COURT FILE NO.: CR-16-2185
DATE: 20181029
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JUSTIN KUKEMUELLER
Kent Saliwonchyk, for the Crown
Justin Kukemueller, acting in person
HEARD: July 23 - August 3, 2018 and September 29, 2018
REASONS FOR DECISION
Charter Challenge: Sections 7, 8, 9, 10 (a), 10(b)
Woodley, J.
OVERVIEW
[1] On May 18, 2016, the police obtained a Criminal Code section 117.04 public safety warrant regarding Justin Kukemueller that authorized the search of his residence for explosive substances.
[2] On May 19, 2016, the police stopped Mr. Kukemueller at a roadside “lights up” traffic stop away from his residence and provided information about the existence of the warrant and their intent to execute the warrant.
[3] Following discussions with the police at the roadside, Mr. Kukemueller re-attended his residence accompanied by the police and physically conducted the execution of the public safety warrant under police direction.
[4] During execution of the public safety warrant, Mr. Kukemueller located, handled and identified items that were set aside, seized, examined and tested by the police. These items form the entirety of the evidence that is the basis of the Indictment before me.
[5] As a result of the search on May 19, 2016, and approximately seven hours after he was first stopped by the police, Mr. Kukemueller was arrested and charged as follows:
(1) He had in his possession, without lawful excuse, an explosive substance: Ammonium Nitrate Fuel Oil (“ANFO”) contrary to section 82(1) of the Criminal Code;
(2) He had in his possession, without lawful excuse, an explosive substance: black powder contrary to section 82(1) of the Criminal Code;
(3) He had in his possession 2 non-restricted firearms without any locking mechanisms or devices to render the firearms inoperable and there was readily available ammunition outside of locked containers contrary to section 86(2) of the Criminal Code; and
(4) He had in his possession, without lawful excuse, an explosive substance: sections of metal pipes with metal caps contrary to section 82(1) of the Criminal Code.
[6] At no time prior to his arrest was Mr. Kukemueller ever cautioned, or advised of his right to counsel, nor was he advised that he was free to leave without any consequences.
The Charter Application
[7] At the commencement of trial, the Crown sought to play the videotape of the execution of the s. 117.04 warrant that occurred on May 19, 2016. The Crown proposed to play the tape without sound – as it did not seek to displace the presumption that any statements made by Mr. Kukemueller were involuntary.
[8] Mr. Kukemueller, who was self-represented at trial, objected on the grounds that his statements and his actions were involuntary, his rights had been violated as the police failed to caution him or inform him of his rights, including his right to counsel. And furthermore, that the police had otherwise enlisted him as an agent to locate and identify the items seized, thereby causing him to incriminate himself, resulting in the charges before the court.
[9] At the time of the objection, there was no Charter application before the court.
[10] Following a voir dire, I determined that there was evidence of a Charter problem where rights may have been breached and I would be remiss if I did not complete an enquiry into the possible Charter breaches and Charter remedies.
[11] Accordingly, the parties were ordered to file the appropriate documents for the hearing of the Charter application which proceeded before me in the form of a blended voir dire.
[12] These Reasons for Decision are restricted to determination of the Charter issues.
ISSUES
[13] Generally speaking, the issues to be determined are whether Mr. Kukemueller was detained, whether his Charter rights were breached, and if so, what is the appropriate remedy to address any breach.
[14] More particularly, the issues are as follows:
(1) Was use of the s. 117.04 warrant authorized by law or did use of the warrant constitute a breach of s. 8 of the Charter?
(2) Was Mr. Kukemueller arbitrarily detained contrary to s. 9 of the Charter any time prior to or during execution of the warrant?
(3) Did police fail to inform Mr. Kukemueller of the reason for any detention contrary to s. 10(a) of the Charter?
(4) Did police fail to inform Mr. Kukemueller of the right to counsel upon detention, contrary to s. 10(b) of the Charter?
(5) Were the questions put to Mr. Kukemueller prior to or during the execution of the warrant in violation of his right to silence, contrary to s. 7 of the Charter?
(6) Did the involvement of Mr. Kukemueller in the execution of the warrant render the search unreasonable contrary to s. 8 of the Charter?
(7) Was there an abuse of process that requires a stay of proceeding?
(8) Should any evidence be excluded pursuant to s. 24(2) of the Charter?
THE FACTS
[15] The facts are reviewed in great detail below as they are both unusual and critical to the determination of the Charter issues.
[16] Mr. Kukemueller, his parents and his grandparents each own residences that are located next to or otherwise in close proximity to the Ontario Provincial Police (the “OPP”) Peterborough detachment.
[17] There is a history of disputes and related legal proceedings between Mr. Kukemueller, his family and the Peterborough OPP which includes a historical claim issued by Mr. Kukemueller and his family as Plaintiffs against numerous Defendants, including members of the Peterborough OPP, alleging prosecutorial misconduct.
Investigation Regarding CI Information about Explosive Devices
[18] Against this backdrop, and in May of 2016, the Peterborough OPP received information from a confidential source that Mr. Kukemueller was in possession of two improvised explosive devices commonly known as pipe bombs and that he had successfully detonated one of the explosive devices.
[19] On the basis of the CI information obtained, the police began an operation. DC King of the Peterborough OPP crime unit was the lead investigator, Sgt. Conway was his unit supervisor, Staff Sgt. Horzempa was the section manager of the operation, Staff Sgt. Cooper of the OPP UCRT (explosives team) was in charge of the UCRT unit and Inspector Walli of the OPP was tasked with the position of Critical Incident Commander (CIC) for the operation.
SMEAC Report
[20] In furtherance of the operation, DC King prepared a SMEAC Operations/Incident Plan on May 16, 2016.
[21] According to the SMEAC, the objective of the operation was to:
[O]btain and execute a s. 117.04 search warrant, locate, identify and seize any explosive substances, materials, improvised devices, ammunition/shells, firearms and all associated licenses keeping the safety of person and officers involved the highest priority.
[22] The SMEAC reported under RMS/NICHE, “Justin flagged hates police and violent and assaultive”. The SMEAC further reported under threat assessment that “suspect has a propensity towards violence and is known or believed to possess or use firearms, explosives or chemical, biological or radiological weapons.”
[23] The main action plan noted by the SMEAC was to:
Contain the residence with [Mr. Kukemueller] away from it (intel from RST) using ERT [emergency response team] members. Contact UCRT and upon their arrival shut down the highway north and south of the residence (Hwy 507). Members of UCRT to execute, clear residence and identify any explosive substances. Should UCRT locate and identify explosive material consistent with the information received, all remaining items on the face of the warrant will be searched for and seized. Should UCRT clear the residence without locating any substances or materials consistent with the information received, investigators will clear the residence short of seizing additional items.
Obtaining the Section 117.04 Warrant
[24] On May 18, 2016, DC King swore an Information to Obtain a Warrant in support of a request for issuance of the s. 117.04 referenced in the SMEAC. In summary, the grounds for the warrant were as follows:
(1) On the ground of “not desirable” DC King stated that the information that was provided to him by the Confidential Informant revealed that Mr. Kukemueller possesses the materials and the knowledge to manufacture an improvised explosive device in the form of a pipe bomb and that he has made one or more of these and has successfully detonated at least one. Further, that there is no reasonable justification for Mr. Kukemueller to manufacture them. It presents a danger to both Mr. Kukemueller and those around him.
(2) On the grounds to believe that the things to be seized are presently at the place to be searched, DC King found the information from the CI to be accurate and reliable.
(3) The CI had informed the police of the following and was relied on in the ITO:
a) That within the last few weeks the accused was in possession of two improvised explosive devices commonly known as pipe bombs.
b) That the accused is in possession of additional materials to create more pipe bombs.
c) That the accused has been seen in his home with pipe bombs, as well as the material to make them, on more than one occasion.
d) That the accused has gun powder kept in a container as well as ammunition shells all throughout his residence.
e) That he lives by himself.
f) That he has in his possession a clear liquid of unknown substance but is believed to be utilized in the manufacturing of explosives.
[25] The search warrant was granted pursuant to s. 117.04 of the Criminal Code.
[26] The warrant authorized entry to Mr. Kukemueller’s residence between 6 a.m. on May 19, 2016 and 9 p.m. on May 24, 2016, to “search for and seize any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and any authorization, license or registration certificate relating to any such thing”.
The Execution of the Section 117.04 Warrant
[27] In preparation of execution of the warrant, many other officers and units became involved in the operation including OPP UCRT with members Staff Sgt. Cooper, Sgt. Wheeler, Sgt. Groleau and others; OPP ERT with Sgt. Collings and others; OPP K9 unit; and several additional members of the Peterborough OPP including PC Unsworth, PC Kenney and PC Bates.
[28] The OPP also consulted with the Terrorism Response Unit who determined that the operation did not satisfy their criteria for engagement and did not participate.
May 19, 2016 Briefing – Execution of Warrant
[29] The warrant was set to be executed on May 19, 2016. In preparation for the execution, DC King held a 5 a.m. briefing that lasted approximately 1 ½ hours and included approximately 22 police officers, who were some, but not all of the officers involved and/or available to assist with the operation and the execution of the search warrant.
[30] During the briefing, DC King discussed the plan to execute the warrant. DC King advised the officers present that Mr. Kukemueller was tagged as “hates police” and “violent and assaultive”. DC King testified that he described Mr. Kukemueller and his family as being “Freeman of the Land” types which discussion was intended to “trigger” in the officers the need to utilize certain communication tactics related to de-escalation techniques, when they were speaking to any member of the family, including Mr. Kukemueller.
[31] At the conclusion of the briefing, at about 6:23 a.m., a discussion occurred between CIC Walli, DC King, Staff Sgt. Cooper, and Sgt. Wheeler as follows: if Mr. Kukemueller is cooperative and comes back to the house, UCRT approved taking him in the house however, this must be videotaped.
[32] Following the briefing the police set up various staging and command posts and waited for Mr. Kukemueller to leave his residence.
[33] Mr. Kukemueller did not leave his residence until 2:22 p.m., at which time he entered his vehicle and headed southbound on Highway 507. Two uniformed officers, PC Bates and PC Kenney, were directed to stop Mr. Kukemueller, obtain identification, and hold him until DC King arrived.
Traffic Stop by PC Kenney and PC Bates
[34] At 2:32 p.m., PC Bates and PC Kenney activated the lighting on their vehicle and stopped Mr. Kukemueller at the roadside. PC Kenney asked for identification to confirm Mr. Kukemueller’s identity. PC Kenney informed Mr. Kukemueller of the reason for the traffic stop – that he was the subject of a public safety warrant that was to be executed at his residence. PC Kenney asked Mr. Kukemueller if he had anything that would cause harm to anyone.
