COURT FILE NO.: CR-19-2802
DATE: 20211102
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MYLES ROBINSON
Defendant/Applicant
S. Kumaresan, for the Crown/Respondent
P. Seymour, for the Defendant/Applicant
HEARD: September 13, 14, 15 and 17, 2021
REASONS FOR DECISION
DE SA J.:
Overview
[1] Police had been intercepting the communications of Marwan Awdi as part of an unrelated homicide investigation. Police determined that Awdi was engaged in the sale of a firearm. Police tracked Awdi to the Applicant’s address where he met with the Applicant on the driveway. On the basis of the wiretap interceptions, police believed that the firearm was in the process of being sold.
[2] As the police approached the males to arrest them, they fled into the address. The police entered the address arresting the Applicant and looking for Awdi and another possible suspect. In the course of the search, police located a firearm just inside the garage entrance where the Applicant was arrested.
[3] The Applicant submits that his arrest and the search of his home constitute breaches of his s. 8 and section 9 Charter rights. The Applicant argues that evidence obtained as a result of the searches of his person and his residence should be excluded.
[4] I disagree. In my view, the police actions were Charter compliant and justified in the circumstances. The application is dismissed.
[5] The reasons for my decision are outlined below.
Summary of the Facts
Arrangement to Sell Firearm
[6] Between the dates of October 11, 2018 and October 18, 2018, Marwan Awdi (Awdi) was overheard trying to sell what was believed to be a Taurus Millenium G2 firearm. Awdi’s communications were intercepted pursuant to a Part VI authorization obtained as part of an unrelated homicide investigation.
[7] On October 18, 2018 an unknown male, believed to be the Applicant, was intercepted on the lines arranging to purchase the firearm and ammunition (referred to as “teeth” or “red tips”) from Awdi for $4,000.
[8] Awdi agreed to deliver the firearm to the unknown male. Police decided to conduct surveillance on Awdi and arrest him after the firearm transaction was complete.
Following Awdi
[9] On October 18, 2018, police conducted surveillance on Awdi as he left his address at Albion Road and travelled to a restaurant in the west end. Intercepts indicated he was conducting a drug transaction at the restaurant. He left the restaurant with another male in his vehicle.
[10] Information received indicated that the transaction would occur in one of 3 locations: Newmarket, Scarborough, or Vaughan. Police maintained surveillance on Awdi as he left the west end and made his way onto the highway. Further information indicated that the meeting was going to happen in the area of Hwy 404 and Mulock Drive in Newmarket.
[11] Detective Dimatulac was responsible for calling the takedown and arrest of Awdi. As police followed Awdi, the decision was made by lead investigators to arrest Awdi prior to the transaction. Dimatulac testified that he did not feel it was safe to conduct a takedown with the vehicle moving. He decided to wait until the vehicle was stationary and the tactical team was in place before calling the takedown.
[12] After exiting the highway, police followed Awdi to a residence located at 1016 Wilbur Pipher Circle. Mr. Awdi was observed parking in the driveway of the address.
[13] Awdi exited the vehicle and walked towards the garage area where he met with the Applicant just in front of an open garage door. As the males met up on the driveway, Dimatulac directed the tactical team to arrest the males. Dimatulac testified that given the interceptions, he had reasonable grounds to believe that the males were meeting to engage in a firearm transaction.
The Takedown and Flight
[14] Officer Ready was in charge of the tactical team (the ERU) that was effecting the arrest. The ERU had been following the investigation over the air and arrived at the address at 1016 Wilbur Pipher Circle shortly after Awdi arrived. As the males were in the driveway area, the tactical team vehicles pulled up in front of the address.
[15] At 22:06, Officer Matthew Ready directed his team to arrest the males. A distractionary device was deployed which released a bright light and a loud bang. Officers simultaneously approached the males with a view to arresting them.
[16] As the officers approached the driveway, Awdi and the Applicant fled into the house through the open garage. Officer Ricky Ho gave chase into the address and arrested the Applicant just inside the garage entrance to the house inside a mudroom.
[17] The Applicant was arrested for possession of a firearm and turned over to investigators. He was searched incident to arrest and found in possession of keys, a phone and $590 in Canadian currency.
