COURT FILE NO.: 33-21
DATE: 20211110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MAROL ANGOU
Counsel
Marcia Hilliard, for the Crown/Respondent
Carolynn Conron, for the Defendant/Applicant
HEARD: September 8, 15, 2021
TRANQUILLI J.
REASONS ON SECTION 8 CHARTER APPLICATION
[1] Two masked assailants burst into Erin Mullins’ apartment on King Edward Avenue in London on the afternoon of March 26, 2020. They shot and wounded her boyfriend Marol Angou and another man.
[2] Police and EMS immediately responded to Ms. Mullins’ 911 call. A police officer attended on Mr. Angou in the apartment and saw illicit drugs on a nearby table. The officer then spoke with Ms. Mullins. He asked if she thought police would find drugs in her apartment. Ms. Mullins responded, “possibly”. He did not tell her that he had seen drugs in the bedroom. He asked Ms. Mullins if she would consent to a search of her apartment.
[3] Miss Mullins signed a “Consent to Search” form filled out by the officer to assist in an investigation of “the shooting”. This form advises the person they have the right to refuse to consent to the search, the right to consult counsel without delay and that any item seized could be used as evidence them.
[4] The search of her apartment led to the seizure of cellphones, drugs, drug paraphernalia and cash. As a result, Mr. Angou is now charged with possession of fentanyl, methamphetamine, hydromorphone and cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. (Ms. Mullins was also charged with similar trafficking offences; however, those charges were disposed of before the hearing of this application.)
[5] Although Ms. Mullins signed the Consent to Search, she now claims her waiver of her s. 8 Charter right against unreasonable search and seizure was neither informed nor voluntary.
[6] Mr. Angou therefore brings this application for an order pursuant to s. 24(2) of the Charter excluding all evidence seized on that search.
[7] At issue is whether Mr. Angou’s s. 8 Charter rights were irredeemably breached through the search of Ms. Mullins’ apartment. The focus of the inquiry turns on whether Ms. Mullins’ waiver of her s. 8 Charter rights was voluntary and informed. If her consent is invalid, the question is then whether the admission of the evidence would bring the administration of justice into disrepute.
[8] The application was heard over the course of two days. The parties relied upon testimony of police officers from the preliminary hearing, amplified by testimony from two police officers and a detective at the hearing of this application. Ms. Mullins filed an affidavit and was also examined at the hearing. The applicant Mr. Angou did not testify.
Background
[9] On March 26, 2020 at 2:46 pm, Erin Mullins called 911 to report a double shooting inside her apartment. Multiple officers were dispatched to the address to secure the crime scene, begin the investigation and to attempt to find the assailants.
[10] Sergeant Gary Bezaire found Mr. Angou on a bedroom floor in the apartment with gunshot wounds. The officer noticed a cellphone on the bed directly next to Mr. Angou. The officer eventually put the phone into “airplane mode” to guard against remote wiping of the device. Sergeant Bezaire also noticed a blue powdered substance in a small plastic bag on a nearby nightstand.
[11] Mr. Angou and his friend were taken by EMS to hospital for treatment. Thankfully, their gunshot injuries were not life-threatening.
[12] Sergeant Bezaire then spoke with Ms. Mullins outside the apartment building. He recalled she was visibly shaken and upset from the violent incident and worried for Mr. Angou’s welfare. Ms. Mullins advised that she rented the apartment and that another woman, Ms. Sandra Hamblin, was staying with her. She also stated that Mr. Angou and his friend did not live at the apartment.
[13] Sergeant Bezaire asked Ms. Mullins if police would find drugs in her apartment. Ms. Mullins responded “possibly”.
[14] At approximately 3:30 pm, Sergeant Bezaire asked Ms. Mullins if she would consent to a search of her apartment. He presented her with a “Consent to Search” form that he completed for her review and signature. The form stated the search was for the purpose of investigating “the shooting” of Mr. Angou and his friend. Officer Bezaire testified that although he saw drugs in the apartment, his investigative focus was “the shooting”, hence his use of those terms on the form. Sergeant Bezaire testified he did not caution Ms. Mullins and did not inform her of her rights to counsel at the time as he considered her to be a witness.