[35] Mr. Kukemueller provided his identification and advised PC Kenney that he didn’t have anything that would cause harm to any person.
[36] PC Kenney noted that Mr. Kukemueller was nervous and shaking but otherwise polite and cooperative.
Traffic Stop Continued by DC King and PC Unsworth
[37] Shortly following the exchange with PC Kenney, DC King and PC Unsworth arrived in an unmarked police vehicle. Both officers were dressed in plain clothes. DC King approached the driver’s side of vehicle and replaced PC Kenney who “backed off”. PC Unsworth approached the passenger side of the vehicle.
[38] DC King introduced himself. He shook Mr. Kukemueller’s hand. DC King produced the warrant and gave Mr. Kukemueller a copy. DC King reported that Mr. Kukemueller was visibly shaking, took out his cell phone and advised DC King that he wanted to call his father. When he could not reach his father, he spoke to his mother. DC King noted that Mr. Kukemueller was upset and not fully understanding the warrant or what the police were intending to do. DC King explained the warrant and advised that they are primarily looking for explosive substances. DC King questioned Mr. Kukemueller about the presence of items at his residence.
[39] Mr. Kukemueller advised DC King that he had gun powder and cannon cord at his house which he is allowed to possess with a valid firearms license.
[40] DC King advised Mr. Kukemueller that there were many officers waiting outside his home to execute the warrant and if that is all he had then they will search and leave. DC King testified that Mr. Kukemueller became concerned about the police “wrecking” his home and that he told Mr. Kukemueller with his cooperation it can just be Mr. Kukemueller, himself (DC King), and a few explosive experts going through the house. DC King’s notes confirm that he advised that although there were “a lot” of officers at his home, they can just stay outside – for purpose of security and containment.
[41] Mr. Kukemueller said he wanted nothing done without his father. DC King said that was no problem and they could either wait or head back to his house and wait.
Mr. Kukemueller Makes a Beer Run
[42] As they were waiting for his father, Mr. Kukemueller asked for permission to go to the beer store. DC King agreed and told Mr. Kukemueller that when he returned, he wanted him to speak to Staff Sgt. Cooper, a UCRT explosives expert.
DC King Updates CIC Walli
[43] DC King called CIC Walli to provide an update. DC King advised that “the traffic stop went well.” CIC Walli’s notes report that Mr. Kukemueller:
• “will talk to Cooper and will take through house”
• “has black powder and cannon cord and won’t find anything else”
• ”wants father with him”
• “advised subject there will be police at res”
• “subject agrees to take police through”
CIC Walli’s notes further recorded:
• “approve to wait 1 hour for the dad to arrive”
• “approve to have King & 1 or 2 EDU” and,
• “approve video-taped search.”
Traffic Stop Continues by DC King and Staff Sgt. Cooper
[44] Mr. Kukemueller returned from the beer store within ten minutes to the place specified by DC King.
[45] At 3 p.m., DC King resumed his discussions with Mr. Kukemueller. DC King asked if anything has changed or if he has any questions. It didn’t. He didn’t.
[46] DC King advised Mr. Kukemueller that with his continued cooperation it will be Mr. Kukemueller, himself (King), PC Unsworth and two UCRT members doing a search of the residence, section by section, until cleared.
[47] Mr. Kukemueller said he did not want anything done until his dad arrived.
[48] DC King introduced Mr. Kukemueller to the explosives expert, Staff Sgt. Cooper. Staff Sgt. Cooper asked about the layout of his home, the substances that they may find and how much. Mr. Kukemueller advised that he had a shotgun in his bedroom closet.
[49] DC King told Mr. Kukemueller that if they see anything of a criminal offence (i.e. drugs, stolen property) then he can be in trouble. Mr. Kukemueller said they would not find anything like that.
Mr. Kukemueller On Board to Assist with Search - Trip to Grandmother’s House
[50] At approximately 3:18 p.m., DC King and PC Unsworth followed Mr. Kukemueller to his grandparents’ home to await arrival of his father, Mr. Kukemueller Senior.
[51] CIC Walli’s notes indicate that at 3:22 p.m., DC King advised him, “subject on board”. DC King was “following subject” to grandparents to wait for father to arrive.
[52] CIC Walli’s notes further indicate that at 3:24 p.m., Staff Sgt. Cooper advised that he was “enroute to grandparents with subject.”
[53] At 3:31 p.m., CIC Walli received a text from DC King, date stamped at 3:14 p.m., stating that “Mr. Kukemueller agreeable to meet Unsworth and 2 bomb guys going in.”
[54] CIC Walli’s notes report that at 3:30 p.m., Staff Sgt. Cooper reported that he “thinks subject is squirrelly. Subject wants Dad with him. King with subject at grandparents’ house.”
[55] At 3:40 p.m., CIC Walli’s notes report “advised subject is not in charge, just to show, will be reasonable search that is videotaped, will wait for dad.”
[56] At 4:12 p.m., CIC Walli’s notes record that DC King requested 2 UCRT officers to “move up to grandparents’ UCRT – Wheeler and Marty Groleau”.
[57] At 4:13 p.m., CIC Walli’s notes indicate that he approved Wheeler, Unsworth, Groleau, and King to enter residence.
[58] DC King, PC Unsworth, Sgt. Wheeler and Sgt. Groleau escorted Mr. Kukemueller from his grandparents’ to his residence next door to begin the execution of the search warrant at Mr. Kukemueller’s home.
[59] At no time prior to execution of the search was Mr. Kukemueller either cautioned or provided with his rights to counsel, or told that he was free to leave without any consequences.
Execution of the Search Warrant by Mr. Kukemueller and Four Police Officers
[60] The search of Mr. Kukemueller’s home began at approximately 4:21 p.m.
[61] DC King, PC Unsworth, Sgt. Wheeler and Sgt. Groleau accompanied Mr. Kukemueller into his residence to complete the execution of the warrant. There were additional officers stationed outside, including a K9 unit.
[62] Of the four officers present in the home with Mr. Kukemueller, two were dressed in full uniform and were visibly armed. Additionally, Sgt. Wheeler was wearing a bullet proof vest.
[63] It is clear from a review of the videotape and the videotape transcript that Mr. Kukemueller’s movements were completely directed by the officers throughout the search. More specifically, Sgt. Wheeler, the explosive expert, specifically directs Mr. Kukemueller’s movements - to open drawers and cupboards, pick up items, open items, place items to the side for their further inspection, enter a certain room or space, and to exit a certain room or space – throughout the search.
[64] Mr. Kukemueller complied with the instructions provided to him by Sgt. Wheeler and others. When Mr. Kukemueller varied from the instructions, he was corrected and required to follow the directions provided orally to him.
[65] All four officers remained in and around Mr. Kukemueller throughout the entirety of the search. The four officers also remained in contact with their supervisors CIC Walli and Staff Sgt. Cooper through a dedicated radio channel, text messages and telephone calls.
Conclusion of Search and Arrest of Mr. Kukemueller
[66] The search last approximately one hour and concluded at 5:22 p.m.
[67] At the conclusion of the search, Mr. Kukemueller exited his home accompanied by the police officers. Mr. Kukemueller was advised that it would be several hours before the testing was completed and to the knowledge of the police returned to his grandmother’s house with his father to wait.
[68] DC King’s notes report that at that time the police were formulating a plan on removing what they believed to be pipe bombs and the ANFO from the residence.
[69] Sgt. Wheeler was tasked with re-entering the residence to retrieve the items of interest – this time he entered wearing a bomb suit.
[70] Sgt. Wheeler removed various items handled and identified by Mr. Kukemueller during the search and set aside by the police as being items of interest to be tested. The items consisted of a Gatorade bottle with fertilizer believed to be ANFO, several lengths of metal pipes with metal caps, a metal pipe without cap, and a small container of black powder. A bomb hopper was utilized to transport items to a local quarry for testing and/or detonation.
[71] Two firearms, that were unsecure and identified by Mr. Kukemueller, were also seized by the police following the search, as was some of the ammunition found in the home.
[72] Although the police conducted a subsequent search without Mr. Kukemueller’s involvement, no further items were located and/or seized.
Mr. Kukemueller’s Arrest Following the Search
[73] At 7:49 p.m., CIC Walli’s notes report that “presumptive done on liquid and is identified as ANFO” – advised that subject (Mr. Kukemueller) is being arrested.
[74] At 7:56 p.m., DC King, DC Bates and DC Kenney attended Mr. Kukemueller’s grandmother’s house. DC King advised Mr. Kukemueller that the results of the testing on the fertilizer indicated that it was ANFO. DC King advised Mr. Kukemueller that he now had grounds to arrest him.
[75] At 8:01 p.m., DC King read Mr. Kukemueller his right to counsel and caution. DC King read the secondary caution. Mr. Kukemueller advised that he understood.
[76] It is to be noted that at no time from the initial traffic stop at 2:22 p.m., up to his arrest at 8:01 p.m., had Mr. Kukemueller ever been cautioned, advised of his rights including his rights to counsel or advised that he was free to leave without fear of consequences.
THE LAW AND ANALYSIS
Issue 1: Was Use of the s. 117.04 Warrant Authorized by Law
[77] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure.
[78] Mr. Kukemueller submits that the use of the s. 117.04 warrant was unreasonable in that it was not authorized in the circumstances of this case and was a breach of his s. 8 rights.
[79] Mr. Kukemueller further submits that if the s. 117.04 warrant was authorized, it was improperly utilized as an investigative tool to collect evidence of a criminal activity thus constituting an abuse of process under s. 7 of the Charter.
[80] The Crown denies Mr. Kukemueller’s claims and submits that the s. 117.04 warrant was both authorized and properly utilized in the circumstances of this case.
Authorized by Law – A Three Part Test
[81] The Supreme Court in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51 (SCC), at para 12, established three factors to consider whether a search was authorized by law:
(1) What was the legal power the police relied upon?
(2) Was that legal power available in the circumstances of the case?
(3) Was the scope of the search within that authorized by the power? Did the police do more than they were allowed to do?
Part (1) – What was the Legal Power Relied Upon?
[82] With respect to the first factor, it is undisputed that the legal power the police relied upon was the s. 117.04 warrant.
Part (2) – Was the Legal Power Available in the Circumstances?
[83] The grounds for obtaining the warrant were not challenged and the warrant is presumptively valid.
[84] The issue, raised by Mr. Kukemueller is whether the type of warrant obtained, being the s.117.04 warrant, was available in the circumstances, and whether it was properly utilized.
