COURT FILE NO.: CRIMJ 1216-18
DATE: 2019 05 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHANE TROUGHT
Defendant
C. Coughlin, for the Crown
Joel Hechter, for the Defendant
HEARD: April 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 18, 23, 24 and 25, 2019.
ENDORSEMENT ON PRE-TRIAL CHARTER APPLICATIONS
RICCHETTI, J.:
INDEX
THE CHARGES............................................................................................................................. 1
THE DEFENCE APPLICATIONS............................................................................................... 1
THE CROWN APPLICATION..................................................................................................... 2
THE VOIR DIRE............................................................................................................................. 2
WITNESSES WHO TESTIFIED................................................................................................... 2
FINDINGS OF FACT.................................................................................................................... 3
APRIL 15, 2017.......................................................................................................................... 3
APRIL 19, 2017.......................................................................................................................... 4
APRIL 20, 2017.......................................................................................................................... 4
EVENTS PRIOR TO MAY 2, 2017.......................................................................................... 5
UNIT 1008.................................................................................................................................. 5
MAY 2, 2017.............................................................................................................................. 7
Mr. Trought’s Arrest................................................................................................................ 7
Transporting Mr. Trought to the Police Station..................................................................... 10
Mr. Trought's Booking.......................................................................................................... 11
The PRP Canine Unit............................................................................................................ 13
The Discovery of the Firearm and Drugs.............................................................................. 14
The Interviews....................................................................................................................... 15
The Masta Lounge Interview............................................................................................ 15
The Second Interview and Second Call to Duty Counsel................................................ 16
The Search Warrants.............................................................................................................. 22
MAY 3, 2017............................................................................................................................ 22
The ITO................................................................................................................................. 22
The Criminal Code ITO.................................................................................................... 22
The CDSA ITO.................................................................................................................. 23
The Issued Warrants.......................................................................................................... 23
The Execution of the Search Warrants of the Unit............................................................... 23
MAY 4, 2017............................................................................................................................ 24
The Locker Search Warrant................................................................................................... 25
The Storage Locker ITO........................................................................................................ 25
MAY 5, 2017............................................................................................................................ 25
Execution of the Locker Search Warrant.............................................................................. 26
THE LAW..................................................................................................................................... 26
The Charter............................................................................................................................... 26
Right to be Informed on Detention (s. 10(a))........................................................................... 27
Rights to Counsel and Caution (s. 10(b)).................................................................................. 28
Reasonable Expectation of Privacy........................................................................................... 29
THE ANALYSIS.......................................................................................................................... 30
THE ALLEGED PRP COVER-UP AND PERJURY............................................................. 30
The Firearm/Drug Investigation was a Murder Investigation............................................... 31
There was a search of the Unit on May 2, 2017.................................................................... 32
The Notes.............................................................................................................................. 33
REJECTED FACTUAL FINDINGS URGED BY THE DEFENCE..................................... 34
Policy Regarding Video/Occupant Information/Fob Information........................................ 34
Dual Investigation when the PRP officer's entered the Unit on May 2, 2017...................... 35
The Signature Page................................................................................................................ 35
The PRP ITO Officer Meeting with the Informing Officers................................................ 36
The Toilet Flush..................................................................................................................... 36
The Cell Sheet....................................................................................................................... 36
ALLEGED SECTION 10 CHARTER BREACHES............................................................... 37
Alleged breach - at the front door to the Unit when Mr. Trought was arrested................... 37
Failure to produce a copy of the Toronto warrant............................................................. 37
Failure to tell Mr. Trought the underlying charges under the Toronto warrant................. 39
Failure to provide Mr. Trought with RTC......................................................................... 43
Alleged breach - to provide RTC/explanation prior to re-entry into the Unit....................... 45
Alleged breach – to Question Mr. Trought Inside the Unit.................................................. 47
Alleged breach – to provide a RTC by PRP Transport Officer............................................ 48
Alleged breach – to detail the Charges in the Booking Room.............................................. 50
Alleged breach - to Provide Further RTC after the Discovery of the Firearm/Drugs........... 52
Alleged breach - to Disclose Interview regarding Masta Lounge......................................... 53
Alleged breach - to tell the Second Duty Counsel all the Charges....................................... 55
Alleged breach - to Hold Off Questioning regarding the Masta Lounge interview............. 58
Tainting of Second Interview................................................................................................ 58
Alleged breach - to Facilitate Counsel of Choice.................................................................. 60
THE ALLEGED SECTION 8 CHARTER BREACHES........................................................ 67
Alleged Breach - Obtaining Video from the Taxi................................................................. 67
Alleged Breach -Obtaining Video, Tenant Information and Fob Information..................... 69
Alleged Breach- Electronic Database Searches/Inquiries of Toronto Police......................... 73
Alleged Breach -Inquiry of Mr. Trought’s Possible Employer.............................................. 74
Alleged Breach -The Names and Licence Plates of Visitors to Erin Centre......................... 74
Alleged Breach -The police being given access into Mr. Trought’s Building....................... 75
Alleged Breach - the Police Listening and Smelling at Mr. Trought’s Door........................ 80
Alleged Breach - the Entry of the PRP Officers to Retrieve Mr. Trought’s Jacket.............. 82
There was no valid, informed consent to the PRP officers’ entry into the Unit............... 82
Misleading statement that PRP had no interest in the Unit.............................................. 84
The PRP officer going onto the Unit’s balcony................................................................ 85
The Alleged Search of the Unit......................................................................................... 86
Alleged Breach - The Re-Entry into the Unit by the PRP Canine Officer........................... 86
Search of Unit 1009’s Balcony during this Re-entry........................................................ 86
Alleged Breach - The Criminal Code Unit warrant (“CC warrant”)..................................... 87
Alleged Breach - the CDSA Unit Warrant........................................................................... 88
Facial Validity................................................................................................................... 88
Alleged contemptuous attitude of PRP officers............................................................... 90
Alleged Breach - the CDSA Locker Warrant....................................................................... 91
Facial validity.................................................................................................................... 91
Sub-facial validity............................................................................................................. 92
Personal Knowledge.......................................................................................................... 94
Erroneous Date.................................................................................................................. 95
Other Errors....................................................................................................................... 95
What must be excised?...................................................................................................... 96
Execution........................................................................................................................... 97
SECTION 24(1) - THE ABUSE OF PROCESS...................................................................... 98
The Law................................................................................................................................. 98
Application to this Case...................................................................................................... 100
SECTION 24(2) – EXCLUSION OF EVIDENCE............................................................... 103
Were the Firearm/Drugs Obtained in a Manner that Infringed a Charter right?................. 103
Causal Link...................................................................................................................... 106
Temporal Link................................................................................................................. 106
Contextual Link............................................................................................................... 106
The Admissibility of the Observation of the Empty Firearm Case..................................... 107
The Individual Charter Breaches......................................................................................... 108
The PRP officer's observations during the arrest while on the Unit balcony.................. 108
Asking Mr. Trought “where’s the gun”........................................................................... 108
The PRP canine officer’s observations from the balcony of the Unit............................. 108
The Criminal Code Unit Warrant Search........................................................................ 109
The CDSA Unit Warrant Search...................................................................................... 109
The Cumulative Effect of the Charter Breaches................................................................. 110
Admissibility of the Empty Firearm Case as Part of the CDSA Search............................. 111
CONCLUSION.......................................................................................................................... 112
THE CHARGES
[1] Mr. Trought is charged with the following offences:
a) On May 2, 2017, possession of loaded restricted firearm: s. 95(1) Criminal Code;
b) On May 2, 2017, possession of loaded firearm without a licence: s. 92(1) Criminal Code;
c) On May 2, 2017, possession of firearm that had been altered: s. 108(2)(a) Criminal Code;
d) On May 2, 2017, possession of firearm when prohibited under s. 109: s. 117.01(1) Criminal Code; and
e) On May 2, 2017, possession for the purpose of trafficking to wit: cocaine: s. 5(2) CDSA.
THE DEFENCE APPLICATIONS
[2] The Defence alleges that Mr. Trought’s s.7 Charter rights were violated as a result of the Peel Regional Police’s (“PRP”) abuse of process.
[3] The Defence alleges that Mr. Trought's s. 8 Charter rights were violated, namely, that the PRP conducted:
a) Unlawful searches on Mr. Trought's residence; and
b) Unlawful searches on a storage unit connected to Mr. Trought's residence;
[4] The Defence alleges that Mr. Trought's s. 10 Charter rights were violated, namely, that the PRP failed to properly provide Mr. Trought his rights to counsel and caution.
[5] The Defence seeks:
a) A stay of proceedings for abuse of process on the basis that the PRP engaged in a pattern of abuse, disregard of Charter rights, a cover-up and perjury; and
b) Alternatively, the exclusion of all evidence collected by the PRP throughout the investigation into these charges.
THE CROWN APPLICATION
[6] The Defence concedes that Mr. Trought's statements to the PRP, in the two interviews described below, were voluntary.
THE VOIR DIRE
[7] The parties agreed to proceed with all pre-trial applications at the same time with all evidence applying to all pre-trial applications.
WITNESSES WHO TESTIFIED
[8] The following witnesses testified on the combined voir dire:
a. Allyson Ingham (Property Manager at the Erin Centre Condominium Complex);
b. Peter Bederka (lawyer who provided duty counsel advice to Mr. Trought);
c. Jim Murphy (lawyer who provided duty counsel advice to Mr. Trought);
d. Officer Matthew Page (arresting officer, search officer);
e. Officer Jason Dennis (arresting officer, search officer);
f. Officer David Roden (investigation of Mr. Trought);
g. Sgt. Joe Ciftci (supervisor who discovered items on Unit 1009 balcony);
h. Det. Mike Cook (officer-in-charge (“OIC”) in the Buchner homicide investigation, search officer of storage locker);
i. Officer Jeff Landry (search officer);
j. Officer Jonathon Nowak (canine officer);
k. Officer Lucas Lovell ( Information to Obtain (“ITO”) affiant);
l. Officer David Salerno (transport officer);
m. Officer Edin Hasanbasic (cells officer); and
n. Staff Sgt. Ryan Berrigan (supervising cells officer).
[9] Counsel agreed on certain facts during the course of the voir dire.
[10] Mr. Trought did not testify at the voir dire. As a result, when the Defence makes submissions as to what Mr. Trought understood, there is no direct evidence from Mr. Trought on such matters. For example, when Defence counsel submits that Mr. Trought understood that video, fob or other tenant information would not be disclosed by the condominium security staff to the PRP without judicial authorization, there is no evidence regarding Mr. Trought’s knowledge or subjective understanding of this.
FINDINGS OF FACT
APRIL 15, 2017
[11] On April 15, 2017, there was a physical altercation at the Masta Lounge in Brampton. Shortly after the altercation, four males involved in the altercation left Masta Lounge in a taxi. After the four males had left, there was a shooting in the Masta Lounge’s parking lot. Jordon Buchner was killed.
[12] The PRP began an investigation into the Buchner homicide.
[13] PRP was satisfied that the four males were not involved in the Buchner homicide. Throughout the PRP’s dealings with Mr. Trought in this case, the PRP’s belief that Mr. Trought had no involvement in the Buchner homicide did not change. The PRP believed the four males might have material information to assist the Buchner investigation.
[14] Utilizing the video surveillance at the Masta Lounge, the PRP ascertained the taxi used by the four males. Once located, the PRP obtained video of the interior of the taxi cab during the ride and the destination of the four males.
[15] The destination was the Erin Centre condominium complex (“Erin Centre”).
APRIL 19, 2017
[16] On April 19, 2017, a PRP officer went to the Erin Centre to investigate the identity of the four males in the taxi.
[17] A PRP officer spoke to a security guard at the vehicular gatehouse to the Erin Centre. The PRP officer explained that police were looking for witnesses to the Masta Lounge shooting and were seeking information regarding the four males dropped off at the Erin Centre just after midnight on April 15, 2017.
[18] The PRP officer showed the security guard the video images from inside the taxi. That security guard did not recognize any of the four males.
[19] The security guard told the PRP officer that there were video cameras in public and common areas, such as the entranceways and elevators, in the Erin Centre. The PRP officer asked the security guard for the video from the security cameras between 1 a.m. and 5 a.m. on April 15, 2017. The security guard told the PRP officer he would provide the requested video on a flash drive the next day.
APRIL 20, 2017
[20] The next day, at approximately 11 a.m., the PRP officer returned and spoke to a security supervisor, Antonio Perrera. Mr. Perrera confirmed he had the flash drive. He showed the PRP officer a short portion of the video showing four males entering an elevator.
[21] Mr. Perrera identified one of the males as Mr. Trought, a resident of 2545 Erin Centre, one of the three condominium towers in Erin Centre. Mr. Perrera also provided the PRP officer with:
a) Mr. Trought’s phone number;
b) Mr. Trought’s unit number,1008 (the “Unit”);
c) Emergency contact information (Mr. Trought’s mother); and
d) The Unit-owner’s information, address and telephone number (Mr. Trought was a tenant and the Unit owner was Kevin Mansour).
[22] None of the security personnel asked the PRP officer for a warrant, production order or other authorization for the video or the tenant information. None of the security personnel expressed any concern about providing the video or Mr. Trought’s tenant information to the PRP officer.
EVENTS PRIOR TO MAY 2, 2017
[23] The PRP continued its Buchner homicide investigation and learned that Mr. Avila Velasquez, an associate of Mr. Trought, was one of the other males in the taxi. The PRP discovered an outstanding Toronto warrant for Mr. Trought and Mr. Valesquez. The PRP also sought to question Mr. Velasquez as a witness to the Masta Lounge altercation.
[24] After speaking with a Toronto police officer and performing a CPIC check, the PRP believed Mr. Trought’s outstanding charges including possession for the purpose of trafficking (“PforP”), assaulting a police officer, escape from custody and breach of probation. The outstanding charges against Mr. Velasquez also involved serious charges.
[25] The PRP determined they would go to Unit 1008 at the Erin Centre on May 2, 2017, to arrest Mr. Trought on the outstanding Toronto warrant and, while in their custody, seek to question Mr. Trought, solely as a witness, regarding the Buchner homicide.
UNIT 1008
[26] The Erin Centre has three condominium towers with more than 100 units each. Erin Centre is opposite the Erin Mills Mall and just down the road from a high school.
[27] There is one vehicular entrance to the three condominium towers with a 24/7 security gatehouse. Residents’ vehicles can access the property using the occupants’ fob. Visitors’ vehicles must go to the security gatehouse. Pedestrians do not have to go through the gatehouse and can gain access directly into the Erin Centre property, but not past the entrance doors into the interior of the towers. To go past the front entrance of the towers, visitors must be let in by tenants or the security staff.
[28] There are cameras in common areas such as front entrances and the elevators. The cameras are not hidden. The cameras record video. The video from the cameras can be viewed live or through recordings by the security staff.
[29] The security staff also has access to a resident’s fob usage – including time of use and what door. To be clear, only common area doors (i.e. front entrance and elevators) use a fob. Individual condominium units do not use fobs for entrance into the units but instead have individual keys.
[30] The Property Manager testified it was her understanding that the security staffs are not to provide Erin Mills' occupant information to third parties, including the police. The Property Manager did not explain why this was her “understanding”. The Property Manager's evidence was extremely vague on this point. No written policy was produced to demonstrate this was a policy rather than just an understanding. The Property Manager did not testify that the security staff or Paragon are instructed on this “understanding” or how to deal with police requests for occupant information. There is no evidence from Paragon or any of the security staff that they were told or instructed of such a policy. On the other hand, the PRP officer who requested a copy of the video was credible and described no issue, no concern, nor request for authorization for the information requested by the security staff or the Property Manager. The actions of the security staff are consistent with the PRP officer’s evidence. This evidence belies an “understanding” or policy as described by the Property Manager. I find as a fact that the video and Mr. Trought’s tenant information from Erin Centre was voluntarily provided to the PRP; there is no “understanding” or policy requiring judicial authorization prior to providing such video or tenant information and the security staff were authorized to provide this information to the PRP officer.
[31] The Unit has an open concept layout, meaning that once inside the front door, the kitchen is to the left and the living room directly ahead with a sliding door at the end of the living room. To the left is a short hallway with a bedroom at the end of the hallway. The Unit is not large.
[32] The balcony of the Unit is adjacent to the balcony of Unit 1009, separated by a balcony divider.
MAY 2, 2017
Mr. Trought’s Arrest
[33] As of May 2, 2017, the PRP had not seen or obtained a copy of the Toronto warrant. At 2:00 p.m., two PRP officers arrived to the security gatehouse to Erin Centre. The security staff told the PRP officers that Mr. Trought’s fob had last been used just after midnight and they believed Mr. Trought was still in the Unit. The security staff also told the PRP officers that Mr. Trought usually had persons over at that time of day.
[34] The security staff provided the PRP officers access past the “buzzer” front entrance into the 2545 tower. The PRP officers went to the 10th floor. At that time, the PRP officers did not know if anyone was in Unit 1008 or, if someone was in Unit 1008, who or how many people were there.
[35] At 2:13 p.m., the PRP officers arrived at the door to the Unit. The PRP officers listened at the door for a few seconds, for officer safety, to determine if there were multiple persons in the Unit. The PRP officers state that this is done routinely to assess the degree of risk to the officers. I accept that there was a degree of officer safety concern when the PRP officers went to the Unit’s door and that the PRP officers were outside the Unit’s door for just a few seconds.
[36] The PRP officers knocked on the door and announced it was the PRP to arrest Mr. Trought on the outstanding Toronto warrant. The PRP officers asked him to open the door and come out. The PRP officers said, through the door, that they did not want to speak to Mr. Trought about the Toronto matters but wanted to talk to him about the Buchner homicide and that they had no interest in the Unit.
[37] Mr. Trought was aware of the outstanding Toronto warrant and the underlying charges to that warrant.
[38] Mr. Trought did not immediately comply with the PRP’s request to open the door and come out of the Unit. While waiting at the door to the Unit, the PRP officers:
a) heard someone was in the Unit;
b) could smell freshly burned marijuana;
c) heard doors and drawers opening and closing;
d) heard general scurrying or shuffling in the Unit;
e) heard and felt the sound of a door opening and the change in air pressure, leading the officers to believe that the occupant had opened the balcony door; and
f) saw someone cover the peep hole.
[39] The PRP officers suspected Mr. Trought was disposing illegal items off his balcony. The PRP officers continued to knock at the Unit’s door. When Mr. Trought failed to open the door, the PRP officers told Mr. Trought, through the door, that they would get a warrant to enter and arrest him anyway.
[40] At approximately 2:14 p.m., the PRP officers called “Communications” to advise of the situation and that a Feeney order was needed.
[41] The PRP officers continued to knock on the door. Mr. Trought continued to delay exiting the Unit.
[42] At one point, Mr. Trought said that he was on the phone with his lawyer but the PRP officers heard no conversation in the Unit. Mr. Trought said he would open the door “afterwards.” The PRP officers believed this was a further delay.
[43] The PRP officers were very confident there was only one person in the Unit.
[44] At 2:20 p.m., Mr. Trought said: “ok I am coming out.” Mr. Trought opened the door and came out of the Unit.
[45] Mr. Trought was arrested on the Toronto warrant. Mr. Trought was taken into custody and handcuffed at the doorway. The PRP officers conducted a pat down search for officer safety.
[46] Mr. Trought was immediately “cautioned” that anything he said could be used against him; that the PRP officers would not ask him about the Toronto charges; that Mr. Trought could speak to a lawyer at 12 Division, where he was to be taken; and that the PRP officers wanted to speak with him regarding the Masta Lounge incident.
