COURT FILE NO.: 15/19

DATE: 2019 10 30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Zandy Keder

Accused/Applicant

Harutyun Apel, for the Crown

Jordyn Benatar, for Zander Keder

HEARD: October 28 - 29, 2019

REASONS FOR DECISION – DEFENCE CHARTER APPLICATION

Conlan J.

I. Introduction

1This decision resolves two pretrial applications brought by the Defence, both under the Canadian Charter of Rights and Freedoms (“Charter”). The trial, with a jury, is scheduled for early in the new year.

2The accused/applicant, Zandy Keder (“Keder”), is charged with 14 counts, all stemming from March 24, 2018 in Burlington, Ontario. Specifically, the charges are:

-carry a concealed weapon (a sawed-off shotgun), contrary to section 90(1) of the Criminal Code of Canada (“CCC”);

-possession of a weapon (a sawed-off shotgun) for a dangerous purpose, contrary to section 88(1) CCC;

-careless use of a firearm (a sawed-off shotgun), contrary to section 86(1) CCC;

-unauthorized possession of a firearm (a sawed-off shotgun), contrary to section 91(1) CCC;

-possession of a prohibited firearm with ammunition, contrary to section 95(1)(a) CCC;

-discharge of a firearm in a reckless manner, contrary to section 244.2(1)(a) CCC;

-possession of a firearm (a sawed-off shotgun) knowing its possession is unauthorized, contrary to section 92(1) CCC;

-unauthorized possession of a controlled substance (cannabis marihuana over thirty grams), contrary to section 4(1) of the Controlled Drugs and Substances Act;

-assault on A.V., contrary to section 266 CCC;

-forcible confinement of A.V., contrary to section 279(2) CCC;

-utter a threat to cause death to A.V., contrary to section 264.1(1)(a) CCC;

-possession of a weapon (a sawed-off shotgun) for the purpose of committing an offence, contrary to section 88(1) CCC;

-overcome resistance (attempt to choke A.V.) to the commission of the offence of forcible confinement, contrary to section 246(a) CCC; and

-point a firearm (a sawed-off shotgun) at A.V., contrary to section 87(1) CCC.

3At Milton, Ontario on October 28 and 29, 2019, one voir dire was held to deal with both applications filed by the Defence. The evidence took just over one-half day of Court time. Submissions by counsel followed the next day, for less than 1.5 hours total.

4In one application, the Defence asserts that Keder’s section 8 Charter right (to be secure against unreasonable search or seizure) was violated. The remedy sought is an order excluding evidence (including the sawed-off shotgun referred to above) under section 24(2) of the Charter.

5In the second application, the Defence asserts that Keder’s rights under sections 10(a) [the right, on arrest or detention, to be informed promptly of the reasons therefor] and 10(b) [the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right] were infringed. The remedy sought is an order excluding evidence (the statements made by Keder to the police after the arrest and after the right to counsel was read to and invoked by Keder).

6The second application has largely resolved itself. “The Crown concedes that there was a Section 10(a) and (b) breach at the point where the police are questioning the Applicant while they are taking him to the police station after he has said he wants to speak to a lawyer. It is for that reason the Crown is not relying on any statements made by the Applicant” (paragraph 2 of the Crown’s factum).

7Thus, what follows focusses on the first application dealing with section 8 of the Charter and the search by police of Keder’s motel room.

II. Analysis

The Agreed Facts

8Through the testimony of Keder and police officers MacMillan, Fidanza, Douglas, and Field, we know the following.

9On March 24, 2018, Feder was staying in a room at the Knight’s Inn Motel in Burlington (“motel”).

10Just after 6:00 a.m., police attended. Some unidentified person had called about a noise complaint. Two officers were on scene. A.V. was there, outside of Keder’s room. Apparently, she had been staying with Keder in his room. As there had been an argument or disturbance of some sort between Keder and A.V., police assisted A.V. in permitting her to retrieve her belongings from inside Keder’s room and then leave the area. Police left as well. Keder stayed.

11About an hour later, police returned to the motel. Keder, then near the lobby/office area and speaking with a motel employee, was approached. Keder told one of the officers that he had heard something concerning out behind his room (there is an alleyway in the rear). Keder then walked towards his room and entered. The police also entered Keder’s room. Within one minute or less, police observed shotgun shells inside the room and retrieved a sawed-off shotgun from the hoodie or sweater of Keder. Keder was arrested.

Findings of Fact on Contested Matters

12Regarding the first police attendance, Keder testified that the police went inside his motel room, over his express objection, to help A.V. get her stuff. Specifically, one of the two officers went inside with A.V., while the other officer kept Keder outside the room.

13Both MacMillan and Field, the two officers on scene at the motel for the initial call, denied that either one of them ever entered Keder’s room. They went no further than just outside the open door and waited there while A.V. got her belongings.

