Court File and Parties
COURT FILE NO.: CR-18-10000620-0000 DATE: 20190529 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ANTHONY MCCALLA
Counsel: Margo Mackinnon, for the Crown Alina Gugila, for the accused
HEARD: April 29 & 30, 2019
P.J. Monahan J.
[1] In November and early December 2017, members of the Guns and Gangs Task Force (the “G & G”) received information from a confidential source (the “CI”) regarding a male in possession of a firearm and narcotics. Based on that information, as well as certain steps taken to corroborate information provided by the CI, shortly after 10 p.m. on December 8, 2017 members of the G & G arrested an individual who matched the description provided by the CI, who turned out to be Anthony McCalla. A search of Mr. McCalla that was carried out incident to his arrest revealed a quantity of cocaine and two cell phones.
[2] Although the police had begun working towards obtaining a search warrant for Mr. McCalla’s vehicle and residence, a warrant had not yet been obtained. Immediately after his arrest, one of the officers went back to the police station to complete the preparation of an Information to Obtain (“ITO”), sufficient to support the issuance of search warrants under the Criminal Code as well as under the Controlled Drugs and Substances Act (the “CDSA”). In the meantime, the other arresting officers used a key that they had obtained from Mr. McCalla to enter his apartment and secure the premises. These officers waited inside Mr. McCalla’s apartment until the search warrants were obtained at approximately 3 a.m. on December 9, 2017. The search warrants were then executed. Police found a loaded firearm, cocaine, a cutting agent associated with the trafficking of cocaine, cash, and a variety of other items in Mr. McCalla’s apartment.
[3] Mr. McCalla was charged with a number of offenses, including possession of a loaded prohibited firearm without authorization, possession of a firearm while under a Prohibition order, possession of property obtained by crime, and possession of cocaine for the purpose of trafficking.
[4] Mr. McCalla seeks to exclude the evidence obtained at the time of his arrest, as well as through the search of his apartment, on the basis that his rights as guaranteed under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms (the "Charter") were infringed. At the voir dire to consider these issues, Mr. McCalla advanced the following arguments:
a. The police did not have reasonable and probable grounds to arrest him on December 8, 2017, and thus violated his right not to be arbitrarily detained under s. 9 of the Charter;
b. Although Mr. McCalla was told at the time of his arrest that he was being arrested for possession of cocaine, he was not told until approximately six hours later that he was also being arrested for possession of a firearm. This violated his right under s. 10(a) of the Charter to be informed promptly of the reasons for his arrest;
c. The ITO was misleading and the search warrant should not have been issued. The search of his apartment was thus in violation of his right to be secure against unreasonable search or seizure under s. 8 of the Charter;
d. There were no exigent circumstances justifying the warrantless entry into Mr. McCalla’s apartment prior to obtaining the search warrant, which also violated Mr. McCalla’s s. 8 right;
e. The police further violated Mr. McCalla’s s. 8 right by remaining in the apartment for approximately five hours while they waited for the search warrant to be issued;
f. The police acted in bad faith with respect to both the arrest and the search of the apartment; and
g. As a result of the numerous Charter violations, admission of the evidence obtained at the time of his arrest as well as through the search of his apartment would bring the administration of justice into disrepute. Accordingly, the evidence should be excluded under s. 24(2) of the Charter.
[5] For the reasons that follow, I find that the police violated Mr. McCalla’s s. 8 Charter rights when they remained in his apartment while waiting for the search warrant to be issued. I find that the arrest and the search of Mr. McCalla’s apartment was otherwise lawful and consistent with the Charter.
[6] Notwithstanding the violation of Mr. McCalla’s s. 8 rights noted above, taking into account the Grant factors relevant under s. 24(2) of the Charter, I find that admission of the evidence obtained would not bring the administration of justice into disrepute. Accordingly, Mr. McCalla’s application to have the evidence excluded is dismissed.
Were There Sufficient Grounds to Arrest Mr. McCalla on December 8, 2017?
[7] Mr. McCalla maintains that the police did not have reasonable grounds to arrest him on December 8, 2017 since the arrest was based solely on uncorroborated information received from a CI.
a. The arrest
[8] The CI had described the individual who was in possession of the firearm and narcotics as a black male, approximately 6 feet tall, thin build, with shaved hair or bald. The CI advised that this individual drives a dark blue or black newer model 5 or 7 series BMW, with Ontario license plates BYAP 872. The CI further stated that this individual resided at apartment 614 – 2522 Keele Street in the City of Toronto. The CI provided detailed information regarding possession of a firearm and trafficking in narcotics by this individual.
