DATE: 2019-05-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Tiffany Boisvert, for the Respondent
Respondent
- and -
A.K.
Neil J. McCartney, for the Applicant
Applicant
HEARD: March 21, 2019 at Thunder Bay, Ontario
Madam Justice B. R. Warkentin, R.S.J.
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons on Pre-Trial Application to Exclude Evidence
[1] The Applicant is charged on two indictments with certain sexual offences as against A.K. who was between the ages of seven and thirteen when the alleged offences occurred. The Applicant is also charged with three counts of improper storage of firearms contrary to s. 86(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The Applicant seeks to exclude evidence that was discovered and obtained by the police during a warrantless search of his residence claiming the search violated his s. 8 Charter rights. He argued that failing to exclude the evidence would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.
[3] Counsel for the Applicant also argued that the subsequent warrant cannot be used to correct the Charter violation, and therefore, all evidence obtained through the search with the warrant must also be excluded on the same basis.
[4] Crown counsel disagreed and submitted that there was no s. 8 Charter violation because the Applicant consented to the original search of the residence.
Summary of Events Resulting in the Warrantless Search
[5] On April 17, 2017, the Thunder Bay police received evidence from A.A., who was then 15 years of age, regarding allegations that she had been the victim of sexual assault by the Applicant from ages 7 to 13. During her statement to the police, first on April 17, 2017, and then in a videotaped statement on April 18, 2017, A.A. described, not only the alleged sexual assaults, but also informed the police that the Applicant had guns throughout his home, including guns in secret compartments.
[6] A.A. and her mother both commented to the police that there was a risk that the Applicant would shoot himself upon learning of the allegations made against him by A.A.
[7] On April 18, 2017, the police made inquiries about the Applicant’s firearms license and the registration of his firearms and learned that the Applicant possessed a valid Possession and Acquisition Firearms License. They also confirmed that the Applicant had no criminal record.
[8] After the videotaped statement by A.A., the police obtained a “Feeney Warrant” that permitted them to arrest the Applicant at or in his residence. They did not seek to obtain a search warrant of his residence at that time.
[9] At approximately 5:00 p.m. on April 18, 2017, five police officers, three in plainclothes and two in uniform, attended at the Applicant’s residence and arrested the Applicant. He was handcuffed, cautioned, and provided his rights to counsel.
[10] After his arrest, the officers sought the Applicant’s consent and cooperation in locating his firearms. The Applicant informed the officers about where they could find the firearms in both his home and garage, as well where to locate the keys to the various locked firearms cabinets.
[11] The officers entered the residence and the garage to locate and remove the firearms. They did not locate all the firearms in a single search, rather, as they located firearms and ammunition, they sought further information from the Applicant about other locations within his residence and garage as to where other firearms were located.
[12] It was during this search of the garage that, inside one of the gun lockers that police unlocked, officers observed a small pair of female underwear in plain view. The officers then determined that they required a search warrant to take any further steps and discontinued the search of the home. They “froze” the home, preventing anyone from entering the home or garage pending acquisition of a search warrant, which they obtained the next day.
[13] The police returned to the residence on April 19, 2017, with the search warrant and located and seized more firearms and the underwear from the gun locker. After DNA testing, forensic results determined that it was probable that it was A.A.’s DNA on the underwear.
Finding on Pre-Trial Application to Exclude Evidence
[14] During the hearing of this Application, I delivered oral reasons in which I found that the Applicant’s s. 8 Charter rights were violated by what I determined to be a warrantless search of his residence and garage. I found that he could not have waived his s. 8 Charter rights when he was asked where the firearms were located after his arrest for sexual offences. I invited counsel to make submissions on whether the evidence should be excluded under s. 24(2) of the Charter.
[15] There was no suggestion by the Applicant or his counsel that the motivation of police when entering his home was for any purpose other than to secure the firearms in the Applicant’s possession.
[16] The officers confirmed that the Applicant was cooperative and readily gave them the location of the firearms as well as the keys to unlock the locked cabinets. The Applicant also gave them instructions on how to open a magnetized cupboard under the stairs in the home where one of the firearms was located. In total, the police seized six firearms and corresponding ammunition during this search.
[17] However, the evidence was that the officers had not actually asked the Applicant if they could enter his residence, but that they asked for his cooperation in locating his firearms which they informed the Applicant they intended to seize. The officers did not explain what their search would entail, nor did they provide the Applicant with an opportunity to refuse their request. The officers also failed to make the Applicant aware of the potential consequences of permitting them to search his residence or an opportunity to consult with a lawyer prior to conducting the search.
[18] In considering whether the evidence obtained from the search, including the subsequent search with a warrant, should be admitted under s. 24(2), I have considered the three factors as set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-86. McLachlin C.J. outlines these factors, at para. 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[19] The law with respect to warrantless searches of a private home is clear; such searches are unlawful except in exceedingly rare circumstances because an individual is entitled to the highest expectation of privacy in his or her home. Thus, the seriousness of the Charter infringing conduct and the impact of a s. 8 breach on the Applicant’s Charter protected interests militate towards excluding the evidence obtained in both the warrantless search and the later search with a warrant.
[20] Society has an interest in adjudicating cases on their merits. However, when the Charter infringing conduct has the potential to bring the administration of justice into disrepute, the court must consider whether the evidence obtained as a result of that conduct should be admitted. In this case, but for the warrantless search, the police would not have discovered the underwear. There was no explanation as to why the officers neglected to seek a warrant to search the residence at the same time as they arrested the Applicant. The evidence was uncontroverted that the officers intended to seize the firearms at the time they arrested the Applicant.
[21] The underwear is only one piece of the evidence as against the Applicant, and as such, its exclusion will not prevent the Crown from prosecuting the sexual offences. Admitting this evidence in light of the Charter infringing conduct would bring the administration of justice into disrepute.
[22] I therefore find that the evidence obtained from both the warrantless search and the subsequent search with a warrant is excluded under s. 24(2) of the Charter.
“original signed by”
Madam Justice B. R. Warkentin, R.S.J.
Released: May 16, 2019
DATE: 2019-05-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
A.K.
Applicant
REASONS ON PRE-TRIAL APPLICATION TO EXCLUDE EVIDENCE
B. Warkentin R.S.J.
Released: May 16, 2019