COURT FILE NO.: CR-19-0181-00
DATE: 2021-11-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. H. Bracken and Mr. R. Kozak, for the Crown
- and -
Jonathan Yellowhead
Mr. N. McCartney assisted by Brooke Rogers, for the Applicant
Applicant
HEARD: October 13-14, 2021, at Thunder Bay, Ontario
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 517(1) OF THE CRIMINAL CODE OF CANADA
Madam Justice H.M. Pierce
Reasons on Application to Exclude Evidence
Introduction
[1] The applicant, Jonathan Yellowhead, is charged with the offence of manslaughter on Braiden Jacob, contrary to s. 236 of the Criminal Code. He argues that his right to be free from unreasonable search or seizure, pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), was violated when the police seized his jogging pants from his father’s apartment without a search warrant. He therefore asks that the pants be excluded from evidence at trial, pursuant to s. 24(2) of the Charter.
[2] His application is supported by an affidavit sworn by his counsel’s legal assistant and the testimony of his father, Norman Yellowhead (“Mr. Yellowhead”).
[3] The Crown alleges that the victim’s blood was found on the applicant’s pants. The officer who seized the pants, Detective-Constable Toneguzzi, testified on behalf of the Crown. He was the sole Crown witness.
The Onus and Standard of Proof
[4] The burden of proof is on the applicant to prove a violation of his section 8 Charter rights on a balance of probabilities. If a Charter violation is proven, the applicant must show, on a balance of probabilities, that the evidence ought to be excluded pursuant to section 24(2) of the Charter.
[5] However, a warrantless search or seizure is presumed to be unlawful. It is therefore a prima facie violation of the applicant’s right to be secure against unreasonable search or seizure pursuant to section 8 of the Charter.
[6] The onus then shifts to the Crown seeking to justify a warrantless search, to establish, on a balance of probabilities, that the search and seizure were otherwise authorized by law. See: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 at p. 161 and R. v. D’Souza, 2016 ONSC 5855, [2016] O.J. No. 4995 (Sup. Ct.), paras. 27-29. Justifications may include exigent circumstances to preserve evidence or a valid consent to search.
Standing
[7] The first question is whether the applicant has standing to bring this application to exclude evidence. If he does not, the application must be dismissed.
[8] In R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at paras. 34 and 43, the Supreme Court of Canada held that in order to have standing to claim exclusion of evidence, the applicant must enjoy a “reasonable expectation of privacy” in the place searched. The burden is on the applicant to prove this on a balance of probabilities, on the totality of the circumstances. If an accused person can establish that he had a reasonable expectation of privacy, the court must consider whether the search was conducted in a reasonable manner. See Edwards, para. 45.
[9] At para. 45 of Edwards, the Supreme Court also set out the following non-exhaustive list of factors to be considered in assessing the totality of the circumstances when a court determines standing:
presence at the time of the search;
possession or control of the property or place searched;
ownership of the property or place;
historical use of the property or item;
the ability to regulate access, including the right to admit or exclude others from the place;
the existence of a subjective expectation of privacy; and
the objective reasonableness of the expectation.
[10] The court in D’Souza observed that section 8 is a right that protects persons, not places: para. 147.
Reasonable Expectation of Privacy
[11] The applicant’s father, Mr. Yellowhead is 64 years of age. He was born and raised in Eabametoong First Nation, a remote, fly-in reserve in Northwestern Ontario. Eabametoong is an Anishinaabe (Ojibway) community. It is also known by its English name, Fort Hope. This is where the applicant lives.
[12] Mr. Yellowhead described it as a community of about 1,000 residents where English and Anishinaabemowin (Ojibway) are spoken. Mr. Yellowhead is fluent in the Ojibway language, and will speak it in preference to English when conversing with members of his generation.
[13] Mr. Yellowhead testified that in addition to the residents living at Eabametoong, there are also approximately 1,300 – 1,500 band members who live off the reserve, many in Thunder Bay. He has brothers and sisters living in the city.
[14] Mr. Yellowhead also stated that it is common for residents of Eabametoong to visit Thunder Bay and stay with their families. They may come to access medical care, to celebrate Christmas, Thanksgiving or other holidays, or just to keep in touch.
