COURT FILE NO.: 17-G1001
DATE: February 11, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAMARA BAHLAWAN
Brigid Luke for the Crown/Respondent
Mark Ertel for the Defendant/Applicant
HEARD: January 15, 17 and 31st and February 10, 2020
RULING ON SECTION 8 APPLICATION
[1] On the evening of November 22, 2016, eight armed officers with the Ottawa Police Service’s tactical unit broke down the door of the Bahlawan residence, a house in a quiet suburban neighbourhood. After the door was forced open with a battering ram, the officers threw a distraction device into the front hallway. It exploded loudly, gave off a blinding flash of light and created a haze of smoke. The officers then ran into the house, yelling “Police, don’t move!”. They each wore dark grey tactical gear, including helmets, balaclavas, vests, and goggles. Each officer carried a long gun.
[2] Three people were in the house at the time. Tamara Bahlawan’s brother Adam was playing computer games in the front room. Her parents were watching television in the living room. They were terrified when they heard people forcing their way into their house. Kelsie Raycroft, Ms. Bahlawan’s mother, thought the house might have caught on fire, because she saw black smoke in the hallway. None of the family members had any idea why masked, armed officers were storming their home.
[3] Members of the tactical unit conducted two sweeps of the house to ensure that they had found everyone who was inside. Ms. Bahlawan’s father and brother were ordered to lie on their stomachs on the floor. Ms. Raycroft was permitted to sit on a couch after Mr. Bahlawan told the officers that she had recently had heart surgery. Adam’s wrists were handcuffed behind his back before being permitted to sit up. The tactical officers told the Bahlawans that they were executing a search warrant for drugs but told them little more.
[4] Less than ten minutes after officers first entered the house, investigators with the drug unit arrived at the house, and the tactical officers left. A short time later, Ms. Bahlawan’s parents and brother were released and instructed to leave the house while investigators searched it. The family was permitted to return about forty-five minutes later. The police then left the house, leaving a front door that would no longer fully close or lock, a burn mark on the floor in the front hall, a smoke detector dangling from the ceiling and some furniture in disarray.
[5] The officers also left a family profoundly shaken by what had occurred. Mr. Bahlawan testified that the events of that evening terrified him and completely changed his view of the police. As someone who immigrated to this country, he did not feel like he was in Canada.
[6] The “dynamic entry” of the Bahlawan residence was based on a search warrant issued to the Ottawa Police Service pursuant to s. 11 of the Controlled Drugs and Substances Act (the “CDSA”). The warrant was issued in support of a drug trafficking investigation of Ms. Bahlawan and her boyfriend, Ahmed Al-Enzi. The warrant for the Bahlawan residence, where she lived with her parents and brother, permitted police to enter it to search for cocaine and crack cocaine, as well as paraphernalia used in the sale and distribution of drugs. The police did not find the items listed in the warrant during their search of the residence. They did however find an unregistered, loaded hand gun and ammunition in a bedroom.
[7] Ms. Bahalwan was charged with four counts of unlawful possession of a firearm and ammunition under the Criminal Code, based on what the police found during the search of the Bahlawan residence. She is also facing four charges under the CDSA for possession of drugs for the purpose of trafficking. This is because, when another tactical unit executed a second search warrant for an apartment on Heron Road at roughly the same time as the first unit entered her house, they found Ms. Bahlawan, Mr. Al Enzi, and a quantity of cocaine and other drugs.
[8] In this application, Ms. Bahlawan says that the search of her house breached her right against unreasonable search under s. 8 of the Canadian Charter of Rights and Freedoms. She seeks an order excluding the evidence seized by the police on November 22, 2016 at her residence.
[9] To decide this application, I must answer two questions:
(1) Did the search of the Bahlawan residence on November 22, 2016 violate Ms. Bahlawan’s rights under s. 8 of the Charter?
(2) If it did, should the evidence seized during the search nonetheless be admitted under s. 24(2) of the Charter?
