Court File and Parties

Court File No.: CR-16-51 Date: September 11, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Caitlin Downing, for Her Majesty the Queen Respondent

- and -

RUDY SAWATZKY aka sawatzky, rudy Applicant Self-Represented Applicant; L. Goldstein as Amicus Curiae

HEARD: April 3, 2017

Decision

JAMES J.

Introduction

[1] This is a Charter application brought by Lorne Goldstein as amicus curiae on behalf of the unrepresented accused, Rudy Sawatsky, arising from a warrantless entry into Mr. Sawatzky’s residence in order to arrest him. For the purposes of these reasons, Mr. Sawatzky will be referred to as the applicant.

Facts

[2] On January 9th, 2016 at approximately 1:30 p.m., Mr. Michael Maybee and his spouse, Erin McCorkell, attended the applicant's residence located at 610 Cedargrove Road in Palmer Rapids. Mr. Maybee is a process server for Bancroft Processes and a retired police officer.

[3] At the material time the applicant was on bail awaiting trial on one assault charge and three counts of assault with intent to resist arrest. He was required to reside at 610 Cedargrove Road in Palmers Rapids, Ontario and was subject to a no weapons condition.

[4] As Mr. Maybee approached the residence on foot to serve the Statement of Claim upon the applicant, he heard the sound of metal tapping on a window. He looked at the source of the sound and observed a male with dark hair pointing a long gun at him. The male was observed in a shooter's stance with two hands on the firearm, butt stock to his shoulder, and right elbow extended outward. Mr. Maybee dropped the envelope and backed away. He returned to his vehicle where Ms. McCorkell was waiting and they drove a short distance away to call the police.

[5] Mr. Maybee informed the Provincial Communications Centre (PCC) that he was a process server and had gone to serve a process on the applicant at this residence. While doing so, an individual in the residence, believed to be the applicant, pointed a long gun at him from inside the house. He provided the applicant's name and date of birth. He also indicated that he only saw the applicant present at the residence. They remained parked along Cedargrove Road, near the above-mentioned address, to wait for police.

[6] Cst. Nisbet and Sgt. Sawbridge received the PCC dispatch at approximately 1:42 p.m. and arrived on location at approximately 2:42 p.m. Cedargrove Road is located in a relatively remote part of Renfrew County. Upon arrival they spoke with Ms. McCorkell and Mr. Maybee about the nature of the call and stayed on site watching the residence and the driveway until they were relieved by Emergency Response Team (“ERT”) members later in the day. During the time they were observing the residence, they did not see anyone coming or going from it.

[7] Sgt. Sawbridge discussed the situation with Sgt. Mike Poirier at the PCC and with his supervisor, Staff Sgt. Debbie Roy. The applicant was known to be an adherent to Freemen of the Land ideology and to have anti-government sentiments. Staff Sgt. Roy advised Sgt. Sawbridge that she would request additional support. There was some discussion of attempting to call the residence but Sgt. Poirier indicated that he didn’t have enough training to place a call and felt a trained negotiator was required.

[8] At about 4 p.m. Inspector David Springer was notified of the situation. Insp. Springer is a critical incidents commander with the O.P.P. He has 30 years’ experience as a police officer and has managed about 120 critical incidents since 2011. He authorized the activation of several specialized units within the O.P.P. including a crime unit, a mobile support unit, a tactics and rescue unit (“TRU”), a crisis negotiation team, an emergency response team and a canine unit. He referred to this as an integrated response which is a typical way of responding to a report of a person barricaded in a residence with a weapon. Also, the police were unsure whether there were any other occupants who may be at risk.

[9] In this case there was no evidence that the applicant had barricaded himself inside the house.

[10] Insp. Springer said that he has to be satisfied that there is a good reason to go on to the property. There is little doubt that the police had reasonable and probable grounds to arrest the person who had pointed the gun at Mr. Maybee.

[11] It took a few hours to get all the requested assets to the scene and in place. Members of the specialized units from various locations in eastern Ontario began arriving around 6 p.m. A complicating factor was that cell phone coverage in the area was spotty.

[12] Det/Sgt. Archambeault contacted Det/Cst. Holmes, who was off-duty, at about 4:30 p.m. and requested that he begin preparation of an information package about the applicant and a request for a warrant. Det/Cst. Holmes drove to his home detachment in Renfrew and did some preliminary searching and gathered some documents for the warrant request. At 5:48 p.m. Archambeault had arrived from the Arnprior detachment to pick him up and the two of them left for the Killaloe detachment. Holmes said the decision to travel to Killaloe with Archambeault was a judgment call. He was going to be part of the investigation team and said it can be helpful to be closer to the scene. He was contacted while on route by Insp. Springer who requested him to obtain additional information including past and present phone numbers that may have been connected with the applicant. They arrived at the Killaloe detachment at 6:35 p.m. Archambeault left for Barry’s Bay to speak with the complainant. Holmes spent about an hour collecting the information he was asked to obtain including information regarding the spouse of the applicant which he understood to be a priority assignment. When he sent the information package to Insp. Springer he was instructed to continue work on the warrant request. At about 8:10 p.m. he received a radio call from Insp. Springer inquiring about the status of the warrant request. He didn’t give a time estimate for its completion and Springer didn’t ask. It was a short discussion.