[15] The form advised Ms. Mullins she had the right to seek legal counsel, the right to refuse consent and that any seized item could be used as evidence against her. Sergeant Bezaire had no notes or specific recollection of advising Ms. Mullins of these issues; however, contended he always reviews these matters with an individual on a line-by-line basis. The officer also obtained the same Consent to Search from Ms. Mullins’ friend, Ms. Hamblin, as she had been staying at Ms. Mullins’ apartment.
[16] Ms. Mullins was then taken to the police station where she was interviewed by Detective Micah Bourdeau as a witness to the shooting. He interviewed Ms. Mullins between 3:50 pm and 5:40 pm. The interview was video-recorded and viewed in court along with a synopsis of her statement. Detective Bourdeau told Ms. Mullins she was there of her own free will and could leave at any time. He asked Ms. Mullins to explain what had happened in as much detail as she could. Ms. Mullins told the detective the police were going to search her house and that the police would probably find drugs. Detective Bourdeau immediately cautioned her that she could be charged under the Controlled Drugs and Substances Act. He read her rights to counsel. She acknowledged she understood. She then told the detective she had already signed a “search warrant” and acknowledged she had reviewed it. She declined to review it again. She agreed to sign an additional consent for a search of her cell phone; however, she reset her phone to remove text messages before handing it over to the detective. The bulk of her interview focused on whether she recognized the assailants and knew of any reasons for the home invasion.
[17] At approximately 5:31 pm, police entered Ms. Mullins’ apartment to search for cartridge casings, bullets, drugs and cellphones. Among other things, police seized quantities of fentanyl, hydromorphone, crystal methamphetamine, cocaine, crack cocaine, dime bags, a digital scale and $3,905 in Canadian currency.
[18] Ms. Mullins has now sworn an affidavit in support of Mr. Angou’s application, the effect of which claims her consent to the search was neither informed nor voluntary. She states she was experiencing extreme stress at the time she spoke with the police officer and that he did not offer medical assistance. She agrees she signed the form but claims the officer did not explain her rights and warn her that the search could lead to charges beyond the shooting itself. Had she been aware of her rights, her potential jeopardy and the purpose of the search she would have asked to speak with counsel and would not have provided her consent.
Positions of the Parties
[19] The applicant submits Ms. Mullins’ consent to the search of her apartment was neither informed nor voluntary. Sergeant Bezaire failed to consider Ms. Mullins’ medical vulnerability and distress at the time he secured her apparent consent. His testimony that he reviewed the form with Ms. Mullins is unreliable and should be discredited. He unfairly failed to tell her he saw drugs in her apartment. He compounded this omission in his completion of the consent form. He misled her to understand the investigation was only for “the shooting” when he already knew there were controlled substances in her apartment. At most, she consented to a search for evidence in connection with the shooting but not for evidence in connection with drug possession and trafficking. Her waiver of her s. 8 Charter right to be secure against unreasonable search and seizure was therefore invalid.
[20] The respondent Crown acknowledges it has the onus to justify the warrantless search on a balance of probabilities. The Crown maintains Ms. Mullins’ consent justified the search and that her waiver of her s. 8 Charter rights was informed and voluntary. The officer’s evidence that he would have reviewed the details of the consent form with Ms. Mullins as a matter of routine practice should be accepted. The Crown candidly agreed the officer could have been more thorough in documenting Ms. Mullins’ consent and that his description of the purpose of the investigation could have been worded with more precision. However, Ms. Mullins’ bald assertions that she was not told of her rights and that she was ignorant of her potential jeopardy in the search do not withstand scrutiny when one considers her interview with the detective shortly after she gave her consent to the search. The totality of the circumstances demonstrates Ms. Mullins was advised of her rights before she signed the form and that she knew a search would lead to the discovery of controlled substances in her apartment which would put her in potential jeopardy.
Preliminary Issues
[21] The Charter guarantees everyone has the right to be secure against search and seizure. However, a valid consent acts as a waiver of a person’s s. 8 Charter rights. With valid consent, there is no unreasonable search and seizure within the meaning of the Charter, even though the person would enjoy a reasonable expectation of privacy in the property seized by the police: R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, R. v. Wills, 1992 2780 (ON CA).