[15] Defence counsel asked Mr. Yellowhead to describe how “home” is perceived in his culture. He answered that visitors from Eabametoong and from other communities are welcome in the homes of friends and relatives in Thunder Bay. He explained that his is a welcoming culture where people are taken in, fed, and cared for. Visitors makes themselves at home. He added that his aunt had taken him in and given him a home.
[16] In cross-examination, he elaborated, saying that his grandmother raised his family to be hospitable, to be generous in sharing what they had.
[17] Mr. Yellowhead testified candidly that he had been convicted of a charge of manslaughter in the death of a family member. He explained that his family and his cousin’s family were very close, that they shared homes and would eat and sleep in each other’s residences.
[18] When Mr. Yellowhead and his cousin were drinking one night, he pushed his cousin, and he fell against a stove. The impact burst an aneurism is his cousin’s brain, causing his death. Mr. Yellowhead was given a non-custodial sentence, a term of which is that he live away from his community for a period of five years. Thus, he came to Thunder Bay. He is active in his church.
[19] Mr. Yellowhead has four children and a stepson. Unfortunately, his oldest son was murdered in Thunder Bay.
[20] The applicant is his youngest son. Mr. Yellowhead described him affectionately as “his baby.” While he was growing up, the applicant lived with Mr. Yellowhead and his ex-wife, Sarah, at the family home in Eabametoong, together with his brother, James, and his sister, Carolyn.
[21] Mr. Yellowhead testified that he has a very good relationship with the applicant. He said that he and his son talked. Although he acknowledged that they had disagreements, he said they were always resolved by an apology from his son. When the applicant went missing in December 2018, Mr. Yellowhead searched for him. When he found him at a residence on Limbrick Street, he checked to make sure that he was not injured, and then brought him back to his apartment.
[22] He bought him clothes to wear at court before this application was heard.
[23] Mr. Yellowhead lives in a run-down apartment at 120A Bethune Street in Thunder Bay. At the time of these events, he estimated he had lived at Bethune Street for about two years.
[24] Mr. Yellowhead occupies one bedroom in the apartment; his son, James, and a partner have the other bedroom. The kitchen and living room form a common area. There are two keys for the apartment: Mr. Yellowhead has one and James the other. As James seldom leaves home, he is there to let the applicant in when he arrives. On one occasion, when James did not hear knocking, the applicant called Mr. Yellowhead to let him in.
[25] On some occasions, the applicant came to see Mr. Yellowhead and stayed at his home. Mr. Yellowhead stated, “He makes himself at home.” His daughter, Carolyn, also comes to the apartment.
[26] Sometimes, the applicant brings his three children to visit. If the applicant is alone, he sleeps in the living room; when his children are with him, Mr. Yellowhead gives them his bedroom. On occasion, the children also come with their mother.
[27] Mr. Yellowhead explained that his son, Jonathan, is welcome to live there anytime, even for a day; that his home is Jonathan’s home.
[28] Crown counsel compared the applicant’s visits to his father’s home with the visits of homeless people Mr. Yellowhead invites to have a meal at his apartment. Mr. Yellowhead disagreed, saying, “He is different because he is my son. He can come anytime.” He added, “He is of my body. He belongs to me.”
[29] Mr. Yellowhead testified that in December 2018, when the applicant was in Thunder Bay for counselling, he did not sleep at the apartment, but was there twice, each time for a couple of hours. At that time, the applicant slept at the home of his aunt, who, because she had a vehicle, was able to drive him to the airport for his return flight to Eabametoong. While at his father’s home, the applicant had meals, showered, and changed his clothes.
[30] Before December, the applicant stayed with Mr. Yellowhead two or three times, for as much as a week or two, over the course of a few years. His previous visit with Mr. Yellowhead occurred during the summer exhibition in August 2018. When the family was there, Mr. Yellowhead cooked for them. The applicant left his clothing and belongings there, as Mr. Yellowhead expressed it, “like a home.”
