COURT FILE NO.: 62695/14

DATE: 20180809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADONAY ZEKARIAS

Defendant

Ms. Mary Humphrey and Ms. Meghan Scott, for the Crown

Ms. Alison Craig and Mr. Craig Zeeh, for the Defendant

Mr. Paul Cooper and Ms. Lisa Jorgensen, Amicus Curiae

HEARD: September 22, 25, 27, 28, October 2, 3, 5, 6, 10 and 17, 2017.

PRE-TRIAL RULING

ADMISSIBILITY OF EVIDENCE SEIZED FROM THE APARTMENT OF THE DEFENDANT IN SEARCHES OF MAY 29, 2013 AND MAY 31, 2013

M. F BROWN J.

I. OVERVIEW

[1] This is an application by the defence to exclude from evidence at this trial physical items seized by the police from the defendant’s apartment (a) on May 29, 2013 on the basis of a search warrant issued on May 28, 2013 and (b) on May 31, 2013 on the basis of a search warrant issued that same day on May 31, 2013. Of interest to the Crown in this trial from the searches are primarily the items of physical evidence itemized at Exhibit 11 of the voir dire.

[2] On October 17, 2017, I gave oral reasons dismissing this application of the defence and finding that the evidence seized by the police in the searches of the defendant’s apartment of May 29 and May 31, 2013 was admissible at trial. At that time I found that the warrantless entry and search of the defendant’s apartment by the police of May 26, 2013 was not a violation of s. 8 of the Charter. However, I did find that the police looking through the mail slot of the door of the defendant’s apartment was a violation of s. 8 of the Charter and that the police violated s. 10(a) and s. 10(b) of the Charter when the defendant was initially detained by the police. I also indicated that even if I was wrong about the police warrantless entry and search of the defendant’s apartment on May 26, 2013 and such an entry and search was a violation of the defendant’s s. 8 Charter rights, I was of the view that such a violation either alone or in conjunction with any other Charter breaches would not result in the exclusion of the evidence seized by the police from the defendant’s apartment on May 29, 2013 and May 31, 2013 under s. 24(2) of the Charter. I indicated that I would provide more detailed reasons for my decision at a later date. These are those reasons.

[3] The defence submits that although the May 28, 2013 search warrant and the May 31, 2013 search warrant obtained by the police were valid, the seizure of the evidence in the searches on May 29, 2013 and May 31, 2013 was obtained in a manner that violated the s. 8 Charter rights of the defendant and should be excluded pursuant to s. 24(2) of the Charter. The defence concedes that when the information alleged to be illegally obtained by the police in their warrantless entry on May 26, 2013 is excluded from the Information To Obtain, the search warrants issued on May 28, 2013 and May 31, 2013 were still legally valid. The defence submits that between the initial date of entry by the police into the defendant’s apartment on May 26, 2013 and the dates the search warrants were issued on May 28, 2013 and May 31 2013, additional evidence was obtained that could have justified the issuance of the warrants.

[4] However, the defence submits that notwithstanding the fact that the warrants of May 28, 2013 and May 31, 2013 were valid, the validity of the search warrants does not end the inquiry as to the admissibility of the evidence when Charter infringements occurred during the investigative process that led to the searches and seizures at issue. See R. v. Strauss, 2017 ONCA 628 at para. 41.

[5] The defence submits that neither of the preconditions required under s. 487.11 of the Criminal Code existed when the police initially entered the defendant’s apartment on May 26, 2013 without a warrant. Accordingly, the defence submits there was a breach of the defendant’s s. 8 Charter rights which tainted the investigative process which led to the searches and seizures on May 29, 2013 and May 31, 2013.

[6] As well, the defence relies on other police conduct during the course of the police investigation prior to the issuance of the warrants on May 28, 2013 and May 31, 2013 that the defence submits resulted in various Charter breaches which also tainted the investigative process which led to the searches and seizures of May 29, 2013 and May 31, 2013.

[7] The defence submits that in all the circumstances the items seized in the May 29, 2013 search and the May 31, 2013 search were obtained in a manner that violated the defendant’s rights under the Charter and that those items seized should be excluded pursuant to s. 24(2) of the Charter as the admission into evidence in this trial of the items seized would bring the administration of justice into dispute. The defence submits that the May 31, 2013 warrant was merely an extension of the May 28, 2013 warrant and that the evidence must be excluded from both the searches conducted on May 29, 2013 and May 31, 2013.

II. ISSUES

[8] As noted, the defence argues that through their conduct the police violated a number of the defendant’s Charter rights during the course of the investigation process that led to the searches and seizures of May 29, 2013 and May 31, 2013.

[9] The various Charter infringements alleged are as follows:

(i) the police violated the defendant’s s. 8 Charter rights in the warrantless search of his apartment on May 26, 2013;

(ii) the police violated the defendant’s s. 8 Charter rights by looking through the mail slot of his apartment door before entering his apartment on May 26, 2013;

(iii) the police violated the defendant’s s. 9 Charter rights in unlawfully arresting him without reasonable grounds;

(iv) the police violated the defendant’s s. 10(a) and s. 10(b) Charter rights when he was first detained by the police on May 26, 2013;

(v) the police violated the defendant’s s. 8 Charter rights by a warrantless search and seizure of security videos relating to his apartment building at 101 Humber Blvd.;

(vi) the police violated the defendant’s s. 10(a) and s. 10(b) Charter rights in their interview with the defendant on May 27, 2013.

[10] I will deal with each of these alleged Charter infringements in turn. Before doing that, a brief factual background will put the issues in some context.

Factual Background

[11] On May 24, 2013 a black Tracker bag containing the torso of a female was found in a wooded area near 121 Humber Blvd. in Toronto. The torso was from the naval area to the knees. At the post-mortem examination on May 26, 2013, a receipt from Evergreen College in the name of Rigat Essag was found in the Tracker bag.

[12] Investigative checks revealed that a person with the name of Rigat Essag Ghirmay was living with her friend, the defendant, Adonay Zekarias, at 101 Humber Blvd. apartment 812. The female torso was found approximately 500 meters from the defendant’s apartment.

[13] The police had already canvassed the apartments in 101 Humber Blvd. Someone claiming to be the defendant from that address at apt. 812 called the police canvass line to say that he had not seen anyone suspicious in the last couple of days or seen anyone carrying a large dark bag.

[14] The police decided to attend at the defendant’s residence on May 26, 2013 to ask him if he knew the whereabouts of Ms. Ghirmay, as the torso had not been conclusively identified as being that of Ms. Ghirmay at that time.

[15] Four police officers, two uniformed officers and two homicide detectives in plainclothes, attended at the residence of the defendant. They knocked on the door of the defendant’s apartment. They announced they were the police and asked the defendant to come to the door. At that time, the peep hole of the apartment door went dark as if someone had looked out of the peep hole and then went away.

[16] One of the homicide detectives, Det. Margetson, who was the primary investigator at the scene, instructed one of the uniformed officers to look through the mail slot in the apartment door. Det. Margetson continued to knock on the door. The uniformed officer advised Det. Margetson he could see someone lying on a bed with their legs moving under the covers. The rest of the person’s body was obstructed from his view.

[17] Despite continued loud knocking for 5-10 minutes and the announcement of police presence, no one answered the door.

[18] While standing in the hallway, Det. Margetson was approached by a neighbour of the defendant, Mr. Dunbar, at apartment 814. Det. Margetson showed Mr. Dunbar pictures of both the defendant and Ms. Ghirmay that had been obtained by the police from Canadian Immigration. Mr. Dunbar identified the people in the photograph and told Det. Margetson that he believed them to be boyfriend and girlfriend. Mr. Dunbar said that he had not seen Ms. Ghirmay for three days to a week but he believed the defendant was still next door.

[19] Det. Margetson came to the belief at that time, in all the circumstances, that he had reasonable grounds to enter the defendant’s apartment without a warrant on the basis of exigent circumstances pursuant to s. 487.11 of the Criminal Code. He instructed one of the uniformed officers to obtain a key for the apartment from a security officer with Toronto Community Housing. The uniformed officer did so. He returned within a few minutes and Det. Margetson then opened the door to the defendant’s apartment and the four police officers entered.