[10] For the reasons that follow, I find that the way the way the search was conducted violated Ms. Bahlawan’s s. 8 rights. I nonetheless conclude that the evidence found as a result of the search should not be excluded.
ANALYSIS
(1) Did the search violate Ms. Bahlawan’s rights under [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[11] Ms. Bahlawan challenged the search warrant in an earlier Garofoli application. In June 2019, I concluded that a judge could reasonably have issued a search warrant for Bahlawan residence, based on information obtained by the Ottawa police from two confidential informants and nine days of surveillance of Mr. Al Enzi and Ms. Bahlawan.
[12] As a result, the only issue on this application is whether the warrant was properly and reasonably executed. The defence argued that the search was executed unreasonably because the police have not justified their use of a dynamic entry.
Legal principles
[13] Section 8 of the Charter states that everyone has the right to be secure against unreasonable search or seizure. To safeguard this right, a police search must be authorized by law, the law itself must be reasonable and the search must be conducted in a reasonable manner: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at page 278.
[14] Even if they have a valid search warrant, the police must, as a general rule, knock and announce their presence before entering a home. The knock-and-announce rule has been part of our law for over 400 years; R. v. Pan, 2012 ONCA 581, at para. 35. Even prior to the adoption of the Charter, the Supreme Court in Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 held that the police not force their way into a residence unless there were circumstances that justified it:
Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give (i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.
[15] After Canadians obtained the explicit protection against unreasonable search and seizure in s. 8 of the Charter, the Supreme Court reiterated that police must comply with the knock and announce rule. The Court stated that this approach “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public”; R. v. Cornell, 2010 SCC 31, [2010] 2 SCR 142, at para. 19.
[16] Where the police do burst in unannounced, this does not automatically result in a violation of s. 8 rights. Police are granted a certain amount of latitude in the way they decide to enter the premises to be searched. They cannot be expected “to measure in advance with nuanced precision the amount of force the situation will require”; Cornell, at para. 24. Section 8 of the Charter furthermore does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present; Cornell, para. 20.
[17] On a s. 8 challenge like this one, however, the police must be able to justify their decision to depart from the standard knock-and-announce rule. The Crown must prove that the police had reasonable grounds to be concerned about the risk of harm to officers or occupants, or the destruction of evidence; Cornell, para. 20. It must do so based on what police knew or reasonably should have known at the time, as opposed to a ex post facto justification for a dynamic entry.
[18] The greater the departure from the principles set out in Eccles v. Bourque, “the heavier the onus is on the police to justify their methods”; R. v. Chungkuong, 2012 ONSC 3488, at para. 10.
Application of the legal principles to the evidence in this case
[19] The approach taken by the Ottawa police to the execution of the search warrant for the Bahlawan residence obviously did not reflect the principles of the knock and announce rule. The tactical unit broke the front door down with a battering ram, without any warning, and they used a flash/bang device to distract and disorient its occupants. Although officers identified themselves and told the Bahlawans that they were executing a search warrant, they did so only after they were inside. The police accordingly bear a heavy onus to justify their methods.
[20] The Crown argues that the Ottawa police decided to use a dynamic entry in this case because they feared that, if they announced their presence at the door of the Bahlawan house, the occupants might destroy evidence or take actions that would put the safety of officers, themselves and members of the public at risk.
[21] I do not accept this argument, because the evidence does not show that the Ottawa police ever considered the possibility of a non-dynamic entry.
[22] Constable Matthew Cox testified about the investigation of suspected drug trafficking by Mr. Al Enzi and Ms. Bahlawan. He has extensive experience in drug investigations through his work on the street crime unit and the drug unit of the Ottawa Police Service. Although he was not the lead investigator in this case, he handled one of the confidential informants and conducted some of the surveillance. He also swore the Information to Obtain for search warrants for the Bahlawan residence, the Heron Road apartment, and Mr. Al Enzi’s residence.