[13] D/Cst. Holmes testified that the cautions listed on CPIC for the applicant were “subject avoids arrest”, “violent” and “family violence”. The RMS system cautions were “violent or assaultive”, “resists arrest”, “family violence”, and that the applicant had Freeman of the Land ideologies but did not refer to himself as a “Freeman”.

[14] Cst. Mark Cordeiro was a TRU team member who arrived on scene at 6:43 p.m. Upon arrival he received an overview of the situation and a plan was developed. He stepped onto the property at approximately 7:06 p.m. The lights were out in the front of the residence. Other TRU team members took positions covering the house. Upon approaching the residence, Cst. Cordeiro could observe the applicant sleeping. There was a mickey of whiskey and some beer cans on the table in front of him. There was a rusted firearm (which turned out to be a shotgun) near or on the coatrack by the main door. According to Cst. Cordeiro, they deemed that there was no one else in the residence from what they could observe. The police utilized their sirens, lights and loud hailer for several minutes in an attempt to get the applicant’s attention to no avail. The police then utilized a “flash bang” – a distraction device – to get the applicant’s attention. It was deployed right beside the door to the house yet there was no response. Afterwards the police continued with the lights, sirens and loud hailing with no response.

[15] A little while later the applicant woke up, got out of his chair and began to move around. The police used a second distraction device and loud hailing which got the applicant's attention. The applicant put on a bathrobe and opened the main door. He started talking to the negotiators. He was advised that they were the police and that they wanted him to come out. He responded by saying "I'm not coming out. You come in. You can come in here. I'm not coming out". There were a few minutes of banter back and forth. At that point, Cst. Cordeiro observed the applicant grab the barrel of a second firearm that the police had not noticed. He took the gun to a room out of Cst. Cordeiro’s view and returned a few minutes later. After a few minutes in the living room, the applicant went out of view again. Cst. Cordeiro believed there may have been a back door and that the applicant would try to evade police. Cst. Cordeiro then saw the applicant coming down the stairs from the loft area with a big tote with items in it.

[16] At this point, the applicant noticed Cst. Cordeiro in the window and yelled at him “come on in”. Cst. Cordeiro then yelled “I want you to come out”. The two began a verbal banter with the Applicant asking the police to enter. The applicant indicated that he didn’t trust police. While the Applicant was not aggressive with Cst. Cordeiro he repeated that the police had no authority over him and he wasn’t going to come out. He indicated to Cst. Cordeiro that if he wanted to come in he could and he would let him into the house but he would not turn himself over. During these conversations, it was determined that the applicant had a beer with him. The applicant had a tone of annoyance in his voice and reiterated that they had no authority over him. When Cordeiro reported to the mobile command center that there were no weapons close to where the applicant was located and that a surprise entry could be made safely, Insp. Springer authorized the TRU team that was staged near the back door to enter the house and take the applicant into custody without a warrant.

[17] Cst. Larsen was part of the arrest team and at approximately 8:34 p.m. he approached the main door. He opened the door and made entry into the residence. At that point Cst. Larsen searched the rest of the residence to ensure there was nobody else in there. They did not locate anyone else present in the residence. While searching the residence, Cst. Larsen observed a rifle in the bedroom. He left the rifle in place and continued searching the residence for individuals.

[18] After the applicant’s arrest, Cst. Nisbet entered the residence and seized the firearm leaning on a rack at the door to the residence. Sgt. Sawbridge entered the residence with Cst. Nisbet and was advised by a TRU officer that there was a firearm in the bedroom tucked under a cushion or blanket. He located and seized the firearm. The scene was then secured in order to obtain a search warrant.

[19] At about 8:40 p.m. Det/Cst Holmes was advised by Det/Sgt Archambeault that the applicant had been arrested. Holmes said the arrest warrant request was still in its early stages of preparation; there were still “hours of work” to get it ready.

[20] When he wrote the request for a search warrant the next day, the task took about 7 hours.

[21] The search warrant was executed on 11 January 2016 and ammunition and a third firearm were discovered.

