Court File and Parties

COURT FILE NO.: 16-M7884 DATE: 2018/12/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Respondent v. Joe-Bryan Ndikuriyo, Applicant

BEFORE: Justice R. Laliberté

COUNSEL: Mike Boyce and Hart Shouldice, Counsel for the Respondent Oliver Abergel and K. Lundrigan, Counsel for the Applicant

HEARD: November 14, 15, 16, 19, 20, 21, 2018 in OTTAWA

RULING – PRE-TRIAL APPLICATION

LALIBERTE, J.

Introduction

1The accused person, Joe-Bryan Ndikuriyo, is charged with second degree murder and attempted murder.

2The jury has been selected and the trial has started with a voir dire to determine the admissibility of Crown evidence, notably a statement given by the accused to the police following his arrest.

3The issues raised in this voir dire revolve around the accused person having been arrested in a dwelling house without a warrant allowing entrance of same.

4While initially challenged, counsel for the accused conceded during the voir dire that the Crown’s evidence establishes that the statement was freely given as defined under the Common Law Voluntariness Rule. Therefore, the only issues to be decided by the Court is whether the accused’s rights under ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) were breached when he was arrested by the police in a dwelling house and if so, whether Crown evidence should be excluded under s. 24(2) of the Charter.

EVIDENCE

5The Crown called three (3) Ottawa Police detectives as witnesses, namely Sergeants Guy Séguin, Chris O’Brien and Chris Benson.

6The accused and Rosine Mucyo were called as witnesses by defence.

7For the most part, the Crown’s evidence leading up to the police attending at 1400 Lepage Avenue, unit #529 in Ottawa, which is where the accused was arrested, is not controversial in terms of the narrative and the unfolding of the relevant events.

8The Court will briefly review the evidence of the said officers.

Detective Guy Séguin

9Detective Guy Séguin is the lead investigator. He was first contacted at 2:18 a.m. on November 6th, 2016 and made aware that there had been a fight in front of Piper’s Bar and Grill on St-Laurent Boulevard in Ottawa. He was told that one person had been stabbed to the neck and had died and that a second person had been injured. He arrived at the police station at 4:45 a.m. There was no information regarding the suspect at that point.

10He first met and interviewed witness Hibo Osmand. She didn’t identify the suspect nor provide his whereabouts.

11He notes that there was a trail of blood leading from the scene to an apartment building located at 1240 Donald Street.

12Sergeant Séguin then explains how the accused was ultimately identified as the suspect who had stabbed the two individuals.

13At 7:20 a.m., the deceased was identified as Soloman Odekunle.

14He notes that Detectives O’Brien and Benson had gone to the hospital to speak to the second individual who had been stabbed named Garworh Myers. They were told that the suspect’s name was Joe, he was tall and came from Burundi.

15This information was conveyed to Constable Wilcox who came up with the name Joe Bryan Ndikuriyo through research on the police Records Management System referred to as RMS. This also generated a photograph of the accused.

16The police then made a photographic line-up.

17The RMS research also disclosed ties between the accused and Rosine Mucyo. It also revealed two (2) former addresses for the accused, one on Ramsay Crescent in the West end and one at 450 Laurier Street West. There was no indication on RMS that he was residing with Rosine Mucyo.

18It was known at that point that Rosine Mucyo was residing at 1400 Lepage Street, Unit #529 which is part of Ottawa Housing.

19The accused’s identity was confirmed through the photo line-up by the victim Myers and witness Tunde Memudu. This was done at 7:49 a.m.

20The officer explained that they had reasonable grounds to arrest the accused and the priority was now to locate and arrest him.

21Sergeant Séguin then testified as to the steps taken to locate the accused. He maintains that they had not information as to his whereabouts at that point in time. There was no indication that he was living with Rosine Mucyo at 1400 Lavigne. He notes the following:

• Detective Brennan was tasked to set up a surveillance team at 1400 Lavigne in an attempt to locate the accused;
• while there was no concrete evidence to believe he was there, Hibo Osmand had stated earlier that she was with Rosine and Joe at the bar; she had not told him Joe lived with Rosine;
• the officer is familiar with Feeny Warrants and has obtained same on prior occasions; he explains that he felt he couldn’t obtain a Feeny Warrant for 1400 Lavigne since he did not have reasonable and probable grounds to believe the accused was there;
• there was a team meeting from 12:19 p.m. to 1:20 p.m.; there was still no information as to the accused’s location; Detectives O’Brien and Benson were tasked with locating and arresting the accused;

22Sergeant Séguin then provides a brief summary of the statements provided later by Hibo Osmand and Rosine Mucyo.

23Rosine provided the following details:

• she was outside Piper’s with Hibo and the accused;
• there was a fight and she went to a high rise on Donald Street looking for her boyfriend;
• she saw the accused take a beer bottle and stab but he was defending himself; he then headed out and ran.

24Hibo Osmand stated the following:

• she was driven to 1400 Lavigne where she waited alone;
• at 11:00 a.m., the accused and Rosine arrived and there was a discussion as to what happened; and
• she told them a person had died and she had given a statement to the police.

25He provided the following additional evidence:

• at 2:14 p.m., hospitals in Ottawa and Gatineau were called by the police to find out if the accused had attended;
• at 3:15 p.m., it was decided that the surveillance team would not go on overtime and remain at 1400 pass 5:00 p.m.;
• at 3:24 p.m., he received information that the accused had been arrested by Sergeants O’Brien and Benson at 1400 Lepage;
• he explains that these Sergeants had not been directed to attend 1400 Lepage; this had not been coordinated; in fact, they had gone to other addresses before attending that location.

26The Sergeant also confirms that the accused provided a statement to the police.

27The following points are raised in cross-examination:

• he maintains that the police did not know that the accused was at 1400 Lavigne, unit # 529;
• he does not dispute the suggestion that the information served to connect the accused to Rosine:
  • she was his girlfriend;
  • RMS connected them;
  • they were together at the time of the incident.
• counsel makes the point that 1400 Lavigne is the only place where surveillance was set up;
• the officer doesn’t dispute that:
  • there was at least a good chance that he was there;
  • it was a “good bet” that he was there.

Detective Sergeant Chris O’Brien

28Sergeant O’Brien was initially contacted at 3:28 a.m. on November 6th, 2016 and was made aware of a fatal stabbing on St-Laurent Boulevard. He was ultimately involved in finding and arresting the accused on the same date at 1400 Lavigne Street, Unit # 529 at 3:24 p.m.

29Together with Sergeant Benson, he had met with victim Myers at the Civic Hospital. This was at 6:30 a.m. He later spoke to witness Tunde Memudu. Both of these witnesses attended the police station and identified the accused through a photo line-up. Myers did so at 10:05 a.m.

30Once identified, their task was to locate the accused. He notes that they had no possible addresses. They checked out addresses on St-Laurent Boulevard. They were knocking on doors trying to find him.

31He participated in a team meeting from 12:29 p.m. to 1:20 p.m. While there were grounds to arrest the accused for second degree murder, his address remained unknown.

32The officer describes having taken the following steps:

• there was a blood trail leading to the area of 1240 Donald Street; they found two (2) addresses linked to people from the Piper’s Bar and Grill; they attended unit # 614 at 1240 Donald Street at 2:18 p.m. and spoke to 2 individuals; they had knocked on the unit door and were invited in; they didn’t know the people involved;
• at 2:35 p.m., they went to unit #513 and spoke to an individual who didn’t know the accused;
• they then went to 1400 Lepage Street; they first attended unit # 412; he explains that RMS had linked Hibo Osmand to unit #412; they spoke to an individual who stated he didn’t know the people involved;
• it was then decided to attend unit #529 to knock on the door; the officers knew there was a connection between Hibo Osmand and unit #529 as she lived there with Rosine Mucyo; he can’t recall why they didn’t go to unit #529 first; he was aware of the surveillance; he states that they just did a door knock at 3:19 p.m.; there was no information that the accused was in this unit; they hadn’t received any updates that he was aware.