[20] Upon entering into the apartment, the defendant was found face down on a bed, covered by a blanket to his waist, with his hands concealed by a pillow. The uniformed officers ordered the defendant to show his hands. When the defendant did not comply with the police demands to show his hands, the uniformed officers then drew their firearms and the defendant complied, removing his hands from underneath the pillow.

[21] The defendant was then taken out of the apartment to the hallway. Det. Margetson engaged in some questions and answers with the defendant in an attempt to determine the whereabouts of Ms. Ghirmay. The defendant was then returned to his apartment in order to access his phone and he re-entered the apartment with the police. Det. Margetson had further conversation with the defendant inside the apartment and then the defendant was placed under arrest for indignity to a dead human body.

[22] Det. Margetson then read the defendant his s. 10(b) Charter rights. At that point, the defendant was taken out of the apartment and to a police station. The apartment was sealed pending the obtaining of a search warrant.

[23] During the course of the police investigation, the police retrieved the security videos from the Toronto Community Housing Corporation (“TCHC”) in regard to the apartment building of the defendant at 101 Humber Blvd. On May 28, 2013 the police reviewed the security videos they had obtained from TCHC.

[24] On May 27, 2013 around 11:30 am while the defendant was in custody at the police station, the police took a videotaped statement from the defendant with the assistance of a Tigrinya interpreter.

Alleged Charter Infringements

(i) The Warrantless Entry and Search of the Defendant’s Apartment on May 26, 2013

[25] Warrantless searches are presumptively unreasonable unless the Crown demonstrates on a balance of probabilities their reasonableness in the context of s. 8 principles. Generally, a search and seizure without a warrant will infringe the s. 8 Charter right to be secure against unreasonable search and seizure. See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. A search will be reasonable within s. 8 of the Charter where it is authorized by law, where the law is reasonable and where the search is conducted in a reasonable manner. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at p. 278.

[26] In this case, the statutory authority upon which the Crown relies for the police to have conducted the search on May 26, 2013 is s. 487.11 of the Criminal Code. The law itself is reasonable. As well, I find the search in this case was conducted in a reasonable manner. Before entering the apartment, the police announced their presence. They used a key to open the defendant’s apartment door. Although the uniformed officers drew their service revolvers at first, they holstered their weapons as soon as they were able to see that the defendant did not have anything in his hands while lying on the bed.

[27] In this case, the real issue is whether the police entry and search of the defendant’s apartment on May 26, 2013 was authorized by law. A search or seizure is authorized by law where (a) there exists statutory or common law authority to conduct the search or seizure and (b) the search is carried out in accordance with the procedural and substantive requirements that the law provides. See R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3d) 97 (S.C.C.).

[28] As noted, the statutory authority upon which the Crown relies for the police to have conducted the search on May 26, 2013 is s. 487.11 of the Criminal Code. Section 487.11 of the Criminal Code allows a police officer to conduct a warrantless search of a residence provided the conditions for obtaining a warrant under s. 487(1) of the Criminal Code exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

[29] The two pre-conditions required under s. 487.11 of the Criminal Code are that (a) the police have reasonable grounds to obtain a search warrant under s. 487(1) of the Criminal Code and (b) the police believed, based on reasonable grounds, that exigent circumstances existed making it impracticable for the police to obtain a search warrant. See R. v. Phoummasak, 2016 ONCA 46 at para. 12 and R. v. Paterson, 2017 SCC 15 at paras. 36-37.

[30] The defence submits that neither of these two preconditions required under s. 487.11 of the Criminal Code existed before the police entered the defendant’s apartment and accordingly the search was not authorized by law and therefore unreasonable and a violation of s. 8 of the Charter. I will deal with each of these two issues separately.

(a) Did Reasonable Grounds Exist to Obtain a Search Warrant?

[31] Reasonable grounds require both a subjective and an objective standard. A police officer must subjectively have reasonable grounds, and the grounds must, in addition, be justifiable from an objective point of view. On the totality of the evidence I accept the evidence of Det. Margetson that he believed he had reasonable grounds to obtain a search warrant for the defendant’s apartment on May 26, 2013. However, the defence submits there was no objective basis for such a belief and therefore no reasonable grounds existed for obtaining a search warrant.

[32] For the police to obtain a search warrant under s. 487(1) of the Criminal Code, reasonable grounds must exist to believe that an offence has been committed, that there is a thing to be found at the place of the search and the thing to be searched for affords evidence of the commission of the offence.

[33] The statutory and constitutional standard of reasonable grounds has been defined positively as credibly-based probability and negatively as something less than a prima facie case. In assessing whether a belief is objectively justified, the proper question is “what a reasonable person in the shoes of the police officer would believe.” The grounds to believe an offence has been committed and that evidence of the offence will be found at the location of the search must both be objectively justified. See R. v. McLetchie, 2011 ONSC 1016 at para. 35. No matter what formulation is used, it is essential that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not mere suspicion. See R. v. Campbell, 2010 ONCA 588 at para. 54.

[34] The defence submits that at the point when the police entered the premises there were no reasonable grounds, on an objective basis, to justify a search warrant in this case. The defence submits that it was nothing more than possibility or suspicion that evidence of a crime would be found at the defendant’s residence. The defence submits that there was no evidence that reasonably could support the inference that there was evidence in the defendant’s residence relevant to a crime. Without evidence that Ms. Ghirmay was alive or dead, the defence submits there could be no reasonable grounds to obtain a search warrant.

[35] The defence also relies on the evidence of Det. Lioumanis who accompanied Det. Margetson and the two uniformed officers to the defendant’s residence on May 26, 2013. Det. Lioumanis testified that his intention in going to the residence of the defendant was to speak to him to find out if he knew anything about Ms. Ghirmay. At that point, according to the evidence of Det. Lioumanis, prior to arriving at the defendant’s apartment, he viewed the defendant as a witness. Det. Lioumanis also testified that in his view the defendant was free to leave after he had been removed from the premises by Det. Margetson. The defence submits this evidence should be considered when assessing whether, on an objective basis, reasonable grounds existed to obtain a search warrant.

[36] I am satisfied on the record before me that there were reasonable grounds from an objective point of view for the police to believe that an offence had been committed and that evidence of that offence would be found at the location of the search of the defendant’s residence on May 26, 2013. In my view, the combined force of the circumstantial evidence in this case provided reasonable grounds for a search warrant to issue under s. 487(1) of the Criminal Code. In this regard, there was the following evidence the police were aware of prior to their attendance at the defendant’s residence at 101 Humber Blvd., Apt. 812, on May 26, 2013:

(a) human remains were discovered in a Tracker bag on May 24, 2013. The Tracker bag was primarily black with green sections on the bag. The human torso remains were of a female from the naval to the knees;

(b) inside the Tracker bag was a receipt from Evergreen College in the name of Rigat Essag;

(c) after searches on the police database regarding the receipt, the police came up with the name of a possible identity for the human remains. It was for Rigat Essag Ghirmay with a date of birth of October 27, 1984;

(d) the database revealed that Ms. Ghirmay’s name was on a police occurrence file dated October 1, 2012. Ms. Ghirmay had made a complaint to the police about a roommate of hers on Church St. in Toronto who had threatened her with a knife. She advised the police at that time she was then going to be staying with her friend, the defendant, Adonay Zekarias with a birth date of September 7, 1971 and an address of 101 Humber Blvd., Apt. 812;

(e) the police also ran Ms. Ghirmay’s name through the police computer and there was no information that Ms. Ghirmay had been reported missing or had an accident;

(f) the location of the defendant’s residence at 101 Humber Blvd. was directly across from where the remains had been found – about 500 meters;

(g) the bag was found near a path in a wooded area which one could not see just by walking by it, making it more likely someone familiar with the area would know about that path;

(h) the police contacted Canada Immigration about the accused and Ms. Ghirmay and they were provided with their photographs that Canada Immigration had on file. Both the defendant and Ms. Ghirmay were from Eritrea;

(i) a police canvass of the neighbourhood had taken place after the female remains were found. A notice was left by the police at the defendant’s apartment indicating the police were canvassing in the neighbourhood concerning a recent police investigation and also requesting that the police be contacted at a telephone number on the notice. On May 25, 2013, a person claiming to be Adonay Zekarias, the defendant, of 101 Humber Blvd., Apt. 812, responded to the notice by telephone and advised the police verbally that he had not seen anyone suspicious in the last couple of days and also had not seen anyone carrying a large dark bag;

(j) there was no missing person report on file with the police for anyone named Ghirmay.