[22] Det/Cst Holmes said that he did not have much experience preparing requests for warrants. He had been with the Crime Unit for about two months at the time. This was the third time he had prepared a package to obtain a warrant and he had never drafted a telewarrant before.

[23] Det/Sgt Archambeault said that he had worked on about a hundred warrants during his career, including 10 to 15 telewarrants. He estimated that in his experience it took about 12 hours to draft a request for a warrant in these circumstances.

Position of the Parties

[24] On behalf of the applicant Mr. Goldstein says that the police should have waited for a warrant. There was no imminent threat or risk of violence. It took too long to prepare the request for a warrant. Illegally-obtained information gleaned from the warrantless search was used to obtain the search warrant. The evidence seized during the search ought to be excluded pursuant to s. 24(2) of the Charter.

[25] Crown counsel says the decision to enter the residence to effect an arrest was not taken lightly. The more the police interacted with the applicant the more annoyed he got. The police were faced with a volatile situation and reasonably decided that the entry was justified due to exigent circumstances.

Issues

[26] The warrantless entry to arrest the applicant gave the police an opportunity to obtain information that was used to obtain a search warrant that in turn led to the recovery of evidence that became the basis of additional charges against the applicant. Was the initial warrantless entry lawful such that the subsequently-obtained evidence ought to be admissible against the applicant?

[27] More specifically, was this a situation that constituted exigent circumstances justifying the warrantless entry into the residence?

Applicable Principles

[28] The power of police to effect an arrest without a warrant is contained in s. 495 of the Criminal Code.

[29] At common law there was little protection against police entry into a dwelling house to make an arrest. The decision of the Supreme Court of Canada in R. v. Feeney, [1997] 2 S.C.R. 13 determined that some of the common law rules respecting police arrest powers did not pass Charter scrutiny. As a result of Feeney, the judicial pre-authorization requirement that applied to entry to conduct a search was extended to entry to effect an arrest.

[30] There are exceptions. Section 529.3 permits entry to make an arrest where exigent circumstances make it impractical to obtain a warrant and the common law exception in the case of hot pursuit was specifically continued in Feeney.

[31] “Exigent circumstances” include circumstances in which the police have reasonable grounds to suspect that entry into the dwelling house is necessary to prevent imminent bodily harm or death to any person (s. 529.3(2)(a)).

The Principles Applied

[32] The expression “exigent circumstances” means more than convenience, propitiousness or economy, but rather denotes urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. The circumstances must render it “impractical” to obtain a warrant (See R. v. Patterson, 2017 SCC 15 at paras. 33, 34).

[33] A reasonable suspicion that someone else may be in the residence can justify a warrantless entry in order to protect the safety of others (See R. v. Golub, at para. 46), but in this case there was no evidence that there was anyone else in the home.

[34] The factors in favour of waiting for a warrant include the following: a. There was no evidence that the applicant had “barricaded” himself in the residence; b. The applicant was not aggressive towards the police; c. The applicant did not make any threats; d. There was no evidence of other persons in the house whose safety may have been at risk; e. The applicant had not taken any steps towards harming himself.

[35] The factors in favour of entering the dwelling house without a warrant include the following: a. The availability of a warrant was still hours away but Insp. Springer did not specifically inquire how much longer the preparation of the necessary documentation would take; b. There was a risk that the applicant may hurt himself while they waited. He had previously made a comment to the police to the effect of “why don’t you just shoot me” and there was evidence he had been drinking; c. There was a risk that the applicant would grow impatient with the stand-off. The police had a duty to prevent the applicant from exiting the house and leaving the area and to prevent anyone from going into the house. They didn’t want the applicant to slip out of the house under the cover of darkness. The police weren’t going anywhere; d. The evidence of Cst. Cordeiro was that as his conversation progressed with the applicant, the applicant grew more agitated. There was no way of knowing whether or when the potential for violence could increase due to the continuing police presence; e. It was highly impractical to maintain the police positions indefinitely while they waited for a warrant to be signed. It was a winter night in January. The location was remote and isolated. The police officers were mostly outside. Obtaining additional officers to relieve those keeping watch would be difficult and there was no convenient place nearby where the officers could warm up, get something to eat or rest; f. At some point the police were likely going to have to enter the house. The applicant had already refused to come out. The applicant was armed. It would be safer to enter at a time and in a manner that minimized the potential for someone to get hurt.

[36] I have concluded that the situation encountered by Insp. Springer that night amounted to exigent circumstances justifying a warrantless entry into the house to arrest the applicant.

[37] I acknowledge that he was under to pressure to act even if his actions would not pass Charter scrutiny. As Mr. Goldstein pointed out, he had a small army on hand. The psychological imperative was that they couldn’t just wait. Something had to be done sooner rather than later. Mr. Goldstein contends that the police went in to the residence as a matter of convenience.

