COURT FILE NO.: CR-18-50000625-0000
DATE: 20200131

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ELVIS INIGUEZ
Defendant/Applicant

J. Cruess, for the Crown/Respondent

R. Gadhia, for the Defendant/Applicant

HEARD: November 18, 19, 20, 21, 26 and 27, 2019

REasons ON APPLICATION TO EXCLUDE EVIDENCE
PURSUANT TO SS. 8, 10(B) AND 24(2) OF THE cHARTER

H. MCARTHUR J.:

Introduction

[1] Police officers found a submachine gun and seven gun magazines in Elvis Iniguez’s home. The officers say that Mr. Iniguez consented to the search. The officers also say that after they found the gun, Mr. Iniguez told them that he had had the gun for about 10 years and did not know what to do with it. Mr. Iniguez has been charged with a number of gun-related offences as a result.

[2] Mr. Iniguez now brings an application pursuant to ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms. He argues that he was not properly advised of his right to counsel, that the police searched his home without his consent and that the evidence of the gun, the ammunition and his utterances should be excluded pursuant to s. 24(2) of the Charter. The Crown counters that the police acted properly and in compliance with the Charter. Alternatively, the Crown argues that even if the police did breach Mr. Iniguez’s rights, they were acting in good faith and the evidence should be admitted.

[3] For the reasons set out below, I find that the evidence must be excluded. The officers searched Mr. Iniguez’s home without his informed consent and failed to advise him of his right to counsel immediately upon detention. The officers did not breach Mr. Iniguez’s rights because they thought he was guilty and were over-zealous in their pursuit of evidence. Rather, they did not believe that they would find any evidence and they were anxious to end their night-shift and go home. As a result, they took a shortcut with Mr. Iniguez’s constitutional rights as a matter of convenience. But for the fact that the officers found evidence, the violation of Mr. Iniguez’s Charter rights would have gone unidentified and unredressed. In my view, the long-term interests of the administration of justice would be significantly undermined if the evidence was admitted.

[4] I propose to start out with a brief overview of the facts before turning to my analysis.

Brief Overview of the Facts

a) Events Leading Up to the Officers Going to Mr. Iniguez’s Home to Investigate a Gun Allegation

[5] The events leading up to the officers going to Mr. Iniguez’s home to investigate whether he had a gun are somewhat odd. They are also largely not in dispute.

[6] Mr. Iniguez called the police in the early morning hours for help with his drunk girlfriend, Rachel Howard, whom he reported was chasing him around and smashing his porch plants.

[7] Officers Ben Caunter and Scott Rogers received a radio dispatch at 5:13 a.m. to attend at Mr. Iniguez’s home to assist. They were working in uniform as part of the Primary Response Unit. They were on their last day of seven night-shifts in a row. They were to be off-duty at 7:00 a.m.

[8] When the officers arrived at Mr. Iniguez’s home, they saw him on the phone, outside, still speaking with the dispatcher. He waved the officers down.

[9] Mr. Iniguez appeared calm and sober. His girlfriend, however, appeared highly intoxicated. She was yelling, swearing and calling Mr. Iniguez names.

[10] Mr. Iniguez explained that Ms. Howard had been accusing him of cheating, chasing him and smashing his porch plants. He did not want her charged; he just wanted her out of his house.

[11] Ms. Howard told the officers that she had things inside the house and wanted to get changed. Mr. Iniguez agreed to let her do so. While Ms. Howard went upstairs to get her things, the two officers stood inside the front foyer of the house with Mr. Iniguez. After a short time, she came back down with a small bag of clothes.

[12] The officers then took Ms. Howard to the home of a friend of hers, about an eight-minute drive from Mr. Iniguez’s home. They dropped her off at 5:48 a.m.

[13] At 6:14 a.m., Officers Caunter and Rogers received another radio call. The dispatcher told them that Ms. Howard had just contacted 911. Ms. Howard alleged that about a week earlier, she had seen an Uzi in a bedroom, and gun magazines in a Goodlife bag on the left side of the bed in another bedroom, in Mr. Iniguez’s home. The dispatcher said that she was not sure if Ms. Howard was being truthful.

[14] Officer Caunter testified that his initial reaction was to believe that Ms. Howard was lying. She was drunk, angry and trying to get back at Mr. Iniguez. When asked if his view changed, Officer Caunter replied that since Ms. Howard gave specific locations of where the gun and ammunition were, “it kind of” made him think that it was “possible” that she was telling the truth. Officer Rogers also said while he initially disbelieved Ms. Howard, that position changed later on. As he thought about it, Ms. Howard had given very specific information, which made him think her allegation was a “bit more credible” than he had originally thought.

[15] Officers Caunter and Rogers went to their division to speak with their detectives. After the discussion, they felt that they did not have reasonable and probable grounds for a search warrant. Nor were there exigent circumstances justifying a search. Ms. Howard’s information was dated, and there was good reason to question her reliability. Plus, Mr. Iniguez had been so calm when he spoke with them, whereas Ms. Howard had been intoxicated and angry. And as Officer Caunter noted, it was Mr. Iniguez who initially called the police; why would he do that if he knew he had a gun in his home?

