Court File and Parties

Court File No.: CR–18/9–342 Date: 2019-07-10 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Brodie Young

Counsel: Kandia Aird, for the Crown William Jaksa, for the accused

Heard: May 27, 28, June 3, 4, 2019

Reasons for Judgment

P.J. Monahan J.

[1] On July 9, 2017, Brodie Young was charged with possession of crystal methamphetamine for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act. The crystal meth was seized as the result of a police search of a condominium apartment that had been rented by Mr. Young through the web service Airbnb.

[2] Mr. Young brought an application for an Order declaring that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated and that all evidence obtained as a result of the breaches be excluded pursuant to s. 24 (2) of the Charter. In the event that the evidence was found to be admissible, he argued in the alternative that the Crown had failed to establish that he had knowledge and control of the drugs sufficient to establish that he was in possession of them.

[3] The Crown argued that Mr. Young’s s. 8 Charter rights had not been violated. Alternatively, if a violation had occurred, the Crown argued that admission of the evidence would not bring the administration of justice into disrepute and, accordingly, the evidence was admissible pursuant to s. 24 (2) of the Charter. On the assumption that the evidence was admissible, the Crown argued that it had proven beyond a reasonable doubt that Mr. Young had knowledge and control of the drugs and was in possession of them. The quantity of drugs seized was sufficiently large such that the only rational inference that could be drawn was that Mr. Young possessed them for the purpose of trafficking.

[4] A blended voir dire and trial on the substantive charge was held. The Crown called four police officers as witnesses, as well as Ms. Sonia Baldi, who had been arrested along with Mr. Young. The Crown also tendered video evidence of the condominium where the drugs had been seized. The defence did not call any evidence.

[5] For the reasons that follow, I find that the drugs were seized in a manner which clearly violated Mr. Young’s right to be secure against unreasonable search and seizure under s. 8 of the Charter. I further find that the Charter violation in this case was sufficiently serious, and involved a serious infringement of Mr. Young’s Charter rights, such that admission of the drug evidence would bring the administration of justice into disrepute; the evidence should therefore be excluded pursuant to s. 24 (2) of the Charter. On this basis, Mr. Young is entitled to an acquittal on the charge of possession for the purpose of trafficking.

Background Facts

[6] At approximately 12:30 PM on July 9, 2017, the father of Sonia Baldi contacted police to assist with removing his daughter from a condominium located at 20 Blue Jays Way, Suite 311, in the City of Toronto. Mr. Baldi advised that earlier that day he had received text messages from his daughter Sonia, indicating that she was in a possibly dangerous situation and asking him to come and get her out. Mr. Baldi further indicated that his daughter was addicted to drugs and that she was fearful of the male individual with whom she was staying in the condo at Blue Jays Way.

[7] Shortly after receiving this call, two police officers, including Officer Min Kim, attended at the condominium on Blue Jays Way, where they met Mr. Baldi. With the assistance of the concierge they went up to unit 311. When they knocked on the door, a female matching the description of Sonia Baldi answered the door. Officer Kim called out to see if anyone else was present and observed a male coming out from the bedroom area. This individual identified himself to the officers as Brodie Young.

[8] Officer Kim moved Mr. Young out into the hallway and placed him under investigative detention. He also decided to place him in handcuffs at this point in order to ensure officer safety, as well as the safety of Ms. Baldi, while he undertook various computer checks and inquiries.

[9] Two more police officers arrived at the condominium apartment at approximately 1:13 PM. One of these officers, officer Scharnil Pais, observed that when he arrived, Mr. Young had already been detained and was in handcuffs. Officer Pais did a pat-down search of Mr. Young for drugs or weapons. Mr. Young stated that there might be drugs on the kitchen counter in the apartment. Officer Pais went back into the apartment but did not see any drugs on the kitchen counter. He searched in four kitchen drawers for drugs, but did not find anything of interest.