[85] Section 117.04 (1) of the Criminal Code reads:
Application for warrant to search and seize
117.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
[86] Mr. Kukemueller’s objection is that the police should not have obtained the s. 117.04 warrant as their purpose was to obtain evidence of a criminal offence not to address public safety concerns. Mr. Kukemueller argues that the police were required to obtain a s. 487 warrant. He further argues that as the s. 117.04 warrant is subject based and not offence based, use of the s.117.04 warrant to obtain information of a criminal offence is improper and an abuse of process.
[87] As noted by the Crown, a s. 117.04 Criminal Code warrant permits a warrant to issue to seize certain items that may be lawfully possessed in circumstances where it may be unsafe for those items to be possessed. In those cases, the Code permits the items to be seized, even though no offence or evidence of an offence is present. Section 487 on the other hand, requires that an offence is being investigated – that it has occurred or is suspected of having occurred. In other words, the s. 117.04 warrant is a public safety tool and a s. 487 warrant is an evidence gathering tool.
[88] In the present case, as the item sought to be seized (pipe bomb) cannot be lawfully possessed by any person, in order to obtain a s. 117.04 warrant the police were required to provide additional public safety information before the warrant could issue. There is no such requirement for the issuance of a s. 487 warrant.
[89] In the specific circumstances before me, the requirements for issuance of both warrants were met by the ITO sworn for the s. 117.04 warrant – and it appears that either warrant could have issued.
[90] This is not a case where the police chose a less stringent procedure or sought to obtain indirectly what they could not obtain directly through issuance of the s. 117.04 warrant.
[91] The s. 117.04 warrant could issue on the information provided to the Justice and did issue. The warrant was authorized by law.[^1]
[92] The next argument is that the police chose a warrant that did not require evidence of a criminal offence and utilized the warrant to investigate and seize evidence of suspected criminal offences.
[93] While this argument may succeed in other cases where evidence of criminal activity is not contained in the ITO, it cannot succeed here, as the item that was sought (pipe bomb) in and of itself evidences criminal activity.
[94] When the police have a warrant to search a residence they are permitted to seize evidence of an offence during the course of the search provided they do not exceed the scope of the warrant. As noted above, the s. 117.04 warrant was valid and authorized. According to the Supreme Court, the police are therefore permitted to seize evidence of an offence during the course of the search as long as they do not exceed the scope of the warrant: see R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24 (S.C.C.).
[95] The s. 117 warrant authorized the search of Mr. Kukemueller’s residence. The evidence confirms that this is the area that was searched.
[96] While at the residence, during the execution of the search, the police, with Mr. Kukemueller’s assistance, located, seized, examined and tested certain items that were believed by the police to be explosive substances and/or were otherwise firearms and ammunition as noted as being the subject matter of the search on the face of the warrant. Section 117.04 specifically authorizes seizure of these items.
[97] As for the police’s right to examine and test the items, explicit authority is not required. There can be no right without a remedy and the common law authorizes police to examine and test the items seized: see R. v. Oland [2016] N.B.J. No. 230 (N.B.C.A.).
[98] I find that the police did not exceed the scope of the warrant and as such no breach is established through the use of the s. 117.04 warrant.
Issue 2: Was Mr. Kukemueller arbitrarily detained contrary to s. 9 of the Charter any time prior to or during execution of the warrant?
[99] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.
[100] Mr. Kukemueller argues that he was “detained” on May 19, 2016, contrary to s. 9 of the Charter from the point of the initial roadside traffic stop by the police through to his arrest following execution of the warrant.
[101] The Crown submits that Mr. Kukemueller was not “detained” in a Constitutional sense at any point during his interaction with the police on May 19, 2016 until the time of his arrest after the warrant was executed.
[102] As a detention by the police triggers Charter rights in individuals it is important to carefully determine if Mr. Kukemueller was detained by the police prior to his arrest, and if so, whether that detention was unlawful.
Detention: The Law
[103] The Supreme Court has held that traffic stops, including random traffic stops, amounts to a detention where officers have assumed control over a suspect’s movements by a demand or direction that might have significant legal consequence: see R. v. Hufsky (1988), 1988 CanLII 72 (SCC), 63 C.R. (3d) 14 S.C.C.; R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 77 C.R. (3d) 110 S.C.C.).
[104] However, the Court has also held that Charter rights are not engaged by delays that involve no significant physical or psychological restraint. As such, not every stop by the police for the purposes of identification or interview will amount to a detention: see R. v. Mann (2004), 2004 SCC 52, 21 C.R. (6th) 1 S.C.C.).
[105] The question remains, was there a detention in the present case?
[106] Detention includes both physical restraint and psychological compulsion.
[107] In the present case there was no real physical restraint and the focus is therefore on psychological restraint.
Psychological Detention
[108] The Supreme Court decision in R. v. Grant, 2009 SCC 32, is the leading case on detention which establishes a test for determining whether a psychological detention exists. The test as set out in Grant, supra, at para. 44, is as follows:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[109] Grant provides guidance for applying the test and directs that determination of whether detention has occurred will involve a realistic appraisal of the entire interaction between the accused and the police as it developed and not a minute parsing of words and movements.
[110] We are to take a larger lens view of the bigger picture. We are required to stand back and determine objectively, having regard to all the circumstances, including the conduct of the police. The focus is on the police conduct in the context of the surrounding legal and factual situation and how that conduct would be perceived by a reasonable person in the situation as it develops.
[111] In recognizing psychological detentions, the Court in Grant, supra, at para. 39, accepted “the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police” thereby creating a situation where a person may feel compelled to incriminate oneself.
[112] The Court in Grant, supra, at para. 39, held when the police are uncertain whether their conduct is having a coercive effect on an individual, “it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go”. If this does not occur, a “detention may well crystalize and, when it does, the police must provide the subject with his or her s. 10(b) rights”.
[113] Whether an individual has been deprived of the right to choose to simply walk away will depend on the circumstances of the case.
[114] The onus to prove on a balance of probabilities that detention occurred lies on Mr. Kukemueller.
Analysis – Was Mr. Kukemueller Detained?
[115] Was Mr. Kukemueller detained? If so, was it unlawful?
[116] As Mr. Kukemueller was not physically detained, if detention occurred it would be a psychological detention.
Determining Psychological Detention
[117] On the first branch of the Grant test, it is clear from the evidence that the police singled out Mr. Kukemueller when they purposefully stopped him in relation to a focused investigation involving a public safety warrant and a search for explosives. While the focused nature of the encounter is not determinative on its own, it is highly relevant to a finding of psychological detention.
[118] On the second branch of the Grant test, the nature of the police conduct was targeted and while no physical contact was used on Mr. Kukemueller beyond a handshake, the interaction occurred on the roadside and involved five officers in total, with four officers surrounding him during a period of the stop. The roadside encounter began with two officers, PC Kenney and PC Bates, with Kenney questioning him. The stop continued with two further officers, PC Unsworth and DC King, with DC King taking over and directing the first two officers to leave. After further questioning by DC King, Mr. Kukemueller asked if he could leave to finish an errand. His request was approved by DC King who requested that he return to a specified location to speak to a further officer.
[119] At first blush, allowing Mr. Kukemueller to go to finish a chore appears to indicate that he was not detained. However, when we break down the encounter – we see that Mr. Kukemueller requested permission to leave while they waited for his father during “dead time”. The fact that he sought permission, was told to come back for further questioning and was told he had to return – is indicative of detention.
[120] Even if I am mistaken about the detention continuing during the errand period, Mr. Kukemueller did return after completing his errand to the location specified by DC King. The roadside stop continued with further questioning by DC King and a fifth officer, Staff Sgt. Cooper, attending and engaging with questioning. Overall, the roadside stop continued for 15-16 minutes. This is a significant amount of time to stop someone and ask targeted questions.
[121] The roadside nature of the stop, the targeted questioning, the fact that permission was sought to leave and granted provided that he return to a specified spot – which direction was followed – is evidence that contributes to a finding that a psychological detention existed, and either continued or re-commenced upon return from the errand.
[122] On the third branch of the Grant test, the evidence of PC Kenney and DC King establishes that Mr. Kukemueller was nervous and shaking, chain smoking and pacing, repeatedly trying to reach his father on his cell phone, agitated and anxious, but cooperative. Staff Sgt. Cooper reported to CIC Walli that he found Mr. Kukemueller “squirrely”. All officers were aware that Mr. Kukemueller desperately wanted to speak to his father before he spoke to them. Mr. Kukemueller’s behavior, especially his repeated requests to speak to his father, indicated a level of unsophistication and emotional dependency. Mr. Kukemueller was known to be distrustful of the police. The presence of the police at the roadside stop triggered anxious and submissive behavior on Mr. Kukemueller’s behalf.
[123] The evidence provided by the SMEAC, the officers’ testimony, and the transcripts, demonstrates that it was always the plan to detain or stop Mr. Kukemueller away from the residence.
[124] After the second traffic stop there was no option provided that Mr. Kukemueller could go on his way without the police. As noted, Mr. Kukemueller “asked” DC King if he go to the beer store (to finish his errand). DC King advised that he allowed the request and directed Mr. Kukemueller to return to a specified location (the art gallery parking lot). Mr. Kukemueller complied with this direction. It is clear, that whatever the stated intention of the police, their interactions with Mr. Kukemueller were coercive enough to effectively remove his ability to choose to walk away from the police.
[125] The compulsion that Mr. Kukemueller experienced that kept him with the police at the roadside stop continued the entire journey to his grandmother’s home as he was followed by the police and then accompanied in the presence of the police until the search began. Further, Sgt Wheeler and Groleau were directed by DC King to attend Mr. Kukemueller’s grandmother’s home. These officers attended with the result that four officers accompanied Mr. Kukemueller to his residence to execute the search.
[126] Mr. Kukemueller returned to his residence accompanied by four police officers and was met at his residence with many more police officers, including a K9 unit.
[127] Upon reaching his residence Mr. Kukemueller entered his home surrounded by four police officers.
[128] Mr. Kukemueller physically assisted in the search of his own residence as directed by the police. Mr. Kukemueller physically retrieved and identified items of interest that the police directed him to handle – items which formed the basis of the Indictment.
[129] Mr. Kukemueller completed all of these acts while being videotaped in the company of armed police, in a home surrounded by police officers who contacted the searching officers through a directed radio channel, text and telephone calls.
[130] When the officers determined that the search was completed, Mr. Kukemueller was released but advised that the testing of the items seized by his own hands and identified by his words, would take a few hours. Although Mr. Kukemueller was not physically returned to his grandmother’s house to wait for the search results, the house was directly next door to his residence, which is where the police attended directly and immediately following the testing without further contacting or attempting to locate Mr. Kukemueller when they attended to arrest him..