[16] But they were worried. Ms. Howard had provided very specific information. That made the tip seem more credible. And as Officer Caunter testified, there would be a public outcry if they simply ignored such a serious gun call because they believed that Ms. Howard was bitter, drunk and trying to cause trouble. While they did not feel that there were any public safety concerns, the officers decided that they had to do something to look into Ms. Howard’s allegations. Thus, at 6:51 a.m., the officers decided to go back to Mr. Iniguez’s home to investigate. They were nine minutes away from when they were supposed to be off-shift.

[17] Officer Caunter testified that they returned to Mr. Iniguez’s home to satisfy themselves that there was no gun. As a matter of practical reality, the only way that the officers could truly rule out the possibility that Mr. Iniguez had the gun and ammunition in his home was to conduct a search. As Officers Rogers said, it would not be enough for Mr. Iniguez to deny that he had a gun; the officers wanted to see for themselves. Given that they did not have grounds for a search warrant, and there were no exigent circumstances, the only way that the officers could do the search was if Mr. Iniguez consented.

[18] The Toronto Police Service has a form that they often have people sign when they conduct a consent search. The form notes that the person who is consenting to the search can contact a lawyer and that they have the right to refuse the search. The officers, however, did not take the Consent to Search form with them when they returned to Mr. Iniguez’s home to investigate whether he had a gun.

[19] Officer Caunter said that he did not bring the Consent to Search form, as it was almost 7:00 a.m., and he “figured” they would just go there quickly, talk to Mr. Iniguez and then be home for 7:00 a.m. He said he did not even think about a consent search at that time, as it “came down” to seeing how Mr. Iniguez responded to questions and they would “take it from that point.” When asked what his plan was, Officer Caunter said that in his mind, he thought it would be “quick”; they would ask Mr. Iniguez about the gun, see his demeanor and “go from there.” He said he “honestly” thought it would a be quick door knock and then they would be back at the station.

[20] Officer Rogers testified that it never crossed his mind to bring the Consent to Search form to Mr. Iniguez’s home. He is not sure why he did not think about it. In hindsight, Officer Rogers said he should have brought the form. Officer Rogers testified that he had not done many consent searches at that time, but since the incident, he has conducted a number of them. Now, he typically ensures that he has the Consent to Search form and that he audio tapes the individual who is consenting to the search.

[21] At approximately 6:53 a.m., the officers arrived at Mr. Iniguez’s home and knocked on the door. Mr. Iniguez came downstairs, in a t-shirt and his underwear, having obviously just been woken up. As noted previously, there is little disagreement about the events leading up this point. What happened next, however, is hotly disputed. The officers and Mr. Iniguez provided very different accounts about what happened after the officers knocked on the door.

b) Officers’ Account of What Happened After They Knocked on Mr. Iniguez’s Door

[22] Officer Caunter testified that when Mr. Iniguez opened the door, he seemed laid-back and friendly. According to Officer Caunter, while they were still outside the home, the officers explained that Ms. Howard had made a serious allegation that he had a gun and gun magazines in his home. Officer Caunter said that they told Mr. Iniguez they needed to speak to him and then Mr. Iniguez invited them inside his front foyer. Officer Rogers recalls their entry differently. He testified that Officer Caunter asked if they could come in, and Mr. Iniguez said that they could. According to Officer Rogers, it was only once they were inside Mr. Iniguez’s home that his partner told Mr. Iniguez about the allegations.

[23] Officer Caunter testified that once they were inside the foyer, he told Mr. Iniguez that Ms. Howard claimed that he had an Uzi in a bedroom closet and gun magazines in a Goodlife bag on the left side of his bed. Officer Caunter said he asked Mr. Iniguez if he had any guns, and he replied no, Ms. Howard was just trying to get him in trouble. Officer Caunter said that Officer Rogers then explained the same thing to Mr. Iniguez and let him know that there were specific locations alleged and asked if it was true. Mr. Iniguez again said the allegation was not true. Officer Rogers again asked about the gun, and again Mr. Iniguez denied that he had gun. According to Officer Caunter, he and Officer Rogers were standing in the small foyer with Mr. Iniguez, “taking turns” asking him about the gun. Then Officer Rogers asked if they could search for the gun.

[24] Officer Rogers testified that he told Mr. Iniguez that the gun alleged was a threat to public safety and that in the interest of everyone’s safety they wanted to go and “take a look” to see if there was a gun. According to Officer Rogers, he asked Mr. Iniguez if he minded if they checked, and Mr. Iniguez agreed that the officers could search. Officer Rogers, however, could not say precisely what words he used to ask if they could search or the words or actions Mr. Iniguez used that communicated his consent to a police search of his home. Officer Caunter also testified that Mr. Iniguez said they could search his home. Officer Caunter said that he could not recall what exact words Mr. Iniguez used to communicate his consent, but whatever Mr. Iniguez said, the officers “took it” as him saying yes, they could check for the gun.

