CITATION: R. v. Barton and Jacobs, 2016 ONSC 8003

COURT FILE NO.: CR-16-50000462-0000

DATE: 20161230

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZACHARY BARTON and JESSICA JACOBS

Defendants

K. Lockhart, for the Crown

R. Rusonik and J. Schneeweis, for Zachary Barton

C. Morris for Jessica Jacobs

HEARD: 17-21. 24-28. 31 October 2016

REASONS FOR JUDGMENT

AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

[1] Zachary Barton and Jessica Jacobs are charged with possession of a loaded prohibited firearm and related offences.

[2] The accused apply under sections 7, 8, 9 and 10(b) of the Charter of Rights and Freedoms, to have items of evidence, including a loaded restricted firearm and ammunition, excluded from their trial.

Overview of the Allegations

[3] On 24 April 2015, the police received an anonymous tip informing them that a gun was located inside Unit 7, 36 Twelfth Street, in Toronto. The tip also named Zachary Barton and provided a description of his height and appearance.

[4] As a result, the police made their way to this address, a low rise apartment building. The first officers, PC Marland Thompson and PC Nitan Bhandari, arrived at approximately 11.38 pm. Upon entering the building, they met Zachary Barton descending the stairs. He was recognised by Thompson who sought to detain him for investigative purposes. According to the police, Barton refused to co-operate and was placed on the ground so that he could be handcuffed. A subsequent pat-down search revealed what the officers believed to be a small amount of cocaine and marihuana in his trouser pocket. Barton was arrested and taken to the police station.

[5] Additional officers arrived during Barton’s arrest and proceeded to Unit 7. Sergeant Jeff Alderdice, the supervising officer, approached the door to the apartment seeking entry. Alderdice had formed the opinion that exigent circumstances required the police to enter the apartment in order to determine if persons inside were either at risk of harm or posed a danger to the police.

[6] Initial attempts to gain access to the unit were unsuccessful but the police persisted, obtaining keys from the superintendent of the building. In order to create room for themselves, the police moved a nearby plant situated on a cylindrical stand (“the cylinder”) in the hallway just outside the apartment. Shortly afterwards, one of the police team noticed a string protruding from the top of the cylinder. Removing the lid, the police located a cloth bag emblazoned with a “Popeye Supplements” logo containing a TEC-DC9 semi-automatic pistol. This firearm was equipped with a laser-sight and found to be loaded with a magazine clip.

[7] The police continued in their efforts to enter the apartment. Continuous knocking and loud requests to open the door received no response and no movement or noise could be heard from inside the apartment. During the course of the proceedings, members of the Emergency Task Force (ETF) were contacted and Sergeant Oswald Veit attended the building with a team of six officers to confer with Alderdice. Both officers took different positions with respect to a forced entry of the unit and the ETF left the scene.

[8] Despite this, Alderdice continued police attempts to enter Unit 7 to no avail. Additional keys were tried and the police continued to knock and shout commands for the entrance to be opened. Alderdice, fearing the possibility of a sudden, rapid opening of the door by hostile occupants connected an elasticated rope to the door handle and nearby stair bannister. This tactic meant that the door could only be opened slowly and the police could not be taken by surprise.

[9] After some minutes, however, Jessica Jacobs emerged from Unit 7. She was detained immediately and taken into custody. The police entered the unit on Alderdice’s instructions exiting a few minutes later. Search warrants executed later that day revealed body armour and 9mm ammunition contained in a bag in a closet. Inside the same closet, the police found a driving licence belonging to Barton.

[10] At the station, Jacobs provided a videotaped statement to the police explaining that she was a visitor to Barton’s apartment and did not reside there. At first, she claimed that she was romantically involved with Barton but moments later retreated from that position saying that she was dating “nobody”. She was released without charge.

[11] The property building at 36 Twelfth Street was equipped with a number of surveillance cameras situated in the hallways. One such camera was stationed immediately outside Unit 7 and captured the police attendance on 24-25 April 2015 as well as prior events. Police seized the video footage and discovered that moments before their arrival at 36 Twelfth Street, Barton and Jacobs could be seen hurriedly emerging from Unit 7 and bending down close to the plant stand in which the TEC-DC9 was discovered. The top of the plant shook violently after which Barton moved quickly to the exit stairwell whilst Jacobs ran back into the apartment.

[12] A review of this evidence led to Jacobs being re-arrested and charged.

The Alleged Charter Breaches

[13] The applicants, in submissions made by Mr. Rusonik and supplemented by Mr. Morris, challenge the actions of the police, alleging a number of Charter breaches, summarised as follows:

(1) The unlawful detention, search and questioning of Barton when he encountered the police in the stairwell of 36 Twelfth Street.

(2) The search and entry of Barton’s apartment without warrant.

(3) The warrantless search of a plant and cylinder containing a TEC-DC9, a semi-automatic firearm.

(4) The arbitrary detention of Jacobs by attaching an elasticated rope to the door handle of Barton’s rented apartment.

(5) The use of a misleading and inaccurate Information to Obtain a Search Warrant in order to enter and search Barton’s apartment.

Moreover, they allege that the police lied to the court regarding Barton’s arrest and the motivation for seeking to enter his apartment on 24-25 April 2015.

[14] Responding for the Crown, Mr. Lockhart concedes that the warrantless entry into Unit 7 was a breach of Barton’s Charter rights and that any observations made as a result are inadmissible both as evidence under s. 24(2) of the Charter and as material in support of the Information to Obtain (ITO). He also concedes that Barton’s section 10(b) rights were breached after the police arrested him at 36 Twelfth Street. However, Mr. Lockhart submits that neither Barton nor Jacobs had a reasonable expectation of privacy in the common hallways of the building and, as a result, have no standing to challenge the search of the cylinder. He also argues that the police lawfully detained Barton in their initial encounter and that Jacobs was not detained when the police secured the door handle to Unit 7.

II. THE DETENTION AND ARREST OF ZACHARY BARTON

The Police Testimony

[15] Thompson and Bhandari arrived on scene at approximately 11.30 pm in response to a radio call informing them that Zachary Barton was at the address and in possession of a firearm. Both officers regarded Barton as “dangerous” due to their familiarity with his prior criminal history. That belief was not challenged by the defence and, in my view, was well founded in the light of his criminal record which is set out later in these reasons. The officers testified that they drove to the address in a marked police car which turned off its sirens approximately 500-800 metres before arrival. The car was parked south of the building in front of number 34 Twelfth Street.

[16] Thompson testified that the south door was unlocked and he entered unhindered followed by Bhandari. Both men headed up to Unit 7, located on the third floor, with Thompson leading the way. As he climbed the steps, Thompson noticed Barton running towards him. In cross-examination, he explained that Barton was moving quickly as if he was jogging.

[17] Thompson stopped Barton, told him he was being detained, and that he was not to move. Barton was placed against a wall to be handcuffed from behind. Having been told that Barton was armed and cognisant of the possibility that Barton might be violent, Thompson felt the need to conduct a safety search before questioning to ensure that Barton was not in possession of a firearm.

[18] Barton complied with Thompson’s request and placed his hands to his side but Thompson’s fears were not allayed because he continued to feel “movement”. At this point, Bhandari implemented a “leg sweep” pulling Barton’s leg from beneath him and causing him to fall to the floor. Bhandari’s reason for taking this action was because he felt that Barton had failed to raise his left arm - to allow handcuffing - when ordered to do so by Thompson.

[19] Barton was handcuffed whilst laying on the ground. Conducting a pat down search for guns, the police discovered marihuana and a substance he believed to be crack cocaine in Barton’s pockets. Arrested for the possession of controlled substances, Barton was given his right to counsel whilst being taken to the police car and indicated that he wished to contact Mr. Rusonik as his counsel of choice. On his way to the station, Barton was asked whether there was anyone else in the apartment and he told the police of Jacobs’s presence. Upon arrival at 22 Division, Barton was paraded, processed and once more given his right to counsel.