[23] Constable Cox had a detailed recollection of this investigation. He also had a wealth of knowledge about the challenges of investigating drug trafficking and the Ottawa Police Service’s practices in executing search warrants in the context of such investigations.
[24] Constable Cox testified that, further to a policy adopted by the Ottawa Police Service at some point, all search warrants for private premises are conducted by the tactical unit. The decision on the approach to be used is made by the duty inspector, on the recommendation of officers in the unit.
[25] Constable Cox testified that, on November 22, 2016, he briefed the duty inspector, John Medeiros, and the team leader, Constable Sean Wright, on the information obtained during the investigation. He also provided them with a written Operations/Incident Plan (the “investigators’ SMEAC”),[^1] setting out the plan for executing the warrants for the Bahlawan house and the apartment on Heron Road, as well as the warrant for the Al Enzi residence a short distance away. The investigators’ SMEAC did not explicitly refer to a dynamic entry, although this is strongly implied. It stated that all persons found in the Bahlawan residence would be arrested by tactical unit officers and the residence would be turned over to the investigators to search “once deemed safe and secure”.
[26] Although he stated that the final decision about how to execute rested with the duty inspector, Constable Cox testified that the plan for how the search warrants would be executed in this case was jointly conceived by him, Inspector Medeiros and Constable Wright. The three officers agreed that the tactical unit should use a dynamic entry and deploy a “distraction device” at each of the three locations.[^2] They also agreed that additional surveillance would be conducted prior to execution, to try to locate Mr. Al Enzi and Ms. Bahlawan. According to Constable Cox, tactical officers on the ground could modify thee plan about how to execute the warrant, depending on information about where Mr. Al Enzi and Ms. Bahlawan were at the time.
[27] During the briefing, Constable Cox gave Inspector Medeiros and Constable Wright a global picture of the investigation to date and told them that they might find a firearm at one of the three locations to be searched. He told them that he believed that the Bahlawan residence was being used as a stash house, and that he did not think there were any children or dogs there. A dog might pose a threat to officer safety. If there were children in the house, the tactical unit might decide not to use a distraction device.
[28] In short, Constable Cox testified that, although investigators recommended an approach for the execution of the search warrants and briefed the tactical unit about the case, the decision about how to execute was made by Inspector Medeiros, with possible variation at the last minute by the tactical unit, headed up by Constable Wright. His evidence about why a dynamic entry might have been justified in this case is therefore of limited relevance. It was not his call.
[29] Inspector Medeiros was an Ottawa Police Service officer for thirty years before retiring. He had extensive experience in investigations of drug trafficking, firearms offenses and gang activity.
[30] In my opinion, Inspector Medeiros only vaguely recalled this particular investigation. For example, he testified that he had no information about the whereabouts of Mr. Al Enzi and Ms. Bahlawan on November 22, 2016. He is mistaken, because the police had observed Ms. Bahlawan leaving her house at 18h00, picking Mr. Al Enzi up at his house at 18h19, and the two of them arriving at the Heron Road apartment at 18h39, about twenty minutes before the search warrants were executed. I furthermore believe that Inspector Medeiros had this information on that day. He testified that he attended at the “higher risk” Heron Road location in case there was a problem, such as the targets barricading themselves inside. Since the only two targets were Ms. Bahlawan and Mr. Al Enzi, this implies that he knew that they were there.
[31] Another example of Inspector Medeiros’ limited recollection was his evidence that the police had no idea who they might find at the Bahlawan residence. The police in fact knew that Mr. Bahlawan lived there, and that a woman had also entered the house in the late afternoon of November 22. They also knew, of course, that neither Ms. Bahlawan nor Mr. Al Enzi were there.
[32] Inspector Medeiros did however provide good insight into the general practices of the Ottawa police in executing search warrants. As duty inspector, he made the final decision about the approach that would be taken. He testified that a knock and announce approach was appropriate only in situations where there is “zero risk” to both the physical safety of officers and other persons at the scene and to the disposal of evidence. In all other cases, forced entry was used, so that officers had the element of surprise. It was also used to gain entry if no one was home. A distraction device was added if there was a potential that someone on the premises had a weapon or could easily destroy evidence.