33Sergeant O’Brien provides the following evidence as to what happened once they were standing at the door of unit #529 at 3:19 p.m.:

• there was a pizza delivery person who arrived at the same time;
• Rosine had opened her door and paid for the pizza. They didn’t speak to her while the pizza delivery person was still there but she was able to see them as they were standing next to the pizza delivery guy in the hallway;
• Sergeant Benson is the one who spoke to her; they identified themselves as police officers and told her they were looking for Mr. Ndikuriyo;
• she was asked if he was there and she said no; she didn’t ask why they were looking for him;
• she was asked if they could come in to speak to her;
• he believes she was told that they were looking for him to arrest him for murder;
• he testified that she said “yes come in” and she started to back up to let them in;
• he notes that there was nothing abnormal about her demeanour; she seemed normal and showed no emotions;
• she provided a number where the accused could be reached;
• there were other people inside the apartment, namely Hibo, and a gentleman;
• as they entered, she went to the living room and Sergeant Benson followed her; he was following him;
• he saw Sergeant Benson turn left in a living room;
• he then noted a door which was partly closed and a black gentleman who was sitting on a bed talking on a cell phone; he observed that this gentleman looked like the person they were looking for from the photograph;
• once the individual had completed his phone call, he asked him if he had I.D. and he was told no;
• Sergeant Benson then returned close to him and immediately realized he was the individual they were looking for and arrested him for murder;
• Sergeant Benson provided him with his rights to counsel and his caution;
• he was arrested in the bedroom at 3:24 p.m.; the accused didn’t ask any questions and appeared to understand what was happening; he was extremely cooperative;
• the officer provides the following additional details:
  • he waited in the hallway while the accused completed his phone call;
  • he was standing for some 30 seconds to 1 minutes outside the bedroom;
  • they didn’t search the apartment;
  • Rosine never withdrew her consent; she was cooperative;
  • no one told them to leave;
  • the bedroom door was 50% opened and he pushed it completely open.

34The accused was brought to their vehicle. He had been handcuffed. They were inside the car at 3:27 p.m.. Sergeant O’Brien sat with him in the back seat where he read what had been verbally conveyed to the accused by Sergeant Benson while in the unit. While everything had been already covered, he felt that it was better to read written version to him. He was read the following:

• he was under arrest for murder;
• his rights to counsel
  • he stated he understood and didn’t want to call a lawyer;
• he remembers telling him that it was in his best interest to call a lawyer but he didn’t want to;
• he was cautioned and told of his right to remain silent which he stated he understood;
• he was given a secondary caution which deals with whether he had spoken to another officer;
• all of this was read from a force-provided card.

35The witness explains that he had observed what appeared to be blood on the accused’s white running shoes. These were seized and turned over to the identification officer.

36He was asked why he did not obtain a Feeny Warrant. It is obvious that Sergeant O’Brien understands the nature of such a warrant. He explains that he had no grounds to believe the accused was inside unit #529. He did not consider turning around and getting a Feeny Warrant once he saw the accused. His belief was that they were lawfully in the dwelling since they had been invited in.

37In his mind, they had grounds to arrest him and were lawfully there. He notes that leaving could have resulted in the destruction of the evidence.

38They left the area with the accused at 3:31 p.m. and went directly to the police station. They arrived at the cell block area at 3:41 p.m.

39Once at the police station, the witness described how the accused was processed by being paraded in front of the cell block Sergeant, searched by an identification officer, attended a room where he could contact counsel (numbers of lawyers and legal aid number) and brought up an elevator to an interview room. Exhibit #11 contains video clips of the events described by the witness.

40Sergeant O’Brien provides the following evidence in regards to these events:

• the accused did not, at any point, display signs of intoxication; he did not have an odour of alcohol;
• when asked, the accused stated that he had no fixed address;
• the accused had cuts to his left cheek, the top of his head and to a finger; he was not bleeding and the cuts were covered with bandages; there was no medical emergency;
• the accused never asked to be brought to the hospital;
• he did not complain of being tired; nor did he fall asleep;
• there were no concerns with his level of comprehension; he appeared cool, calm and collected;
• he was never threatened or promised anything by the police;
• he was offered food and water on the way to the interview room;
• he was brought to a room where he could contact a lawyer; he turned down the opportunity of speaking with a lawyer; the officer told him he should call a lawyer since the charge was serious; the accused responded that he wanted to tell them what happened; he was told to let them know if he changed his mind.

41In cross-examination, Sergeant O’Brien confirms that while the police had reasonable and probable grounds to arrest the accused for murder, they didn’t know where he was at the time.

42He agrees that the fact that Rosine Mucyo was his girlfriend and present with him at the time of the incident, made it such that he was possibly with her. He explains that they didn’t go there first because surveillance was in the work.

43The officer maintains that Rosine Mucyo’s status was not different then the other individuals they spoke to. She wasn’t a suspect as far as the police were concerned. He agrees that in retrospect, she was arguably aiding and abetting the accused. It is also reasonable to think that she would have been stressed when she saw the police at her door.

44He is questioned as to why they did not use the buzzer at the main entrance to ask permission to enter. He states that they came in as people were walking in. He notes that Ottawa Housing has provided the police with permission to enter.

45The following points are raised:

• they waited for her to finish her dealings with the pizza delivery guy before telling her they were police officers;
• they knew Rosine and Hibo were living there but didn’t know who’s name was on the lease;
• he didn’t hear Sergeant Benson asking who’s apartment this was; nor did he ask the accused while in the bedroom;
• he believes Rosine said that the accused wasn’t there while at the front door; Sergeant Benson did the talking;
• he agrees that the unit is very small;
• the bedroom door was partially opened when he saw the accused sitting on the bed; he felt he looked like the person on the photograph they were looking for;
• he agrees that the odds were small that he wouldn’t see him in such a small apartment;
• while not in his notes, he recalls that the accused was sitting on a bed; he rejects the suggestion that he was sitting on a chair;
• their purpose in attending the unit was to ask if he was there and get information as to his whereabouts;
• the officer is confronted with his notes which suggest that they asked her to “come in” and “talk to her” and “see if he was there”; he maintains that their intent was not to look for him inside the apartment;
• she wasn’t warned because they didn’t know she was concealing him and that he was inside; they didn’t know she had lied to them;
• he states that they would have gotten a Feeny Warrant had they known he was inside unit #529;
• they had no prior information that he was living there; in fact, he later told them that he wasn’t living there; he had no fixed address;
• Sergeant O’Brien rejects the following suggestions:
  • that Rosine Mucyo froze;
  • that she didn’t speak to them;
  • that she just walked away.
• he is asked whether it made sense that she would let them in knowing she had just lied and that he would inevitably be seen inside such a small apartment;
• the officer states that he had no clue that the accused was inside; nor did he think there was any legal jeopardy for Rosine Mucyo;
• he didn’t ask permission from the accused to enter the bedroom; he was instantly arrested.

Detective Sergeant Chris Benson

46Detective Benson was contacted at 3:35 a.m. on November 6th, 2016 in regards to this matter. He explains how the accused came to be identified through a photo line-up by witnesses Garworh Myers and Tunde Memudu.

47He has never dealt with the accused and his whereabouts were unknown.

48A team meeting was held at the police station at 12:29 p.m. at which time he and Sergeant O’Brien were tasked with trying to locate and arrest the accused for murder.

49The officer described the steps taken prior to the accused’s arrest at 3:24 p.m. inside unit #529 at 1400 Lepage Avenue.

50He explains that they were aware of a blood trail at the scene which led to an apartment building located at 1240 Donald Street. Police information disclosed a connection between Hibo Osmand and two (2) units in this building. Hibo Osmand was known to be present at the time of the stabbing.

51At 2:18 p.m., they attended apartment #614 and spoke to two (2) individuals who stated that they did not know the accused. The officers then went to apartment #513 at 2:35 p.m. where they spoke to an individual who also didn’t know the accused.

52It was then decided to go to 1400 Lepage Avenue as the police information revealed a connection with Hibo Osmand and Rosine Mucyo.

53RMS showed a connection between Hibo Osmond and Unit #412 which is where the officers first went to. They knocked at the door and spoke to an occupant who did not know the accused.

54The officers knew that Rosine Mucyo lived at 1400 Lepage Avenue, unit #529. They were aware of the police surveillance. Rosine Mucyo had not yet been questioned by the police.

55Sergeant Benson testifies that there was no information that the accused lived there nor that he was inside. They would have gone there immediately if they had such information.