[31] The Crown submits that the applicant was no more than a visitor in his father’s home, like the boyfriend who occasionally stayed over in Edwards. The Crown argues that although the applicant occasionally visited his father, he lived in Fort Hope. Crown counsel noted that the applicant did not sleep at his father’s apartment in December 2018.
[32] The Crown points to the applicant not being a tenant, having no key to the premises, no bedroom, and no personal or storage space there as proof that he is only an “especially privileged guest.”
[33] Mr. Yellowhead disputed the Crown’s suggestion that the applicant was merely a visitor who lived elsewhere. He stated, “He did live with me sometimes. That’s how we say it in our language. You cannot break our tradition.” It is clear from Mr. Yellowhead’s response, that from the perspective of his culture and experience, the length of stay is not determinative of whether his son lived with him.
[34] Crown counsel’s submissions about whether she lives with her parents when returning to their home for a visit is not evidence of the applicant’s expectation of privacy. Her cultural and familial experiences are different; however, that does not invalidate the applicant’s experience in his father’s home, that gives rise to an expectation of privacy.
[35] The Crown also contends that police records showing the applicant’s last known address at 120A Bethune Street should be given no weight because there is no evidence about how that record was created and no evidence that Officer Toneguzzi knew of that record before seizing the clothing.
[36] With respect, I do not accept this submission. Officer Toneguzzi was named as file coordinator after the victim was reported missing. He was also an investigator. He testified that he did not know that Bethune Street was listed in police records as the applicant’s last known address and he did not recall how he got the information; however, he knew that Mr. Yellowhead, who lived at that address, was the applicant’s father.
[37] In the course of the investigation, Officer Toneguzzi was assigned to attend at 120A Bethune Street by Thunder Bay Police Services. This was not a choice of address discovered as a result of inquiries made.
[38] By then, the police believed they were dealing with a homicide in which the applicant was involved. Bethune Street was recorded in police records as the applicant’s last-known address. Officer Toneguzzi stated that he wanted every piece of clothing belonging to the applicant. That is one of the reasons he went to the residence as part of the police investigation.
[39] Officer Toneguzzi and his partner interviewed Mr. Yellowhead about the applicant. He was cooperative. During the interview, Mr. Yellowhead disclosed that the applicant’s jogging pants were at his residence. After the interview, they drove Mr. Yellowhead to his Bethune address. They returned within 25 minutes to seize the applicant’s jogging pants.
[40] The Crown also submits that there should be evidence from experts to establish Mr. Yellowhead’s lived experience of “home;” that it would be dangerous to hinge a ruling about the applicant’s standing on Mr. Yellowhead’s testimony about his family’s experience.
[41] I do not accept the Crown’s submission that there should be expert testimony about the applicant’s lived experience relative to his expectation of privacy. In my view, it is condescending to suggest that Mr. Yellowhead’s testimony about his family’s values is less worthy of belief than an expert who has not lived in his shoes.
[42] I conclude that the applicant’s lived experiences are likely framed by the values and culture of the family that raised him. Thus, the testimony of the applicant’s father allows the court to draw inferences about the applicant’s expectation of privacy, based on their relationship and manner of living.
[43] Nor do I accept the Crown’s position that the facts in the D’Souza case are distinguishable from the case at bar because Mr. D’Souza, who, like the applicant, was a young man, retained a bedroom in his parents’ home, while renting an apartment as a student in a different community.
[44] The Crown’s submission that the applicant had no bedroom and no private place within his father’s apartment ignores the humble nature of his father’s accommodation, shared with the applicant’s brother and his partner.
[45] In my view, differences in income and housing between the Yellowhead and D’Souza homes are not a basis for distinguishing reasonable expectations of privacy. If they were, constitutional protections would be available only to the rich, and not to the poor. The court must take care not to draw legal conclusions based solely on income or social status.
[46] Considering first the criteria for standing identified in Edwards, the applicant was not present at the time of the search. He did not own, possess, or control the apartment where the search took place. He did not regulate access to the apartment and did not have a key.