[33] In this particular case, accordingly to Inspector Medeiros, he accepted the recommendation of the tactical unit to execute the search warrant on the Bahlawan residence using a dynamic entry and a distraction device. This was based on safety considerations. His testimony on this point can best be summed up as: “There might be a gun and it had to be somewhere”.
[34] The SMEAC prepared by the tactical unit (the “unit SMEAC”) indicates that the search warrant would be executed via “Assault – Mechanical breach, Distraction Device, Dynamic Entry”. The chain of command indicated first Inspector Medeiros, then a Sergeant Clement (who did not testify), then Constable Wright.
[35] Constable Wright was the leader of the tactical unit squad that executed the warrant on the Bahlawan residence. He confirmed the evidence of Constable Cox and Inspector Medeiros about how the approach was determined. He stated that a non-dynamic mode of entry was not considered. When asked if there were any circumstances where the tactical unit might use a different approach, he agreed with Constable Cox that a “breach and call out” would be appropriate if the police were simply searching for a firearm, or if they were arresting a person who was believed to be violent. He testified that the police would only knock and announce if there were non-disposable evidence identified in the search warrant.
[36] In cross-examination, Constable Wright refused to concede that the tactical unit would never knock when executing a search warrant for cocaine. This admission was implicit, however, in his earlier statement about where such an approach would be appropriate.
[37] Constable Medhy Khalid a member of the tactical unit that executed the warrant on the Bahlawan house, testified that he had very little input on the manner of entry used. He focussed almost entirely on the challenges faced by officers and risks to their safety, and emphasized the need for “speed, surprise and domination”. He was not aware of any discussions about options to execute the warrant that did not involve a dynamic entry.
[38] Finally, Constable James McGuire, another tactical officer, testified that dynamic entry is used whenever there is any possibility that evidence will be destroyed. A distraction device will be added if there is a heightened risk to officer safety, such as a dog or a possible firearm on the premises.
[39] Taken as a whole, the evidence of the five officers indicates that all search warrants for drugs, firearms and child pornography obtained by the Ottawa Police Service were executed by the tactical squad, and the person in charge of the tactical squad would not authorize a non-dynamic entry, such as a knock and announce, unless there was “zero risk” to officer safety or the potential destruction of evidence. The circumstances in which there is no risk would be vanishingly rare. All search warrants for easily disposed of drugs, such as cocaine, would be executed by way of dynamic entry. Dynamic entry would furthermore be chosen if there was any possibility for a firearm on the premises, however tenuous or remote, or any other circumstance that could conceivably endanger the police.
[40] The Crown argued that I should infer a decision-making process based on the steps taken by Constable Cox to brief Inspector Medeiros and Constable Wright, the preparation of the two SMEACs, Inspector Medeiros’ testimony that he reviewed the ITO before the briefing, the discussions within the tactical unit about the approach, and the evidence that tactical officers involved in the operation had a margin of discretion about how, ultimately, the warrant would be executed. She contended that I should find that the dynamic entry approach was implicitly the result of the consideration of factors that might justify it. She points to the evidence of Constable Cox, in particular, about information obtained during the investigation that might give rise to real concerns about the preservation of evidence and officer safety, if a knock and announce approach were used.
[41] Notwithstanding the able attempts of Crown counsel, I am unable to infer a decision-making process when the evidence indicates that no decision was made. There is no evidence that any officer involved ever contemplated, let alone discussed, the possibility of knocking on the front door of the Bahlawan residence and announcing that the police had a warrant to search the premises. Dynamic entry was a foregone conclusion. The only question was whether additional precautions, such as using a distraction device and having paramedics on standby, were also appropriate.