[22] There are two aspects to the analysis for which there appeared to be no dispute: (i) Did Mr. Angou have a privacy interest; and (ii) Was Mr. Angou’s consent to search required?
(i) Did Mr. Angou have a privacy interest?
[23] The Crown concedes Mr. Angou had a limited privacy interest in the apartment, giving rise to his standing to raise a s. 8 Charter right. Although he did not reside at the address, there was some evidence the applicant was nevertheless an occasional guest of Ms. Mullins given his presence in her apartment when the police arrived after the 911 call, and the quantity of male clothing and toiletries found in her apartment.
[24] The Crown’s acknowledgement as to the applicant’s limited privacy interest is consistent with the evidence and the relevant factors identified in R. v. Cole, 2012 SCC 53 and R. v. Edwards, [1996] SCR 128. I therefore proceed with this analysis on the finding Mr. Angou had a limited privacy interest in respect of Ms. Mullins’ residence. The applicant did not submit any evidence or make argument that he had a higher interest than that.
(ii) Was Mr. Angou’s consent to search required?
[25] In their written submissions, the parties raised whether Mr. Angou’s consent was also required to authorize the search of Ms. Mullins’ apartment. However, this was not pursued in oral argument. In particular, the applicant’s acknowledged in closing submissions that Ms. Mullins had the authority to consent to the search of her apartment.
[26] In any event, I am satisfied on the evidence that Mr. Angou’s consent to search was not required, consistent with the factors enumerated in R. v. Sangster, 2021 ONCA 21. This is also consistent with the applicant’s limited privacy interest in the apartment.
The Issues
[27] The focused issues for determination on this application are:
Did the police obtain a valid consent to search from Ms. Mullins; and
If there was a breach of the applicant’s s. 8 Charter rights, should the seized evidence be excluded under s. 24(2) of the Charter?
[28] These questions require assessment of certain witnesses’ credibility, which I shall now address before turning to the analysis of these questions.
Credibility
Ms. Mullins
[29] Ms. Mullins was the principal witness in this application. She filed an affidavit which acknowledged she had signed the Consent to Search, but categorically claimed she had not been informed of her rights before she signed the form. She was also in distress when she signed the form and was not offered medical assistance before giving her consent. She did not know of her potential legal jeopardy and would have asked to consult with counsel if she had been told of this option.
[30] She testified she would never forget the day as her life was ruined that day. However, her certainty as to the events that followed the shooting quickly dissolved on cross-examination. She remembered standing outside the apartment building with a police officer and signing the consent. She did not “believe” the police officer reviewed it with her and claimed the officer would be lying if he says he did so. But she acknowledged she did not remember the exchange at all.
[31] She did not remember any of interview with the detective and then contradicted her earlier statement and explained she did not remember much of the day at all. She watched the material portions of her interview with Detective Bourdeau and agreed she had no reason to challenge the accuracy of her statements to the detective. Those statements were at odds with her affidavit claims that the consent was not reviewed with her.
[32] I cannot accept Ms. Mullins’ formulaic affidavit statements about the circumstances of her consent to the search. While I can accept she will never forget the trauma of the shooting itself, her affidavit statements were readily shown to be unreliable on cross examination. Her statement to the detective was given within hours of the events and when Ms. Mullins would have better recall of the circumstances. I will therefore consider this application without regard to her affidavit statement where it conflicts with her statements to Detective Bourdeau.
Sergeant Bezaire
[33] Sergeant Bezaire had general memory of the incident but little recall of specific interactions with people apart from what was in his notes. Those notes were apparently deficient as it related to his consent to search discussion with Ms. Mullins.
[34] That said, the officer was straightforward in his evidence about this shortcoming and explained his routine practice for informed consent on a search were to review the material elements “line by line”. He did not avoid questions as to his apparent oversights or shortfalls in activating the investigation and consistently explained that his focus was to take steps to investigate “the shooting”. I find his testimony to be credible and reliable as it relates to the issues on this application. There were no internal inconsistencies in his testimony or evidence suggesting he was attempting to concoct a hindsight justification for his actions. Moreover, his insistence that he reviewed the form with Ms. Mullins is consistent with her own statements to Detective Bourdeau a short time later.
