R. v. Schultz, 2019 ONSC 3161

COURT FILE NO.: CR-17-3907

Delivered orally: June 3, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Katlynn Jean-Nicole Hedrick and Jalen George Schultz

Accused

Ilana Mizel, for the Crown

Brian Dube, for the Accused

HEARD: May 30, 31, June 1, 4, September 13, November 5, 2018; and February 28 and May 3, 2019

Ruling on voir dire

King J.

1Jalen George Schultz, the accused, is charged on nine counts as follows:

i) Possessing a firearm without a licence contrary to s. 91(1) of the Criminal Code;

ii) Unsafe storage of a weapon as required by s. 5(1)(b) of the Storage Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, contrary to s. 86(2) of the Criminal Code;

iii) Possession of a firearm of a value not exceeding $5,000, while knowing it was obtained by the commission of an indictable offence in Canada contrary to s. 354(1)(a) of the Criminal Code;

iv) Possession of a Schedule 1 substance, cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act (“CDSA”);

v) Possession of an unlawful substance, marijuana, included in Schedule II of the CDSA;

vi) Breach of probation by having a firearm in his possession while prohibited from doing so by reason of a mandatory prohibition order made pursuant to s. 109 of the Criminal Code contrary to s. 117.01(1) of the Criminal Code;

vii) Breach of probation by having a firearm in his possession while prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code Prohibition Order contrary to s. 117.01(1) of the Criminal Code;

viii) Breach of probation by having a firearm in his possession while prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code contrary to s. 117.01(1) of the Criminal Code;

ix) Possessing a firearm knowing it was obtained by the commission of an offence contrary to s. 96(a) of the Criminal Code.

2Parenthetically, it is noted that Katlynn Jean-Nicole Hedrick (“Ms. Hedrick”) was a co-accused with respect to all charges (except those relating to alleged breaches of prohibition orders) until May 11, 2018 when all counts against her were withdrawn by the Crown.

3At the commencement of the trial the accused brought an application to exclude the evidence obtained by the Ontario Provincial Police (the “OPP”) on September 21, 2016 and September 26, 2016. Specifically, he asserts that the OPP violated his s. 8 rights under the Charter to be secure against unreasonable search or seizure and seeks the exclusion from evidence at trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms of the following:

i) a Mossberg 500 Shotgun, bearing Serial #U489610;

ii) cocaine; and

iii) marijuana.

4The application proceeded as a blended voir dire.

5This is my decision on the application.

BACKGROUND FACTS

6In 2016, the accused resided with his parents Gary and Diane Schultz at their home located at 560 Bagot Street, in Harrow (Colchester) in the Town of Essex, Ontario (the “Bagot residence”).

7In June 2016, the accused had re-commenced a personal relationship with Ms. Hedrick. She was 24 years old and had known the accused since she was 15.

8Thereafter, the accused and Ms. Hedrick began to cohabit in the basement of the Bagot residence.

9However, as there was little privacy for them in that residence, they made arrangements to move into a rental property operated by Diane Schultz at 553 Sydenham, Harrow (Colchester), Ontario (the “Sydenham residence”) commencing in September 2016. This house was a small, single family dwelling and located just a short distance from the Bagot residence. At various times during the voir dire, this property was described as a residence, home, cottage and vacation home. I have treated all of these terms interchangeably.

10Diane Schultz was a real estate agent. She and Gary Schultz owned the Sydenham property as an investment. They would lease the home from time to time – usually as a vacation property. In some respects, it resembled a cottage. The one-story house contained two bedrooms, a hallway and a kitchen. Ms. Hedrick testified she and the accused each had a bedroom. She stated they would each retreat to their respective bedrooms whenever they were arguing. In addition to the house, there were two stand-alone sheds in the backyard of the property. One of these sheds becomes relevant to the issues in this matter. That shed contained a locked door entry.

11While the municipal address of the Sydenham property was referred to by its previous legal names of Harrow or Colchester, the residence was actually located at that time in the Town of Essex. At all relevant times police services for the Town were provided by the Ontario Provincial Police (“OPP”).

12Both the accused and Ms. Hedrick were contributing money towards the rent. Exhibit #4 was a pro forma “Residential Rent/Lease Agreement” signed by Diane Schultz, Jalen Schultz and Katlynn Hedrick dated September 3, 2016.

13The rent was to be $850 per month, however, for September, 2016 it was discounted to $500. Ms. Hendrick had provided Diane Schultz with a deposit in the amount of $250 on August 26, 2016. The accused provided his share of the rent from a joint bank account he had with his mother later in September, 2016.

The Arrest of Jalen George Schultz and Katlynn Jean-Nicole Hedrick

14Amherstburg, Ontario is a town located adjacent to the west of Essex. At all material times, police services in Amherstburg were provided by a municipal police service.

15Det. Cst. Jeff Paquette testified on the voir dire. He was a member of the OPP assigned to the street crime unit.

16On September 19, 2016 he received information from Officer D. Brown of the Amherstburg Police Service that the Amherstburg Police had reasonable and probable grounds to arrest the accused and Ms. Hedrick with respect to an alleged robbery and assault causing bodily harm on September 18, 2016. The alleged victim was an individual named Drew Cote. Mr. Cote was a former boyfriend of Ms. Hedrick. The Amherstburg Police Service requested that the OPP conduct the arrest since the accused and Ms. Hedrick resided in OPP jurisdiction.

17At approximately 7:18 p.m. on September 19, 2016, OPP officers, including Det. Const. Paquette, arrested the accused and Ms. Hedrick on behalf of the Amherstburg Police. The arrest occurred as the accused and Ms. Hedrick departed the residence at 553 Sydenham while driving a grey Saab vehicle operated by the accused. When she was arrested, Ms. Hedrick was in possession of a BB gun handgun.

18At the time of the arrest Officer Paquette was aware of certain other information regarding the Sydenham property. Approximately one month prior he had received a tip from a confidential informer that there were weapons at the Sydenham property. He did not receive any further information that might have advised him as to which person (or persons) had possession of any weapon, or any specificity as to the type of weapon (or weapons) that may have been present. He testified that this information was not sufficient to form the basis for a search warrant.