The Law on Investigative Detention

[20] Investigative detention and any connected search is governed by the procedure laid down by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, which requires two conditions. First, the police must have reasonable grounds to suspect that an individual is connected to a particular crime and that such a detention is necessary. Secondly, where an officer believes that there is a safety risk, they may conduct a pat-down search of the detainee. Both the detention and pat-down must be conducted in a reasonable manner and the search must be confined to locating weapons: Mann, at paras. 41-45.

Did the Police Have Reasonable Suspicion?

[21] The court in Mann made clear that the police cannot proceed solely on a hunch but must act on specific facts and any reasonable inferences flowing therefrom. In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, the Supreme Court of Canada reviewed the reasonable suspicion standard, and, at para. 29, Karakatsanis J. made the following observation:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

[22] In assessing the constellation of facts, the police are required to look at the entire fact scenario and also take into account neutral, equivocal or exculpatory information. Whilst profiling may be considered by the police, it must not be used as a substitute for objective facts. Reasonable suspicion engages the reasonable possibility of a crime rather than the probability. Moreover, the facts themselves must indicate the possibility of criminal behaviour.

[23] Mr. Rusonik argues that the police encounter with Barton was flawed from the outset as the anonymous tip received by the police did not comply with the criteria set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140. In other words, the tip was not compelling due to the paucity of details supplied; the anonymity of the caller meant that the credibility of the tip could not be tested; and the police took no confirmatory steps before making their way to 36 Twelfth Street. I reject this submission as there was no need for the police to take such steps before conducting an investigation or seeking to question Barton. The Debot test applies to tips relied upon by the police when setting out the basis of their reasonable and probable grounds in an affidavit to obtain a search warrant or justify an arrest under s. 495 of the Criminal Code, not when seeking to initially investigate information provided by a tipster. The police were free to use the tip when commencing their investigation: R. v. Jacobson, (2006), 2006 CanLII 12292 (ON CA), 209 O.A.C. 162, at para. 21.

[24] Mr. Rusonik further argues that the police were simply acting on a hunch in attending 36 Twelfth Street rather than the required degree of reasonable suspicion. I disagree. The police were in possession of information provided by an anonymous informant with some degree of detail of a potential offence: a gun was located at Unit 7, 36 Twelfth Street and Barton was specifically mentioned by name.

[25] The police were also aware of Barton’s lengthy criminal record and convictions for weapons offences. Mr. Rusonik argues that people with criminal records should not possess a lesser Charter right than those who are of good character. I agree with this submission but reject its implications. As a matter of realism, the police could not be expected to ignore Barton’s prior criminal activity in forming their grounds to investigatively detain him. Moreover, Debot, at paras. 54-57, holds that a related criminal record is relevant in the context of a decision to commence an investigation. However, this was but one factor to be taken into account when assessing reasonable suspicion. Coupled with the information provided by the tip, I find that the police had the requisite reasonable suspicion to detain Barton incidental to an investigation.

Was the Detention Conducted Reasonably?

[26] As noted, after the police had formed the required reasonable suspicion to detain Barton, they were obliged to conduct that detention reasonably. Mr. Rusonik submits that the police actions were more than unreasonable and asks me to find that in describing the events as they unfolded that day, Thompson and Bhandari lied to the court.

[27] Thompson claimed that when he first encountered Barton, he was running down the steps towards him. Mr. Rusonik challenges this assertion by pointing to the video evidence tendered on this motion where Thompson’s detention of Barton is recorded. Having reviewed this evidence, I find it to be inconclusive as the camera angle only permits sight of the lower set of steps that Barton descends where he appears to slow down after Thompson comes into his line of sight. More significant, in my view, is the footage captured showing Barton and Jacobs exiting Unit 7 and interacting with the cylinder outside their apartment. Both act in an anxious manner after which Barton is seen to move towards the stairs in a hurried, rapid fashion, descending the first stair case two steps at a time. I find this evidence tends to lend credence to Thompson’s testimony that Barton was running or jogging down the stairs immediately prior to their meeting.

[28] Mr. Rusonik also claims that Bhandari was being untruthful when he claimed that he had drawn his gun only when seeing Barton detained by Thompson rather than having entered 36 Twelfth Street with it already drawn. The video footage depicts Bhandari arriving on the landing where Barton was seen and stopped. Once again, I find it to be less than helpful in depicting exactly what happened due to the angles and lack of clarity. However, as Mr. Lockhart demonstrated, on a frame by frame basis, the video depiction - showing the gun moving upwards - is equally consistent with Bhandari drawing his gun from his holster as it is with him already holding it as he arrives on the landing. As a result, I decline to find that Bhandari was lying on this point.

[29] I also find that Thompson handled the initial detention in the manner stipulated in Mann. Mr. Rusonik concedes that up until Bhandari’s intervention, Thompson behaved as a “role model” in conducting a police detention of a suspect. The key moment in Barton’s detention was the “leg sweep” performed by Bhandari as Barton was standing against the wall. Thompson testified that Barton was turning his body to his left immediately before Bhandari forced him to the ground. Bhandari, however, explained that his reason for forcing Barton to the ground was based on Barton’s refusal to give up his left arm when being handcuffed. Bhandari insisted that when Barton was taken to the ground, he was struggling with the police as they handcuffed him.

[30] The video footage however does not accord with Bhandari’s recollection. It is difficult to determine whether Barton was moving his body in the manner described by Thompson but what is clear is that he offers his left arm to Thompson. There is also no sign of any struggle or resistance by Barton when he is placed on the ground. When confronted with this evidence in court, Bhandari appeared noticeably surprised and sought to clarify his answer by suggesting that he may have erroneously referred to Barton’s left arm when he meant the right arm. Again, the video does not appear to support this view. Although the position of Barton’s right arm is not clear when in the standing position, he immediately offers it to the police after being taken down.

[31] Mr. Rusonik asks that I find Bhandari deliberately lied about Barton’s lack of co-operation, unaware that a security video had recorded the events. Mr. Lockhart, on the other hand, acknowledges the discrepancies between the video and Bhandari’s evidence but asks me to find that in the heat of a tense confrontation, Bhandari’s recollection of events has been affected by the stressful circumstances of Barton’s detention and arrest.

[32] There is no doubt in my mind that the confrontation between the police and Barton was overflowing with tension, fuelled, in part, by the officers’ familiarity with Barton and their belief that he was a dangerous individual. I accept that these beliefs were heightened by information that Barton might be in possession of a firearm. The confrontation was a fast moving, demanding situation and I find that Bhandari overreacted to what he perceived, rightly or wrongly, as a potential threat. I am prepared to accept that Bhandari’s reactions and recollection were coloured by the rapid moving, stressful nature of the episode. The fact that he remembers the situation inaccurately does not, in my view, mean that he fabricated the evidence.

[33] That being said, I am also of the view that the detention was conducted unreasonably and there was a breach of Barton’s section 9 Charter rights. There was no cause to force Barton onto the ground, a position that meant Bhandari’s knee was placed on his back until he could be restrained with handcuffs. I am also of the view that the search carried out by Thompson went beyond what was permissible in law. Although Thompson was entitled to conduct a pat-down search to confirm whether Barton was in possession of any weapons, his authority to put his hands into Barton’s pockets was dependent on the pat-down revealing the possibility of a weapon. Thompson conceded that it did not before he reached into Barton’s pockets. By continuing the search in the manner that he did, Thompson breached Barton’s section 8 rights in the same way that the police did in Mann.

[34] Finally, although Thompson testified that he administered the informational component of Barton’s right to counsel on his way to the police car, he conceded that he had asked Barton if anyone else was inside his apartment. That question, asked after Barton had expressed a desire to speak to counsel, was a violation of his section 10(b) Charter rights. The breach, however, was relatively minor in its impact. This court heard that Barton was asked whether anyone else was in the apartment leading to the response that Jacobs was present. Furthermore, it is not disputed that after being taken to the station, Barton’s Charter rights were fully respected.