[47] Neither PRP officer provided Mr. Trought with a “full” reading of rights or caution at that time. The PRP officer explained that Mr. Trought’s full rights and caution (RTC) would be given downstairs at the cruiser.
[48] While still outside the Unit, Mr. Trought told the PRP officers that he wanted to go into the Unit to get a jacket (and possibly shoes). The PRP officers told Mr. Trought he could not go back into the Unit alone and that, if he wanted to go back into the Unit, the PRP officers would have to go with him. Mr. Trought said: "that’s fine". Mr. Trought did not actually use the word “consent” but the PRP officers reasonably believed he was consenting to them accompanying Mr. Trought into the Unit. I find Mr. Trought, through his words and conduct, consented to the entry of the PRP officers to the Unit.
[49] The PRP officers accompanied Mr. Trought back into the Unit. The PRP officers and Mr. Trought walked into the Unit towards the jacket which was close to the sliding door to the Unit’s balcony. Given the suspicion that Mr. Trought had discarded items over the balcony, one of the PRP officers went onto the balcony and looked over. The PRP officer did not ask for Mr. Trought’s consent to go onto the balcony. None was given. There was no need for the PRP officer to go onto the balcony to retrieve Mr. Trought’s jacket and shoes.
[50] While looking over the balcony, the PRP officer saw something on the entrance overhang. It was silver and looked like a firearm.
[51] As the PRP officers and Mr. Trought were exiting the Unit, the other PRP officer saw an empty black gun case on the counter next to the fridge with something inside that could have been a cleaning or maintenance case/ kit and a small amount of marijuana on the refrigerator. Both were in plain view. Neither officer went into the kitchen to investigate or look more carefully at these items.
[52] The PRP officers were concerned there was an unaccounted firearm. One of the PRP officers said to Mr. Trought, “where’s the gun.” This question may have been repeated. Mr. Trought said nothing. One PRP officer described Mr. Trought’s reaction to the question as to look downwards and forlorn.
[53] The PRP officer told Mr. Trought that he would be charged with firearms and related charges. The PRP officer reminded Mr. Trought of the prior caution that anything he said could be used against him.
[54] The PRP officers and Mr. Trought exited the Unit a few minutes after 2:20 p.m. The time of exit is not exactly known. The PRP officers did not search the Unit while in or during the short time they were in the Unit with Mr. Trought.
[55] The PRP officers waited a few moments for an officer to arrive to secure the Unit. At 2:30 p.m., a uniformed PRP officer arrived at the Unit. The PRP officers and Mr. Trought went downstairs. The PRP officers turned custody of Mr. Trought over to a uniformed PRP officer to transport Mr. Trought to the police station. The PRP transport officer was told that Mr. Trought was under arrest for "weapons related offences", in relation to a handgun, and the Toronto warrant. The PRP transport officer was instructed to provide Mr. Trought with his rights RTC.
[56] One of the PRP officers went to the second floor to look at the item on the entrance overhang. The PRP officer saw that it was not a firearm but rather a garden hose nozzle. As a result, it remained a concern by PRP that a firearm or drugs could have been thrown from the Unit’s balcony onto the ground or another balcony. The PRP decided to proceed with a search of the ground and other balconies.
[57] The PRP officers decided to seek a search warrant given the empty gun case and drugs seen in the Unit.
Transporting Mr. Trought to the Police Station
[58] At 2:36 p.m., the PRP transport officer took custody of Mr. Trought and placed him in the back seat of a cruiser. At 2:43 p.m., the PRP transport officer provided Mr. Trought his rights and caution as follows (including Mr. Trought's responses):
Question 1- you are under arrest for weapons related charges and a warrant issued by the Toronto police.
Reply - "all right"
Question 2 - It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?
Reply - "Yes" or "Yeah"
Question 3 - You have the right to telephone any lawyer you wish. Do you understand?
Reply - "yes"
Question 4 - You also have the right to free advice from a Legal Aid Lawyer. Do you understand?
Reply - "yes"
Question 5 - If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance: 1 -800-265-0451 is a toll free number that will put you in contact with a Legal Aid Duty Counsel Lawyer for free legal advice right now. Do you understand?
Reply - "yes"
Question 6 - do you wish to call a lawyer now?
Reply- "when I get to the station"
Question - Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?
Reply - "yeah"
[59] Mr. Trought told the PRP transport officer that he had a specific lawyer. The name was written down as "Joe Hecktor." The PRP transport officer could not recall any discussion regarding the spelling of Mr. Trought's counsel's name.
[60] Mr. Trought gave the PRP officer "Joe Hecktor's” telephone number. Mr. Trought appeared uncertain about the first three digits of his counsel of choice’s telephone number, initially saying 416 575 1818 and subsequently 416 525 1818.
Mr. Trought's Booking
[61] At approximately 3:06 p.m., the PRP transport officer and Mr. Trought arrived at the police station.
[62] During the booking process in the Booking Room, the PRP transport officer called the telephone numbers Mr. Trought had given for his counsel of choice. The PRP transport officer did not get a response at either number. The officer searched for, but could not locate, a Legal Directory.
[63] At 3:14 p.m., the PRP cells' officer pulled out his cell phone and did a Google search in an attempt to obtain another telephone number for Mr. Trought's counsel of choice. It is not known what spelling he used for Mr. “Hecktor”. That attempt failed.
[64] On the cell video, the PRP cells officer appeared to speak with Mr. Trought, to which the cells officer testified he may have asked Mr. Trought for another spelling of the name of his counsel of choice. I cannot find that Mr. Trought was asked for the spelling of Mr. “Hecktor’s” name. On the other hand, there is no evidence that Mr. Trought assisted by providing a spelling of Mr. “Hecktor’s” name or another number or suggest some other manner to obtain the information for Mr. “Hecktor.”
[65] The PRP transport officer told Mr. Trought that he could not reach his counsel of choice and asked Mr. Trought whether he wanted the officer to call duty counsel. Mr. Trought responded: “yes.”
[66] At 3:17p.m., the PRP transport officer called duty counsel and left a message that Mr. Trought was arrested for weapons related offences (possession of the firearm) and the Toronto police warrant.
[67] From the cells video and the combined evidence of all three the PRP officers (including a Staff Sergeant who arrived at 3:21 p.m.), I find that a number of bona fide attempts were made to accommodate communication with Mr. Trought’s counsel of choice.
[68] The Defence submits the continued efforts to find the Legal Directory, even after Mr. Trought spoke to duty counsel, is evidence that Mr. Trought continued to want to speak with Mr. “Hecktor.” I do not so find.
[69] At 3:24 p.m., Mr. Trought signed on a computer screen (i.e. an e-signature) that the police had his property and duty counsel had been called. To be clear, the actual computer screen signed by Mr. Trought does not actually state what he is signing for. For that information, Mr. Trought had to rely on the information given to him by the police officers but there was no challenge that Mr. Trought was told he was signing because duty counsel had been called for him. There is no contrary evidence from Mr. Trought.
[70] At 3:24 p.m., Mr. Trought was taken to a private room where he spoke to duty counsel for about 5-6 minutes.
[71] After waiver of privilege, duty counsel testified he could not recall the phone call from the PRP or the message left by the PRP regarding Mr. Trought. The Duty Counsel Report, a sheet filled in by duty counsel, identified the charge Mr. Trought faced was "poss firearm." The Duty Counsel Report states that Mr. Trought was advised to exercise his right to remain silent and not to talk to the police officers. The report indicates Mr. Trought agreed not to make a statement to the police.
[72] After speaking with duty counsel, Mr. Trought did not express any dissatisfaction with his conversation with duty counsel or express that he continued to want to speak with his counsel of choice.
The PRP Canine Unit
[73] At 2:51 p.m., the PRP canine unit arrived at the Erin Centre. The PRP canine unit officer was told that a firearm and/or drugs may have been “tossed” from the balcony of the Unit. The PRP officers could not adequately describe the appropriate search area to the RPR canine unit officer.
[74] The PRP canine unit officer was very concerned for public safety particularly given the population density of the neighbourhood, the proximity to the mall across the street and that the high school was soon to be let out that day. Given that the PRP officers could not provide a detailed search area, the PRP canine unit officer asked to see the view from the Unit’s balcony to obtain a more precise search area and to ensure that the search area could be immediately secured to avoid contamination.
[75] At 2:55 p.m., one of the PRP officers accompanied the PRP canine unit officer to the Unit, opened the Unit door, and went directly to the balcony. The PRP canine officer saw the empty gun case on the kitchen counter but did not touch it or go towards it. The PRP canine officer identified several landscape areas to be searched and also commented that any objects thrown from the balcony might also have ended up on other balconies.
[76] The PRP officer and the PRP canine officer went directly from the entrance door to the balcony, from the balcony to the entrance door and left the Unit. Both PRP officers left the Unit at 2:58 p.m. and the Unit was again secured. Neither the PRP officers nor the PRP canine officer did a search of the Unit or the Unit’s balcony.
[77] The PRP canine unit searched the ground area from 3:21 p.m. until 3:40 p.m. and found nothing.
The Discovery of the Firearm and Drugs
[78] At 3:35p.m., a PRP supervisor officer arrived at the Unit. The PRP supervisor officer went to ensure the Unit was secured. It was. The PRP supervisor officer asked the PRP officer at the Unit whether Unit 1009’s balcony had been checked. It had not. At 4:09 p.m., the PRP supervisor officer went to Unit 1009. An elderly woman, Ms. Chan, answered the door. Ms. Chan gave permission for the PRP officer to check her balcony. The PRP supervisor officer found a rolled up mat, a Cheerios box and a Moet Champagne Box, all of which Ms. Chan denied belonged to her.
[79] The PRP supervisor officer unrolled the mat and found:
a) clear plastic bags containing a white powder and rocky substances;
b) socks, which contained bullets; and
c) a set of keys.
[80] The PRP supervisor officer rolled the mat back up, returning the items inside, and called for a PRP Forensic Identification Officer ("FIS") to record and process the items.
[81] The PRP supervisor and FIS officers found in the Cheerios box:
a) a plastic bag containing Cheerios; and
b) under the plastic bag, a loaded handgun with defaced serial numbers.
[82] The PRP supervisor and FIS officer found in the Moet box a number of bags containing a total of 271.95 grams of cocaine.
[83] At 4:39 p.m., the PRP supervisor and FIS officer left Unit 1009.
The Interviews
[84] The PRP decided to conduct two interviews of Mr. Trought: the first solely as a witness to the Masta Lounge incident and the second relating to the PRP's investigation into the firearm and drug charges against Mr. Trought.
[85] To repeat, the PRP had ruled out Mr. Trought as a suspect or a person of interest in the Buchner homicide. Further, the PRP was satisfied that the firearm found on Unit 1009’s balcony was not connected or related to the Buchner homicide.
[86] The PRP interviewing officer’s decision to conduct the Masta Lounge interview was not an indirect or surreptitious manner to get incriminating evidence against Mr. Trought on either the Toronto charges or the Peel firearm/drug charges.
The Masta Lounge Interview
[87] The first interview began at 6:21p.m. At the beginning of the interview, the PRP interviewer made a number of matters clear to Mr. Trought:
a) That he did not want to talk about (or have Mr. Trought talk about) the Toronto warrant charges or the firearm/drug charges he faced;
b) That the interview was to be solely about the Masta Lounge incident and whatever Mr. Trought said would not affect what happened with the Toronto warrant charges or the Peel firearm/drug charges; and
c) That the PRP did not believe Mr. Trought was involved in the Buchner homicide and that the PRP interviewer was just looking for information about that night. Further, Mr. Trought was advised that neither he nor his friends would be charged regarding the Masta Lounge incident.
[88] Mr. Trought understood he was under no compulsion to answer the PRP interviewer questions. This can be directly observed from his refusal to provide the names of the other three males with him at the Masta Lounge/taxi cab. Otherwise, Mr. Trought was cooperative and responded to many of the PRP interviewer's questions during the first interview.
The Second Interview and Second Call to Duty Counsel
[89] The second interview started at 7:14 p.m. Mr. Trought was again provided with his RTC and:
a) Mr. Trought was told that the PRP interviewer did not want to discuss the Toronto charges;
b) Mr. Trought was facing a number of serious charges relating to the firearm that had been found, such as unlawful possession, careless storage and "things like that";
c) Mr. Trought would be facing PforP charges related to the substances the officer believed was crack cocaine or cocaine;
d) The charges Mr. Trought faced were serious charges which carried significant penalties; and
[90] Mr. Trought wanted to call his mom. The PRP interviewer said that he could not do that but that the PRP interviewer would call his "mom in order to get your lawyer's phone number." Mr. Trought did not ask him to do so.
[91] At 7:20 p.m. the following exchange occurred:
BOYER:
Okay. Okay. I've already informed you what you're under arrest for.
TROUGHT:
Mm-hmm.
BOYER:
All right? And you said you understood that.
TROUGHT:
Mm-hmm.
BOYER:
Okay. Um, it's my duty to inform you, you have the right to retain and instruct counsel without delay.
TROUGHT:
Mm-hmm.
BOYER:
Counsel's just another word for a lawyer.
TROUGHT:
Okay.
BOYER:
Okay? Do you understand that? You have the right to a lawyer.
TROUGHT:
Yes.
BOYER:
Yes? Okay. You have the right to telephone any lawyer you wish. You understand that?
TROUGHT:
Yes.
BOYER:
Okay. You have the right to free advice from a Legal Aid lawyer.
TROUGHT:
Okay.
BOYER:
Do you understand that?
TROUGHT:
Yeah.
BOYER:
Okay. If you're charged with an offence, you may apply to the Ontario Legal Aid plan for legal assistance. 1-800-265-
19:21
0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand that?
TROUGHT:
Yes.
BOYER:
Do you wish to call a lawyer?
TROUGHT:
Um, yes.
BOYER:
Okay. Which lawyer?
TROUGHT:
Joel Hechter.
BOYER:
Okay. Um, you're going to be charged with the offences I described to you earlier.
TROUGHT:
Okay.
BOYER:
Okay? Do you wish to say anything in answer to this charge?
TROUGHT:
Hm.
BOYER:
You're, you are not obliged to say anything unless you wish to do so, but whatever you say, may be given in evidence against you.
TROUGHT:
Um, no.
BOYER:
Do you understand that?
TROUGHT:
Yes.
BOYER:
Okay. And, um, if you have spoken to any police officer or to anyone with authority, or any of those people have spoken to you in connection with this case, I want it clearly understood, I do not want it to influence you in making a statement.
TROUGHT:
Okay.
BOYER:
Do you understand that?
TROUGHT:
Yes.
19:22
BOYER:
So you and I, as you know, we spoke earlier, um, like a, an hour ago, about another case, another matter…
TROUGHT:
Yeah.
BOYER:
…and I explained to you then, that I don't want the content of our conversation or anything that's said, to influence you in speaking about these charges that are against you.
TROUGHT:
Okay.
BOYER:
Okay?
TROUGHT:
Okay.
BOYER:
And that still applies. Um, I didn't make you any promises or, um, I didn't say-, essentially, we didn't speak about these charges at all, and I don't want you, in your mind, to think that, um, because you gave me some information about Masta Lounge, that, uh, you're obligated to give me information about this charge, or that, uh, I'm going to look, or the court or the police will look favourably upon you because you cooperated and talked about Masta Lounge.
TROUGHT:
Okay.
BOYER:
Do you understand that?
TROUGHT:
Yes.
BOYER:
Okay. So what does that mean t-, to just say it in your own words to me.
19:23
TROUGHT:
Um, anything, anything from the previous conversation is not account for.
BOYER:
It's not accounted for?
TROUGHT:
Yeah, given towards, this case. They're just two separate things.
BOYER:
Okay. So do you feel in your mind that, um, that I-, do you feel that I promised you anything or that I…
TROUGHT:
No.
BOYER:
No? Okay. And, and do you feel that I, um, sort of, that, that I will do something for you or…
TROUGHT:
No, no.
BOYER:
…look to help you because you helped me?
TROUGHT:
No.
BOYER:
No? Okay. Perfect. Um, that's, that's all I want, to make sure that you understand…
TROUGHT:
Okay.
BOYER:
…um, 'cause I don't want it coming up later that, well, I thought if I talked about this, then the officer was gonna help me and that, that, as that was a separate thing, and it's-, we're sort of turning the page to a whole new chapter…
TROUGHT:
Mm-hmm.
19:24
BOYER:
…right now, okay? Um, so I'm gonna try and get a hold of your lawyer.
TROUGHT:
Okay.
BOYER:
Okay? Uh, in the mean time, you eat.
TROUGHT:
Okay.
BOYER:
Okay, uh, you need anything else?
TROUGHT:
Um, no.
BOYER:
Okay. Oh, question for you.
TROUGHT:
Yeah?
BOYER:
If I can't get a hold of your lawyer, for whatever reason-, sometimes they're not available in the evenings and stuff like that…
TROUGHT:
Yeah.
BOYER:
…if I can't get a hold of him, do you wanna speak to duty counsel?
TROUGHT:
Okay, sure.
BOYER:
Okay?
TROUGHT:
Yeah.
BOYER:
We'll give it a reasonable amount of time for him to call, like we'll wait for him to call back, but-, then I'll come check with you if you wanna talk to duty counsel after that.
TROUGHT:
Okay.
BOYER:
Okay?
[92] The PRP interview officer left the room and obtained the telephone number for Joel Hechter, Mr. Trought's counsel of choice, as the PRP interview officer had known Mr. Hechter from prior dealings.
[93] At 7:25 p.m., the PRP interview officer called Mr. Hechter's telephone number. There was no answer. Mr. Hechter's office had, by that time, closed for the day. The PRP interview officer left a message on Mr. Hechter's voicemail. The PRP interview officer waited for a return call.
[94] At 7:45 p.m., the PRP interviewer again called Mr. Hechter. There was no answer. The PRP interview officer left his cell number for a return call. The PRP interview officer waited for a return call.
[95] At 7:58 p.m., not having received a return call from Mr. Hechter and pursuant to what Mr. Trought had previously agreed that if Mr. Hechter was not available, Mr. Trought would speak to duty counsel, the PRP interview officer called duty counsel and left a message for duty counsel. The PRP interview officer did not tell duty counsel what controlled substance was the subject of the PforP charge.
[96] At 8:02 p.m., Mr. Trought spoke to duty counsel for about 6-7 minutes. Again, after a waiver of privilege, duty counsel could not recall the events of the phone call and relied exclusively on the Duty Counsel Report he had completed. Duty counsel recorded Mr. Trought’s charges as possession of a restricted firearm and possession for the purpose of trafficking.
[97] At no time did Mr. Trought express any dissatisfaction with the duty counsel’s advice or express a continuing desire to speak to his counsel of choice.
[98] The PRP interview officer commenced the interview of Mr. Trought on the firearm/drugs offences at 8:13 p.m. The PRP interviewer kept his cell phone with the number he had left for Mr. Hechter in case Mr. Hechter called, in which case the PRP interview officer would have stopped the interview.
[99] At 8:24 p.m., the PRP interviewer described to Mr. Trought a list of the "charges as they stand right now”. Mr. Trought confirmed he understood the charges he faced. The interview continued. Aside from admitting where he lived and that he had a roommate who did not own a firearm, Mr. Trought refused to speak about the charges he faced. He maintained his silence throughout the balance of the interview. The interview ended at 9:00 p.m.
[100] At no time during the interview, or later that night, did Joel Hechter return either of the PRP interview officer's messages.
The Search Warrants
[101] The PRP determined that two warrants would be sought: a Criminal Code warrant for firearm related evidence and a CDSA warrant for drug related evidence.
[102] PRP Officer Lovell was tasked to prepare the ITO and search warrants. He had only previously prepared 3 or 4 search warrants.