[9] In late November 2017, pursuant to information obtained from the CI, members of the G & G had established surveillance in the area of 1375 Danforth Road in the City of Toronto. Officers observed multiple vehicles in the parking lot of the above address, including a grey BMW with license plate BYAP 872. They also observed a black male who fit the description provided by the CI entering this vehicle and proceeding northbound on Danforth Road. The vehicle was weaving in and out of traffic and travelling at a high rate of speed, with the result that officers who were attempting to maintain surveillance lost sight of him. Subsequently, the BMW was observed pulling into the underground parking garage at 2522 Keele Street Toronto. The vehicle parked in parking level P2, spot B55.
[10] The BMW was observed parked in the same underground parking spot on December 7, 2017, but the person of interest was not observed at that time.
[11] By the evening of December 8, 2017, the police had begun preparing an ITO to support the issuance of a search warrant for the person of interest’s vehicle and apartment. At the surveillance team briefing at 7 p.m. on that evening, the officer in charge of the team, Officer Michelle Olszevski, indicated that, in her view, sufficient grounds existed to arrest the person of interest for possession of a firearm. She advised the team that if an appropriate opportunity presented itself, she intended to order his arrest.
[12] Officer Olszevski, who testified at the preliminary inquiry as well as at the voir dire, indicated that she formed this opinion based on the information from the CI, some of which had been corroborated, as well as the dangerous driving that had been observed on prior occasions. Officer Olszevski was concerned over the team’s capacity to maintain effective surveillance on this individual, as well as the potential danger to public safety if they attempted to apprehend him while he was driving. Given these concerns, Officer Olszevski determined that if the opportunity to safely arrest this individual presented itself, she would order the arrest, notwithstanding the fact that the search warrant had not yet been obtained.
[13] Detective Olszevski also testified that, although she was of the view that sufficient grounds existed to arrest the person of interest for unauthorized possession of a firearm, they did not at that time have sufficient grounds to arrest him for trafficking in cocaine. She indicated that in cases where an individual was suspected of engaging in street-level drug transactions, police would normally expect to corroborate such activity through direct observations before arresting the individual or seeking to obtain a search warrant. Since the police had not at that point made any such direct observations involving drug transactions, she instructed the team that an arrest of Mr. McCalla, if attempted, would be for possession of a firearm but not for trafficking in cocaine.
[14] At approximately 9:43 p.m. on December 8, 2017 the BMW was observed exiting the underground parking garage at 2522 Keele St. and turning south on Keele Street. The BMW was weaving in and out of traffic and travelling at a high rate of speed, and officers who attempted to follow lost sight of it. However, the BMW was subsequently spotted parking outside a Walmart store located at Lawrence Avenue West and Keele Street. Police observed the same black male whom they had identified through their earlier surveillance exit the driver’s seat of the BMW, enter the Walmart and then exit the store a short time later.
[15] As he was returning to his vehicle, the person of interest walked by the unmarked police vehicle of one of the members of the surveillance team. He stopped momentarily and appeared to be attempting to look into the vehicle, but the officer inside held up a coat against the window to try to shield himself from view. The person of interest then continued on towards the BMW. As he was about to reenter the BMW at approximately 10:17 p.m., Officer Olszevski made the decision to order his arrest. The members of the surveillance team got out of their vehicles, identified themselves as police, and told Mr. McCalla that he was under arrest. He attempted to flee on foot but was pursued, and within moments he was taken down to the ground and arrested.
[16] Officer Matthew Clarke, who was one of the two officers who effected the arrest, observed the individual reaching into his left pocket as he was running away. Clarke testified that he was concerned that the individual might be reaching for a firearm. As he was apprehending the individual, he reached into his left pocket and discovered a bag containing white powder, which appeared to Clarke to be cocaine. Clarke then told the individual that he was being arrested for possession of cocaine. Clarke read him his rights to counsel and asked if the individual wished to contact a lawyer. The individual replied that he wanted to contact duty counsel.
[17] The individual subsequently identified himself as Anthony McCalla. He provided police with his date of birth and gave his address as unit 614-2522 Keele Street. He was asked if he lived with anyone, and he indicated that he lived there with his girlfriend. He also told the officers that the girlfriend was in the apartment at that time.
b. Reliance on Garofoli Step Six
[18] Both the Crown and the defence agree that in order for a peace officer to make an arrest without a warrant pursuant to s. 495(1)(a) of the Criminal Code, the officer must subjectively have reasonable grounds on which to base the arrest, and those grounds must be objectively justifiable to a reasonable person in the position of the officer. R. v. Dhillon, 2016 ONCA 308 at paragraphs 23 to 25. The arresting officer is not required to establish a prima facie case for conviction before making an arrest. The standard is met at the point where credibly-based probability replaces suspicion.