19The OPP officers were also aware from an Amherstburg Police broadcast that an accident had occurred in Amherstburg jurisdiction on September 16, 2016. The driver of a grey Saab vehicle had allegedly struck a motorcycle carrying two persons and had left the scene. A part from a grey Saab motor vehicle had been discovered at the crash scene. The accused was a suspect with respect to that incident.

Clean-up at the Sydenham property

20Diane Schultz testified on the voir dire as a Crown witness.

21I must comment on the testimony of Diane Schultz in a preliminary manner. In many respects, it was difficult to assess the reliability of some of her testimony. In particular, it was often difficult to contextualize her evidence because, curiously, she was only able to relate the events that occurred by reference to the day of the week something occurred. For example, she testified that something happened on a Monday but could not delineate whether that was Monday, September 19, 2016 or Monday, September 26, 2016. Unless specified otherwise, where there was a conflict in her evidence with that of another witness, I preferred the testimony of the other witness.

22Diane Schultz was in her vehicle near the Sydenham property at the time the accused and Ms. Hedrick were arrested on September 19, 2016. Following their arrest, she used her key and briefly entered the Sydendam property.

23It would be an understatement to say that Diane Schultz was not pleased that her son and Ms. Hedrick had been arrested. She determined that they would not be returning to reside at the Sydenham property. She decided she wanted to clean-up the property and lease it to someone else. She was keen to do this promptly as she was planning to depart on vacation a few days later.

24Commencing September 20, 2016 Diane Schultz attended at the Sydenham residence and entered using her own key. Over the next two days she cleaned up. She described her conduct as being in “mom mode”. She packed up all of Ms. Hedrick’s personal belongings and put them in blue tote boxes which she had purchased for that purpose. She then placed the tote boxes outside the back of the house.

25During the course of her two-day clean-up of the Sydenham property, Ms. Schultz discovered the following:

1. A quantity of marijuana in a small, locked shed located just behind the house. She gathered up this marijuana. It filled three (3) yard waste bags.

2. A small bit of a substance later identified as cocaine. She removed this to her residence on Bagot.

3. A gun. She described this at times as a toy gun, a BB gun or a pellet gun. She found this in the bedroom of the accused. She removed this item to her residence on Bagot.

4. Some pellet gun pellets lying on the floor.

26She communicated with Wendy Lumley who was the mother of Ms. Hedrick. She advised Ms. Lumley that she had cleaned out the house and had placed Ms. Hedrick’s personal items in the totes and left them in the back of the Sydenham house.

27At no time prior to September 21, 2016, did either the accused or Ms. Hedrick give Diane Schultz (or anyone else) permission to:

a) enter the house and/or shed;

b) clean up the residence and/or shed;

c) remove Ms. Hedrick’s property, or specifically to leave it in totes at the back of the house;

d) remove any property from the residence, or the shed;

e) permit the OPP (or anyone else) to enter the residence at 553 Sydenham, including the locked shed.

28At no time did Diane Schultz, Gary Schultz, or anyone acting on their behalf, individually, or collectively, commence legal proceedings to terminate the lease, or in any way notify the accused and/or Ms. Hedrick of an intention to terminate the lease with respect to the Sydenham property.

First Search of the Sydenham Property

29At approximately 8:43 p.m. on September 21, 2016, Officer Paquette received a call from Sgt. Brown of the Amherstburg Police indicating that Diane Schultz had called the Amherstburg Police Service and had advised that she wanted the police to attend at the Sydenham property to remove marijuana she had discovered.

30Sgt. Brown provided Officer Paquette with Ms. Schultz’s telephone number. Officer Paquette was nearing the completion of his shift that had started at 7:00 a.m.

31Officer Paquette spoke with Diane Schultz by telephone. She identified herself as the owner of the property at 553 Sydenham. Officer Paquette had only been familiar with Ms. Schultz from the time he observed her present near the Sydenham property when the accused and Ms. Hedrick had been arrested two days earlier. He was advised that she wanted the police to come to the Sydenham property to remove a quantity of marijuana. She wanted the officers to come in an unmarked car and not be in uniform because she did not want the presence of the police to attract attention to this property which she normally rented to vacationers. She also did not want to be personally arrested or charged. Diane Schultz indicated that she had been letting her son (the accused) and his girlfriend (Ms. Hedrick) “stay there”. As they had been arrested she advised the officer they would not be returning. She made no reference at that time to the fact that they had signed a lease, or had, in fact, paid rent.

32While on the phone Officer Paquette made no formal inquiries to ascertain whether Ms. Schultz’s statement that she was the legal owner of the property was accurate. He did make inquiries of Ms. Schultz about the status of the accused and Ms. Hedrick possibly being tenants but was led to believe they were only just “staying there”. He was not advised whether there was a bona fide lease between Diane Schultz, her son and/or Ms. Hedrick.

33Before leaving the station, Officer Paquette prepared a consent form dated September 21, 2016. He and Det. Cst. Mark Harris departed from the Essex County OPP detachment at 8:48 p.m. to attend at the Sydenham property. They drove in Officer Harris’ personal truck as they had car-pooled to work. They both resided in the Harrow area and were going to return home after this attendance. At the request of Ms. Schultz, they had changed from their uniforms to street clothes prior to departing.

34Upon arrival at 553 Sydenham at 9:25 p.m., Diane Schultz showed the officers into the residence. At no time prior to entry did either officer ask Ms. Schultz where the marijuana was located.

35There was conflict between the evidence of Diane Schultz and the two officers regarding the location of the parties when the consent was executed. Ms. Schultz testified the document was executed at the Bagot residence while both officers testified the document was executed inside the house on Sydenham. Given the confusion Diane Schultz had with temporal issues in her testimony, I accept the evidence of Officers Paquette and Harris that the consent was executed inside the Sydenham house in the kitchen of the small residence. Given that Diane Schultz signed a second consent five days later at her personal residence I have concluded that she was confused as to where she signed the first consent on September 21, 2016.

36Ms. Schultz was presented with an OPP Consent to Search form with the date “September 21, 2016” typed. The form was on OPP letterhead from the Essex County Detachment, Southwest Region, 1089 Puce Rd, Essex, Ontario. The document was signed by Diane Schultz and Officer Paquette.