[42] The Crown also points out that there were good reasons why the police might have opted for a dynamic entry in this case. The police may be justified in using the element of surprise to secure evidence before a suspect has an opportunity to destroy it; R v Chungkuong, at para. 23. Although it upheld the general rule of knock and approach, in Cornell the Supreme Court also ultimately upheld the use of a dynamic entry in that case. The Court accepted the trial judge’s conclusion that it was “reasonable for the police to be concerned about their safety and the safety of other occupants given their experience that those who traffic in cocaine frequently are violent and the fact that a cocaine trafficker who associated with violent people was welcome in the residence” (Cornell, at para. 27). In that case, as here, the suspects in the investigation were not on the premises when the warrant was executed, and the occupants of the premises had no criminal record.
[43] I agree that, had the police actually considered whether an approach other than a dynamic entry in this case, they might well have been justified in deciding, after considering the information at hand, that the risks of announcing their presence before entry were just too high. This is not however the scenario before me. There is no evidence of such consideration. I cannot uphold a decision-making process that simply did not occur.
[44] In these circumstances, I am unable to find that the Crown has met the burden if justifying the choice of a dynamic entry. The Ottawa Police Service operated on the basis of a practice that assumes that a non-dynamic entry is a rare exception as opposed to the rule. This turns the test in Eccles v. Bourque on its head.
[45] I therefore conclude that the search of the Bahlawan residence on November 22, 2016 was executed unreasonably, and therefore violated Ms. Bahlawan’s rights under s. 8 of the Charter.
Should the evidence be excluded?
[46] Since I have determined that the search violated Ms. Bahlawan’s s. 8 rights, I must now consider whether the admission of the evidence seized during that search -- a handgun and ammunition – would bring the administration of justice into disrepute under s. 24(2) of the Charter. This requires me to weigh the three factors set by the Supreme Court in; R. v. Grant, 2009 SCC 32: (i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in an adjudication on the merits.
(1) The seriousness of the Charter-infringing state conduct
[47] In the first leg of the s. 24(2) analysis, I must consider the seriousness of the conduct giving rise to the Charter violation. This informs whether the admission of evidence would send a message to the public that the courts endorse (or at least do not sanction) unlawful police conduct.
[48] There is a range of conduct that may give rise to violations of Charter rights:
At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. (Grant, para. 74)
[49] As this passage suggests, deliberate police misconduct that results in Charter breaches will always fall on more the serious end of the spectrum. This does not mean, however, that non-deliberate breaches are necessarily trivial:
“Good faith” on the part of the police will … reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. (Grant, para. 75, citations omitted)
[50] The defence argues that the violation is particularly serious in this case, for two reasons. First, the use of a dynamic entry apparently reflects a long-standing practice by the Ottawa Police Service that is directly at odds with recognized principles about how searches of private dwellings may reasonably be conducted. Second, while executing the warrant, tactical unit officers unlawfully detained Ms. Bahlawan’s parents and arrested her brother without grounds to do so.
[51] With respect to the first argument, I agree that the use of a dynamic entry amounts to serious misconduct. The knock and announce principle has been a part of Canadian law for decades. The officers who testified did not say when the Ottawa police decided that dynamic entry should be the rule rather than the exception. However long the practice has been in place, it reflects a casual disregard for Charter rights.
[52] I have no doubt that individual officers acted in good faith, in that they believe – contrary to the finding of the Supreme Court in Cornell -- that this blanket practice promotes officer safety. This does not justify the systematic use of dynamic entry to execute all, or almost all, search warrants of private dwellings in Ottawa. The police cannot operate from an assumption that they should break in the door of any residence that they have a warrant to search. The court must be concerned about disassociating itself from this practice.
[53] With respect to the second argument, after reviewing the caselaw on point, I conclude that conduct which might constitute a breach of third-party Charter rights cannot be given any significant weight.