[19] The totality of the circumstances forms the basis of the arresting officer’s objective assessment of the grounds for arrest. Objective assessment carries with it a form of subjectivity as it includes the officer’s experience in forming the basis for his or her conclusions. R. v. Filian-Jiminez, 2019 ONSC 821 paragraph 17.
[20] In assessing whether reasonable grounds existed in this case for the arrest of Mr. McCalla, the Crown invites me to consider the information provided to the police by the CI. The ITO, which sets out that information, was significantly redacted in order to protect the identity of the CI. The Crown suggests that it is necessary to review the unredacted ITO, pursuant to the so-called “Step Six” analysis set out in R. v. Garofoli, [1990] 2 S.C.R. 1421.
[21] I note that Fairburn J.A. in R. v. Iraheta, 2018 ONCA 229 at paragraph 19, indicated that the Court of Appeal has not yet determined whether the Garofoli Step Six procedure can be applied when considering the sufficiency of grounds for arrest. Nevertheless, in my view the same logic which led the Supreme Court in Garofoli to permit the reviewing judge to examine the unredacted ITO in considering the validity of a search warrant, applies equally in cases where an unredacted ITO sets out the grounds for a warrantless arrest. In both cases, the goal is simply to ensure that the reviewing court has a complete and accurate understanding of the basis upon which the decisions under review were actually made. In R. v. Crevier, 2015 ONCA 619 at paragraphs 46 and 47, Rouleau J.A. on behalf of the Court of Appeal described this logic as follows:
When an ITO references information from and about a confidential informer and step six of Garofoli is not engaged, the reviewing court is deprived of the opportunity to examine the full, unredacted ITO in reaching its decision. As a result, the court may be forced to artificially determine, based on an incomplete picture, that the warrant could not have issued, even though it very well could have issued based on the complete picture that was before the issuing Justice.…
Provided the accused’s right to full answer and defence is protected, an otherwise sufficient ITO should not, therefore, be found inadequate simply because of redactions made to preserve informer privilege. This would frustrate the utility of many search warrants and the interest of law enforcement.
[22] In this case, Officer Olszevski testified that the information provided by the CI was a significant basis for her decision to arrest Mr. McCalla on December 8, 2017. It would appear difficult to properly assess the lawfulness of that decision without considering all of the information upon which it was based, which can only be done by reviewing the unredacted ITO. I note that Hill J. recently came to the same conclusion in R. v. Williams, 2018 ONSC 3654 at paragraph 119.
[23] Provided that the accused’s right to full answer and defence is appropriately protected, I conclude that reliance on the Garofoli Step Six procedure is appropriate and necessary in these circumstances. I further observe that the defence did not raise any concerns with the use of Garofoli Step Six, provided that a fair and accurate judicial summary of any redactions was provided.
[24] Accordingly, I reviewed the unredacted version of the ITO, along with a proposed judicial summary prepared by the Crown. The Crown also provided me with a document explaining in detail the reasons why these particular redactions were necessary in order to protect the identity of the CI.
[25] I have carefully reviewed the redactions in the ITO along with the detailed explanation provided by the Crown. Based on that review, I am satisfied that the redactions are in fact necessary and appropriate to protect the identity of the CI. I am further satisfied that the judicial summary is accurate, and provides the defence with a sufficient basis to understand the nature of the material redacted, so as to be able to challenge it by evidence or argument. I also find that the judicial summary provides Mr. McCalla with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the CI. As such, I find that resort to the Garofoli Step Six procedure in this case is consistent with the accused’s right to full answer and defence.
c. Sufficiency of Grounds for Arrest in this Case
[26] In considering the sufficiency of information obtained from a CI, a reviewing court must have regard to the three factors set out by the Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140, namely, was the information credible, was it compelling, and was it corroborated? These three factors comprise a single test rather than separate components to be satisfied on an individual basis. Thus, weaknesses or deficiencies in one area may be compensated by strengths in another. The key question is whether, in the totality of the circumstances, the information provided by the CI provides a sufficient basis for an arrest or search.
[27] Considering first whether the information provided by the CI was credible, the CI in this case was a reliable CI who had provided information leading to arrests and charges in numerous instances in the recent past. None of the information provided by the CI in the past had proven to be false. The CI was advised that no benefits, if any were requested, would be provided if the information turned out to be false. The ITO also provided information on the criminal record, if any, of the CI.
[28] I conclude that the information provided by the CI was credible.