14I find as a fact that the police never entered the room during the first call. I prefer the unshaken evidence of the two police officers over that of Keder. Keder had been drinking alcohol before the police arrived the first time. The alcohol consumption and/or the passage of time has/have seriously affected his memory of the incident, evidenced by his inability at Court to describe, with any detail, any of the persons involved, including A.V. He could only say that the two officers were male, and that A.V. was a short black woman.

15Regarding the second incident, the issue is whether the police search of the motel room, presumptively unreasonable as it was without a warrant and absent exigent circumstances, was lawful by virtue of a valid consent.

16No witness testified that Keder expressly, that is by words, invited or consented to the police entering his motel room.

17Keder testified that, as he walked from the lobby/office area to his room, the police officer with whom he had just spoken about hearing the bang out back of his room called out to him and said that he had more questions to ask him. Another officer then arrived. The three of them, including Keder, were standing just outside the door of Keder’s room. The door was “cracked”, meaning open ever so slightly. One of the officers then pushed the door open and went inside, without Keder’s permission or invitation or consent. That officer went towards the sink and said something about shell casings. Within seconds, it was all over, and Keder was under arrest.

18MacMillan testified that, while Keder was walking from the lobby/office area to his room, he was pointing and talking about someone having tried to break into his room. Thus, MacMillan and Fidanza followed Keder. In the words of MacMillan, “he was leading us to his unit”. MacMillan viewed Keder as a complainant regarding an attempted break and enter. Once at Keder’s room door, which MacMillan does not recall whether it was locked, closed or already open, Keder led them into the unit. In the words of MacMillan, “we followed him through an open door” as Keder was pointing towards a rear window inside his room, which window was broken. “I believed he was inviting us in” to investigate the broken window and the attempted break and enter, stated MacMillan. The observation of the shotgun shells, the observation of a bulge in Keder’s sweater or hoodie, the retrieval of the sawed-off shotgun from that hoodie, and the arrest of Keder all followed. The shells were seen within about 30-45 seconds of the police entering the room, during which time Keder was still talking about someone having tried to break into his room through the rear window.

19Fidanza was the officer who spoke with Keder near the lobby/office area. Keder told him that he had heard a gunshot outside his room, at the rear. According to Fidanza, Keder then “led” the police to his room. Fidanza believed that Keder was going to show them where he had heard the gunshot. At the unit, the door was closed and locked, and Keder opened it. In the words of Fidanza, Keder then “led” them to the rear window, inside the room. He “directed them” to that location. Fidanza believed that the police were being invited inside the room to investigate the gunshot and an attempted break and enter.

20Douglas was the third officer on scene when the police attended for the second time that morning. Her evidence on the voir dire was not directly germane to the issue of whether the police entry into Keder’s room was consensual, except that she did provide important information about what Keder was doing and saying while everyone was inside the room, just before the take-down.

21I place next to no weight on the evidence of Keder with regard to the second police attendance. On everyone’s evidence, he was drunk. He had obviously consumed more alcohol between the two police visits to the motel that morning. His testimony is unreliable.

22Up until just immediately before the police entered Keder’s room, I prefer the evidence of Fidanza where it conflicts with that of MacMillan. Fidanza was the officer dealing most directly with Keder near the lobby/office area. Fidanza had a clearer recollection than MacMillan about details of the event, like the state of Keder’s room door.

23I pause here to note that I reject the submission by the Defence that the Court should be cautious about Fidanza’s evidence regarding the state of the unit door because his notes are silent on that issue. This incident did not occur eons ago, as unfortunately is sometimes the case. It happened last year. It would have certainly been memorable for Fidanza given his relative inexperience at the time and the seizure of a sawed-off shotgun. Finally, it would not have been obvious to Fidanza that the inclusion in his notes, made right after the event, of the details about the state of the unit door was that important. It is certainly not determinative of the issue of consent.

24Thus, given my acceptance of Fidanza’s evidence, I find as facts that Keder told Fidanza that he had heard a gunshot outside his room, at the rear. Keder then walked towards his room, seemingly (in the mind of Fidanza) leading the police to the location of interest. At the unit, the door was closed and locked, and Keder opened it with a key. Keder then walked inside and towards the rear window, again, seemingly (in the mind of Fidanza) leading the police to that location. The police also walked inside the room, behind Keder.

25On the totality of the police evidence, especially that of Douglas, which evidence I accept, I also find as a fact that, once everyone was inside the motel room, for the short period of time before the shotgun shells were observed by the police, Keder was directing the officers’ attention to the rear window, which was broken. During that short period of time, I find as a further fact that Keder never objected to the presence of any of the officers inside his motel room.

26I find the evidence insufficient to find as a fact that Keder was pointing, gesturing, and/or talking about an attempted break and enter as he walked the short distance from the lobby/office area to his room door, as testified to by MacMillan.

The Law, and the Law as Applied to the Facts

27Counsel filed facta and provided several caselaw references for the Court’s consideration. Referred to herein are only those references that I have found to be most relevant and authoritative on the issue to be decided.