56The officers then went to unit #529 on the 5th floor at 3:19 a.m.. The witness provides the following evidence:

• they saw a pizza delivery guy at the door talking to a female; the discussion was about the fact that the delivery was late and she shouldn’t have to pay;
• the officers were standing on each side of the pizza delivery guy near the doorway;
• the female paid for the pizza and the guy left;
• before she closed the door, they introduced themselves and told her they were there in regards to a criminal investigation; Hibo Osmand was closeby;
• he assumed that Hibo Osmand would have told her she had spoken to the police; he told Rosine Mucyo “your friend has already been interviewed”;
• she was asked if they could come in to speak to her and they were invited in; she would have stated “sure” and held the door and led him to the living room; she didn’t ask any questions and appeared willing to speak to them; her demeanor was normal;
• the witness doesn’t recall is Sergeant O’Brien said anything;
• he states that Rosine was not a suspect at that point; she was the suspect’s girlfriend;
• as he walked towards the living room, there was no search of the unit; he turned left into the living room; Hibo, Fazal and Rosine were in the living room; he had walked by the bedroom; Sergeant O’Brien stayed at the crest of the hallway;
• while in the living room, he stated that they were looking for the accused in regards to a homicide; Rosine Mucyo stated that she didn’t know where he was and provided a phone number; she appeared cooperative and didn’t ask any questions; the two (2) others didn’t say anything;
• he then heard Sergeant O’Brien saying that there was someone in the bedroom; the door to the bedroom was opened and he saw the accused whom he recognized, standing and talking on a phone; he entered the bedroom first and arrested him for murder at 3:24 p.m.; he provided him with his rights to counsel and caution; the accused was escorted to the police vehicle parked in front;
• the accused sat in the back seat with Sergeant O’Brien who read the notice of arrest, rights to counsel and caution;
• the accused was transported to the police station where they arrived at 3:41 p.m.;
• the officer described the process once at the police station which ultimately led to the statement given by the accused; a video recording of this statement was viewed and filed as Exhibit #1; Exhibit #3 is a transcript of the accused’s statement.

57Sergeant Benson explained that while they had reasonable and probable grounds to arrest the accused, they had no information as to his whereabouts. They were grasping at straws to find him. They did not consider exiting unit #529 once they saw the accused inside as he felt they were lawfully in the dwelling on the basis of Rosine Mucyo’s invitation.

58The officer states that he is familiar with Feeny Warrants which allow police entry in dwellings to execute an arrest. He has obtained many such warrants. However, in this case, the police did not have reasonable and probable grounds to believe that the accused was inside unit #529.

59The following points are raised in cross-examination:

• that his notes are incomplete as to their encounter with Rosine Mucyo:
  • the words used by the police and her response were not accurately recorded;
  • there is no indication that Hibo Osmand was at the entrance with Rosine and that he had spoken to her;
  • the investigative action report may have been done many months after the events;
• he agrees with the suggestion that there was a possibility that the accused could have been at his girlfriend’s place; he knew they were in a relationship and the odds were higher he would be with her;
• the fact that surveillance was set-up only at Rosine Mucyo’s residence;
• he is challenged on the fact that they did not request entry by using the buzzer at the main entrance; the officer explains that:
  • the main door was opened;
  • they were initially going to unit #412;
  • as this is Ottawa Housing, the police have a right to enter;
• he maintains that once Rosine Mucyo had paid for the pizza, they identified themselves as police officers, she was asked if they could speak to her inside the apartment and she agreed; he agrees that from Rosine’s perspective they were two (2) sizeable men in suits and likely knew they were police officers;
• he agrees that the unit is very small and you could see the bedroom door from the entrance; one can see inside the bedroom if the door is opened; he did not see anyone inside the bedroom as he entered and walked by;
• he never asked permission to search the unit nor arrest the accused;
• Rosine Mucyo never gave permission to enter the bedroom;
• He agrees that he does not have a verbatim account of the words spoken by him and Rosine Mucyo; he rejects the suggestion that she didn’t say anything; nor does he agree that she froze;
• They did not ask who’s apartment this was prior to entering; nor did they ask if the accused lived there prior to his arrest;
• He explains that they would have gone there first if they thought he was there.

Rosine Mucyo

60Rosine Mucyo is 27 years old and came to Canada from Congo at age 15. She states that prior to November 6th, 2016, she had never dealt with police in her native country nor in Canada. She had no knowledge of the justice system. Her belief was that the police would seek permission before entering her home but didn’t know she could say no.

61She confirms that the police attended her home at 1400 Lepage Avenue, unit #529 on November 6th, 2016 where she was residing since 2015. This is part of the Ottawa Housing Program. She notes that she lived on the 5th floor and that there was a buzzer system at the main entrance through which people with no key can be allowed in. Her name is on a list at the front.

62The witness identifies the accused as her boyfriend who had been living with her in unit #529 some 5 to 6 months prior to November 2016.

63Her evidence is that they shared everything, slept in the same bedroom, abided by rules as a couple and did activities together.

64Her friend Hibo was also sleeping there but didn’t have a key and slept on the couch. She had asked the accused his permission prior to letting her stay at the unit.

65She provided the following further evidence in regards to the accused’s connection to unit #529:

• he had been sleeping there every night for the previous two (2) months;
• he came home every night;
• he had a key to the apartment and the mailbox;
• he had no other place to sleep;
• he didn’t need her permission to enter;
• he had the power to stop people from entering;
• he contributed items such as food, curtains, cleaning supplies, t.v. and a couch; he also had clothing and shoes in the home;
• he received his Ontario Works cheque at that address.

66She is then questioned on the events of November 6th, 2016 when the police attended her home and arrested the accused.

67The accused and her had arrived home at around noon. Her friends Hibo and Fazal were there waiting for them. Just prior to the arrival of the police, they had ordered pizza and were waiting for same.

68She explains that, in her mind, she knew they were in trouble because of the fight. While she didn’t know at that point that the victim had died, she had seen blood and knew that it was serious. When asked, she states that she didn’t think the police were looking for them.

69At one point, she heard a knock at the door and saw the pizza delivery guy through the small peek hole. Hibo and Fazal were in the living room while the accused was in the bedroom with the door completely closed. He was sitting on a chair in the bedroom. He was sitting on a chair in the corner speaking to his family on her cellphone.

70As she opened the door for the pizza, she saw the two (2) detectives standing on both sides of the pizza delivery guy. She knew they were police officers by how serious they looked and their clothing which she describes as more classic and suits. They were not wearing police uniforms.

71The officers asked her if she knew the person on the photograph which was a picture of the accused. She responded “yes, he’s my boyfriend”.

72She reports that she turned around to put the pizza away and was immediately followed in by the officers who had said nothing else. She was never asked permission to enter. Nor was she explained that she could refuse entrance. She didn’t know she had a right to refuse.

73Ms. Mucyo explained that she felt shocked when she saw the officers standing next to the pizza delivery guy. She just took the pizza and didn’t pay for same nor speak to the delivery guy. She turned around and wanted to come back and speak with the police who just followed her inside.

74She maintains that she didn’t say or do anything to let the police know they could come in. She felt intimidated and afraid. She didn’t know she could tell them to leave.

75She knew they had come to find the accused and since the unit was small, she believed that he would be found, which is something she didn’t want to happen.

76While in the living room, she was asked the last time she had seen the accused and she responded yesterday. She did not tell the police that the accused was in the bedroom as she didn’t want him to be in trouble. She never gave them permission to enter the bedroom.

77The officers could hear the accused talking on a cellphone and they opened the bedroom door. He was immediately arrested and handcuffed.

78Her testimony is that she never gave the police permission to enter the unit and arrest the accused.

79In cross-examination, the witness confirms that only her name was on the lease. As of November 2016, she had not advised Ottawa Housing that the accused was residing with her. She had just neglected to do so and her lease allowed him to reside with her.

80When questioned as to why she had told the police in her sworn statement of November 6th, 2016, that she lived by herself, she states that there are things she can’t remember because she was still intoxicated and there were many things in her mind.

81She knows he had been living with her for some 5 to 6 months. She admits that she lied to the police when she stated that the accused had been there for 2 months. She explains that prior to these 5 to 6 months, the accused would go back and forth between Ottawa and London. She doesn`t agree with the suggestion that he had been simply staying at the unit for a couple of months leading to November 2016. She explains the contradictions in her sworn statement by the facts that she was intoxicated, nervous and intimidated.

82She didn’t know that he was associated to two (2) separate Ottawa addresses in court documents.