[29] Turning to the question of whether the information was compelling, it is not possible to reveal specifics of the information provided without potentially compromising the CI’s identity. Nevertheless, having reviewed the unredacted ITO, I find that it sets out detailed information regarding possession of a firearm and trafficking in cocaine by the person of interest. Most of the information provided was based on firsthand observations and knowledge. The information was also very recent.
[30] I therefore find that the information provided by the CI regarding firearms and drug offenses was compelling.
[31] Turning to the third factor, there was limited corroboration of the information provided by the CI. The police confirmed that an individual matching the description of the person of interest drove a motor vehicle bearing the license plates provided by the CI. Police also corroborated that the person of interest was associated with the condominium building on Keele Street, as well as the location on Danforth Road where the drug trafficking was said to have occurred. Police had also observed the person of interest driving at extremely high rates of speed and weaving in and out of traffic, making it extremely difficult to maintain effective surveillance on him. However, the police had not been able to corroborate any street-level drug transactions involving the person of interest. Nor had they been able to corroborate whether the individual actually lived at the specific apartment identified by the CI, as opposed to another apartment in the same building.
[32] Detective Olszevski candidly acknowledged that police did not have sufficient reasonable and probable grounds to arrest Mr. McCalla for trafficking in cocaine on the evening of December 8, 2017. However, in her view they did have reasonable and probable grounds to arrest him for possession of a firearm. She indicated that given the secrecy associated with firearms, it is not normally possible to directly corroborate possession of a firearm prior to arrest.
[33] Detective Olszevski clearly had a subjective belief that reasonable and probable grounds existed to arrest Mr. McCalla for possession of a firearm. I further find that objective grounds for the arrest also existed. Although there had been limited corroboration of the information provided by the CI, it was credible and compelling. As noted above, weaknesses or shortcomings in one area can be overcome by strengths in another and regard must be had to the totality of the circumstances.
[34] Detective Olszevski was also concerned by the pattern of dangerous driving that had been observed during police surveillance. In her view any attempt to apprehend the person of interest while he was driving would likely involve a high-risk police chase with the associated threat to public safety. She testified that she made the decision to order the arrest of this individual at the point at which a safe opportunity to do so presented itself, namely, when he was out of his car at the Walmart. I note that, as the Supreme Court of Canada held in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at paragraphs 62 to 63, officer training and experience can play an important role in assessing whether reasonable and probable grounds have been established for an arrest.
[35] Considering the totality of the circumstances, I find that the compelling and credible information provided by the CI, supported by the limited corroboration undertaken to that point, provided an objectively reasonable basis to arrest Mr. McCalla for possession of a firearm when he exited the Walmart on the evening of December 8, 2017.
Did Police Breach Mr. McCalla’s Right to be Promptly Informed of the Reasons for his Arrest?
[36] As noted earlier, when Detective Clarke arrested Mr. McCalla, he told him he was being arrested for possession of cocaine, but he did not tell him he was also being arrested for possession of a firearm. He did not learn that he was being arrested for possession of a firearm until approximately 4 a.m. the next morning, after the loaded firearm had been discovered in his apartment. This gives rise to the question of the police breached his rights under s. 10(a) of the Charter to be “informed promptly” of the reasons for his arrest.
[37] As the Supreme Court of Canada noted in R. v. Evans, [1991] 1 S.C.R. 869 at paragraph 31, the right to be informed of the true grounds for an arrest or detention 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. The second aspect of the s. 10(a) right lies in its role as an adjunct to the right to counsel conferred by s. 10(b), since individuals can only exercise their rights to counsel in a meaningful way if they know the extent of their legal jeopardy.
[38] A purposive interpretation of s. 10(a) requires that regard must be had to this double rationale underlying the right. 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, whether it undermined his right to counsel under s. 10(b). Evans at paragraph 35.
[39] I consider, first, whether the fact that Mr. McCalla was not informed until 4 a.m. on December 9, 2017 that he was being arrested for possession of a firearm, affected his decision to submit to the arrest.
[40] I note that when the police officers first attempted to arrest Mr. McCalla, he did not give them an opportunity to explain the reason why. Instead he immediately fled on foot in an attempt to evade arrest. When he was apprehended moments later, he was told that he was under arrest for possession of cocaine. Given that cocaine was discovered on his person pursuant to a lawful pat-down search, there is no doubt that the police had lawful authority to arrest him on this basis. I therefore find that the failure to inform him that he was being arrested for possession of a firearm did not affect, and could not have affected, his decision whether to submit to the arrest.