[25] The officers did not tell Mr. Iniguez that he could refuse the search. Nor did they tell him he could speak to a lawyer, or the potential jeopardy he might be facing. Officer Rogers testified that it did not cross his mind to tell Mr. Iniguez that he could refuse the search. He said he did not think of it, as Mr. Iniguez was very cooperative, and his demeanor did not give him any reason to believe that Mr. Iniguez was “refusing” the search.

[26] Officer Caunter also said it did not cross his mind to tell Mr. Iniguez that he could say no to the search as he thought that Ms. Howard was not being truthful. When asked if he thought it was necessary to tell Mr. Iniguez about his rights and any jeopardy he may face, Officer Caunter responded, no, based on the fact that he did not believe that there would be any jeopardy to Mr. Iniguez. Officer Caunter testified that he thought they would simply “check” and then he would be “going home.”

[27] Officer Caunter testified that they went upstairs with Mr. Iniguez so that they could conduct the search. Officer Caunter took the lead as they went up the stairs, while Officer Rogers assumed the rear position. Mr. Iniguez was between both officers as they went up the stairs. Officer Caunter testified that he positioned himself like this for officer safety reasons; he did not want Mr. Iniguez to go up first in case there was a gun.

[28] As he entered the bedroom, Officer Caunter saw a Goodlife bag on the floor. He went over, picked up the bag, and saw it was unzipped. Inside, he saw a plastic bag. At 6:55 a.m., Officer Caunter opened the bag and saw four 9 mm 25-round magazines, and one 9 mm 32-round magazine.

[29] Officer Caunter said they did not arrest Mr. Iniguez at that point, as he was not sure if it was an offence to have gun magazines in that quantity. Officer Caunter called to speak with one of his detectives about what they had found and to find out what their next steps should be. As Officer Caunter spoke with his detective, Officer Rogers took Mr. Iniguez to another bedroom. Officer Rogers then called out to Officer Caunter that he had found an Uzi. According to Officer Caunter, Officer Rogers cuffed Mr. Iniguez after finding the gun and placed him at the top of the stairs.

[30] Officer Rogers recalled things differently. He testified that as soon as Officer Caunter found the magazines, he (Rogers) detained Mr. Iniguez and placed him in handcuffs. Officer Rogers said he chose not to advise Mr. Iniguez of his rights to counsel at that point as he was focused on securing the firearm before reading the rights. Officer Rogers asked Mr. Iniguez, “Where is the gun?” When Mr. Iniguez did not respond, Officer Rogers again asked about the location of the gun. This time Mr. Iniguez sighed and motioned down the hall. Officer Rogers then went into another bedroom and Mr. Iniguez directed him to a closet and told him that it was in a black bag on the top of the shelf. Officer Rogers said that there was nothing that would have led him to this bag without being directed to it by Mr. Iniguez. Officer Rogers took the bag down and then took Mr. Iniguez out of the bedroom and placed him on the landing on the stairs. Officer Rogers said he then returned to the room, opened the bag, and found a Norinco model submachine gun, two 9 mm 25-round magazines. Within the bag was also a single 9 mm Winchester bullet.

[31] Officer Rogers then tried to figure out how to make the gun safe but was unsure how it worked. Both he and Officer Caunter testified that Mr. Iniguez explained to them how the gun worked and how to prove it safe.[^1]

[32] At 7:21 a.m., once the gun was made safe, Officer Rogers told Mr. Iniguez he was under arrest and read him his rights to counsel. Officer Rogers testified that Mr. Iniguez shook his head, indicating “no”, he did not want a lawyer. Officer Rogers initially testified that Mr. Iniguez never changed his mind about wanting to speak to a lawyer. But the booking video shows that Officer Rogers’ memory on the right to counsel issue is wrong.[^2] In the booking video, Officer Rogers told the booking sergeant that Mr. Iniguez wanted to speak with duty counsel. Thus, while Officer Rogers had no note or memory of Mr. Iniguez asking to speak to a lawyer, the video clearly establishes that he did.

[33] According to the officers, Mr. Iniguez made several utterances after he had been advised of his right to counsel. While the officers could not recall the utterances verbatim, they said that Mr. Iniguez told them that he was a youth and child worker and that he had had the gun for about 10 years. Officer Rogers said that Mr. Iniguez told them that he did not know what to do with the gun; he could not give it to some “kid on the street”, nor could he simply walk into a police station with an Uzi. In re-examination, the Crown asked Officer Rogers if he could say whether Mr. Iniguez asked to speak to counsel before or after he made the utterances about having the gun for 10 years. In response, Officer Rogers said that he did not have it noted and could not “say for certain.” The Crown then asked Officer Rogers if he “had any idea” and if he could “narrow it down” at all. In response, Officer Rogers said that he “imagin[ed]” that Mr. Iniguez made the utterance before he asked for duty counsel. But he then confirmed again that he did not have any memory of when Mr. Iniguez asked for counsel in relation to when he made the utterance that he had had the gun for 10 years.