83The witness recalls attending her friend Kellys home after the stabbing incident. However, she cant remember if the accused changed in Kellys clothing. She again refers to the fact that she cant recall because she was drunk. Some things she is able to remember while others she can’t because of this. She maintains that she was drunk when the police went to her home and when she gave her sworn statement to the police later that day. She never told the police she was drunk and was never asked.

84Her evidence is that she would not allow anyone, other than friends, to enter the unit unless she obtained the accused`s prior consent. She had to check with him.

85She would not have let the police enter without the accused`s prior consent.

86In response to the Crowns suggestion that she would have let police enter without asking the accuseds permission, she responds that if the police had asked her permission to enter the unit on November 6th, 2016, she would have said no.

87She confirms knowing that the victim had died prior to the police attending her home since Hibo had told her so. When asked why she had told defence counsel that she didnt know this when asked during her examination-in-chief, she explains that she knew but wasnt sure if it was true or not. Hibo had told her but she wasn`t sure if it was true. She was in shock.

88While she knew that the police were there to investigate the incident at Pipers, she wasnt expecting it.

89When asked why she hadn`t mentioned earlier that she was intimidated by the way the police were looking at her, she states that “now I am beginning to remember more and more”… “I was drunk during the encounter and this affected her recollection on details.”

90The Court notes the witness’ response to some of the Crown’s suggestions (not verbatim):

1. Suggestion: that she did have a discussion with the pizza delivery guy and the fact that it took more than 40 minutes. Response: no…I didn’t talk to him.
2. Suggestion: that she was so intoxicated that she can’t recall Response: I don’t recall having spoken to him
3. Suggestion: police identified themselves as police officers Response: I don’t remember that…it’s possible…maybe
4. Suggestion: police told her they were there for a criminal investigation Response: I don’t recall them telling me that…it’s possible…maybe
5. Suggestion: police asked if they could come in before entering Response: no they didn’t ask…that I recall they didn’t ask to enter…no not at all
6. Suggestion: she never told the police that she didn’t want them to come in Response: no, cause I was nervous and intimidated
7. Suggestion: possible the bedroom door was opened Response: no it was closed.

91Finally, she explains that she didn’t think she would get in trouble by lying to the police about the accused not being there because he was going to turn himself in to the police the following day. He had told her this.

Joe-Bryan Ndikuriyo

92The accused is 29 years old. He explains that his relationship to Rosine Mucyo was very serious and he planned to marry her. He knew her since 2012.

93Up to June or July 2016, he would travel back and forth between London and Ottawa. He was in receipt of Ontario Works in London and needed to report to his worker in London once a month in order to maintain payment of same. He would also help his mother who had a cleaning business in London.

94He decided to remain solely in Ottawa in June or July 2016. This is when he started to reside at 1400 Lepage Avenue with Rosine. He slept full-time from August 2016 to November 2016.

95He provides the following evidence as to his connection with unit #529:

• he slept there all the time;
• all of his possessions were there;
• he had a key for the unit and the mailbox;
• he would invite and entertain his friends there;
• he had no other homes;
• he could come and go as he wished;
• he could refuse entry to others;
• he and Rosine would discuss who could enter;
• he brought a number of items including a sofa, dishes, drapes, blankets, t.v., clothing, shoes, computer;
• he shared a bed with Rosine; it was their bedroom.

96He specifically recalls a conversation with Rosine and telling her to let him deal with the police if they ever attended their home since he had prior dealings with the police.

97He had provided Ontario Works with unit #529 as his mailing address and this is where his monthly payments were sent. This is confirmed through Exhibit #6 which is a report prepared by Ontario Works confirming that his cheques were being sent to unit #529. He had told Ontario Works that he was sleeping on the couch. Because he was living there, his cheque was reduced from $700 to $200 per month.

98Hibo had been staying with them for a few weeks as she had been kicked out of her home and had no place to live. This was his idea and she slept on the couch.

99In regards to the events of November 6th, 2016, he recalls having gone to a friend’s place which was close to Piper’s. They returned home at around noon or 1:00 p.m.. He was still in shock and wasn’t in shape to keep track of time. Hibo was waiting for them downstairs as she didn’t have a key. Fazal arrived later.

100At one point, he explains being in the bedroom in order to talk privately with his mother and sister on the phone. They had found out about the incident. He couldn’t have this conversation in front of the others. The door to the bedroom was closed.

101He didn’t know that pizza had been ordered by the others. Nor did he know that the police had entered the apartment until the bedroom was opened by one of the officers.

102He doesn’t recall being asked for identification. The officers talked to one another and proceeded to arrest him for murder. He was handcuffed.

103The accused states that he never gave the police permission to enter the bedroom.

104Finally, he describes that he was under the influence of alcohol and marijuana. He had consumed alcohol and marijuana before he had received the call from his family. He was also tired as he hadn’t slept that day.

105The following points are raised by Crown counsel during the accused’s cross-examination:

• a bail variation application filed as Exhibit #8 shows that he had provided an address on Laurier Street as the address he was living at; he explains that he had provided a friend’s address because he didn’t want to affect Rosine’s housing eligibility;
• they later decided to face the consequences and disclosed to Ontario Works he believes in August 2016 that he was residing at 1400 Lepage Avenue; he had told them that he was sleeping on the couch; he admits lying to Ontario Works;
• he agrees that he never changed his bail documents to reflect 1400 Lepage Avenue as his residence;
• he is confronted with the fact that his probation order of October 21st, 2016, identifies 321-2025 Othello Avenue as his home address; he explains that he just signed the order without noting the address;
• he agrees that he wasn’t telling the truth when he told the police on November 6th, 2016, following his arrest, that he wasn’t residing at 1400 with Rosine; he lied to the police as he thought this could affect her staying there; he wanted to protect her since he was being charged with murder and this could impact on her;
• he disagrees with Crown counsel’s suggestion that he had very little clothing at 1400 Lepage Avenue, unit #529;
• he agrees knowing that the victim had died prior to the police arresting him;
• he also agrees that he had told Rosine that his intent was to turn himself in to the police;
• he was mindful of the possibility that the police would be looking for him;
• he rejects the suggestion that the bedroom door was partly opened.

POSITION OF THE PARTIES

Defence

106Defence’s position is that the police were unlawfully in unit #529 when the accused was arrested. This resulted in a breach of his ss. 8 and 9 Charter rights. The circumstances are such that the admission of the statement given to the police would bring the administration of justice into disrepute. Therefore, this statement should be excluded under s. 24(2) of the Charter.

107The essence of the argument is that the warrantless entry into the dwelling cannot be legally justified by the purported waiver or consent given to the police by Rosine Mucyo. The following points were raised by counsel in support of this argument:

• Rosine Mucyo’s evidence is that she did not expressly or implicitly convey the message that the police could enter; she simply turned around to bring the pizza to the living room;
• she was never asked by the police if they could come in; she would have said no if they had asked;
• the circumstances were such that the police needed to do more to ensure she understood her right to refuse entry; these circumstances include the fact that she was a witness to a stabbing involving her boyfriend; also, she was in legal jeopardy since she was harbouring an individual sought by the police for murder; the police should have told her she did not have to consent; the police were not diligent and took a chance by not letting her know;
• she didn’t know she could refuse and not surprisingly, felt intimidated; she had no experience of dealing with the police nor any knowledge of how to deal with the police; she was born in Congo where people fear the police; she is small and was faced with two (2) fairly large officers; she froze and felt intimidated;
• she could not legally consent because of the accused’s privacy interest in the unit and the fact that he had told her, at one point, not to let the police enter and to let him deal with them if they came to their home; therefore, his prior authorization was needed;
• the police deliberately chose not to announce their presence by seeking permission to enter by means of the “buzzer” located at the main entrance of the building; this amounted to a breach of their reasonable expectation of privacy which extends to the entrance, common areas and hallways.

108It is argued that the evidence establishes that the accused had a reasonable expectation of privacy in unit #529 and that this is supported by the written confirmation of Ontario Works, filed as Exhibit #6, which confirms receipt by him of his monthly cheques at that address. Therefore, the police needed his consent to enter the unit. Same logic applies to the entrance in the bedroom where he was arrested. They had no right to open the door to the bedroom.

109In the alternative, the law is clear that a Feeny Warrant is required to enter a third party’s dwelling to arrest someone who is inside. The privacy interest in such a case revolves around the arrest and search incidental thereto.