[54] I heard testimony from Ms. Bahlawan’s parents and brother about what they experienced on November 22, 2018, and how it has shaken their confidence in the police. Beyond the fact that the dynamic entry by the tactical unit also affected them, defence counsel argues that the police engaged in other egregious misconduct that clearly violated their Charter rights:
• According to the investigators’ SMEAC, the plan was to arrest everyone found at the Bahlawan residence, despite no grounds to do so;
• Adam Bahlawan was in fact told he was under arrest, but not told why, he was not given an opportunity to instruct counsel, and was handcuffed for a period of time;
• Family members were detained and restrained without any documentation by police of what actually happened;
• A distraction device was used without any regard for the harm it could inflict on the occupants of the house.
[55] Defence counsel argues that the potential Charter violations in detaining the Bahlawans should weigh heavily, because the victims of the misconduct do not have any means of redress.
[56] Although there is not much Ontario authority on point, it does not support the defence’s position on this issue.
[57] In R. v. Merritt, [2017] O.J. No. 6929, the accused sought to show that, during their investigation, the police had repeatedly breached the s. 8 rights of third parties. Dawson J. concluded that they should not be allowed to do so, because they lacked the required standing to establish the alleged violations, and the violations had not already been established in the same or related proceedings (Merritt, at para. 23).
[58] In R. v. Gomboc, [2019] O.J. No. 4685, 2019 ONSC 4627, Justice M.K. McKelvey thoroughly canvassed the law on this issue in the context of a Garofoli application. In that case, the police executed a search on a residence occupied by the accused’s parents, without taking steps to verify if he still resided there. When police arrived, they arrested Mr. Gomboc and directed his parents, sister and two children to remain in the kitchen. Although neither of his parents were arrested or put in handcuffs, they were prevented by police from going to work while the search of the premises was underway. On the uncontested evidence at the hearing, they were not informed of the reason for their detention or of their right to instruct counsel. Their cellphones were also seized for a period of time, in apparent violation of their s. 8 rights.
[59] McKelvey acknowledged that, in R. v. Pino, 2016 ONCA 389, the Ontario Court of Appeal said that courts should consider the entire chain of events between the accused and the police. He also considered decisions by courts in other provinces, where courts have considered circumstances where violations of the rights of persons other than the accused may be appropriately considered under s. 24(2). He concluded as follows at para. 77:
[C]ourts will properly take into account the context in which a Charter breach occurs. This can include evidence of other Charter breaches which are not considered too tenuous or remote. However, the focus for considering when evidence was obtained in a manner that infringed the freedoms guaranteed by the Charter, the proper focus will be on Charter violations which involved the accused or another party with standing in the action. Charter breaches against persons other than the accused or persons who are not parties to the litigation should not be given significant weight. I agree with the suggestion that to consider potential Charter breaches against non-parties would change the focus of the Charter inquiry from the protection of individual rights to a more general and at large inquiry into a given police investigation which detracts from the trial focus. [Emphasis added.]
[60] The judge held, like the court in Merritt, that Mr. Gomboc did not have standing to claim relief under s. 24(2) based on potential Charter breaches to third parties who were present at the time of the search. He held that the connection between those potential breaches and the accused was “simply too tenuous or remote to deserve consideration”. Even if he had concluded that they should be considered, McKelvey J. expressed the view that third party Charter violations would have only a “very modest impact” on the court’s analysis, in the absence of evidence that such violations constituted a pattern of abuse; Gomboc, paras. 78 and 79.
[61] Defence counsel relies on a recent decision by the B.C. Court of Appeal, R. v. Robertson, [2019] B.C. J. No. 569. The Court held that a trial judge had erred in failing to take into account police violations of the rights of the accused’s common law spouse, when considering the impact of state misconduct under s. 24(2). In my view, Robertson is not particularly helpful here, because the third party involved in that case was a co-accused, and the violations to her rights had already been determined in the context of the proceedings against her.