[103] Officer Lovell was briefed by the PRP officers that evening. Officer Lovell prepared one ITO, setting out the history and grounds for the two warrants sought.
MAY 3, 2017
The ITO
The Criminal Code ITO
[104] There are a number of significant issues with the ITO:
a. The ITO's jurat is dated “June 3, 2017” – a date in the future. Officer Lovell explained this was a mistake – it should have been May 3, 2017;
b. Appendix B to the ITO, states that the alleged offence date was June 24, 2014, a date almost three years earlier. Instead, the alleged offence date should have been May 2, 2017. Officer Lovell explained this was a mistake;
c. The ITO states that Officer Lovell had personal knowledge of the facts set out in the ITO. There is no "typical" information and belief paragraph. Officer Lovell had NO personal knowledge of the facts set out in the ITO (except what learned from database searches). Officer Lovell explained this was a mistake. To be fair, the ITO goes on to make it clear that Officer Lovell received the bulk of the information relied upon from other police officers; and
d. In Section D (grounds to believe), the ITO states that Officer Lovell was advised on May 5, 2017 of certain information from PRP Officer Page. May 5, 2017 was 3 days into the future. Officer Lovell explained this was a mistake and the date should have been May 2, 2017.
The CDSA ITO
[105] Since only one ITO was prepared, the CDSA ITO had the same problems as the Criminal Code ITO.
The Issued Warrants
[106] At 12:33 a.m., both search warrants were issued.
[107] Both the Criminal Code and CDSA warrants had appendices but contained a heading that they were appendices to the ITO rather than appendices to a warrant.
[108] The PRP copies of the Criminal Code warrant do not contain Appendix B. There is no explanation as to whether one existed or what happened to it. It is entirely unclear what happened. Copies of the Criminal Code warrant in the court file differ from what the PRP received.
[109] The PRP copies of the CDSA warrant appeared to contain complete copies of the CDSA warrant as issued, but Appendix B refers to an alleged June 24, 2014, offence date.
The Execution of the Search Warrants of the Unit
[110] At 1:25 p.m., the warrant briefing took place. Each of the PRP officers read the warrants, including the Appendices, and signed the back of the warrants (just on one of them). None of the PRP officers noticed the errors described above.
[111] I am satisfied and find as a fact that the CDSA warrant contained all Appendices.
[112] I am not satisfied that the Criminal Code warrant contained all Appendices.
[113] At 2:05 p.m., the PRP officers commenced the execution of the search warrants in the Unit. In the Unit, the PRP located and seized:
a) A plastic gun case with a cleaning kit inside. The gun case was open and the gun was not inside;
b) A bag of marijuana on top of the fridge;
c) Three digital scales with white powder on them;
d) Drug packaging materials;
e) Vacuum-packed marijuana in a liquor box;
f) A bag with a white crystal-like substance in it;
g) Mr. Trought’s driver’s licence;
h) Documents (some belonging to Royden Reis and some belonging to Mr. Trought);
i) Gold chains/jewellery;
j) A money counter;
k) Three cell phones; and
l) A satchel inside the laundry dryer with $6,700 cash.
[114] A copy of the warrants were brought to the Unit and left there. A photo was taken. I am not prepared to find that only three pages of the warrants were left at the Unit as suggested by the Defence. I find, as a fact, that the Criminal Code warrant left at the Unit did not have an Appendix B to it and that the CDSA warrant did have all Appendices.
MAY 4, 2017
[115] The PRP was told by Erin Centre’s security personnel that two males, Tryden and Royden Reis, attempted to break into the Unit’s storage locker, U147. The police were called. The Reis brothers were arrested. One of the Reis brothers, when interviewed, told the PRP that Mr. Trought had contacted him to remove property from the Unit's storage locker. This information led the PRP to believe that additional drugs would likely be located in the storage locker of Unit 1008. The police secured the storage locker and sought a search warrant.
The Locker Search Warrant
[116] Officer Lovell was again tasked with obtaining a CDSA search warrant for the storage locker for U147, the storage unit for Unit 1008 (“Storage Locker”). The alleged offence was PforP.
The Storage Locker ITO
[117] There are several problems with the Storage Locker ITO:
a. The ITO states that Officer Lovell had personal knowledge of the facts set out in the ITO. There is no "typical" information and belief paragraph. Officer Lovell had NO personal knowledge of the facts set out in the ITO. Officer Lovell explained this was a mistake. To be fair, the ITO goes on to make it clear that Officer Lovell was provided the substance of the information relied upon from other officers;
b. In Section D (grounds to believe), the ITO states that Officer Lovell was advised on May 5, 2017 of certain information from Officer Page. May 5, 2017, was three days into the future. Officer Lovell explained this was a mistake;
c. There are a number of other minor mistakes such as:
i. Inconsistent birthdates for the Reis brothers in the same document;
ii. Referring to Tryden Reid, when in fact it should have been Royden Reis; and
iii. Referring to Mr. Trought as the owner of the Unit.
MAY 5, 2017
[118] At 1:32 a.m., the CDSA locker warrant issued. Each of the PRP officers, participating in the locker search, reviewed the warrant and signed the rear of the last page. The warrant contained all the Appendices.
Execution of the Locker Search Warrant
[119] The warrant was executed at 2:04 a.m. In the storage locker the PRP officers discovered:
a) A blue gift bag with a white substance in it on top of a blue barrel;
b) What they believed was packaging materials for kilo bricks of cocaine;
c) A bag containing what the police believed was a cutting agent;
d) A bag containing 261.5 grams Phenacetin;
e) A bag containing 181 grams Phenacetin;
f) A bag containing 57.45 grams cocaine; and
g) A bag containing 4.8 grams of cocaine.
[120] A copy of the storage locker warrant was left at the locker. In coming to this conclusion, I was faced with conflicting evidence. On the one hand, there is evidence from Ms. Ingham who produced a copy of the CDSA locker warrant. Ms. Ingham had received a copy from a security supervisor who had copied the PRP officers’ CDSA locker warrant. Whether the security officer failed to copy all the pages by mistake (or copier error) or whether the copy given to Ms. Ingham was a complete copy of the CDSA locker warrant is not known. On the other hand, all the PRP officers testified that they had read the search warrant, including all appendices and signed the back of the warrant. Given the more direct evidence of the PRP officers versus the significantly less reliable second hand evidence of Ms. Ingham and the agreed facts from Shaun Simmons (the security officer), I find that the Storage Locker warrant was complete when executed.
THE LAW
The Charter
[121] The Defence relies on the following provisions of the Charter:
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.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[122] The burden is on the accused to establish, on a balance of probabilities, that his or her Charter right(s) has been infringed. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277. Once a breach has been established, the onus lies with the accused to justify exclusion of the evidence under s. 24(2).
Right to be Informed on Detention (s. 10(a))
[123] A detainee’s rights under s. 10(a) of the Charter were described in R. v. Roberts, 2018 ONCA 411:
[78] Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paras. 16-22. Put more purposively: “The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest”, or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 125. It is the second part of this purposive test that is at issue here. In my view, Ms. Roberts had adequate information about her jeopardy to meaningfully exercise her right to counsel.
Rights to Counsel and Caution (s. 10(b))
[124] A detainee’s rights to counsel and caution upon detention were described in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Section 10(b) requires that the police:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
[125] These principles were more recently affirmed by the Court in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at paras. 22-23.
[126] The first duty is informational; it includes an obligation for the police to inform a detainee of the right to silence and to contact counsel of choice or speak with duty counsel.
[127] The second and third duties are implementational. This duty is not triggered unless the detainee indicates a desire to exercise his or her right to speak with counsel. When a detainee expresses a desire to contact counsel, whether it is duty counsel or the detainee’s counsel of choice, the police are required to facilitate this. As Durno J., held in R. v. Kumarasamy, [2002] O.J. No. 303 (Sup. Ct.) at paras. 25-26:
This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.
This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis.
[128] If a detainee makes a request to speak to a specific counsel, the police are required to provide that detainee with a reasonable opportunity to consult with counsel of choice. This obligation was described in R. v. Ferose, 2019 ONSC 1052 at para. 73:
In accordance with the reasoning of the Court of Appeal for Ontario in R. v. Richfield(2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), R. v. Littleford (2001), 2001 CanLII 8559 (ON CA), 86 C.R.R. (2d) 148 (Ont. C.A.), and the decisions of Charney J. in R. v. Hudson, 2016 ONSC 5582, Fragomeni J. in R. v. Zoghaib, 69 W.C.B. (2d) 166, affirmed [2006] O.J. No. 1023 (Ont. C.A.) and Durno J. in R. v. Antoninas, 2014 ONSC 4220, 323 C.R.R. (2d) 1, where a detainee:
(a) does not request specific counsel and/or such specific counsel is unavailable;
(b) is afforded an opportunity to speak to specific counsel and/or duty counsel (if specific counsel not requested and/or not available) in a private setting;
(c) does not express any complaint or raise any issue as to the advice provided either after speaking to counsel or at any later date including the voir dire; and
(d) does not claim any harm/prejudice as a result of the advice provided
it is unlikely that any breach of the detainee’s s. 10(b) interests will be found, and if any such breach is found, the impact of such breach will be minimal.
Reasonable Expectation of Privacy
[129] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, the Supreme Court of Canada outlined some of the factors to be considered in, in the totality of the circumstances to assess whether a person has a reasonable expectation of privacy:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
See also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 at paras. 17-18 and R. v. Patrick, 2009 SCC 17, [2009] 1 SCR 579, at para. 27.
[130] Recently, the Supreme Court in R. v. Jarvis, 2019 SCC 10 at para. 29, stated that the determination of a reasonable expectation of privacy requires a contextual assessment of the totality of the circumstances, including the following, as may be applicable to the circumstances of the case:
a) The location the person was in when she was observed or recorded…
b) The nature of the impugned conduct, that is, whether it consisted of observation or recording…
c) Awareness of or consent to potential observation or recording…
d) The manner in which the observation or recording was done…
e) The subject matter or content of the observation or recording…
f) Any rules, regulations or policies that governed the observation or recording in question…
g) The relationship between the person who was observed or recorded and the person who did the observing or recording…
h) The purpose for which the observation or recording was done…[and]
i) The personal attributes of the person who was observed or recorded.
THE ANALYSIS
THE ALLEGED PRP COVER-UP AND PERJURY
[131] At the centre of many Defence submissions is that the PRP officers were investigating the Buchner homicide, searched the Unit as part of the Buchner homicide investigation, then took steps to cover up what they did, fabricated their notes and lied to this court.
[132] I reject this submission in its entirety.
[133] I find no evidence that the PRP officers engaged in a cover-up, the fabrication of notes or evidence or gave perjured evidence. The evidence of the PRP officers was generally consistent, credible and reliable.
[134] Let me provide a few examples of why I find this submission to be speculative and an erroneous.
The Firearm/Drug Investigation was a Murder Investigation
[135] The Defence speculates that because the PRP officers involved were substantially from the homicide unit, this was an investigation in the Buchner homicide that went “sideways.” I agree that there was a connection with the Buchner homicide investigation. The connection was speaking to potential witness. Nothing more.
[136] It is uncontradicted that Mr. Trought and his friends had left the Masta Lounge well before the murder and the PRP found no connection to the murder. The Defence submission that the PRP did not know whether Mr. Trought or the firearm were connected to the Buchner homicide is entirely speculation and inconsistent with the evidence of all the PRP officers. There is nothing in the record that supports this theory.
[137] I find that, aside from wanting to speak with Mr. Trought as a possible witness in the Buchner homicide, the firearm/drugs charges arose solely because the PRP officers saw the empty firearm case, the firearm and drugs on the balcony of Unit 1009. The fact that the homicide detectives were required to complete this investigation is NOT evidence in support of the Defence’s primary submission.
[138] I accept the evidence of the PRP officers that the discovery of the firearm and drugs was an “annoyance”, in the sense that this new investigation took time, personnel and resources from the Buchner investigation. On the other hand, the PRP homicide officers could not turn a blind eye to a firearm and drug offence.
There was a search of the Unit on May 2, 2017
[139] Another key submission by the Defence is that the PRP officers searched the Unit prior to leaving with Mr. Trought. One of the main pieces of evidence the Defence points to is a reference in the Operational Plan on May 3, 2017, that the Unit had been “searched”. The Defence also points to an alleged lack of officer safety concern on May 2 and May 3, 2017, as additional evidence that the Unit had been searched. The Defence submits this is key supporting evidence that the PRP officers lied when they noted and testified that they did not search the Unit on May 2, 2017.
[140] There are several major difficulties with the Defence’s submission including:
a) Mr. Trought was present with the two PRP officers in the Unit. Mr. Trought would have observed any search of the Unit. Yet, there is no evidence from Mr. Trought that he observed either of the PRP officers' conduct a search of the Unit;
b) Both RPR officers who arrested Mr. Trought were unshaken during their evidence that no search was conducted of the Unit on May 2, 2017.
c) The PRP officers in the Unit on May 2, 2017, told the PRP OIC who prepared the Operational Plan on May 3, 2017, that no one else was in the Unit. This is consistent with the small size of the Unit, the fact no one else came out while they were there, no one else was seen leaving the Unit until the search on May 3, 2017. Whether the PRP officer who prepared the Operational Plan was mistaken, or there was a miscommunication, or he made an assumption is not known. I accept as a fact that the PRP officers believed that only Mr. Trought was in the Unit without having conducted a search of the Unit and that the reference in the Operational Plan is not reliable evidence that a search had been done on May 2, 2017; and
d) As to the lack of officer safety concerns, the PRP testified why they were confident that only Mr. Trought had been in the Unit. The reasons given were credible.
The Notes
[141] The Defence also points to alleged inconsistencies and omissions in the PRP officers’ notes as evidence to suggest it is evidence of a cover-up and perjury by the PRP officers. I agree there are some inconsistencies and omissions. It is not surprising to find minor inconsistencies in different person’s account of the same event. I find that none of the inconsistencies or omissions rise to the level of being major inconsistencies or raising the spectre of a widespread cover-up or group perjury by the PRP officers.
[142] In other cases, the Defence submits that the PRP officers’ notes contain convenient, unrealistic and clear evidence of a cover-up and falsification. For example, one of the PRP officers who arrested Mr. Trought on May 2, 2017, noted in his book the presence of the empty gun case “in plain view.” The Defence suggests that this appears to be beyond what one would expect to be noted by police officers and appears to be designed to justify Charter compliance for what the PRP officers thought might be the Buchner murder weapon. The Defence point to such notes as evidence of the cover-up. I disagree. The note shows the importance the PRP officers took in memorializing the finding of an important piece of evidence while in a dwelling without a warrant. The photograph evidence confirms and establishes that the empty firearm case was in plain view on the kitchen counter of the small Unit.
REJECTED FACTUAL FINDINGS URGED BY THE DEFENCE
[143] It is necessary to explain why I rejected some of the facts urged upon this court. Fact finding requires the assessment of witness accounts, including any inconsistencies, the measure of such inconsistencies, any explanation for the inconsistency, and the materiality of the inconsistency of issues to be decided. When witnesses described the same situation, it is not uncommon to find minor inconsistencies. People see things differently and from different perspectives. In many cases, minor inconsistencies will have little impact on the credibility or reliability of the witnesses. More significant inconsistencies must be assessed more carefully because they may have a more significant impact on the credibility or reliability of a witness. The trier of fact must exercise a degree of common sense taking into account the totality of the circumstances and all the evidence.
[144] While the court is entitled to draw inferences from the evidence, caution must be exercised to ensure that any inference is drawn from facts found by the court and not based on speculation. The inference must be reasonable and the court must assess whether other inferences are also reasonably available on the facts. Where multiple reasonable inferences are available on the facts when considering all the evidence, the court cannot and should not find a fact from which it then draws other inferences.
Policy Regarding Video/Occupant Information/Fob Information
[145] The Defence submits there was a policy in place at Erin Centre that the security staff would only provide video, occupant information or fob information to the PRP with some form of judicial authorization. For the reasons set out above, I reject finding such a fact.
[146] Absent such a policy, I find that the video and information was voluntarily provided to the PRP. In any event, there is simply no evidence Mr. Trought was aware of any such “policy” or that he relied on such a policy to protect his privacy interests.
Dual Investigation when the PRP officer's entered the Unit on May 2, 2017
[147] The Defence submits that when the PRP entered Mr. Trought’s Unit to retrieve his jacket and possibly shoes, the PRP had undertaken a further and new investigation – namely whether Mr. Trought had disposed of illegal items over the balcony prior to exiting the Unit.
[148] I reject such a finding.
[149] The un-contradicted evidence from the PRP officers was that they were there to arrest Mr. Trought on the Toronto warrant and to question him as a witness in the Masta Lounge incident. The only evidence is that the PRP officers went into the Unit solely because Mr. Trought wanted to retrieve his jacket and/or shoes and, in order to do so, and Mr. Trought consented to the PRP officers entering the Unit. The obvious conclusion from their telling Mr. Trought they would have to accompany him into the Unit to retrieve his jacket was to give him a choice. If he chose not to retrieve his jacket/shoes, I am satisfied (and I find) that the PRP officers and Mr. Trought would have left the Unit to return to the police station.
[150] What the PRP officers heard at the door to the Unit may have raised suspicions and may have been enough to conduct a ground search, but they did not have sufficient reasonable and probable grounds at that time to believe Mr. Trought had committed any offence or to arrest him for such an offence.
[151] While there may be some inconsistency in the PRP officers’ recollection as to who had physical custody of Mr. Trought when they entered the Unit, these minor inconsistencies do not change the essence of their evidence - The PRP officers only entered the Unit because of Mr. Trought’s desire to get his belongings; with his consent and they accompanied him to do so.
The Signature Page
[152] The Defence took issue that, in one of the ITOs, the jurat of the PRP ITO officer was on a separate page. There is nothing to this submission. While it may be best practice to have the jurat immediately following the body of the affidavit (to avoid insertions), in this case, the copies of the ITO directly from the Justice of the Peace's office demonstrate that nothing was inserted from what had been submitted.
The PRP ITO Officer Meeting with the Informing Officers
[153] The Defence takes issue that the ITO does not disclose that the information from the two PRP officers was obtained during one interview to add further credibility to the PRP grounds. I take nothing from this. Whether there was a separate heading of information obtained from each officer or one combined heading, made no difference.
The Toilet Flush
[154] The ITO sets out information that the two PRP officers who arrested Mr. Trought had heard, while waiting for Mr. Trought to open the door, one or more toilet flushes. Neither of the two PRP officers testified as to this in their evidence to this court. I accept the evidence of the two arresting officers. Did the PRP ITO officer make a mistake or mishear the information? Perhaps. Nonetheless, it is clear that there was nothing nefarious about this and it is not a material error or a fact intended to mislead the issuing justice.
The Cell Sheet
[155] The Cell Sheet records when prisoner checks are conducted for those in PRP’s custody. The evidence is that the first prisoner check of Mr. Trought was at 4:00 p.m. on May 2, 2017. It was marked as completed (by either the cells officer or someone else). However, the person who did the cell check was not visible on the cell video.
[156] The Defence submits this shows falsification of records and a disregard for Mr. Trought’s wellbeing. I cannot find whether this particular cell check (out of a large number of cell checks) was or was not done around the time listed on the Cell Sheet. At the time, 11 Division was closed for renovations. As such, this was a very busy day in 12 Division’s cells, where Mr. Trought was being held. In any event, I am not persuaded there was anything nefarious about this possibly erroneous entry. It is not evidence of a cover-up. It has no bearing on Mr. Trought's Charter rights or the credibility of the PRP officers' testimony.