[38] More telling to me was the obvious need to bring the matter to a safe conclusion. From the police commander’s perspective, a number of risk factors were present. There were guns in the house. One was propped against the wall near where the applicant was sitting. The applicant had pointed a gun at someone earlier that day. Police computer coding, whether correctly or incorrectly, had labelled the applicant as a violent person, with anti-government ideologies and as someone who had shown an inclination to resist arrest. Viewed objectively, in my opinion these were all reasonable considerations.

[39] It follows that if the warrantless entry to make the arrest was lawful, a cursory search of the premises incident to the arrest was also lawful. The police needed to confirm if there was anyone else in the house. There may have been obvious hazards to be deal with. During this search a gun was found, not well hidden, in the bedroom.

[40] The evidence respecting the scope of the search and how it was conducted does not raise Charter concerns that the searching was overly-intrusive.

[41] A search warrant was prepared the next day and evidence was obtained pursuant to the execution of the warrant that formed the basis for several additional charges.

The Section 24(2) Analysis

[42] If I am mistaken in concluding the initial entry was lawful, then the subsequently-acquired evidence was illegally obtained. When evidence is obtained improperly, the court must perform an analysis to determine whether the tainted evidence ought to be admissible or inadmissible at the trial against the applicant.

i) Seriousness of the Charter breach

[43] Unauthorized police entry into someone’s home is always a serious matter.

[44] This case can be differentiated from more egregious situations where there are inadequate grounds to support a warrant. This was not a case where the police were going to have difficulty persuading a judicial officer to grant a properly prepared request.

[45] Although neither counsel emphasized this point, recall that the applicant actually invited the police to enter the home when he opened the front door of the house and conversed with them. He must have known that if he was not prepared to exit the house, at some point the police were going to come in to get him.

[46] The police entry was through an unlocked door. They simply turned the door handle and rushed in. Nothing was broken or forced open.

[47] The ensuing search of the premises was not overly-intrusive.

[48] The police do not appear to have acted in bad faith.

[49] In summary, I would place a Charter breach, if indeed one occurred, at the low-moderate part of the spectrum.

ii) Impact of the breach on the applicant’s Charter-protected interests

[50] Citizens are entitled to a high expectation of privacy in their homes.

[51] In this case, the applicant had an opportunity to consider the possibility that the police were going to make an entry. The may have entered unexpectedly and without warning but the applicant was certainly aware that they were outside the house and that they wanted him to come out, which he refused to do. Also, as mentioned, he invited them in.

[52] While the search of the house does not appear to have been excessive, being a search for other persons and for safety purposes, it resulted in the discovery of weapons and ammunition which have become the subject matter of additional charges.

[53] I would assess the impact of the breach as moderate.

iii) Society’s interest in an adjudication on the merits

[54] The impugned search of the residence resulted in the recovery of the shotgun that was visible in the main living area and a .22 calibre rifle in a bedroom. This gun was observed the night of the arrest. The precise location of the gun is unclear to me. There was mention of it being behind and on top of a dresser. It was covered with a blanket or placed in the fold of a lawn chair cushion. At a minimum there was some effort to make it less visible. This weapon was likely the gun Cordeiro saw the applicant take into a room out of Cordeiro’s view.

[55] A third gun, another shotgun, was found when the search warrant was executed. Some ammunition was discovered as well. None of the guns were loaded. There were no trigger locks installed.

[56] At the material time the applicant was subject to a bail condition that he was not to possess any weapons. The discovery of the guns is relevant and reliable evidence of a breach of his recognizance as well as the careless storage charges.

[57] The breach of recognizance and careless storage charges are, in a sense, collateral to the other charges which are related to the applicant’s behavior when the process server approached the residence. A stay on the careless storage and breach charges would not affect the remaining charges and there would still be an adjudication on the merits of the remaining charges. In my view there is not a high societal interest on an adjudication on the merits.

iv) Balancing

[58] Balancing these considerations, if the warrantless arrest was unlawful, I would hold that the subsequent search was unlawful as well and the evidence obtained as a result of that search should be excluded.

[59] The reliability of evidence should not be permitted to overwhelm the s. 24(2) analysis and in McGuffie, 2016 ONCA 365 at para. 65 Doherty J.A. said that where the first and second factors favour exclusion, the third factor “will seldom, if ever, tip the balance in favour of admissibility”.

Disposition

[60] The application is dismissed.

Mr. Justice Martin James

DATE RELEASED: September 11, 2011

COURT FILE NO.: CR-16-51 DATE: September 11, 2017 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent

• and – RUDY SAWATZKY Applicant DECISION James J.

DATE RELEASED: September 11, 2017