110Counsel suggests that the police’s true intent was to locate and arrest the accused. They knew that he was likely at 1400 Lepage by reason of his connection to Rosine Mucyo. The fact that they did not attend any address connected to him through court documents and chose to set up surveillance only at that address supports the suggestion that the police knew there was at least an excellent chance he would be found there.

111Therefore, the true intent of the police was to find the accused at that location. Counsel makes reference to Justice Hill’s expression in R. v. Mascoe, [2017] O.J. No. 4170, about the police wanting to do an “end-run around the Feeny requirements”. He notes that the police didn’t care whether or not Rosine Mucyo actually had the authority to allow entry.

112Counsel raises concerns of credibility and reliability based on the content, lack of details and time of preparation of Sergeants O’Brien and Benson’s notes and investigative action report. It is submitted, in fairly strong language, that the officers did not record a detailed account of their encounter of November 6th, 2016 with Rosine Mucyo and the accused. The result is that they must rely on their memory in regards to significant and highly relevant information including the words spoken and their specific location (inside or outside the unit) when Rosine Mucyo reportedly consented to their entrance in her dwelling. The suggestion is that this resulted in confusion, uncertainty and contradictions between the officers. The Court cannot rely on this evidence in support of a waiver of such an important right. The officers failed in their duty to prepare complete and accurate notes in the course of a murder investigation.

113It is argued that it wouldn’t make sense for Rosine Mucyo to invite the police into the unit having just lied to the police by telling them he wasn’t there, knowing that he was inside and would be detected. She is to be believed when she states that she didn’t consent, she was intimidated and just froze when she saw the police just outside her door. Such an impact is expected on most citizens. Her circumstances were such that the expected impact would be greater.

114The accused should be believed when he testified that he was living at that address. His explanation why he lied when questioned by the police is reasonable having regard to his concerns with Ottawa Housing.

115In regards to the remedy sought under s. 24(2) of the Charter, counsel’s position is that the circumstances warrant exclusion of the statement given to the police as its admission would bring the administration of justice into disrepute.

116The Court is asked to consider the following:

• a statement is not real evidence, inherently unreliable, conscriptive and most often excluded by the Court;
• the breach is serious:
  • the accused had a high expectation of privacy in his home;
  • the police did not act with diligence; they should have waited and ultimately obtain a Feeny Warrant;
  • the police did not ensure that Rosie Mucyo properly understood her right to refuse entry;
  • there were no exigent circumstances;
  • once they saw the accused in the bedroom, they should have turned around and seek a Feeny Warrant;
• the impact on the accused’s Charter-protected interest is significant:
  • this was his home and this attracts a very high expectation of privacy;
  • “a man’s home is his castle”;
  • he was unlawfully arrested in his home as a result of an unlawful entry by the police;
• the matter can still be adjudicated on merit:
  • while the crime alleged is serious, the police are expected to act accordingly;
  • exclusion of the statement will not end the Crown’s case; there is other Crown evidence;
  • furthermore, the accused admits that he is the one who stabbed the victim and caused his death; the issues revolve around whether he acted in self-defence and his intent;
  • “but for” the breach, it cannot be said that the police would have obtained a statement from the accused; in any event, the statement would have likely been different given the accused’s circumstances (tired, alcohol, emotional) when he gave the statement soon after his arrest.

Crown

117The Crown’s position is that the accused has not established a violation of his ss. 8 and 9 rights when he was arrested by the authorities. Alternatively, even assuming that the police conduct infringed his rights, the circumstances are such that the admission of the accused’s statement in evidence would not bring the administration justice into disrepute.

118Crown counsel’s main argument is predicated on the notion that the police action in this matter must be analyzed on the basis of the officers’ intent. Since their purpose in attending and entering unit #529 at 1400 Lepage Avenue was simply to communicate with the occupants to gather information; their conduct does not amount to a search. The evidence does not establish that this was warrantless entry in a dwelling house for the purpose of arresting an occupant. Therefore, the Feeny requirements did not come into play.

119It is argued that the evidence shows that they did not attend the said unit for the purpose of entering and arresting the accused since they just didn’t know he was there. This lack of knowledge is said to be supported by the following:

• they attended multiple other places before going to 1400 Lepage Avenue unit #529;
• they contacted area hospitals to find out if the accused had attended;
• the decision was made to discontinue the surveillance at 1400 Lepage Avenue after 5:00 p.m.;
• there is no address history linking the accused to this address;
• there was no indication that he had been seen at this address;
• Rosine Mucyo had told the officers the accused was not inside the unit;
• the police did not ask to search the unit.

120Based on an implied invitation to knock, the police lawfully attended the door to unit #529 in order to speak to the occupants. The officers were entitled to do so as any other member of the public.

121The Crown rejects the argument that the police should have proceeded to contact the occupants of unit #529 through the buzzer located at the front entrance of the building. It is argued that the accused has not met his onus of showing a reasonable expectation of privacy in the common areas and hallways of the building. Furthermore, the cases relied on by the accused stand for the proposition that the analysis is contextual and that there are no bright line creating a reasonable expectation of privacy in such areas in a building. It is also noted that the police conduct in the Ontario Court of Appeal decision in R. v. White, 2015 ONCA 508 was highly intrusive such as hiding in the stairwell to observe the occupants. This is not the case in the present matter.

122Crown counsel also dismisses defence’s arguments that the quality of the officers notes is such that it impacts on their credibility and reliability.

123The Court should be mindful that the officers’ frame of mind when they dealt and spoke to Rosine Mucyo was not to obtain a Wills type waiver to enter her home and search inside. The purpose was simply to talk to her. So that they were not documenting a waiver of a constitutional right.

124In any event, the Crown maintains that the notes were written at the first reasonable opportunity soon after the relevant events and provide sufficient details as to the interaction with Rosine Mucyo and the words spoken. Police notes serve to refresh memory and are not meant to be a verbatim account.

125The Crown’s alternative argument is that if the Court finds that same was required, Rosine Mucyo provided an informed consent when she allowed the police entry in her home. The following points are raised in support of this position:

• consent must be assessed in light of a person’s status; Rosine Mucyo was not a detainee nor a suspect; while she may have subjectively believed that she was in legal jeopardy, the fact is that the police didn’t know, at that point, that she was lying and likely harbouring a fugitive; as such, the nature of her consent must be seen in the context of what the police knew at the relevant time;
• her consent reflected what the police had asked which was to enter her home to talk to her;
• the evidence provides a factual basis for the six (6) factors articulated by the Ontario Court of Appeal in R. v. Wills in order to find a valid consent.

126The Crown submits that Rosine Mucyo and the accused are not credible and reliable witnesses.

127The points raised in regards to Rozie Mucyo include:

• her admission that she lied to the police while under oath;
• she maintains clear recollection of details favourable to her position and yet states that she was highly intoxicated and struggled to remember;
• she is internally inconsistent;
• portions of her evidence do not make sense;
• she was hesitant and non-responsive during her testimony.

128As for the accused:

• he had lied to the Court on his actual address when sentenced on October 21st, 2016;
• he misled Ontario Works;
• he is contradicted by the statement given to the police on November 6th, 2016 when he stated that he was not residing at unit #529;
• there are internal contradictions in his evidence (i.e. his evidence that he had decided to come clean with O.W. and yet telling O.W. that he was just sleeping on the couch).

129The end result is that the police entered unit #529 on a valid consent given by Rosine Mucyo and that the accused was in plain view of the officers. Furthermore, the accused’s reasonable expectation privacy, if any, was minimal.

130Even assuming that the police breached the accused’s rights under ss. 8 and 9 of the Charter, the circumstances do not warrant the exclusion of the impugned statement.

131The Crown raises the following points in regards to s. 24(2):

• The breach is not serious
  • the police acted in good faith;
  • this is not an end-run of the Feeny requirements;
  • the officers did not have reasonable grounds to believe the accused was inside the unit;
  • there is no question that, at a minimum, they went to the unit to speak to the occupants as part of their investigation;
  • the accused was in plain view of the police who were lawfully in the unit; they were not required to simply exit;
  • there was no search;
  • the breach, if any, is barely made out.
• The impact of the breach is minimal:
  • the accused’s reasonable expectation of privacy in the unit was low;
  • in any event, of his own admission, the accused’s intent was to surrender to the police;
  • his stated intent was to speak to the police and provide his side of the story; the statement would have been obtained by the police notwithstanding his arrest inside unit #529; thus, there is a limited nexus between the breach and the evidence.
• Society has an interest in having this matter adjudicated on merit:
  • the impugned statement is a confession against penal interest and as such highly reliable;
  • defence counsel has conceded that the statement was freely and voluntarily given to the police;
  • it is relevant as it provides details of how the victim was stabbed and the accused’s state of mind when he did so;
  • it will assist the Court in its truth seeking function.