[37] As well, the police obtained further information when they arrived at the defendant’s apartment at 6:38 pm on May 26, 2013:

(a) Det. Margetson began to knock on the door of the defendant’s apartment. He knocked on the door and said “Mr. Zekarias, it’s the police can you come to the door please?” When knocking on the door, the peep hole which had been showing light through it went dark, as if somebody were looking through the peep hole and then walked away. Det. Margetson then repeated his requests and continued to knock on the door in a loud manner;

(b) Det. Margetson asked a uniformed police officer, Cst. Black, to look through the mail slot to look to see who was inside after seeing the shadow on the peep hole. Cst. Black testified he could see the end of a bed and saw someone lying on the bed with some movement of feet under the covers. He could not see the top of the bed or whose feet they were. Cst. Black maintained visual contact through the mail slot with the person on the bed;

(c) Det. Margetson continued to knock loudly at the door for between 5 to 10 minutes asking the defendant to come to the door but no one responded. While Det. Margetson was doing this, the next door neighbour at apartment 814, Mr. Dunbar, came out of his apartment into the hallway because of the loud knocking;

(d) Det. Margetson then showed Mr. Dunbar the Canada Immigration photos of the defendant and Ms. Ghirmay that the police had obtained. Mr. Dunbar told Det. Margetson he believed them to be boyfriend and girlfriend. Mr. Dunbar said that he had not seen Ms. Ghirmay for three days to a week. This timeline of seeing Ms. Ghirmay alive three days earlier, was consistent with the human remains found two days earlier being those of Ms. Ghirmay. Mr. Dunbar also said he believed the defendant was still next door.

[38] Det. Margetson testified that when he first went over to the defendant’s residence, the defendant, in all the circumstances, was a very strong person of interest to him. However, he did not know if Ms. Ghirmay was alive or not so he wanted to go over and ask the defendant if he knew where Ms. Ghirmay was. Det. Margetson said that when he first went to the defendant’s apartment it was just for the purpose of speaking with him. However, it was a dynamic and fluid situation. Given all the circumstances that Det. Margetson was aware of before he arrived at the apartment and in addition, all of the circumstances that transpired when he was outside the apartment door, Det. Margetson believed after speaking with Mr. Dunbar that he had reasonable grounds to obtain a search warrant. In my view there was an objective basis for such a belief, even if one were not to consider the police observations through the mail slot which merely confirmed what the police already knew. There was a person in the apartment who was not answering the door.

[39] The evidence of Det. Lioumanis does not detract from the reasonable grounds in this case. His evidence must be considered in context. Detective Sgt. Gray was the Major Case Manager for this investigation. Det. Margetson was the primary police investigator and second in command in this investigation. There is no issue in this case that Det. Margetson was the directing mind behind the decision on May 26, 2013 to enter the premises of the defendant and ultimately to arrest the defendant. Det. Lioumanis himself described his investigative role in this case as being “kind of a third wheel.” Although Det. Lioumanis testified that in his view the defendant was free to leave after he had been released from the premises, he also said he was not privy to what conversations were being held out in the hallway between Det. Margetson and the defendant. As well, although Det. Lioumanis testified that before going to the residence of the defendant, he viewed the defendant as a witness, Det. Lioumanis also testified that just prior to entering the apartment to preserve evidence it had been his intention to obtain a search warrant for the apartment.

[40] In all the circumstances, when considering Det. Lioumanis’ evidence along with all the other evidence, I am satisfied that there was an objective basis for Det. Margetson’s subjective belief that there were reasonable grounds to obtain a search warrant. Determining whether evidence gives rise to a credibly-based probability does not involve parsing the facts or assessing them mathematically. See R. v. Morelli, 2010 SCC 8 at para. 129. Reasonable people can disagree as to whether a given set of facts rises to the level of reasonable grounds. See McLetchie at para. 36.

[41] As I indicated, I am of the view that reasonable grounds existed for the police to obtain a search warrant under s. 487(1) of the Criminal Code. On the totality of the evidence, I am satisfied that there existed a credibly-based probability that it was Ms. Ghirmay’s remains in the Tracker bag and that she had been a victim in the offence of indignity to a dead human body. As well, on the totality of the evidence, I am satisfied that there existed a credibly-based probability that evidence of that crime would be found in the defendant’s apartment on May 26, 2013.

b) Did Reasonable Grounds Exist For Exigent Circumstances, Making it Impracticable to Obtain a Search Warrant?

[42] As in the case with reasonable grounds for a search warrant, the existence of exigent circumstances involves both the subjective belief of the police and the objective basis for the belief. See R. v. McCormack, 2000 BCCA 57 at para. 25. Again, on the totality of the evidence, I accept the evidence of Det. Margetson that he believed that exigent circumstances existed. However, the defence submits that there was not an objective basis for such a belief.

[43] By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only when necessary. See R. v. Kelsy, 2011 ONCA 605 at para. 35.

[44] Cases that have addressed the issue of exigent circumstances appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of evidence before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety. See Kelsy, at para. 24. In this case, the Crown relies on the first basis for exigent circumstances, the risk of imminent loss or destruction of evidence.

[45] Even when exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 487.11 of the Criminal Code. Those circumstances must render it “impracticable” to obtain a warrant. Section 487.11 of the Criminal Code is not satisfied by mere inconvenience, but s. 487.11 of the Criminal Code contemplates that the exigent nature of the circumstances is such that taking time to obtain a warrant would seriously undermine the objective of police action – whether it be preserving evidence, officer safety, or public safety. See R. v. Paterson at paras. 34, 36, and 39.

[46] In order for a warrantless entry to satisfy s. 487.11 of the Criminal Code, the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety, or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives. See Paterson, at para. 37.

[47] The defence submits that there was no objective basis to believe that exigent circumstances existed in this case. Relying on R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 at p. 159, the defence submits that the situation in this case is the same as any case after a serious crime has been committed and the perpetrator has not been apprehended. The defence submits that it was pure speculation on the part of Det. Margetson that there was a risk that evidence would be destroyed. The defence submits that, at the time they entered the premises, the police had no knowledge of what evidence might be destroyed. At best, they had a suspicion that the defendant was involved in the death of Ms. Ghirmay. As stated in R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3 at page 29, “ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent.”

[48] The defence also argues that the circumstances in this case were not such as to make it impracticable for the police to obtain a warrant. The defence submits “impracticable” is not the same as inconvenient or impractical. The defence submits in this case it was merely inconvenient for the police to get a warrant, not impracticable. The police entry was not compelled by urgency calling for immediate police action. There were no circumstances existing such that taking the time to obtain a warrant by the police would pose serious risk to preserving evidence. This is especially true in this case, submits the defence, given that the police took no steps to breach the door but were content to wait around to obtain a key to the apartment from a Toronto Community Housing officer. As well, the defence submits that the police were able to see the defendant lying on his bed as they looked through the mail slot. The defence submits the police could have continued watching the defendant until they had obtained a search warrant.

[49] In my view, there were reasonable grounds to believe that exigent circumstances existed in this case which made it impracticable for the police to obtain a search warrant. This is not a case in which the police orchestrated exigent circumstances. If the police had set out to create exigent circumstances to justify entry into the premises without a warrant, the circumstances would not be exigent and could not justify a warrantless search or entry. See Phoummasak at paras. 14 and 21. However, in this case, the idea of preserving evidence was not a ruse created by the police to justify entry into the apartment in order to search without a warrant. Det. Margetson was clearly concerned about the destruction of evidence before entering the premises. He gave instructions to have officers stationed below the defendant’s balcony should something be thrown off of it. The police did not attempt a general search of the premises when they entered. They did a clearing security check to make sure there was no one else in the apartment but then secured the premises while they sought a search warrant. Only areas large enough to hide a person were checked by the police.