[10] As a result of his inquiries, Officer Kim learned that Mr. Young had rented the condominium under the name “Cody Johnson”, using a Québec driver’s license with that name but bearing Mr. Young’s image. At approximately 2:19 PM, Officer Kim arrested Mr. Young for fraud, and he was transported to the police station by additional officers who arrived on the scene.

[11] Officer Pais spoke with Ms. Baldi and learned that she was a frequent drug user. She also appeared to him to be distraught and in need of a “drug fix”. At some point she asked to leave. It was determined that Ms. Baldi should be taken downstairs and released to her father.

[12] Prior to allowing Ms. Baldi to leave, Officer Pais went into the bedroom of the condominium. He testified that he had a number of reasons for doing so. First, he did not know whether any of the other officers had checked the bedroom, and he wanted to ensure that there was no one else there. He also wanted to check if there were any drugs or weapons in the bedroom, since he did not want Ms. Baldi to leave with any such illicit items. He was also concerned that no drugs or weapons be left behind in the bedroom to be later discovered by the owner of the condominium. Further, he stated that he wanted to assist Ms. Baldi in retrieving her belongings from the bedroom.

[13] Officer Pais looked around the bedroom but did not see anything of interest. As he was walking back toward the door of the bedroom, he observed that the sliding glass doors on the bedroom closet were pushed into the centre of the closet. He testified that this enabled him to look into both ends of the closet as he was walking back toward the bedroom door.

[14] Officer Pais noticed a shelving unit on the left-hand side of the closet. On one of the shelves he observed a scale and a plastic baggie containing what appeared to be crystal methamphetamine. Beside the baggie was a sunglasses case with some plastic sticking out of it. He opened the sunglasses case and found a plastic baggie with what appeared to be a larger quantity of crystal methamphetamine. He also picked up a water bottle containing a clear liquid. He shook the bottle and noticed that the liquid had a thicker consistency than water, and appeared to him to be GHB. On the floor of the closet he saw a black backpack. He reached into the pouch of the backpack and pulled out a pipe. He put the pipe back in the backpack.

[15] Officer Pais returned to the living area of the condominium and explained to the other officers what he had found. They then placed Ms. Baldi under arrest at approximately 2:30 PM.

[16] A search warrant was applied for and obtained at approximately 7:30 PM that evening. Shortly after 8 PM, members of the Toronto Police Service Drug Squad (the “Drug Squad”) conducted another search on the basis of this warrant and discovered a total of 71.06 grams of crystal methamphetamine and 172.1 grams of GHB in the condominium.

Issues

[17] The following issues arise in this proceeding:

a. Did the search of the bedroom in the condominium apartment by Officer Pais violate Mr. Young’s rights under s. 8 of the Charter? b. If there was a violation of Mr. Young’s s. 8 rights, should the evidence be excluded on the basis that its admission would bring the administration of justice into disrepute? c. In the event that the evidence obtained through the search is admitted, has the Crown proven beyond a reasonable doubt that Mr. Young was in possession of the crystal methamphetamine for the purpose of trafficking?

Did the Search Violate Mr. Young’s s. 8 Rights?

A. Overview

[18] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. An individual alleging a breach of their Charter rights bears the burden of proving that violation on a balance of probabilities. However, if the police search was conducted without a warrant, that search will be presumed to be unreasonable unless shown to be justified. R. v. Collins, [1987] 1 S.C.R. 265, at paragraph 22. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out was reasonable.

[19] In this case, Officer Pais conducted a search of the bedroom closet without a warrant. However, the Crown argues that the search was reasonable since the police were acting pursuant to their common-law powers to investigate a call for assistance, and the drugs observed by Officer Pais were in “plain view” in the bedroom closet.

[20] Counsel for Mr. Young concedes that the police had authority to enter the condominium to check on the well-being of Ms. Baldi. However, he argues that this authority was exhausted once Mr. Young was arrested and removed from the condominium. Therefore, the police had no authority to remain in the condominium for over an hour, and eventually conduct a search of the bedroom. Counsel argues that the “plain view” doctrine has no application since the drugs were in a closet rather than in plain view. The police ought to have obtained a warrant prior to commencing the search, and their failure to do so violated Mr. Young’s s. 8 Charter rights.