37The text of the document is set out as follows (with the handwritten portions bolded):

Consent to Search

I, Diane Schultz, understand that members of the Ontario Provincial Police – Essex Detachment are conducting an investigation in relation to drugs. “DD”

Understanding the nature of that investigation I, , do authorize O.P.P. to enter and search 553 Sydenham for drugs relating to that investigation. “DD”

As owner of the said property I have the authority to authorize this search. “DD”

I have been informed that I have the right to telephone a lawyer prior to giving my consent to search. I further understand that I can speak with a legal aid lawyer, prior to giving my consent to search for free legal advice by calling 1-800-265-0451. “DD”

I have been informed that I do not have to consent to this search, and further, that I can withdraw my consent at any time. “DD”

I have been informed that any evidence located as a result of this search could be used against me, at my trial. “No charges” “JP”

This consent is voluntary. No promise, threat, or inducements of any kind have been held out to me by members of the Ontario Provincial Police, or any other person in authority, in order to gain this consent. “DD”

Dated this 21 day of Sept 2016 at the Town of Essex

“J Paquette 12492” “Diane Schultz”

Essex County O.P.P.

9:34 PM

951 Clear

(An actual copy of this document is attached as “Appendix ‘A’ to this decision.)

38It is noted that the consent only referenced a search for “drugs”. This word was handwritten.

39At no time did either Officer Paquette or Harris (individually or collectively) advise Diane Schultz of the following:

1. That Officer Paquette had received information that there may have been weapons in the house;

2. They were looking for a weapon;

3. That they were interested in obtaining evidence or information regarding the Saab vehicle that the accused drove with respect to a hit and run accident investigation in Amherstburg from September 16, 2016.

40Officer Paquette spent three to four minutes explaining the consent form and obtaining Ms. Schultz’s signature. He was not armed. Det. Cst. Harris was carrying his service weapon.

41Once the consent was signed, Officer Paquette conducted what he described as a brief “safety check” of the Sydenham residence. He testified that he only looked in places where a person could be located. He did not, for example, look in any drawers. The search took two minutes.

42In cross-examination, he acknowledged it was the first time he had gone over a waiver form and had it signed before doing a safety search of a house. He described this as a rare occasion. He also acknowledged that there were no urgent circumstances. He was asked why he would conduct a safety search after already being in the house for three to four minutes and his only answer was that he did so to check that there were no other people in the house. He denied he was also looking for guns and in response indicated he was only there because Diane Schultz called them to remove marijuana.

43Once the safety check was completed the parties moved outside to the shed on the direction of Diane Schultz. She unlocked the shed door and presented the officers with three yard waste bags filled with marijuana. Diane Schultz described the marijuana being hung on racks made of broomsticks. She had placed it in the yard waste bags for removal.

Attendance at 560 Bagot

44After the marijuana was secured, Officer Paquette asked Diane Schultz if she had found any weapons in the house.

45She responded that she had discovered a “toy gun” when cleaning up the bedroom of the accused and had taken this to her residence on Bagot. She indicated she had observed it was underneath the pillow on the bed in the bedroom of the accused. It is noted the item was referred to by Diane Schultz at different times in her testimony and in her conversations with the police as a BB gun, a pellet gun and a toy gun. It was painted in a camouflage pattern.

46The officers then attended at the residence of Diane and Gary Schultz at 560 Bagot. Diane Schultz presented the officers with a Mossberg 500 Shotgun bearing serial #U489610. There was no evidence that the officers conducted a safety check of the Bagot property prior to, or upon, entering that residence.

Second Search of the Sydenham Property

47On September 25, 2016, Diane Schultz had a telephone conversation with Wendy Lumley, the mother of Ms. Hedrick. As a result of that conversation, Diane Schultz was made aware that there was a quantity of cocaine remaining in the Sydenham residence. That phone conversation followed the sending of a text message from Wendy to Diane Schultz that same day that was worded as follows:

Sunday, September 25, 2016

I’m very sorry

to bother you

Diane….But I heard

from Katlynn

yesterday… She

filled me in very

quickly on what

they did to be

arrested for.

Apparently the two

of them decided to

take matters into

their own hands

regarding Drew …

Jaylen and Katlynn

went to his house

and He assaulted

Drew… Stole all of

his cocaine…

Of Course …

Drew must told

the police that

they stole cash …

Anyways I’m texting

you to let you know

that Katlynn said

there is cocaine hid

in the cottage.

You will need to

contact the police

to find it and have it

removed from your

property. She did

not tell me where it

was hidden… So I

would advise you to

have them find it . 9:20 AM

just a little note…

to inform you that

I informed the

police regarding the

cocaine. They will

do an investigation.

I’m sure that they

will be contacting

you. I also inform

them about the

totes and your

text giving me

permission comma

So within the next

two days I will

have all of Katlynn

of her belongings

removed from your

property. I feel it is

important to cover

ourselves at this

point so the police

officer said then my

conversation has

been documented 11:05 AM

48Wendy Lumley had communicated with Diane Schultz because of a telephone conversation she had with her daughter, Ms. Hedrick, on September 24, 2016 about cocaine being in the residence at the Sydenham property. Ms. Hedrick had made arrangements for a special call with her mother and it had taken her a number of days following her arrest to obtain the necessary permission. At the time of the call Ms. Hedrick was not aware that the OPP had been to the property on September 21, 2016. She was concerned for Diane Schultz “getting in trouble” or “finding the cocaine”. She instructed her mother to contact Diane Schultz and instruct her to find the cocaine and flush it down the toilet, or otherwise dispose of it. She did not indicate where the cocaine was located in the residence.

49Ms. Hedrick did not direct her mother to contact the police or direct her to have Diane Schultz contact the police. For obvious reasons she did not want the police to be involved with, or become aware of, the cocaine at the Sydenham residence. Her plan failed spectacularly though as both Wendy Lumley and Diane Schultz communicated with the police regarding the presence of cocaine in the Sydenham residence.

50Following a 40-minute audio interview with the police and Ms. Schultz on September 25, 2016, four OPP Officers, including Officer Paquette, attended at the Bagot residence on September 26, 2016 at approximately 9:23 a.m.