[34] The officers ultimately transported Mr. Iniguez back to the station. For some reason, the in-car camera was not activated. As a result, there is no recording of what happened on the drive.

c) Mr. Iniguez’s Account of What Happened after the Officers Knocked on His Door

[35] Mr. Iniguez testified that the officers banged on the door. As he went to open the door, it swung open. The officers then burst through the door, grabbed him, pushed him up against the wall, pointed a gun at his head and shouted at him, “Where is the fucking gun?” The officers cuffed him right away and then marched him upstairs, with Officer Caunter keeping hold of him.

[36] Mr. Iniguez denied that the gun was his. Mr. Iniguez also denied that he admitted anything about the gun; he claimed the officers are lying about his statements. Mr. Iniguez further claimed that the officers failed to advise him of his right to counsel at any time. While he asked about a lawyer in the scout car on the way to the station, the officers never told him about his rights. At no time did he consent to the search of his home.

[37] Mr. Iniguez agreed that he had heard of search warrants, and that for a search warrant, the police go to a judge to approve a search. He has seen that on television shows. Mr. Iniguez also agreed that he knew he could refuse to let a police officer into his home, just as he could refuse entry to anyone else.

d) Brief Assessment of the Credibility and Reliability of the Witnesses

[38] Mr. Iniguez’s testimony was marred by significant inconsistencies between his affidavit evidence and his evidence before me. I agree with defence counsel that some allowance should be made for the fact that Mr. Iniguez did not draft the affidavit himself. I also accept that no one impressed upon Mr. Iniguez how important it was to be complete and accurate in his affidavit. That said, even making allowances, the numerous inconsistencies are somewhat concerning. There were also several inconsistencies between his in-chief evidence and his cross-examination. This also causes me some concern about the reliability and credibility of his account.

[39] I am particularly troubled by the many inconsistencies in Mr. Iniguez’s evidence, as they arose in the context of an account that, in my view, is highly implausible. I accept that the officers thought that Ms. Howard was likely lying. Given that, it would make no sense for them to burst through the door, put a gun to Mr. Iniguez’s head and manhandle him in pursuit of a gun. Taking such aggressive action with an innocent homeowner could result in complaints and potential disciplinary action against the officers.

[40] It is also difficult to accept that the officers would out-and-out lie about utterances made by Mr. Iniguez. They did not know him. They had no history with him, except for their meeting earlier that night, when Mr. Iniguez had been calm, polite and respectful. The officers had no reason to want to ‘get him’. Further, they had already found a gun in Mr. Iniguez’s bedroom and ammunition in his gym bag; they did not need to make up a statement in order to build a case against Mr. Iniguez.

[41] Given the improbabilities of Mr. Iniguez’s account, and the many inconsistencies in his account, I do not believe his evidence.

[42] My rejection of Mr. Iniguez’s evidence, however, does not translate into a wholesale acceptance of the officers’ evidence. While I accept that events transpired generally as testified to by the officers, I had some concerns about the reliability of certain aspects of their evidence. Both officers have vague and unclear memories with respect to what was said to or by Mr. Iniguez before they entered his home, and before they searched for the gun. They are unable to say with any precision what words or actions of Mr. Iniguez led them to believe that he had consented to them searching. The officers’ sparse notes do little to bolster their somewhat frail recollections surrounding these important issues. The officers were also inconsistent with each other on some issues, for example, whether Officer Caunter told Mr. Iniguez about the gun allegations before or after they were standing in his foyer, and when exactly Mr. Iniguez was placed in handcuffs.

[43] I will have more to say about the officers’ evidence in my analysis, to which I now turn.

Analysis

Issue One: Did the officers violate Mr. Iniguez’s s. 10(b) right?

[44] Section 10(b) of the Charter provides that upon arrest or detention, everyone has the right “to retain and instruct counsel without delay and to be informed of that right.” Without delay means that the police must advise an individual of their right to retain and instruct counsel immediately upon arrest or detention, subject to legitimate concerns for officer or public safety: R. v. Suberu, 2009 SCC 33, at paras. 41- 42; and R. v. McGuffie, 2016 ONCA 365, at para. 42.

[45] There is no dispute that if Mr. Iniguez was detained before the police found the ammunition, that the police did not comply with their s. 10(b) obligations. The key question is when Mr. Iniguez was, in fact, detained.

[46] Defence counsel argues that Mr. Iniguez was detained by the time both officers were questioning him in the foyer. Crown counsel counters that the police did not detain Mr. Iniguez until they found the gun magazines.

[47] As explained in R. v. Grant, 2009 SCC 32, at paras. 30-31, a psychological detention by the police can arise in two ways: 1) where an individual is legally required to comply with a direction or a demand by the police; or 2) where there is no legal requirement, but a reasonable person would feel obligated to comply. In assessing whether a detention has crystalized, it is important to keep in mind that not every interaction between the police and a member of the public will amount to a detention. Rather, a detention requires “significant physical or psychological restraint”: Grant, at para. 26; Suberu, at para. 23; and R. v. Mann, 2004 SCC 52, at para 19. As noted recently in R. v. Le, 2019 SCC 34, at para. 27, even when a person under investigation for criminal activity is questioned, that person is not necessarily detained: see also Suberu, at para. 23; and Mann, at para. 19.