The Law

132In deciding this matter, the Court is guided by the following principles:

Warrantless Entry in Dwelling House

133The question of the warrantless entry in a dwelling house resulting in the accused’s arrest requires the Court to consider a number of legal and constitutional principles.

134Section 8 of the Charter is at the forefront of this application. It provides as follows:

S. 8: Everyone has the right to be secure against unreasonable search or seizure.

135The nature, purpose and essence of s.8 can be summarized as follows:

• it expresses one of the core values of our society, namely respect for personal privacy and autonomy;
• it is said to have evolved into a shield against unjustified state intrusion on personal privacy;
• its purpose is to protect an individual’s reasonable expectation of privacy;
• it is a personal right which protects people and not places;
• it comes into play where a person’s reasonable expectations of privacy are diminished by an investigating technique.

136Some of the pivotal cases which have served to explain s.8 include:

• Hunter v. Southam, [1984] 2 S.C.R. 145
• R. v. Silveira, [1995] 1 S.C.R. 89
• R. v. Evans, [1996] 1 S.C.R. 248
• R. v. Kang-Brown, 2008 SCC 18
• R. v. Tessling, 2004 SCC 67
• R. v. Edwards, [1996] 1 S.C.R. 128

137There is a large body of cases dealing with s. 8 and the reasonable expectation of privacy in dwelling homes. A great number of principles emerge from this jurisprudence. I find the following principles to be relevant to the present matter:

• it is well established that a dwelling house attracts a high expectation of privacy;

• the Supreme Court of Canada in R. v. Feeney, [1997] 2 S.C.R. 13 made it clear that, as a general rule, prior judicial authorization is required in order for the police to enter a dwelling house to make an arrest;

• Parliament’s response to Feeney was ss. 529.1 to 529.3 of the Criminal Code, R.S.C., 1985, c. C-46 which sets out the general rule that a warrant is required to enter a dwelling to make an arrest;

• both Feeney and s. 529 refer to exigent circumstances as allowing such entry without a warrant; these are not relevant in this matter as the Crown is not relying on same;

• the need for a warrant is not restricted to the dwelling of the person who is arrested; the Ontario Court of Appeal stated the following in R. v. Adams:

  “…the Feeny Warrant requirement is not limited to arrests in a suspect’s dwelling house; there is nothing in s. 529 or in Feeny to suggest that a warrant is not required for an arrest in the dwelling house of a third party…”

  The Court explained that the person’s reasonable expectation of privacy is grounded on his or her search incident to arrest. The Court of Appeal stated the following:

  “…it is the appellant’s own s. 8 right which was engaged when the police effected the search of his person incidental to his arrest…”

• The Court must also be mindful of the principles which emerge from the fact that police officers are tasked with investigating and solving crimes. Quite often, this can’t be done unless they attend homes to talk to people.

  As stated by the Ontario Court of Appeal in R. v. Esposito:

  “A police officer, when he is endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks that useful information can be obtained”.

  A person’s right to refuse to answer does not detract from the principle that a police office is at liberty to ask questions in the execution of his or her lawful duties.

• The attendance of a police officer to a dwelling house is governed in part by the “implied invitation to knock” principle as explained in R. v. Evans, [1996] 1 S.C.R. 248; this provides that the police, as does any member of the public, have a right to approach the front door of a residence to knock for the sole purpose of communicating with the occupants. This implied licence ends at the door of the dwelling; it does not include authority to effect a warrantless entry to arrest.

  The police officer’s purpose or intention in attending a dwelling is a significant consideration.

  I take this from paras. 25 and 26 of the Ontario Court of Appeal’s decision in R. v. Reid, [2016] O.J. No. 6471:

  “25. In my view, the facts do not support Mr. Reid’s assertion that Sergeant Dey entered the unit to arrest him. Rather, and as the trial judge found, Sergeant Dey was investigating…various possible criminal acts. As such, this case is distinguishable from those cases recognizing that a Feeny Warrant is required where police enter a dwelling for purposes of arresting an occupant.

  26. Because I could reject Mr. Reid’s starting premise that Sergeant Dey needed a Feeny Warrant before entering the apartment, the balance of his argument that his detention and arrest were illegal because they flowed from the officer’s illegal entry into the apartment, cannot stand”.

• Much of the debate in this Motion revolves around the concept of consent. The essence of the Crown’s position is that the police had obtained consent of the accused’s girlfriend to enter her unit. Consent is usually understood as follows:

  • consent must be one that is informed and given at a time when the individual is fully aware of his or her rights.
  • R. v. Mellenthin, [1992] 3 S.C.R. 615
  • when the police rely on the consent of the individual as their authority care must be taken to ensure that the consent was real; consent is not a failure to object or resist;
  • the onus is on the Crown to demonstrate that the accused decided to relinquish his or her constitutional right with full knowledge of the right and the appreciation of the consequence of waiving that right;
  • knowledge of the right to refuse is central to the concept of waiver;
  • para. 69 – the Crown must establish the following on a balance of probabilities:
    • there was consent, express or implied;
    • the giver of the consent had the authority to give the consent;
    • consent was voluntary which means not the product of police oppression, pressure, coercion or other conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
    • the giver of the consent was aware of the nature of the police conduct to which he was being asked to consent;
    • the giver was aware of the right to refuse to permit the conduct;
    • the giver was aware of the potential consequences of giving the consent.
  • R. v. Wills

  I am also mindful that while there is no requirement that a non-detained subject be affirmatively advised of his or her right to refuse a consent sought by police, as explained by the Ontario Court of Appeal in R. v. Blackstock, failure to do so may result in the Crown being unable to establish effective consent on a balance of probabilities.

138A warrantless search is presumed unreasonable under s. 8 and the burden of proof then shifts to the Crown to establish, on a balance of probabilities, that it was reasonable. As stated in R. v. Collins, [1987] 1 S.C.R. 265, the warrantless search will be reasonable if:

• it is authorized by law;
• the law is reasonable;
• the manner in which the search was conducted was reasonable.

139The accused also relies on s. 9 of the Charter for the proposition that the warrantless entry followed by his arrest therein amounts to an arbitrary detention.

140Section 9 of the Charter provides that “Everyone has the right not to be arbitrarily detained or imprisoned:. In R. v. Grant, 2009 SCC 32, the Supreme Court stated the following”

“20. The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference…”liberty”, for Charter purposes, is not “restricted to mere freedom from physical restraint”, but encompasses a broader entitlement “to make decision of fundamental importance free from state interference…Thus, s. 9 guards not only against unjustified state intrusions upon physical liberties, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification”.

Exclusion of evidence under s. 24(2) of the Charter

141Dealing now with s. 24(2) of the Charter and the exclusion of evidence, if the Court finds that evidence was obtained in a manner that infringed on a right or freedom under the Charter, the Court shall exclude the evidence so obtained if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

142The burden on this issue rests on the accused person who seeks exclusion of evidence. This comes from the Supreme Court of Canada decision in R. v. Duarte, [1990] 1 S.C.R. 30 and reinforced by the Ontario Court of Appeal in R. v. Sandhu, 2011 ONCA 124. Justice Simmons stated the following at para. 42:

“42. Bartle does not stand for the position that the Crown bears the burden of persuasion under p. 24(2). Rather…it is the applicant for exclusion under s. 24(2) who must ultimately satisfy the Court on a balance of probabilities that the admission of the evidence could bring the administration of justice into disrepute”.

143The proper analytical framework was re-visited by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.