B. Standing considerations

[21] The Crown initially took the position that Mr. Young did not have standing to advance a s. 8 Charter claim, since he had rented the condominium apartment using a false name. The Crown relied upon the Court of Appeal’s decision in R. v. Van Duong, 2018 ONCA 115, where persons who had obtained possession of a house through an elaborate fraud were found to lack standing to bring a s. 8 claim. However, unlike in Van Duong, (where the accused had no legal right to possession of the residence), Mr. Young arguably had a legal right to possess the condominium despite having used a false name. The owner of the condominium had not taken any exception to the validity of the Airbnb rental contract. While Mr. Young's use of a false name might have made the rental agreement voidable at the instance of the owner, the agreement did not appear to be void ab initio. See Garland v. Minister of National Revenue, 2005 TCC 176, at paragraphs 14 to 18.

[22] It is settled law that a person renting a hotel room has privacy rights in the room. R. v. Wong, [1990] 3 SCR 36 (“Wong”). There is no authority to suggest that those important privacy rights simply disappear if the individual rents the room under a false name. To be sure, the use of a false name may well give rise to legal consequences, both criminal and civil. But I see no basis to conclude that the individual loses all privacy rights in the premises merely by virtue of the fact that they were rented under a false name. The same reasoning should apply to an Airbnb rental.

[23] In the course of trial, the Crown eventually abandoned this argument, conceding that Mr. Young had standing to advance a s. 8 Charter claim. Accordingly, these reasons proceed on this basis.

C. Common-law powers of entry and the Charter

[24] Where police assert that an interference with liberty can be justified on the basis of common-law powers, two conditions must be met: (i) the police were acting in the course of their duty when they effected that interference; and (ii) the conduct of the police did not involve an unjustifiable use of powers in the circumstances. R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), per Doherty JA.

[25] In this case, it is conceded that the police had the lawful authority to enter the condominium apartment at Blue Jays Way and undertake sufficient inquiries to ensure the well-being of Sonia Baldi. As the Supreme Court of Canada established in R. v. Godoy, [1999] 1 SCR 311 (“Godoy”), when police are dispatched in response to a distress call, they are carrying out their duty to protect life and prevent serious injury. I find that the police entry into the condominium, followed by their decision to place Mr. Young in investigative detention in order to ensure Ms. Baldi’s safety, was fully in accordance with their common-law powers as articulated by Godoy.

[26] However, Godoy also makes it clear that where police enter a dwelling in order to check on the well-being of an individual, that intrusion must be limited to the protection of life and safety. They do have sufficient authority to investigate and provide such assistance as may be required. But their authority ends there. In particular, a call for police assistance at a private residence does not open the door for a police search of the residence in an effort to discover evidence of criminal activity. Godoy, at paragraph 22.

[27] This limitation on the scope of police authority to enter a person’s home without a warrant was reaffirmed recently by the Court of Appeal in R. v. Davidson, 2017 ONCA 257. Police had responded to a 911 call indicating that a four-year-old boy, clad only in a diaper, was seen standing alone at a busy intersection in Barrie Ontario. By the time the police arrived, any emergency that had existed had ended since the boy was safely in his mother’s arms, and the parents provided an explanation as to how the boy had happened to wander away from the family home. There was no reason to believe that the life or safety of any person inside the home was at risk. Thus the subsequent warrantless entry into and search of the home, which discovered a quantity of marijuana, was found to be a breach of s. 8 of the Charter.

[28] In short, although the police were justified in entering the condominium apartment at Blue Jays Way to check on the health and well-being of Ms. Baldi, they had no authority to conduct a warrantless search of the premises.

D. The Plain View Doctrine

[29] The Crown did not take issue with the proposition that police answering a call for assistance at a private residence do not thereby have authority to conduct a search of the premises. However, the Crown argues that the discovery of drugs in the bedroom by Officer Pais was legally justified by the so-called “plain view” doctrine.