51A second Consent to Search was also executed by Diane Schultz and witnessed by Officer Paquette. This was signed in the kitchen of the Bagot residence. It was worded as follows (again with the written portions bolded):

Consent to Search

I, Diane Schultz, understand that members of the Ontario Provincial Police – Essex Detachment are conducting an investigation in relation to drugs. “DD”

Understanding the nature of that investigation I, Diane Schultz, do authorize OPP to enter and search 553 Sydenham for drugs relating to that investigation. “DD”

As owner of the said property I have the authority to authorize this search. “DD”

I have been informed that I have the right to telephone a lawyer prior to giving my consent to search. I further understand that I can speak with a legal aid lawyer prior to giving my consent to search for free legal advice by calling 1-800-265-0451. “DD”

I have been informed that I do not have to consent to this search, and further, that I can withdraw my consent at any time. “DD”

I have been informed that any evidence located as a result of this search could be used against me, in court, at my trial. “No Charges to Diane & Gary Schultz”“JP” “DD”

This consent is voluntary. No promise, threat, or inducements of any kind have been held out to me by members of the Ontario Provincial Police, or any other person in authority, in order to gain this consent “DD”

Dated this 26 day of September, 2016 at the Town of Essex. “DD”

“J Paquette 12492” “Diane Schultz”

10:00 AM

(An actual copy of this document is attached to this decision as “Appendix ‘B’”.)

52That document was identical to the consent form dated September 21, 2016 except as follows:

i) The name of Diane Schultz was typed in paragraphs 1 and 2;

ii) Whereas in the first consent to search the word “drugs” was handwritten in paragraphs 1 and 2, this time the word was printed’;

iii) Paragraph 3 stating “as owner of the property” was fully typed;

iv) Whereas paragraph 6 of the September 21, 2016 document had the handwritten notation “no charges” this document included in handwriting “no charges to Diane and Gary Schultz”;

v) The date of September 26, 2016 was fully typed above the signature line;

vi) Officer Paquette witnessed the document and listed his badge number but did not write “Essex County OPP” as he did on the earlier document;

vii) The time shown at the bottom was listed as 10:00 a.m.

53Following the execution of the second consent, the officers attended at the Sydenham property. This included Officers Paquette and Harris.

54Prior to entry to the Sydenham property there was a discussion between Diane Schultz and Officer Paquette regarding the fact that the accused and Ms. Hedrick were parties to a lease with Diane Schultz regarding the Sydenham property. When Officer Paquette expressed concern about the legality of attending the property if there was a lease, Ms. Schultz stated “You’re here because I told you to be here.”

55Following this exchange, the officers entered the property and obtained the following:

1. Four grams of cocaine hidden in a small container;

2. Approximately 40 grams of marijuana;

3. Two cell phones and a set of Saab keys from the totes containing the personal belongings of Ms. Hedrick that had been placed outside the house by Diane Schultz.

56Based on information volunteered by Diane Schultz at that time, the OPP officers then returned to the Bagot residence and retrieved a small quantity of cocaine located in a paper towel that Diane Schultz had cleaned up on either September 20 or 21, 2016.

57In addition to the foregoing evidence, the following facts were admitted by the accused:

1. He did not have a valid licence to possess a firearm;

2. The accused was prohibited from possessing a firearm pursuant to court orders made on January 12, 2012 and January 13, 2013 pursuant to s. 110 of the Criminal Code and an order pursuant to s. 109 of the Code dated August 18, 2015.

3. The Mossberg 500 Shotgun bearing Serial #U489610 was stolen from the property of an individual named Ronald Goulin on February 23, 2016;

4. The substances obtained by the OPP from the property were cocaine (Schedule I) and marijuana (Schedule II).

58In summary, the OPP obtained evidence at four separate times as follows:

i) Marijuana obtained from the Sydenham property on September 21, 2016;

ii) The weapon obtained from the Bagot property later on September 21, 2016;

iii) Four grams of cocaine and approximately 40 grams of marijuana obtained from the Sydenham property on September 26, 2016; and

iv) A further small quantity of cocaine obtained from the Bagot property on September 26, 2016.

ANALYSIS

General Principles

59As set out in the seminal case of Hunter v. Southam Inc. 1984 CanLII 33 (SCC), [1984], 2 S.C.R. 145, at pp. 159–60, “everyone has the right to be secure against unreasonable search and seizure.” Police conduct interfering with a reasonable expectation of privacy constitutes a “search” within the meaning of s. 8: see Hunter and R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128. As well, the taking of something by a public authority such as a police officer without the consent of that person is a seizure: see R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at para. 26. The competing interests in situations such as this are an individual’s right to be left alone by the government versus intrusions on the right of privacy to advance the interests of law enforcement.

60However, the owner of a house cannot validly consent to a search of a unit occupied by a tenant or guest based only on the fact that he or she owns the premises: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 22; R. v. Mercer (1992), 1992 CanLII 7729 (ON CA), 7 O.R. (3d) 9 (C.A.); R. v. Stevens, 2011 ONCA 504, 106 O.R. (3d) 241, at para. 48. Accordingly, Diane Schultz had no legal authority to permit the OPP Officers access to the Sydenham property on that date solely by virtue of being the property owner and landlord.

61A Charter claimant must establish two things. First, that a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search; second, that the search or seizure was itself unreasonable: see R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 11.

Positions of the Parties

Accused

62The accused argues that the weapon, cocaine and marijuana were all obtained by the OPP pursuant to illegal searches and seizures conducted contrary to s. 8 of the Charter. To admit these items into evidence in the circumstances would bring the administration of justice into disrepute as referenced in s. 24(2) of the Charter, and, as such, these items should all be excluded from evidence.

Crown

63The Crown fairly concedes that as Diane Schultz was only an owner and landlord of the Sydenham property, as such, she had no legal authority to permit the OPP to enter the Sydenham property. Accordingly, an analysis pursuant to s. 24(2) of the Charter is required with respect to the marijuana obtained on September 21, 2016.

64However, the Crown takes the position that while the items obtained from the Sydenham property were obtained in violation of s. 8 of the Charter, the marijuana and cocaine should still be admitted into evidence as the accused has not established that the admission of evidence would bring the administration of justice into disrepute: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

Issue #1

Was the weapon provided to the OPP by Diane Schultz at her Bagot Street residence on September 21, 2016 obtained in a manner that contravened the s. 8 Charter rights of the accused?

65The accused takes the position that the seizure of the weapon was casually linked to the illegal search conducted on September 21, 2016 at his residence. In the event the court concludes that the weapon was obtained contrary to s. 8 of the Charter, this will also require a Grant analysis and determination pursuant to s. 24(2) of the Charter.