[35] Turning to section 24(2) of the Charter, I find that the evidence obtained - in this case the substances found in Barton’s pockets and the utterance by Barton - should be excluded. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the court found that three factors decided admissibility of evidence found as a result of a Charter violation:

(1) The seriousness of the breach;

(2) The impact of the breach on the Charter-protected interests of an accused; and

(3) Society’s interests in the adjudication of the case on its merits.

[36] In my view, the actions of the police fall on the more serious side of the spectrum. Even though Barton’s detention before arrest was relatively short and there was no indication of any injuries, his forced placement on the ground was unwarranted and, in the face of the video evidence, unreasonable. Even though I have found that neither Thompson nor Bhandari fabricated their evidence, their actions in this case were high handed and unnecessary. The searching of Barton’s pockets was impermissible and Thompson should have been aware of the limits of his search for any weapons as explained in Mann. I also find that the searching of Barton’s pockets impacted on his privacy interests in a significant manner. Finally, although the exclusion of the evidence will result in the end of any prosecution for possession of drugs and would therefore impact societal interest in the adjudication of the case on its merits, this factor is more than outweighed by the previous two and must result in the exclusion of the substances found in Barton’s pockets: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 at paras. 59-64.

[37] I understand that the Crown does not intend to lead the utterance by Barton that Jacobs was inside the apartment at trial. For completeness sake, I would also exclude it under section 24(2) of the Charter under the Grant principles.

[38] Finally, I note that Barton brings an application under sections 7 and 11(e) of the Charter that his right to a reasonable bail was breached because he was not brought before a justice of the peace within 24 hours of his arrest pursuant to s. 503 of the Criminal Code, RSC 1985, c C-46. This situation occurred because Barton was arrested in the early hours of Saturday morning; by the time he was ready to be brought to court, the weekend bail court sitting at Old City Hall had already adjourned for the day meaning that Barton had to wait until the next morning, 26 April 2016 to appear before a justice pursuant to s. 503(b) of the Criminal Code. It is not clear if another justice was available by phone, but even if one were, I would not find a Charter breach. This was not a deliberate act to obtain evidence or a lengthy delay beyond the statutory limit but an unfortunate confluence of events and the police immediately rectified the situation by bringing Barton to court the next day, mere hours after the expiry of the 24-hour limit.

III. THE POLICE ENTRY INTO UNIT 7

The Position of the Parties

[39] Mr. Lockhart concedes that the police’s warrantless entry into Unit 7 was a breach of Barton’s section 8 Charter rights and that all observations made pursuant to that entry should be excluded as evidence. That concession ends the immediate admissibility inquiry but, as part of a larger argument, Mr. Rusonik urges this court to find that the police behaviour in seeking to force their way into the apartment was a product of a deliberate plan undertaken in the full knowledge that it would result in a breach of Barton’s constitutional rights. He argues the police had one goal: to enter Barton’s apartment knowing that there were no legal grounds to do so. He urges this court to find that the lead police investigator, Sergeant Alderdice, not only breached Barton’s rights but lied to the court in testifying that he believed that exigent circumstances required the police to enter Unit 7. This belief, argues Mr. Rusonik, was invented ex post facto, in order to explain and justify the police actions in entering Barton’s apartment.

Factual Background

[40] Alderdice and Constable Joseph Kovacic arrived on scene at approximately 11:38 p.m. Alderdice acknowledged, in his testimony, that Thompson had requested a meeting prior to entering the building “to make a plan” but testified that he and Kovacic arrived quickly and did not recall hearing the request at the time it was made. Alderdice and Kovacics entered 36 Twelfth Street together and can be seen on the video footage as passing Thompson and Bhandari after they have placed Barton on the ground of the second floor landing.

[41] Joined by other members of the police team, Alderdice and Kovacic approached Unit 7 with their guns drawn. Repeated attempts were made to forcibly enter Unit 7 by kicking at the door and attempting to obtain keys to enter the apartment. Those attempts proved unsuccessful. Fearing that there might be persons with guns behind the door, Alderdice instructed his team to use a laundry rope to tie the door handle to a nearby stair bannister. As described previously, his reasons for doing so were to ensure that any exit from Unit 7 would be controlled and that the police could not be taken by surprise by anyone inside quickly opening the door and opening fire on the officers outside.

[42] The lack of success in breaching the door to Unit 7 resulted in a call to the ETF for assistance. Sergeant Oswald Veit, the leader of the team that arrived at 36 Twelfth Street engaged in a discussion with Alderdice with respect to entry into the apartment. In Veit’s view, there were no grounds to enter the apartment without a warrant. Alderdice disagreed, believing that exigent circumstances obviated the need for a warrant. Unable to agree, Veit informed Alderdice that his team would be prepared to assist only if a warrant was obtained.

[43] Further attempts were made to enter the unit. A plant situated approximately one metre from the door was moved in order make space for the police. Alderdice tried opening the door using keys obtained from the building superintendent. Shortly afterwards, one of the team, Constable Matthew Saris, drew attention to the presence of a drawstring protruding from the cylinder upon which the plant had been located. A police search revealed the TEC-DC9 contained in a bag bearing the logo of “Popeye’s Supplements”.

[44] The police called for any occupants of Unit 7 to exit and attempted to pick the lock. Eventually Jacobs emerged from the apartment and officers entered to “clear the scene” and make sure no one was hiding within the apartment. After doing so, Alderdice returned to enter the apartment briefly on two other occasions. The first was to retrieve Jacobs’ purse upon her request; the second was to retrieve keys to the apartment. There were no further entries into the apartment until after a search warrant had been obtained and executed.

Did Alderdice Fabricate His Evidence?

[45] Mr. Rusonik argues that despite assertions to the contrary, Alderdice knew from the outset that there was no exigency and further, that the evidence establishes Alderdice’s justification as being concocted after the event to explain his actions.

[46] Since R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, the police may enter a dwelling without a warrant if they believe that it is necessary to protect life, prevent death or serious injury, and ensure the safety of the occupants. Alderdice testified that he felt that it was necessary to enter Unit 7 in order to deal with either a hostage situation or additional potential occupants in possession of guns. The discovery of the TEC-DC9 added to that belief because of the rarity of the gun. Alderdice testified that the anonymous tip that suggested someone inside the apartment had a gun also factored into his belief that Unit 7 should be entered immediately. His concerns were to protect the safety of his fellow officers as well as potential victims therein.

[47] The difficulty with Alderdice’s belief is that there was very little objective evidence to demonstrate the existence of exigent circumstances. As Mr. Rusonik points out, Alderdice had no information that other persons were in the apartment. Moreover, Alderdice testified that neither he nor the rest of his team heard any sounds emanating from Unit 7.

[48] It is troubling that an officer with Alderdice’s experience would draw the conclusions that he did. More troubling is the fact that, when advised by Veit, an experienced ETF officer, that a warrant was necessary, Alderdice forged on with his efforts without taking a moment to at least ponder the possibility that Veit might be correct.

[49] That being said, having seen and heard the evidence of the witnesses, I do not find that Alderdice fabricated his belief of exigent circumstances after the fact: he was genuine to the point of being dogmatic in his belief.

[50] Mr. Rusonik points to an alleged discrepancy between Veit’s and Alderdice’s evidence with respect to their conversation. Mr. Rusonik argues that Alderdice testified that he told Veit of his belief that there were persons with guns inside the apartment and there might be potential hostages whereas Veit testified that he did not hear anything like that.

[51] The precise details of what Alderdice told Veit about his particular beliefs with respect to the situation inside 36 Twelfth Street are unclear. A review of the evidence indicates that Alderdice told Veit that he felt the presence of a gun meant that there were exigent circumstances. In his examination-in-chief, Alderdice testified that he articulated everything he knew about the case to Veit and that he had been “full, fair and frank” with all the information provided. In cross-examination, Alderdice told the court that he gave Veit “everything that I had”. I understand Alderdice’s testimony of being “full fair and frank” and giving “everything I had” to mean that he told Veit of the information derived from the tip. I do not interpret his evidence as testimony that he told Veit that there were hostages or gunmen inside the apartment. From the evidence adduced, I cannot say that Alderdice’s evidence was so different from Veit’s that Alderdice is guilty of fabrication.