[47] Historically, the applicant did sometimes stay with his father and his brother at the apartment, sleeping on the couch when he came alone, or using his father’s bedroom when he came with his three children. He ate, showered, and changed his clothes there. He left clothing and belongings there. Police records listed the Bethune address as the applicant’s last known address.
[48] Did the applicant have a subjective expectation of privacy in his father’s apartment? In order to determine his subjective expectation, the court must consider the totality of the circumstances: Edwards, paras. 45 – 46. It is necessary not only to consider the manner in which he used the apartment, but also the familial and cultural experience that gave rise to his expectation of privacy, as expressed by his father, Mr. Yellowhead.
[49] If expectation of privacy guaranteed by the Charter is subjective, then, in a multi-cultural society, where housing may be crowded or unaffordable, the court ought to consider the lived experience of an applicant, as demonstrated by the evidence. It does not turn on the experiences of Crown counsel or the judge. It is not a function of having privacy within the family; rather it is the right to have privacy from the intrusions of the state.
[50] Mr. Yellowhead explained how, in his culture, and in his family where the applicant was raised, family members could expect to be welcomed in each other’s homes. He expressed the importance of hospitality in Anishinaabe culture and gave the example of living with his aunt from his own life experience. He also described how people from Eabametoong often came to stay with friends or relatives in Thunder Bay.
[51] Mr. Yellowhead discussed the way in which the applicant was welcomed at his own apartment, whether for short or long stays; with or without his children; to change his clothes, shower, and sleep; to come and go as he pleased; to leave his clothing and belongings there. In short, Mr. Yellowhead described how his son could and did treat his apartment as a safe harbour, where he would be unquestioningly accepted.
[52] This welcome was unconditional. It did not require him to call ahead, share expenses, or meet other expectations. It was grounded in a father’s love for his son. Mr. Yellowhead searched for his son when he was missing, checked him for injuries, and brought him home.
[53] In my view, the subjective expectation of privacy must be considered through the lens of a person’s lived experience. In this case, the totality of the circumstances to be considered includes the applicant’s family relationships and culture.
[54] I conclude that the applicant had a subjective expectation of privacy in his father’s Bethune Street apartment because he was raised in a culture that valued hospitality. His family believed that whatever they had should be shared, whether it was housing, food, love, or other necessities of life.
[55] The applicant demonstrated his understanding of these precepts by his continuing contacts with his father and brother at the Bethune residence, and by the way in which he used their apartment. He undertook activities there that one expects to be private: he undressed, showered, changed his clothes, talked to his father and brother, brought his children, ate and slept. He left his clothing and belongings there, trusting that they would be there when he returned.
[56] His parents and relatives taught him this in their homes and in their community.
[57] These may be mundane activities; however, within the family circle, privacy in daily living is not only a constitutional right, it is foundational to a person’s sense of security and well-being.
[57] Is the applicant’s expectation of privacy in his father’s apartment objectively reasonable? I conclude that, viewed through the totality of the evidence, including Jonathan Yellowhead’s cultural and familial experience, it is.
[58] This case is similar in some respects to R. v. D’Souza, in that Mr. D’Souza, also a young man, had an alternate residence but returned to the privacy and security of his parent’s home for overnight stays from time to time. In D’Souza, the applicant’s parents’ address was his permanent address for jury duty in the year before the search.
[59] As Mr. Yellowhead so eloquently stated, the difference between inviting a stranger in, compared to having his son live with him, even for a day, is bound up in the intimate relationship between parent and child.
[60] Mr. Yellowhead is protective of his son. His son recognized and responded to his father’s protection. Their relationship gave rise to the applicant’s reasonable expectation of privacy in his father’s home.
[61] Accordingly, I find that the applicant has standing to claim exclusion of evidence contrary to s. 8 of the Charter.
Reasonableness of the Search
[62] The law is settled that warrantless searches are presumptively unreasonable. Having concluded that the applicant had a reasonable expectation of privacy in his father’s home, the court must now consider whether the search was conducted reasonably. In Edwards, the court determined that the intrusion on the privacy rights of third parties is also a relevant consideration: para. 36.