ALLEGED SECTION 10 CHARTER BREACHES
[157] The Defence submits that Mr. Trought's s. 10 Charter rights were violated and points to a number of alleged breaches.
Alleged breach - at the front door to the Unit when Mr. Trought was arrested
[158] The Defence submits that:
a) The PRP officers did not have a copy of the Toronto warrant or tell Mr. Trought the charges associated with the outstanding Toronto warrant, in other words, the underlying charges to the Toronto warrant; and
b) the PRP officer did not give Mr. Trought his rights to counsel and caution.
[159] There is no challenge to the validity of the Toronto warrant or that it was outstanding on May 2, 2017. It is an agreed fact that Mr. Trought knew of the outstanding Toronto warrant and the underlying charges to that warrant.
Failure to produce a copy of the Toronto warrant
[160] The Defence submits that the PRP were required to provide Mr. Trought with a copy of the Toronto warrant and to advise him with a list of the underlying charges to the Toronto warrant. The Defence points to s. 29 of the Criminal Code, which provides:
29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.
(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of
(a) the process or warrant under which he makes the arrest; or
(b) the reason for the arrest.
[Emphasis added.]
[161] There is no dispute that the PRP officers were legally authorized under s. 495 of the Criminal Code to arrest Mr. Trought as they had reasonable and probable grounds for believing there was an outstanding Toronto warrant.
[162] The PRP officers did not have a copy of the Toronto warrant when they arrested Mr. Trought. There is no evidence that Mr. Trought requested the PRP officers to produce a copy of the Toronto warrant.
[163] In R. v. Gamracy, 1973 CanLII 25 (SCC), [1974] SCR 640 at page 643-644, the Supreme Court held that it was not necessary to have a copy of an outstanding arrest warrant from another jurisdiction with an officer when affecting an arrest under that warrant:
As I have said, the arrest was being made without the officer having the warrant in his possession and it is therefore clear, in my opinion, that s. 29(2) is the applicable section and that the provisions of subs. (a) and (b) of that section are to be read disjunctively so that when an arrest is being made without a warrant, the duty of the arresting officer is fully discharged by telling the arrested person that the reason for his arrest is the existence of an outstanding warrant therefor. The trial judge appears to have thought, however, that when calling the police station for reinforcements because of the appellant’s violent and aggressive behaviour, the officer should at the same time have asked for details of the warrant for arrest. In this regard the trial judge said:
Was it feasible for Cronkwright to have informed the accused of the nature of the charge facing him. Here the facts are in part contradictory. As soon as the accused asked why he was being arrested, I am satisfied that the officer could have told the accused that he did not know the offence set out in the warrant and could have offered to secure such information either by telephone or by radio, from the cruiser, he Cronkwright was operating. However, such was not done by Cronkwright. On the other hand there is no doubt that the actions of Gamracy throughout the entire incident made it obvious that he had no intention of co-operating with the officer, and in this narrow sense it was not feasible for the officer either to show the warrant to Gamracy nor to tell him the reasons for his arrest. Certainly in retrospect there was fault on both sides.
In my view it was not only “not feasible” in a “narrow sense”, but it was no part of the officer’s duty to obtain the warrant to show to Gamracy or to ascertain its contents. The duty was fully discharged by telling the accused that the outstanding warrant was the reason for his arrest.
It will be seen that in the result I agree with Chief Justice Gale when he said, in the course of the reasons for judgment which he rendered on behalf of the Court of Appeal:
Here the police officer did not have a warrant with him; therefore, he was making the arrest without a warrant. But he was making the arrest pursuant to a warrant which was then outstanding and valid; and therefore, upon being asked the reason for the arrest, he gave notice to the respondent that the arrest was being made by virtue of that warrant. That is sufficient compliance with the provisions of s. 29(2).
[Emphasis added.]
[164] Section 29(2) requires a person executing a warrant to "give notice" to the person being arrest of "the warrant under which he makes the arrest". That was done in this case. Mr. Trought was told that he was being arrested because of the outstanding Toronto warrant. Mr. Trought knew about the outstanding Toronto warrant.
[165] I am satisfied that a copy of the Toronto warrant need not have been available or provided to Mr. Trought when arrested.
Failure to tell Mr. Trought the underlying charges under the Toronto warrant
[166] Section 10 (a) of the Charter provides:
- Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
[167] As described in R. v. Roberts, 2018 ONCA 411 at para. 63:
Breaches of s. 10(a) can be “temporal” or “informational”. A temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their detention. An “informational” breach arises if the reasons for their detention are not adequately communicated.
[168] A temporal breach is the failure of the detainee to be informed promptly of the reasons for the arrest. In my view, this situation does not arise in the present case as the PRP officers told Mr. Trought he was being arrested on the outstanding Toronto warrant as soon as he came out of his Unit.
[169] An information breach arises if the reason for the detention is not adequately communicated. The Supreme Court in R. v. Evans,1991 CanLII 98 (SCC), [1991]1 S.C.R. 869 described the purpose behind s. 10(a) of the Charter at pp. 875, 886-888:
The right to be informed of the true grounds for the arrest or detention is firmly rooted in the common law which required that the detainee be informed in sufficient detail that he or she “knows in substance the reason why it is claimed that this restraint should be imposed”
The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly(1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53, "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy". In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.”
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
[Emphasis added.]
[170] The reason(s) for the arrest does not need to be expressed in technical or precise language, but must, in substance, inform the detainee why he or she is being arrested and be sufficient for the detainee to understand the jeopardy he faces.
[171] The Defence submits the Charter requires the police to describe the outstanding warrant’s underlying charges.
[172] The Defence distinguishes Gamracy as a pre-Charter case and that, post-Charter, a detainee is entitled to know the underlying charges of the outstanding warrant. In support of this submission, the Defence points to R. v. Wrightman, 2004 ONCJ 210, affirmed [2005] O.J. No. 1360 (Sup. Ct.).
[173] I am not persuaded by the analysis of Hornblower J., in the trial decision of Wrightman. There was no analysis of whether the "reason" for the arrest was probable grounds to believe there was an outstanding warrant rather than probable grounds relating to the underlying charges. With the greatest of respect to Donohue J. sitting as the Summary Conviction Appeal Court, there was little analysis on this point in the appeal reasons.
[174] In my view, any analysis on this issue must start with the legal basis and actual basis upon which the person was arrested. In this case, the PRP officers were arresting Mr. Trought because they had reasonable grounds to believe there was an outstanding warrant for Mr. Trought's arrest, based on their CPIC search and discussions with Toronto police officers. The PRP officers were NOT arresting Mr. Trought on the underlying charges. The PRP officers were not there to arrest or investigate the underlying charges.
[175] The PRP officers made it clear to Mr. Trought that they did not even want to question him or talk to him about the Toronto charges. In other words, in this case, it is clear Mr. Trought’s arrest was pursuant to s. 495 of the Criminal Code and not because the PRP officer had reasonable and probable grounds to believe Mr. Trought had committed the underlying offences.
[176] Mr. Trought was told and knew the reason why he was being arrested – the outstanding Toronto warrant.
[177] To accept the reasoning in Wrightman would require police officers to know precisely the underlying charges of an outstanding warrant from another jurisdiction and state those underlying charges to the person arrested.
[178] The law has never required the precision the Defence seeks to impose as a Charter right. The law only requires the person arrested to "generally" know the jeopardy so that the person detained can decide whether to submit to arrest and to properly exercise his s. 10(b) rights. As stated in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28:
Section 10(a) of the Charter provides the right to be informed promptly of the reasons for one’s arrest or detention. The purpose of this provision is to ensure that a person “understand generally the jeopardy” in which he or she finds himself or herself: R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728.
[179] In this case, Mr. Trought had sufficient knowledge and understanding of his jeopardy so as to allow him to decide whether he would resist or submit to the arrest and consult counsel about the outstanding Toronto warrant, of which the Defence concedes Mr. Trought knew of the outstanding Toronto warrant and the underlying charges.
[180] Another important factor in this case is that the PRP made no attempt to investigate the underlying charges. The PRP made that clear to Mr. Trought. Had the PRP investigated the underlying charges or questioned Mr. Trought regarding the underlying charges, then Mr. Trought may well have been entitled to be advised of the specific underlying charges.
[181] I add one serious practical concern regarding the effect of the decision in Wrightman. If it were to be the law, enforcement of outstanding arrest warrants would become frustrated. A few examples:
a) A police officer who, by happenstance, after checking CPIC, encounters a person who is the subject of an outstanding warrant, would not be able to arrest that person until the police officer ascertains with precision the underlying charges so as to be able to inform the person to be arrested of the underlying charges. This would likely result in a significant delay. If the arresting officer relies on the CPIC information and it is wrong, is it a valid arrest? Were the person's Charter rights violated? Can the police officer detain the person while he or she ascertains the underlying charges? How could this be accomplished in the evenings when court offices are closed?
b) Bench warrants are issued with regularity. If a bench warrant is issued, it would be impractical for an arresting police officer to ascertain the then current outstanding charges at the time the arrest. It is not uncommon for charges to have changed from the time of the initial arrest, or changed at the preliminary hearing or changed by way of an amendment of the Indictment prior to trial.
[182] I am not persuaded it is necessary or required by the Charter that a police officer inform the detainee of the underlying charges of an outstanding arrest warrant if all the police officer is doing is arresting the person under the warrant as the law has ordered.
[183] There was no Charter violation arising from a failure to tell Mr. Trought the underlying charges on the Toronto warrant.
Failure to provide Mr. Trought with RTC
[184] The authorities establish that s. 10(b) of the Charter creates a duty on the police to:
(a) inform the detainee of his right to counsel;
(b) give the detainee, if he so wishes, a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and
(c) refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel. If the detainee wishes to speak with counsel, the detainee must be reasonably diligent in attempting to obtain counsel if he wishes to do so, otherwise the correlative duty on the police to refrain from questioning him is suspended.
[185] Section 10(b)’s purpose is to ensure that individuals know of their right to counsel, and can access that right in situations where they are in a position of legal jeopardy. The right to counsel is meant to help detainees regain their liberty and guard against the risk of involuntary self-incrimination. See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41. There are no specific words needed for compliance with s. 10(b) provided that the words used achieve the objectives of s. 10(b).
[186] Immediately upon Mr. Trought's exit from the Unit, he was arrested on the outstanding Toronto warrant. Mr. Trought was “cautioned”:
i. That anything he said could be used against him;
ii. That he would not be asked about the Toronto charges;
iii. That he could speak to a lawyer at 12 Division; and
iv. That the PRP only wanted to speak with him regarding the Masta Lounge incident.
[187] Except for one question (perhaps repeated twice) which I will deal with below, there was no immediate questioning of Mr. Trought by the PRP officers. There is no evidence that Mr. Trought did not understand what he had been told.
[188] The timing of and what occurs next is significant. Mr. Trought came out of his apartment at 2:20 p.m. A few minutes went by while Mr. Trought's jacket and possibly shoes were retrieved from the Unit. There was the discovery of the possible firearm and the empty firearm case. The PRP officers waited a few minutes for an officer to arrive to secure the Unit. Mr. Trought was turned over to the PRP transport officer at 2:36 p.m. and placed in the rear of the police cruiser. At 2:43 p.m., the PRP transport officer explained to Mr. Trought his full rights and caution. I am not persuaded that, given the initial abbreviated rights and caution and what was occurred in the subsequent few minutes constituted unreasonable delay.
[189] Aside from one question of "where's the gun" (which I will deal with below), I do not find there was a Charter breach arising from the delay.
Alleged breach - to provide RTC/explanation prior to re-entry into the Unit
[190] The Defence submits that the PRP had an obligation to ensure Mr. Trought understood the consequences of consenting to the PRP officers entering the Unit. The Defence argues that the failure to provide this information to Mr. Trought was a Charter breach. In essence, the Defence submits that Mr. Trought should have been told that, if Mr. Trought agreed to let the PRP officers enter the Unit, anything in plain view could result in additional jeopardy to Mr. Trought.
[191] I disagree.
[192] The PRP officers were not there to search the Unit. They told Mr. Trought that. The PRP officers did become suspicious when Mr. Trought delayed opening the door and they heard "scurrying" and other noises. But there is no evidence that there was an intention by the PRP officers to enter into the Unit to conduct a search or engage in any investigation relating to their suspicion. In fact, the evidence is to the contrary. Entry into the Unit only became an issue when Mr. Trought wanted to re-enter the Unit. The PRP officers correctly told Mr. Trought he would not be permitted to re-enter the Unit without them accompanying him. There were valid safety and other reasons for the PRP officers taking this position. There was no subterfuge by the PRP officers to enter the Unit. Had Mr. Trought said that the PRP officers could not enter the Unit, Mr. Trought would not have been permitted to enter the Unit and Mr. Trought would have been on his way to the police station. It is only after receiving Mr. Trought's consent that the PRP officers entered the Unit with him.
[193] The PRP officers did not advise Mr. Trought that, if there were any illegal items or contraband in plain view, Mr. Trought could potentially face additional jeopardy. Is that required?
[194] The Defence has provided no authority imposing such an obligation on police officers. I have found none. It would be absurd if every time a police officer interacts with a person the police officer is required to explain to the person that, if they see something illegal on their person or in their property, in plain view, the police can rely on the observation. Surely, the public cannot expect the police to turn a blind eye when evidence of an offence is in plain sight when the police are lawfully at the location.
[195] The Defence anchors this submission on the basis that the entry of the Unit was in furtherance of a second investigation. For the reasons set out above, I have already rejected the Defence’s "dual investigation" submission. I find there was no other "investigation" by the PRP officers when they entered the Unit to accompany Mr. Trought to retrieve his personal items. The PRP officers did not know there was an empty gun case left on the kitchen counter that might lead to a firearm investigation. The entry into the Unit was not subterfuge for the PRP officers to investigate the suspicious noises or activity by Mr. Trought. There was no coercion. Mr. Trought's agreement to permit the PRP officers into the Unit was clearly voluntary. It was an informed choice by to let the PRP officers into the Unit.
[196] The re-entry was not a breach of Mr. Trought's s. 8 Charter rights.
Alleged breach – to Question Mr. Trought Inside the Unit
[197] Once inside the Unit, one PRP officer saw what appeared to be a firearm on the entrance overhang and the other PRP officer saw an empty firearm case on the kitchen counter. I accept that the PRP officer's question (perhaps twice asked): "where's the gun" was a violation of Mr. Trought's Charter rights to hold off questioning Mr. Trought until he had been given an opportunity to speak with counsel or waived that right. The Crown concedes this was a breach of Mr. Trought’s Charter rights.
[198] Mr. Trought did not respond to the question. Although, the PRP officer testified Mr. Trought looked down and appeared, for lack of a better word, forlorn. The PRP officer took this as some indication of a consciousness of guilt by Mr. Trought. Mr. Trought’s reaction would be a direct result of the improper question(s) and is directly, causally, temporally and contextually connected to the Charter breach. I am satisfied that Mr. Trought's Charter rights were breached when asked this question(s).
Alleged breach – to provide a RTC by PRP Transport Officer
[199] The Defence submits that the PRP transport officer’s RTC was deficient because of the:
a) Failure to specify the underlying Toronto warrant charges; and
b) Failure to specify the detailed firearm charges.
[200] The PRP officers testified that they were not concerned about the marijuana they saw on the fridge. That is why the PRP officers only told Mr. Trought that he would be charged with firearm offences when they left the Unit.
[201] For the reasons set out above that specifying the underlying charges to the Toronto warrant were not required and the fact the PRP officer told Mr. Trought they would not ask about the Toronto warrant charges (and they did not), there was no Charter breach arising from not telling Mr. Trought the underlying Toronto warrant charges.
[202] The PRP officers at the Unit acted promptly and properly before even leaving the Unit when they immediately told Mr. Trought that he would be facing firearm charges and reminded him of the caution previously provided (that anything he said could be used against him) would continue.
[203] Turning now to the firearm charges, the Defence submits that Mr. Trought was not given details of the weapons charges he faced. That is true. The PRP officers had found the firearm case. The PRP had not yet found the firearm. They did not know whether the firearm, if they found one, would be loaded, have its serial numbers defaced, how it was stored, whether Mr. Trought was subject to a prior s. 109 order, and so on. It would not have been possible to provide Mr. Trought with a complete and precise list of the weapons related offences he faced at the time.
[204] More importantly, it is not necessary that a person arrested know the exact charges against him. It was sufficient if Mr. Trought understood the extent of his jeopardy. He knew it was in relation to the illegal possession of a firearm - he was told that - he was even asked a question of where the firearm was. In assessing whether there has been a breach of section 10(a) of the Charter, the question is whether the police has informed the Applicant the reason for his arrest, viewed reasonably in all the circumstances of the case, in a manner that is sufficient to permit him to make reasonable decisions when faced with the police investigative process.
[205] As stated in R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 SCR 714 at pp. 728-729:
These cases establish that, regardless of whether the focus is on the sufficiency of the initial s. 10(b) advice or on the waiver, what is required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at other times. Many might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder.
It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.
The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.
[Emphasis added.]
[206] I find that Mr. Trought at the time needed only to know, for the purpose of exercising his Charter rights, generally that the jeopardy he faced was the illegal possession of a firearm. This information was sufficient to allow him to decide whether or not to consult with counsel and a subsequent course of conduct regarding the firearm charge.
[207] I find no Charter breach as suggested by Defence counsel.
Alleged breach – to detail the Charges in the Booking Room
[208] The Defence submits that Mr. Trought's Charter rights were breached when the PRP transport officer did not inform duty counsel of the specific firearm charges that Mr. Trought faced in the Booking Room.
[209] I accept the evidence of PRP transport officer that he told duty counsel of the "weapons related charges" or "possession of a firearm" and outstanding Toronto warrant. I reject the Defence submission that the PRP transport officer only told duty counsel about the possession of a firearm charge. I find as a fact that the RPR transport officer told duty counsel of the firearm charges and the outstanding Toronto warrant. It makes little sense that the PRP transport officer would not have advised duty counsel of the outstanding Toronto warrant.
[210] Mr. Bederka was duty counsel on the call. He answers up to 60 duty counsel calls per shift. This particular call was two years ago. He had no recollection of the events aside from his "Duty Counsel Report." Mr. Bederka only recorded on the report "poss firearm" but testified he "usually, almost always" puts down the charges stated by the calling police officer but later said he was "confident" there was only one charge in this case but later said "possible but unlikely" there were other charges told to him. In my view, Mr. Bederka's evidence is unclear whether he wrote down on the Duty Counsel Report all the charges left on his message particularly if one related to being arrested on an outstanding warrant without further particulars. I prefer the evidence of the PRP transport officer who had made notes of the events, which he relied on to refresh his memory and his recollection of what charges he told duty counsel.
[211] It is important to note that the drugs had not yet been found on the neighbouring balcony. The loaded firearm had not been found yet.
[212] In any event, Mr. Trought knew why he was under arrest. This information was sufficient to permit Mr. Trought and duty counsel to appreciate the jeopardy Mr. Trought was facing, permit duty counsel to give Mr. Trought the proper legal advice in the circumstances and allow Mr. Trought to make an informed decision whether to speak to the PRP.
[213] The Defence submits that it was also a breach of Mr. Trought's Charter rights when the PRP transport officer failed to tell duty counsel that the PRP wanted to question Mr. Trought regarding the Masta Lounge incident. I reject this submission. Mr. Trought was not under arrest or detailed with regard to the Masta Lounge incident. He was not a suspect. He was not a person of interest. There was no jeopardy to Mr. Trought. The PRP wanted to talk with him as a witness. Like any possible witness, a witness is free to answer or not answer police questions and the police are not required to give a witness rights and caution before speaking with them. In any event, Mr. Trought knew that the PRP wanted to speak to him regarding the incident at Masta Lounge.