144I note the following:

• the measure under 24(2) must be understood in the long-term sense of maintaining the integrity of and public confidence in the justice system;
• the inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute;
• the fact that a Charter breach was found, means that damage has already been done to the administration of justice; the Court should avoid further damage by admitting the evidence;
• the Court should assess and balance the following considerations:
  • (i) the seriousness of the Charter-infringed state conduct:
    • the concern is that admission of such evidence may send the message that the Courts condone serious state-misconduct;
    • the more severe and deliberate the state conduct that led to the breach, the greater the need to dissociate from the conduct;
    • the state conduct resulting in breaches varies in seriousness;
    • more serious conducts include the following:
      • willful or reckless disregard of Charter rights;
      • flagrant disregard;
      • part of pattern of abuse.
    • the following may temper the seriousness:
      • inadvertence
      • good faith
      • the need to preserve evidence
      • exigent circumstances
      • minor violations;
  • (ii) the impact of the breach on the Charter-protected interests of the accused
    • the Court must evaluate the extent to which the breach actually undermined the interests protected by the right infringed;
    • looks at the impact of the breach on the Charter-protected interests at play;
    • the more serious the impact, the greater the risks that admission may signal to the public that the Charter rights are of little actual avail to the citizens;
    • impact may range from fleeting and technical to profoundly intrusive;
    • examples of rights are:
      • s. 8: the right to privacy;
      • s.7 – the right to silence.
  • (iii) the third inquiry is Society’s interest in an adjudication on the merits
    • Society generally expects that a criminal allegation will be adjudicated on its merits;
    • the question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion;
    • this inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law;
    • must consider the negative impact of failing to admit the evidence;
    • the Court may consider the following:
      • reliability of the evidence;
      • importance of the evidence for the Crown’s case;
      • seriousness of the alleged offence is said to cut both ways – exclusion may impact on the short-term but the focus is on the long-term repute;
    • the heightened interest in seeing a determination on the merits where the offence is serious must be balanced against the vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

145In the end, the Court’s tasks under a s. 24(2) analysis is to make each inquiry and determined whether, on balance, the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute.

Discussion

146The Court finds that the accused’s rights under ss. 8 and 9 of the Charter were not breached by the police. He has not established, on a balance of probabilities, that the entry in unit #529 translates to an unreasonable search and seizure contrary to s. 8 of the Charter. Nor did his subsequent arrest for murder therein amount to a s. 9 arbitrary detention.

147In any event, even if the Court had found the breaches alleged by the accused, the evidence would have nonetheless been admitted as he has not established, on a balance of probabilities, that the admission of the impugned statement would bring the administration of justice into disrepute.

148In deciding this matter, the Court is very mindful of the sanctity of one’s home and the high expectation of privacy attached to same. Furthermore, while the evidence of Rosine Mucyo and the accused raise significant credibility and reliability concerns, the Court finds that the accused had a reasonable expectation of privacy in unit #529. As such, he was entitled to constitutional protection against unlawful police entry in his dwelling.

149The defence evidence in this pre-trial application establishes the accused’s connection to unit #529 and that a reasonable expectation of privacy would result therefrom.

150Assuming the Court is wrong in making this finding, the Ontario Court of appeal’s decision in R. v. Adams, makes it such that the accused’s privacy interest in not being arrested in a dwelling without lawful authority to enter, would apply notwithstanding the absence of a reasonable expectation of privacy therein.

151So that the Court’s rejection of the Charter claim is not based on a lack of standing and/or the absence of a privacy interest in unit #529 for the accused.

152Paramount to the Court’s ruling is the finding that Sergeants O’Brien and Benson did not unlawfully enter the said unit with the intent to arrest the accused. The Court rejects the suggestion that they acted so as to circumvent or do an “end-run” to the Feeny requirements. The officers are found to have been lawfully in unit #529 through Rosine Mucyo’s invitation to enter and entitled to arrest the accused therein once found in plain view.

153The police were investigating a recent homicide. The suspect had been identified by witnesses through a photo line-up but his location remained unknown. Sergeants O’Brien and Benson were tasked with locating and arresting the suspect. Their evidence that they did not know his whereabouts is found to be credible when considered in light of the various steps taken by them to find the accused prior to attending unit #529, namely:

• they contacted area hospitals;
• they attended two (2) apartments located at 1240 Donald Street; and
• they attended unit #412 at 1400 Lepage Avenue.

154It is also supported by the following:

• there was no address history in recent Court records connecting him to this address;
• the police had decided to terminate surveillance of 1400 Lepage at 5:00 p.m.;
• they had not been directed to attend unit #529;
• the two (2) Sergeants are very experienced officers and well aware of the Feeny requirements; the circumstances were such that there were no reasonable and probable grounds to believe that the accused was inside unit #529; a possibility or good chance that he was there does not meet the required threshold for the issuance of a warrant under s. 529.1 of the Criminal Code.

155The reality is that the officers could not pursue the investigation and try to locate the accused without asking questions of persons having useful information. A police officer is at liberty to ask questions in the execution of his or her duty.

156It was certainly reasonable for the officers to believe that Rosine Mucyo was able to provide useful information as to the accused’s whereabouts and the earlier stabbing incident. She was known to be the accused’s girlfriend and she was present at the relevant time.

157The officers are found to have been entitled, as any other member of the public, to attend the door to unit #529 in order to communicate with the occupants. This entitlement is grounded on the “implied invitation to knock” principle. The Court’s view is that the officers were lawfully standing next ot the pizza delivery person at the door of unit #529 wanting to speak to Rosine Mucyo.

158Furthermore, the Court rejects the submission that the officers were required to seek permission to enter through the buzzer at the main entrance. This is based on the following considerations:

• as explained by the Ontario Court of Appeal in R. v. White, 2015 ONCA 508, “…reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers…it is not an all or nothing choice…”
• 1400 Lepage Avenue is understood to be a relatively large apartment complex with many units; the ability and expectation of controlling entry is lower in such a residential urban setting;
• this apartment complex is part of the Ottawa Housing Program and the police are, according to the evidence, given authority to enter the building under the Trespass to Property Act, R.S.O. 1990, c. T.21; it is not reasonable to expect that an occupant and/or tenant would have the authority to preclude the police from entering the building;
• while the accused was found to have a reasonable expectation of privacy in unit #529, his legal status within this complex is certainly questionable; his name was not on the lease and his presence had not been disclosed to the Housing authorities by Rosine Mucyo; such a tenuous status in unit #529 would not reasonably translate into an interest in the common areas so as to be able to exclude others from entering the complex;
• the officers did not enter the building for the purpose of searching the common areas and hallways; their purpose was to walk to the resident’s door in order to speak to the occupant; they did not search the said areas nor take unusual advantage of their presence in the hallways;
• they were already inside the building to speak to the occupants in a separate unit.

159The Court finds that Sergeants O’Brien and Benson did not exceed the authority given under the “implied invitation to knock” principle by affecting a warrantless entry to arrest the accused.

160The evidence establishes, at least on the balance of probabilities, that:

• the officers’ purpose when they entered unit #529 was not to search the premises and arrest the accused;
• their purpose was to get information from Rosine Mucyo in regards to the accused’s whereabouts and the events she had witnessed earlier at Piper’s Bar and Grill;
• the officers sought Rosine Mucyo’s permission prior to entering unit #529;
• Rosine Mucyo:
  • knew she was dealing with police officers;
  • understood why they were at her door;
  • understood that the officers wanted to enter her dwelling to speak to her about the accused and the events;
  • consented to their coming in the unit by word and gestures; and
  • had the lawful authority to do so.

161The Court’s view is that the officers’ evidence as to the circumstances of their entry in unit #529 is more probable, credible and reliable than the evidence of Rosine Mucyo and the accused.

162The Court is mindful of an has considered defence counsel’s strong criticism as to the completeness and accuracy of the officers’ notes. Any deficiencies in these notes are found not to be to the extent suggested by counsel and do not detract from the officers’ credibility and reliability. The notes are sufficiently detailed and consistent on the issue of Rosine Mucyo having invited them in her dwelling.

163The Court is certainly not diminishing the importance of accurate, detailed and comprehensive police notes prepared as soon as practicable after an investigation. As stated by the Ontario Court of Appeal in R. v. Thompson, 2015 ONCA 801 at para. 58:

“…the quality of the record-keeping and the adequacy of an officer’s notes are important…a police officer’s notes are more than an aide memoire and a potential source of fruitful cross-examination; they are a source against which to check the Crown’s evidence.”

164The Court’s view is that Sergeants O’Brien and Benson’s notes in this matter do not fall below the standard expected from the police. As a whole, they provided the Court with a credible and reliable account of the relevant events.

165The deficiencies raised by counsel are a far cry from the facts Justice Hill was dealing with in R. v. Mascoe, [2017] O.J. No. 4170 where he found the following:

• both officers had misled the Court as to when they made their notes;
• notes were done some 6 to 7 hours after the events;
• the absence of recorded times;
• there were significant contradictions between the officers’ evidence;
• the presentation and content of their evidence revealed reconstructive gap-filing and questionable present-day justification;
• the altogether unsatisfactory content and presentation of the police witnesses’ evidence in this trial.