1. Did the police obtain a valid consent to search from Ms. Mullins?
[35] The Crown must prove that Ms. Mullins’ consent was informed and voluntary on a balance of probabilities. The principles relevant to determining whether a waiver of a constitutional right is valid are well-settled: R v. Wills, supra. The Consent to Search form satisfies these core requirements. The Consent to Search form advised her the search was to assist in an investigation of the shooting and that the police were authorized to enter her apartment to conduct the search. In signing the form, she acknowledged she had the right to consult with counsel without delay, that any item seized may be used as evidence against her, that no promise, threat or inducement of any kind was made to get her consent, and that she understood she could refuse and/or revoke her consent to search at any time.
[36] However, the mere fact that she signed the form does not necessarily demonstrate her consent was substantively informed and voluntary. The issue comes down to whether I accept Sergeant Bezaire reviewed these aspects of the form with Ms. Mullins.
[37] The applicant contends Ms. Mullins was detained without being advised of that fact and without being cautioned and advised of her rights to counsel, without being given an opportunity to calm down and without providing her with the proper informational foundation on which she could validly waive her s. 8 Charter rights.
[38] I do not accept that Ms. Mullins was psychologically “detained” by Sergeant Bezaire at the time he asked for her consent to the search. He was unshaken in his testimony that he interviewed her as a witness to the shooting and not as a suspect for drug trafficking offences. Sergeant Bezaire acknowledged he did not think he told Ms. Mullins she was free to leave, only that she could not go back into the apartment as it was a crime scene. However, there was nothing in Ms. Mullins’ evidence to suggest she felt coerced into remaining at the crime scene or in speaking with the police officer, who was there to investigate unfolding events in response to her 911 call. Ms. Mullins herself highlighted her interest in wanting to assist in the investigation of who broke into her apartment and shot her boyfriend. To the extent there was any “detention”, this arguably did not crystalize until she was placed in a police cruiser to be taken to the police station to be interviewed. By that time, she had already given her consent to the search.
[39] The applicant relied on R. v. Clarkson, 1986 61 (SCC), [1986] 1 SCR 383 as authority for the proposition that Ms. Mullins should not have been asked for her consent until she was medically cleared. That case pertained to purported waiver of a s.10(b) right by an extremely intoxicated person. In contrast, I find there was no reason for the police to have been cued to seek medical assistance for Ms. Mullins before asking her for her consent to search the apartment. Sergeant Bezaire acknowledged Ms. Mullins was visibly upset and emotional from the incident when he met with her. However, beyond being upset, there was no evidence from Ms. Mullins that even suggested she was disoriented or incapacitated to the point of putting police on notice she needed medical attention. In testimony, she acknowledged using crystal methamphetamine the night before but stated she was unaffected by the next afternoon when the shooting occurred. In any event, I am satisfied Ms. Mullins had the necessary “awareness of the consequences” when she consented to the search. Her interview with the detective shortly after she provided her consent to officer Bezaire demonstrates she was oriented and aware of her circumstances. Unlike Clarkson, supra, there is no evidence of incapacity beyond understandable emotional upset and stress about the shooting and the investigation that would follow. Although she became confrontational and combative towards the end of the interview, there was no indication of incapacity or a lack of awareness of her circumstances. She was largely responsive to questions, remained calm and was able to navigate her cellphone and respond to texts throughout the interview.
[40] I agree with the Crown’s concession that Sergeant Bezaire should have been more thorough in documenting his consent discussion with Ms. Mullins and would have been well-advised to tell her he saw what appeared to be drugs in the apartment. However, the officer was unshaken in his testimony that he reviewed the consent with her line by line as a matter of routine practice. His evidence is also consistent with the totality of the evidence as to Ms. Mullins’ interactions with police that day.
