COURT FILE NO.: CR 17-0000804 DATE: 20180905 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – PAUL WEEDEN
Counsel: S. Adams, for the Crown/Respondent M. Cremer, for the Defendant/Applicant
HEARD: August 7, 8, 9, 10, 13, 14, 16, 20, 21, 22
REASONS ON APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8 AND 24(2) OF THE CHARTER
H. McArthur J.:
Introduction
[1] On April 25, 2016, a man wearing a red/orange vest and white running shoes shot a gun towards a group of people. While he missed the group, the shooter hit an Uber driver who was nearby waiting to pick up a fare.
[2] On September 13, 2016, the police arrested Paul Weeden for the shooting. Following the arrest, although no search warrant had yet been issued, police entered Mr. Weeden’s apartment to “clear it”. One of the bedroom doors in the apartment was locked. The police kicked the door in and went into the bedroom. After determining that no one was in the apartment, two officers stayed in the apartment to “freeze” the residence while waiting for the pending search warrant.
[3] After the search warrant was issued, police searched the apartment. They found a red/orange Canada Goose vest and a pair of white running shoes with silver lace-guards. The police also located a large quantity of marihuana, a bundle of cash, and documents in Mr. Weeden’s name. As a result, Mr. Weeden was also charged with possession of marihuana for the purpose of trafficking, possession of proceeds of crime and simple possession of marihuana.
[4] Mr. Weeden seeks to have the evidence excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing that the police violated his right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter in four ways. First, by entering the apartment without a warrant in order to clear it. Second, by kicking in the door to and entering the locked bedroom. Third, by searching his apartment while waiting for the search warrant to arrive. Fourth, by remaining inside of the apartment to freeze it while waiting for the search warrant to arrive.
[5] The Crown counters that the police were justified in entering, clearing and freezing the apartment without a warrant because of exigent circumstances. The same exigent circumstances justified kicking in the locked bedroom door to enter. She argues that there is no evidence to support the allegation that the police searched the residence before the search warrant arrived. Finally, the Crown submits that if the police did violate Mr. Weeden’s s. 8 rights, they acted in good faith and the evidence should be admitted.
[6] For the reasons that follow, I have determined that Mr. Weeden’s s. 8 rights were violated when the police remained in his apartment after clearing it without a warrant. I have determined, however, that the evidence should be not be excluded pursuant to s. 24(2).
[7] At the outset, I will address the facts briefly. I will then turn to my analysis regarding the alleged violations of Mr. Weeden’s s. 8 rights. Finally, I will address s. 24(2).
Brief Outline of the Facts
(a) The Shooting
[8] In the early morning hours of April 25, 2016, a dispute erupted between a number of people outside of a club in downtown Toronto. A man wearing a red/orange vest shot a gun towards some of the people. The bullet did not hit anyone involved in the dispute, rather, the bullet went through the car door of a nearby Uber driver and struck him in the shoulder. The man wearing the red/orange vest then fled the scene.
(b) Efforts to Arrest and Preparation of the Search Warrant
[9] By August 14, 2016, the police believed that they had reasonable grounds to arrest Mr. Weeden for the shooting. At that time, D.C. Briscoe was assigned the role of affiant for a warrant to search apartment 1209-2247 Hurontario Street, Mississauga, an address associated with Mr. Weeden. The information the police had linking Mr. Weeden to that address included the following:
- On March 19, 2016 Mr. Weeden had a car accident and provided police with a home address of 1209-2247 Hurontario Street.
- On the same day, Mr. Weeden rented a car from Swift Rent-A-Car and provided a home address of 1209-2247 Hurontario Street.
- On April 20, 2016, Mr. Weeden was investigated for a traffic violation and found to be in possession of what appeared to be marihuana. He provided police with a home address of 1209-2247 Hurontario Street.
- A tenant list for apartment 1209-2247 Hurontario Street listed Mr. Weeden as living there with his mother and another male.
[10] On September 8, 2016 a warrant in the first was issued Mr. Weeden’s arrest. At that time, however, the police did not apply for a search warrant. D.C. Chris Miller testified that while they had information suggesting that Mr. Weeden lived at apartment 1209-2247 Hurontario Street, in his view more current information was required in order to obtain the search warrant.
[11] On September 12, 2016, a team of officers went to 2247 Hurontario Street and conducted surveillance. They hoped to find and arrest Mr. Weeden. D.C. Robert Furyk and D.C. Miller went to the underground parking garage. There, they saw a white Honda civic registered to Mr. Weeden. Mr. Weeden, however, was not seen on that day.