[30] The plain view doctrine, which exists at common law and has been codified in s. 489 of the Criminal Code, provides authority for a peace officer to seize evidence of a crime, which the officer observes in the course of the execution of his or her lawful duties. The Crown relies upon the plain view doctrine as justifying the search conducted by Officer Pais, in which he discovered drugs in the bedroom closet of the condominium.

[31] The scope of the plain view doctrine was clarified by the Court of Appeal in R. v. Jones, 2011 ONCA 632, at paragraph 56, where Blair J.A. set out the following four conditions that must be satisfied before the doctrine applies:

i. the police officer must be lawfully in the place where the search is being conducted; ii. the nature of the evidence must be immediately apparent as constituting a criminal offence; iii. the evidence must have been discovered inadvertently; and iv. the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.

[32] These principles were recently applied in R. v. Dupuis, 2017 ONSC 3167 (“Dupuis”), where police attended the accused’s residence in response to reports of a home invasion. The Court found that although the police were lawfully present when they entered the residence in response to the 911 call, they had no authority 90 minutes later to inspect the second floor. It was not reasonable to believe that it formed part of the crime scene and there was no objective basis to support the position that the officers acted to ensure police safety or to determine the presence of other suspects or injured parties. Accordingly the discovery of a large quantity of marijuana was found to be in violation of s. 8 and the evidence was excluded.

[33] In my view, none of the four requirements for the application of the plain view doctrine, as established by Jones, has been satisfied in this case.

i. Lawfully in the place where the search is being conducted?

[34] First, I find that Officer Pais had no authority to enter the bedroom to conduct a search.

[35] Officer Pais claimed that one of the reasons he went into the bedroom was to ensure that there was no one else there, out of a concern for officer safety. I have serious concerns about the plausibility of this explanation.

[36] When Officer Pais decided to go into the bedroom, he and his colleagues had been in control of the premises for well over an hour. If Officer Pais had a genuine concern about the possibility of another person hiding in the bedroom, why would he have waited over an hour to check the room? At the very least, one would have expected him to have raised his concern with one or more of his colleagues at some point after his arrival. Instead, without clarifying whether any of his colleagues had already cleared the room and just as the police were about to release Ms. Baldi and vacate the premises themselves, Officer Pais decided to conduct a search of the bedroom.

[37] I need not determine whether Officer Pais subjectively believed that there was any concern for officer safety when he decided to go into the bedroom. In order for a warrantless search to be justified, a police officer must not only subjectively believe the search to be necessary, there must be objectively reasonable grounds for the search. R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, at paragraph 40; Dupuis, at paragraph 121. In this case, no such reasonable grounds existed by the time Officer Pais decided to search the bedroom. Numerous police officers had been on-site for well over an hour. They had completed their investigations and were about to leave. I find that any concerns about officer safety at this point were minimal to nonexistent, and certainly did not justify a warrantless search of the bedroom.

[38] In any event, Officer Pais acknowledged that another reason he went into the bedroom was to search for weapons or drugs. Given Ms. Baldi’s frequent drug use, he wanted to make sure that she would not take drugs out of the apartment with her. He also wanted to find and remove any drugs from the premises so that the owner of the condominium would not have to deal with them.

[39] It is clear that, from the time Officer Pais arrived on scene, he was concerned about locating any drugs that might be present there. Within 5 minutes of arriving, he learned from Mr. Young that there might be drugs on the kitchen counter. He went into the condo but did not see any drugs on the kitchen counter. He then conducted a brief search of the drawers in the kitchen counter in an effort to locate any drugs that might be hidden there.

[40] As is explained in more detail in the next section, I also do not accept Officer Pais’ evidence that he inadvertently observed drugs in the bedroom closet in plain view. Rather, I find that his view into the left-hand side of the bedroom closet would have been obscured by the open bedroom door. The only way he could observe the drugs was if he first closed or moved the bedroom door out of the way. In other words, the only reason he found the drugs was because he was searching for them.