66The Crown submits the accused has no Charter-protection with respect to the weapon obtained from the Bagot residence as the protections prescribed in s. 8 of the Charter only apply to the individual, not to a location. Accordingly, there was no violation of the Charter rights of the accused vis-à-vis the items obtained from the residence of Diane Schultz because they were not obtained by the police from the residence of the accused.

67As indicated earlier, I find that as bona fide tenants the accused and Ms. Hedrick had exclusive control over the premises at 553 Sydenham on September 21, 2016. At no time (on or before that date) did either the accused or Ms. Hedrick give Diane Schultz, the OPP, or anyone else permission or authority to enter that property.

68The Crown submits that the firearm was not found as a causal result of an unlawful search. Rather the nexus to the firearm was strictly temporal, in that it was found closely in time to when the search of the Sydenham property was conducted. In more simple terms, the position of the Crown is that the OPP attended at the Sydenham property and came into possession of the weapon unexpectedly from someone not involved with the crime of marijuana possession. As the weapon had been removed from the residence, the significant Charter protections enshrined in s. 8 of the Charter no longer applied. Since the discovery of the weapon did not occur as a result of an investigatory question, the firearm was not obtained in a manner that violated the Charter rights of the accused.

69With respect, for the reasons that follow, I disagree. On a review of the evidence and consideration of the relevant jurisprudence I have concluded that the weapon was obtained by the police in a manner that contravened s. 8 of the Charter. More specifically, I have concluded that there was a causal connection between the warrantless search that was conducted in violation of the Charter-protected rights of the accused on September 21, 2016 and the discovery of the weapon.

70I start by noting that this was not a situation where the weapon was turned into the police voluntarily by a member of the public. Much different Charter considerations apply in those circumstances.

71There were significant additional factors at play that led to the OPP coming into possession of the weapon. I find that the process by which the OPP obtained the weapon flowed casually from an investigation process emanating from an illegal search. It was not merely a temporal outcome as the Crown suggests. It cannot be said that there is only a temporal link between the s. 8 breach and the weapon. I do not accept the characterization by Crown counsel that the officers unexpectedly encountered the weapon when they attended the Sydenham property to remove the marijuana from a person purportedly in authority (Diane Schultz). The discovery of the weapon resulted from Officer Paquette posing of a question based on information he had received and observations he made while in the home.

72There is no dispute that the attendance of the OPP at the Sydenham residence of the accused on September 21, 2016 had its sole genesis in the call made by Ms. Schultz to the Amherstburg Police at 8:35 p.m. However, and significantly, at no point during her telephone and direct personal interaction with the OPP that evening did Ms. Schultz self-initiate or volunteer any information about the weapon. The information regarding the weapon flowed exclusively from the question posed by the officer based on certain information he possessed and did not share. On the totality of the evidence, I must conclude that the question was investigative in nature.

73I re-iterate that approximately one month prior to September 21, 2016 Officer Paquette had received a tip from a confidential informant that there might be weapons at 553 Sydenham.

74He testified he did not share this information with his partner Officer Harris. More significantly, he did not share this information with Diane Schultz, whom he assumed had legal authority to permit the OPP to enter the Sydenham property.

75When he prepared the consent for Diane Schultz to permit entry to the Sydenham property he made no mention of the possible weapons he had learned might be located at the property. Neither did he advise her that he was looking for information and/or items that may have related to the involvement of a Saab motor vehicle like the accused had been driving when he was arrested two days earlier.

76The consent form listed that the police were only searching for drugs. Had the document indicated the OPP were also on the lookout for weapons and/or Saab parts, or had either officer mentioned either of these points prior to the execution of the consent, it is possible that Diane Schultz may have never signed the consent, or, as the consent document provided, she may have withdrawn the consent.

77I give particular importance to the evidence that Det. Cst. Paquette conducted a safety search of the residence in these specific circumstances. He and Officer Harris followed Diane Schultz into the house which she had opened with a key. He knew, or had the ability to easily ascertain, that the accused and Ms. Hedrick were still in police custody. As well, notwithstanding that he had a tip that there may be weapons in the house he went into the house unarmed. While Officer Harris had his weapon, Officer Paquette testified he did not tell Officer Harris that he had received a tip about the possibility of weapons at that residence. He then spent what he estimated to be three to four minutes in the kitchen of the small residence explaining the consent form to Diane Schultz and obtaining her signature. Only then did he conduct a brief safety search. He asserts the search was limited to looking for other persons.

78In these circumstances I cannot conclude this safety search, which was conducted in an unorthodox manner, was solely and exclusively limited to a search to persons as Officer Paquette testified. I have concluded that Officer Paquette was, at a minimum, making a cursory check for weapons while in the house.

79It was only when they had obtained the marijuana and their declared purpose for being there was ending did Officer Paquette ask Ms. Schultz if she had found any weapons.

80In effect, while the unsolicited call from Diane Schultz to the Amherstburg Police to attend and pick up marijuana at the Sydenham residence is what brought the officers to the house, this gave Officer Paquette an opportunity to passively and unilaterally investigate whether there may have been weapons in the house.

81I conclude that but for the tip Officer Paquette received he would not have done the following:

1. Conducted the safety search in the manner he described, if at all; and

2. Asked Diane Schultz whether she had discovered weapons.

82On this evidence, there is no reasonable basis to conclude that the weapon came into the possession of the OPP on a purely temporal basis, incidental to what the officer believed was a legally authorized search.

83Parenthetically, I make no criticism of Officer Paquette for being on the alert for illegal weapons that may be in the public domain. That is not only his duty as a police officer but is commendable. That, however, is a different issue than whether the gun was obtained as a result of a search of the Sydenham property that was conducted contrary to the s. 8 Charter rights of the accused.

84Even beyond consideration of whether there was a causal connection, I have considered R. v. Mack, 2014 SCC 58, [2014] 2 S.C.R. 3, at para. 38, where the court stated:

Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice. [Citation omitted.]

85In R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), Doherty J.A. pronounced as follows on the degree of connection at para. 45:

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous. [Citation omitted.]