Entrance into the Home
[18] Police were unable to arrest Awdi before he made his way into the house. Officers announced their presence at the side entrance from the garage, but Awdi did not exit. Police made the decision to enter the address. Awdi was believed by police to be armed and a danger to occupants of the address, to the officers on scene, and the public at large.
[19] Officer Ready determined that entry through the garage doorway was not safe. The garage entrance did not provide a proper view of the interior of the home which was dangerous with an armed suspect inside the house. Police also had the intention to use a k9 with a hander which would not be safe to deploy through the side entrance.
[20] The rear door of the house was open, and accordingly police suspected someone, a possible third suspect, may have also left the address on foot. A permitter was set up with a 3 km. radius. K9 and a helicopter were deployed to assist with locating the other suspect or Awdi in case he had left the address.
[21] As the tactical team entered the address to clear it, a firearm was observed in plain view in the hallway. It was located on the other side of the door where Mr. Robinson had been arrested by Officer Ho.
[22] As officers were clearing the address, Awdi was observed exiting a basement window of the address at the side of the house. Constable Busby placed Awdi under arrest and handed him off to the investigative team.
[23] After clearing the address and making sure there were no occupants inside, police secured the address and applied for a search warrant. In executing the warrant, police recovered the Taurus Model PT140 Millenium G2 pistol (a prohibited firearm) from the hallway in the same place it had been observed during the initial entry. The pistol had a single cartridge of .40 Smith & Wesson pistol ammunition in the chamber. The firearm matched the description of the firearm discussed in the calls and the search history in Mr. Robinson’s cell phone.
Analysis
Section 8 and Section 9 - Was the Arrest and Search of the Applicant Lawful?
[24] A police officer may arrest without a warrant if they have reasonable grounds to believe that the person has committed an indictable offence.
[25] The officer needs to subjectively believe that he or she has reasonable grounds to arrest, and the arrest must be objectively justified. In deciding whether reasonable grounds exist, the court must look to the facts known to the officer at the time the grounds were formed and consider the totality of the circumstances. R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.
[26] The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 250-51 S.C.R., p. 218 C.R.R., pp. 323-24. An officer is expected to conduct the inquiry which the circumstances reasonably permit. A reasonable belief can be one that is based on a mistaken set of facts. R. v. Gerson-Foster, 2019 ONCA 405, at paras. 78-79; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at paras. 49-50.
[27] In this case, police had been intercepting the communications of Awdi and were aware that he was meeting an unknown male in Newmarket to sell a firearm. The police followed Awdi to the Applicant’s address in Newmarket and observed Awdi meet with the Applicant on the driveway of his residence. Based on the interceptions, and the timing and location of the meeting, the police believed the gun transaction was taking place and both males were arrestable. When police attempted to arrest them, both males fled into the address.
[28] Given the interceptions together with the observations, I am satisfied that the police had the requisite grounds to arrest the Applicant for engaging in the firearm transaction. I see no issues with the arrest of the Applicant in the circumstances.
[29] In my view, the search of the Applicant was also lawful. At the time of his arrest, the Applicant was believed to be in possession of a firearm. The search was properly incidental to his arrest for possession of a firearm: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at paras. 12-15. The police were entitled to search the Applicant for officer safety and for evidence of the offence.
Section 8 - Was Entry into the residence Lawful?
Hot Pursuit
[30] Police officers have the authority to enter private premises to make an arrest in hot pursuit. The Supreme Court explained the rationale for this common law power in R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802, at paras. 19, 21-22:
To begin with, it would be unacceptable for police officers who were about to make a completely lawful arrest to be prevented from doing so merely because the offender had taken refuge in his home or that of a third party.
… The offender is then not being bothered by the police unexpectedly while in domestic tranquility. He has gone to his home while fleeing solely to escape arrest. In such circumstances, the police could not be obliged to end the pursuit on the offender's doorstep, without making his residence a real sanctuary, contrary to the principles stated by this Court in Eccles.
[31] The essence of fresh pursuit is that it must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction. A precondition to hot pursuit is that an arrest without a warrant is permissible at the outset. R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802, at para. 24.
[32] In this case, the police had reasonable grounds to believe that the Applicant was in the process of committing a criminal offence prior to his entry into the residence. When both Awdi and the Applicant fled into his garage, the police were authorized to pursue them.
[33] In my view, the initial warrantless entry leading to the arrest of the Applicant was justified.