[41] I also find it telling that, when Officer Pais first looked into the bedroom closet and observed the plastic baggie and a set of scales, he chose to remain in the bedroom to conduct a further search for more drugs. He did so by opening a sunglasses case, shaking a water bottle to see if it contained GHB, and reaching into a backpack.

[42] In short, I find that a primary motivation for Officer Pais’ entry into the bedroom was to look for drugs and weapons. The difficulty is that police were present in the apartment only to ensure the well-being of Ms. Baldi, and they did not have authority to conduct a search. As such, when Officer Pais decided to enter the bedroom to search for weapons or drugs, he exceeded the scope of his authority. The consequence is that he failed to satisfy the first condition associated with the plain view doctrine, namely, that he have lawful authority to be in the place where the search is being conducted.

ii. Evidence immediately apparent, and discovery inadvertent?

[43] I further find that the evidence was not immediately apparent, nor was it discovered inadvertently.

[44] Officer Pais testified that he observed the drugs in the bedroom closet as he was walking back towards the bedroom door. He explained that this was possible because the closet had sliding doors and the doors were positioned in the middle of the closet, making the two ends of the closet visible. Officer Pais claimed that he observed the drugs on a shelving unit on the far left-hand side of the closet as he was walking back towards the bedroom door.

[45] Officer Pais’ evidence on this point is contradicted by a video that was taken by members of the Drug Squad immediately prior to their search of the apartment. That video shows that, when the bedroom door is open, it obscures or covers the left side of the bedroom closet, regardless of the position of the sliding doors. Thus, even if the sliding doors to the closet were positioned as described by Officer Pais, he could not have seen into the left-hand side of the bedroom closet without first moving the bedroom door out of the way. This is precisely what the Drug Squad officer taking the video had to do, in order to access the left-hand side of the closet.

[46] Of course, the Drug Squad officer, unlike Officer Pais, had a warrant to search the apartment.

[47] Officer Pais altered his position on this point in cross-examination. He acknowledged that the bedroom door was left open while he was in the bedroom. However he claimed not to remember whether the open bedroom door had blocked his view into the left-hand side of the closet. He also claimed not to remember whether he had closed or otherwise moved the bedroom door in order to look into the closet. This was inconsistent with his evidence in chief, in which he claimed to have been able to see directly into the left-hand side of the closet as he was walking back toward the bedroom door.

[48] I find, consistent with the video evidence, that the open bedroom door obscured the left-hand side of the closet. I further find, therefore, that Officer Pais could not have seen the drugs in plain view as he was walking back towards the bedroom door. Rather, he had to have first closed or moved the bedroom door out of the way in order to observe the drugs in the closet. I do not accept his evidence to the contrary.

[49] The consequence of these findings is twofold in terms of the application of the plain view doctrine. First, the drugs were not in plain view in the bedroom. Second, Officer Pais’ discovery of the drugs was not inadvertent but, rather, resulted from his deliberate closing or moving the bedroom door so as to see into the closet.

[50] Before leaving this issue, I also find it necessary to raise a separate but related concern with respect to the manner in which the discovery of the drugs in the bedroom closet was described in the Information to Obtain (the “ITO”). The ITO contains the following paragraph:

While [Sonia Baldi] was retrieving personal belongings from the closet located in the only bedroom of the apartment police observed in plain view a quantity of crystal methamphetamine in a clear Ziploc bag, a 500 ml water bottle with GHB, scales and other drug paraphernalia. It’s the belief that if officers observed drugs in the bedroom closet that a further quantity of drugs would be within the apartment.

[51] Had the discovery of drugs taken place in this manner, it would have tended to support the application of the plain view doctrine. But Ms. Baldi never did go into the closet to retrieve her belongings. Rather, Officer Pais found the drugs by looking into the closet on his own.