(c) The Arrest
[12] On September 13, 2016, the team of officers re-attended at 2247 Hurontario Street to find and arrest Mr. Weeden. D.C. Furyk and D.C. Miller once again positioned themselves in the underground parking garage. Within a short time, they saw Mr. Weeden meet and speak with a man in the garage. The two men then walked towards Mr. Weeden’s car. The male got into the driver’s seat and Mr. Weeden got into the front passenger seat.
[13] D.C. Miller testified that although his intention had been to arrest Mr. Weeden if he saw him in the garage, the fact that another man was with him led to a change in plans. There were only two officers in the garage. D.C. Miller believed that it was unsafe to try to arrest Mr. Weeden at that stage, as it was two against two.
[14] Instead, D.C. Miller and D.C. Furyk waited until the car was moving and followed it up the driving ramp. At the same time, they radioed their team (who were located outside the parking garage) to let them know that they were going to “take down” Mr. Weeden. Another officer pulled his car into the top of the ramp, blocking Mr. Weeden’s exit. At that, the driver attempted to back up and wound up hitting D.C. Miller and D.C. Furyk’s car.
[15] Mr. Weeden was taken out of the car and arrested. Sgt. Scott Allen took charge of Mr. Weeden, placed him in the rear of a scout car and read him his rights to counsel. Sgt. Allen asked Mr. Weeden a number of questions. Mr. Weeden told the officer that he lived in apartment 1209 and that he believed that his mother was currently inside the apartment. After finishing talking with Mr. Weeden, Sgt. Allen advised the other officers that Mr. Weeden’s mother may be inside the apartment.
[16] The arrest of Mr. Weeden attracted attention. Because the ramp was blocked, it created a problem for cars that needed to get in or out of the garage. More officers had to attend to take an accident report. A crowd of people began to gather around to watch what was happening. The team of officers who attended were not from Mississauga, but from 14 Division in Toronto. As a result, they were unfamiliar with the local community and could not identify any of the people who were watching.
(d) The Initial Entry into Mr. Weeden’s Apartment
[17] Given how events had unfolded, the road boss for the day, D.C. Schippke, instructed D.C. Jason Goss, D.C. Furyk, D.C. Miller and Sgt. Allen to go to Mr. Weeden’s apartment to ensure that no one was inside. The officers had a key to the apartment that they had obtained from Mr. Weeden. At 8:04 p.m., the officers used the key to enter. They flooded in, yelling out “Police”. The officers spread out, checking each room to make sure no one was there.
[18] One bedroom door was locked. Sgt. Allen said to break the door down and D.C. Miller did. Sgt. Allen, D.C. Miller and D.C. Goss all entered the bedroom and determined that no one was inside. D.C. Miller and D.C. Goss testified that they saw bags of what appeared to be marihuana on the bed, as well as a bundle of cash on a futon. They both testified that they left the items where they were and that they did not search the bedroom other than to ensure that no one was inside. There is no dispute that this was Mr. Weeden’s bedroom.
(e) Freezing the Apartment and the Application for the Search Warrant
[19] Once the officers had cleared the apartment, Sgt. Allen and D.C. Miller left. D.C. Furyk and D.C. Goss remained inside the apartment to make sure that no one entered. At some point before the warrant arrived, Mrs. Weeden arrived at the apartment and tried to enter. The officers stopped her and explained that they were freezing the apartment until the search warrant arrived. Mrs. Weeden was allowed to come inside and gather up some belongings and then left. The officers resumed standing guard inside the apartment waiting for the search warrant to arrive.
[20] D.C. Briscoe first faxed in the application for the warrant at 8:15 p.m. and included the updated information that Mr. Weeden had been arrested at 2247 Hurontario Street. D.C. Briscoe, however, used the wrong form. The justice of the peace advised D.C. Briscoe of his error and told him to resubmit the application using the right form. D.C. Briscoe then prepared the application for the search warrant on the proper forms and sent them again to the justice of the peace. The warrant was issued at 12:07 a.m. on September 14, 2016.
(f) The Execution of the Search Warrant
[21] The search warrant arrived on scene at 12:53 a.m. A number of officers assisted in executing the warrant. D.C. Edward McNabb was assigned to take photographs of the apartment before the search and to take photographs of any items of interest discovered. D.C. McNabb, however, did not photograph everything in the apartment before the search started. In particular he did not take photographs of numerous boxes of shoes found in Mr. Weeden’s bedroom closet.