Exigent circumstances
[34] Section 529.3 of the Criminal Code permits police to enter a dwelling-house for the purpose of arresting or apprehending a person without a warrant if the police have reasonable grounds to suspect entry is necessary to prevent imminent bodily harm or death to any person or have reasonable grounds to believe the entry is necessary to prevent the imminent loss or destruction of evidence and it is not practicable to obtain a warrant.
[35] In my view, the police entry into the residence to search for the remaining suspects and secure it was justified pursuant to s. 529.3(2) of the Criminal Code.
[36] In R. v. Bedard, [1998] O.J. No. 2087 (C.A.), a warrantless entry of a residence was justified because there was reason to believe that a friend of an accused could be in the residence with a firearm. The Court held that the police reasonably apprehended a real and serious risk to their safety and the public’s safety and immediate entry was justified to secure the situation.
[37] Similarly, the Court of Appeal in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193, upheld a warrantless entry into a home based on a reasonable suspicion that someone inside the home was potentially armed. In upholding the warrantless entry, Doherty J.A. commented on the nature of the police authority, at pp. 210-211:
If, in order to secure the safety of those at the scene, entry into and search of a residence is necessary, I would hold that the risk of physical harm to those at the scene of the arrest constitutes exceptional circumstances justifying the warrantless entry and search of the residence. The search must be conducted for the purpose of protecting those at the scene and must be conducted in a reasonable manner which is consistent with that purpose.
See also R. v. Douglas, [2008] O.J. No. 173, at paras. 17 and 18.
[38] In this case, when the police entered the Applicant’s home, at least one suspect was outstanding and was observed fleeing into the home. The concern that Awdi who had fled from the police and was believed to have a firearm would harm someone inside the house was a reasonable one. Given that he was believed to possess a firearm, he also presented a risk to other officers and the public in general.
[39] Given that a third suspect was also believed to be involved, the police decision to clear the home after Awdi’s arrest was also reasonable in the circumstances. The search was limited in scope and was restricted to a search for persons and verifying the safety of the occupants. While the Taurus handgun was in plain view while the police were clearing the home, it was not seized until a search warrant was obtained. In my view, this initial search was clearly justified in the circumstances to secure the situation.
[40] I also disagree with the Applicant’s submission that the police created the urgency by delaying the arrest until they reached the Applicant’s residence. Detective Dimatulac testified that the takedown of a moving vehicle created additional dangers. In addition, the tactical team had not been in position to effect the arrest prior to arriving at the Applicant’s address. I accept Detective Dimatulac’s evidence that the timing did not permit for the arrest of Awdi prior to the meeting.
[41] I agree with the Applicant that the police cannot orchestrate exigent circumstances by creating the requisite urgency through a preplanned course of conduct: see R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per LaForest J. (in dissent), at paras. 53, 74-85; R. v. Phoummasak, 2016 ONCA 46.
[42] However, the flight of the suspects into the home was hardly orchestrated by the police. The police are not expected to anticipate every eventuality in effecting an arrest. This is not a case in which the police, through a “planned and calculated procedure”, created an artificial situation of urgency: R. v. Silveira, at para. 85.
[43] In my view, the entry into the home and search for persons was also lawful.
Should the Evidence be excluded under [Section 24(2)](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#sec24subsec2_smooth) 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)?
[44] The Supreme Court elucidated the three-branch formulation of the s. 24(2) analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. In Grant at para. 71, the Court summarized the framework to apply:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[45] In this case, even if there was a breach, I am not satisfied that the evidence seized should be excluded under s. 24(2) of the Charter.
[46] The alleged Charter-infringing conduct was not egregious. The police did not act in bad faith. The investigation was fluid and dynamic and the fact that a firearm was involved heightened the urgency of the situation.
[47] While the police entered to secure the residence because they believed at least one other suspect had entered the home, their entry was minimally intrusive. The officers did not search for evidence and acted diligently in applying for a warrant before seizing the firearm that had been observed in plain view.
[48] As for the third branch of the Grant test, the evidence seized is crucial to the Crown’s case. This factor favors inclusion.
[49] In my view, considering all the circumstances, admission of the evidence would not bring the administration of justice into disrepute.
[50] The application is dismissed.
Justice C.F. de Sa
Released: November 2, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MYLES ROBINSON
Defendant/Applicant
REASONS FOR DECISION
Justice C.F. de Sa
Released: November 2, 2021