[52] No explanation was provided as to how this misrepresentation of the circumstances leading to the discovery of the drugs came to be included in the ITO. I highlight the point because of the importance of ensuring the truthfulness and accuracy of statements included in any ITO which forms the basis for obtaining a judicial authorization for a search of private premises.

iii. Power to seize but not search

[53] The final Jones condition is that the plain view doctrine confers a seizure power and not a search power. Even where an officer sees evidence in plain view that does not, on its own, justify a search to find evidence of other crimes.

[54] Officer Pais’ testimony discloses that he acted without regard to this limitation. Having noticed a plastic baggie containing what appeared to be crystal methamphetamine, along with a set of scales, he did not seize that evidence and leave the bedroom. Instead, he proceeded to open a sunglasses case where he found more drugs, reach inside a backpack where he discovered a pipe, and shake a water bottle to see if it contained GHB. These actions clearly took his conduct outside of the scope of the plain view doctrine.

[55] I therefore find that the plain view doctrine has no application in the circumstances of this case. The Crown has not advanced any other basis upon which the police had legal authority to conduct a search of the bedroom in the condominium apartment. The inescapable conclusion is that the search of the bedroom violated Mr. Young’s rights to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter.

Should the Evidence be Excluded under s. 24 (2) of the Charter?

[56] Having found a violation of Mr. Young’s Charter rights, it is necessary to consider whether the evidence obtained through the search should be excluded through the operation of s. 24(2).

A. Governing Principles

[57] 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.

[58] 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:

i. The seriousness of the Charter-infringing state conduct; ii. The impact of the breach on the Charter-protected interests of the accused; and iii. Society’s interest in the adjudication of the case on its merits.

[59] 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 para. 157, affirmed, 2018 ONCA 222.

[60] 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. As with the first prong of Grant, this requires a consideration of the degree of seriousness of the impact on protected Charter rights. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual or practical significance.

[61] 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. Although this third line of inquiry typically pulls toward inclusion of the evidence, in order to further the societal interest in an adjudication on the merits, this will not always be so. As the Supreme Court of Canada observed recently in R. v. Le, 2019 SCC 34, at paragraph 158 (“Le”), an adjudication on the merits, in a rule of law state, presupposes an adjudication grounded in legality and respect for long-standing constitutional norms.

[62] These three lines of inquiry cannot be applied with mathematical precision according to a fixed formula. Rather, what must be considered is the overall impact that admission of the evidence would have upon the reputation of the administration of justice. This necessarily requires a qualitative assessment of the totality of the circumstances. See the analysis of Brown J.A. in R. v. Omar, 2018 ONCA 975, at paragraphs 108-121, subsequently affirmed by the Supreme Court of Canada in R. v. Omar, 2019 SCC 32.

B. The Seriousness of the Charter-infringing Police Conduct

[63] I consider the Charter-infringing police conduct in this case to be very serious.

[64] This was not an instance where the governing constitutional principles were unclear or uncertain. Godoy had made it quite plain that when police are called upon to check the well-being of a person in a private residence, they are not thereby entitled to conduct a warrantless search for evidence of criminal activity. Similarly, the principles governing the application of the plain view doctrine had been clarified in Jones, which specified that this doctrine confers a seizure power not a search power, and is limited to seizing items that are immediately apparent and discovered inadvertently.

[65] The finding of a Charter violation in this case did not require a close call. None of the four limiting conditions specified in Jones was satisfied. Indeed, Officer Pais appeared to proceed in a manner without any meaningful regard to clearly established constitutional principles and limitations.