[22] D.C. John Antonaros found and seized a pair of white running shoes with silver lace-guards that he located in the front hall. D.C. Antonaros testified that he had viewed images of the suspect taken from inside the club that night, and thought that the shoes with the silver-lace guards were similar to those worn by the suspect. Although there were other white running shoes in the apartment, these were the only pair he seized. D.C. Antonaros said that the others shoes either did not match the description of the shooter’s shoes or appeared to be brand new. As a result, he did not seize them.
[23] D.C. Goss seized a red/orange Canada Goose vest. He seized the vest although it had a price tag on it, and appeared to be potentially new. He seized the marihuana that had been on the bed and the bundle of the cash from the futon. D.C. Goss also seized more marihuana he found in a black backpack by the end of the bed. The total weight of marihuana seized from Mr. Weeden’s bedroom was 2018.18 grams.
Analysis
Issue One: Did the police violate Mr. Weeden’s s. 8 rights by entering into his apartment without a warrant in order to “clear it”?
[24] The police did not have a search warrant when they went into Mr. Weeden’s apartment to clear it. Warrantless searches are presumed to be unreasonable unless they can be justified pursuant to the test set out in R. v. Collins, [1987] 1 S.C.R. 265. Under Collins, a search will be deemed reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable. The onus is on the Crown on a balance of probabilities to justify a warrantless search.
[25] Here, the Crown argues that the police acted lawfully in entering the apartment pursuant to s. 487.11 of the Criminal Code, R.S.C. 1985, c. C-46. Section 487.11 was enacted in 1997 as a statutory response to R. v. Silveira, [1995] 2 S.C.R. 297, where Cory J. for the majority of the court found that the police had violated the appellant’s s. 8 rights by entering his apartment to clear it and freeze it while waiting for a pending search warrant.
[26] Section 481.11 provides that an officer can search a residence without a warrant if the conditions for obtaining a warrant exist, but by reason of exigent circumstances it would be impracticable to obtain a warrant.
[27] While s. 487.11 does not define exigent circumstances, useful guidance can be gleaned from s. 529.3, which sets out two situations that amount to exigent circumstances. First, where an officer has reasonable grounds to suspect that entry into a residence is necessary to prevent imminent bodily harm or death to any person. Second, where the officer has reasonable grounds to believe that evidence relating to an indictable offence is present in the residence and that entry into the residence is necessary to prevent the imminent loss or destruction of the evidence.
[28] In the present case, there is no dispute that after the police arrested Mr. Weeden at 2247 Hurontario Street they had the grounds to obtain a search warrant. Instead, defence counsel argues that exigent circumstances did not exist. Alternatively, she argues that the police cannot rely on exigent circumstances, as they created the urgency through their planned course of conduct. I will address each argument in turn.
1) Did exigent circumstances exist?
[29] The following facts are relevant to an assessment as to whether there were exigent circumstances:
- Mr. Weeden had been arrested for a shooting and the gun had not been recovered.
- Items of clothing worn by the shooter had not been recovered.
- Mr. Weeden told Sgt. Allen that he believed that his mother was in the apartment.
- The tenant list for the apartment listed Mr. Weeden, his mother and another male as living there.
- Mr. Weeden’s arrest attracted a lot of attention. A crowd of people gathered around to watch what was happening.
- The officers were from 14 Division in Toronto, and were unfamiliar with the community at 2247 Hurontario Street in Mississauga. They had no way of knowing whether anyone in the crowd was associated with Mr. Weeden.
[30] In my view, looking at the totality of the facts, exigent circumstances existed. The police had information that Mr. Weeden’s mother may be inside the apartment. They knew that a number of people from the community saw Mr. Weeden being arrested. Given the crowd, and the ubiquitous nature of cell phones, the police reasonably believed that if Mr. Weeden’s mother was inside, she could easily be told that her son had been arrested. It is true, as argued by defence counsel, that the police had no information to suggest that Mr. Weeden’s mother was involved in crime. But they had no information to suggest that she was not. Given the serious nature of the offence, the police reasonably believed that if she was inside, she could be motivated to discard or destroy evidence in order to assist her son. Moreover, the tenant list showed another male living in the apartment. The police had no way of knowing whether that individual was inside. I find that the police were justified in entering the apartment to clear it to ensure that no one was inside who could destroy or discard evidence.
2) Did the police create the urgency that led to their claim of exigent circumstances?