[63] The Supreme Court noted at para. 37 of Edwards that the invasion of third party privacy rights is not determinative of the reasonableness of a search. However, it cited Justice Sopinka’s comments in R. v. Thompson, 1990 43 (SCC), [1990] 2 S.C.R. 1111, at para. 36 of Edwards to this effect:
In my view, the extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an “unreasonable” search or seizure. To hold otherwise would be to ignore the purpose of s. 8 of the Charter which is to restrain invasion of privacy within reasonable limits….
[64] In this case, the Crown submits that the warrantless search and seizure are justified on two grounds:
that exigent circumstances required an immediate seizure of the applicant’s pants; or alternatively,
that Mr. Yellowhead consented to the search.
Exigent Circumstances
[65] Were there exigent circumstances to justify a warrantless search and seizure?
[66] In the afternoon of December 9, 2018, Officer Toneguzzi and his partner arrived at Mr. Yellowhead’s door and asked him to come with them for an interview at the police station. Mr. Yellowhead complied. In cross-examination he stated that if he had refused, “They might have grabbed me anyway.”
[67] Officer Toneguzzi conducted an hour-long videotaped interview that was played during the application. He described Mr. Yellowhead as kind and cooperative.
[68] During the interview, Mr. Yellowhead stated that when he went to the Limbrick Street residence to look for the applicant, Craig Wabano (whom he did not know), said that he [i.e. Wabano] got rid of the applicant’s clothing; then Mr. Wabano chuckled.
[69] The respondent’s factum misstates Mr. Yellowhead’s comment during his interview. The factum reads, ”From this interview with Norman Yellowhead, police learn that the Applicant had already made efforts to hide evidence….” Mr. Yellowhead made no such statement. He simply repeated what Craig Wabano said he had done, indicating that he could not tell if Mr. Wabano was joking.
[70] While the tenor of the interview was generally cordial, there are points of tension. For example, Officer Toneguzzi questioned why Mr. Yellowhead would be so cooperative in agreeing to an interview without questioning what it was about.
[71] Officer Toneguzzi also suggested to Mr. Yellowhead that he was not being honest with him; that he was hiding something. Mr. Yellowhead replied, “I am trying to talk to you. Are you trying to put the blame on me?”
[72] Mr. Yellowhead testified that he felt like he was being accused and that it took him back to when he was charged.
[73] Mr. Yellowhead advised Officer Toneguzzi that he was not going to hide his son if he did something. He also advised him that he did not know if clothes had been hidden but that the applicant’s jogging pants were at his apartment.
[74] At the time of the interview, Officer Toneguzzi knew that the applicant had already returned to Fort Hope.
[75] Following the interview, Officer Toneguzzi and another officer drove Mr. Yellowhead back to his apartment. Officer Toneguzzi did not enter the apartment at this time and did not ask Mr. Yellowhead to turn over the applicant’s jogging pants. In cross-examination, Officer Toneguzzi explained that he did not seize the pants because he was concerned that he might need a search warrant and he wanted to consult with a senior officer. He said that he anticipated a Charter application.
[76] Upon his return to the police station, Officer Toneguzzi discussed the matter with Seargeant Biloski who had higher rank and more experience in the Criminal Investigation Division. Officer Toneguzzi commented, “I wanted him to convince me that I didn’t need a search warrant.”
[77] Following this discussion, Officer Toneguzzi returned to Mr. Yellowhead’s apartment and knocked on the door. When Mr. Yellowhead opened the door, Officer Toneguzzi walked into the living room to seize the pants. He stated that Mr. Yellowhead pointed to the pants. Using gloves, the officer seized them and put them in a paper bag.
[78] Officer Toneguzzi made no note of any discussion with Mr. Yellowhead advising him that he could refuse to turn over the pants and he did not recall any such discussion. Although there was another officer with him at the time, he did not record and could not recall the identity of that person.
[79] However, Mr. Yellowhead’s recollection of Officer Toneuzzi’s second arrival at his door is qualitatively different.
[80] About 30-40 minutes after he returned home following the interview, Officer Toneguzzi knocked on his door. Mr. Yellowhead opened it but did not invite the officer in. Officer Toneguzzi did not show him anything, he simply walked right through to the living room where he seized the jogging pants, put them in a bag and left without any conversation.