[66] As the Supreme Court of Canada forcefully noted in Le, the reputation of the administration of justice requires the police to conduct themselves in accordance with settled constitutional principles. Writing for the majority, Justices Brown and Martin held that wilful, reckless or negligent application of established legal standards cannot be excused as having been in “good faith”, or as a minor infringement of Charter rights:

The circumstances of Mr. Le’s detention did not take the police into uncharted legal waters or otherwise raise a novel issue about the constitutionality of their actions. Indeed, the authority of police to detain individuals is governed by settled jurisprudence from this court, as is the (in) capacity of police to enter a private residence without prior judicial authorization or some exigent circumstance. And, as this court has previously cautioned, “[w]hile police are not expected to engage in judicial reflection on controlling precedents, they are rightly expected to know what the law is.” We see no good reason to dilute the force of these authorities where the police have disregarded them in the course of effecting an unconstitutional detention. Le, at paragraph 149 (references omitted).

[67] In my view, these comments accurately describe the concerns with the police conduct in this case and justify a finding that the violation of Mr. Young’s Charter rights was very serious. This factor tends to support the exclusion of the evidence.

C. Impact on the Charter-Protected Interests of the Accused

[68] The Charter interests at stake in this case are extremely important. Courts have consistently held that the privacy interest in a person’s private residence is entitled to the highest form of constitutional protection. As Cory J. observed in R. v. Silveira, [1995] 2 S.C.R. 297, at paragraph 148, the “unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free and democratic society.”

[69] The Crown suggested that the privacy interest at stake in this case was somewhat diminished because the condominium was being occupied as an Airbnb rental as opposed to being leased on a long-term basis. I see no reason in principle why the privacy interests of persons renting premises through Internet services such as Airbnb should be diminished or uncertain. As noted earlier, persons have a constitutionally protected privacy interest in a hotel room, which can be rented on a daily basis. See Wong, supra. An Airbnb rental, which is analogous to the rental of a hotel room, is entitled to no lesser constitutional protection.

[70] I conclude that the Charter violation had a very significant impact on Mr. Young’s protected constitutional rights, and this factor tends to support the exclusion of the evidence.

D. Society’s Interest in The adjudication of the Case on its Merits

[71] The charge against Mr. Young is serious and the evidence is highly reliable. Moreover, if the evidence is excluded it will bring an end to the Crown’s case. This factor tends to support the admission of the evidence.

E. Balancing the Factors

[72] In my view, the admission of this evidence would tend to bring the administration of justice into disrepute and, accordingly, it should be excluded. I reach this conclusion on the basis of the seriousness of the Charter-infringing police conduct, combined with the serious impact on Mr. Young’s Charter-protected privacy interests.

[73] As I explained above, the police search of the bedroom closet was conducted without regard to settled constitutional norms. Moreover the search took place in a private residence where privacy interests are at their highest. If, despite these findings, this evidence were found to be admissible, Canadians would be rightly concerned over the status of their privacy interests in their homes. It would mean that whenever individuals call upon the police to provide assistance while they are in their homes, they run the risk that the officers may decide to look through their closets and drawers to see if they might discover evidence of criminal activity. If the police do discover any such evidence, it could form the basis for criminal charges and convictions.

[74] Of course, Canadians are also rightly concerned when the violation of constitutional rights leads to the exclusion of evidence and the termination of criminal prosecution which might otherwise have been successful. But, as the Supreme Court of Canada noted recently in Le, the enactment of the Charter reflects Canada’s commitment to the principle that the end does not justify the means. As a society committed to the rule of law, the administration of justice in Canada must proceed on the basis of respect for long-standing constitutional norms, particularly in circumstances which implicate privacy interests in a private residence.

[75] I therefore find that the admission of the drug evidence discovered by Officer Pais through his unlawful search of the bedroom closet would tend to bring the administration of justice into disrepute, and that the evidence should be excluded.

[76] It follows that Mr. Young is entitled to an acquittal on the charge of possession for the purpose of trafficking. Further, it is unnecessary to consider whether, had I found the evidence to be admissible, the Crown had proven beyond a reasonable doubt that Mr. Young had sufficient knowledge and control of the drugs to have been in possession of them.

Disposition

[77] The evidence obtained from the search of Mr. Young’s condominium is inadmissible. He is therefore acquitted of the charge of possession of a controlled substance for the purpose of trafficking.

P. J. Monahan J.

Released: July 10, 2019