[62] I agree with and adopt the reasoning of McKelvey J. in Gomboc. The facts in that case have significant parallels to the facts here. I accordingly find that any potential Charter breaches against persons other than the accused should not be given significant weight, if they are given any weight at all. The focus of a s. 24(2) inquiry is properly on the seriousness and impact of police misconduct vis-à-vis the accused. The court cannot embark on a wide-ranging inquiry about a possible pattern of police misconduct affecting other persons.
[63] Although I recognize that this provides cold comfort, or no comfort at all, to Ms. Bahlawan’s parents and brother, I note that the Ottawa Police Service has, in this decision, been found to have violated Ms. Bahlawan’s s. 8 rights, and that the police will have to take this ruling into account going forward, in executing other search warrants.
[64] I conclude that the police misconduct giving rise to the Charter violation at issue – Ms. Bahlawan’s right not to be subject to an unreasonable search of her home – weighs against admitting the evidence of the gun and the ammunition. I do not however view potential breaches of the Charter rights of her family members as a significant aggravating factor.
(2) The impact of the breaches on the Charter-protected interests of the accused
[65] In the second stage of the s. 24(2) analysis, I must evaluate “the extent to which the breach actually undermined the interests protected by the right infringed” (Grant, para. 76). Possible impact again ranges from the “fleeting and technical to the profoundly intrusive” (para. 76). The more seriously the breaches undermined the accused’s interest, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute.
[66] A Charter breach that involves entry into an accused’s private residence has been held to have a serious impact; R. v. Garabet, 2017 ONCA 139, at para. 16. In that case, however, the police conducted a search based on invalid and overbroad search warrants. The unreasonable manner of the search was not a standalone Charter breach but was considered to be a further aggravating factor. This distinguishes the situation in Garabet from the situation here.
[67] Courts distinguish between breaches that result in the discovery of evidence that would not otherwise have been discovered, and breaches that do not. The more likely it is that the evidence at issue would have been obtained even without the violation of the accused’s Charter right, the lesser its impact; Grant, para. 122.
[68] In this case, the only evidence obtained was the handgun and ammunition. It would have been discovered even if the police had complied with their obligations under s. 8 by knocking on the door and announcing their presence. I therefore conclude that the breach did not seriously undermine Ms. Bahlawan’s interests in avoiding an unreasonable search
[69] Consideration of the second Grant factor accordingly weighs in favour of admitting the evidence.
(3) Society’s interest in the adjudication of the case on its merits
[70] The evidence discovered in the Bahlawan residence constitutes real and reliable evidence of four of the counts with which the accused has been charged. Its exclusion would eliminate the Crown’s case against her on these charges. This argues for the admission of the evidence.
[71] The third Grant factor therefore favours the admission of the evidence.
Conclusion on the application
[72] Balancing the three Grant factors on the facts of this case, I conclude that the evidence obtained during the November 22, 2016 search should be admitted. The misconduct was serious because it was based on a casual disregard for established authority about how search warrants should be executed. The impact of the misconduct did not however have a significant impact on Ms. Bahlawan’s rights. The exclusion of the evidence would prevent the adjudication of the charges on their merits. In these circumstances, I find that the admission of the evidence will not bring the administration of justice into disrepute.
[73] Ms. Bahlawan’s application to exclude the evidence seized is therefore denied.
Justice Sally Gomery
Released: February 11, 2020
COURT FILE NO.: 17-G1001
DATE: February 11, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAMARA BAHLAWAN
COUNSEL: Brigid Luke for the Respondent
Mark Ertel for the Applicant
RULING ON S. 8 APPLICATION
Madame Justice S. Gomery
Released: February 11, 2020
[^1]: “SMEAC” is a military acronym that identifies five elements that need to be addressed in an operations or incident plan: Situation, Mission, Execution, Administration and Control.
[^2]: A distraction device is a vented steel cylinder. Its operation mimics that of a grenade, in that it activates 1.5 seconds after the spoon is removed. It makes a very loud bang – around 180 decibels, louder than a shotgun – and emits a million-candela flash.