[50] In this case, new circumstances arose, not of the making of the police, which created the exigent circumstances. Initially, Det. Margetson had gone to the apartment of the defendant to ask him about the whereabouts of Ms. Ghirmay. However, while on scene and before they entered the apartment, there were two new developments that occurred referred to earlier. Det. Margetson received information from Mr. Dunbar and also, there was a person in the apartment seen at the peep hole, who was not coming to the door. It was at this point that Det. Margetson believed that exigent circumstances existed in this case which made it impracticable to obtain a search warrant. In my view, in all the circumstances, there was an objective basis for that belief.

[51] As noted previously, there existed reasonable grounds for the police to obtain a search warrant regarding the defendant’s apartment before the police entered the premises. It was reasonable therefore for the police to expect that evidence would be present in the apartment that could be destroyed. See R. v. McCormack at para. 27. This was more than just a hunch on the part of the police that evidence might be destroyed simply because whoever was in the apartment was not answering the door. In my view, the evidence referred to earlier at paras. 36 and 37 of these reasons not only provided an objective basis for a search warrant, it also provided an objective basis for the police to enter the defendant’s apartment pursuant to s. 487.11 of the Criminal Code.

[52] Ms. Ghirmay’s torso was found within 500 meters of the defendant’s apartment building. Evidence of dismemberment is itself some evidence of an effort to cover up and destroy evidence. The defendant’s apartment was the last location the police were aware of where Ms. Ghirmay had been seen alive and, according to Mr. Dunbar, she was in the company of the defendant who Mr. Dunbar believed was in a relationship with Ms. Ghirmay. There was no information the police had that Ms. Ghirmay had been reported missing or had an accident. Whoever was in the apartment and had looked through the peep hole was now aware, as a result of the police knocking and announcing themselves, that the police were at the door. The police were also aware that someone claiming to be the defendant at that address had phoned the police canvass contact number earlier and said that he had not seen anything suspicious in the last couple of days. It was a reasonable inference from this to conclude that the defendant was not averse to speaking with the police but whoever was in the apartment was not answering the door although they had looked out the peep hole.

[53] Det. Margetson testified he found this very odd and he was trying to calculate in his own mind what to do. He considered the fact that somebody else besides the defendant might be in the apartment and that something untoward was happening in the apartment. Either way he was very concerned that evidence could be destroyed. He believed at that point that exigent circumstances existed for him to enter the apartment to preserve evidence. As Det. Margetson testified, whoever had been at the door now knew the police were there and looking for the defendant and would suspect that the police may enter the premises and search or arrest whomever was in the apartment. Det. Margetson now believed that there existed imminent danger that evidence located in the apartment of the defendant would be destroyed if the police did not urgently enter the premises. Both forensic trace evidence and evidence on a computer or cell phone could be destroyed.

[54] Det. Margetson also believed that the exigent circumstances in this case made it impracticable to obtain a search warrant. Det. Margetson testified that he did not consider it a prudent option to preserve evidence to just watch the person on the bed through the mail slot while the police obtained a search warrant. As Det. Margetson pointed out, it could take several hours to obtain a search warrant and in the meantime the police could not see what the person was doing with their hands. As well, the person was not within arm’s reach and there was the barrier of the door between them. As Det. Margetson testified, a lot of things can be lost within the period of time the police are trying to breach the door.

[55] The fact the police did not seek to break the apartment door down, but rather sought to obtain a key for the door through Toronto Community Housing, did not make the circumstances less urgent. Det. Margetson testified that he had tried to breach the doors of a Toronto Community Housing apartment in the past and they are very difficult doors to breach. It is not an easy task in the event the police had to take action to preserve evidence. Det. Margetson testified the police had no breaching tools whatsoever on site and, in his experience, with these doors, the fastest way was to get a key for the door. Det. Margetson testified that if a key is not on scene, the police can call a Toronto Community Housing officer who will attend with a key. They are mobile. They are on duty. It really takes anywhere from a few minutes to maybe half an hour. In this case it took less than 15 minutes to obtain a key.

[56] In my view, there were reasonable grounds for the police to believe exigent circumstances existed in this case making it impracticable for them to obtain a search warrant. There was an objective basis for the police to believe (a) that there existed imminent danger that evidence located in the apartment of the defendant would be destroyed or lost if the police did not enter the premises urgently and (b) taking the time to obtain a warrant would have posed a serious risk to preserving that evidence.

[57] The Crown has satisfied me on a balance of probabilities that the two preconditions required under s. 487.11 of the Criminal Code existed before the police entered the defendant’s apartment on May 26, 2013 without a warrant. Det. Margetson believed subjectively that he had reasonable grounds to obtain a search warrant under s. 487(1) of the Criminal Code and that exigent circumstances existed making it impracticable for the police to obtain a search warrant. In my view, such a subjective belief was objectively justified. Accordingly, the warrantless entry and search of the defendant’s apartment, was authorized by law and was not unreasonable. The warrantless entry and search of the defendant’s apartment did not violate the defendant’s s. 8 Charter rights.

(ii) The Police Looking Through the Mail Slot

[58] There is no issue in this case that Det. Margetson believed he observed someone inside the defendant’s apartment look through the peep hole. He then instructed one of the uniformed officers, Cst. Black, to look through the mail slot of the defendant’s apartment. Cst. Black testified that he opened the mail slot and looked into the defendant’s residence. Cst. Black observed a person lying on the bed in the apartment. Cst. Black continued to look into the apartment. At no time did Cst. Black observe the person leave the bed or destroy evidence. He was not able to see the person’s hands. He was only able to see the person’s feet under the bed covers.

[59] The defence does not rely on the police peering into the mail slot as giving rise to an independent remedy. On its own, the defence submits, it would not result in an exclusion of the evidence from the searches. However, the defence submits that it is relevant to the s. 24(2) analysis in the event I were to find a breach of s. 8 by such conduct. In these circumstances it would be a factor in assessing the manner in which the police conducted themselves during the course of the entire police investigation.

[60] In these circumstances, I am of the view the police violated the defendant’s s. 8 Charter rights when they initially looked into the mail slot of the defendant’s apartment. In Kokesch, the Supreme Court of Canada found that a warrantless perimeter search around the accused’s residence was a breach of his s. 8 Charter rights. In R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519, the Court of Appeal for Ontario dealt with the police peering into windows of a residence. In that case the police received an anonymous tip that the accused was growing marijuana in his basement apartment. The police attended the unit, approached the windows of his apartment, looked in and observed a powerful light and condensation on the accused’s window. The court found that the accused’s reasonable expectation of privacy was infringed by the police officers. The court held the conduct of the police to be a search, and since there was no lawful authority for it, it was unreasonable and an infringement of the accused’s s. 8 Charter rights.

[61] More recently in R. v. Nguyen, 2008 CarswellOnt 9484 (Ont. S.C.), Justice Dunnet found a Charter breach of s. 8 when the police peered into a mail slot and made observations inside the apartment. Justice Dunnet held such conduct was an attempt to search inside the apartment without a warrant and as such, it was an unreasonable search. Justice Dunnet, at para. 45, found that the officer’s investigative technique considerably diminished the reasonable expectation of privacy that one might expect in one’s own apartment. Although the breach did not itself give rise to an independent remedy, Justice Dunnet held it was an issue to be considered in assessing the manner in which the police conducted themselves through the course of the investigation.

[62] In this case the door of the defendant’s apartment was locked and the defendant had the ability to regulate access. In my view, pursuant to the principles set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the defendant had a reasonable expectation of privacy in terms of the inside of his apartment and that, by initially looking through the mail slot, the police conducted a warrantless search. The issue next becomes whether that warrantless search was reasonable. Reasonableness in this context means that the particular search or seizure was authorized by law, the authorizing law was reasonable and the manner of execution was reasonable. The only issue is whether the warrantless search by the police of looking through the mail slot was authorized by law.