[41] Turning to the second rationale identified above, namely, the effective exercise of the right to counsel, Mr. McCalla was immediately informed of his right to counsel when he was arrested outside the Walmart store. He indicated that did wish to speak to duty counsel. After being transported to the police station, he was provided that opportunity.
[42] Counsel for Mr. McCalla suggested that this initial consultation with counsel might have been negatively affected by the fact that he was not then aware that he was facing a charge of unauthorized possession of a firearm. But this suggestion is speculative. By 4 a.m. on December 9, 2017, Mr. McCalla had been told that he was being charged with possession of a firearm. Prior to that time, the police had not made any attempt to question or obtain evidence directly from him regarding the firearm. After being informed of the firearms charges, he would then have been able to obtain additional advice from counsel if he believed it was required.
[43] In this sense, the facts here are quite different from those in R. v. Borden, [1994] 3 S.C.R. 145, where an individual who had been arrested for one sexual assault was not aware that he was also a suspect in a second sexual assault. Without informing the accused that they were investigating him for the second sexual assault, police questioned him about it and obtained blood and other DNA samples linking him to that second offense. No such questioning or other gathering of evidence such as DNA samples occurred in this case.
[44] I therefore find that Mr. McCalla’s right to obtain effective advice of counsel was not impaired by the fact that he was not told of the firearms charge until 4 a.m. on December 9, 2017.
[45] Counsel for Mr. McCalla suggested that had the accused been aware of the possible firearms charge, he might not have provided the police officers with his name, address or date of birth. But there is nothing in the record to support this conclusion. Mr. McCalla was aware that he had been charged with possession of cocaine, and that there was a significant amount of cocaine in his apartment, including in plain view on the kitchen counter. Despite this, he voluntarily provided police with the address of his apartment. (It was agreed that the statements made by Mr. McCalla at the time of his arrest were made voluntarily.) Mr. McCalla did not provide any evidence to support the suggestion by his counsel that an awareness of a potential firearms charge would have resulted in him refusing to provide his apartment address.
[46] I accept Officer Clarke’s evidence that his failure to inform Mr. McCalla of the firearms offense was a product of the dynamic and fluid unfolding of events. Although he had originally intended to arrest Mr. McCalla for possession of a firearm, Officer Clarke indicated that when he reached into Mr. McCalla’s pocket and found a packet of cocaine, in his mind the circumstances of the arrest changed. There was no attempt to mislead or confuse Mr. McCalla when he told him that he was being arrested for possession of cocaine. Moreover, immediately upon discovering the loaded firearm in Mr. McCalla’s apartment, the police promptly informed him that he was being charged with unauthorized possession of the firearm.
[47] Taking all the circumstances into account, and consistent with the purposive interpretation of s. 10(a) as explained by the Supreme Court of Canada in Evans, I find that there was no breach of Mr. McCalla’s s. 10(a) right to be informed promptly of the reasons for his arrest.
[48] Notwithstanding this conclusion, I consider below whether, if I had found that Mr. McCalla’s s. 10(a) rights had been violated, the evidence obtained at the time of his arrest or through the search of his apartment should be excluded pursuant to s. 24(2) of the Charter.
Were the Search Warrants for Mr. McCalla’s Apartment Validly Issued?
[49] I have already determined that the information provided by the CI, as set out in the ITO, satisfies the “three C’s” set out in Debot and I will not repeat that analysis here.
[50] I would also point out that the ITO was bolstered by the fact that upon his arrest Mr. McCalla confirmed his address as being the target address provided by the CI. In addition, the fact that Mr. McCalla was in possession of a quantity of cocaine upon his arrest provided additional grounds justifying the search of his apartment. Mr. McCalla had also provided police with his date of birth which enabled them to ascertain that he had a number of prior criminal convictions for firearms charges.
[51] Counsel for Mr. McCalla argues that information or evidence obtained at or through his arrest should not have been included in the ITO because the arrest was unlawful. Since I have found the arrest to be lawful, the inclusion of information or evidence obtained through the arrest was appropriate. In any event, given that I have earlier found that the information provided by the CI satisfies the requirements of Debot, I find that the warrant could have been issued even in the absence of the evidence obtained through the arrest.
[52] Counsel for Mr. McCalla points out that the ITO incorrectly states that the police surveillance had corroborated the fact that Mr. McCalla resided at 2522 Keele Street. Crown counsel conceded that these statements were technically incorrect since, although the police surveillance had corroborated the fact that Mr. McCalla was associated with the target address, they had not confirmed that he actually resided there. Similarly, the ITO incorrectly states that police surveillance had corroborated Mr. McCalla’s trafficking in narcotics. Crown counsel conceded that these statements could simply be excised from the ITO and that sufficient grounds remained for the warrant to have issued. I agree that the excision of the statements from the ITO does not affect its sufficiency.
