and 92 of its written submissions that if the Court finds that the Applicant’s Charter rights have been breached relating to any of the statements, then the Crown contends that the statements should be excluded.

[70] Consequently, all three statements are excluded. The third statement is excluded on the basis that voluntariness could not be established and the first and second statements are excluded on the basis of Charter breaches (and on consent of the Crown re 24(2), given the breaches, as indicated above – likely as they would then be hard pressed to establish voluntariness).

[71] Section 24(2) of the Charter provides that evidence obtained in a manner that infringes the accused’s rights 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”.

[72] In determining the admissibility of unconstitutionally obtained evidence under section 24(2) of the Charter, the criteria set out in R. v. Grant, must be considered:

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 the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[73] In the circumstances of this case, in my view, the availability of the evidence through lawful means aggravates the seriousness of the breach. The OPP had a person assigned to warrant duties as of December 13, 2013. Presumptively, this person had done his or her job and a warrant could have been obtained within a reasonable amount of time at any time after 10:30 a.m. on December 14, 2013, the time when the OPP had developed reasonable grounds to obtain a warrant to search the Applicant’s home. The OPP did not inquire into this process and, consequently, I have no evidence that it would have taken an unreasonable amount of time to obtain the warrant. I therefore assume that a tele-warrant or some other warrant could have been obtained on an expedited basis. The failure to verify, in the circumstances of this case, aggravates the breach. The lack of some reasonable semblance of exigent circumstances aggravates the breach. This is no doubt a serious breach from which this Court wishes to dissociate itself.

[74] The cumulative effect of the multiple breaches combined with the unauthorized search of a home, which attracts a high degree of privacy, in the circumstances of this case seriously impacted the privacy rights of the Applicant. The invitation of the Applicant does not assist the Crown for reasons stated earlier. Again, the availability of completely unexplored, yet reasonably readily available legal alternatives, in the absence of exigent circumstances, aggravates the impact of the intrusion.

[75] Although there is always a strong interest in deciding cases on their merits and although guns and weapons charges are serious issue for which there is strong public interest in the prosecutorial efforts of such charges, in the circumstances of this case I have no doubt that overall society’s interest favour excluding the evidence.

[76] Consequently, balancing all three factors, I arrive at the conclusion that the admission of the evidence would bring the administration of justice into disrepute.

[77] The evidence is therefore excluded and the Application is granted.

Mr. Justice P. Roger

RELEASED: 2016/08/19