[214] The Defence submits I should discount the evidence of the PRP officers in the Booking Room as it is PRP's decision not to audio record what goes on in the Booking Room and the PRP officers had little recollection other than what was contained in their notebooks or the Cell Sheet. I am satisfied that, in this case, given the issues, there is sufficient evidence for this court to find the facts set out above as to what occurred in the Booking Room.
[215] The Defence submits that Mr. Trought only spoke to duty counsel because he had no choice since the PRP officers did not facilitate him speaking with his counsel of choice. I disagree. There was no challenge to PRP transport officer's evidence that, after the efforts to contact Mr. Trought's counsel of choice, Mr. Trought agreed to speak with duty counsel and did so.
[216] The Defence submits that Mr. Trought continued to want to speak to his counsel of choice after he spoke to duty counsel. There is no evidence, and I do not find, that Mr. Trought, after speaking with duty counsel, expressed any continuing desire to speak with his counsel of choice or expressed any dissatisfaction of the advice from duty counsel. There is no such evidence from Mr. Trought.
[217] I do no find a breach of Mr. Trought's Charter rights in the Booking Room. I will more fully set out below why the PRP did not breach Mr. Trought's Charter rights to speak to his counsel of choice.
Alleged breach - to Provide Further RTC after the Discovery of the Firearm/Drugs
[218] The PRP officers found the loaded firearm and drugs on Unit 1009’s balcony at 4:39 p.m. The Defence submits that Mr. Trought's jeopardy changed after the loaded firearm and drugs were discovered and, as a result, Mr. Trought should have been immediately provided his RTC again.
[219] At this point, though, Mr. Trought was already under arrest. The police were dealing with this significant discovery and did not engage in any questioning of Mr. Trought regarding the discovery and the new charges. There was no questioning of Mr. Trought on these matters until the second interview.
[220] Mr. Trought was already aware of the firearm charges he faced, albeit not all the specific charges had been described. The only increased jeopardy relates to the PforP charges arising from the discovery of the drugs.
[221] Given the speed at which matters were moving, the continued search of the surrounding ground area in front of the balcony of the Unit, the decision to seek a search warrant for the Unit, the lack of questioning regarding any charges, I am not persuaded that the delay was an unreasonable delay in informing Mr. Trought of the additional drug charge.
[222] I find no Charter breaches arising from the delay in advising Mr. Trought of the discovery of the firearm and the drug charge.
Alleged breach - to Disclose Interview regarding Masta Lounge
[223] The Defence submits that the two interviews were in essence one interview. I disagree. The statements by the PRP interviewing officer, at the commencement of the first interview, made it clear that Mr. Trought had NO jeopardy during the first interview and that, the second interview would deal with the investigation into the Peel charges.
[224] The Defence suggests there was possible jeopardy to Mr. Trought because Mr. Trought had swung a bottle during the altercation at Masta Lounge, an assault, and the PRP could later have charged Mr. Trought.
[225] This is entirely hypothetical. The PRP interviewing officer told Mr. Trought he would not be charged with respect to the Masta Lounge incident. The PRP interviewing officer was clear during his testimony, that he could be "sure" that Mr. Trought would not be charged for the Masta Lounge incident.
[226] The submission by the Defence is entirely speculation. Mere speculative jeopardy is not enough to trigger Charter rights, particularly in light of the assurances given to Mr. Trought at the beginning of the first interview.
[227] The Defence points to the fact that Mr. Trought admitted during this first interview that he lived at the Unit, a fact that might be relevant to the possession of firearm and drug charges. The fact Mr. Trought lived at the Unit was already known to the PRP prior to the first interview. The PRP had been told by the security staff Mr. Trought lived at the Unit. Mr. Trought had a fob to the Unit. Mr. Trought was the only person in the Unit on May 2, 2017. The PRP knew Mr. Trought was the tenant and Mr. Mansour was the owner. I am not persuaded this was an admission sought by the PRP. The first interview was not an attempt to circumvent Mr. Trought's Charter rights to obtain this admission or any admissions to be used against him on the firearm and drug charges.
[228] The Defence submits that this admission (of Mr. Trought’s occupancy of the Unit) "tainted" the second interview. For the reasons set out below, I disagree with this submission.
[229] I find no Charter breach in the failure to provide Mr. Trought RTC regarding the Masta witness interview.
Alleged breach - to tell the Second Duty Counsel all the Charges
[230] The PRP interviewing officer agreed that he did not tell the duty counsel the detailed firearm charges or the controlled substance which was the PforP charge. The Defence submits that Mr. Trought's Charter rights were breached when the PRP interviewing officer did not tell the second duty counsel the detailed firearm charges or which drug was associated with the PforP charge.
[231] Mr. Murphy was the second duty counsel who spoke to Mr. Trought that day. He spoke to Mr. Trought at 8:02 p.m. He noted on the Duty Counsel Report the following charges: "Poss Res FA" and "PforP" meaning possession of a restricted firearm and possession for the purpose of trafficking. Like Mr. Bederka, Mr. Murphy could not recall the conversation with Mr. Trought and relied solely on what was contained in his Duty Counsel Report.
[232] Mr. Murphy also testified that if an accused wanted to speak to his counsel of choice, he would have advised Mr. Trought to keep asking the police officers to do so. There is no evidence Mr. Trought did so.
[233] On the issue of what controlled substance was the subject of PforP, Mr. Murphy testified it would have made no difference what drug was the subject of the PforP and his advice would not have changed. Clearly, the drug associated to the PforP charge was not of interest to the second duty counsel regarding the degree of jeopardy or the advice to be given the arrested person. Given the purpose of s. 10(b) of the Charter, I find no Charter breach for the failure of the PRP interviewing officer to advise the second duty counsel of the actual controlled substance of the PforP charge.
[234] As for the firearm charges, Mr. Trought was told by the PRP interviewing officer, at the beginning of the second interview and prior to Mr. Trought speaking with the second duty counsel, that Mr. Trought would be facing firearm charges such as "unlawful possession, careless storage, um things like that." It is worth repeating that the purpose of s. 10(b) is for the arrested person to understand the jeopardy he faces and obtain legal advice in connection with his detention. As stated by the Court of Appeal in Roberts, at para. 78, all that is required is “information that is sufficiently clear and simple to enable [the accused] to understand the reason for their detention and the extent of their jeopardy.”
[235] In Evans, the Supreme Court of Canada said at pp. 892-893:
[T]here is a duty on the police to advise a detainee of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than the case at the time of the first warning. …
I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm….the police must re-state the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.
[Emphasis added.]
[236] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court stated at para. 51 that a detainee must be given a further opportunity to consult with counsel: “when the investigation takes a “new and more serious turn” and his or her jeopardy changes”.
[237] The Crown submits that the extent of the jeopardy arising from the firearm charges was known to Mr. Trought and to the second duty counsel. I agree.
[238] The question to be asked is whether there was a new and more serious turn increasing his jeopardy. The question is not, as suggested by the Defence, whether Mr. Trought understood the exact firearm charges faced by Mr. Trought.
[239] I am satisfied Mr. Trought understood the jeopardy he faced when he spoke to the first duty counsel and there was NOT a "new and more serious turn" in his jeopardy. Mr. Trought knew that the charges were firearm charges and were serious and carried significant penalties.
[240] The Defence points to the fact that, after Mr. Trought spoke to second duty counsel, Mr. Trought was told that the charges were: unauthorized possession of a firearm, careless storage of a firearm, careless storage of ammunition, tampering with a serial number on a firearm and possession of a weapon for a dangerous purpose. Mr. Trought was expressly told, prior to speaking with duty counsel, that the firearm and drug charges were serious and carried "significant penalties."
[241] No doubt it is troubling that the PRP interview officer did not delineate the exact charges prior to the second duty counsel opportunity, since apparently some of the specific charges were known. The detailed list would have been preferable rather than just being told of "firearm charges" and "possession of a firearm, careless storage and um things like that".
[242] While this is troubling, I am not persuaded that the Defence has established on a balance of probabilities that this constituted a Charter breach. As stated above, a detainee is entitled to know generally the charges against him or her so that the detainee can get appropriate legal advice in relation to the jeopardy the detainee faces. Mr. Trought knew the charges against him generally, knew that they were serious, and knew that they carried significant penalties and that they were firearm-related charges. I am not persuaded that there was any significant change in jeopardy with the list of the firearm related charges.
Alleged breach - to Hold Off Questioning regarding the Masta Lounge interview
[243] For the reasons set out above, questioning Mr. Trought with respect to any information he had regarding Masta Lounge prior to having further opportunity to speak to duty counsel was not a Charter breach.
[244] It is clear from the second interview that the PRP interviewing officer does not question Mr. Trought about any of the firearm and drug charges and nothing is volunteered by Mr. Trought prior to speaking with second duty counsel.
[245] I find no Charter breach on this issue.
Tainting of Second Interview
[246] As I have found no Charter breach for either the first interview or the second interview, both are admissible. Since both counsel have addressed the issue of tainting, I will deal with this issue.
[247] Tainting was discussed at paras. 20-21, 23 of R. v. Wittwer, 2008 SCC 33,[2008] 2 SCR 235:
The decisive question on this appeal is whether the appellant’s third statement was tainted by the Charter breaches that marred the appellant’s earlier statements relating to the same charges.
In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.
In this regard, I consider particularly apt the observations of Sopinka J., speaking for a unanimous Court in R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at pp. 526-27:
Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements. These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances. . . .
In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement. . . .
In these cases the fact that a caution or warning had been given or that the advice of counsel had been obtained between the two statements was a factor to be considered but it was by no means determinative. While such an occurrence went a long way to dissipate elements of compulsion or inducement resulting from the conduct of the interrogators, it might have little or no effect in circumstances in which the second statement is induced by the fact of the first.
[Emphasis added.]
[248] The only question from the first interview which could possibly relate to the Peel firearm/drug charges was whether Mr. Trought lived at the Unit. For the reasons stated above, Mr. Trought’s residence was not a contentious issue at the time of the first interview. This fact had been established in a number of ways prior to the interview.
[249] Does this taint the second interview? In my view it does not. The only further questioning in this area at the second interview (after the RTC and call to duty counsel) related to whether he had a roommate and whether the roommate had a firearm. The second interview was not part of the same transaction or course of conduct as the first interview.
Alleged breach - to Facilitate Counsel of Choice
[250] The Defence submits that Mr. Trought was denied, from the time of his arrest, the ability to obtain advice from his counsel of choice.
[251] Let me first review the facts:
i. Mr. Trought told the PRP officers at his door that he was speaking with his counsel;
ii. When placed in the rear of the police cruiser, Mr. Trought told the PRP transport officer he would speak to his counsel at the police station. The PRP transport officer wrote down the name "Joe Hecktor" and two telephone numbers for "Joe Hecktor";
iii. The PRP transport officer transported Mr. Trought to the police station. There is no evidence of any conversation taking place in the police cruiser;
iv. When the PRP transport officer arrived at the station and Mr. Trought was booked, the PRP transport officer dialed both the telephone numbers provided by Mr. Trought for his counsel of choice. Neither connected to Mr. Trought's counsel of choice;
v. The PRP transport officer and the cells officer looked for and could not find the Legal Directory in its usual place under the counter;
vi. The PRP cells' officer attempted a Google search but could not find a number for "Joe Hecktor" - exactly what spelling he used is unknown and whether he discussed the spelling with Mr. Trought is unknown;
vii. The PRP transport officer told Mr. Trought that he could not reach his counsel and asked whether Mr. Trought wanted to speak with duty counsel. Mr. Trought said "yes";
viii. Mr. Trought signed a computer screen that duty counsel had been called;
ix. The first duty counsel was called. Duty counsel was told that Mr. Trought was under arrest for charges relating to possession of a firearm and for a Toronto warrant. Mr. Trought spoke to duty counsel;
x. Mr. Trought did not express a continued desire to speak with "Joe Hecktor." All the PRP officers testified that if Mr. Trought had expressed any dissatisfaction with the legal advice received, they would have either gotten another duty counsel or made further efforts to get his counsel of choice. There is no evidence of any such requests by Mr. Trought;
xi. There was no further questioning of or statements made by Mr. Trought until 6:14 p.m. when the first interview (Masta Lounge) started;
xii. At the start of the second interview (firearm/drugs), Mr. Trought was provided a further RTC and caution. The PRP interviewing officer said he was prepared to call Mr. Trought's mother to get his lawyer's phone number. Mr. Trought did not avail himself of this offer. At about 7:21 p.m. Mr. Trought said he wanted to speak with his counsel of choice, Joel Hechter (pronunciation and spelling unknown);
xiii. When Mr. Trought was asked if they could not reach Joel Hechter, "do you want to speak with duty counsel", Mr. Trought answered "okay sure." The PRP interviewing officer again asked "Okay?" and Mr. Trought again responded "yeah";
xiv. At 7:25 p.m., the PRP interviewing officer, having dealt with Joel Hechter before, called Mr. Hechter's telephone number, there was no answer and he left a message for Joel Hechter to call back;
xv. At 7:45 p.m., the PRP interviewing officer call Joel Hechter's telephone number again. Again there was no answer and again he left a message;
xvi. At 8:02 p.m., the PRP interviewing officer arranged for Mr. Trought to speak with duty counsel. Mr. Trought did so for five minutes;
xvii. The PRP interviewing officer kept his cell phone with him in case Joel Hechter returned the call during the interview;
xviii. Joel Hechter did not return the PRP interview officer’s call that night;
xix. Mr. Trought did not express any dissatisfaction with the advice from the second duty counsel;
xx. Mr. Trought, at no point, expressed a continuing desire to want to speak to Joel Hechter; and
xxi. The PRP interviewing officer began asking Mr. Trought questions.
[252] As set out at paras. 35 and 42 of R. v. Willier, 2010 SCC 37,[2010] 2 SCR 429, 2010 SCC 37, s. 10(b) entitles a detainee a reasonable opportunity to contact counsel of choice:[35]Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, /1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the right to counsel of choice, at pp. 10-11.
As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier’s legal advice.
[253] I am satisfied that, in this case, the PRP officers in the Booking Room made genuine, bona fide, reasonable efforts to contact Mr. Trought's counsel of choice. When those efforts failed, Mr. Trought agreed to speak with duty counsel and expressed no continuing desire to speak with or wait for his counsel of choice.
[254] I am also satisfied that, at the commencement of the second interview, the PRP interviewing officer also made genuine, bona fide, reasonable efforts to contact Mr. Trought's counsel of choice. Again, Mr. Trought agreed to speak with duty counsel. I accept that if the interviewing officer had thought Mr. Trought had continued to want to speak with counsel of choice, he would have stopped the interview.
[255] The Defence suggests that when Mr. Trought asked to have his counsel present during the second interview, this was tantamount to a renewed request to speak with his counsel of choice. I am not prepared to speculate that this is what Mr. Trought intended by making this request.
[256] This failure of Mr. Trought to renew or continue with a request to speak to his counsel of choice, after speaking with duty counsel, weighs heavily against finding a Charter breach. An accused is required to act diligently to assert a right to speak to counsel of choice. This law on counsel of choice was canvassed in R. v. Blackett, 2006 CanLII 25269 (Ont. Sup. Ct.) and summarized at paras. 10, 15,19, 23-24, and 29as follows:
It seems clear that where the police make reasonable efforts but cannot contact counsel of choice then, if the accused fails to make use of legal aid duty counsel, there will be no s. 10(b) breach: R. v. Gibson, 1988 CanLII 4795 (ON SC), [1988] O.J. No. 943 (C.A.).
Therefore, the failure of the accused to reassert a wish to speak to counsel of choice after conferring with duty counsel will obviate any breach of s. 10(b). Similarly, the unexpressed wish of an accused to speak to counsel of choice initially will obviate a breach based on denial of counsel of choice: R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.).
It has been established that the police must take some step to facilitate contact with counsel of choice. In R. v. Kumarasamy, Durno J. held that where the accused asks for specific counsel, there will be a breach if the police make no effort to facilitate contact with counsel of choice and simply refer the accused to duty counsel – even though the accused then fails to take advantage of duty counsel: para. 21. It has also been held that the police must take some step even where the accused only asks for specific counsel after consulting duty counsel – provided the accused was honestly attempting to obtain legal advice: R v. Keeley,[1996] O.J. No. 2307 (O.C.J.). At that stage there would be no need for the police to take further steps if they have already taken some good faith step to facilitate the right to counsel of choice: Richfield.
I respectfully disagree with these “minimum standards”. What is a reasonable effort by the police will depend on all the circumstances and is a matter for the trial judge. It seems clear that the appellate courts have chosen not to set any specific minimum standard.
The trial judge must look at the context: R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135. The trial judge must assess whether the accused was afforded a reasonable opportunity to consult with counsel by considering all the surrounding circumstances: R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375.
It appears to me that the case law dictates this three stage analysis of these s. 10(b) “right to counsel of choice” situations:
(a) Did the police fulfil their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty then there is no breach of s. 10(b).
(b) If the police did not fulfill their duty then there are two possibilities:
(i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(b) is established: Kumarasamy.
(ii) If the police breached their duty because they made some effort but it is found not to constitute “reasonable diligence”, the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then a s. 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b): Brydges; Richfield.
(c) If a breach of s. 10(b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s. 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested that the threshold for exclusion is higher in Breathalyzer cases: at para. 18.
[Emphasis added.]
[257] Applying the above, it is clear that the PRP officers acted reasonably and diligently to facilitate Mr. Trought's counsel of choice. The PRP fulfilled their duty to Mr. Trought as bona fide efforts were made to contact counsel of choice. Mr. Trought accepted that these efforts were unsuccessful and agreed to exercise his Charter right by speaking to duty counsel on two occasions. If Mr. Trought truly wanted to continue to speak with counsel of choice, he failed to tell anyone this and thereby failed to diligently assert this to any of the PRP officer.
[258] The Defence submits that, if the PRP had done more in the Booking Room, then Mr. Trought would have been able to speak with his counsel of choice. Maybe. However, once Mr. Trought agreed to speak to duty counsel and expressed no continuing desire to speak with counsel of choice, there was no need for the PRP officers to continue to make efforts to contact Mr. Trought's counsel of choice. I am not prepared to speculate that Mr. Trought had such a continuing desire or that the PRP officers should have done more absent Mr. Trought communicating such a continuing desire.
[259] The Defence relies on R. v. Maciel, 2016 ONCJ 563, a decision which is not binding on this court. I agree with Ferguson J. in Blackett that the Court of Appeal has not set minimum steps to be taken by police officers. Whether the police officers have fulfilled their duty to the arrested person must be determined by a careful analysis of the circumstances of the case.
[260] The Defence submits that none of the PRP officers took any steps to email Mr. Trought’s counsel of choice. There is no evidence that an email would have been received and/or responded to by Mr. Trought’s counsel of choice any differently than a phone call. More importantly, when Mr. Trought agreed to speak with duty counsel on two occasions rather than his counsel of choice, there would have been no further reason for the PRP officers to make further efforts to email or take any other steps unless and until Mr. Trought renewed his request to speak with counsel.
[261] The Defence points to the availability of an online LSUC database for lawyers which the PRP failed to check. This ignores the fact that, according to Mr. Trought he had already spoken to his lawyer at the Unit, given the telephone numbers to the PRP transport officer, the PRP officers called the telephone numbers given to them by Mr. Trought with no success and then Mr. Trought agreed to speak to duty counsel.
[262] I find the Defence has failed to establish that the PRP breached Mr. Trought's Charter rights by failing to facilitate him speaking to counsel of choice.