[53] Counsel for Mr. McCalla also pointed out that the ITO included the fact that officers had entered Mr. McCalla’s apartment while waiting for the search warrant to be issued and had observed cocaine and scales on a kitchen counter. I agree that inclusion of this information was inappropriate since the entry into Mr. McCalla’s apartment had been solely to ensure that no one else was present and officers had no authority to gather evidence in support of the issuance of the search warrant. This would include any observations made by the officers while they were in the apartment. However even if this information is excised from the ITO, there continued to be overwhelming grounds for issuance of a search warrant.
[54] I conclude that the ITO, as modified by the excisions noted above, provided a sufficient basis for the issuance of the search warrants by the issuing Justice. Accordingly, the warrants were valid.
Was the Exigent Entry into Mr. McCalla’s Apartment Justified?
[55] Mr. McCalla argues that by entering his apartment while waiting for the issuance of the search warrants, the police contravened his rights pursuant to s. 8 of the Charter.
[56] As a warrantless entry, the onus falls on the Crown to demonstrate that what the police did was reasonable in the circumstances. R. v. McDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paragraph 29. The Crown argues that there were exigent circumstances justifying the warrantless entry. Exigent circumstances exist for purposes of the Criminal Code as well as the CDSA, if the following two conditions are satisfied:
a. The police have grounds to obtain a search warrant (the probable cause requirement); and
b. The police believe, based on reasonable grounds, that there was an imminent danger that evidence located in the premises will be destroyed or lost if the police did not enter and secure the premises without delay (the urgency requirement). R. v. Phoummasak, 2016 ONCA 46 at paragraph 12.
[57] I have already found that the police had sufficient grounds to obtain a search warrant, thus satisfying the probable cause requirement.
[58] The Crown argues that the police had reasonable grounds to believe that there was an imminent danger that evidence located in Mr. McCalla’s apartment would be lost or destroyed if they did not immediately secure the apartment. In particular, they point out that Mr. McCalla was arrested in a large and busy parking lot close to his residence. The police had no way of knowing whether the arrest may have been observed by third parties who knew Mr. McCalla and who might take steps to inform others, thereby leading to the destruction of evidence in his apartment. In addition, Mr. McCalla told the officers that he lived with his girlfriend and that she was present in the apartment at that time. Although the girlfriend was not observed in the apartment when the officers entered, there was an objectively reasonable basis for the officers’ belief that evidence would be compromised if they did not immediately secure the premises.
[59] There are a number of decisions of this Court which have found that circumstances similar to those set out above constituted exigent circumstances justifying the warrantless entry into a residence. For example, in R. v. Watson, [2007] O.J. No. 5, at paragraph 59, Marrocco J. (as he then was) held that where an arrest occurred at a convenience store close to the accused’s apartment, and where police believed the apartment was a drug base and the scene of a crime, there was a possibility that someone was present at the apartment who could destroy evidence. This was sufficient to constitute exigent circumstances justifying the warrantless entry to secure the apartment in that case. Similarly, in R. v. Harris, 2018 ONSC 4298 at paragraph 66, Thorburn J. held that where officers could hear voices inside an apartment, as well as the sound of a television and a clothing dryer in operation, they had a reasonable belief that there was someone in the unit who could destroy evidence. The warrantless entry to secure the apartment was accordingly justified.
[60] In my view, the circumstances of Mr. McCalla’s arrest, including the proximity to his apartment, the public nature of the arrest, and his statements regarding his girlfriend being present in the apartment, all gave rise to a reasonable belief on the part of the officers that there was a reasonable possibility that there was someone in the apartment who could destroy evidence.
[61] Accordingly, I find that there were exigent circumstances justifying the warrantless entry into the apartment, for the purpose of ensuring no one was there who could destroy evidence.
Was the Decision to Remain in the Apartment while Waiting for the Search Warrants Justified?
[62] After having ascertained that no one was present in the apartment, the police officers remained inside for approximately five hours while they waited for the search warrants to be obtained. The question is whether this was justified in the circumstances.
[63] In her testimony, Officer Olszevski indicated that in cases where a residence can be accessed by means of a balcony, she generally will remain inside the premises while waiting for the issuance of a search warrant. She stated that she was aware at least one circumstance in which police had observed a firearm in an apartment and then exited the apartment and waited outside until a search warrant was obtained. The apartment in question could be accessed by means of a balcony. Police officers later reentered the unit with the search warrant, only to find that the firearm had disappeared. However, no further details were provided with respect to this prior instance of evidence apparently disappearing, making it difficult to determine whether it was comparable to the circumstances of the present case.