[52] Nor do I take much from lack of checked boxes in the Use of Force Report tendered as an exhibit. Alderdice testified that the software controlling the completion of the report on a computer only allowed the checking off of one box and Alderdice chose to check the box indicating the police drew and pointed their handguns in order to protect themselves.

[53] The one thing that was obvious in Alderdice’s testimony and actions was that he had an honest and genuine concern that exigent circumstances existed as a result of the tip. In his mind he had “a duty to get inside” right away. He was wrong. I find that Alderdice took an inflexible and wrong-headed stance in relation to what was required, and what was constitutionally permissible when seeking to enter the apartment. Alderdice’s actions and instructions to his subordinate officers cannot be excused. This was a serious breach warranting the exclusion of any evidence obtained as a result of the warrantless entry. It was not, however, the product of a concocted plan to justify that search and deceive the court.

IV. DID BARTON AND JACOBS HAVE A REASONABLE EXPECTATION OF PRIVACY IN THE COMMON AREAS?

Position of the Parties

[54] As previously described the TEC-DC9 was found in a cylinder approximately one metre outside Barton’s apartment. Mr. Rusonik argues that there is evidence that the plant belonged to Barton and, that in any event, both Barton and Jacobs had a reasonable expectation of privacy in the hallway and other common areas of the building. By conducting a warrantless search, the police infringed both Barton and Jacobs’ section 8 rights.

[55] Mr. Lockhart, on the hand, argues that as the plant was located in a common area of the property, and belonged to neither Barton or Jacobs, there was no reasonable expectation of privacy in the cylinder in which the firearm was found. Accordingly, neither accused have standing to assert a Charter breach.

Factual Overview

[56] The property at 36 Twelfth Street was owned by Peter Di Pietrantonio who testified that it was a three floor building, housing nine units, and in April 2015, had roughly 16-17 residents with a superintendent living on site.

[57] There were two sets of external doors into the building, located on the north and south sides. Di Pietrantonio testified that the north door was locked continuously throughout the day. The south door, however, stayed unlocked from 5:00 am or 6:00 am until 10:30 to 11:00 p.m. Di Pietrantonio conceded that even though the door was to remain open during the daytime hours, there had been occasions when he had attended the building between those times and the door was locked. There was no buzzer system into the building but he had never noticed damage to either the north or south door. There was an additional difference between the two sets of doors: the north door would automatically lock behind someone exiting the building whereas the south door would remain open requiring the deadbolt to be turned from inside the building. In cross-examination, Di Pietrantonio agreed that it would be possible for tenants to lock the door behind them if they entered.

[58] Di Pietrantonio told the court that Barton had moved into Unit 7 around September 2014 as a sole tenant. As confirmation, a tenancy agreement filled in by Barton was tendered into evidence.

[59] There were security cameras located in the building which were easily visible. They varied in size and some were four to five inches in diameter. Di Pietrantonio could describe two occasions when non-tenants had wandered into the building.

[60] Di Pietrantonio also testified that the plants located outside Unit 7 had been there before he purchased the building and were watered, as far as he knew, by the Superintendent.

[61] All counsel agree that Di Pietrantonio was an honest witness with no motivation to tell anything other than the truth. Having reviewed his evidence, I can only concur.

[62] The defence called Ann Smith, Barton’s grandmother to give evidence. She told the court that on the occasions she visited Barton at 36 Twelfth Street, he would let her in to the building after she notified him that she was coming. Ms. Smith also indicated that Barton had been good with plants as a youth and she was under the impression that the plants outside Unit 7 belonged to him. She agreed that she had never seen Barton interacting with or watering the plants.

Legal Principles

[63] The burden of establishing a reasonable expectation of privacy rests on the accused: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45; R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at para. 47.

[64] In Edwards, at para. 45, the Supreme Court of Canada set out a number of non-exhaustive factors to be considered when determining the existence of a reasonable expectation of privacy. They include:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

(viii) However, Edwards, emphasised the importance of considering the question based on the totality of the circumstances.

(ix) The determination of a reasonable expectation of privacy proceeds in two steps:

(1) Did the accused have a subjective reasonable expectation of privacy and;

(2) Was that expectation objectively reasonable?

See also: R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 18.

[65] Until recently, the case law appeared to suggest that tenants in an apartment building had no reasonable expectation of privacy in the common areas: R. v. Drakes, 2009 ONCA 560, 2009 CarswellOnt 3937 at paras. 17-18; R. v. Verret, 2013 ABQB 658, 574 A.R. 212 at paras. 11, 17 and 22; R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 at 533 (Ont. C.A.); R. v. Thomsen, 2007 ONCA 878; R. v. Nguyen, 2008 ABQB 721, 462 A.R. 240 at paras. 28-31 and 161-8, aff'd (2010), R. v. Nguyen, 2010 ABCA 146; R. v. Webster, 2015 BCCA 286, [2015] B.C.W.L.D. 4907 at paras. 20-24, 36 and 73-7 (B.C.C.A.); R. v. Rogers (2014), 2014 SKQB 167, 2014 CarswellSask 378, (reversed on other grounds) 2016 SKCA 105, 484 Sask. R. 268.

[66] Both the Crown and the defence agree, however, that the jurisprudence had acknowledged the possibility of a reasonable expectation of privacy in an apartment hallway. In R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, that acknowledgement became a reality. There, the court found that multiple police entries into the common areas of a condominium building resulting in observations of the contents of the accused’s storage locker and the eavesdropping of conversations inside the unit were so intrusive that it could not be said that there was no reasonable expectation of privacy in the building’s hallways and common areas.

[67] I agree with Mr. Lockhart and Mr. Rusonik that White did not change the law but simply applied the pre-existing case law to a set of facts where the police acted in an egregious manner. For a detailed analysis see: R. v. Brewster, 2016 ONSC 4133, at para. 111, where Code J. conducts a comprehensive review of the law in this area with which I agree and adopt.

The Common Areas

[68] Mr. Rusonik submits that, after White, the police may enter an apartment building and investigate its hallways only if any one of three conditions has been met: (a) they have obtained a search warrant or (b) they have obtained the consent of the apartment building owner or (c) they have obtained the consent of one of the tenants.

[69] I reject this submission for the following reasons. First, it runs counter to established case law which states that the police have the implied right to knock on the front door of any dwelling to investigate criminal activity. In R. v. Tricker, (1995), 1995 CanLII 1268 (ON CA), 21 O.R. (3d) 575, at p. 579, the Court of Appeal for Ontario stated:

The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling. This proposition was laid down by the English Court of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407, [1967] 2 Q.B. 939.

This passage was cited with approval in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 13, where the Supreme Court of Canada noted, in the same paragraph that “the implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.”

[70] In R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A), the court tackled whether the implied invitation to knock was limited to the purpose of communication with the occupants of the dwelling. At para. 24, Sharpe J.A. expressed the view that the invitation went further:

The implied licence to knock discussed in Tricker, supra, and Evans, supra, appears to be specifically related to activities reasonably associated with the purpose of communicating directly with the owner or occupant. However, it seems to me that the underlying principle is a broader one. Licences may arise at common law by implication from the nature of the use to which the owner puts the property. As Prof. Ziff notes in Principles of Property Law (Carswell, 2d ed., 1996) at 274, licences may be implied "such as where a shop is open for business to the public at large." In my opinion, the implied invitation principle extends to situations where the very purpose of entry is to protect the interests of the property owner or occupant, particularly where the entry occurs on an area of the property to which all members of the public ordinarily have access to do business with the property owner. It is plainly in the interests of a property owner or occupant that the police investigate suspected crimes being committed against the owner or occupant upon the property. For that reason, absent notice to the contrary, a police officer may assume that entry for that purpose is by the implied invitation of the owner, particularly where entry is limited to areas of the property to which the owner has extended a general invitation to all members of the public. [emphasis added]

[71] Secondly, there is nothing in White to indicate that the manner of consent identified by Mr. Rusonik was a legal precondition to entry.