[31] Defence counsel submits that the police created the very urgency that led to their claim of exigent circumstances. As noted in R. v. Phoummasak, 2016 ONCA 46, at para.15, if the police set out to create exigent circumstances to justify entry into a premise without a warrant, then the circumstances are not exigent and cannot justify a warrantless search or entry.
[32] Specifically, defence counsel argues that the police had ample evidence before Mr. Weeden’s arrest that he lived at 1209-2247 Hurontario Street. Thus, they had reasonable grounds to obtain a search warrant. The failure of the police to obtain the warrant when they could have easily done so, she argues, means that they cannot now rely on exigent circumstances to justify their entry into the apartment without warrant.
[33] As explained in Phoummasak at para. 16, however, the inference that the police set out to avoid the warrant requirement does not flow automatically from the fact that the police could have obtained a search warrant for the premises before the exigent circumstances arose. Rather, the specific circumstances of each case must be examined.
[34] In the present case, D.C. Miller explained why the police did not apply for the warrant before Mr. Weeden’s arrest. They wanted further confirmation that it was his apartment. As in Phoummasak, I find that this is not an unreasonable explanation. I also find that the timing of the application for the search warrant supports the officer’s position. Following Mr. Weeden’s arrest, D.C. Briscoe added the fact that Mr. Weeden had been arrested at 2247 Hurontario Street to the Information to Obtain. Within 27 minutes of Mr. Weeden’s arrest (and only 11 minutes after the police entered the apartment to clear it) the application for the search warrant had been submitted. The rapidity with which the search warrant was sought following Mr. Weeden’s arrest supports the conclusion that the police did not set out to create exigent circumstances to justify entry into the premises without a warrant.
[35] Moreover, the situation on September 13 unfolded quickly and fluidly. As D.C. Miller testified, if Mr. Weeden had been on his own when he was first seen, he would have been arrested quickly in the underground. But since he was with another man, the police had to change plans. The police had to make a quick decision; allow Mr. Weeden to drive off, or attempt to arrest him before he could do so. Given the nature of the allegations against Mr. Weeden, the decision to block him in on the ramp so that he could not leave was a reasonable one. It was a decision, however, that led to more attention being paid to the arrest than expected. The police did not set out to create exigent circumstances; rather, unexpected events led to a situation of urgency. The police were justified in entering the apartment because of exigent circumstances.
Issue Two: Did the police violate Mr. Weeden’s s. 8 rights by kicking in his locked bedroom door before they had a warrant?
[36] Defence counsel argues that the police violated Mr. Weeden’s s. 8 rights by kicking in his locked bedroom door. She argues that it would have been clear to the officers that no one was in the apartment by this stage. It was a small apartment and since they did not hear anything from behind the locked door, they could be sure that no one was in there. Thus, there was no reasonable potential that any evidence would be destroyed in Mr. Weeden’s bedroom. I cannot accept this submission.
[37] The police were justified in entering the apartment because of exigent circumstances. Those exigent circumstances justified them checking to ensure that no one was anywhere in the apartment. The fact that the door was locked did not mean that the police were precluded from ensuring that no one was hiding in the bedroom who could potentially destroy evidence or arm themselves with the missing gun, creating a dangerous situation. And they had no way to determine whether anyone was inside the locked room except by checking.
[38] The same exigent circumstances that justified the police entering the apartment to clear it, also provided the lawful authority for the police to enter into the locked bedroom to ensure that no one was inside.
Issue Three: Did the police violate Mr. Weeden’s s. 8 rights by searching the apartment before the search warrant arrived?
[39] Defence counsel argues that the police searched through Mr. Weeden’s apartment while waiting for the search warrant to arrive. Specifically, she says that they searched through a backpack in his bedroom and located marihuana.
[40] The officers all denied the suggestion that they searched the apartment before the search warrant arrived. Defence counsel, however, argues that the evidence shows that the police are being untruthful when they deny searching. She points to three factors that she suggests establishes that the police searched through the backpack.
[41] First, she notes that three officers, D.C. Miller, D.C. Goss and Sgt. Allen, all said that they entered the bedroom to check if anyone was inside. This, she argues, makes no sense. One officer could easily have determined whether anyone was inside the bedroom. She argues that three officers were inside the bedroom because they were searching. Second, she points out that Sgt. Allen testified that he did not see anything of note in the bedroom. This can be contrasted with D.C. Goss and D.C. Miller, who both said that they saw bags of marihuana on the bed. Finally, she points out that D.C. McNabb was tasked with taking pre- and post-search photos. Yet he failed to take photos of what officers claimed were numerous boxes of shoes stored in Mr. Weeden’s bedroom closet. Defence counsel argues that D.C. McNabb did not take photos of the shoes, because by that time the boxes had already been searched by overzealous officers who refused to wait for the warrant before searching. Looking at these three factors together, defence counsel argues that it is clear that the officers searched the apartment before the warrant arrived.