[64] In this case, the apartment was located on the sixth floor of a condominium apartment building. There were other balconies above and below the unit’s balcony, but none on either side, and the exterior of the balcony was flush with the building. It was conceded that it would have been dangerous and difficult for anyone to attempt to enter and exit the apartment by means of the balcony. Moreover, any such manoeuvre would have taken some amount of time and would have been easily observable by an officer stationed outside the building, who could have alerted other officers stationed in the hallway just outside the apartment.
[65] Officer Olszevski testified that waiting outside the unit was impractical since, if officers observed someone attempting to enter the apartment by means of the balcony and then reentered themselves, the individual who entered might have obtained a firearm which would then compromise officer safety. But this assumes that the unauthorized entry into the apartment could have been accomplished in a matter of seconds. There was no evidence to support such an assumption, particularly given the nature of the balcony, and its location six stories up from the ground.
[66] I therefore find that there was no justification for the officers to remain in the apartment once they had determined that there was no one there who could destroy evidence. I note that this finding is similar to that made recently in analogous circumstances by McArthur J. in R. v. Weeden, 2018 ONSC 5182, at paragraphs 45 to 48, and by Thorburn J. in Harris.
Did the Officers Act in Bad Faith?
[67] In my view, there is no basis in the record to find that the officers acted in bad faith. Although I have found that the decision to remain in the apartment while waiting for the issuance of the search warrants violated Mr. McCalla’s rights, I accept Officer Olszevski’s evidence that she made the decision to remain because she believed it was reasonably necessary in order to protect any evidence that might be in the apartment. The officers did not attempt to search the apartment while they were waiting.
[68] Similarly, I have found that the decision to arrest Mr. McCalla, as well as the manner in which the arrest was carried out, reflected good-faith efforts on the part of the officers to act in a manner consistent with Mr. McCalla’s legal rights. Accordingly, I see no basis to conclude that the officers acted in bad faith. I reject defence counsel’s argument to the contrary.
Should the Evidence be Excluded Pursuant to s. 24(2) of the Charter?
[69] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.
[70] As the Supreme Court of Canada determined in Grant, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:
a. The seriousness of the Charter-infringing state conduct;
b. The impact of the breach on the Charter-protected interests of the accused; and
c. Society’s interest in the adjudication of the case on its merits.
[71] In considering the first prong of the test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes. See R. v. Boussoulas, 2014 ONSC 5542 at paragraph 157; affirmed 2018 ONCA 222.
[72] With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused.
[73] Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider not only the negative impact of the admission of the evidence, but also the impact of failing to admit it. As Campbell J. noted in Boussoulas:
… [T]he exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice if the remedy effectively terminates the prosecution. Boussoulas, at paragraph 165.
a. Police Decision to Remain in The Apartment
[74] As discussed above, I have found that the decision by the police to remain in Mr. McCalla’s apartment while waiting for the issuance of the search warrant violated his rights under s. 8 of the Charter.
[75] Considering the first Grant factor, I accept that the officers had a subjective belief that there was a risk of evidence being destroyed if they did not remain in the apartment. I further accept that there was some basis for this belief since Officer Olszevski was aware of at least one instance where evidence had been lost while officers waited outside an apartment for the issuance of a search warrant. However, for the reasons described above, in my view that belief was not objectively justified. I am also troubled by the fact that Officer Olszevski testified that in any case where an apartment could be accessed by a balcony, police would remain in the apartment while waiting for the warrant. This suggests to me a pattern of conduct that is inappropriate and should be re-examined.
[76] On the other hand, I note that the police otherwise attempted to conduct themselves with due regard to Mr. McCalla’s Charter rights. Of particular importance is the fact that they did not seek to search the apartment until a warrant had been obtained. The ITO that was prepared provided the issuing Justice with a full and frank disclosure of the circumstances relevant to the issuance of the search warrants that were being sought. Further, as mentioned above, I have found that the police acted in good faith throughout.
[77] In R. v. Kitaitchik (2002), 161 O.A.C. 169 (C.A.) at paragraph 41, Doherty J.A. suggested that police conduct amounting to a violation of a Charter right could be characterized as falling along a spectrum from less blameless to more blameless conduct:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights. . . . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
This statement was subsequently endorsed by the Supreme Court of Canada in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paragraph 23.