[72] Finally, and most significantly, Huscroft J.A. in White, made clear, at para. 51, that the police had “considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.” Imposing the conditions urged by Mr. Rusonik would lead to a severely restricted, rather than “considerable” ability to investigate.

[73] The case at bar is significantly different from White. Whilst the amount of residential units is similar, the police entry into 36 Twelfth Street was a single entry, unlike White where the police entered the building multiple times. The south doors were usually unlocked during the day hours whereas in White the doors were always locked and residents used an entry code system that the police bypassed, sometimes by deception. This was an important point in White where Huscroft J.A., at para. 47, held that the security system would operate to exclude strangers. Although the doors at 36 Twelfth Street would be expected to be locked by the superintendent at approximately 11pm, the fact that it was opened for most of the day would affect any reasonable expectation of privacy relating to the common areas. Moreover, neither Barton nor Jacobs owned Unit 7 as was the case in White.

[74] Further, in White, the police hid in stairwells and used trickery to gain entrance to the building in order to access information emanating from inside the accused’s apartment or to observe inside his storage locker. A similar instance can be found in R. v. Douale, 2016 ONSC 3912, 2016 CarswellOnt 9944, relied upon by Mr. Rusonik, where the police entered an apartment building and stood at the door of an apartment and surreptitiously listened to a telephone conversation occurring inside the apartment.

[75] The police discovery of the gun in the case at bar took place outside the apartment in the common areas of the hallway. There is nothing in Laurin, Thomsen or White that says the police cannot search objects outside a residential unit. That search involved moving the plant and removing the lid of the cylinder when a drawstring was noticed. I find nothing intrusive in the police actions and it would be difficult to argue that “a considerable ability to investigate” does not include the power to remove a lid on an object in a common area outside the apartment unit. I should also add that for the reasons set out below, I find as a fact that the plant and cylinder were the property of the building.

The Edwards Factors

[76] There was no direct evidence of a subjective expectation of privacy in either the common areas or the plant cylinder in which the TEC-DC9 was found. Neither accused testified and the court heard from no other witness giving evidence on that issue.

[77] I accept that a proprietary or possessory right in an object that is searched is not determinative: Edwards para. 43 and R. v. Pugliese (1992), 1992 CanLII 2781 (ON CA), 71 C.C.C. (3d) 295 (Ont. C.A). However, it is a factor to be taken into account. To that end, Mr. Rusonik sought to call Ms. Smith to support the inference that the plants belonged to Barton or that he had a subjective expectation of privacy therein. He relies on her “impression” borne out of: the proximity of the plant to his unit; the fact that it looked well-tended; Barton’s supposed love of plants when young; and an inadmissible hearsay conversation.

[78] Ms. Smith’s “impression” that the plant belonged to Barton is nothing more than lay opinion evidence of a fact which cannot be considered by this court. Although Mr. Rusonik relies on the comments regarding non-expert witnesses made in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, I find them inapplicable to this case. Graat was a case of impaired driving where the Supreme Court of Canada held that it was permissible for an officer to give his opinion that the accused was intoxicated. Dickson C.J. remarked, at p. 835, on the admissibility of non-expert witnesses:

The subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned in Sherrard v. Jacob, supra, is by no means exhaustive: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person--e.g. whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things--e.g. worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance.

[79] The court added that it was well established that a “non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state”.

[80] With respect to counsel, this list and the type of observations permitted therein is a far cry from admitting opinion of a fact in issue such as whether Barton owned or possessed the plant.

[81] Moreover, I place little weight on Ms. Smith’s testimony. Her evidence that Barton loved plants and would talk about them a great deal at an early age sheds little light on whether the plant outside his apartment belonged to him. Most significantly, the objective facts point to the opposite conclusion. Photographs taken inside Unit 7 after the execution of a search warrant illustrate the absence of any plants within the apartment save for an ornament consisting of dried sticks given to Barton by his grandmother. Ms. Smith never saw Barton water or otherwise interact with the plant outside Unit 7 and its well-being was just as likely the result of the care given to it by the superintendent who would have little reason to take care of the plant if it belonged to Barton.

[82] Finally, Di Pietrantonio, the building owner, and an honest and candid witness, testified that the plants were present before he purchased the building. This evidence was uncontradicted and I find it to be the truth. I find as a fact that the plant and the canister belonged to the building and not Barton.

[83] Taking into account the other Edwards factors, I find that neither accused had control of the hallway outside Unit 7 nor could they regulate access into the building which, in the normal course of affairs, was left unlocked on the south side for most of the day. Neither Barton or Jacobs could prevent other tenants or Di Pietrantonio from inviting guests, condominium staff, tradespeople and other miscellaneous people into the building or deny those same persons access into the hallways. This was noted in Edwards, at para. 49, to be “an important aspect of privacy”.

[84] I also find that there was very little objective basis for the existence of a reasonable expectation of privacy. The lack of ownership of the plants which were already in the building prior to Barton’s rental of the apartment impacts on the objective reasonableness of the expectation of privacy as does the fact that the superintendent could water them and ensure that they were in good condition. Surveillance cameras were located throughout the building and would not have gone unnoticed. Any person standing in the common areas would be aware that they were being recorded. The existence of these cameras further support the inference that the accused had given up a large part of their control over the expectation of privacy in the common areas.

[85] For the above reasons, I conclude that Barton and Jacobs did not have a reasonable expectation of privacy in the hallway outside Unit 7 where the firearm was found. Accordingly, they have no standing to pursue a section 8 Charter argument.

V. DID JACOBS HAVE A REASONABLE EXPECTATION OF PRIVACY IN UNIT 7?

Factual Background

[86] Although there is no dispute that Barton, as residing tenant of Unit 7, had a reasonable expectation of privacy in the apartment, Mr. Morris and Mr. Lockhart disagree over Jacobs’ standing to assert a section 8 right over the dwelling.

[87] Before turning to the Edwards argument, there are some additional facts that are worth repeating. Jacobs was arrested in the early hours of 25 April 2015 and taken to the police station to give a videotaped statement. When questioned about her presence in the apartment, Jacobs denied any knowledge of the firearm and explicitly stated that she did not live in the apartment or have a key for it. She denied staying there “for periods of time” and claimed that she was “just dating” Barton. At one point in the statement, she was unable to identify the specific address of the apartment building when asked.

[88] There is no dispute that Jacobs was provided with her right to counsel and that it was properly implemented. Mr. Morris, however, claims the statement is unreliable as Jacobs was induced to distance herself from the apartment because of Jacobs’ conversations with Constable Omar Ahmad prior to making the statement. Ahmad agreed that he had told Jacobs that if she wanted to provide a voluntary statement it would be helpful in determining whether the police believed that she had knowledge and possession of the gun.

[89] In essence, Mr. Morris argues that these comments constituted an inducement to Jacobs causing her to deny any connection to the apartment even though, in reality, she resided there with Barton. Mr. Morris points to evidence obtained from the video camera showing Jacobs, leaving and returning to the apartment carrying a laundry basket and using a key to open Unit 7 on 24 April 2015, hours before her arrest. He also relies on evidence given by Ann Smith suggesting that Jacobs was staying at the apartment.

The Evidence

[90] I reiterate the burden of establishing a reasonable expectation of privacy rests with Jacobs who did not testify.

[91] That, however, is not fatal to her claim. At the subjective stage of the test, the question is whether the applicant had or is presumed to have had, an expectation of privacy: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37. This is a low hurdle to overcome and in the case of a domestic residence, there is a presumption in the applicant’s favour. The reasonableness of a person’s belief is tested at the second stage - the objective component - of the analysis.

[92] The evidence before the court largely consists of Jacobs’ police statement, the video evidence, Ms. Smith’s observations, the evidence of Di Pietrantonio’s and the items found in Barton’s apartment after his arrest.