86I have concluded that the OPP obtained the weapon in direct consequence of the following:

• the tip Officer Paquette received that there were weapons at 553 Sydenham;

• his being permitted entry into that house;

• his knowledge Diane Schultz had thoroughly cleaned the residence to get it ready and suitable for the next occupant;

• his safety security search, and

• the question he asked her about whether she had discovered any weapons.

All of these factors drive the conclusion that the discovery of the weapon was part of the same transaction or course of conduct as the Sydenham property search and was obtained contrary to s. 8 of the Charter.

87On the totality of the evidence and the sequence of events on September 21, 2016 I have concluded that but for the breach, the weapon would not have been discovered. For this reason, I have concluded that the weapon was obtained in a manner that violated the s. 8 rights of the accused: see R. v. Law 2002 SCC 10, [2002] 1 S.C.R. 227.

88Given this finding, it will be necessary to conduct an analysis and determine whether the accused has established that it would bring the administration of justice into disrepute as prescribed in s. 24(2) of the Charter, to admit the weapon into evidence.

Issue #2

Did the search of 553 Sydenham conducted on September 26, 2016 violate the s. 8 Charter rights of the accused?

89For the reasons that follow I have concluded that the cocaine discovered at the Sydenham property on September 26, 2016 was obtained in contravention of the privacy rights of the accused pursuant to s. 8 of the Charter.

90Prima facie it would appear that the same considerations pertaining to the legality of the search on September 21, 2016 would apply to the September 26, 2016 search as the accused and Ms. Hedrick were still tenants at the Sydenham property on that date.

91However, events occurred between September 21, 2016 and September 26, 2016 that require a different assessment of the second search.

92On September 24, 2016 Ms. Hedrick was granted permission to speak via telephone with her mother. During that call she advised her mother that there was cocaine in the Sydenham residence. She requested that her mother contact Diane Schultz to dispose of it.

93As a tenant in the property, I find Ms. Hedrick had authority to consent to permitting the landlord, Diane Schultz, to enter the property. She testified to doing this to protect Diane Schultz or a subsequent occupant from discovering the cocaine.

94However, she also had a personal motive for this request as she clearly wanted the cocaine disposed of for her own legal protection.

95As prescribed in R. v. Cote, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 78, by contacting her mother to have Diane Schultz enter the Sydenham property to remove cocaine, Ms. Hedrick had sufficient information to make a meaningful choice on her own account to permit Diane Schultz to enter the Sydenham property.

96As the Supreme Court of Canada stated in R. v. Reeves, 2018 SCC 56, 427 D.L.R. (4th) 579, at para. 13, “valid consent acts as a waiver of the claimant’s s. 8 rights”. A “consent search or seizure” is, in fact, no search or seizure at all for the purposes of s. 8: R. v. Wills (1992) 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 549.

97However, Ms. Hedrick’s consent for her mother or Diane Schultz could not extend to a waiver of the accused’s s. 8 rights. The person who consents must be the person whose rights are engaged. The Supreme Court of Canada has rejected such a third party consent doctrine in the context of employer-provided computers: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 74-79.

98The question of what consent Ms. Hedrick as a co-tenant could even provide to the police in entering a home remains an unsettled area of the law: see Reeves, at paras. 25-26. Nevertheless, it is clear that Ms. Hedrick’s actions could not extinguish the privacy rights of the accused in the home.

99Thus, there was no valid consent given to enter the property by the accused and a s. 8 Charter breach is established for the search of the Sydenham property on September 26, 2016.

Issue # 3

Did the obtaining of the small amount of cocaine from the Bagot residence on September 26, 2016, violate the s. 8 rights of the accused?

100In my view, the small amount of cocaine obtained from the Bagot residence from Diane Schultz (as opposed to the four grams obtained from the Sydenham residence that day) did not constitute a breach of s. 8. Normatively, in the totality of the circumstances, I do not think the accused had an objectively reasonable expectation of privacy once the cocaine was removed by Ms. Schultz: see Reeves, at para. 28, as Diane Schultz volunteered this property.

101Even if a breach had been found, I would allow the evidence under a s. 24(2) analysis. Unlike the weapon, the evidence was not elicited by state conduct and probing on the part of the police and could truly be said to have been obtained inadvertently on their part. Whereas Diane Schultz made no mention of the weapon until she was asked directly, she volunteered the information that the cocaine was at her residence. She was not a state actor.

Issue #4

Should any of the evidence obtained contrary to s. 8 of the Charter be excluded from evidence at trial pursuant to s. 24(2) of the Charter?

102Having determined that the marijuana and weapon obtained by the OPP on September 21, 2016, and the cocaine obtained on September 26, 2016, were all the result of searches conducted in violation of the privacy rights of the accused prescribed in s. 8 of the Charter it will be necessary to conduct a 24(2) Charter analysis.

103As stated in R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 34, “[o]nce evidence has been obtained in connection with a breach of one or more of the rights guaranteed by the Charter, the court must decide whether to admit or exclude the evidence at trial.”

104In summary, a violation of an individual’s Charter rights does not result in an automatic exclusion of evidence obtained thereunder.

105Section 24(2) of the Charter provides as follows:

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.

106The Charter is legislation of fundamental significance to Canadian society. The principles and rights enunciated in the Charter provide the solid underpinning for a just system of criminal law. The Charter is the anchor that balances two important societal considerations.

107On one side of the analysis is the need to protect citizens, residents, and visitors in Canada from criminal activity. However, in a free and just society, these interests must be protected by a criminal justice system in which persons are presumed innocent until proven guilty and shall also be secure from unreasonable search along with other protections. The Charter protects against indiscriminate and/or discriminatory exercises of police power.

108In the absence of those basic rights and protections, persons could be subject to indiscriminate and unreasonable searches of their person, bodies, residences and personal property without objectively determined reasonable or probable grounds.

109The Charter provides the legal framework that maintains the interests of crime prevention, detection, and punishment in balance with the right of all persons to be free from unreasonable search and seizure.

110As described by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, at para. 36:

Any search incidental to the limited police power of investigative detention…is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 21.