THE ALLEGED SECTION 8 CHARTER BREACHES
[263] The Defence alleges a number of breaches of Mr. Trought’s s. 8 Charter rights.
Alleged Breach - Obtaining Video from the Taxi
[264] The Defence submits that the PRP breached Mr. Trought’s Charter rights when the PRP obtained video from the April 15, 2017, taxi ride used to identify Mr. Trought. The Defence provided no authority where, in similar circumstances, such information was considered to be a Charter-engaging search.
[265] This submission, like some of the submissions to follow, appears to suggest that any inquiry by the police regarding to collect any personal information, even where it is only to identify a person, is protected by Charter rights. The authorities have never gone this far.
[266] Mr. Trought was in a public place – a public taxi on a public roadway. There is no evidence that the video was taken by compulsion, trickery or any other method. It was obtained with the consent of the taxi owner.
[267] As stated at paras. 17-18 of R. v. Tessling,2004 SCC 67,[2004] 3 SCR 432, not every intrusion by the police into personal information gives rise to Charter rights:
At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures. A balance must be struck, as held in Hunter v. Southam, supra, at pp. 159-60, per Dickson J.:
. . . an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
The notion of the “balance” was also canvassed by Sopinka J. in advocating a “contextual approach” in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293:
Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allows for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement.
In the result the right to be free from examination by the state is subject to constitutionally permissible limitations. First, “not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search’ within the meaning of s. 8”; Evans, supra, at para. 11. It is only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 533. Second, as the language of s. 8 implies, even those investigations that are “searches” are permissible if they are “reasonable”. A search will not offend s. 8 if it is authorized by a reasonable law and carried out in a reasonable manner: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265.
[268] The information the PRP obtained from the taxi did not result in any core biographical information being obtained by the police. The information as to who got into the taxi and where it went could have been observed (and hence available) to any member of the public.
[269] I am not persuaded that Mr. Trought’s Charter rights were engaged when the police obtained a copy of the video of the taxi’s occupants and the destination.
Alleged Breach -Obtaining Video, Tenant Information and Fob Information
[270] The Defence submits that the video, tenant information and fob information provided on request to the PRP from the security personnel at Erin Centre constituted a search that breached Mr. Trought’s Charter rights.
[271] The video obtained by the PRP was camera footage of the common areas of Erin Centre. These are the same areas occupants, visitors, service persons, and many others are entitled to use and observe who else is in the same areas and at what time. The external cameras of Erin Centre can record the outside areas of Erin Centre where there is nothing preventing the general public from accessing these areas. The obtained fob information was of fob usage in common areas of the entrance and the elevator. The same fob information could be obtained by reviewing the common area video cameras.
[272] The tenant information obtained by the PRP was, in part, the name and unit number of the occupant of the Unit (Mr. Trought). The Defence has not provided any authority which has found that the name and residence information has been held to be the subject of a Charter privacy interest. Such information is generally available in many public records, the internet, and so on.
[273] The other part of the tenant information provided to the police was Mr. Trought’s emergency contact information (Mr. Trought’s mother’s name and her phone number). There is no evidence whether such emergency contact information was requested by the PRP. All that is known is that it was voluntarily provided by the security personnel. There is no evidence that such information was used by the PRP. I am not persuaded the Defence has established that this receipt of emergency contact information constituted a breach of Mr. Trought’s Charter rights by the police. In any event, given the little evidence on this point, even if I am wrong, this evidence would not have been excluded under s. 24(2).
[274] For the reasons set out above, I find there was no "policy" requiring security personnel or the property management to require legal authorization prior to such information being provided to the police.
[275] Whether the collection of common area video, tenant residence information and fob information constituted a warrantless search was dealt with in R. v. Saciragic, 2017 ONCA 91. The Court of Appeal found that the police obtaining video, tenant’s address or fob usage information of an occupant in a large condominium complex did not amount to a search as there was no reasonable expectation of privacy in such information. The same applies in the present case. See paras. 27-34:
[27] Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure.” This right contains internal limits: its scope is limited to circumstances in which there is a reasonable expectation of privacy: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 159. In the circumstances of this appeal, if the appellant had a reasonable expectation of privacy in the information provided to the police by the property manager, the acquisition of the information by the police constitutes a search for the purposes of s.8, even though the information was provided voluntarily: R. v. Ward (2012), 2012 ONCA 660, 112 O.R. (3d) 321 (C.A.), at para. 64.
[28] The factors that inform the analysis of whether there is a reasonable expectation of privacy have been grouped under four broad headings: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.
[29] In the informational context, s.8 of the Charter protects “a biographical core” of personal information that “tends to reveal intimate details of the lifestyle and personal choices of the individual”: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at pp. 292, 293. To determine whether the appellant’s right to protection against unlawful search and seizure is engaged, it is therefore necessary to consider the nature of the information that the police obtained and how they obtained it.
[30] With respect to the nature of the information, the police were told: i) two key fobs were used during the specified time frame to enter the parking garage, associated with units 304 and 1107; and ii) from a review of video surveillance, someone matching the appellant’s description on one occasion attended the 11th floor of the apartment complex from the elevator, exited, and then later re-entered the elevator. Here, no intimate details of the appellant’s life were revealed by the provision of the information that, on a single occasion, the appellant exited and re-entered the elevator at the 11th floor. This information did not yield any information about the nature of the appellant’s activities in unit 1107, or even whether he used unit 1107 as a residence. Similarly, no intimate or biographical details were revealed by the fact that the fob he used when police observed him enter the parking garage was assigned to unit 1107.
[31] Of course, in assessing whether an individual has a reasonable expectation of privacy, it is necessary to look not only at the immediate information sought by the police (the address corresponding to the fob, the attendance on the 11th floor), but the further information that it ultimately reveals: Spencer, at para 31. In this instance, the ultimate information sought by the police is the particular unit the appellant accessed: the appellant’s municipal address.
[32] Did the appellant have a reasonable expectation of privacy in his municipal address? The appellant did not advance any authority in support of the proposition that, categorically, there is a reasonable expectation of privacy in one’s municipal address. A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access.
[33] Neither, on the record before the court, were there particular circumstances that would indicate a reasonable expectation of privacy in the appellant’s connection to unit 1107. The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police.
[34] In summary, I would hold that the trial judge made no error on the facts before her in concluding that the appellant had no reasonable expectation of privacy in the fob data, the fact that the appellant attended at the 11th floor, or the ultimate information that the police were able to conclude from this data: the appellant’s use of unit 1107.
[Emphasis added.]
[276] Applying Saciragic to the facts of this case, the collection of the video surveillance, Mr. Trought’s address/unit number and fob usage information did not constitute a warrantless search engaging Mr. Trought’s Charter rights.
[277] The Defence submits that the rules of Erin Centre preclude providing video surveillance to the police. I disagree. The rules advise occupants of Erin Centre that video cameras are present for their safety. The rules do not go so far as to restrict other uses of the video recordings, such as providing such recordings to the police. The video cameras in the common areas of Erin Centre are plainly visible to all occupants. In any event, there is no evidence that Mr. Trought was aware of the rules of Erin Centre or believed there were any restrictions on the use of the video recordings from those cameras.
[278] I reject the Defence submission that the PRP’s failure to file a Return to Justice for the video amounted to a Charter breach. Firstly, a Return to Justice need only be filed when property is “seized”. I am not persuaded that there was a “seizure” in this case. Secondly, the purpose of a Return to Justice is to deal with the return of property to the “owner”. Where the police are voluntarily given property in which there is no continuing proprietary claim or expectation of the return of the property, it does not amount to a “seizure” or require the statutory protection of a Return to Justice. Lastly, failure to comply with a Return to Justice does not constitute a Charter breach.
[279] I reject the Defence submission that this information obtained by the police is “much closer to Mr. Trought’s core biographical information” as there was no clear explanation why or evidence that would support that Mr. Trought’s comings and goings from Erin Centre is “core biographical information” any more than any person’s comings and goings from home, from office, from work, from leisure activities, etc., would amount to core biographical information.
[280] While dealing with this issue, let me state that the Defence raises that a number of the PRP’s investigative steps would have included the breach of the privacy interests of other persons. For example, the Defence points to the video of the common area cameras “picking up” video images of third parties unconnected to Mr. Trought. I reject this submission. First, there is no evidence whether any third persons were caught on the video. Next, it is unclear whether such persons had a reasonable expectation of privacy. Next, Mr. Trought has no standing to raise their expectation of privacy. Lastly, I do not view these reasonable investigatory steps as demonstrating a cavalier attitude of the PRP towards the privacy and Charter rights of individuals at large as suggested by the Defence.
Alleged Breach- Electronic Database Searches/Inquiries of Toronto Police
[281] The Defence submits the PRP search of the police databases for Mr. Trought was a Charter breach.
[282] I disagree. These types of database searches are normally conducted by police as part of their duties to investigate crimes. These databases contain police information. It allows different police jurisdictions to coordinate and have common information.
[283] In a similar fashion, making inquiries about an individual of other police forces is routine information gathering and does not constitute a search.
[284] Dissemination of information available to a police department and requests for and receipt of this information (provided the information was not obtained in an unlawful manner) cannot and does not amount to a search for Charter purposes.
[285] The Defence points to R. v. Harris, 2007 ONCA 574. Having reviewed this authority, I find that it does not support the legal principle advanced nor does it have of any application in this case.
Alleged Breach -Inquiry of Mr. Trought’s Possible Employer
[286] The Defence takes issue that the PRP inquiries of Mr. Trought’s place of employment amounted to a search engaging Charter rights.
[287] In the evidence before me, the PRP had obtained information that Mr. Trought might be working at a Walmart. The police obtained this information for the purpose of arresting Mr. Trought there, if Mr. Trought could not be located at the Unit. Where and how this information is not known.
[288] In the evidence before me, I see nothing amounting to a search which engaged Charter rights. The Defence has failed to establish, on a balance of probabilities, details of what occurred and that this was a Charter breach.
Alleged Breach -The Names and Licence Plates of Visitors to Erin Centre
[289] The Defence submits in its factum that efforts by the PRP to obtain the names and licence plates for visitors to Erin Centre “for the previous day” amounted to a search engaging Charter rights. There was virtually no evidence on this issue at the voir dire.
[290] In any event, any privacy interest of a vehicle attending at Erin Centre would be that of the person whose name and plate was recorded. The Defence has not established standing to challenge this “search.” Further, I am not persuaded that such public information has any privacy interest as everyone who drives a vehicle knows the licence plate is public for all to see and record. Further, the owner of the licence plate can be ascertained from government public records.
[291] There is no merit to this submission.
Alleged Breach -The police being given access into Mr. Trought’s Building
[292] The Defence submits that when the PRP officers were let into Mr. Trought’s building (i.e. “buzzed” through the front door), that constituted an illegal warrantless entry for the purposes of a search.
[293] I disagree. All tenants are aware that any occupant and the security personnel of Erin Centre (and presumably the property management staff) can admit any third parties they choose past the front door. There are no restrictions on who can be let in. Unconnected third parties such as service persons, tax assessors, potential purchasers, and so on may all be given access. There appear to be no written restriction. In other words, in this case, aside from a buzzer system, there is little control over who gains access into the buildings including the 10th floor of Mr. Trought’s building. This is a significant factor in finding that, if there is a privacy interest, there is a very low expectation of privacy in the common areas of the building.
[294] In R. v. White, 2015 ONCA 508, the accused, suspected of trafficking in drugs, lived in a small 10-unit condominium. The police made surreptitious entries into the hallways to further their investigation into Mr. White. The Court of Appeal considered a resident’s expectation of privacy in the common areas of the building at paras. 44-45, 47-51:
…A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.
A resident may have possession or control of the common areas of a building to a greater or lesser extent. The size of a building may be a relevant consideration in determining reasonable expectations of privacy, as even in the context of a locked building protected by a security system it is reasonable to assume that the number of people that may be present in the common areas of the building will vary in accordance with the size of the building and its population. Ownership of the property may be of greater or lesser significance for the same reason. A resident of a large building with 200 units may have a lesser expectation of privacy than a resident of a small building with 2 apartments.
Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building’s common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated.
I think this overstates things considerably. The reasonable expectation of privacy does not establish a zone for the protection of criminal activity in the common areas of multi-unit buildings, but neither does it permit the police to enter common areas of those buildings at any time and for any reason. 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 circumstances: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42. Some limits on police activity are necessary if privacy is to be protected.
There is nothing “perverse” about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.
[Emphasis added.]
[295] The Court of Appeal in White determined that Mr. White’s Charter rights had been breached. White is distinguishable for several factual differences:
a) Erin Centre is a large, three tower condominium property;
b) The PRP had the consent (and assistance) of the security personnel to enter the building where the Unit was situated;
c) The PRP entered the building to arrest Mr. Trought – not to conduct surveillance or investigate Mr. Trought;
d) Mr. Trought did not own the Unit (although as a tenant he would have similar privacy interests as an owner). I only include this as it was suggested in White as a factor; and
e) The PRP had a legitimate purpose for being in the building, to arrest Mr. Trought on an outstanding Toronto warrant.
[296] A crucial difference is that the entry in the present case was granted and facilitated by the security staff, persons who had authority to permit persons to enter the building with legitimate reasons to be there. Clearly, the security staffs were satisfied that the PRP had legitimate reasons to be there.
[297] In R. v. Brewster, 2016 ONSC 4133, Code J. was faced with some of the same issues as in this case. The police were investigating a large number of individuals, and early in the investigation the police made a number of entries into the common areas of the condominium without the consent from anyone, including the condominium management. Subsequently, police obtained permission of the condominium management for a number of entries. On the issue of authority of the condominium management to permit the police to enter the common areas, Code J. determined that the condominium staff had authority to authorize the police entry into the common areas of the condominium at para. 111:
Elevators and hallways in multi-unit buildings
When the same principles are applied to similarly non-obtrusive observations made in elevators and hallways of multi-unit buildings, such as odours emanating out into these common areas or the number of the unit where a suspect enters or exits, the authoritative and binding decisions of courts in Canada have consistently found no reasonable expectation of privacy. In R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 at 533 (Ont. C.A.), Morden A.C.J.O. (McKinlay and Laskin JJ.A. concurring) stated:
I have concluded that this was not a search. My reasons are as follows. The police officers making their way to the appellant's apartment were entitled to be in the hallway, as were other tenants of the building, their visitors, repair people, the landlord, and so on. I do not think that the fact that they were engaged in an investigation of a complaint meant that they had no right to use the common hallway to attend at the door of the appellant's apartment. Their presence there was not dependent on the invitation of the appellant, express or implied. I refer to the fact that the outer doors of the building were not locked or otherwise secured.
I do not think there is any tenable basis for holding that the appellant had a reasonable expectation with respect to the smells emanating from his apartment into the hallway.
In Laurin, the police had received an anonymous tip from a confidential informant who was described as "a person from the neighbourhood." When they entered the small apartment building, the exterior doors were unlocked. In the subsequent case of R. v. Thomsen (2005) 72 W.C.B. (2d) 349, at paras. 40-42 (Ont. S.C.J.), aff'd 2007 ONCA 878, [2007] O.J. No. 4863 (C.A.) the facts were somewhat different. The exterior doors to the large apartment building were locked and controlled by a buzzer system which the police by-passed. However, the police had received a complaint from the property manager, prior to entering. On these somewhat different facts, the trial judge also found no "reasonable expectation of privacy" relating to non-obtrusive observations made in the common hallway. Garton J. stated:
I find that Mr. Thomsen had no reasonable expectation of privacy in the common hallway at 2085 Islington Avenue despite the buzzer and key system at the front door. Other tenants, their invitees, the landlord, and maintenance workers could be expected to be in the hallway. There was no expressed intention by Mr. Thomsen to keep the hallway private, and, as in Piasentini, the odour of marijuana was noticeable from the elevator doors in any event.
In any case, I am of the view that the officers' attendance in the building was a result of an implied invitation from the property manager. Ms. Spencer called Officer Bobbis and related certain information to him. She presumably wanted and expected the police to investigate further and to confirm the information that she had received. Certainly Officer Bobbis perceived his conversation with her as an invitation to attend.
In Piasentini, Wein J. found an implied invitation to attend where the police had received a tip from a confidential informant. She noted that this approach is consistent with the analysis of implied licence set out in the Evans case, in R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 96 C.C.C. (3d) 198 (Ont. C.A.) and in R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14(Ont. C.A.).
I conclude that the officer' detection of the faint smell of marijuana as soon as the elevator doors opened on the ninth floor, and their observation that the smell became strong the closer they came to the door of apartment 901, did not constitute a search.
In addition to the odour of marijuana emanating out into the hallway, the police officers in Thomsen observed the accused emerging from apartment 901 and this evidence was also admitted. In a brief endorsement, the Court of Appeal (Laskin, MacPherson and Simmons JJ.A.) stated: "We agree with the reasons of the trial judge." The Alberta and Saskatchewan Courts of Queen's Bench and the British Columbia Court of Appeal have similarly held that there is no "reasonable expectation of privacy" in the common areas of multi-unit buildings. Two of these cases involved large (150 and 200 unit) condominium buildings with locked security systems controlling access to the buildings. In these three leading western cases, the police made unobtrusive warrantless observations as to which unit in the building was being used by a suspect. The s. 8 challenges to these observations were dismissed in all three cases, including on appeal in the B.C. case. The s. 8 issue was not pursued on appeal by senior and experienced counsel in the Alberta case. See: R. v. Nguyen (2008), 2008 ABQB 721, 462 A.R. 240, at paras. 28-31 and 161-8 (Alta. Q.B.), aff'd (2010), 2010 ABCA 146, 477 A.R. 395 (Alta. C.A.); R. v. Webster (2015), 2015 BCCA 286, 326 C.C.C. (3d) 228, at paras. 20-24, 36 and 73-7 (B.C.C.A.); R. v. Rogers (2014), 114 W.C.B. (2d) 611 (Sask. Q.B.).
[Emphasis added.]
[298] Of note, the police activity in Brewster was much more intrusive than the present case and in Brewster, the police were investigating the accused to obtain evidence of suspected criminal activity.
[299] In the present case, I am satisfied that the security staff had authority to allow third parties, including the PRP, to enter the building for a legitimate purpose - to arrest Mr. Trought on an outstanding warrant. Therefore, the PRP’s entry into the building’s common areas was a lawful entry and not a search.
[300] The Defence submits that the security staff did not have the authority to waive Mr. Trought’s privacy rights in the common areas of the building. The Defence relies on Jarvis. The significant difference in Jarvis is that the accused’s information in the computer was (and has regularly been found by the courts) to be core biographical information. Jarvis as no application to this case.
[301] The entry into Mr. Trought’s building did not constitute a breach of the Charter.
Alleged Breach - the Police Listening and Smelling at Mr. Trought’s Door
[302] The Defence submits that the PRP officers standing at the Unit’s door listening constituted an unlawful search.
[303] I disagree. This case is entirely different from the facts in White. There are a number of facts which cause me to conclude there was no search at the doorway to the Unit:
a) The PRP were there to arrest Mr. Trought on the outstanding warrant. They were not there to investigate Mr. Trought for any other criminal activity (as was the case in White) or to collect any evidence against Mr. Trought;
b) The PRP officers testified they only listened at the door for a “few seconds”. I accept this evidence;
c) The PRP officers testified they did so for officer safety. I accept this evidence. It is consistent with other evidence of a concern for officer safety:
• The PRP officers were aware of Mr. Trought’s outstanding warrant on charges which included escaping from custody and drug charges;
• The PRP officers were aware that Mr. Velasquez was an associate of Mr. Trought (and one of the other four males in the taxi on April 15, 2017) and was also wanted on an outstanding warrant;
• The security staff told the PRP officers that Mr. Trought normally had friends over at “that time of day”; and
• One of the PRP officers was concerned enough about officer safety that, prior to knocking on the door, he briefly had his firearm out.