[93] Dealing with the subjective stage of the test, the difficulty for Jacobs is that the most direct evidence of her subjective expectation of privacy comes from her video statement given to the police hours after her arrest where she expressly disavows any interest in Unit 7.

[94] I have reviewed the video statement and the surrounding evidence and find the statement to have been made voluntarily. Jacobs was aware of her right to speak to counsel and was given that opportunity to speak with a lawyer before speaking to the police. Ahmad’s comments to her were simply a statement of the obvious and, in my view, he had a duty to provide her with information regarding any potential jeopardy: R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 202 O.A.C. 239 (C.A.); R. v. Fernandes, 2016 ONCA 772, 2016 CarswellOnt 16289. In addition, I find that Ahmad’s comments had no impact on her desire to distance herself from the apartment. It would have been very easy for Jacobs to simply deny knowledge of the TEC-DC9 whilst conceding that she resided at Unit 7 with Barton. Indeed, there was little reason to lie to the police knowing of the strong possibility that a search of the apartment might yield evidence to the contrary. Jacobs’ express denial of a connection to the apartment is direct evidence that she did not have a subjective reasonable expectation of privacy in the apartment.

[95] The other evidence in this case supports this proposition. Di Pietrantonio testified that Barton was the sole tenant listed on the tenancy agreement. Initially, he was unable to identify Jacobs as someone he had seen in the building but subsequently agreed that she was a “friend” who visited Barton frequently. Notably, Di Pietrantonio placed Jacobs in the same categories as other “friends” who visited Barton at the apartment, the only difference being that Jacobs was there more frequently, diminishing the notion that Jacobs was a domestic or romantic partner staying in Unit 7. Even more significantly, the photographs of Unit 7 taken by Constable Alekseeva show only male clothing found in the apartment.

[96] Ms. Smith was questioned on her observations and contact with Jacobs. She testified that she had seen Jacobs on two occasions, one of which was at 36 Twelfth Street when she was invited there for dinner. According to Ms. Smith, she saw Jacobs’ belongings in the apartment and when she arrived, Jacobs emerged from the bedroom after being cajoled to come out. After Barton’s arrest, Ms. Smith went to retrieve his belongings from Unit 7. She testified that Jacobs was not present. Ms. Smith’s observations of the apartment was there were some female hygiene items present such as shampoo. Ms. Smith assumed these belonged to Jacobs although, again there is no direct evidence on the point. However, I note that there were no descriptions of extensive cosmetics which would tend to the view that Jacobs resided at or stayed regularly in the apartment. The only item that could directly be ascribed to Jacobs was a tube of antibiotic cream in the name of Alycia Jacobs.

[97] Ms. Smith also indicated that there was a suitcase in the apartment which did not belong to Barton. Accordingly, she assumed that it must therefore have belonged to Jacobs. That, however, is not evidence that it did belong to Jacobs.

[98] I note that, on the two occasions when Ms. Smith returned to the apartment - to retrieve Barton’s belongings and clean up - Jacobs was not present.

[99] For these reasons, I find that Jacobs did not reside with Barton at Unit 7 and had no subjective expectation of privacy in the apartment.

The Edwards Factors

[100] If my conclusion on the subjective stage of the test is wrong, I would still hold that any expectation of privacy was not reasonable in the totality of the circumstances.

[101] At its highest, the evidence previously described demonstrates that Jacobs was an occasional overnight guest or visitor. Assuming that to be the case, I would find that Jacobs falls within the “privileged visitor” category as described in Edwards.

[102] There, the police suspected the accused of dealing drugs out of his car and keeping them at his or his girlfriend’s residence. The police tricked their way into his girlfriend’s apartment and found a significant amount of drugs. The Supreme Court of Canada found Edwards to have no reasonable expectation of privacy: he was a visitor who stayed over occasionally, kept a few belongings at the apartment and did not contribute to the rent or household expenses apart from helping his girlfriend buy a couch. Even though both he and his girlfriend had keys to the apartment, the accused was unable to exclude others from the property.

[103] In the case at bar, Jacobs is in a far weaker position than Edwards. At the highest, the evidence shows her to be an occasional overnight visitor. Unlike Edwards, no one has directly identified any items that could belong to a female as being hers. There is no evidence that she contributed to household expenses or even assisted in the purchase of any items inside the apartment. She denied residing at the apartment and according to her police statement, she did not possess any keys.

[104] Although she is seen, on the apartment cameras, carrying laundry to and from Unit 7 between 6:30 p.m. and 8:15 p.m. on 24 April 2015, and using keys to get into the apartment, this is far too short a time frame to constitute evidence to meet the Edwards threshold and consistent with her role as an occasional guest.

[105] Mr. Morris argues that in the list of Edwards factors, the most important is presence which is why it comes first. I reject this argument as there is no indication that the list in Edwards was intended to be hierarchical. The court in Edwards made plain that the “totality of the circumstances” had to be considered when deciding this issue.

[106] Further, in R. v. Reid, 2016 ONCA 944, the appellant argued his presence at the time of a police search was a factor that distinguished his case from Edwards. The court rejected that argument and upheld the trial judge’s decision that the appellant had no standing to mount a s. 8 challenge.

[107] For the above reasons, I find that Jacobs has failed to establish a reasonable expectation of privacy in Unit 7 and therefore has no standing to challenge any search therein.

VI. WAS JACOBS ARBITRARILY DETAINED IN BARTON’S APARTMENT?

[108] The defence argue that by attaching a laundry rope to the door handle of Unit 7, the police breached Jacobs’ section 7 and 9 Charter rights. Mr. Lockhart argues that the dearth of any evidence disclosing Jacobs’ state of mind when inside the apartment forecloses any notion of detention.

[109] I agree that there was no evidence that Jacobs was aware that a rope had been tied to the door handle. Nor is there any evidence to support Mr. Morris’ assertion that Jacobs would have been terrified inside the apartment when she heard the police shouting through the door for her to come out. I find no evidence whatsoever that Jacobs’ life, liberty and security were infringed by the police actions. Jacobs did not want to come out and was clearly concealing her presence from the police by remaining silent.

[110] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court of Canada defined detention as either psychological or physical restraint. In my view, when the police tied the rope to the door there was a physical restraint on Jacobs’ liberty and therefore a detention.

[111] The real issue in this matter is whether that detention was arbitrary. In R. v. Adams, 2011 NLCA 3, 267 C.C.C. (3d) 155, the court reviewed the meaning of “arbitrary” within the context of section 9 and, at para. 10, stated the test to be “whether the police officer had a ‘demonstrable rationale…which is sufficiently reasonable to have justified the detention’.” In the circumstances of this case, the police were entitled to knock on the door of Unit 7 to communicate with the occupants. As previously discussed, Alderdice had a genuine concern that there might be occupants within Unit 7 who possessed firearms which could be used against the officers in the hallway. Armed with this belief, the rope was necessary, in Alderdice’s mind, to control the opening of the door and prevent a rapid surprise attack. Although I have ruled that he had no grounds to enter the apartment, I find his belief to have been genuine based on the information provided in the tip and corroborated to some extent by Barton’s criminal history. Accordingly, although Alderdice’s beliefs were incorrect, the detention could be justified by a “demonstrable rationale”.

[112] I also note that the rope was used reasonably in these circumstances. Jacobs was not kept in Unit 7 against her will but was attempting to conceal herself in the apartment. I repeat that there is no evidence that she even knew a rope had been connected to the door handle. Nor was there any real obstruction to her leaving the apartment: as soon as she indicated that she was coming out, she was allowed to do so.

[113] For the above reasons, I find there was no breach of Jacobs’ Charter rights.