[42] I cannot accept this submission. In my view there is nothing odd about the fact that Sgt. Allen, D.C. Miller and D.C. Goss all entered into the locked bedroom. This was a rapid and fluid situation. After breaching the door, the officers flooded in to ensure that no one was inside. Moreover, it is not surprising in this rapidly unfolding situation that different officers noticed different things. According to Sgt. Allen, he was in the bedroom for a minute or less. He was focused on whether or not anybody was hiding in the room. Given how quickly he moved through the room looking for people, it is plausible that he would not notice the marihuana that was seen by the other officers. Finally, while I agree that it would have been better practice for Sgt. McNabb to take photos of the numerous boxes of shoes, in my view his failure to do so falls far short of establishing that the other officers searched the bedroom before the warrant arrived.
[43] Moreover, in my view the position of the defence does not make a great deal of sense. Why would the officers remove two bags of marihuana from the backpack, but leave the rest of the marihuana in the backpack? If they had searched through the backpack before the warrant arrived they could have simply left the drugs in the bag. Defence counsel argues that the officers placed some of the marihuana on the bed in order to provide justification for their entry into the locked bedroom. But exigent circumstances provided the officers with the authority to enter the bedroom. Without those urgent circumstances, finding marihuana in the bedroom would not have provided an ex post facto justification for entering the bedroom. In any event, no officer claimed that the fact that marihuana was found in the bedroom gave them any authority to enter the bedroom. That militates against a finding that the officers placed the bags of marihuana on the bed in order to provide justification for their initial entry into the bedroom.
[44] The officers all credibly rejected the suggestion that they searched the apartment before the warrant arrived. I accept their evidence on this point without hesitation. I find that after clearing the apartment for people, the officers did not conduct any further searches until the warrant arrived.
Issue Four: Did the police violate Mr. Weeden’s s. 8 rights by remaining in the apartment to freeze it while waiting for the pending search warrant?
[45] Once the officers had cleared the apartment, D.C. Furyk and D.C. Goss remained inside while waiting for the search warrant to arrive. Defence counsel argues that they violated Mr. Weeden’s s. 8 rights in so doing. Crown counsel counters that exigent circumstances still existed. The officers testified that they had two reasons to remain in the apartment. First, the apartment had a balcony and they were worried that someone could potentially access the apartment from the balcony. If they waited outside of the apartment door, they would not be in a position to see or hear if someone got into the apartment from the balcony. Second, they were safer positioned inside the apartment than they would be if they were standing guard in the hall. These factors, the Crown argues, amounted to exigent circumstances.
[46] In my view, however, once the officers had cleared the apartment, there were no longer exigent circumstances. While the officers were concerned that someone might come in through the 12th floor balcony, the potential of this occurring was remote. That is, there were not reasonable grounds to believe that someone might scale up or down the building and access the 12th floor balcony. Further, while I accept that the officers believed that they would be safer inside than outside of the apartment, they still had to have some have lawful authority to remain inside. Here, the officers had neither reasonable belief, nor reasonable suspicion, that there would be imminent bodily harm or death if they stationed themselves outside of the apartment while waiting for the warrant. Moreover, the argument that officers will be safer waiting inside a residence would apply to most situations. Yet, as explained by Rosenberg J.A. in R. v. Kelsey, 2011 ONCA 605, at para. 35, exigent circumstances are “extraordinary and should be invoked to justify violation of a person’s privacy only where necessary.”
[47] The officers could have ensured that no one entered the apartment by posting an officer outside the front door and having an officer posted outside the building to watch the balcony. While it was dark outside, ambient lighting and a flashlight would have allowed an officer outside to see if someone was trying to scale up or down the building to access the balcony. Moreover, concerns about officer safety could be ameliorated by having two officers stand guard outside the front door.
[48] As in R. v. Turner, 2015 ONCJ 281, at para. 76, I find that the officers were not permitted to remain inside Mr. Weeden’s apartment while waiting for the warrant. They had no lawful authority to do so, and thus violated Mr. Weeden’s s. 8 rights.