[48] As noted previously, I do not accept Mr. Iniguez’s account of events. Detention, however, is assessed objectively. Given that, my rejection of his evidence does not end the inquiry into whether and when a detention crystalized: Le, at para. 106. Rather, I must consider how a reasonable person would perceive the events that unfolded when Officers Caunter and Rogers investigated the gun allegation. That is, would a reasonable person in the place of Mr. Iniguez feel that they had to comply with the police?

[49] In Grant, at para. 44, the court adopted three non-exhaustive factors to consider when determining if a detention has occurred: 1) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; 2) the nature of the police conduct; and 3) the particular characteristics of the individual where relevant. In my view, the three factors militate towards finding that Mr. Iniguez was detained once the officers refused to take his initial no for an answer and continued to question him. I will address each in turn.

1) The Circumstances Giving Rise to the Encounter as They Would Reasonably be Perceived

[50] Officers Caunter and Rogers went to Mr. Iniguez’s home for the specific purpose of investigating whether he had a gun. They were not providing general assistance, maintaining general order, or making general inquires regarding a particular occurrence. Rather, they singled out Mr. Iniguez for a focused investigation. Both officers questioned Mr. Iniguez about whether he had a gun. More than once. A reasonable person in Mr. Iniguez’s place would clearly know that they were the focus of a serious police investigation.

2) The Nature of the Police Conduct

[51] Once inside, the officers “took turns” asking Mr. Iniguez if he had a gun. They stressed to Mr. Iniguez how serious the matter was. When Mr. Iniguez denied having a gun, the officers did not accept his denial, and instead continued to question whether he did have a gun. In my view, any reasonable person in Mr. Iniguez’s place would quickly perceive that the two officers standing in their foyer, subjecting them to a targeted investigation, were not content to take them at their word. Continued questioning in the face of denials would reasonably be perceived as the police effectively taking control.

[52] The Crown argues that the police were polite when they asked Mr. Iniguez if he had a gun, which shows that he was not detained. But as explained recently in Le, at para. 45, a detention may be established even when the police do not use “loud stern voices, curt commands, and clear orders about required conduct.” Here, while the officers may have used a polite tone, they also continued to ask Mr. Iniguez if he had a gun, despite his denials. In my view, a reasonable person in Mr. Iniguez’s shoes would perceive the officers, authority figures, standing in their home, refusing to accept their protestations of innocence, as taking charge of them and the situation.

[53] Moreover, as they went to conduct the search, the officers positioned themselves so that Mr. Iniguez was between them as they walked up the stairs. In my view, this strategic positioning would also be perceived by a reasonable person as the police taking control. If the police were responding to a homeowner’s complaint about a break-in, it seems unlikely that the officers would have any trouble with the homeowner leading the way upstairs to show the officers any damage. In my view, a reasonable person, being positioned in between two police officers as they traversed up the stairs on their way to search for a weapon, would feel that they were not free to leave and would feel compelled to comply.

3) The Particular Characteristics of the Individual

[54] The circumstances and the conduct of the police must be assessed having regard to the particular characteristics of Mr. Iniguez. Here, Mr. Iniguez had just been woken up when the officers began to question him about the gun. He is a visible minority. As is clear from the booking video, both officers towered over him. He was in his underwear, which put him in a somewhat vulnerable position.

4) Conclusion on When Detention Crystalized

[55] Looking at all of the circumstances, in my view Mr. Iniguez’s detention crystalized at the point in time when he said he did not have a gun, yet the police continued to question him. Any reasonable person, in the early morning hours, having just been woken up by the police, and, while in their underwear, being subjected to repeated questions about a gun by much larger officers (who will not seem to take no for an answer) would feel psychologically detained.

[56] Thus, subject to any concerns for officer or public safety, Mr. Iniguez should have been advised of his right to counsel while he was standing in the foyer with the officers. On the evidence of both officers, however, when they were in the foyer with Mr. Iniguez, they did not have any concerns for officer or public safety. While Officer Caunter said that he took the lead going up the stairs because of officer safety concerns, those concerns only materialised because they were going upstairs to search. Before that time, when the officers were inside the foyer, no such concerns existed. Given that, the officers should have advised Mr. Iniguez of his right to counsel. By failing to do so, they breached Mr. Iniguez’s s. 10(b) right.

Issue Two: Did the officers violate Mr. Iniguez’s s. 8 right?

[57] The officers searched Mr. Iniguez’s home without a warrant. Warrantless searches are presumed to be unreasonable unless they can be justified pursuant to the test set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, a search will be deemed reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable. The onus is on the Crown on a balance of probabilities to justify a warrantless search.