[131] Mr. Kukemueller through his actions exhibited behavior that was entirely compelled and controlled by the presence of the police. It is clear that he did not and could not exercise free will as a result of his interactions with the police.
[132] At no time did the police tell Mr. Kukemueller that he could leave without any consequences. In fact, the inference was that if he did not participate with the execution of the search, the consequences would be that many police officers would enter and potentially “wreck” his home and belongings.
[133] In addition to the evidence outlined above, I have also considered the surrounding circumstances including:
(i) the evidence of Sgt. Conway that there was a high level of distrust between Mr. Kukemueller, his family and the police;
(ii) the notations in the SMEAC that Mr. Kukemueller “hates police” and is “violent and assaultive” and the evidence that there had been disputes and legal proceedings between the Kukemueller family and the police;
(iii) the notation in CIC Walli’s notes that Staff Sgt. Cooper reported that Mr. Kukemueller was acting “squirrelly”;
(iv) the SMEAC plan to stop Mr. Kukemueller away from his residence;
(v) the evidence of Sgt. Conway and DC King that there was a “plan” to seek Mr. Kukemueller’s informational cooperation;
(vi) the evidence provided by CIC Walli through his emails and scribed notes that as of May 18, 2016, there was a “plan” that DC King would seek Mr. Kukemueller’s cooperation and his participation in the execution of the search;
(vii) the fact that despite DC King not recalling any “plan” or communications with CIC Walli to seek Mr. Kukemueller’s participation in the search - that this is exactly what occurred – DC King obtained Mr. Kukemueller’s cooperation to participate in the search as recorded by CIC Walli; and,
(viii) the evidence provided by the video tapes and transcript of the search that portray Mr. Kukemueller as a submissive, cooperative flunky who is directed by the police – who while appearing outwardly friendly, are engaged in an entire undercurrent of communications that are entirely focused on obtaining and documenting evidence and information that ultimately resulted in the charges before the court.
[134] As per Grant, determination of whether detention has occurred involves a realistic appraisal of the entire interaction as it developed and not a minute parsing of words and movements.
[135] In the circumstances, considering all of the evidence and realistically appraising the entire interaction as it developed, including the important surrounding circumstances, and not focusing on a minute parsing of words and movements, I find on a balance of probabilities, that Mr. Kukemueller was detained from the moment of the initial traffic stop at 2:32 p.m., which detention continued and/or re-commenced at 3 p.m. following completion of his errand, and continued throughout the search and up to the time of his arrest at 8:01 p.m.
Was the Detention Arbitrary?
[136] As per Grant, a detention that is not authorized by law is arbitrary and violates s. 9.
[137] Although s. 216(1) of the Highway Traffic Act authorizes police stops of vehicles, even when they are random, the detention is circumscribed by its purpose – highway regulation and safety purposes. see R. v. Gonzales 2017 ONCA 543 at para 55; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615 (S.C.C).
[138] In the present case, the purpose of the detention was to stop Mr. Kukemueller, to separate him from his residence, to seek information, and to seek his cooperation in the execution of the warrant.
[139] As per the Ontario Court of Appeal in Gonzales, supra, at para. 60, “[w]here road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor.”
[140] In this case, the stop had nothing to do with highway regulation or safety. As such, the Highway Traffic Act cannot be used as the lawful basis for the stop. As the Court of Appeal in Gonzales, supra, at para. 75, held, “a police officer has no general authority to detain a person whenever that detention will assist the police officer in the execution of their duty.”
[141] While the police may have been able to justify an investigative detention as per R. v. Mann, supra, based on reasonable suspicion in relation to the search warrant, this was not made out on the evidence or proffered by the Crown.
[142] Without such a basis, the common law police power doctrine and the Waterfield test cannot be met because the Crown has the onus of proving such a claim is within police power: see R. v. Waterfield, (1963), [1964] 1 Q.B. 164 (Eng. C.A.).
[143] As per R. v. Coles (2003), 2003 PESCAD 3, 172 C.C.C. (3D) 374, at para. 13, the police cannot resort to “grounds that might have existed” that were not relied upon at the time of the police conduct.
[144] There being no legal authority raised or lawful basis to justify the initial stop and continued detention as the police did not express any reasonable suspicion to detain Mr. Kukemueller, as per Grant, supra, the detention was not authorized by law, it was arbitrary, and therefore in violation of s. 9.
[145] In the circumstances, I find that Mr. Kukemueller was detained from his initial traffic stop, continuing and/or re-commencing following completion of his errand, through the search and up to the point of his arrest. I also found that the detention was unlawful and arbitrary and in breach of s. 9 of the Charter.
Issue 3: Did police fail to inform Mr. Kukemueller of the reason for any detention contrary to s. 10(a) of the Charter?
[146] Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor.
[147] The police witnesses testified that they did not feel that Mr. Kukemueller was detained and therefore did not comply with their obligations under s. 10 of the Charter.
[148] As I find that Mr. Kukemueller was detained, s. 10(a) of the Charter applies and required that he be “informed promptly of the reasons therefor”.
[149] As per Gonzales, supra a determination of whether a s. 10(a) breach has occurred is based on the substance of the information provided by the police and what is understood by the detainee, rather than the way in which the police provided the information.
[150] There appears to have been three occasions when Mr. Kukemueller was advised and/or questioned about the reason for his detention:
(1) At 2:32 p.m., when DC Kenney executed the roadside stop, requested identification and informed Mr. Kukemueller that he was the subject of a public safety warrant that was to be executed at his residence. DC Kenney asked if there was anything that would cause harm to anyone at his residence. Mr. Kukemueller advised he didn’t have anything that would cause harm to any person.
(2) At 2:33 p.m., when DC King produced the warrant and advised that they were primarily looking for explosive substances. DC King asked about the presence of items at his residence. Mr. Kukemueller advised that he had gun powder and cannon cord at his house which he is allowed to possess with a valid firearms license.
(3) At 2:50 p.m., when Sgt. Cooper asked about the layout of his home, the substances that they may find and how much. Mr. Kukemueller advised that he had a shotgun in his bedroom closet that he was allowed to possess with a valid firearms license.
[151] On the evidence before me I find that the police complied with s. 10(a) of the Charter.
Issue 4: Did police fail to inform Mr. Kukemueller of the right to counsel upon detention, contrary to s. 10(b) of the Charter?
[152] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[153] The Supreme Court in R. v. Suberu, 2009 SCC 33, held that the right to counsel as protected by s. 10(b) is triggered immediately upon detention to protect against compelled self-incrimination and interference with liberty.
[154] I have determined that Mr. Kukemueller was detained from the time of the first roadside stop at 2:32 p.m. and otherwise detained when he returned to the roadside stop at 3 p.m. Mr. Kukemueller’s s. 10(b) rights were triggered at both and/or either of those two times and the police did not caution him or provide him with his s. 10(b) rights.
[155] The police did not comply with s. 10(b) until 8:01 p.m., when he was arrested five to five and a half hours later. A breach of his right to counsel is clearly established.
Issue 5: Were the questions put to Mr. Kukemueller prior to or during the execution of the warrant in violation of his right to silence, contrary to s. 7 of the Charter?
[156] Section 7 of the Charter concerns the life, liberty and security of the person and provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[157] Mr. Kukemueller claims that his right to silence and his right against self-incrimination were breached during the period he was detained and included not only his spoken words but his actions and deeds in assisting the police in the search of his residence.
[158] The Crown claims that while there is a right to silence, there is no right not to be spoken to by the police. The police do not need to establish that a statement is legally voluntary before they can act on it in the course of an investigation. In the case at bar, the officers did not rely on any statements by Mr. Kukemueller to further their investigation as they already had a search warrant to enter and search before they spoke to him.
[159] The Crown submits that the only possible infringement was when PC Kenney asked for identification as this request was unnecessary for the course of the investigation. The Crown notes that no evidence was obtained as a result and therefore there is no remedy available.
The Right to Silence and the Principle Against Self-Incrimination
[160] The right to silence secures the right to make a free and meaningful choice about whether to speak or remain silent before those statements can be used against you. The right to silence, however, does not mean that the person cannot be spoken to by state authorities. The common law recognizes the importance of police interrogation in the investigation of crime. See R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 (S.C.C.).
[161] The conception of the right to silence as pronounced by Singh applies where a person has been detained and provided with their s. 10 (b) rights. In other words, police are free to speak to someone after the accused has been detained and provided with their right to counsel and has spoken to counsel or waived the right to speak to counsel. That did not occur in the present case. The police questioned the accused prior to being given the right to counsel. This questioning which occurred throughout the entirety of his detention was in breach of s. 10 (b).
[162] The protection afforded by the principle against self-incrimination does not vary with the relative importance of the self-incriminating information that the Crown seeks to use. If s. 7 is engaged by the circumstances surrounding the admission of a compelled statement, the concern with self-incrimination applies to all the information transmitted in the compelled statement: see R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417.
[163] The Court in Grant determined that rights that arise on detention are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination.
[164] In the present case, Mr. Kukemueller made statements to the police prior to his arrest, many of which were captured on videotape. Mr. Kukemueller also assisted with the execution of the search of his residence and his actions and assistance were also captured on videotape.
[165] At the commencement of the trial, the Crown advised that it would not seek to displace the burden that the statements were involuntary.
[166] The Crown proposed that for the purpose of the trial that the videotape of the execution of the search warrant would be played without any sound.
[167] Mr. Kukemueller objected on the basis that both his statements and his actions as captured on the videotape were inadmissible.
[168] After hearing argument on the issue, I determined that Mr. Kukemueller’s statements and his actions captured on the videotape were inadmissible as per R. v. Lam Chi-Ming, (1991) 93 Cr. App, R. 358 (P.C.).
[169] Even though there is no right not to be spoken to by the police – there is an obligation upon the police to ensure that the ability to choose to speak is preserved: see R. v. Pearson, [2017] O.C. No. 2530 (Ont. C.A.); R. v. Wu, 2017 ONSC 1003; R. v. Rover, 2018 ONCA 745.
[170] In the circumstances of this case, considering the length of the detention and the absence of s. 10 (b) rights, I find that the police had an obligation to ensure that Mr. Kukemueller retained the ability to choose to speak and to the ability to choose to act, was preserved.
[171] This obligation was not fulfilled and Mr. Kukemueller’s s. 7 rights were breached.
Issue 6: Did the involvement of Mr. Kukemueller in the execution of the warrant render the search unreasonable contrary to s. 8 of the Charter?