[41] Ms. Mullins’ bald contention that she was not told of her rights and was unaware of the nature of the search and its potential consequences cannot stand in the face of the video statement she adopted at the hearing of this application. Her demeanour and statements during that interview are not indicative of someone who felt she had “no choice”, as argued by the applicant. The detective told the applicant she was free to go and that the door was unlocked. She volunteered to the detective that police were going to search her house and they were probably going to find some drugs. The detective then cautioned her she might be charged under the Controlled Drugs and Substances Act. She stated she understood and that she “already knows that’s going to happen.” The detective advised her of her Charter rights. She repeatedly confirmed and demonstrated her understanding of her rights. When the detective brought out a blank Consent to Search form, Ms. Mullins told him she had “already done a search warrant”, signed and reviewed it.
[42] In all the circumstances, I find that Sergeant Bezaire reviewed the material elements of the Consent to Search form with Ms. Mullins.
[43] The argument that the focus of her consent was for the purpose of “the shooting” is inconsequential in this analysis. The drugs were out in plain view. While it may have been preferable for the officer to have told Ms. Mullins what he saw in the bedroom, he did ask her if drugs would be found and she gave an equivocal answer. The consent form clearly advised of the potential that anything seized in the search could be used as evidence against her. Her statements to the detective shortly after she signed the consent shows she was alive to that risk.
[44] The applicant contends the purpose of the search was misrepresented to Ms. Mullins and the police intended to search for drugs from the outset. He relies on the instructions given to the officers who executed the search. However, this overlooks the fact that the search did not take place until 5:30 pm, after the detective’s interview of Ms. Mullins started. She told the detective that drugs would be found in her apartment. The interview then moved to exploring a possible connection between the shooting and drugs.
[45] The Crown has satisfied me on a balance of probabilities that Ms. Mullins provided a voluntary and informed consent to the search of her apartment. Ms. Mullins’ consent was not obtained in breach of her s. 8 Charter right to be secure against unreasonable search and seizure.
[46] If am incorrect in this conclusion, I will next address whether the evidence is nevertheless admissible pursuant to s. 24(2) of the Charter; however, before turning to that analysis I will first address the Crown’s alternative argument as to Sergeant Bezaire’s handling of the cellphone. The Crown argued that if the consent was not informed and voluntary, that the cellphone evidence is nevertheless admissible. I accept the Crown’s submission that the cellphone evidence would remain admissible as the officer seized it in exigent circumstances pursuant s. 487.11 of the Criminal Code. The officer saw the cellphone, in plain view near the applicant. His seizure of the cellphone was limited to placing the device into “airplane mode”. I accept his testimony that he did this out of concern that the data could be remotely wiped and that there was reason to believe the assailants were known to Mr. Angou. I did not hear him challenged on this point. The data was not examined until a search warrant was obtained.
2. If there was a breach of the applicant’s s. 8 Charter rights, should the seized evidence be excluded under s. 24(2) of the Charter?
[47] If I am mistaken in these findings and if Ms. Mullins waiver of her s. 8 Charter right was neither voluntary nor informed, the issue is then whether the evidence ought to be excluded. This involves a consideration and balancing of the three factors set out in R. v. Grant, 2009 SCC 32.
(i) The Seriousness of the Charter-Infringing State Conduct;
[48] The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the law: Grant, supra at para. 72.
[49] The applicant submits that the conduct of Sergeant Bezaire amounted to bad faith from which the court ought to distance itself. The officer knew illegal drugs were in the apartment and failed to tell Ms. Mullins of this when he secured her consent to an investigation of “the shooting”. He demonstrated his ignorance of the Charter meaning of “detention” in his testimony when he claimed a detention did not arise until a person was arrested. He psychologically detained her and did not tell her she was free to leave. He could have simply secured the scene and applied for a search warrant. This ignorance and sloppy police work demonstrated by an officer with his years of experience cannot be condoned. The psychological detention continued with her questioning at the police station. Detective Bourdeau’s decision to caution and review her rights came too late to rehabilitate the sergeant’s omissions. Detective Bourdeau may have told Ms. Mullins she was free to leave; however, he was sitting between the applicant and the door and carried on the interview for almost an hour after she first asked if the interview was over.