[58] Here, the Crown argues that Mr. Iniguez consented to the police search of his home. Thus, the onus is on the Crown to demonstrate that Mr. Iniguez chose to waive his constitutional right to be free from an unreasonable search and seizure with the full knowledge of the existence of his right and an appreciation of the consequences of waiving that right: R. v. Wills, 1992 CanLII 2780 (ON CA), [1992] O.J. No. 294 (C.A.), at para. 49. To do so, the Crown must establish the following six factors on a balance of probabilities:

i. there was a consent, express or implied;

ii. the giver of the consent had the authority to give the consent in question;

iii. the consent was voluntary, and not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

iv. the giver of the consent was aware of the nature of the police conduct to which they were being asked to consent;

v. the giver of the consent was aware of their right to refuse to permit the police to engage in the conduct requested; and

vi. the giver of the consent was aware of the potential consequences of giving the consent.

[59] In my view, the Crown has failed to establish both that Mr. Iniguez consented to the search, and that he was aware of his right to refuse to permit the police to search. I will address each point in turn.

Has the Crown established on a balance of probabilities that Mr. Iniguez consented to the search?

[60] Both officers testified that Mr. Iniguez consented to the search. The Crown argues that based on their evidence, he has met his burden. As made clear in Wills, at para. 89, however, a police officer’s belief that consent was given cannot create consent where none exists.

[61] In assessing whether a true consent was given, it is important to look at the actual words and conduct that are said to amount to a consent. That is because, as explained in Wills, at para. 46, there is a distinction between a true consent and mere acquiescence or compliance. Thus, care must be taken to ensure that any alleged consent does not become a “euphemism for failure to object or resist.” The court cautioned in Wills that if such care is not taken, police may be encouraged to rely on “uninformed and sometimes situationally compelled acquiescence.”

[62] In the present case, the police were unable to say with any precision what they said to Mr. Iniguez when they asked to search for the gun. Nor could they say with any specificity what Mr. Iniguez said or did that led them to believe that he was consenting to the search. There was, in fact, a gun upstairs. I find on the evidence that it was Mr. Iniguez’s gun. Thus, Mr. Iniguez had every reason not to consent to the search.

[63] Given that, it is particularly important to understand what Mr. Iniguez said or did that led the police to believe that he was consenting to the search for the gun. But the officers’ evidence on this key issue is uncertain and unclear. Thus, the Crown has failed to establish on a balance of probabilities that Mr. Iniguez actually consented to the search, as opposed to simply acquiescing or failing to object or resist.

Has the Crown established on a balance of probabilities that Mr. Iniguez knew that he could refuse to allow the officers to search his home for a gun?

[64] Here, the police failed to tell Mr. Iniguez that he could refuse the search. The Crown argues that they were not obligated to do so. In advancing this submission, the Crown relies on the decision of R. v. Blackstock, 1997 CanLII 14495 (ON CA), [1997] O.J. No 3597 (C.A.), at paras. 3-5. There, the court held that when an individual is not detained, the police are not obligated to tell them of their right to refuse to consent to providing a breath sample (a search). The court, however, specifically did not rule on whether such an obligation would arise if the police were dealing with a detained individual. I have found that Mr. Iniguez had already been detained by the time that the police asked to search his home. Thus, the Blackstock decision is not directly applicable.

[65] In any event, the court in Blackstock cautioned that even when the individual is not detained, if the police fail to expressly tell them that they can refuse to consent, then in “many cases” the Crown will be unable to establish on a balance of probabilities that any purported consent was voluntary and informed.

[66] The Crown argues that although the police failed to tell Mr. Iniguez that he could refuse the search, Mr. Iniguez knew he could say no to the search. The Crown relies on two aspects of Mr. Iniguez’s testimony in support of this submission.

[67] First, the Crown points to Mr. Iniguez’s evidence that he knows he can tell the police that they cannot come into his home. But here, the officers’ evidence is unclear as to whether Mr. Iniguez was told about the allegations before or after they were in his foyer. If, as Officer Rogers testified, the details of the gun allegations were first raised by his partner when they were inside the foyer, Mr. Iniguez would have let the officers into his home without the knowledge that they were investigating him. That is, any invitation to enter his home would not be informed. Given that the officers had been helping Mr. Ininguez with Ms. Howard about an hour earlier, if he was not told why the police were at his door, it would be reasonable to assume that they had returned in relation to that matter. But even if I accept Officer Caunter’s evidence that he told Mr. Iniguez about the gun allegation before stepping inside, the fact that Mr. Iniguez may have known he could refuse them entry, does not equate to Mr. Iniguez knowing that he could refuse to allow them to search his home. This is particularly so when Officer Rogers stressed that it was a matter of public safety.

[68] Second, the Crown points to the fact that Mr. Iniguez agreed that he knew about search warrants from watching television. But knowing that the police can go to a judge for a warrant to search, does not equate to knowledge that in the absence of a warrant, the police are not entitled to search without his consent. Again, particularly given that Officer Rogers told him it was a matter of public safety.

[69] The Crown bears the onus. The police failed to tell Mr. Iniguez that he could say no to the search. The police repeatedly asked Mr. Iniguez about the gun. They did not take his no for an answer. They told him it was a serious matter, a matter of public safety and that it was in everyone’s interest that they “take a look.” Given the entire context, even if Mr. Iniguez was not detained, in my view this is one of the “many cases” where the police failure to inform that the search could be refused, means that the Crown cannot establish its onus. The Crown has failed to establish on a balance of probabilities that Mr. Iniguez knew he could refuse to allow the officers to search for the gun.