111In conducting a s. 24(2) analysis determining whether the seized items should be admitted into evidence, the court must balance the following three factors:

(a) the seriousness of the State conduct violating the Charter, including the nature of the police conduct that led to the discovery of the evidence, whereby:

(i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to disassociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law; and

(ii) an inadvertent, trivial, or minor violation and the existence of good faith or exigency circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence;

(b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial;

(c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to:

(i) the reliability of the evidence and the extent to which it is undermined by the breach(es);

(ii) the importance of the evidence to the Crown’s case; and

(iii) the notion that the discoverability of the evidence is no longer a determinative factor.

See Grant, at para. 71

112The role of the Court in a s. 24(2) application is to make assessments under each of these three lines on inquiry, balance these assessments and determine, in all the circumstances, whether the accused has established that the admission of the evidence would bring the administration of justice into disrepute.

a) What is the seriousness of the Charter-infringing state conduct?

113I start this analysis by reviewing the conduct of the officers, and, in particular, Det. Cst. Paquette.

114At first, the narrative starts out innocuously. A woman who legally owns a property contacts the police to have marijuana that has come into her possession removed.

115Had the accused and Ms. Hedrick not enjoyed any reasonable expectation of privacy rights with respect to the Sydenham property, the seizure of the marijuana would not have given rise to a s. 8 violation.

116Furthermore, had the weapon been discovered in plain view during such a search, it would likely be considered as incidental to their lawful drug search given a valid consent. The jurisprudence in that case would support a conclusion that the admission of the weapon would not bring the administration of justice into disrepute and indeed there would be no Charter breach.

117However, as set out above, that is not what occurred in these instances.

118On September 21, 2016, it was the end of a long work day for Officers Paquette and Harris. Prima facie it would be understandable that they might be willing to accept the misinformed assertions of Diane Schultz that she was not only the property owner but that the accused and Ms. Hedrick were merely “staying” at the Sydenham residence. However, that information was not complete or accurate.

119Notwithstanding the tone of Diane Schultz and her requests/demands that the officers attend in street clothes and not in a police vehicle, on the face of the information Diane Schultz conveyed to Officer Paquette there was clearly nothing remotely urgent or emergent in the request that a quantity of marijuana be removed from the Sydenham property.

120It was the additional information possessed by Officer Paquette regarding the possibility of there being weapons at this residence and his actions in relation thereto that informs the issue of the seriousness of the Charter-infringing state conduct. Where the Crown relies on the consent of an individual for authorization for a seizure and fails to establish the validity of that consent, then the seizure of items cannot be brought within s. 8 based on the police officer’s perception of the validity of the consent. That perception will, of course, be very important in considering whether evidence obtained as a result of the seizure should be excluded pursuant to s. 24(2) of the Charter: see R. v. Wills, at p. 550. However, beyond that mistake of fact or law regarding the lack of consent, the search on September 21, 2016 was fatally tainted by the attempt by the officer to search for, and eventually ask about, weapons.

121I have concluded that the events of September 21, 2016 and September 26, 2016, both constituted serious breaches of the accused’s s. 8 privacy rights for the following reasons:

September 21, 2016

1. The officers could have deferred or delayed entering the property until they obtained a warrant.

2. The officers could have made further and more probing inquiries to properly determine whether the accused had any privacy rights in the residence at 553 Sydenham.

3. Neither officer informed Diane Schultz orally or on the consent form that they had an interest in ascertaining whether there were weapons at the residence.

4. Neither officer informed Diane Schultz that they were interested in obtaining information/evidence regarding the Saab vehicle that was being driven by the accused at the time of his arrest as part of an investigation into a hit and run accident on September 16, 2016.

5. There was nothing extenuating or emergent. The marijuana could have been picked up the next day after further preliminary inquiries had been made.

6. The safety search was conducted by Officer Paquette at least in part to ascertain if there were weapons present. In assessing when a safety search is appropriate, the court of appeal in R. v. Jupiter, 2016 ONCA 144, at para. 1, cited R. v. MacDonald, 2014 SCC 3, at para. 43, which explained the confines of a constitutionally permissible safety search:

…it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In doing so, it ensures that the law itself is reasonable and can be reasonably delineated. [Emphasis added.]

122On the evidence of Officer Paquette, there may have been some information about weapons at the Sydenham property but there clearly was no reasonable and probable grounds to conclude a threat was imminent in this regard. I note Officer Paquette had already been present inside the home for several minutes explaining the consent form to Diane Schultz before performing the safety check and Officer Paquette knew the accused and Ms. Hedrick were incarcerated.

September 26, 2016

1. The Officers were aware on September 25, 2016 that there may have been cocaine at the Sydenham property. They could have obtained a warrant to enter the property based on the information they had from Diane Schultz and Wendy Lumley. They chose not to do so.

2. By September 26, 2016, Officer Paquette had further and better information strongly confirming that the accused and Ms. Hedrick had privacy interests as tenants in the Sydenham property. The Officer had a discussion with Diane Schultz in this regard. Notwithstanding that discussion and her statement, “you are here because I told you to be here”, they had her sign a consent they had to know was flawed and still entered the property.

3. As occurred on September 21, 2016, none of the officers informed Diane Schultz that they were interested in obtaining information/evidence regarding the Saab vehicle that was being driven by the accused at the time of his arrest as part of an investigation into a hit and run accident on September 16, 2016. Significantly, that information was not referred to on the consent form typed at the Detachment stating only “drugs” executed that day by Diane Schultz.

4. The officers searched the private belongings of Ms. Hedrick located in the blue totes and obtained two cell phones and Saab keys. These items were unrelated to the stated purpose of the search for drugs.

123In these circumstances I cannot conclude that either Charter violation was inadvertent, or a minor violation. It may have been convenient for the OPP Officers to attend as they did on both dates but it cannot be said the situation was extenuating or emergent on either date. Ironically, while it could be argued that the possibility of weapons being inside the Sydenham residence was an emergent situation, Officer Paquette was adamant in his testimony regarding the September 21, 2016 entry that under no circumstances was he searching for a weapon when he did the safety check or questioned Diane Schultz about a weapon, thereby negating any urgency in the situation.

b) What is the impact on the Charter-protected interests of the accused?

124As set out at para. 76 of Grant, the extent of the impact of a Charter breach may range from “fleeting and technical” to profoundly intense. What is the impact of these Charter infringements on the protected interests of the accused? When the evidence is reviewed in its totality, I conclude that the effect of the unlawful searches contrary to s. 8 of the Charter had significant impact on the privacy interests of the accused.