[78] For the reasons described above, I am satisfied that the police decision to remain in the apartment pending the issuance of the search warrant tends to fall on the less serious side of this spectrum. Thus, this first Grant factor provides modest support for the admission of the evidence.
[79] Turning to the second Grant factor, as Campbell J. noted in Boussoulas, there are few, if any, settings in which a person has a greater expectation of privacy than the sanctity of his or her own home. Mr. McCalla had a high expectation of privacy in his personal residence, and that privacy was compromised by the fact that the officers remained in his apartment for a number of hours. Although they did not search the apartment, they would have been in a position to view his personal effects and property, which amounted to a significant intrusion on his privacy.
[80] It could be argued that remaining in the apartment did not involve a serious breach of Mr. McCalla’s rights since no evidence was directly obtained as a result. However, the warrantless entry into the apartment, waiting there for the warrant, and the subsequent execution of the warrant, all amounted to a single transaction and must be viewed as a whole. As such, consistent with the Court of Appeal’s decision in R. v. Pino, 2016 ONCA 389, the strong temporal connection between the breach and the subsequent search supports treating this Charter violation as a relatively serious one.
[81] Therefore, this factor points toward exclusion of the evidence.
[82] Turning to the third Grant factor, the firearm and narcotics evidence found by the police are inherently reliable and objective pieces of evidence that are critical to the merits of the case. If that evidence is excluded, the Crown’s case must fail. Conversely, if the evidence is admitted, the Crown’s case will have a high likelihood of success.
[83] Therefore, this third factor of the governing analysis strongly favours the admission of the evidence.
[84] It is evident that there are considerations cutting both ways, and it is not possible to make the necessary determination with mathematical precision.
[85] On balance, I am not persuaded that the evidence obtained through the search should be excluded at trial. The police acted in good faith throughout the investigation and attempted to respect Mr. McCalla’s Charter rights. They sought and obtained search warrants for Mr. McCalla’s apartment which, as Rosenberg J.A. observed in R. v. Rocha, 2012 ONCA 707 at paragraph 28, is “the antithesis of wilful disregard of Charter rights.” As Rosenberg J.A. noted, unless the applicant can show that the warrant was obtained through the use of “false or deliberately misleading information,” obtaining the warrant generally “tells in favour of admitting the evidence.”
[86] Moreover, the evidence obtained is highly reliable and is essential to a just determination of the case on its merits. In my view, exclusion of this evidence in the circumstances would have a negative effect on society’s confidence in the justice system.
b. Breach of s. 10(a) Rights
[87] Although I have found that there was no breach of Mr. McCalla’s s. 10(a) rights, in the event that I had come to the opposite conclusion, it would have been necessary to consider whether this violation would have resulted in exclusion of evidence pursuant to s. 24(2) of the Charter.
[88] Considering, first, the seriousness of any such breach, I have accepted the police evidence that their decision to inform Mr. McCalla that he was being arrested for possession of cocaine, but not for possession of a firearm, was a product of the dynamic and fluid unfolding of events. Although the police had originally intended to arrest Mr. McCalla for possession of a firearm, the discovery of the cocaine in his pocket led to a different calculation by Officer Clarke, the primary arresting officer. I accept that this decision was not unreasonable in the circumstances. Moreover, the police did not attempt to question him prior to informing him of the firearms charge at 4 a.m. on December 9, 2017. Therefore, even if had I found a violation of Mr. McCalla’s right to be promptly informed of the reasons for his arrest under s. 10(a), I would have situated this violation on the less serious side of the spectrum described above. This factor tends to support the admission of the evidence.
[89] With respect to the second Grant factor, accepting that any violation of a protected Charter right is inherently serious, the failure to inform Mr. McCalla that he was facing a firearms charge had a limited impact on his rights. He does not appear to have suffered any prejudice by the fact that he was not told until 4 a.m. the next morning of the firearms charge. He was advised of his right to counsel and exercised that right. The police did not question him about the firearm prior to informing him of the firearms charges. Although this factor does support exclusion of the evidence, the practical impact on his rights was relatively modest.
[90] With respect to the third Grant factor, I have already found that exclusion of this inherently reliable and objective evidence would have a significant negative impact on the administration of justice. Thus, this factor strongly favours admission of the evidence.
[91] Therefore, even if I had concluded that the police violated Mr. McCalla’s s. 10(a) rights, I would not have excluded the evidence obtained by the police on that basis.
Disposition
[92] Accordingly, Mr. McCalla’s application to exclude evidence obtained through the search incident to arrest, as well as through the search of his apartment, pursuant to s. 24(2) of the Charter, is dismissed.
P. J. Monahan J. Released: May 29, 2019