[81] Mr. Yellowhead was asked in examination-in-chief how he felt about the officer taking the pants. He replied, “It doesn’t feel so good.”
[82] The evidence shows that, at the time, the police did not consider there were exigent circumstances. This argument seems to be an after-the-fact justification to protect the search, rather than arising from any concern the police held at the time. In cross-examination, Officer Toneguzzi conceded that he was not concerned that Mr. Yellowhead would destroy evidence.
[83] Officer Toneguzzi had no recollection whether the phrase “hiding the evidence” came up in Mr. Yellowhead’s interview. He characterized Mr. Yellowhead as polite and cooperative.
[84] It was as a result of Mr. Yellowhead’s disclosure that the police learned that the applicant’s jogging pants were in the living room of his father’s residence, and that they had not been washed.
[85] The police were also aware when Mr. Yellowhead was interviewed that the applicant had departed for Fort Hope two days earlier. Thus, there was no imminent risk that the applicant would hide or destroy the evidence.
[86] The only mention of hiding clothing was made by Craig Wabano at the Limbrick Street residence where Mr. Yellowhead located his son. As Mr. Yellowhead pointed out, he did not know Mr. Wabano and could not tell whether he was joking. By the time the police interviewed Mr. Yellowhead, at least three days had passed since Mr. Wabano made this comment.
[87] The first time the police attended at Mr. Yellowhead’s apartment, they made no request for the applicant’s clothing. Although Officer Toneguzzi was aware of his emergency powers to enter and seize evidence at the first instance, he did not act on them.
[88] The police made no request for clothing when they drove Mr. Yellowhead home after interviewing him. By then they knew that the jogging pants were in the apartment. This was their second opportunity.
[89] Even had the police concluded that a search warrant was necessary, they took no steps to preserve evidence by “freezing” the apartment pending the arrival of a search warrant. No efforts to obtain a search warrant were made.
[90] I conclude that the evidence does not establish that there were exigent circumstances to proceed without a search warrant, and I so find.
Consent to Search
[91] Did Mr. Yellowhead consent to have his residence searched?
[92] In R. v. Wills, 7 O.R. (3d) 337, 1992 2780 (ON CA), Mr. Justice Doherty commented on the power imbalance between citizens and police officers when “requests” for assistance are made. These observations apply in this case. At para. 45, he stated,
The very nature of the policing function and the circumstances which often bring the police into contact with individuals introduce an element of authority, if not compulsion, into a request made by a police officer.
[93] While it is open to a citizen to waive his or her Charter rights, Justice Doherty pointed to the higher standard for accepting such waivers in the course of a police investigation. At para. 50, he observed:
The high waiver standard established in these cases is predicated on the need to ensure the fair treatment of individuals who come in contact with the police throughout the criminal process. That process includes the trial and the investigative stage. In fact, it is probably more important to insist on a high waiver standard in the investigative stage where there is no neutral judicial arbiter or structured setting to control the process, and sometimes no counsel to advise the individual of his or her rights.
[94] Finally, at para. 69 of Wills, Justice Doherty established criteria for acceptance of a waiver of constitutional rights. He stated:
In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
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 in the sense that the word is used in Goldman [citation omitted] and was 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 he or she was being asked to consent;
v. the giver of the consent was aware of his or her 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.
[95] As the tenant in the apartment, Mr. Yellowhead had authority to give consent. However, it is clear from the evidence that he was feeling the power imbalance that Justice Doherty described when citizens encounter police investigations. When the police first came to his apartment, Mr. Yellowhead expressed that he felt he had no option but to go with them to the police station for questioning. He said, “They might have grabbed me anyway.”
[96] During the interview, Mr. Yellowhead expressed that he felt like he was the one being investigated. When asked how he felt about Officer Toneguzzi taking the pants, he said, “It doesn’t feel so good.” The officer entered his home without being invited to do so. This is not the hallmark of a voluntary consent to search and seize property.
[97] Crown counsel argued that because Mr. Yellowhead had previously been charged with manslaughter, he was aware of his right to refuse to allow the police to search his home.