28The Crown concedes that the police “searched” Keder’s motel room, a place in which he had a reasonable expectation of privacy, without a warrant.

29Thus, the onus falls to the Crown to justify, on a balance of probabilities, the search, or in other words, to rebut the presumption of unreasonableness. Hunter v. Southam, 1984 CanLII 33 (SCC), 1984 CarswellAlta 121 (S.C.C.), at paragraph 30.

30A warrantless search may be found to be valid on the basis of consent, whether express or implied. The totality of the circumstances must be considered. Did Keder have authority to give the consent (here, yes, without question)? Was the consent voluntary (not an issue in our case)? Was Keder aware of the nature of the police conduct that he was allegedly consenting to? Was he aware of his right to refuse permission for the police to enter his motel room? And was he aware of the potential consequences of giving the consent? R. v. Wills, 1992 CanLII 2780 (ON CA), 1992 CarswellOnt 77 (C.A.), at paragraph 69.

31As Ms. Benatar nicely put it, and I agree, the alleged consent must be found to have been voluntary, informed, clear, and unequivocal.

32I find that it was. The Crown has met its burden to justify this warrantless search. The police entry and search of the motel room were lawful in that they were done with the valid consent of Keder.

33Initially, it sounded very much like Ms. Benatar was conceding in her submissions that a valid consensual search would be found if the Court accepted the evidence of Fidanza as to what occurred at the unit door, which evidence I do accept. With some prompting from the Court, however, Ms. Benatar stated that a breach could still be found despite Fidanza’s evidence in that regard, but that the acceptance of his evidence would certainly hurt the position of the Defence, and I agree with that concession on the part of Ms. Benatar. Keder willingly unlocked the door with a key, opened it and walked inside. He did that knowing that the police were right behind him. He did that on the heels of him telling Fidanza about hearing a gunshot behind his room. He did that in the absence of saying anything to the police about them having to stay outside of the room, or words to that effect.

34Was Keder aware of the nature of the police conduct that he was allegedly consenting to? Yes, as I find that he impliedly invited the police inside to look at the rear window of his room, which was broken, and to investigate the gunshot.

35Was Keder aware of his right to refuse permission for the police to enter his motel room? Yes, as evidenced clearly by his earlier objections voiced to the police during the first attendance, as conceded by MacMillan.

36The Defence relies upon those earlier protestations as a sign that Keder would not have consented to the police entry into his room a relatively short time later. Not necessarily, in my view. Alcohol consumption can cloud one’s judgment. Perhaps Keder was prepared to roll the dice the second time around, given his concern about the rear window and knowing that the firearm was concealed on his person in any event.

37And was Keder aware of the potential consequences of giving the consent? Yes, he was aware that the police would enter his room and look at the rear window and, in the process of doing so, would be able to make observations of things in plain view which, as it turns out, included the shotgun shells.

38The decision of the Ontario Court of Justice in R. v. Yasi, 1999 CarswellOnt 4276, ostensibly the closest to our facts among the decisions filed, does not assist Keder’s position. There, the Court was struck by the total arbitrariness of the police entry into the hotel room. They were not even investigating a potential crime (paragraph 22). That is markedly different than our facts, given the serious gunshot complaint relayed to Fidanza by Keder.

39Finally, I should deal with two further submissions made by Ms. Benatar in her closing argument.

40First, that the police should have done more to ensure that Keder was consenting given his obvious intoxication and his earlier protestations during the first police attendance. I disagree. The intoxication did not vitiate voluntariness, although in another case severe drunkenness very well could. It is contextual. Here, Keder was talking, walking, and was able to retrieve his room key, unlock and open his room door. On the latter item, what is required is a valid consent, not a perfect one. Yes, the police could have reminded Keder about what had happened an hour earlier and had him expressly confirm, in words, that he had changed his mind and was now allowing them inside the motel room. They did not do that. They were not required to, in my opinion.

41The section 8 Charter application is therefore dismissed.

42If I am wrong about that, let it be known that I would have admitted the evidence found in the motel room under section 24(2). I would have considered the subsequent breaches of sections 10(a) and (b), under the authority in R. v. Pino, 2016 ONCA 389, and I would have concluded that the section 8 breach, although not tainted by bad faith, was serious. Not at the far end of the spectrum of seriousness, but serious enough to say that the first Grant factor favoured exclusion. I would have found the impact on Keder significant and, likewise, the second factor to favour exclusion. I would have found that the third criterion favoured admission, and strongly so. I would have heeded the advice of smarter judges than I and not treated the matter as counting checkmarks in columns, and the end balancing exercise would have persuaded me to admit the evidence in any event.

III. Conclusion

43For all of these reasons, the Defence section 8 Charter application is dismissed. Because the Crown is not relying upon any statements made by Keder to the police, in light of the conceded sections 10(a) and (b) Charter infringements, I need not say anything further about that application.

Conlan J.