[63] In my view the conduct of the police initially looking through the defendant’s mail slot was not reasonable because it was not authorized by law and therefore was a violation of his s. 8 Charter rights. Det. Margetson testified that it was only after speaking to Mr. Dunbar that he formed the subjective grounds for both the search warrant and the need to preserve evidence. As I have indicated, there was an objective basis for that belief. However, Cst. Black began to look into the mail slot before Det. Margetson’s discussion with Mr. Dunbar and before Det. Margetson directed Cst. Sanguinetti to go downstairs and obtain a key to the apartment.

[64] Cst. Black testified Det. Margetson asked him to look through the mail slot after the police initially arrived, and after he observed a shadow come across the peep hole while Det. Margetson was knocking on the door. Cst. Black testified that from the time that he began looking through the mail slot until the police entered the apartment he was continuously looking through the mail slot. Cst. Black thought the time period was between three to seven minutes, maybe more.

[65] The defence is not arguing in this case that the police had no authority to be inside the apartment building knocking on the defendant’s apartment door. The defence admits that the police were entitled to be inside the apartment building pursuant to the implied license doctrine in furtherance of a legitimate investigation. However, the defence submits that such a license does not eliminate the defendant’s reasonable expectation of privacy inside his own apartment.

[66] I agree with the defence on this point. In my view the police violated the defendant’s s. 8 Charter rights when they initially opened the mail slot and looked into the defendant’s apartment before forming the subjective belief that they had reasonable grounds for a warrant to search the defendant’s apartment and to enter his premises by reason of exigent circumstances. I appreciate it was only a matter of minutes later that Det. Margetson had the necessary grounds under s. 487.11 of the Criminal Code to enter the defendant’s apartment. However, prior to that time the police were not authorized by law to enter the apartment or, by implication to look through the mail slot, and therefore violated the defendant’s s. 8 Charter rights by doing so.

(iii) Unlawful Arrest

[67] The defence submits the police violated the defendant’s s. 9 Charter rights when they arrested him inside his apartment without reasonable grounds to do so. The defence submits that the police did not have reasonable grounds to arrest the defendant either prior to entering his apartment or after their entry. Section 9 of the Charter provides that no one may be arbitrarily detained or imprisoned.

[68] Subsection 495(1)(a) of the Criminal Code authorizes a police officer to arrest, without warrant, a person who has committed an indictable offence or who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence. The officer must have a subjective belief that there are reasonable grounds for the arrest and, as well, it must be objectively established that those grounds exist. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 250-251. The language of s. 495(1)(a) of the Criminal Code focuses on the officer’s state of mind and the reasonableness of the officer’s belief, rather than the actual state of affairs. Reasonable grounds can be based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken. See R. v. Robinson, 2016 ONCA 402 at para. 40.

[69] As in the case of a search warrant, the standard for reasonable grounds for an arrest is “credibly-based probability”, not proof beyond a reasonable doubt or even a prima facie case of guilt. See Storrey at pp. 250-251. On the totality of the evidence, I accept the evidence of Det. Margetson that he believed he had reasonable grounds to arrest the defendant. However the defence submits that there was not an objective basis for such a belief. The defence submits it was mere suspicion on the part of the police that the defendant had committed an indictable offence and no objective reasonable grounds existed for the arrest of the defendant for the offence of indignity to a dead human body or any other offence.

[70] In my view, there was an objective basis for Det. Margetson’s subjective belief that he had reasonable grounds to arrest the defendant. His belief was not based on mere suspicion or speculation. The evidence I made reference to earlier at paras. 36 and 37 of these reasons not only provided an objective basis for a search warrant and exigent circumstances, this evidence also provided an objective basis for the police to arrest the defendant for the offence of indignity to a dead human body.

[71] As noted earlier, Det. Margetson testified that when he first went over to the defendant’s apartment it was for the purpose of speaking with him to ask the defendant if he knew the whereabouts of Ms. Ghirmay. However, given all that he was aware of before he attended there and all the circumstances that transpired when he was outside the defendant’s apartment door, Det Margetson believed he had reasonable grounds before he entered the apartment to arrest the defendant for indignity to a dead human body.

[72] Det. Margetson also testified that while he believed he had grounds to arrest the defendant, he also said that did not mean he had to arrest him. He said he went back to his original reason for attending the address in the first place which was to give the defendant an opportunity to answer whether he knew where Ms. Ghirmay was and whether she was alive. He said he had gone there to ask him those questions and it would only be fair to ask the defendant that up front before arresting him.

[73] Det. Margetson testified that if the defendant had told him something that could have provided the whereabouts of Ms. Ghirmay, he would not have arrested him. However, in the defendant’s discussion with Det. Margetson, the defendant started going off on a tangent. He could not satisfy Det. Margetson that Ms. Ghirmay was somewhere else and alive. As a result, the defendant was placed under arrest for indignity to a dead human body.

[74] The defence argues I should, once again, consider the evidence of Det. Lioumanis when assessing whether there were reasonable grounds for the arrest of the defendant. While Det. Lioumanis did say he thought the defendant was free to leave when the defendant was brought out in the hallway, he also said he was not privy to what conversations were being held in and out of the hallway between Det. Margetson and the defendant. He testified that he was not aware of all of the questions and answers that took place between Det. Margetson and the defendant. He was not focused on the questions and answers at that point. Det. Lioumanis testified that at the time the defendant was in the hallway he did not know what role the defendant had in all of this.

[75] At the very least, Det. Lioumanis’ evidence reflected a suspicion that the defendant was involved in an offence regarding Ms. Ghirmay in some way. He said that what was suspicious was the fact that he thought a common person with all the banging on the door by Det. Margetson would have answered the door. With all the other pieces of information that they had leading up to the door knock, Det. Lioumanis testified that there were some concerns.

[76] On the totality of the evidence, I am satisfied that there were reasonable grounds for the defendant’s arrest without a warrant pursuant to s. 495(1) (a) of the Criminal Code. There were reasonable grounds from an objective point of view for the police to believe that the defendant had committed an indictable offence. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. The law does not expect the same type of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. See R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 at para. 18.

[77] I am satisfied on the totality of the evidence that Det. Margetson had a subjective belief that there were reasonable grounds for the arrest of the defendant and, as well, that those grounds were justifiable from an objective point of view. The cumulative effect of the evidence referred to earlier at paras. 36 and 37 of these reasons demonstrate reasonable grounds on an objective basis for the police to believe that the defendant had committed the indictable offence of indignity to a dead human body contrary to s. 182(b) of the Criminal Code. The arrest was therefore authorized by law and not a breach of the defendant’s s. 9 Charter rights.

(iv) Initial Police Detention on May 26, 2013

[78] Once the police entered the defendant’s apartment and after the brief interaction with the police and the defendant when the uniformed officers ordered that the defendant show the police his hands, the defendant was taken out of the apartment and into the hallway by Det. Margetson. While the defendant was not under arrest at this stage, as noted earlier, Det. Margetson believed prior to entering the apartment that he had reasonable grounds to arrest the defendant for indignity to a dead human body.

[79] However, again as noted earlier, Det. Margetson testified that just because he had grounds to arrest someone, did not mean he had to arrest them. Once he was out in the hallway, Det. Margetson asked questions of the defendant regarding Ms. Ghirmay’s whereabouts. It was an opportunity to stop the investigation if the defendant was able to provide information about the whereabouts of Ms. Ghirmay and if she were alive. At this point in time, as noted previously, the police did not know definitely that the torso in the Tracker bag was that of Ms. Ghirmay.

[80] Det. Margetson conceded in cross-examination that it was a mistake on his part not to have cautioned the defendant, told him why he was being investigated, and read him his rights to counsel when he first spoke to him out in the hallway. The Crown also agreed that it was a breach of the defendant’s s. 10(a) and s. 10(b) rights under the Charter when Det. Margetson failed to initially inform the defendant of the reason for his detention and to inform him of his right to retain and instruct counsel without delay.

[81] I agree with the Crown’s position on this issue. Although the Crown was not seeking to introduce into evidence at the trial any statements the defendant made to Det. Margetson either in the hallway or in the defendant’s apartment, the defendant was detained by Det. Margetson when he was first taken out in the hallway to be questioned by the police. The defendant’s liberty interest was suspended by a significant physical or psychological restraint. See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.