[98] This is pure speculation. There is no evidence that Mr. Yellowhead’s residence had previously been searched, let alone that he had been advised of his constitutional right to refuse a warrantless search. I find there is no evidence that Mr. Yellowhead was aware of his right to refuse the search and seizure based on his past experience.
[99] Crown counsel also argued that even if Officer Toneguzzi did not recall advising Mr. Yellowhead that he could refuse consent to search, a careful officer would do so.
[100] In this case, there is no evidence that the officer sought or received Mr. Yellowhead’s informed consent to search.
[101] Officer Toneguzzi knew that he needed a search warrant to enter and search Mr. Yellowhead’s apartment legally. He conceded that he had no note and no recollection of advising Mr. Yellowhead of his constitutional right to refuse the police entry to search the apartment in the absence of a search warrant.
[102] Mr. Yellowhead testified that there was no such conversation: the officer just entered without being invited to do so. He said there was no discussion about the potential consequences of the officer seizing the applicant’s jogging pants.
[103] Mr. Yellowhead is not a lawyer. He had no access to counsel before the search. I find there is no evidence that he was aware that a search of his home without a search warrant was presumptively unlawful. In my view, the Crown has not met its onus to show, on a balance of probabilities, that Mr. Yellowhead expressly or impliedly consented to the search of his apartment and the seizure of the applicant’s clothing. I also find that Mr. Yellowhead did not waive his constitutional rights to permit a warrantless search and seizure.
[104] I conclude that the warrantless search of Mr. Yellowhead’s home, and seizure of the applicant’s clothing, made in circumstances that were not exigent and without consent, was conducted unreasonably.
Exclusion of Evidence
[105] Section 24(1) of the Charter permits a person whose rights or freedoms, defined in the Charter, to apply to the court for a remedy.
[106] Subsection 24(2) of the Charter permits a court to exclude evidence if it concludes that the evidence was obtained in a manner that infringed or denied the rights of the applicant and the admission of such evidence would bring the administration of justice into disrepute.
[107] In R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, the Supreme Court of Canada developed an analytical framework for courts to determine when evidence should be excluded when Charter rights are breached.
[108] The first consideration is the seriousness of the Charter-infringing state conduct. At para. 72 of Grant, the court stated:
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. 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 rule of law.
[109] The Crown submits that a Grant analysis favours admission of the seized evidence because the police conduct was not serious. It contends that the police acted in good faith, to preserve evidence, without displaying ignorance of Charter obligations or willfully disregarding the applicant’s rights.
[110] I do not agree. I have already determined that there were no exigent circumstances justifying police entry into the dwelling to search for and seize property without a warrant. There is no proof that evidence was at risk of being hidden or destroyed.
[111] Officer Toneguzzi knew that he needed a search warrant to enter Mr. Yellowhead’s home, one of the most protected spaces in Canadian law. He made no attempts to obtain one.
[112] He knew that failing to obtain a search warrant might jeopardize the admissibility of the evidence he wished to seize. He knew that the applicant’s clothing was in the apartment. He also knew that the applicant was no longer in the city, so there was no particular urgency. He was aware that he was investigating a homicide.
[113] Mr. Yellowhead had been helpful and cooperative with the police investigation. Nevertheless, Officer Toneguzzi recklessly proceeded without a warrant, with the blessing of another police officer. He counted on Mr. Yellowhead not refusing him entry. He did nothing to apprise Mr. Yellowhead of his right to refuse the police entry. This conduct does not qualify as good faith. The breach of the applicant’s Charter rights was very serious.
[114] In addition, the warrantless entry affected the rights of James Yellowhead and his partner to privacy in their home. James and his partner also lived in the apartment. They are examples of third party citizens whose rights to privacy are constitutionally relevant: See: Edwards, para. 36.
[115] Officer Toneguzzi’s entry into Mr. Yellowhead’s home was not only contrary to law, it was disrespectful of Mr. Yellowhead’s right to the sanctity of his home without intrusion by the state.