Issue Five: Should the evidence be excluded pursuant to s. 24(2) of the Charter?
[49] Section 24(2) provides that evidence that was obtained in a manner that infringed or denied any Charter rights shall be excluded if the admission of the evidence would bring the administration of justice into disrepute. The framework for the application of s. 24(2) was set out by the Supreme Court in R. v. Grant, 2009 SCC 32. The court must consider three lines of inquiry: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the defendant; and (iii) society’s interest in an adjudication on the merits.
[50] The s. 8 violation in this case did not lead the police to find any evidence. As noted in R. v. Pino, 2016 ONCA 389, however, courts have taken a broad and generous approach in interpreting the “obtained in a manner requirement”. In Pino, Laskin J.A. for the court explained at para. 72 that the “obtained in a manner” requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections. In the present case, I find that the breach is both temporally and contextually connected to the finding of the evidence. As result, I will go on to consider the three lines of inquiry set out in Grant.
(i) The seriousness of the Charter-infringing state conduct
[51] The first inquiry involves measuring the seriousness of the Charter violation. The more severe or deliberate the state conduct, the greater the need for the court to disassociate itself from the conduct by excluding the evidence.
[52] In the present case, while the officers breached Mr. Weeden’s s. 8 rights, in my view they did so in good faith. The officers were worried about an outstanding gun. While the chance that someone could manage to get to the 12th floor balcony from the outside was remote, the officers acted out of an abundance of caution because of the seriousness of the offence involved and the fact that the gun used in the shooting had not been recovered. Moreover, they had concerns regarding officer safety, which, while not sufficient in these circumstances to give them the lawful authority to remain in the apartment, is certainly understandable.
[53] Moreover, in all other aspects the police conduct showed respect for Mr. Weeden’s privacy. The officers used a key to enter the apartment, rather than breaking the front door down. They did not rely on the marihuana and money observed when clearing the apartment to bolster their grounds for the warrant. They did not search before the warrant arrived. And when Mrs. Weeden came to the apartment, they allowed her to get her belongings.
[54] This factor points towards inclusion of the evidence.
(ii) The impact on the Charter-protected interests of the defendant
[55] Here, the impact of the breaches on Mr. Weeden’s Charter-protected interests was significant, as Mr. Weeden had a high expectation of privacy in his home.
[56] On the other hand, this is not a situation such as R. v. Davidson, 2017 ONCA 257. There, at para. 50 the court found that the impact on the appellant’s interests was more severe because once inside the home, the police infringed the appellant’s dignity by searching through his cupboards and refrigerator, and questioning him in front of his family. In the present case, the officers simply stood inside, with one officer keeping watch of the door and the other officer keeping watch of the balcony.
[57] Despite that fact, I find that this factor points towards exclusion of the evidence.
(iii) Society’s interest in an adjudication on the merits
[58] As noted in R. v. Blake, 2010 ONCA 1, at para. 31, society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. In the present case, the evidence of the red/orange vest is not essential evidence in the shooting. Indeed, it is conceded by the Crown that the vest seized is not the same as the one worn by the suspect. The white running shoes with the silver lace-guards are also not essential evidence. The Crown takes the position that the case against Mr. Weeden can be established beyond a reasonable doubt without this evidence. Thus, society’s interest in an adjudication on the merits for the shooting offence would not be affected by exclusion of the evidence.
[59] On the other hand, the marihuana and the money found were entirely reliable and essential to the Crown’s case on the count of possession for the purpose of trafficking and possession of proceeds of crime. If the evidence is excluded, it is conceded that Mr. Weeden must be acquitted on these counts.
[60] Overall, I find that this factor points towards inclusion of the evidence.
(iv) Balancing the Factors
[61] In my view, a proper balancing of the Grant factors leads to the conclusion that admission of the evidence would not bring the administration of justice into disrepute. The evidence is admissible.
Conclusion
[62] The officers were justified in entering Mr. Weeden’s apartment to ensure that no one was inside because of exigent circumstances. The same urgency justified the officers in breaking the door to Mr. Weeden’s bedroom and entering the bedroom to make sure that no one was hiding in there. The officers refrained from conducting any further searches until the search warrant arrived. By remaining inside Mr. Weeden’s apartment while waiting for the warrant, however, the officers violated Mr. Weeden’s s. 8 rights. Despite that violation, I find that the officers were acting in good faith and the evidence is admissible pursuant to s. 24(2).
Justice Heather McArthur Released: September 5, 2018