[82] Accordingly, the defendant was entitled to be informed of the reasons for his detention and his right to retain and instruct counsel. The failure of the police to do so at that time resulted in a violation of the defendant’s s. 10(a) and s. 10(b) Charter rights.

(v) Police Search and Seizure of Security Videos of Defendant’s Apartment Building

[83] In separate reasons reported at 2018 ONSC 4752 I explain why I found that there was no violation of the defendant’s s. 8 Charter rights when the police seized the security videos of the defendant’s apartment building and reviewed them.

(vi) The Defendant’s Statement to the Police on May 27, 2103

[84] Again in separate reasons reported at 2018 ONSC 4753 I explain why I found there was a violation of the defendant’s s. 10(b) Charter rights in the course of the police interview with him on May 27, 2013 that justified excluding the defendant’s statement from that police interview.

Summary of Findings re Alleged Charter Breaches

[85] In summary, and with reference to the Charter breaches the defence submits occurred in the course of the police investigation prior to the issuance of the warrants on May 28, 2013 and May 31, 2013, I conclude as follows:

(i) the warrantless search of the defendant’s apartment on May 26, 2013 was Charter-compliant;

(ii) the police violated the defendant’s s. 8 Charter rights by looking through the mail slot of his apartment door prior to entering his apartment on May 26, 2013;

(iii) the defendant’s arrest was lawful and Charter-compliant;

(iv) the police violated the defendant’s s. 10(a) and s. 10(b) Charter rights when he was first detained by the police in the hallway outside of his apartment on May 26, 2013;

(v) the warrantless search and seizure of security videos of 101 Humber Blvd. was lawful and Charter-compliant; and,

(vi) the police violated the defendant’s s. 10(b) Charter rights in their interview with the defendant on May 27, 2013.

III. SHOULD THE EVIDENCE FROM THE POLICE SEARCHES OF MAY 29, 2013 AND MAY 31, 2013 BE EXCLUDED UNDER S. 24(2) OF THE CHARTER ?

[86] The next question is whether the Charter breaches established by the defence justify the exclusion of evidence subsequently seized from the defendant’s apartment pursuant to valid warrants issued on May 28 and 31, 2013.

[87] As I indicated in my oral reasons of October 17, 2017, even if I am wrong about the police warrantless entry and search of the defendant’s apartment on May 26, 2013 and such an entry and search was a violation of the defendant’s s. 8 Charter rights, I am of the view that such a violation, either alone or in conjunction with any other Charter breaches, would not result in the exclusion of the evidence seized by the police from the defendant’s apartment on May 29, 2013 and May 31, 2013 under s. 24(2) of the Charter.

[88] In this case, the defence, relying on cases such as R. v. Strauss, R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), R. v. Côté, 2011 SCC 46 and R. v. Pino, 2016 ONCA 389, submits that by the time the search warrants were obtained by the police for the defendant’s apartment, there were multiple, serious and deliberate breaches of the defendant’s Charter rights. The defence argues, as previously noted in paragraphs 3-7 of these reasons, that even though the search warrants regarding the defendant’s apartment may have been issued properly and executed reasonably, does not eliminate the possibility that the searches of May 29, 2013 and May 31, 2013 were tainted by Charter breaches. The defence submits that there was a causal, temporal and contextual connection between the evidence seized in the execution of the search warrants and the Charter breaches which occurred prior to the searches. Therefore, submits the defence, the evidence was obtained in a manner that breached the defendant’s Charter rights. The defence submits that the Charter breaches in this case were deliberate and ongoing and require the court to dissociate itself from such conduct, particularly in this case, argues the defence, where the conduct was part of a pattern of abuse.

[89] The defence submits that the admission of the evidence from the searches of the defendant’s apartment of May 29, 2013 and May 31, 2013 would, having regard to all the circumstances, bring the administration of justice into disrepute and the evidence should be excluded. For reasons that I will explain, I do not agree with the defence position on this issue. In my view the admission at trial of the evidence seized from the searches of the defendant’s apartment on May 29, 2013 and May 31, 2013 would not bring the administration of justice into disrepute and the evidence therefore should not be excluded.

“Obtained in a manner” Requirement

[90] The first issue that must be addressed in this analysis is whether the evidence from the searches of May 29 and 31, 2013 was “obtained in a manner” that infringed the defendant’s Charter rights. To obtain an order excluding the evidence under s. 24(2) of the Charter, a defendant must show that the evidence to be excluded was obtained in a manner that infringed a Charter right.

[91] The phrase “obtained in a manner” requires that the defendant establish a connection between the Charter breach and the discovery of the evidence. The impugned evidence must be obtained in a way that infringed or denied the defendant’s Charter rights. See R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980. This can be demonstrated by showing that the evidence is part of the same transaction or course of conduct that involves the Charter breach. Temporal, contextual and causal relationships between the Charter breaches and evidence are all taken into account. See R. v. Wittwer, 2008 SCC 33 at para. 21. Tenuous and remote connections cannot form the foundation upon which the exclusions rests.

[92] As Justice Laskin noted in Pino at para. 72, a court’s approach to the “obtained in a manner” requirement in s. 24(2) should be generous, consistent with the purpose of s. 24(2). The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections. However, the connection cannot be either too tenuous or too remote.

[93] For the purposes of this analysis I am referring to the following Charter breaches: (i) the warrantless entry and search of the defendant’s apartment on May 26, 2013, in the event that I am wrong, and there was a breach of the defendant’s s. 8 Charter rights (ii) the breach of the defendant’s s. 8 Charter rights by the police looking through the defendant’s mail slot (iii) the breach of the defendant’s s. 10(a) and s. 10(b) Charter rights when the defendant was first detained by the police on May 26, 2013 and (iv) the breach of the defendant’s s. 10(b) Charter rights in the police interview with the defendant on May 27, 2013.

[94] In my view, for the purposes of the s. 24(2) analysis, in the event there was a Charter breach of s. 8 by the police in their warrantless search of the defendant’s premises on May 26, 2013 and in light of the other Charter breaches I have previously found, I am satisfied that these Charter breaches meet the s. 24(2) “obtained in a manner” prerequisite. Approaching the analysis in a generous manner, consistent with the purpose of s. 24(2), the Charter breaches I just mentioned in the pre-search warrant authorization process had, at the very least, both a temporal and contextual connection requiring a s. 24(2) analysis. See Pino at para. 74. The connection among the Charter breaches is neither too tenuous nor too remote. The Charter breaches occurred all within a period of less than 24 hours between May 26-27, 2013 during the investigative process that led to the searches of May 29, 2013 and May 31, 2013. These breaches are sufficiently connected that a s. 24(2) analysis is necessary.

Section 24(2) Analysis

[95] The proper considerations under s. 24(2) of the Charter were established in R. v. Grant, 2009 SCC 32 at paras. 72-82. In determining whether evidence should be excluded under s. 24(2), the court considers (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the defendant’s Charter-protected interests, and (iii) society’s interest in an adjudication of the case on the merits.

(a) The Seriousness of the Charter-Infringing State Conduct

[96] Dealing with the first factor, the seriousness of the Charter-infringing state conduct, this factor focuses on the actions of the police. The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. See Paterson at para. 43. The court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to disassociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See Grant, at paras. 72-75; R. v. Taylor, 2014 SCC 50 at para. 39.

[97] I will deal with each Charter breach individually before considering their cumulative effect under each Grant factor.

(i) Warrantless entry and search of the defendant’s apartment

[98] In terms of the warrantless entry and search by the police of the defendant’s apartment on May 26, 2013, if the police were short of reasonable grounds for a search warrant on an objective basis, they were only just short of such grounds. Similarly, if the police lacked an objective basis for believing exigent circumstances existed, making it impracticable to obtain a search warrant, it was in my view, at worst, a close judgment call. There was no police misconduct in acting as they did. The police, in my view, were acting in good faith. This was not a situation such as existed in Paterson where no urgency was demonstrated or even suggested by the facts in that case. See Paterson at para. 47. On the facts of this case, this was not a situation of negligence or wilful blindness on the part of the police in entering the defendant’s apartment on May 26, 2013. Nor was this a ruse on the part of the police designed to orchestrate exigent circumstances to justify entry into the apartment in order to search without a warrant.