VII. WAS THE FIREARM OBTAINED IN A MANNER THAT INFRINGED THE APPLICANTS CHARTER RIGHTS?

[114] Barton and Jacobs argue that even if no reasonable expectation of privacy existed in the common areas of 36 Twelfth Street, the TEC-DC9 was obtained in a manner that infringed Barton and Jacobs’ rights under section 24(2) of the Charter. They submit that the breaches, committed by the police when detaining Barton and entering his apartment without a warrant provide a strong causal and/or temporal connection to the discovery of the firearm. As such, the evidence should be excluded using the Grant factors outlined above. Mr. Lockhart, on the other hand, counters by arguing that a finding of no reasonable expectation of privacy bars any finding that the gun was “obtained in a manner”. For the reasons set out below, I find that discovery of the firearm was not “obtained in a manner” within the meaning of s. 24(2) of the Charter.

Legal Principles

[115] I disagree with Mr. Lockhart that a finding of a lack of reasonable expectation of privacy forecloses the possibility that the firearm was obtained in a manner that infringed the accused’s Charter rights. However, that finding does have a role to play in deciding the question.

[116] Section 24(2) of the Charter provides that:

24(2) Where, in proceedings under subsection (1), 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.

[117] Thus, only evidence obtained in a manner that infringed or denied the Charter rights of the accused become subject to the principles of exclusion propounded in Grant and subsequent cases. The fact that a particular piece of evidence did not attract a reasonable expectation of privacy independent of a prior or subsequent breach is immaterial if its discovery was the result of an independent Charter breach.

[118] The law has moved away from the notion that only a causal connection between the breach and the evidence obtained is determinative of the issue: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 24. In Goldhart, the Supreme Court of Canada approved an approach which requires examining the whole of the relationship between the evidence and the breach: the court has to examine both the temporal and causal link between the two. At para. 40, the court summarised the test in the following way:

Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationship between the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporal connection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter breach is a question of fact. Accordingly, the applicability of s. 24(2) will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan.

[119] In the more recent case of R. v. Edwards (appeal by Pino), 2016 ONCA 389, 130 O.R. (3d) 561, the Court of Appeal for Ontario held that evidence discovered prior to a breach may still be subject to scrutiny under section 24(2) if the temporal connection is sufficiently strong. Writing for the court, Laskin J.A., at para. 72, outlined the factors to be taken into account when deciding whether evidence had been “obtained in a manner”:

• The approach should be generous, consistent with the purpose of s. 24(2)

• The court should consider the entire "chain of events" between the accused and the police

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections

• But the connection cannot be either too tenuous or too remote.

Application of the Test

[120] The section 8, 9 and 10(b) breaches committed when Barton was detained and subsequently arrested did not cause the discovery of the TEC-DC9. Further, the temporal connection between the detention and the finding of the firearm - the time period of approximately one and a half hours between the two events and the fact that both occurred in the same building - is insufficient to permit a finding that the firearm was obtained in manner that infringed Barton’s rights. In other words, I find the connection between the earlier breaches of Barton’s rights and the subsequent discovery of the gun in the common areas of the hallway to be tenuous.

[121] Mr. Rusonik, however, goes further and seeks to link Barton’s detention to the police conduct in seeking to enter the apartment. He argues that the conduct as a whole creates a sufficiently strong temporal connection to the finding of the firearm which was only discovered after the police moved the plant off the canister in which the TEC-DC9 was found. For the following reasons, I disagree.

[122] First, as with the breaches committed when Barton was detained, there is no causal connection between the breach of Barton’s section 8 rights and the discovery of the firearm. In other words, the pushing at the door, the use of the keys to attempt to enter Unit 7, and the subsequent warrantless entries did not cause the police to discover the gun. Whilst it could be argued there is a temporal or contextual link between finding the firearm and the Charter breaches, I find that link to be too tenuous to be of significance.

[123] It is true that the police moved the plant on top of the cylinder to provide some room for the various officers in their attempts to enter the apartment. That conduct, in itself, did not lead to the discovery of the firearm. It was the subsequent sighting of the drawstring coming out of the cylinder that caught the police attention. It was not made clear, in evidence, whether the plant actually obscured the drawstring i.e. if the plant had not been moved the drawstring could not have been seen or whether the police would have, at some point, noticed the bag handle. Even if the plant did obscure the cylinder, it would be of very little importance. I have already held that there was no reasonable expectation of privacy in the common areas of the hallway. The police were entitled to search the plant and cylinder without a warrant and it is inconceivable that they would not have done so after Barton and Jacobs’ arrest, given what was observed in the video surveillance.

[124] Nor do I find the motivation to find a key in the cylinder to be of any assistance to the accused in this argument: it would be hard to imagine the police not opening the cylinder once they saw the handle of the bag even if they were not looking for a key.

[125] Although I accept there was some temporal connection between the section 8 breach and the discovery of the TEC-DC9 in time and proximity, I find that connection to be too tenuous and remote.

[126] I conclude therefore that the accidental discovery of the TEC-DC9 was not causally or temporally related to the previous breaches of the Charter that I have found. I also repeat my earlier finding that the plant and the cylinder in which the gun was discovered were items of property belonging to the building and neither accused had any reasonable expectation of privacy in it. Irrespective of the previous breaches, I find that the police would have searched the plant and the cylinder, in any event, particularly after viewing Barton and Jacobs’ interactions with those objects on the surveillance footage. Even on a “generous approach” it is hard to imagine describing the finding of a firearm, stumbled upon by luck and/or accident, in an object free from any reasonable expectation of privacy, to have been obtained in a manner that infringed or denied the accuseds’ Charter rights.

VIII. WAS THE EXECUTION OF THE SEARCH WARRANT A BREACH OF BARTON’S CHARTER RIGHTS?

Factual Background

[127] On 25 April 2015, after arresting both Barton and Jacobs, the police executed a search warrant authorised by Justice of the Peace Prestage. The resulting search of Unit 7 led the police to discover a number of items pertinent to investigation namely ammunition compatible with the TEC-DC9 found in the cylinder, a Popeyes Supplement bag, and body armour found in a clothes closet.

[128] Having found that Jacobs had no reasonable expectation of privacy in the apartment it follows that only Barton has standing to challenge the warrant. Ms. Schneeweiss, counsel for Barton, submits that the Information to Obtain the warrant (ITO) is riddled with inaccuracies and erroneous information that requires excision, particularly after this court’s findings of Charter breaches. After the excisions, she argues that the ITO was deficient and that it could not have issued. Mr. Lockhart agrees that excisions are required but maintains that once that has taken place there is still sufficient information to provide the basis for authorization.

Legal Principles

[129] The principles governing the review of a judicially authorised warrant are well known. In reviewing an authorization, the reviewing judge does not conduct a de novo hearing of the validity of the authorization substituting his or her own view for that of the authorising justice but considers the record placed before the authorising judge as supplemented by the evidence tendered on the s. 8 motion and excising any misleading or unconstituionally obtained evidence, and decides whether it discloses sufficient evidence that might reasonably be believed on the basis of which the judge could have issued authorization: R. v. Garofoli, 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161, at p. 186; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, at para. 99.

[130] The ITO submitted for authorization must outline reasonable and probable grounds to believe an offence has been committed and that there is evidence to be found at the place of search: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 18. An authorization is presumed to be valid from the outset and the burden of establishing invalidity rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. It is only if the reviewing judge concludes that, on the material before the authorizing judge, as amplified by the evidence on the review, and the excision of erroneous and unconstitutionally obtained evidence, there was no basis upon which the authorizing judge could be satisfied that the conditions for granting the authorizations existed, that the authorization would be held to be invalid: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, sub. nom. R. v. Pires, at para. 8.

[131] The existence of errors within the ITO does not, of itself, destroy its validity. As both Ms. Schneeweiss and Mr. Lockhart acknowledge, those errors must be excised and whatever remains forms the basis of review for sufficient material justifying the authorisation. Not every error is excised - only those that an affiant knew or ought to have known were false or erroneous: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207 at para. 119. As well, any information redacted from the ITO on grounds of privilege cannot be considered unless the court engages in a “Step Six” analysis pursuant to the rules set out in Garofoli. Mr. Lockhart has indicated that if the court finds that the ITO, as it stands, could not have issued, he would make a an application to ask the court to consider the redacted portions of the ITO in making its determination. For the reasons developed in this judgment, I find it unnecessary to resort to the Step Six procedure.