[50] The Crown submits that any Charter-infringing conduct was not serious or was at the low end of the spectrum in the circumstances. While one would prefer Sergeant Bezaire to have been more thorough in his documentation of his consent discussion with Ms. Mullins, his steps show he was cognizant of the need to address Charter interests during the investigation. In addition to obtaining her signed consent, he also took the step of obtaining the signed consent of Ms. Hamblin, who Ms. Mullins advised had been staying with her.
[51] I acknowledge the officer’s explanation that his focus at the time was on the shooting, as opposed to also possibly including drugs, seems curious. However, I am mindful to consider his actions in the circumstances at that time and not with the benefit of hindsight. The impugned conduct arises from the initial 911 response to a report of a violent gun crime in midday at an apartment building in a residential neighbourhood with two people wounded and the unknown assailants at large. It was an unfolding and evolving investigation. Ms. Mullins’ equivocal response to the officer’s question as to whether drugs would be found in the apartment arguably foreclosed further discussion at that point.
[52] The applicant’s argument as to the impact of Ms. Mullins’ interview at the police station adds little to this analysis. The submissions were to the effect that the detective’s conduct of the interview amounted to an unreasonable detention and viewed cumulatively, adds to the seriousness of the Charter-infringing conduct. Even if I were to find she was unreasonably “detained” during the detective’s interview, this arose after she had consented to the search. The argument amounts to boot-strapping that concern to the central issue of Ms. Mullins’ consent that occurred before the interview.
[53] While the police conduct was not perfect, I find it falls at the low end of the spectrum. This step of the analysis favours inclusion.
(ii) The Seriousness of the Breach on the Charter-Protected Interests
[54] This question calls for an evaluation of the extent to which the breach undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. One looks to the interests engaged by the infringed right and the degree to which the violation impacted on those interests: Grant, supra at paras. 76-77.
[55] The applicant submits a citizen enjoys a high degree of privacy in one’s home, such that an illegal search will be seen as more serious at this stage of the analysis. The Crown submits the applicant had a low expectation of privacy in the residence as he was no more than an occasional guest. The impact of the state intrusion on the applicant was therefore low.
[56] As previously noted, the applicant did not refer to any evidence that established he resided in the apartment. His privacy interest arises from the personal items kept in Ms. Mullins’ apartment and that he was an occasional guest in her home. I find that this lessens the impact of the state intrusion as submitted by the Crown. This step of the analysis also favours inclusion.
3. Would admission of the evidence undermine public confidence in the administration of justice?
[57] This third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The long-term repute of the justice system is the focus of s. 24(2): Grant, supra, at paras. 79-84.
[58] The applicant acknowledges the impugned evidence is relevant and reliable and that its exclusion may undermine the truth-seeking function of the justice system. However, he contends this is a situation where the court should be alive to the long-term reputation of the administration of justice, particularly where the penal stakes are high.
[59] The Crown argues there is a strong societal interest in adjudicating this case on its merits. The controlled substances are dangerous and cause serious harm in the community.
[60] The evidence is real, reliable, and not derivative. Excluding the evidence would end the prosecution. There is a strong societal interest in seeing this case determined on its merits. This factor favours inclusion of the evidence: R. v. McGuffie, 2016 ONCA 365 at para. 62.
[61] The court must now balance these factors to decide, having regard to all the circumstances, whether admission of the evidence would bring the administration of justice into disrepute. In practical terms, this becomes important when one, but not both of the first two inquiries pushes strongly toward the exclusion of evidence: McGuffie, supra at para. 63
[62] All three factors tend to favour inclusion. The applicant had a limited privacy interest in the residence, the police conduct was at the low end of the seriousness spectrum and the truth-seeking function of the criminal trial process would be better served by its admission. On balance, I find that admission of the evidence would not bring the administration of justice into disrepute.
[63] I therefore find the evidence is not excluded by s. 24(2) of the Charter.
[64] The application is dismissed
Justice K. Tranquilli
Released: November 10, 2021
COURT FILE NO.: 33-21
DATE: 20211110
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MAROL ANGOU
Defendant
REASONS FOR JUDGMENT
Tranquilli J.
Released: November 10, 2021