[99] As I noted earlier, extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach. In this case, Det. Margetson was clearly concerned about the destruction of evidence before entering the premises. As noted, prior to entering the premises, he gave instructions to have officers stationed below the defendant’s balcony should something be thrown off. When he entered the defendant’s premises, Det. Margetson believed that he had authority to make a warrantless entry into the defendant’s apartment in order to preserve evidence from destruction and he did so. He and the other officers did not search, nor did they seize anything at that time. The apartment was sealed pending the issue of a search warrant. I am of the view that the gravity of the Charter-infringing state conduct in regard to the warrantless entry and search of the defendant’s apartment, in the event that this was a Charter breach, was at the lower end of the seriousness spectrum. See R. v. Grant at para. 74-75.

(ii) Looking Through the Mail Slot

[100] As I indicated earlier, I am of the view that such a breach of the defendant’s s. 8 Charter rights was a technical one and only a minimal violation of the defendant’s Charter rights. In my view the police were acting in good faith. The police observations through the mail slot lasted only a matter of minutes and confirmed what the police already knew – someone was in the apartment and not answering the door. As well, the police were entitled to be inside the apartment building pursuant to the implied license doctrine in furtherance of a legitimate investigation.

(iii) Initial Detention of the Defendant

[101] In regard to the conduct of the police relating to this issue, I find that the police did not act in bad faith. Det. Margetson did not wilfully or flagrantly disregard the defendant’s s. 10(a) and s. 10(b) rights on his initial detention of the defendant. Clearly, as Det. Margetson admitted, it was a mistake on his part after first detaining the defendant, not to have cautioned him, told him why he was being investigated and to have read him his rights to counsel when he first spoke to him out in the hallway. In my view the conduct of the police in these circumstances could not be construed as a wilful or reckless disregard of the defendant’s Charter rights. I say this because I accept the evidence of Det. Margetson regarding the circumstances that existed before he entered the defendant’s apartment.

[102] As noted earlier, Det. Margetson testified that when he first went over to the defendant’s apartment it was for the purpose of speaking with him to ask the defendant if he knew the whereabouts of Ms. Ghirmay. However, given all that he was aware of before he attended there and all the circumstances that transpired when he was outside the defendant’s apartment door, Det. Margetson believed he had reasonable grounds before he entered the apartment to arrest the defendant for indignity to a dead human body.

[103] Det. Margetson also testified that while he believed he had grounds to arrest the defendant, he also said that did not mean he had to arrest him. He said he went back to his original reason for attending the address in the first place which was to give the defendant an opportunity to answer whether he knew where Ms. Ghirmay was and whether she was alive.

[104] At its highest, I consider the conduct of the police regarding this issue to be an inadvertent error in judgment on the part of the police which was motivated in an effort to be fair to the defendant and to provide him with an opportunity to provide the police with information regarding the whereabouts of Ms. Ghirmay before arresting him. At this point in time the police did not know definitely that the dead body that was recovered was that of Ms. Ghirmay.

[105] Very shortly after speaking with the defendant, and after he was placed under arrest, Det. Margetson provided the defendant with the reasons for his arrest and his rights to counsel. In my view, the gravity of this constitutional violation is relatively limited.

(iv) Statement of the Defendant on May 27, 2013

[106] As I indicated in my separate written reasons regarding the statement of the defendant to the police, Det. Margetson did not wilfully fail to re-advise the defendant of his rights to counsel because he did not want to shut down his conversation with the defendant. Nor, in my view, did Det. Margetson wilfully fail to re-advise the defendant about his right to counsel when his jeopardy changed in hopes of eliciting information that the defendant had killed Ms. Ghirmay.

[107] In this case there was no bad faith on the part of the police. As I indicated in my written reasons regarding the voluntariness of the statement, the police did not offer a threat, promise or inducement to the defendant to give a statement. Nor was the defendant’s will overborne by anything said or suggested to him by the police he encountered.

[108] That being said, the preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused. See Grant at para. 93. As I indicated in my written reasons regarding the statement, the failure to re-advise the defendant of his right to counsel, while not wilful, was nonetheless serious.

(v) Culmulative Effect

[109] With respect to the first Grant factor, when the four Charter breaches are viewed culmulatively, the seriousness of the Charter-infringing state conduct favours admission of the evidence. The breaches are far from the extreme end of the seriousness spectrum. These Charter breaches do not demonstrate a pattern of police misconduct or deliberate disregard for the Charter rights of the defendant by the police. I do not agree with the defence submission that the Charter breaches in this case were deliberate breaches of the defendant’s Charter rights. This is not a case such as in Côté or Strauss where by the time a search warrant was issued there had been multiple, serious and deliberate breaches of the defendant’s rights. Nor is this a case such as Pino, where the Charter violations were compounded by the fact of the dishonest testimony of the police regarding their conduct associated with the Charter breaches.

[110] In my view the police were acting in good faith in regard to entering and searching the defendant’s apartment on May 26, 2013 and looking through the mail slot of his apartment door. The police had a reasonably held, credible belief in the appropriateness of their actions. As to the breaches by the police of the Charter rights of the defendant in (1) failing to provide the defendant with his s. 10(a) and s. 10(b) rights when he was initially detained and (2) failing to re-advise the defendant of his s. 10(b) Charter rights in the course of their statement with him, this conduct of the police did not amount to bad faith. While the violation of the defendant’s s. 10(b) Charter rights in the taking of the police statement was serious, like the other Charter violations, there was no deliberate, wilful or flagrant disregard by the police of the Charter rights of the defendant.

(b) The Impact of the Charter Breach on the Defendant’s Charter-Protected Interests

[111] As to the impact of any Charter violation, the second factor of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the defendant. The impact of the Charter violation may range from “fleeting and technical to profoundly intrusive.” Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, at paras. 76-78.

(i) Warrantless Entry into the Defendant’s Apartment

[112] With respect to this issue and the second factor under Grant, if there was a violation of the defendant’s s. 8 Charter rights in the police entering and searching the defendant’s apartment, this conduct must be regarded as a warrantless and unconstitutional search.

[113] As the court said in Grant at para. 78, an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy is more serious than one that does not. An illegal search of a house will therefore be seen as more serious at this second stage of the Grant analysis. See Grant at para. 113.

[114] That being said, there are circumstances regarding this warrantless search that serve to diminish the impact on the defendant’s protected Charter interests. For example, the entrance into the defendant’s premises was brief and, to the extent there was a search of the apartment, it was limited to the police doing a clearing security check of the apartment to make sure there was no one else in the apartment. The police did not attempt a general search of the premises when they entered. They then secured the apartment while they sought a search warrant.

[115] Another issue that favours the admissibility, rather than the exclusion, of the evidence in this case regarding this second Grant factor is the concept of discoverability. Discoverability remains a relevant factor under s. 24(2) analysis. See Grant at para. 121; Côté at para. 69; R. v. Singh, 2016 ONSC 1144 at para. 48. The fact that the police could have demonstrated reasonable and probable grounds for a search warrant will tend to lessen the impact of the illegal search on the accused’s interest protected by the Charter. See Côté at para. 72. In other words, if the evidence in question would have been uncovered in any event, the impact on the defendant’s Charter-protected interests is less serious and admission of the evidence is more likely.

[116] Also as noted by Justice Campbell in R. v. Singh at para. 48 just as a strong causal connection between the Charter violation and the police obtaining of the impugned evidence will tend to favour the exclusion of the evidence, a weak or a non-existent causal connection between the Charter violation and the state securing of the impugned evidence will militate in favour of the admission of the evidence.

[117] That is the situation in this case. The search warrant would have been issued even with the excision of the observations of the police inside the defendant’s apartment. The defence concedes that when the illegally obtained information from May 26, 2013 is excised from the Information To Obtain, the search warrant issued on May 28, 2013 is still legally valid. The defence also concedes that between the date of entry into the defendant’s apartment on May 26, 2013 and the date the search warrant was issued on May 28, 2013, additional evidence was obtained that could have justified a search warrant.