[172] Mr. Kukemueller submits all aspects of the search – including the manner of the search that involved him in execution of the search – rendered the search unreasonable and contrary to s. 8 of the Charter.
[173] The Crown submits that while there is no precedent where the subject of a public safety warrant assisted in the search of his own residence, an analysis of the evidence demonstrates that the search warrant was executed properly and that Mr. Kukemueller participated free from trickery or coercion. The Crown specifically denies that there was a pre-conceived plan to involve Mr. Kukemueller in the search and submits that Mr. Kukemueller voluntarily cooperated and was an enthusiastic participant in the execution of the warrant, resulting in a reasonable search that was not in breach of s. 8.
Section 8 of the Charter – Reasonableness of Search
[174] Section 8 of the Charter is engaged when a person has an expectation of privacy in the thing to be searched. In this case the thing to be searched was Mr. Kukemueller’s home which affords a high expectation of privacy.
[175] As Mr. Kukemueller’s privacy expectation has been established, the onus shifts to the Crown to establish that the search itself was reasonable.
[176] The test for determining the reasonableness was established by the Supreme Court of Canada in R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 CCC (3d) 1, at p. 14, as follows:
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.
[177] I have already determined that the warrant was authorized by law and I find on the basis of R. v. Hurrell (2002), 2002 CanLII 45007 (ON CA), 166 CCC (3d) 343, that the amendments to s. 117.04 following Hurrell rendered the law reasonable.
[178] The issue remains whether the manner in which the search was carried out was reasonable.
Section 8 of the Charter – Manner of Search
[179] Mr. Kukemueller argues that he was conscripted by the police to participate in the search and compelled to locate, handle and identify all items seized by the police which form the basis of the charges before the court. Mr. Kukemueller submits that he was not cautioned, not provided with his s. 10 (b) rights, nor was he advised that he was free to leave without fear of any consequences, at any time prior to or during the execution of the search. Mr. Kukemueller submits that the manner of search was unreasonable and in breach of his s. 8 Charter rights.
[180] The Crown argues that the uniqueness of the circumstances of this case, alongside the concern for police and public safety and the desire by Mr. Kukemueller to minimize police interference with his property, supports the finding that the approach was “cooperative,” and reasonable. In keeping with this argument the Crown argues that there was no “plan” to include Mr. Kukemueller in the search and that this decision arose as a result of Mr. Kukemueller’s request.
Deviation from Standard Search Procedure
[181] The Crown relies on the Supreme Court of Canada’s ruling in R. v. Clayton, 2007 SCC 32, [2007] SCJ No 32 (SCC), to highlight that the intentions alone of police officer’s actions are not determinative in constitutional findings. The Crown reiterates that “the focus must remain on the actions of officers”.
[182] As noted in Clayton, supra, at para. 48, the appropriate and relevant time in assessing the actions of the police is the actual search and seizure itself:
Intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant. We would otherwise have the Orwellian result that Charter breaches are determined on the basis of what police officers intend to do, or think they can do, not on what they actually do. The Charter protects us from conduct, not imagination, and even a benign motive may not justify objectively unreasonable police conduct.
[183] I agree that the focus at this stage remains on the actions and not the intentions of the officers. However, in this case - whether it was by premeditated plan or by coincidence - the officers did in fact utilize Mr. Kukemueller in the execution of the public search warrant at his own residence.
[184] The question remains whether the manner of the search was reasonable in the circumstances of the case.
Standard Procedure for the Execution of Search Warrants: A Three Step Process
[185] The leading case that reviews officers’ duties in the execution of search warrants is the Supreme Court of Canada decision of R. v. Cornell, 2010 SCC 31. In Cornell, the Court directs that certain procedures are required to be followed when the police search a private dwelling.
[186] Most particularly, the police are required to take the following three steps in ordinary cases:
(1) Notice of presence by knocking or ringing the doorbell, unless exigent circumstances exist;
(2) notice of authority, by identifying themselves as law enforcement officers; and,
(3) notice of purpose, by stating a lawful reason for entry.
[187] The Court in Cornell stated that these three steps serve to protect the dignity and privacy interests of the occupants of the dwelling and enhance the safety of the police and the public.
[188] In the present case, the Crown argues that the search was reasonable when applying the considerations enunciated in Cornell, specifically, that the police actions were within the scope of their duties, having regard to the circumstances and knowledge at the time, the latitude afforded to officers in the manner in which they chose to enter and in light of all the surrounding circumstances.
[189] With respect to the circumstances known to the officers at the time, DC King and Sgt. Conway testified that they believed that firearms, ammunition, explosives and explosive substances would be found on the premises. They had a concern for the safety of the resident and the police officers and they were fearful that a “knock and announce” would risk the potential of a barricaded person or persons with accompanying increased risk and danger to the police, public and the resident.
[190] With this information and belief in mind, DC King established a plan as recorded by the SMEAC to wait until Mr. Kukemueller left the premises to inform him of the warrant. The idea was that this would decrease or eliminate the risk of a barricaded person.
[191] In the circumstances, I find this plan as recorded in the SMEAC to separate Mr. Kukemueller from his residence to inform him of the warrant to be a reasonable deviation from standard procedures. I further find that the revision to the SMEAC plan as recorded by Sgt. Conway’s email dated, May 18, 2016, to seek to obtain informational assistance from Mr. Kukemueller once he was away from the residence, also to be a reasonable deviation from standard procedures – provided that it had been completed in a Charter compliant fashion – which it was not.
[192] The further question remains as to whether it was reasonable in this case for the police to utilize Mr. Kukemueller, the subject of the public safety warrant, to execute the physical search of his own residence.
Test for Departure from Standard Procedure: Onus on Police
[193] Where police depart from the standard noted procedure, as per Cornell, supra, there is an onus on the police to explain why they thought it was necessary to do so.
[194] If challenged, as they are in the present case, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or the destruction of evidence. The Court in Cornell, supra, at para. 24, note as follows:
The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications…what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”…Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present.
[195] In the present case, the departure from the standard procedure was extreme. As such, there is a heavy onus on the police to justify the use of Mr. Kukemueller in the physical execution of the search.
[196] The Supreme Court in Cornell articulated a number of key principles that are to be considered when reviewing the actions of the police:
First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221 (N.S. C.A.). Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28 (Alta. C.A.), at para. 45.
Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 (S.C.C.); Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
Third, the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellate review.
[197] In addition, the Supreme Court in Cornell held that the question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate. The question is whether the search overall, in light of the facts reasonably known to the police, was reasonable.
[198] It is necessary to examine the stated reasons for the deviation together with the evidence adduced at trial to determine whether such a deviation was reasonable in the circumstances.
[199] The general principle is that the police should refrain from executing a warrant without first following the above noted procedures, however, they may do so where it is deemed to be necessary in order to prevent the destruction of evidence: see R. v. Gimson 1991 CanLII 24 (SCC), [1991] 3 S.C.R. 692 (S.C.C.).
[200] In the present case, the police had separated Mr. Kukemueller from his residence and there was no suggestion that evidence would be destroyed if he were not allowed to assist with the physical execution of the search.
[201] The police may also deviate from the standard procedure where there is a concern for the safety of the public and/or the police officers.
[202] With respect to the stated concern for the safety of the public and/or the police officers, I note as follows:
(1) At the time of the roadside stop, Mr. Kukemueller was noted by PC Kenney and DC King to be shaking, nervous and agitated. However, it was universally agreed that he was “cooperative”. Despite the notation in the SMEAC that Mr. Kukemueller “hates police” and was “violent and assaultive” no officer reported Mr. Kukemueller as aggressive, violent or assaultive;
(2) DC King testified that he allowed Mr. Kukemueller to come into the home “in the sake of efficiency and officer safety”. DC King further testified that he was not afraid that Mr. Kukemueller would attempt to harm the police as he found “very reasonable” and “they got along well”;
(3) With respect to the nature of the explosive substances sought - the police were informed that Mr. Kukemueller had made two pipe bombs, one of which had been detonated, and possessed material to make more pipe bombs. The police also had independent information that the property was not booby trapped prior to DC King speaking to Mr. Kukemueller;
(4) The officers were aware that Mr. Kukemueller had a valid firearms license and access to firearms – but as they had already separated him from his residence and his firearms no danger was posed that required Mr. Kukemueller to attend to assist with the search; and
(5) The officers had questioned Mr. Kukemueller about the items to be found in his home and were advised that there was “nothing” that would harm anyone. Although the officers are not expected to accept a subject’s information as truthful, there was no evidence of danger or risk to support Mr. Kukemueller’s involvement in the search.
[203] On the evidence apparent on the record, there was no concern regarding the destruction of evidence and no safety requirement or concern for public or officer safety that required Mr. Kukemueller to be present and assist with the execution of the search warrant.
[204] This leaves the assertion by the police that Mr. Kukemueller requested to be present to assist with the search to minimize police interference with his property.
[205] This assertion is disputed by Mr. Kukemueller who asserts that his participation was conscripted as result of a pre-existing police plan and not as the result of a free, independent mind acting with informed consent.
The Issue of Valid Consent
[206] The avenue for assistance in this case could only be through his valid consent.
[207] The test for a valid consent is as dictated by Justice Doherty in R v. Wills, 1992 ONCA 2780, as follows:
In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
i. there was a consent, express or implied;
ii. the giver of the consent had the authority to give the consent in question;
iii. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
iv. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
v. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
vi. the giver of the consent was aware of the potential consequences of giving the consent.
The awareness of the consequences requirement needs further elaboration. In Smith, supra, at pp. 726-28 S.C.R., pp. 322-23 C.C.C., McLachlin J. considered the meaning of the awareness of the consequences requirement in the context of an alleged waiver of an accused's s. 10( b) rights. She held that the phrase required that the accused have a general understanding of the jeopardy in which he found himself, and an appreciation of the consequence of deciding for or against exercising his s. 10( b) rights.
A similar approach should be applied where s. 8 rights are at stake. The person asked for his or her consent must appreciate in a general way what his or her position is vis-a-vis the ongoing police investigation. Is that person an accused, a suspect, or a target of the investigation, or is he or she regarded merely as an "innocent bystander" whose help is requested by the police? If the person whose consent is requested is an accused, suspect or target, does that person understand in a general way the nature of the charge or potential charge which he or she may face?
In addition, at least in cases where the person is an accused, suspect or target of the investigation, the person whose consent is sought must understand that if the consent is given the police may use any material retrieved by them in a subsequent prosecution.
[208] The Wills analysis must be applied in context. In the present case, the accused was arbitrarily detained contrary to s. 9 of the Charter and had not been provided with his right to counsel contrary to s. 10 (b) of the Charter.