125The accused had a significant expectation of privacy with respect to his personal residence. This expectation of privacy was violated by the illegal search of his residence.

126The Charter was designed to prevent indiscriminate and discriminatory exercises of police authority.

127A dwelling house is a place where individuals have a high expectation of privacy. This heightens the seriousness of the Charter breach: see Grant, at para. 113.

128As stated in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, there is no place on earth where persons can have a greater expectation of privacy than within their dwelling house.

129Or, as expressed by LaForest J. (in dissent but not on this point) when describing a person’s home being secure from state intrusion without a warrant: “It affords the individual a measure of privacy and tranquillity against the overwhelming power of the state”.

130The Crown argues the accused had a lesser expectation of privacy in the shed containing the marijuana. I note that the house was very small, the shed was located extremely close to the house, and the shed was locked. However lesser the expectation of privacy would be in those circumstances is debatable. It is not, however, in any event, significant enough to diminish the seriousness of the breach.

131In R. v. Farquharson, 2013 ONSC 7859, at para. 45, the court held as follows:

In my view, the warrantless search of a locked building that forms part of the premises (although not the dwelling house) is serious. On the spectrum of seriousness, it is obviously not as serious as a warrantless search that actually involves a dwelling house or bodily integrity. That said, it is a serious violation of privacy. It occurred on private property at night. It is not trivial.

132To admit the evidence seized in these circumstances would clearly send a message that individual Charter rights of privacy in a person’s residence in the absence of a warrant are of little benefit to members of our society.

c) Society’s interest in an adjudication on the merits

133It is clear from the evidence that the items seized would never have been discovered on September 21, 2016 or September 26, 2016 but for the illegal searches. It is also clear that this is reliable evidence and essential for the Crown to prove the charges against the accused. However, as stated by Pomerance J. in R. v. Morrison, 2015 ONSC 4453, at para. 69, “…courts must be careful to ensure that the evidentiary ends to not justify unconstitutional means.”

134Clearly persons in possession of illegal weapons should be held accountable. It is clearly in the interests of society that such weapons be removed from Canadian communities. The same applies to the 4 grams of cocaine. Adjudication on the merits with respect to the marijuana is of lesser concern given the then stated intention of the Government of Canada, to decriminalize marijuana possession.

135Accordingly, the interests of society in having this matter adjudicated with respect to the weapon and the cocaine are significant and weigh towards the inclusion of the evidence.

d) Balancing the considerations under s. 24(2) of the Charter

136The interests in adjudicating the case on its merits are not, however, fully dispositive of the issues on this voir dire. Society also has a significant interest in maintaining a justice system that is fair to all and beyond reproach. As McLachlin C.J. stated for the majority at para. 36 of R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

137I have also considered the decision in R. v. McGuffie, 2016 ONCA 365. There Doherty J.A. of the Ontario Court of Appeal stated at paras. 62 and 63 as follows:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

138Given the strong basis for exclusion on the first and second inquiries, I am not persuaded that the balance should be tipped in favour of admissibility based on the third criteria. Notwithstanding the seriousness of the matter and the interests of our society to have this matter adjudicated, I acknowledge that a s. 24(2) analysis is not, as noted in R. v. Harrison, a mathematical formula and that 2-1 outcome is not necessarily determinative. However, in this case the nature of the Charter-infringing conduct and its impact on the privacy interests and protections against an unreasonable search and seizure clearly outweigh society’s interest in adjudicating the matter.

139Allowing the seriousness of the offence and reliability of the evidence to overwhelm the s. 24(2) analysis would significantly diminish Charter protection, as the Supreme Court of Canada described in Harrison, at para. 96:

As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’” (para. 150). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences. In relying on Puskas in these circumstances, the trial judge seemed to imply that where the evidence is reliable and the charge is serious, admission will always be the result. As Grant makes clear, this is not the law.

140The focus of s. 24(2) is to preserve the long-term reputation of the Canadian justice system. Convicting the accused solely on the basis of evidence obtained as a result of serious Charter violations would be a step on the path towards the complete erosion of the significant and fundamental rights parliament has enshrined in the Charter. As stated at para. 84 of Grant:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

CONCLUSION

141Having taken into consideration the seriousness of the Charter breach, the impact of same on the Charter-protected interests of the accused, and society’s interest in an adjudication on the merits, I have concluded that the accused has established that to admit into evidence the marijuana and weapon obtained on September 21, 2016, and the cocaine and marijuana obtained on September 26, 2016, would seriously erode the protections enshrined in s. 8 of the Charter against unreasonable search and seizure and bring the administration of justice into disrepute.

142Making an analysis pursuant to s. 24(2) of the Charter requires the court to make critical decisions based on the reality of the evidence and society’s understandable need to have illegal guns and drugs taken off the street. In theory, warrantless searches without reasonable and probable cause of various Canadian residences would likely uncover a variety of weapons and other contraband. However, the obvious benefits to society of such an exercise can only be assessed in the context of the significant Charter protections Parliament has enacted.

143One of those protections is that a state sanctioned search of a person’s residence violates those privacy interests, unless it is conducted on consent, or pursuant to a valid warrant.

144While the searches on September 21, 2016 and September 26, 2016, may not have been conducted maliciously, there were additional undisclosed and significant factors related to how those searches and seizures occurred that cannot be ignored or condoned. I re-iterate that to admit the evidence in light of this breach of the privacy rights of the accused would bring the administration of justice into disrepute: see Grant, at para. 85.

145Accordingly, I find the admission of the weapon, the marijuana, and the 4 grams of cocaine would bring the long-term administration of justice into disrepute more than its exclusion: see R. v. Kokesch 1990 CanLII 149 (SCC), [1990] 1 SCR 3.

146For these reasons the marijuana taken from the shed at 553 Sydenham and the weapon removed from said residence by Diane Schultz and provided to the police on September 21, 2016 and the cocaine and 40 grams of marijuana obtained from the residence at 553 Sydenham on September 26, 2016, will not be admitted into evidence at this trial.

147However, the cocaine obtained from the Bagot residence on September 26, 2016 is admitted into evidence.

“Original signed and released by King, J.”

George W. King

Justice

Released orally: June 3, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Katlynn Jean-Nicole Hedrick and Jalen George Schultz

Accused

RULING ON VOIR DIRE

King J.