[118] While I acknowledge that an unconstitutional search of a residence, even a brief and limited one as occurred in this case, strikes at the heart of privacy and security of the person interests protected by s. 8 of the Charter, in all the circumstances this Charter violation by the police had a significantly reduced impact upon the defendant’s Charter-protected interests.

(ii) Looking Through the Mail Slot

[119] With respect to this Charter violation and the second factor in Grant, the breach relating to this issue had a fleeting and minimal impact on the defendant’s Charter-protected interests. The police looking through the mail slot was minimally intrusive. All the police could see when looking through the mail slot was the defendant’s feet under the covers at the end of his bed.

[120] Additionally, as in the case of the warrantless entry by the police into the defendant’s apartment, the fact that the police could have demonstrated reasonable and probable grounds for a search warrant lessens the impact of this illegal search on the defendant’s privacy interests protected by the Charter. The search warrant would have been issued even with the excision of the observations by the police through the mail slot from the Information To Obtain.

[121] Given the minimal impact on the defendant’s Charter-protected interests and the lessening of the impact of this illegal search on the defendant’s Charter-protected interests on the basis of the discoverability factor, I am of the view, in all of the circumstances, that the impact this Charter breach had on the defendant’s Charter-protected interests was not significant.

(iii) Initial Detention of the Defendant

[122] With respect to this Charter violation and the second factor in Grant, I am of the view that the impact on the defendant’s Charter-protected interests was not serious.

[123] With respect to this Charter breach, there is a weak or non-existent causal connection between the Charter breach and the state securing of the evidence found in the subsequent searches of the defendant’s apartment. In this case the search warrant would have been issued even with the excision of the references to the conversations that the police had with the defendant in the hallway or in his apartment from the Information To Obtain.

[124] As well, shortly after his s. 10(a) and s. 10(b) rights were violated during his initial detention by the police, and upon his subsequent arrest, the defendant was provided with the reasons for his arrest and his rights to counsel. Moreover, the Crown was not seeking to introduce into evidence at trial the statements made by the defendant to the police on May 26, 2013 while at his apartment.

[125] In my view, in all the circumstances, this Charter violation by the police had a slight impact upon the defendant’s Charter-protected interests.

(iv) Statement to Police on May 27, 2013

[126] With respect to this Charter violation and the second factor in Grant, as I indicated in my separate written reasons regarding this issue, this Charter violation undermined the defendant’s right to make a meaningful and informed choice to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. That being said, again there was a weak or non-existent causal connection between this Charter violation and the state securing of the impugned evidence found in the subsequent searches which militates in favour of admission of the evidence. In this case the search warrant would have been issued even with the excision of the references of the defendant’s statement to the police on May 27, 2013 from the Information To Obtain. As well, I excluded the admission into evidence of the May 27, 2013 statement at this trial and thus it will not serve to prejudice the defendant at trial.

[127] In my view, in all the circumstances, this Charter violation by the police had a minimal impact upon the Charter-protected interests of the defendant.

(v) Culmulative Effect

[128] In terms of the second Grant factor, when looked at culmulatively, the impact of the Charter breaches on the Charter-protected interests of the defendant was not significant. I am of the view that this second Grant factor favours admission of the evidence.

[129] While the illegal entry and search of a home is serious, there are circumstances regarding this warrantless search that serve to diminish the impact on the defendant’s Charter-protected interests. For example, the entrance into the defendant’s premises was brief and, to the extent there was a search of the apartment, it was limited to the police doing a clearing security check of the apartment to make sure there was no one else in the apartment. The police did not attempt a general search of the premises when they entered. They then secured the apartment while they sought a search warrant.

[130] The police looking into the defendant’s mail slot had a fleeting and minimal impact on the defendant’s Charter-protected interests. The police looking through the mail slot was minimally intrusive. All the police could see when looking through the mail slot was the defendant’s feet under the covers at the end of his bed.

[131] The s. 10(a) and s. 10(b) breach by the police of the defendant’s Charter rights during the defendant’s initial detention by the police had a slight impact on the defendant’s Charter-protected interests. Shortly after the breach, the defendant was provided with the reasons for his arrest and his rights to counsel. Moreover, the Crown was not seeking to introduce into evidence at trial the statements made by the defendant to the police on May 26, 2013 while at his apartment.

[132] In terms of the Charter breach by the police in failing to re-advise the defendant of his 10(b) rights in the course of the police interview with him on May 27, 2013, again this Charter violation had a minimal impact on the Charter-protected interests of the defendant. While the failure to re-advise a defendant of his right to counsel is serious, in this case I excluded the defendant’s statement and therefore it did not prejudice the defendant at this trial.

[133] As well, the impugned evidence in this case obtained by the police in the searches of the defendant’s apartment of May 29 and May 31, 2013 was discoverable. In this case, the search warrants would have been issued even with the excision of the information obtained as a result of the Charter breaches on May 26, 2013 and May 27, 2013. There was a weak or non-existent connection between the Charter violations and the state securing of the impugned evidence.

(c) Society’s Interest in the Adjudication of the Case on the Merits

[134] Under the third factor in Grant, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84.

[135] Regarding the third Grant factor, society’s interest in an adjudication of the case on the merits, all four of the Charter breaches can be dealt with cumulatively at this stage as this factor relates to the evidence found by the police from the searches of the defendant’s apartment on May 29 and May 31, 2013.

[136] The third factor acknowledges that the public has a keen interest in seeing cases adjudicated on their merits. With regard to this factor, the court looks to the truth-seeking function of the criminal trial and the impact of admitting or excluding the impugned evidence on the trial. A breach that undermines the reliability of evidence will point toward exclusion because the admission of unreliable evidence cannot enhance truth seeking. On the other hand, excluding reliable evidence that is key to the prosecution’s case is a relevant consideration militating against exclusion. See R. v. Spencer, 2014 SCC 43, 2014 S.C.C. 43 (S.C.C.) at para. 80; Taylor at para. 38.

[137] The evidence obtained in the searches of the defendant’s apartment was real, physical evidence. It was reliable and very important to the Crown’s circumstantial cases against the defendant. Society has a strong interest in the adjudication of this case on its merits. The allegations in this case of first degree murder and indignity to a dead human body are most serious. This third Grant factor favours admission of the evidence from the searches of the defendant’s apartment on May 29 and 31, 2013.

(d) Overall Balancing

[138] The trial judge must consider each of the Grant factors and determine whether, having regard to all the circumstances, the admission of the evidence obtained as a result of the Charter breach would bring the administration of justice into disrepute. There is no overarching rule that governs how to balance these three factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed to encapsulate considerations of all of the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of decision tree. See Grant at paras. 85-86.

[139] The seriousness of the Charter-infringing state conduct of the four Charter breaches, when viewed culmulatively, is far from the extreme end of the seriousness spectrum. The Charter breaches do not demonstrate a pattern of police misconduct or deliberate disregard for the Charter rights of the defendant. The Charter breaches in this case do not represent conduct from which the court must disassociate itself. When looked at cumulatively, the Charter breaches did not have a significant impact on the Charter-protected interests of the defendant. The impact of the Charter breaches was attenuated by the particular circumstances of the Charter breaches, by the discoverability of the evidence and the tenuousness of the causal connection between the Charter breaches and the state securing of the impugned evidence. The evidence in question was both real and reliable. Society has a strong interest in the adjudication of this case on its merits. The exclusion of the evidence would have a marked negative impact on the truth-seeking function of the trial.

[140] On balance, having considered the four Charter breaches cumulatively and weighing the three Grant factors together, I am of the view that, in all of the circumstances, the admission at trial of the evidence obtained from the searches of the defendant’s apartment on May 29 and May 31, 2013 would not bring the administration of justice into disrepute.

IV. CONCLUSION

[141] For all these reasons, I am not satisfied that the evidence from the searches of the defendant’s apartment on May 29 and May 31, 2013 should be excluded under s. 24(2) of the Charter. The evidence is admissible.

M. F. BROWN J.

Released: August 9, 2018