[209] Against the Wills criteria, it is necessary to review whether the consent provided by Mr. Kukemueller was valid.
Were the Criteria for Valid Consent as Established by R. v. Wills Satisfied?
[210] It is my view that on the face of the record before me, the Crown has satisfied the requirements of (i), (ii) and (iv), of the Wills criteria.
[211] The remaining three criteria, voluntariness, awareness of the right to refuse participation, and awareness of potential consequences, found at criteria (iii), (v) and (vi), need to be examined.
Wills Criteria (iii): Voluntariness of the Consent
[212] The third criteria, is whether the consent voluntary in the sense that word is used in Goldman, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested?
[213] An analysis of this criteria necessarily involves a review and determination of whether the police had a pre-determined plan to obtain Mr. Kukemueller’s consent to participate in the search.
[214] In the present case, DC King denied there was any plan to obtain Mr. Kukemueller’s cooperation to participate in the search. DC King stated that the plan remained as outlined by the SMEAC and that was to advise Mr. Kukemueller of the existence of the warrant away from the home and to then take steps to execute the warrant.
[215] DC King testified that as he approached Mr. Kukemueller at the roadside stop on May 19, 2016, his plan was to let Mr. Kukemueller know who he is, to explain the warrant to Mr. Kukemueller and to advise that officers are going to go through his house.
[216] DC King testified that the change in the plan that resulted in Mr. Kukemueller’s participation was “sparked” by his conversation with Mr. Kukemueller at the roadside. DC King stated that this action was driven by his conversation with the accused.
[217] While I accept DC King’s evidence that the initial plan was as documented by the SMEAC – I do not accept his evidence that the initial plan remained unchanged as it is apparent that on the record that the SMEAC plan was amended and evolved in the days leading up to the execution of the search.
[218] Evidence of the evolving plan for execution of the warrant is recorded in the various emails and notes of the supervising officers prior to execution of the warrant beginning on May 18, 2016 as follows:
(1) The SMEAC plan was communicated by Sgt. Conway (Pet. OPP) in her email exchange with Staff Sgt. Cooper and CIC Walli on Wednesday May 18, 2016, at 12:55 p.m. as follows: “Currently RST will advise when he is away from residence and it will be secured. Subject will not be able to re-enter until warrant completed”;
(2) Staff Sgt. Cooper asked Sgt. Conway “will subject be arrested”, who replied, “No authority, no criminal charges at this time”;
(3) Staff Sgt. Cooper then asked, “Anyway we can get charges? Be nice to interview him regarding the explosives”;
(4) CIC Inspector Walli, commented at 1:14 p.m., “Good plan for arrest away from residence”;
(5) Sgt. Conway corrected CIC Walli by email at 1:41 p.m., “RST will put target away from residence and then it will be secured for execution. No arrest as no criminal charges at this time”; and
(6) Sgt. Conway responded to Staff Sgt. Cooper at 5:58 p.m., “RST will be on target at 0700 hrs. and once away from residence approached and advised of warrant and his assistance sought to provide information to UCRT”.
[219] The email from Sgt. Conway sent at 5:58 p.m. confirms evolution of the SMEAC plan to include seeking informational assistance from Mr. Kukemueller.
[220] The SMEAC plan continued to evolve on May 19, 2016, as recorded by the scribed notes of CIC Walli as follows:
(1) At 6:23 a.m., “If subject is cooperative and comes back to house, UCRT is ok with taking him in house. However, this must be videotaped.”
(2) At 7:23 a.m., “approved PC Unsworth to videotape.”
[221] Additional support that the plan evolved to include Mr. Kukemueller’s participation in the search appears by a reporting email sent by CIC Walli to various supervising officers on May 23, 2016, following execution of the search as follows, “DC King and SS Cooper did well in discussions with target to gain cooperation.”
[222] Apart from CIC Walli’s notes and email report - Staff Sgt. Cooper, from UCRT, who did not attend the trial but whose transcripts from the preliminary hearing were filed as evidence, testified as follows:
I believe the plan was for you (Mr. Kukemueller) to go back to the site of your residence, speak with the officers at the house that we’re going to going in searching it. And a further discussion was gonna take place at that time about you (Mr. Kukemueller) entering the house with them and observing while they were searching your (Mr. Kukemueller’s) home.
[223] Although DC King testified that he does not recall a plan in place as recorded by CIC Walli’s notes and does not recall being privy to any communication with CIC Walli about such a plan - CIC Walli testified that as Critical Incident Commander of the operation he was assigned a professional scribe and his notes of the events were prepared by the scribe assigned to him in real time. CIC Walli advised that he had reviewed his notes prior to attending court and confirmed that they were both accurate and thorough.
[224] DC King’s failure to recall does not affect the accuracy of CIC Walli’s scribed notes nor does it change the fact that the “plan” as recorded by CIC Walli – eight hours prior to any contact between DC King and Mr. Kukemueller - was in fact executed by DC King on May 19, 2016 – right down to the videotaping by PC Unsworth.
[225] Having considered all of the evidence, including the testimony of the various officers, I find on the balance of probabilities that there was a pre-existing plan to involve Mr. Kukemueller in the search and that this plan preceded any discussions between Mr. Kukemueller and DC King.
[226] In the circumstances I find Mr. Kukemueller’s participation in the search was due to the execution of the pre-existing police plan and not voluntary. There is no compliance with the Wills criteria (iii).
Wills Criteria (v): Awareness of the Right to Refuse Participation
[227] For the reasons provided herein at paragraphs 117 to 145, I find that Mr. Kukemueller was psychologically detained, the detention was arbitrary, and no corresponding s. 10(b) rights were provided upon detention.
[228] In the present circumstances, considering the evidence of psychological detention and the failure to provide s. 10(b) rights, I find that the Crown has not proven that Mr. Kukemueller had any real awareness of his right to refuse participation. There is no compliance with the Wills criteria (v).
Wills Criteria (vi): Awareness of Possible Consequences
[229] As noted, Mr. Kukemueller was arbitrarily detained prior to providing his “consent” to participate in the search and was not provided with a caution or his s. 10(b) Charter rights.
[230] Although the police advised Mr. Kukemueller generally of the purpose of the search, thus satisfying his s. 10 (a) rights, they did not clearly explain the consequences that could result if items of interest were found during the course of the search.
[231] In fact, to my mind, the police minimized the consequences, and either negligently or intentionally created a situation where Mr. Kukemueller appeared to believe there would be minimal to no consequences as a result of any of the items located.
[232] I have detailed herein at paragraph 150 three occasions when the police sought information from the accused to which the accused provided responses, that should have (but did not) provided an opportunity to the police to alert the accused to the potential consequences of providing assistance. In addition to these three occasions, there were two further occasions when Mr. Kukemueller received a warning regarding the items sought:
(1) At 2:50 p.m., when DC King advised if they see anything of a criminal offence (i.e. Drugs, stolen property) then he can be in trouble. Mr. Kukemueller said they wouldn’t find anything like that; and
(2) At 4:45 p.m., when Sgt. Wheeler asked Mr. Kukemueller if there was powder in the length of pipe found. Mr. Kukemueller advised there was not and Sgt. Wheeler stated that if there was there would be “big trouble” he then stated “so you’re not in big trouble, but if you open it up and something is in there…”
[233] Mr. Kukemueller, having been deprived of his s. 10(b) rights was reliant upon the information provided to him by the officers to determine the potential consequences.
[234] Mr. Kukemueller did not appear to understand that the very items handled and identified by him provided sufficient evidence to the police to charge him with criminal offences. Further, despite any testimony concerning the interpretation to be applied to “big trouble” - the items identified and handled – including the length of pipe discussed at 4:45 p.m. with Sgt. Wheeler – constitute the actual evidence underlying the charges now before the Court and as such were clearly indicative of legal jeopardy.
[235] Mr. Kukemueller did not appreciate the potential consequences. There is no compliance with the Wills criteria (vi).
[236] Based on my review and application of the Wills criteria, I find that Mr. Kukemueller did not provide a valid consent to assist with the search.
Review of the Overall Manner of Search
[237] In keeping with the requirements of Cornell, supra, no aspect of the search should be viewed in isolation. Instead, the search overall, in light of the facts reasonably known to the police, must be reviewed to determine whether it was reasonable.
[238] My review of the search overall includes a consideration of the facts and circumstances that follow.
[239] Mr. Kukemueller was accompanied from his grandmother’s property to his own property by four officers: DC King, PC Unsworth, Sgt. Wheeler and Sgt. Groleau.
[240] When Mr. Kukemueller arrived at his own residence, there were approximately eight officers waiting outside Mr. Kukemueller’s residence.
[241] DC King, PC Unsworth, Sgt. Wheeler and Sgt. Groleau entered the residence with Mr. Kukemueller to begin execution of the search at approximately 4:20 p.m.
[242] All four officers remained in close proximity to Mr. Kukemueller throughout the search which lasted approximately one hour.
[243] As noted by CIC Walli’s scribed notes, PC Unsworth was tasked with videotaping the search. When he ran out of videotape, the recording was taken over by DC King using his iPhone. The recordings of the search and corresponding transcripts of the recordings were entered as exhibits on the Charter application. All were highly informative.
[244] Sgt. Wheeler, the OPP explosive expert, who testified at trial as a qualified explosives expert, testified that he could not recall any other case where they brought a suspect in to search on a s. 117.04 warrant.
[245] PC Unsworth who did not attend at the trial but whose transcripts from the preliminary inquiry were filed, testified that he had never previously executed a search warrant with the homeowner involved.
[246] In reviewing the overall reasonableness of the search I have considered the recordings of the search, the corresponding transcripts of the recordings, the evidence of the officers, and the documentary evidence relating to the search including CIC Walli’s scribed notes.
[247] I have also considered the following facts and circumstances arising from the evidence that I find relevant to a determination of whether the overall manner of search was reasonable:
(1) Mr. Kukemueller had a history with the police and was known to be distrustful of the police.
(2) Mr. Kukemueller was anxious, nervous and surrounded by armed police officers while stopped at the roadside, while being questioned, while waiting at his grandmother’s, and throughout the execution of the search. He was psychologically detained from the first roadside stop until his arrest.
(3) Specific communication and behavior tactics were used to engage Mr. Kukemueller similar to those used for Freemen of the Land. Mr. Kukemueller was “handled” by the police. DC King advised Mr. Kukemueller that there were many officers waiting outside his home to execute the warrant. DC King testified that Mr. Kukemueller was concerned about the police wrecking his home in the execution of the search and he (King) advised that if he (Kukemueller) cooperated, the police may allow him to be present for the search. Mr. Kukemueller’s consent was neither informed or voluntary, it was conscripted.