The Contents of the ITO

[132] In attacking the ITO, Ms. Schneeweiss points to a variety of inaccuracies and material omissions. For instance, she submits that the affiant should have made clear that the “call” that brought the police to 36 Twelfth Street was from an anonymous informant or that it had not been a 911 call. Further examples relied upon include the failure of the police to corroborate the tip before attending 36 Twelfth Street and the unconstitutional searches endured by Barton. She also points to unclear language which she claims amounts to misrepresentation.

[133] In R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 57, the court made the following observation on the principles guiding the review of a search warrant:

[T]he central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.

[134] In my view, Ms. Schneeweiss’s arguments seem to fall foul of these comments and simply serve as a micro-examination of the details included in the ITO. As stated by the court in Araujo, at para. 46, “an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.”

[135] After excision of the errors and evidence obtained in a manner that breached Barton’s Charter rights, I find that the core of the ITO contains:

(1) The reasons for the police attendance at 36 Twelfth Street in the description of the “call for service” describing a person with a gun at 36 Twelfth Street Unit 7. The unredacted information in the ITO details the fact that the caller wished to remain anonymous and named Barton with an accompanying description.

(2) The police encounter with Barton where he was placed under investigative detention including his running towards the landing on the second floor.

(3) The details of the location of the plant and the subsequent discovery of the TEC-DC9 and Popeye Supplements bag in the cylinder situated approximately one metre from Unit 7 in the hallway.

(4) The police detention of Jacobs when she exited Unit 7.

(5) The fact that Barton was the sole tenant listed on the lease of Unit 7.

(6) Barton’s lengthy criminal record of 33 convictions including the following offences:

(a) 21 May 2003: Robbery - sentence of 57 days pre-sentence custody with 12 months’ probation.

(b) 29 June 2004 - Carrying Concealed Weapon and Dangerous Operation of Motor Vehicle - sentenced to 15 days custody in addition to 95 days pre-sentence custody.

(c) 23 August 2004: Unauthorized Possession of a Prohibited or Restricted Weapon; Fail to Comply with Probation - sentenced to 1-day custody in addition to 28 days pre-sentence custody and 12 months’ probation.

(d) 20 July 2005: Two counts of Pointing a Firearm; two counts of Uttering Threats; Carrying a Concealed Weapon, four counts of Fail to Comply with Probation; two counts of possession of a firearm or ammunition contrary to a prohibition order and possession of a weapon; two counts of careless storage of a firearm, possession of a schedule I substance and Theft Under $5000 - sentenced to 2 years plus 1 day in addition to 4 months pre-sentence custody on each charge and a section 109 prohibition order.

(e) 12 May 2008: Possession of a schedule I substance for the Purpose of Trafficking; Possession of a Prohibited or Restricted Firearm with ammunition; and Possession of a Firearm or Ammunition Contrary to Prohibition Order - sentenced to 30 months on top of 9 months pre-sentence custody on each charge and a mandatory section 109 prohibition order.

(f) 24 February 2009: Two counts of Carry Concealed Weapon: sentenced to 5 months custody in addition to the sentence he was already serving.

[136] The affidavit set out the grounds to believe that a search of Unit 7 would lead to evidence of the offence and assist in the investigation. The listed items were Popeye Supplement bags similar to the one in which the TEC-DC9 was found, ammunition which would form the substance of any charge and assist in linking the accused to the firearm and identification and documents in Barton’s name which would further link Barton to the apartment and its contents.

Could the ITO Have Issued?

[137] Ms. Schneeweiss contends that the tip can only be used as part of the narrative in the ITO to explain why the police attended 36 Twelfth Street. She argues that the tip fails to meet the threshold criteria set out in Debot and therefore cannot be used as part of the police’s reasonable and probable grounds basis to obtain authorization. Debot made clear that before being of sufficient value as part of the police’s reasonable and probable grounds to search, an informant’s tip had to be compelling, credible and confirmed. Although it comprises three prongs, it is a single test. As Wilson J. said in Debot, at para. 53:

I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

In other words, all three criteria need not be ticked off before the test is satisfied.

[138] Since the tip has largely been redacted, there can be no argument that the compelling strand of the Debot criteria is not met. Further since the tip was from an anonymous source, the police were in no position to test the credibility of its source. Mr. Lockhart concedes these points but argues that this is, in his words, one of the “red tick” cases where the confirmation is so potent that it more than compensates for the absence of the other two areas. The confirmation Mr. Lockhart relies upon is the discovery of the firearm which corroborates the tip information that there was “a person with a gun at 36 Twelfth Street, Unit 7”. In addition, Barton was named and, as Mr. Lockhart points out, there is very little doubt that he was “the person” referred to in the tip.

[139] Ms. Schneeweiss responds by asking this court to consider Jacobson where the issue was whether a Crimestoppers tip could form part of the grounds for obtaining a search warrant to enter the accused’s home and obtain evidence of marihuana production. Rosenberg J.A., writing for the court, found that the tip failed to meet the Debot criteria and was insufficient to form part of the grounds for obtaining the warrant.

[140] I reject this argument for the following reasons. The court in Jacobson did indeed find that the tip was neither compelling nor credible. It then turned to the issue of corroboration and determined that since the police were only able to confirm “broad outlines of information” they failed to authenticate the information that was significant. In my view, the court did not lay down a rule that an anonymous tip could never be used as part of the affiant’s ground but simply pointed out that there was inadequate corroboration to satisfy the Debot test. By performing the analysis, the court implicitly acknowledged that the anonymous tip was capable of being used if properly corroborated.

[141] The case at bar is very different from Jacobson in that respect. Here, the details of the tip relied upon - that there was “a person with a gun at 36 Twelfth Street, Unit 7” was corroborated in precise detail. Finally, Barton’s criminal record provides additional corroboration as Debot, at para. 57, makes clear. I agree with Mr. Lockhart that this is a case where the corroboration requirement is powerful enough to satisfy the Debot requirement despite the unavailability of the other two criteria.

[142] In my view, the anonymous tip, the accused’s criminal record detailing his history with firearms/weapons and the discovery of the firearm all provide a strong inference that evidence linking the accused with the found firearm would be found in his apartment. From the facts of this case, the authorising justice could, on the record before him, have issued the warrant.

For these reasons, I find no breach of Barton’s section 8 rights in respect of the warrant. Having found no breach, it is unnecessary for me to deal with the section 24(2) of the Charter.

CONCLUSION

For the above reasons, I find that:

(1) Barton’s section 8, 9 and 10(b) rights were breached. The drugs found upon him and the utterance that Jacobs was in the apartment is inadmissible under section 24(2) of the Charter. I understand that the Crown will not be leading this evidence at trial, in any case.

(2) Barton’s section 8 rights were breached when the police entered his apartment without a warrant. Any observations made inside the apartment prior to the execution of the search warrant are inadmissible at trial.

(3) There was no reasonable expectation of privacy in the common areas of the hallway where the firearm was found. Accordingly, Barton and Jacobs have no standing to challenge the seizure of the firearm which is admissible as evidence at the trial of the accused.

(4) Jacobs had no reasonable expectation of privacy in Unit 7, 36 Twelfth Street and therefore lacks standing to challenge the search warrant executed at the property.

(5) The search warrant executed at Unit 7, 36 Twelfth Street was a lawfully issued warrant and did not breach Barton’s section 8 rights. Any evidence found pursuant to its execution is admissible.

Akhtar J.

Released: 30 December 2016

CITATION: R. v. Barton and Jacobs, 2016 ONSC 8003

COURT FILE NO.: CR-16-50000462-0000

DATE: 20161230

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ZACHARY BARTON and JESSICA JACOBS

Defendants

REASONS FOR JUDGMENT

Akhtar J.

Released: 30 December 2016