[70] Thus, the Crown has failed to establish that the police had a lawful basis to search Mr. Iniguez’s home. As a result, the search was unreasonable and violated Mr. Iniguez’s s. 8 right.

[71] I turn now to whether the evidence should be excluded pursuant to s. 24(2) of the Charter.

Issue Three: Should the evidence be excluded pursuant to s. 24(2)?

[72] Section 24(2) provides that where evidence was obtained in a manner that infringed or denied any Charter rights, that evidence shall be excluded if it is established, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The framework for the application of s. 24(2) was set out by the Supreme Court in Grant. The court must consider three lines of inquiry: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the defendant; and (iii) society’s interest in an adjudication on the merits.

[73] I will consider each in turn.

(i) The Seriousness of the Charter-Infringing State Conduct

[74] The first inquiry involves measuring the seriousness of the Charter violation. At one end of the spectrum is inadvertent or minor violations of the Charter. At the other end of the spectrum is conduct showing a wilful or reckless disregard for constitutional rights: Grant, at paras. 72-74; and R. v. Harrison, 2009 SCC 34, at para. 23. The more severe or deliberate the state conduct, the greater the need for the court to disassociate itself from the conduct by excluding the evidence.

[75] The Crown argues that the officers’ conduct falls at the lower end of the spectrum. He submits that the officers breached Mr. Iniguez’s rights inadvertently, as they simply failed to turn their minds to the requirements of a consent search. He asserts that the officers also did not subjectively believe that Mr. Iniguez was detained until the ammunition was found, and they did read him his rights to counsel at that stage. The officers, he said, were clearly acting in good faith.

[76] I cannot agree. In my view, the conduct of the officers in this case falls towards the more serious end of the spectrum, particularly as it relates to the s. 8 issue. Both officers said they did not even consider telling Mr. Iniguez that he could say no to the search. Yet the Wills decision had been released over 15 years earlier. Officer Caunter had been a police officer for about 17 years at the time. He should have been well-aware of his importance of ensuring that any consent to search was an informed one. Officer Rogers testified that he has learned more about consent searches and now typically ensures that he tells individuals that they can speak to a lawyer and that they can refuse the search. But at the time, Officer Rogers had been a police officer for almost seven years. He should have been fully aware of the requirements for a valid consent search. In my view, the officers’ failure to turn their minds to the requirements for a consent search is not inadvertence but more akin to negligence or wilful blindness. As stressed in Grant, at para. 75, “negligence or willful blindness cannot be equated with good faith.”

[77] Further, the reason proffered by the officers as to why they did not think to inform Mr. Iniguez that he could say no to the search is troubling. They were anxious to book off-shift and thought it would be “quick”. Of course, if they had advised Mr. Iniguez that he could call a lawyer and that he could refuse the search, Mr. Iniguez might have chosen to consult with counsel or say no to the search. Then things might not have been “quick” and the officers might not be going home. It seems clear that the officers decided that finishing their night-shift on time was more important than ensuring that Mr. Iniguez’s constitutional rights were respected.

[78] Moreover, they made that determination based on their belief that no evidence would be uncovered. As noted in Grant, at para. 75:

It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

[79] If the officers’ initial belief that no gun would be found had been correct, this would have been one of the situations adverted to in Grant: no one would have ever learned that the officers violated Mr. Iniguez’s rights. In my view, that is what the officers were counting on. They did not think they had to tell Mr. Iniguez about his rights because they did not believe that Mr. Iniguez would actually face any jeopardy. In my view, this places the actions of the police at the more serious end of the spectrum.

[80] This factor strongly favours exclusion.

(ii) The Impact on the Charter-Protected Interests of the Defendant

[81] The second inquiry calls for an assessment of the extent to which the breach undermined the interests protected by the right infringed. Here the police failed to advise Mr. Iniguez of his right to counsel when his detention crystalized. At that point in time, his need to speak to a lawyer was particularly acute. The police were in his home, wanting to search for a gun. A lawyer could have properly advised Mr. Iniguez that he had the right to say no to the search. A lawyer could have also advised him of his right to silence and that anything he said to the police could be used against him in a criminal proceeding. The failure to advise Mr. Iniguez of his right to counsel impacted on both his privacy rights and his right against self-incrimination.

[82] The police then searched Mr. Iniguez’s home without his informed consent. The impact of this breach on Mr. Iniguez’s Charter-protected interests was significant, as Mr. Iniguez had a high expectation of privacy in his home.

[83] This factor strongly favours exclusion.

(iii) Society’s Interest in an Adjudication on the Merits

[84] The third branch of the Grant inquiry involves a consideration of society’s interest in a determination of the charges on their merits. The question is whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion: Grant, at para. 79. The court should consider the reliability of the evidence and its importance to the Crown case.