(4) As is apparent from a review of the video and iPhone recordings – Mr. Kukemueller’s movements were entirely directed and conscripted by the police. On the one occasion that Mr. Kukemueller deviated from Sgt. Wheeler’s specific direction, he was re-directed at which point Mr. Kukemueller apologized and complied further evidencing psychological conscription to search as directed.
(5) The police officers involved in the search engaged Mr. Kukemueller in friendly banter while covertly engaging in serious and pointed discussions with one another and their supervisors thus exposing the artifice of Mr. Kukemueller’s alleged voluntary assistance. An example of the covert communication is found at p. 7 of 29 of the transcript of the video recording, when DC King asks Sgt. Wheeler whether there were concerns with items that the CIC should know. Sgt. Wheeler answers “No. Yeah”. DC King then texts CIC Walli without alerting Mr. Kukemueller - DC King’s text simply read “we have”. CIC Walli telephoned DC King and CIC Walli records “UCRT found ammonia nitrate in kitchen. UCRT will be testing – ammonia nitrate might be mixed with fuel”. A further example of covert communication occurs shortly following discovery of the ANFO when a length of capped pipe was located. Sgt. Wheeler set aside the capped pipe and DC King recorded a close up of the pipe beside a pen for comparison – without alerting Mr. Kukemueller. CIC Walli’s contemporaneous notes record “found a pipe with caps but no wick, was located in couch. Gatorade bottle on kitchen shelf with ANFO – “possible, to be tested”;
(6) There was no concern expressed that Mr. Kukemueller who was the subject of the public safety warrant would cause harm to the officers. DC King testified that Mr. Kukemueller was “reasonable” and they “got along well”;
(7) Despite locating items of interest that form the basis of the Indictment, the officers continued to utilize Mr. Kukemueller to execute the search without consideration of his Charter rights, including his right to counsel and right against self-incrimination. Sgt. Wheeler testified that he was conducting a criminal investigation during the search and when Mr. Kukemueller opened the Gatorade bottle referenced above, Sgt. Wheeler believed at that point that they found an explosive substance in the kitchen. Despite this stated belief by the UCRT explosive expert, the police continued to utilize Mr. Kukemueller to execute the search without pause, caution or reading of rights. Sgt. Wheeler forthrightly testified that he wasn’t concerned if Mr. Kukemueller was handling the evidence or incriminating himself – he (Wheeler) just wanted the search done.
[248] As discussed by Justice Wilson in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, a review of the reasonableness of a search includes consideration of not only of the manner of the search but also of the overall circumstances such as denying or continuing to deny a person’s right to counsel.
[249] In the present case, the Charter breaches were numerous and multiplied throughout the entirety of the search. I have no difficulty finding on the balance of probabilities that the overall manner of the search was unreasonable and a breach of Mr. Kukemueller’s s. 8 Charter rights.
Issue 7: Was there an Abuse of Process that Requires a Stay of Proceeding?
[250] In order to establish that there has been an abuse of process, Mr. Kukemueller must show that there has been either “(1) prosecutorial conduct affecting the fairness of the trial; or (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”: see R. v. Nixon, 2011 SCC 34, [2011] S.C.J. No. 34 (S.C.C.) at para 36.
[251] A stay of proceedings is the most drastic remedy a criminal court can order but may be warranted on rare occasions if a proceeding is “the clearest of cases” for an abuse of process: see R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 (S.C.C.).
[252] In order to stay a proceeding on the basis of abuse of process, the Court must be satisfied of the following:
(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”: see R. v. Regan, 2002 SCC 12 at para. 54;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”: see Regan, supra, at para. 57; R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 (S.C.C.) at para 32.
[253] Remedies short of a stay that can address the prejudice caused by the state misconduct must be considered.
[254] An accused who is seeking a stay faces an onerous burden. The Supreme Court has repeatedly stated that “cases warranting a stay of proceedings will be “exceptional” and “very rare.”
[255] While I find that the facts and circumstances of this case are unusual and perhaps even exceptional – I do not find the actions of the police qualify as misconduct sufficient to satisfy the first stage of the inquiry. Accordingly, the proceeding is not stayed.
Issue 8: Should any Evidence be Excluded pursuant to Section 24(2) of the Charter?
[256] The onus of establishing that the exclusion of evidence is appropriate lies with the accused, on a balance of probabilities.
[257] As s. 24(2) is engaged, the three factors set out in R v. Grant, supra, must be applied to determine if evidence tainted by a Charter infringement should be excluded under s. 24(2) of the Charter. The three factors are as follow:
• The seriousness of the Charter-infringing state conduct;
• The impact of the breach on the Charter-protected interest of the accused; and
• Society's interest in the adjudication of the case on its merits.
[258] The court must also consider the cumulative effect of the breaches: see R. v. Boutros, 2018 ONCA 375, at para. 32; and R. v. Rover, 2018 ONCA 745.
[259] In applying the three factors, there is no requirement that all three factors or a majority of them be satisfied. Rather, it is a balancing exercise where the key question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would do harm to the long-term repute of the administration of justice. However, it is to be noted that Justice Doherty in R v. McGuffie, 2016 ONCA 365, noted that it will be a rare instance where consideration of the third branch of the Grant analysis will result in admission of the evidence where the first two branches are tipped towards exclusion.
[260] Importantly, the objective of s. 24(2) is not to rectify police misconduct, but rather, to preserve public confidence in the law. Evidence need not be a “shock” to the community, nor the “clearest of case”: R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 52.
The Seriousness of the Charter-Infringing State Conduct
[261] Where breach of a right is directly connected to the evidence obtained, Grant sets out the following test for non-bodily real evidence:
[262] The inquiry informing the s. 24(2) analysis – the seriousness of the Charter-infringing conduct - is fact-specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of evidence may have little adverse effect on the repute of the court process.
[263] A number of factors have been recognized by the case law as being relevant to consideration of the seriousness of the Charter breaches, including:
(a) Whether there was a motivation of urgency or to prevent the destruction of evidence;
(b) The existence of good or bad faith on the part of the state, understanding that deliberately disregarding Charter rights is bad faith;
(c) The impact of dishonest testimony. The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority: see R. v. Harrison, 2009 SCC 34, at para 26; and
(d) The existence or cumulative effect of multiple breaches especially where a breach is part of a larger pattern of abuse or disregard for Charter rights, this exacerbates its seriousness and tends to support exclusion because courts need to distance themselves from the behavior: see R. v. Wu, 2017 ONSC 1003; R. v. Rover, supra; and R. v. McGuffie, supra.
The impact of the breach on the Charter-protected interest of the accused
[264] The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused’s protected interests. In the context of the second inquiry, the Charter breach most often associated with non-bodily physical evidence is the s. 8 protection against unreasonable search and seizure: see R. v. Buhay, 2003 SCC 30.
[265] Privacy is the principal interest involved in such cases. The jurisprudence offers guidance in evaluating the extent to which the accused’s reasonable expectation of privacy was infringed. Other interests, such as human dignity, and the right against self-incrimination, may also be affected by search and seizure of such evidence. The question is how seriously the Charter breach impacted these interests. The greater the intrusion on those interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.
Society's interest in the adjudication of the case on its merits.
[266] The third line of inquiry – whether the admission of the evidence would serve society’s interest in having a case adjudicated on its merits – like the others, engages the facts of the particular case. Reliability issues with physical evidence will not be generally related to the Charter breach. Consideration of this fact tends to weigh in favour of admission, subject to the proviso as noted by Justice Doherty in McGuffie, supra.
[267] The Crown seeks to lessen the seriousness of the Charter impugned conduct by relying on the discoverability of the evidence. In my view, the issue here is the manner in which the search was conducted through the conscription of the accused and viewed through the Cornell analysis, completed herein. The issue is not whether the evidence was obtained was derivative evidence. The police had authority to execute the search and they chose to do so through unconstitutional means. It is my further view, the fact that the police could have conducted the search without Mr. Kukemueller, increases the seriousness of the Charter breach.
[268] In the event that I am mistaken about the applicability of the derivative evidence analysis, I have completed the analysis relying upon the test set out in R v. Grant, supra, at paras 116 – 128 as follows:
(1) To determine whether the admission of derivative evidence would bring the administration of justice into disrepute under s. 24(2), courts must pursue the usual three part test outlined above, taking into account the self-incriminatory origin of the evidence as well as its status as real evidence. The Court in Grant set out the following test for discoverability of evidence:
a. The first enquiry concerns the police conduct in obtaining the statement that led to the real evidence. The extent to which this inquiry favours exclusion will depend on the factual circumstance of the breach: the more serious the state conduct, the more the admission of evidence derived from it tends to undermine public confidence in the rule of law. Were the police deliberately and systematically flouting the accused’s Charter rights? Or were the officers acting in good faith, pursuant to what they thought were legitimate policing policies?
b. The second enquiry focuses on the impact of the breach of the Charter protected interests of the accused. Where a statement (action) is unconstitutionally obtained, in many cases the Charter right breached is the s. 10 (b) right to counsel, which protects the accused’s interest in making an informed choice whether or not to speak to authorities. The relevant consideration at this stage will be the extent to which the Charter breach impugned upon that interest in a free and informed choice. Where that interest was significantly compromised by the breach, this factor will strongly favour exclusion. In determining the impact of the breach, the discoverability of derivative evidence may also be an important factor strengthening or attenuating the self-incriminatory character of the evidence. If the derivative evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely.
c. The third inquiry in determining whether admission of the derivative evidence would bring the administration into disrepute relates to society’s interest in having the case adjudicated on its merits. Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence. Thus the public interest in having a trial on its merits will usually favour admission of the derivative evidence.
(2) The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.
(3) The s. 24(2) analysis must remain sensitive to the concern that a more flexible rule may encourage police to improperly obtain statements that they know will be inadmissible, in order to find derivative evidence which they believe may be admissible. The judge should refuse to admit evidence where there is a reason to believe that the police deliberately abused their power to obtain a statement which might lead to such evidence. Where derivative evidence is obtained by way of a deliberate or flagrant Charter breach, its admission would bring the administration of just into further disrepute and the evidence should be excluded.
Analysis and Application to this Case
[269] The issue is whether the ANFO, black powder, firearms and ammunition, sections of metal pipes with metal caps, and the still photographs of the evidence, should be excluded from the evidence at this trial.
[270] The question is whether the admission of the evidence would bring the administration of justice into disrepute. To answer this question, it is necessary to consider the concerns that underlie the s. 24(2) analysis, as discussed above, in “all the circumstances” of the case, including the arbitrary detention, the breach of the right to counsel, the breach of the right against self-incrimination, and the breach of the reasonableness of the search.