[304] After the announcement by the PRP, Mr. Trought should have realized that any noise or smell could and would be detected by the PRP officers. Once Mr. Trought was aware that the PRP officers were knocking at his door to arrest him, any noise or any smell emanating from the Unit over the next 7 or 8 minutes was not an unlawful search by the PRP officers. Hence, at that time, Mr. Trought would have had no reasonable expectation of privacy for noises or smells emanating from the Unit into the common hallway. The sounds and smells were, in this case, truly incidental to the right to knock on the Unit’s door and not to further a police investigation.
[305] In R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont. C.A) the Court of Appeal held that the smelling of marijuana by police officers in the hallway outside the door of an apartment was not a search but did acknowledge that “highly intrusive” actions by the police to investigate a suspected offence, might give rise to an expectation of privacy. The brief listening at the door by the PRP in this case were not highly intrusive and were solely for the purpose of officer safety rather than evidence gathering.
[306] A similar approach was followed in R. v. Thomsen, [2005] O.J. No. 6303 (Sup. Ct.), affirmed 2007 ONCA 878, where the court concluded at para. 44:
I conclude that the officer' detection of the faint smell of marijuana as soon as the elevator doors opened on the ninth floor, and their observation that the smell became strong the close they came to the door of apartment 901 did not constitute a search. Nor can their observations regarding the noise emanating from the apartment be considered to be a "search" with the meaning of that word as it is used in s. 8 of the Charter. Officer Bobbis heard a fan or droning sound coming from the apartment as he stepped off the elevator. Officer Andrew described it as a faint buzzing noise, possibly a fan. The sound became louder as the officers got closer to unit 901. As they stood outside the apartment, they could feel a cool breeze coming from under the door.
[307] I find there was no breach of Mr. Trought’s Charter rights when the officers listened at the door or when they heard noises and smelled marijuana emanating from the Unit.
Alleged Breach - the Entry of the PRP Officers to Retrieve Mr. Trought’s Jacket
[308] The Defence submits that the PRP officers’ entry into the Unit was a warrantless search which breached Mr. Trought’s Charter rights. This Defence raises a number of issues why this constituted an illegal entry.
There was no valid, informed consent to the PRP officers’ entry into the Unit
[309] The law on what constitutes valid consent to the police entering a private dwelling without a warrant was summarized by Hill J., in R. v. Mascoe, 2017 ONSC 4208 at paras. 133, 135-137:
Consent to enter private premises is an exception to the warrant requirement such that s. 8 Charter considerations do not apply – “If an individual provides … consent, what would otherwise be a search or seizure, is no longer a search or seizure”: R. v. Simon, 2008 ONCA 578, at para. 48. Consent to state intrusion upon what would otherwise be a reasonable expectation of privacy involves “relinquishing one’s right to be left alone by the state and removes the reasonableness barrier imposed by s. 8 of the Charter”: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 541 (passage approved in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at para. 34).
Consent, to validly constitute a waiver of the s. 8 Charter right, must meet a high standard – a consent which is “fully informed and meaningful” (R. v. Bergauer-Free, 2009 ONCA 610, at para. 53) – “an effective and informed waiver” of an individual’s s. 8 rights (Simon, at para. 49). “Real” consent is not simply “acquiescence or compliance”: Wills, at p. 541. To similar effect is the observation in R. v. Atkinson, 2012 ONCA 380, at para. 49:
When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348.
In Wills, at p. 545, the court described “the difficult onus placed on the Crown by the waiver requirement” and further held at pp. 542 and 546 that:
The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice.
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.
See also Atkinson, at paras. 55-56; R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.), at para. 12; R. v. Blackstock (1997), 1997 CanLII 14495 (ON CA), 10 C.R. (5th) 385 (Ont. C.A.), at paras. 3, 5.
While the “degree of awareness of the consequences of waiver of the s. 8 right … will depend on its particular facts … it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent” (Borden, at para. 40).
[Emphasis added.]
[310] I am satisfied that, but for Mr. Trought’s decision to re-enter the Unit accompanied by the PRP officers, the PRP officers would not have entered the Unit. In the present case, the PRP officers made it clear to Mr. Trought that since he was already under arrest that he would not be able to re-enter the Unit without being accompanied by the PRP officers. Mr. Trought made a decision. Mr. Trought said “that’s fine.” This statement was an express consent for the PRP officers to enter the Unit with Mr. Trought to recover Mr. Trought’s items.
[311] Mr. Trought had authority to permit the PRP officers to enter the Unit. There was no conduct by the PRP officers amounting to oppression or other conduct that would vitiate Mr. Trought’s consent. This is not a case of forced compliance or acquiescence with a police demand. The request to enter the Unit came from Mr. Trought himself.
[312] The Defence relies on the fact that Mr. Trought did not know that, if there were illegal items/evidence of an offence in plain view, such observations could result in an investigation for an offence against Mr. Trought. As stated above, it was not incumbent upon the PRP officers to forewarn Mr. Trought that if there was evidence of an offence in plain view it could and would be used by the police officers. It is common sense that police, when invited into a home, could not turn a blind eye to evidence of an offence in plain view in that home.
[313] I am satisfied that the Crown has established, on a balance of probabilities, that Mr. Trought provided a valid consent to the PRP officers to enter the Unit with him to retrieve his items.
Misleading statement that PRP had no interest in the Unit
[314] The Defence submits that it was a breach of Mr. Trought’s Charter rights when the PRP officers told Mr. Trought before he opened the door to the Unit that they had no interest in the Unit, but now seek to rely on the empty firearm case seen on the kitchen counter in plain view.
[315] I disagree. At the time that PRP told Mr. Trought they had no interest in the Unit, they had no intention of entering the Unit. They were there to arrest Mr. Trought on the Toronto warrant and take him back to the station. As I have found, the PRP officers would have left but for Mr. Trought’s decision to re-enter the Unit accompanied by the PRP officers.
[316] It was as a result of Mr. Trought’s decision to re-enter the Unit, accompanied by the PRP officers that the circumstances changed. Having entered the Unit with Mr. Trought’s consent, they saw an empty firearm case in plain view. On the Defence submission, the PRP would have had to simply ignore the empty firearm case and could not engage in a subsequent investigation on the exterior Erin Centre grounds or other balconies.
[317] I am not persuaded that what the PRP said and did was in any way misleading or unfair to Mr. Trought. Mr. Trought made the decision to consent to the PRP officers entering his Unit and the logical consequence was that any illegal contraband or observed items which might be evidence of an offence in plain view could become the subject of other charges or an investigation.
The PRP officer going onto the Unit’s balcony
[318] The Defence submits that, if there was consent to enter the Unit, when one of the PRP officers went onto the balcony and looked over the side, this constituted a warrantless search which breached Mr. Trought’s Charter rights.
[319] The Crown concedes this constituted a warrantless search as it exceeded Mr. Trought’s consent to accompany him into the Unit to get his jacket and possibly shoes.
[320] I am satisfied this was a warrantless search that constituted a breach of Mr. Trought’s Charter rights.
The Alleged Search of the Unit
[321] The Defence alleges there was a warrantless search of the Unit during the first entry by the PRP officers with Mr. Trought. For the reasons set out herein, I find that no such search took place during the time the PRP officers entered the Unit on this occasion.
Alleged Breach - The Re-Entry into the Unit by the PRP Canine Officer
[322] The Defence submits that the re-entry by the PRP canine officer, accompanied by a PRP officer, was a warrantless search of the Unit.
[323] The Crown concedes that there was no authority for this entry into the Unit and it constituted a Charter breach. I agree.
[324] I accept that this search was motivated for public safety concerns but this was short of “exigent circumstances” and resulted in an unlawful entry into a private dwelling. I am satisfied and find that the PRP canine officer acted in good faith. He needed to conduct a ground search quickly given the location and time of day for obvious public safety concerns. He could not get an accurate search area from the PRP officers at the scene. Nothing occurred in the Unit or the balcony of Unit 1008 other than the officers looking over the balcony to determine an appropriate search area. Further, it should be noted, this breach was of very short duration.
Search of Unit 1009’s Balcony during this Re-entry
[325] The Defence alleges that while on the Unit’s balcony at this time, either of the PRP officers “must have” looked behind the balcony divider onto the balcony of Unit 1009.
[326] I find there is no evidence to support a finding that the PRP officer looked over onto the Unit 1009 balcony. This is entirely speculation based on “they must have” and the subsequent search of Unit 1009’s balcony.
[327] Another difficulty is that the Defence has conceded Mr. Trought has no privacy interest in Unit 1009’s balcony. As a result, even if the PRP officers looked over onto Unit 1009’s balcony (which I find they did not), what they saw on Unit 1009's balcony would not amount to a Charter breach of Mr. Trought’s rights.
[328] I accept the PRP officer’s testimony that no search of Unit 1009’s balcony took place during this entry and that the subsequent search of Unit 1009’s balcony was part of a more general search for a firearm or drugs suspected to have been thrown from the Unit’s balcony.
[329] I therefore find no Charter breach.
Alleged Breach - The Criminal Code Unit warrant (“CC warrant”)
[330] There is no need to address facial or sub-facial validity of the CC warrant for the Unit as the Crown concedes that there is no evidence that the CC warrant contained both Appendices, and as such, the CC warrant was invalid and the search was warrantless.
[331] I agree that there are serious facial validity issues regarding the issued CC warrant as received and relied upon by the PRP officers. At the core of the facial validity issue is the absence of an Appendix B, a fundamental document to the issuance and extent of judicial authority given for the warrant. See R. v Nguyen, 2017 ONSC 1341.
[332] I find this to be a Charter breach.
Alleged Breach - the CDSA Unit Warrant
Facial Validity
[333] The Defence submits that the CDSA Unit warrant is facially invalid as it could not have been issued by a justice.
[334] A warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 588, at para 45, affirmed 2011 SCC 32. A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19.
[335] The record examined on a facial review is the ITO, not an amplified or enlarged record. In R. v. Sadikov, 2014 ONCA 72, Watt J.A. stated, at para. 37:
A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.
[336] In R. v. Cunsolo, [2008] O.J. No. 3754 (Sup. Ct.) Hill J. noted at para. 35 that the appropriate approach for judicial scrutiny of an ITO is to look at the whole document rather than a line-by-line review.
[337] There is one fundamental flaw that compels me to find that the issued CDSA Unit warrant is facially invalid, namely, the offence date of June 24, 2014, in Appendix B to the CDSA Unit warrant. There is simply nothing in the ITO which connects the May 2017 events described by the ITO affiant and the date of the alleged offence of June 24, 2014. The day, month and year are clearly unrelated to the events on May 2, 2017. The issuing justice could NOT have issued the warrant in the form he or she did.
[338] This fundamental and facial flaw in the issued warrant - a completely erroneous and unconnected offence date - completely undermines any basis to believe that the listed items in Exhibit A could be found at the Unit as evidence of the alleged June 24, 2014, offence.
[339] As for the remaining errors in the ITO, they might have been the subject of amplification, but amplification is not available on a facial validity review.
[340] There is no need to proceed with a sub-facial analysis of the CDSA Unit warrant. I am satisfied that the CDSA Unit warrant could not have issued. As a result, the search of the Unit pursuant to the CDSA Unit warrant was warrantless.
[341] Let me deal with one further matter raised by the Defence as it may impact a s. 24(2) analysis. The Defence alleges that only three pages of the CC warrant and CDSA warrant were left at the Unit. The Defence points to a photo showing the warrants left on the kitchen counter and suggests that only three pages can be seen there. I am not so persuaded that one can tell from even the most careful viewing of the photo how many pages are there. I am not prepared to find that only three pages of the warrants were left at the Unit. Secondly, the Defence has not provided any statutory or legal authority requiring that a copy of the warrants to be left at the Unit. It may be a practice of the police to leave a copy of a warrant at premises searched, but counsel have not provided me with any authority requiring this (as opposed to a telewarrant which is required by the Criminal Code).
[342] The Defence also submits that the PRP officers ignored what they believed they were authorized to seize but blithely seized whatever they wanted. The Defence points to the seizure of jewellery. The PRP officers explained this was seized as identification evidence, that it belonged to Mr. Trought, establishing a further connection to the Unit and alleged offences. I do not find that the PRP officers acted unreasonably or recklessly in the execution of the search of the Unit on May 3, 2017.
Alleged contemptuous attitude of PRP officers
[343] A theme that runs through the Defence submissions on the search warrants, that is, the PRP officers engaged in a “reckless disregard of the ex parte prior judicial process” in seeking and obtaining the warrants.
[344] I agree that there were a number of errors in the warrant packages prepared on May 2 and early May 3, 2017. However, I am not satisfied that such errors were designed to, or did, mislead the presiding justice on the core issues to be considered in deciding whether to grant the warrants. Some of the errors are explained by the inexperience of the PRP ITO officer, some mistakes are the result of typographical or proofreading errors and miscommunications. These errors do not amount to a “reckless disregard” by the PRP of the judicial process or individual’s Charter rights.
[345] The PRP officers who reviewed the warrants in advance of execution did not notice the errors. However, they did not do so because of a disregard for Mr. Trought’s privacy interests or the judicial authorization process. Some of the errors, such as the heading of the Appendices referring to the ITO rather than the warrant are harmless and have no impact on the location and subject of the search. The error of the offence date is a more significant error that should have been noticed, but that does not establish the reckless disregard alleged by the Defence. Presumably, the participating PRP officers were concerned more with the warrant’s issuance and its scope. While it is troubling that none of the PRP officers involved in the search failed to note the erroneous offence date, I do not find this was perjured testimony or demonstrates a callous disregard for Mr. Trought’s rights or the judicial authorization process. I am satisfied that the PRP officers acted in good faith but were negligent in their review of the CDSA Unit warrant.
[346] The Defence submits that this court cannot have confidence in the prior judicial authorization in this case. What the Defence ignores is that at the core of the judicial authorization was accurate substantive evidence setting out clear and substantiated reasonable grounds to believe an offence had been committed and that evidence of that offence would be found in the Unit. The fundamental facts in the ITO are essentially and accurately borne out in the facts on this voir dire.
Alleged Breach - the CDSA Locker Warrant
[347] The CDSA locker warrant was obtained by telewarrant. No issue was taken with the availability and use of this process.
Facial validity
[348] There are no errors on the face of the CDSA locker warrant which the Defence can or did point to raise a facial validity issue. To be clear, Appendix B sets out the correct alleged offence date as May 4, 2017 and Appendix A sets out the correct location where the evidence was believed to be located.
Sub-facial validity
[349] The Defence submits that the ITO, as amplified and excised, is so deficient as to be unreliable that it could not have been issued by the presiding justice.
[350] A sub-facial challenge seeks to demonstrate by way of “amplification” that the affidavit is deficient having regard to other facts which were not available to the issuing justice at the time the warrant was issued. Then there are “excisions” in a sub-facial challenge where evidence is placed before the reviewing judge to show that the ITO has errors about facts, contains evidence unlawfully obtained, or that the information presented to the justice of the peace does not tell the whole story, or mischaracterizes the circumstances in some way and should therefore be excised from the ITO. See R. v. Shivrattan, 2017 ONCA 23. Erroneous information, misstatements, or evidence obtained in breach of the Charter are to be excised from the ITO. See Araujo, at para. 59; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
[351] Although deliberate or fraudulent misstatements must be excised from an affidavit, inadvertent or minor errors made in good faith can be amplified by the Crown on review in order to correct the mistakes, provided that the corrections are not used to enhance the original grounds in the ITO. The Supreme Court of Canada in Araujo described the proper scope of Crown amplification evidence, making it clear that amplification cannot be permitted to circumvent the requirement of prior judicial authorization. At para. 59, the Supreme Court explained:
The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests …, amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize … the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.
[352] Having regard to the amplified and redacted record, the reviewing judge must then determine whether the warrant “could have issued”. The reviewing judge must not set aside the authorization unless he or she is satisfied on the whole of the material presented that there was no basis for it. See Araujo, at para. 51; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. As explained by the Supreme Court in Morelli, at para. 40:
The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[353] As the Court of Appeal for Ontario explained at para. 57 of R. v. Nguyen, 2011 ONCA 465:
[T]he central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice. [Emphasis added.]
[354] The Supreme Court in Araujo at para. 59 described the court’s duty to balance competing interests, namely not turning judicial authorization into a sham, in a sub-facial review:
When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 1994 CanLII 1682 (BC CA), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii). The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.
[355] The Defence alleges that there are fundamental errors in the CDSA locker warrant/ITO that call into question the reliability of the judicial authorization or raise the issue of whether there was any real judicial authorization. The Defence submits the evidence demonstrates the police’s reckless disregard of the importance and necessity of making accurate and non-misleading disclosure to the presiding justice.
[356] The Defence points to the following deficiencies in the ITO:
a) The ITO affiant refers to having personal knowledge of the contents of the ITO;
b) The ITO affiant refers to information obtained from a police officer on May 5, 2017, the day after the ITO was sworn and submitted; and
c) Other errors which the Defence submits demonstrate a reckless disregard for the process and Mr. Trought’s privacy interests.
Personal Knowledge
[357] It is true that the ITO states that the affiant has personal knowledge. This ITO does not contain the usual provision regarding reliance on information obtained from other police officers. However, it is clear from the paragraphs in Section D of the ITO (the grounds to believe that an offence was committed) that the affiant relied on information from other PRP officers. I am not persuaded that this was intentionally misleading or that the issuing justice would have been misled by such an error.
Erroneous Date
[358] It is accurate that the information the affiant received information from PRP Officer Page states “May 5, 2017.” However, the amplification evidence makes it very clear this was a typographical error, as the affiant was briefed on May 2, 2017, by PRP Officer Page, the same day that he was briefed by Officer Dennis.
Other Errors
[359] In my view, the other errors – such as a wrong reference to one of the Reis brothers and a birth date – are minor errors that do not go to the heart of the ITO, namely, whether there were reasonable grounds to believe that the offence had been committed by Mr. Trought and whether the storage locker would have evidence of the offence. These other errors do not evidence an intention to mask the true facts necessary for the issuing justice to grant or refuse the warrant.
[360] The Defence points to the ITO affiant stating that Mr. Trought is the owner of the Unit. The affiant recalled being told that Mr. Trought was the “owner” of the Unit but the other PRP officers testified they told the ITO affiant that Mr. Trought was a tenant of the Unit. Whether this was miscommunication or misunderstanding, it matters not because it is a minor error. The Defence suggests that this was deliberately misleading to the presiding justice because it would have suggested that Mr. Trought had substantial assets for someone of his age. This is speculation, pure and simple. Read in its entirety, the reference to whether Mr. Trought is an owner or tenant makes no difference as to whether the warrant could issue.
[361] In this case, I do not find there was a deliberate intention to mislead the issuing justice or that the issuing justice was misled.
What must be excised?
[362] Given the finding that the CC Unit warrant and the CDSA Unit warrant were invalid, all reference to those warrants and the items seized during those searches pursuant to those invalid warrants must be excised from the CDSA locker warrant ITO. This results is the excision of paragraphs 5 and 6 in the Grounds to Believe an Offence has Been Committed and excision of any reference to what was seized on May 3, 2017, in the Grounds to Believe the Items are at the Place to Be Searched.
[363] Could the presiding justice still have issued the CDSA locker warrant?