[85] Here, the defence seeks the exclusion of Mr. Iniguez’s utterances, as well as the gun and ammunition.

[86] The utterances were not audio taped and the officers could not provide a verbatim account of what Mr. Iniguez said. There are some reliability issues with respect to the officers’ recounting of events. This impacts on an assessment of the reliability of their memories with respect to what Mr. Iniguez said. Further, as noted recently by the Court of Appeal in R. v. Fountain, 2017 ONCA 596, at para. 61, statements obtained in violation of the right to counsel will generally be excluded: see also Grant, at paras. 95-96. In any event, even if Mr. Iniguez’s utterances were excluded, the Crown would still have a case.

[87] As it relates to the gun and ammunition, however, that is highly reliable evidence. Without the evidence, the prosecution will not have a case against Mr. Iniguez. Given the plague of gun violence in Toronto and elsewhere in our country, the prosecution of gun offences has attracted increased public interest: R. v. Grant and Campbell, 2015 ONSC 1646, at para. 135. Society has a particularly high interest in seeing gun offences tried on their merits: R. v. Omar, 2018 ONCA 975, at paras. 122-138; aff’d, 2019 SCC 32, at para. 1.

[88] This factor strongly favours admission of the evidence.

(iv) Balancing the Factors

[89] In this case, the first two factors strongly favour exclusion of the evidence. The third factor, however, strongly favours admission.

[90] There is potentially some confusion in the caselaw as to the proper approach to take in the balancing exercise when the first two factors favour exclusion, but the third factor pulls towards admission. In McGuffie, at para. 63, Doherty J.A. opined that in such a situation, the third factor would rarely tip the balance towards admission of the evidence.

[91] In Omar (C.A), however, Brown J.A., in obiter comments in his dissenting opinion, expressed concern that there was a risk that the above comments in McGuffie could become the basis for a kind of “two-strikes-and-the-evidence-is-out” rule. On appeal, the majority of the Supreme Court in Omar agreed “substantially” with the reasons of Brown J.A., but without comment on this specific issue. It is thus unclear if the court adopted Brown J.A.’s obiter comments.

[92] Finally, in Le, a decision released by the Supreme Court just nine days after the court released its reasons in Omar, the majority of the court again stated that where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admission.

[93] It is somewhat difficult to reconcile Omar with the decision in Le. Given the very brief reasons of the Supreme Court in Omar, however, a strong argument can be made that the court was not taking a contrary position to its considered analysis in Le.

[94] At the end of the day, however, it seems that the key thing to keep in mind is that there is no mathematical formula that applies to how the three factors should be balanced. The court must always take into consideration all of the circumstances when engaged in the balancing exercise required by s. 24(2) of the Charter. While that may mean that in many cases if the first two factors strongly favour exclusion, society’s interest in an adjudication on the merits will not tip the balance towards exclusion, in some circumstances it might.

[95] Mr. Iniguez is facing serious gun charges. As noted above, there is a significant societal interest in having gun offences tried on the merits. That said, the seriousness of the charges can cut both ways. On the one hand, the seriousness of charges can be said to enhance society’s interest in an adjudication on the merits. But, where the consequences to the defendant whose rights have been infringed are particularly serious, the concern that the courts must not be seen as condoning police misconduct becomes more pressing. It is essential that the seriousness of the charge does not overwhelm the other factors relevant to the s. 24(2) analysis: Grant, at para. 84; and R. v. Paterson, 2017 SCC 15, at para. 56.

[96] In my view, looking at all of the circumstances, a proper balancing of the Grant factors leads to the conclusion that admission of the evidence would bring the administration of justice into disrepute. Exclusion of the evidence is required in order to adequately disassociate the justice system from the police misconduct in this case and to reinforce the importance of the rule of law and individual rights.

Conclusion

[97] The police violated Mr. Iniguez’s rights pursuant to ss. 8 and 10(b) of the Charter. The officers did not believe that they would uncover any evidence, and they wanted to end their night-shift and go home. As result, they took a shortcut with Mr. Iniguez’s constitutional rights. But for the fact that the officers found evidence, the Charter violations in this case would likely never have been discovered.

[98] The admission of the evidence in these circumstances would bring the administration of justice into disrepute. As a result, the evidence is excluded pursuant to s. 24(2) of the Charter.

Justice Heather McArthur

Date: January 31, 2020

[^1]: At the outset of the trial, the Crown advised that he would not seek to adduce any utterances made by Mr. Iniguez before he was advised of his right to counsel. At the end of the trial, however, the Crown took a somewhat different position. While saying that he was not resiling from his initial position, he also argued that it would be nonetheless open to me to find that the utterances made before the rights to counsel were given are admissible. Given that the Crown did not raise this until the end of the trial (and that he is not formally seeking admission of the utterances) in my view it would be inappropriate for me to find those utterances admissible.

[^2]: The booking video was not disclosed until the first day of trial, and the officer did not have a chance to view it before he testified. It is troubling that but for the disclosure of the video, there would have been no evidence that Mr. Iniguez did, in fact, ask to speak to counsel.