[271] I consider first the seriousness of the improper police conduct that led to the discovery of the evidence. The police conduct here, included persistent and flagrant breaches that multiplied over the course of the arbitrary detention and search.
[272] With respect to the issue of the detention and the failure to provide the accused with his s. 9 and 10 (b) rights – I have found that the accused was detained and his detention was arbitrary. The original plan contained in the SMEAC clearly proposed that the accused would be stopped away from his residence by a traffic stop and informed of the warrant. The plan on its face contemplates an arbitrary detention. There is no question that the accused was detained. The police knew or ought to have known that the initial police stop, request for identification and questioning constituted an arbitrary detention that ignited Charter rights on the part of the accused. The police chose to ignore the fact that they had detained the accused and either intentionally or negligently ignored the accused’s Charter rights.
[273] The police planned to question the accused following his detention. This plan was documented through Sgt. Conway’s email and executed by PC Kenney, DC King, Staff Sgt. Cooper and Sgt. Wheeler. While police are entitled to question the accused in the course of an investigation, they are also required to caution an accused and inform him accused of his s. 10(b) rights so that he may make a reasoned decision whether he wishes to provide information that may incriminate himself. Additionally, they are required to hold off until the accused has an opportunity to speak to counsel or waives his right to counsel. Again, the police either intentionally or negligently ignored the accused’s Charter rights.
[274] The police planned to seek the accused’s cooperation in the physical execution of the search. This plan was documented through CIC Walli’s scribed notes, email exchange, and was otherwise confirmed by the testimony of Staff Sgt. Cooper and Sgt. Wheeler. Again, the police are entitled to seek the accused’s cooperation and assistance but must act properly and the accused must provide informed consent. In the present case, the police were aware that the accused was distrustful of the police. He appeared shaken and nervous. His cooperation was obtained through utilization of de-escalation techniques that took advantage of his vulnerability and without providing him any caution and without heed to his s. 9 and 10 (b) rights. The police intentionally or negligently conscripted the accused’s cooperation without reference or consideration of his Charter rights.
[275] The police brought the accused into the residence and directed his movements. The police had the accused handle and identify all evidence seized. Sgt. Wheeler testified that he believed he was investigating a criminal complaint and when the accused opened the Gatorade bottle he believed that had found an explosive substance. He stated that he had no concern that the accused was handling the evidence or that the accused might say something to incriminate himself – the officer stated he just wanted the search done. The evidence established that DC King similarly noted items of evidence handled by accused that form the basis of the charges and reported the evidence to CIC Walli covertly as the items were discovered. Again there was no consideration or balancing of the accused’s Charter rights. The police intentionally or negligently utilized the accused to seize and identify evidence that they believed incriminated him and without reference or consideration of his Charter rights.
[276] While the police dealt with the accused in a seemingly reasonable manner and were polite and friendly to him throughout, their behavior was targeted and designed to obtain his cooperation to complete the execution of the search.
[277] While the police cannot be faulted for their civility – they can be faulted for the persistent, and multiple Charter breaches, throughout their interaction with the accused.
[278] Bad faith is not always exhibited by rude behavior. Sometimes, as in the present case, it is delivered with friendly banter and a complete and patent disregard of Charter rights.
[279] Considering all of the circumstances of this case, I find that the police conduct in committing the Charter breaches was either negligent or intentional. I further find that the serious nature of the breaches and the fact that there are multiple breaches, renders the conduct to be egregious even assuming it is based purely on negligence. I am of the view that the effect of admitting the evidence in the circumstances of this case would greatly undermine public confidence in the rule of law.
[280] The second inquiry under the s. 24(2) analysis focuses on whether the admission of the evidence would bring the administration of justice into disrepute from the perspective of society’s interest in respect for Charter rights. This inquiry focuses on the impact of the breach on the accused’s protected interests. Because the various infringed rights protect different interests, it is necessary to consider them separately at this stage.
[281] The initial Charter violation was arbitrary detention under s. 9 of the Charter, curtailing Mr. Kukemueller’s liberty interest. This interaction was planned and purposeful by the police and included subtle coercive techniques that deprived Mr. Kukemueller of his freedom to make an informed choice as to how to respond. Like Grant, this is so despite the fact that the detention did not involve any physical coercion and was not carried out in an abusive manner. The detention, however, was lengthy and lasted approximately five and a half hours. Further, the detention involved the accused being surrounded by armed police officers over a lengthy period of time and involved him physically following directions issued by the police. Given the length of the detention, the fact that the accused was surrounded by armed police officers for the majority of the detention, and the accused known distrust of the police coupled with his noted shaking, agitation, and upset, I conclude that the breach was serious and prolonged.
[282] The second and third Charter violations included breaches of Mr. Kukemueller’s ss. 10 (b) and 7 Charter rights. PC Kenney, DC King, Staff Sgt. Cooper, and Sargent Wheeler all admittedly questioned Mr. Kukemueller about the existence of explosive substances and weapons at his residence. The questioning was persistent and directed and continued from the time of the first stop to the end of the conscripted search. The officers also utilized Mr. Kukemueller to handle and identify the very evidence that forms the basis of the charges before the court. Mr. Kukemueller was in need of legal advice and was not cautioned, was not advised that he could consult counsel, was not advised that he could leave at any time without consequences, and was conscripted to provide evidence against himself through word and deed. Again, I conclude that the breaches were serious, prolonged and aggravated by circumstances tending to establish that the police were aware that Mr. Kukemueller had handled and identified explosive substances but continued to utilize his assistance without heed to his Charter rights thus causing a cascade of further and continuous Charter breaches.
[283] The fourth Charter violation included a breach of Mr. Kukemueller’s s. 8 right. This right involves Mr. Kukemueller’s privacy interest in his home which interest is acknowledged to be of the highest order. The use of Mr. Kukemueller in the execution of the search coupled with the underlying conscripted behavior and covert communication rendered the search unreasonable. The police obtained Mr. Kukemueller’s assistance through subtle coercion and directed persuasion that targeted his known distrust of the police. The use of Mr. Kukemueller who was the named subject of the public safety warrant to physically handle and identify the explosive substances sought by the warrant was apparently unprecedented[^2] and patently illogical.
[284] Discoverability may remain a factor in assessing the impact of the Charter breaches on Charter rights. The investigating officers testified that the evidence that was seized that is sought to be excluded was found in plain view and would have been discovered had the police executed the public safety search warrant in a manner that did not breach Mr. Kukemueller’s Charter rights. Accordingly, it is argued that the fact that the evidence was discoverable, minimizes the impact of the breach on Mr. Kukemueller’s interest in making an informed decision to talk to the police and on his right against self-incrimination. While I do not believe it is relevant – given that the real issue is the manner of the search - the fact that the derivative evidence was discoverable, does not determine the issue. Mr. Kukemueller was psychologically detained for a prolonged period, he was in immediate need of legal advice and had no opportunity to seek it, he was conscripted to participate in the execution of a search of his own residence against his personal interest and in jeopardy of his freedom.
[285] Considering all of these matters, I conclude that the impact of the infringement of Mr. Kukemueller’s rights under ss. 7, 8, 9, and 10 (b) was serious, prolonged, significant, and was either negligent or intentional and occurred with reckless disregard for Mr. Kukemueller’s Charter rights.
[286] The third and final concern is the effect of admitting the evidence on the public interest in having a case adjudicated on its merits. The ANFO, black powder, firearms and ammunition, sections of metal pipes with metal caps, and still photographs, are evidence that the items existed at the premises on the specified date. They are not, however, evidence that an offence has been committed. Argument is still required from both the Crown and the Defence before any determination can be made regarding the illegality of possessing the various items.
[287] Having said this, without the evidence there can be no determination on the merits. The Crown argues that the seriousness of the alleged offences weighs in favour of admitting the evidence so the matter may be determined on the merits asserting that the offences raise major public safety concerns and that the items so seized and the still photographs of the evidence are the main evidence in the case. On the other hand, as noted by the court in Grant, the seriousness of the offences makes it all more important that Mr. Kukemueller’s rights be respected. In the result I find that this factor is not of much assistance.
[288] In summary, I find that the police conduct - whether negligent or intentional - was reckless, egregious and constituted a flagrant and persistent disregard of Mr. Kukemueller’s Charter rights. The impact of the Charter breaches on the accused’s protected interests was significant and although subtle and coercive, was towards the serious end of the scale. Finally, the value of the evidence is considerable. These effects must be balanced in determining whether admitting the evidence would put the administration of justice into disrepute. I do not believe that this is a close case. The balance mandated by s. 24(2) is qualitative in nature and having weighed all these concerns, it is my opinion that the admission of the items seized into evidence in the particular and unusual circumstances of this case, would, on balance, bring the administration of justice into disrepute.
[289] Utilizing the subject of a public safety warrant to participate in the search of his own residence and to handle and identify the evidence that forms the basis of the charges before the court – is highly unusual and perhaps entirely unprecedented. The flagrant disregard of the accused’s Charter rights requires the court to distance itself from the misconduct.
[290] For the reasons set out herein, the evidence is excluded as a result of the breaches of Mr. Kukemueller’s ss. 7, 8, 9, and 10 (b) Charter rights.
Justice S. J. Woodley
Released: October 29, 2018
COURT FILE NO.: CR-16-2185
DATE: 20181029
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JUSTIN KUKEMUELLER
REASONS FOR JUDGMENT
Susan J. Woodley
Released: October 29, 2018
[^1] Prior to the proceeding I urged Mr. Kukemueller to retain counsel for the pre-trial applications and the proceeding. Mr. Kukemueller retained counsel who informed the court that he would not be bringing either a Garofoli application or a Charter application before the court. As noted previously in these Reasons, after hearing some evidence I became concerned that there was a problem with the Charter and ordered that the Charter application proceed. I made no such ruling with respect to the Garofoli issues.
[^2] Crown counsel was unable to provide any case where an accused person participated in the execution of a search warrant to the degree present in this case. I note by way of analogy that s. 487.02 of the Criminal Code provides for assistance orders which can be used to compel the participation of persons in the execution of a search warrant. It remains unclear whether an accused can be so compelled, however, even assuming an accused could be compelled it is clear that this would require prior judicial authorization or a valid consent. Neither were present in the case before me. (See R. v. Boudreaux-Fontaine, 2010 QCCA 1108; and R. v. Eric Talbot, ONCJ, unreported decision of Justice Applegate dated Nov. 11, 2017; and R. v. Wills, supra).