[364] In my view the presiding justice could have issued the CDSA locker warrant relying on:
• The delay by Mr. Trought in opening the door to the Unit;
• What was heard and smelled by the RPR officers during the delay in opening the door;
• The drugs and firearm found on the balcony of Unit 1009 next to the divider with the Unit;
• The observed empty firearm case in the Unit;
• The observed marijuana in the Unit;
• The events where the Reis brothers were told to by Mr. Trought to retrieve items from his locker and their attempt to do so;
• The locker is associated with the Unit; and
• Mr. Trought is the tenant to the Unit and the storage locker associated with that Unit.
Execution
[365] A search or seizure will be reasonable if it is authorized by law and if the manner in which the search was carried out is reasonable. See Collins, at p. 278.
[366] The Defence submits the execution was flawed because the PRP officers did not bring and leave a complete copy of the CDSA Locker warrant.
[367] The court must determine whether the execution of the CDSA locker warrant was reasonable. Section 29 of the Criminal Code provides that the PRP officers executing the CDSA locker warrant bring with them a copy of the warrant, where feasible to do so, and produce it if requested. Where it is a telewarrant, the obligation is different. S. 487.1(8) of the Criminal Code provides:
(8) A peace officer who, in any unoccupied place or premises, executes a warrant issued by telephone or other means of telecommunication shall, on entering or as soon as practicable after entering the place or premises, cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or premises.
[368] In this case, a number of the PRP officers testified that they brought with them a copy of the CDSA locker warrant. They clearly did so because the PRP officers were asked to and did provide the warrant to the Erin Centre security staff for them to copy.
[369] There is an inconsistency with the evidence of Ms. Ingham, who produced a copy of the CDSA locker warrant from security staff that did not have attached to it a copy of the Appendices Was this an error in copying by security staff when they were given a copy of the warrant by the PRP officers? Was there an error in copying when a copy was given to Ms. Ingham?
[370] The Defence submission relies on this court’s finding that the PRP officers’ testimony (those involved in the locker search) was not credible, not reliable and that they lied. I do not make such a finding. I am not able to determine whether the PRP officers left a copy of the CDSA locker warrant – the complete CDSA warrant – when they searched the storage locker. The Defence submits this amounts to a Charter breach.
[371] I am not prepared to find, in these circumstances, that a failure to comply with s. 487.1 amounts to a Charter breach. In any event, the onus to establish that this constitutes a Charter breach is on the Defence. I am not satisfied the Defence has met this onus.
[372] I conclude that the CDSA locker warrant was validly issued and reasonably executed.
SECTION 24(1) - THE ABUSE OF PROCESS
The Law
[373] The requirements for granting a stay for abuse of process are that:
a) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,
b) there must be no alternative remedy capable of redressing the prejudice, and
c) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the Court must balance the interests in favor of granting a stay against the interest that society has in having a final decision on the merits.
See R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 32.
[374] These three requirements were recently described in R. v. Gowdy, 2016 ONCA 989 at paras. 60-64:
The first requirement recognizes that there are limits on the type of state conduct society will tolerate in the prosecution of offences. Sometimes, state conduct will be so disturbing that having a trial, even a fair trial, will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. The question that requires answer in connection with the first requirement is whether proceeding to trial in light of the state conduct would do further harm to the integrity of the justice system: Babos, at paras. 35, 38.
For the second requirement, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Since the prejudice with which we are concerned in the residual category is prejudice to the integrity of the justice system, remedies must be directed towards that harm. In this category, we do not furnish redress to an accused for a past wrong done to him or her. Rather, we focus on whether an alternate remedy, short of a stay, will adequately disassociate the justice system from the impugned state conduct going forward: Babos, at para. 39.
The third requirement – a balancing of interests – is of great significance in the residual category. Balancing is only required when uncertainty remains after consideration of the first two requirements. What the court is asked to decide is which of two options – staying proceedings or holding a trial – better protects the integrity of the justice system. Relevant factors include but are not limited to:
i. the nature and seriousness of the impugned conduct;
ii. the isolated or systemic and ongoing nature of the conduct;
iii. the circumstances of the accused;
iv. the charges faced by the accused; and
v. the interests of society in having the charges determined on their merits.
See Babos, at para. 41.
In the residual category, it must appear that the state misconduct is likely to continue into the future, or that pursuit of the prosecution will offend society’s sense of justice: Babos, at para. 36; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R 391, at para. 91.
An accused who seeks a stay of proceedings under the residual category faces an onerous burden on account of the “clearest of cases” threshold and the balancing of societal interests that forms an integral part of the analysis undertaken by the trial judge. In the residual category, cases warranting a stay of proceedings are “exceptional” and “very rare”: Babos, at para. 44; Tobiass, at para. 91. See also R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667.
Application to this Case
[375] The Defence submits that the evidence of the PRP officers was “part of a pattern of contradictions and omissions” and part of a process of “shockingly coordinated deceit” which should lead this court to find there was a cover-up, falsification of notes, and false testimony by a significant number of PRP officers.
[376] The Defence concedes that unless this court concludes that there was such outrageous and fraudulent conduct by the PRP officers, the Defence cannot succeed in obtaining a stay for abuse of process.
[377] In my view, this Defence submission has no merit. I find that there was no cover-up, falsification of notes, or perjured testimony by the PRP officer.
[378] I note a few examples why this submission has no merit:
a) The cover-up theory hinges upon a presupposition that the firearm/drug investigation of Mr. Trought was initially believed to be directly connected to the Buchner homicide investigation. As stated above, such a finding cannot be made on this record;
b) The next pillar of the Defence theory is that the Unit was searched on May 2, 2017 during the arrest of Mr. Trought. All the evidence on the voir dire was that there was no such search and I find no search took place;
c) The Defence relies on inconsistencies between the PRP officers and with their own notes as evidence consistent with a cover-up. I find that the few minor inconsistencies do not significantly impact the credibility or reliability of the central points of the testimony of the PRP officers. On the central points, their testimony was consistent (with their notes, the events, and other witnesses) and unshaken during cross-examination. I found the evidence of the PRP officers of the separation of the two investigations and the lack of a “cover-up” to be credible, consistent, and uncontradicted. I accept it;
d) As part of the evidence of a cover-up, the Defence relies on the absence of perfectly complete notes of all details of what the PRP officers did and thought at the time. I am satisfied that the PRP officers contemporaneously recorded what they believed was material at the time. The Defence takes these omissions (or discrepancies) and then speculates that the reason for the inconsistency or absence of a note is evidence of a conspiratorial cover-up and perjured evidence. For example, the court heard a considerable amount of evidence that notes did not include certain phone calls but there is no evidence that anything material occurred during these calls or that the calls even had anything to do with the Trought investigation. The absence of a note of these calls does not mean there was something conspiratorial or a cover-up going on;
e) The cover-up theory relies primarily on speculative conclusions from circumstantial evidence. For example:
a) One PRP officer (Cook) the lead in the Buchner homicide, had no notes for a particular date. The Defence suggests that this was done to ensure no inconsistencies with other PRP officers. This is entirely speculative;
b) The PRP officers testified that, during the search on May 3, 2017, no one searched the balcony. The Defence submits that the failure to search the balcony is circumstantial evidence that there was a cover-up and evidence that the balcony had previously been searched. This is entirely speculation; and
c) The Defence points to an inconsistency as to which PRP officer had custody of Mr. Trought when they entered the Unit. Mr. Trought was cuffed. Mr. Trought was accompanied into the Unit with one officer in front and one behind him. Any inconsistency as to which officer believed they had custody of Mr. Trought is inconsequential. The Defence submits this is evidence of the cover up. This is speculation.
[379] The Defence concludes that the PRP’s “cover-up” and unlawful actions amounted to a continuous and flagrant disregard of Mr. Trought’s Charter rights throughout the entire firearm/drugs investigation. This is inconsistent with this court’s findings as to the actions of the PRP officers in this case.
[380] Having rejected the Defence submissions of an alleged cover-up, falsification of notes, deliberate and misleading actions, and false testimony, I reject that there was an abuse of process in this case. Allowing this proceeding to continue to trial does not result in trial unfairness to Mr. Trought nor does it undermine the integrity of the administration of justice.
SECTION 24(2) – EXCLUSION OF EVIDENCE
[381] Section 24(2) requires that an accused show on a balance of probabilities that:
a) The evidence sought to be excluded was obtained in a manner that infringed a Charter right; and
b) The admission of the evidence would bring the administration of justice into disrepute.
[382] An analysis whether evidence, obtained in manner infringing a Charter right, should be excluded requires a judge to take account and balance the three factors set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71:
a) The seriousness of the Charter-infringing state conduct;
b) The impact of the breach or breaches on the Charter-protected interests of the accused; and
c) Society’s interest in the adjudication of the case on its merits.
Were the Firearm/Drugs Obtained in a Manner that Infringed a Charter right?
[383] The Defence admits that Mr. Trought had no reasonable expectation of privacy in Unit 1009’s balcony.
[384] The Defence submits that there is a connection between the firearm/drugs discovered on the balcony of Unit 1009 and the prior and subsequent Charter breaches requiring the exclusion of the firearm/drugs found on the balcony of Unit 1009.
[385] The Crown submits there is no temporal, causal or contextual connection with any other Charter breaches this court could find. In other words, the discovery of the firearm/drugs on Unit 1009’s balcony is entirely independent of any Charter breach and would likely have occurred in any event.
[386] The Defence relies heavily on R. v. Pino, 2016 ONCA 389 to exclude the firearm/drugs found on Unit 1009’s balcony. The Court of Appeal at paras. 48 and 72 dealt with whether evidence discovered prior to a Charter breach could be excluded under s. 24(2).
This is a difficult issue. I have concluded that the trial judge erred in law by holding that Charter breaches after the discovery of the challenged evidence cannot meet the “obtained in a manner” requirement in s. 24(2). He considered himself bound by appellate authority. I take a different view of that authority; I do not read it as precluding my conclusion. I think the Supreme Court’s generous and increasingly broad approach to the “obtained in a manner” requirement allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered. I find support for my conclusion in the trial judge’s own extra-judicial writing as well as in other academic commentary.
Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):
• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire “chain of events” between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.
[387] There were Charter breaches before and after the firearms/drugs were found on Unit 1009’s balcony. The only Charter breaches found in this case prior to the discovery of the firearm/drugs on Unit 1009’s balcony were:
a) one PRP officer going onto and looking over the balcony down towards the ground to determine what if anything had been thrown from the balcony; and
b) the subsequent attendance by the PRP canine officer and one other PRP officer to observe the view from the balcony for a ground search.
[388] The remaining Charter breaches are the execution of the warrants of the search of the Unit on May 3, 2017, which occurred significantly after the discovery of the firearm/drugs on Unit 1009’s balcony.
[389] The Defence submits that fewer officers and resources would have been deployed for the firearm search had the empty firearm case not been seen. First, the observation of the empty firearm case did not constitute a Charter breach. It was an item in plain view where the PRP officers were authorized to be. Secondly, it is not a defence to say that the evidence against Mr. Trought may not have been found if less officers or resources were used in the investigation.
[390] Let me consider and analyze the connections between the pre and post Charter breaches with the discovery of the firearm/drugs on Unit 1009’s balcony.
Causal Link
[391] I find no causal link between the PRP officer’s conduct of going to the balcony to look over the railing to see whether something had been thrown from the balcony and the firearm/drugs discovered on Unit 1009’s balcony.
[392] Similarly, there is no causal link between the PRP canine officer’s attendance on the balcony to take a view from there for a canine ground search and the firearm/drugs discovered on Unit 1009’s balcony.
Temporal Link
[393] There is a temporal link given that the PRP canine officer went onto the Unit’s balcony at 2:55 p.m. and the firearm/drugs discovered on Unit 1009’s balcony at approximately 4:09 p.m.
Contextual Link
[394] Considering all the circumstances, can it be said that there is a contextual link between the discovery of the firearm/drugs on Unit 1009’s balcony and any of the Charter breaches this court has found?
[395] The Defence submits that the entire events of May 2, 2019, are “in the course of a single transaction” that sparked an “entire chain of events”. Even when a generous interpretation is applied, using the language of Pino – “chain of events”, “same transaction or course of conduct”, the answer of a causal connection with the firearm/drugs discovered on Unit 1009’s balcony is a resounding “no.”
[396] I see no causal, temporal or contextual connection between the subsequent Charter breaches and the discovery of the fire arm/drugs on Unit 1009’s balcony. In the circumstances of this case, any connection, if there is one, between the Charter breaches and the firearm/drugs discovered on Unit 1009’s balcony is extremely tenuous.
[397] I conclude that the evidence of the firearm/drugs found on Unit 1009’s balcony was not “obtained in a manner” that infringed Mr. Trought’s Charter rights.
The Admissibility of the Observation of the Empty Firearm Case.
[398] The Crown submits that even if the empty firearm case seizure under the invalid Criminal Code warrant is excluded, the PRP officer’s observations of an empty firearm case on the kitchen counter is admissible.
[399] In R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at paras. 4 and 43, the judicial authorization for the intercept was found to be invalid and a breach of the Charter. Nevertheless, despite the recordings being excluded, the undercover police officer was, nevertheless, entitled to testify as to his recollection of the conversations with the accused:
The legal issue then presents itself as follows: If a police officer unconstitutionally records a conversation to which he is a party (a Duarte-type interception; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30), and both the recording and the transcript of it are excluded from evidence as a s. 24(2) of the Canadian Charter of Rights and Freedoms remedy, what use can be made of a transcript of the recording by the police officer when he or she testifies about the content of intercepted conversation?
There is no doubt that the jury was entitled to hear from the undercover police officer about his conversation with the appellant on January 29, 1997. The officer had at the time a present recollection of the "gist" of all of the important elements of the conversation.
[400] A similar situation occurs regularly in impaired cases: Where a breathalyser analysis is found to be inadmissible, the breathalyser technician is still entitled to give evidence of the technician’s observations of the driver.
[401] I am satisfied that the observation by the PRP officers on May 2, 2017, of the empty firearm case is admissible, regardless of whether the empty firearm case is excluded as part of the execution of the warrants on May 3, 2017.
The Individual Charter Breaches
The PRP officer's observations during the arrest while on the Unit balcony
[402] The Crown concedes that what the PRP officer's observations from the Unit balcony after the entry into the Unit for the purpose of retrieving Mr. Trought's jacket should be excluded.
[403] I agree. So ordered.
Asking Mr. Trought “where’s the gun”
[404] The Crown concedes that the question(s) asked by the PRP officer of Mr. Trought: “where’s the gun” and any reaction by Mr. Trought should be excluded.
[405] I agree. So ordered.
The PRP canine officer’s observations from the balcony of the Unit
[406] The Crown concedes that any evidence obtained by the PRP canine officer (and the accompanying PRP officer) re-attending at the Unit should be excluded.
[407] I agree. So ordered.
The Criminal Code Unit Warrant Search
[408] The Crown concedes that the seizures pursuant to the CC Unit warrant should be excluded.
[409] I agree. So ordered.
The CDSA Unit Warrant Search
[410] I have found that the CDSA Unit warrant was a Charter breach. As a result, the entrance into the Unit was a warrantless search.
The seriousness of the Charter-infringing state conduct
[411] I do not find the Charter-infringing conduct for this breach to be on the very serious side. The PRP sought and obtained a search warrant. They proceeded in good faith on the strength of a warrant. The warrant, the key authorizing document, contained the wrong offence date. No one recognized this error – not the issuing justice, not the affiant, not the PRP officers. The CDSA Unit ITO nevertheless contained sufficient credible and reliable information for the CDSA Unit warrant to have issued if the warrant had included the correct alleged offence date.
[412] On the other hand, the error was a very significant error – the date of the alleged offence. The sloppiness of this ITO and draft warrant is a factor to be considered in circumstances where there was no urgency in obtaining the warrant since the Unit had been secured. At best, the PRP officer’s conduct can best be described as negligent.
[413] In my view, this factor favours exclusion.
The impact of the breach on Mr. Trought's Charter-protected interests
[414] This was a search of a private dwelling with an invalid warrant. The impact of the breach is substantial on Mr. Trought’s privacy interest in his home.
[415] This factor favours exclusion.
Society’s interest in the adjudication of the case on its merits
[416] The evidence found is reliable, hard evidence. There is no question that society’s interest in an adjudication of the charges against Mr. Trought weighs in favour of inclusion.
[417] I am not persuaded that the exclusion of the items seized by the PRP officers under the CDSA Unit warrant would “gut” the Crown’s case. While the evidence of the digital scales and other items are serious circumstantial evidence of trafficking, the Crown have other evidence of the drugs found on the Unit 1009 balcony and in the storage locker.
[418] In my view, this factor is neutral.
Balancing the factors and conclusion on admissibility
[419] Balancing the above factors leads to a conclusion that any observations and the items seized under the CDSA Unit warrant are excluded.
The Cumulative Effect of the Charter Breaches
[420] The Defence submits that the cumulative effects of the Charter breaches should be considered in the exclusion of all the evidence. However, for the reasons set out above, I am not persuaded there are “continuing, deliberate and flagrant” breaches of Mr. Trought’s Charter rights.
[421] Of the five Charter breaches this court has found, only one was a flagrant breach – the question(s) of “where’s the gun” prior to a full RTC and opportunity to speak with counsel. Police should know better. The Charter requires better. On the other hand, the impact on Mr. Trought’s interests was minimal since he did not give the PRP officers an oral response.
[422] The breach by the PRP officer going on to the Unit balcony while retrieving Mr. Trought's jacket, while serious, was motivated by concerns as to what might have been discarded by Mr. Trought onto public areas. This breach was of short duration. It related to observations of a public area. It had a minimal impact on Mr. Trought's Charter rights.
[423] The next breach was when the PRP canine officer entered the Unit to have a view from the Unit’s balcony. While this was a Charter breach, the PRP canine officer acted bona fide because of an immediate concern for public safety, the breach was a short duration, related to observations onto public area and the impact on Mr. Trought’s interests was minimal since nothing was found.
[424] The third and fourth breaches (the CC and CDSA Unit warrants) were at best negligent rather than a deliberate, misleading, disregard for Mr. Trought’s Charter rights or the judicial process. The consequences are the exclusion of the items seized during the execution of the invalid warrants. No further Charter remedy is appropriate or necessary.
Admissibility of the Empty Firearm Case as Part of the CDSA Search
[425] The Crown submits that the empty firearm case was nevertheless properly seized pursuant to s. 489 of the Criminal Code:
489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, anything that the person believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
[426] I am not persuaded that an empty firearm case falls within any of the categories in s. 489. The empty firearm case by itself, is not an offence, and is not evidence of an offence. It only leads to a suspicion that there may be an illegal firearm and to a police investigation in this regard.
CONCLUSION
[427] The Defence applications are dismissed except that:
a) Any observations by the PRP officer when he went onto the balcony during the retrieval of Mr. Trought's jacket are excluded;
b) The questions asked of Mr. Trought: "where's the gun" and any reaction by him are excluded;
c) Any evidence arising from the PRP canine officer (and other officer) while in the Unit and what was observed from the Unit balcony between 2:55 p.m. and 2:58 p.m. are excluded;
d) The observations and items seized pursuant to the CC Unit warrant are excluded. The observations of the empty firearm case when the PRP officers arrested Mr. Trought and before leaving the Unit are admissible;
e) The observations and items seized pursuant to the CDSA Unit warrant are excluded.
Ricchetti J.
Released: May 24, 2019
COURT FILE NO.: CRIMJ 1216-18
DATE: 2019 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
AND
SHANE TROUGHT
Defendant
COUNSEL: C. Coughlin, for the Crown
J. Hechter, for the Defendant
ENDORSEMENT ON PRE-TRIAL CHARTER APPLICATIONS
Ricchetti J.
Released: May 24, 2019