166The circumstances were such that the officers’ intent when they spoke to Rosine Mucyo was not to obtain a Wills-type waiver to enter and search her home. The permission sought was to speak to her in the course of a police investigation. She was not a suspect. Therefore, the officers were not, at the time in light of what they knew, documenting the waiver of a constitutional right which would lead to finding the accused. Their purpose was to talk to her.

167The purpose of the officers is also important in assessing the words spoken to Rosine Mucyo in order to gain entry. These cannot be looked at in a vacuum. Obviously, more is required if the intent is to search the dwelling or if Rosine Mucyo had been a suspect and known to be in legal jeopardy at the time. As stated in the Ontario Court of Appeal in R. v. White, 2015 ONCA 508, at para. 50:

“50…The reasonable expectation of privacy is a concept which protects those interests that courts think ought to be protected having regard to the interests at stake in particular circumstance…”

168The Court is also guided in its finding that Rosine Mucyo’s invitation was an effective waiver allowing police entry for the stated purpose by the following words of the Ontario Court of Appeal in R. v. Simon, 2008 ONCA 578, at para. 49:

“49. The quality of a purported s. 8 waiver must be commensurate with the importance of the right being relinquished. Courts will be slow to infer a waiver, particularly where the individual who is said to have waived his or her s. 8 rights is detained and is the target of a criminal investigation”.

169As already noted, the version of events testified to by Sergeants O’Brien and Benson is found to be more probable, credible and reliable than the one provided by Rosine Mucyo and the accused.

170The following concerns are noted in regard to Rosine Mucyo’s credibility and reliability:

• her testimony is fraught with statements denoting much uncertainty:

  • there are things she can remember and others no;
  • she was drunk the afternoon the police went to her home;
  • she was intoxicated, nervous and intimidated; there were many things in her mind;
  • she doesn’t remember what she told the police in her sworn statement because she was still intoxicated;
  • she stated in cross-examination that she was remembering more and more as she was testifying.

• her testimony, as a whole, is very suggestive of selective memory; she is clear, certain and adamant on facts which are favourable to the accused in this Charter application:

  • the police never asked her permission to enter;
  • she didn’t say or do anything to communicate such invitation;
  • the door to the bedroom was closed and the accused was sitting on a chair in the corner;
  • she states having provided the police with a detailed account of what happened in front of Piper’s.

• there are a number of inconsistencies in her evidence:

  • she told the police in her November 15, 2016 sworn statement that the accused was not residing with her;
  • whether the accused had been living with her for 5 to 6 months or 2 months;
  • in examination-in-chief, she stated that she didn’t know the victim had died prior to the police attending her home; she later stated in cross-examination that she knew; her explanation was that she didn’t know whether her friend Hibo Osmond had told her the truth.

• it is concerning that some of the inconsistencies stem from sworn evidence;

• portions of her evidence are, at a minimum, unreasonable:

  • on the one hand she states that she didn’t know she could so say no to the police entering her home and then explains that she was never asked and if she had been asked, she would have said no;
  • her suggestion that she was afraid and intimidated by the police and yet lied to them when asked if the accused was there; her explanation is that she didn’t think she would get in trouble by lying to the police since the accused had told her he would go see the police the following day;
  • her suggestion that she told the police in her sworn statement that she lived alone because she was intoxicated;
  • her evidence that she didn’t speak to the pizza delivery guy nor the police and just took the pizza and turned around and walked towards the living room while being followed by the police officers;
  • her suggestion that she wasn’t sure whether the victim had died because Hibo may have lied to her;
  • her evidence that she didn’t know the police were looking for them is very unlikely in the circumstances (i.e. Hibo had spoken to them, the accused’s family had contacted him and found out, the accused had researched the internet).

• The Court rejects her testimony that she required the accused’s permission prior to allowing anyone to enter her apartment:

  • she was the only tenant named in the lease with Ottawa Housing;
  • the accused wasn’t paying any rent;
  • she had been residing there since 2015;
  • at most he had been living there for 5 to 6 months.

• it is also troubling to the Court that the accused would admit to having told Rosine to lie to the police; in his November 6, 2016 statement to the police, the accused stated the following at para. 68 of the transcript:

  “…Even Rosine, like I told you, everything she told you, that’s a lie…I told her to say that”.

171The concerns with the accused’s credibility and reliability include the following:

• he acknowledges having diffulcty remembering the relevant events; when asked why he doesn’t remember details he states “…I think it is time…it’s been 2 years”;

• he later states that “he doesn’t remember much of what happened that day;

• he describes his condition at the time as being under the influence of alcohol and marijuana;

• he admits having lied to the police in his November 6, 2016 statement when he told them that he had no fixed address;

• he admits having lied to the Court when he asked to change his address in a bail variation application; he had asked a friend if he could falsely use his Laurier Street address so as not to disturb his girlfriend’s housing eligibility;

• on October 21, 2016, his home address was noted as 321-2025 Othello Avenue, Ottawa, in a probation order signed by him;

• while he states that both he and Rosine Mucyo had decided to “face the consequences” and disclose to Ontario Works that they were living together in unit #529, he would have lied to Ontario Works by telling them that he slept on the couch;

• as earlier noted, in his November 6, 2016 statement, the accused states that he told Rosine Mucyo to lie. He stated the following:

  “…Even Rosine, like I told you, everything she told you, that’s a lie…I told her to say that”.

Exclusion of evidence under s. 24(2) of the Charter

172Assuming the Court is wrong in finding that the accused’s rights were not breached by the police when they entered unit #529 and subsequently arrested him, the Court would not have otherwise excluded the impugned statement under s. 24(2) of the Charter.

173The accused has not established, on a balance of probabilities, that the admission of this statement would bring the administration of justice into disrepute. Rather, the Court is of the view that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that admission would not bring the administration of justice into disrepute.

174The reasonable person would assess and balance the following:

• (i) the seriousness of the Charter-infringed state conduct
  • the violation, if any, is seen as minor in nature;
  • the officers acted in good faith;
  • it cannot be seen as police conduct amounting to wilful, flagrant and/or reckless disregard for the accused’s privacy in unit #529;
  • the police had no knowledge that the accused was inside the unit; Rosine Mucyo had told the officers that he wasn’t there;
  • other than the accused’s relationship to Rosine Mucyo, there was no basis to connect him to this unit;
  • on balance, the evidence shows that the police entered the unit to speak to Rosine Mucyo and not to search therein for evidence and/or the accused;
  • the officers subjectively believed that Rosine Mucyo had invited them inside the unit;
  • the nature of the police conduct is such that it is not severe or deliberate so that exclusion of the statement is not required to avoid a message that the Court condones serious state-misconduct;
  • the nature of the breach, if any, is found to favour admission of the evidence.
• (ii) Impact on the Charter-protected interests of the accused
  • there is no question that a breach of one’s reasonable expectation of privacy in a dwelling home is serious;
  • there is a high expectation of privacy in one’s home;
  • if in fact the police unlawfully entered unit #529 then the accused’s protected privacy interests were undermined; he had the constitutional right to remain in his home shielded from unlawfull police entry;
  • this part of the inquiry favours exclusion of the statement.
• (iii) Society’s interest in an adjudication on the merits
  • the accused is charged with a very serious and violent offence which resulted in someone’s death;
  • on the other hand, if convicted, he is looking at significant punishment;
  • the evidence sought to be excluded is a statement given by the accused to the police; while initially challenged, the defence conceded that the statement was voluntary which means that it was freely given without promises or threats, the product of an operating mind and the knowledge of its use in Court by the prosecution; the statement is in part inculpatory and provides insight as to the accused’s state of mind at the relevant time; it is therefore relevant;
  • it is also seen as reliable as being a statement against penal interest;
  • while exclusion would not “gut the prosecution”, it would deprive the prosecution of relevant and reliable evidence;
  • it is also the result of the accused’s strong will of wanting to provide the police with his version of events;
  • this line of inquiry is found to favour admission of the statement.

175Therefore, the Court would not have excluded the statement if it had found a breach.

Conclusion

176The accused’s Charter application is dismissed and the statement given by him to the police on November 6th, 2016 is admissible at the Crown’s behest.

The Honourable Justice R. Laliberte 2018/12/18