[116] The Court takes judicial notice of local conditions in this case. Of particular relevance is the tension between Indigenous citizens of Thunder Bay and Thunder Bay Police Services in the execution of their duties. The Indigenous community believes that police actions frequently reflect systemic racism. Indigenous citizens do not trust the police to respect their rights and to act in their best interests.
[117] The unlawful entry was damaging to the Indigenous community in Thunder Bay for whom racism is a widespread experience.
[118] This perception, arising from the lived experiences of Indigenous citizens in Thunder Bay, will never be altered if the police disregard the constitutional rights of Indigenous persons like Mr. Yellowhead and his family. Admitting evidence seized in these circumstances would bring the administration of justice into disrepute.
[119] It is difficult to believe that the police would be emboldened to walk into a dwelling in a wealthier, non-Indigenous neighbourhood without a search warrant. Mr. Yellowhead and his family need not live with a lower expectation of privacy in their home because they are Indigenous and their home is modest.
[120] In this case, the police knowingly violated the sanctity of a private home by entering without a search warrant. The Court is not prepared to condone the conduct of the police in these circumstances. I conclude that the seriousness of the breach of Charter rights favours exclusion of the evidence.
[121] The second consideration is the impact of the conduct on the Charter rights of the accused. At para. 76 of Grant, the court observed:
This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[122] The Crown concedes that at para. 113 of Grant, the court held that an illegal search of a dwelling house is among the most serious impacts of an accused’s Charter-protected interests.
[123] In this case, a police officer entered and searched the home of the applicant’s father and brother, in which the applicant had a reasonable expectation of privacy. The officer did so in circumstances that cannot otherwise be justified. In doing so, he seized his clothing for use at trial. Even though this was not the principal residence of the applicant, his right to privacy as against the state is a core Charter protection.
[124] I conclude that the impact of this search and seizure on the applicant’s Charter-protected rights favours exclusion of the evidence.
[125] Finally, the court must weigh society’s interests in an adjudication of the case on the merits. At para. 79 of Grant, the Supreme Court explained:
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by the admission of evidence, or by its exclusion….
[126] The Crown submits that there is a strong societal interest in the case being adjudicated on its merits. It argues that the clothing is reliable, non-bodily physical evidence that has revealed DNA that cannot be excluded as belonging to the victim, and that admission of such evidence advances the truth-seeking function of criminal trials. It contends that the charge against the accused, manslaughter, is very serious, and that the clothing seized is critical to the Crown’s case.
[127] The defence counters that the Crown’s submission is of limited weight since, the presence of DNA on the seized clothing will not conclusively establish the applicant’s guilt. It is merely one piece of evidence that, if excluded, is not fatal to the prosecution. The defence submits that the case will still proceed on its merits.
[128] At para. 82 of Grant, the court reflected:
The fact that evidence obtained in breach of the Charter may facilitate the discovery of truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system” [citation omitted].
[129] In my view, the third branch of the test in Grant favours exclusion of the evidence in this case. When the police officer entered Mr. Yellowhead’s residence, he knew that the applicant’s jogging pants were there. He intended to seize them for the purpose of forensic testing to determine whether there was evidence of contact with the victim. The breach of the right to privacy was intentionally done.
[130] To admit the evidence, despite the egregious conduct of the police in proceeding with a warrantless search of a residence, undermines the constitutional right of every citizen to privacy in his or her home, and by extension, the rights of their children. It gives the police a free pass.
[131] In my view, the balance of societal interests described in the third branch of the Grant analysis also favours exclusion of the evidence seized.
Conclusion
[132] For the reasons given, the jogging pants belonging to the applicant, seized by Detective-Constable Toneguzzi on December 9, 2018, at the residence of Mr. Norman Yellowhead, 120A Bethune Street, Thunder Bay, shall be excluded from evidence at trial.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: November 10, 2021
COURT FILE NO.: CR-19-0181-00
DATE: 2021-11-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
Johnathan Yellowhead
Applicant
REASONS ON APPLICATION TO EXCLUDE EVIDENCE
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 517(1) OF THE CRIMINAL CODE OF CANADA
Pierce J.
Released: November 10, 2021
/lvp