SUPERIOR COURT OF JUSTICE – ONTARIO

Court File and Parties

COURT FILE NO.: CR-235-21

DATE: 20220830

RE: Her Majesty the Queen, Respondent

AND

Wayne Faraj and Chelsey Rounding, Applicants

BEFORE: Justice Spencer Nicholson

COUNSEL: J. Hardy for the Applicant, Chelsey Rounding

A. Prevost for the Applicant, Wayne Faraj

M. Gardiner for the Respondent, Crown

HEARD: April 4 and 14, 2022

REASONS ON CHARTER APPLICATION

NICHOLSON J.:

[1] The Applicant, Chelsey Rounding, is charged with several firearm offences pursuant to the Criminal Code of Canada. The handgun in question was found in her purse by police as she was exiting an apartment where her co-accused, Wayne Faraj, resided. The police were awaiting a warrant to search the apartment. Ms. Rounding brings this application to exclude from evidence the handgun under s.24(2) of the Charter based on breaches of her s.8 and 9 rights.

[2] Mr. Faraj has brought an application to exclude the evidence found in Ms. Rounding’s purse as against him. His counsel initially participated for some portion of the hearing. I then questioned whether Mr. Faraj had standing to assert a right to privacy in Ms. Rounding’s purse. Ultimately, the Crown and Mr. Faraj agreed that if the evidence in question was excluded, then it would be excluded in respect of both Ms. Rounding and Mr. Faraj. This ended Mr. Faraj’s participation in the hearing.

[3] The court heard viva voce evidence on the application from three police officers, Detective Constable Fraser Smith, Sergeant John Dance and Constable Brent Thomas. The parties also agreed that the written material that was submitted on the application would be part of the evidence for my consideration.

Background:

[4] At approximately 7:00 am on May 2, 2020, a gun was discharged outside a home in a residential neighbourhood in downtown London. Several witnesses called 911 to report several gunshots and members of the London Police Services were dispatched to investigate. Nine cartridge cases were recovered at the scene. Seven bullet holes were discovered in the front door and windows of the house where the shooting occurred.

[5] At the time of the shooting, there were three males inside the residence. The police identified the men. One was identified as Tyler Faraj, the brother of the co-accused, Wayne Faraj.

[6] The gunman was observed to have fled the scene in a black Dodge Charger. He was not identified but witnesses provided a description of him to the police. Suffice it to say that the suspect had distinctive identifying characteristics.

[7] Approximately one hour after the shooting, the police located a black Charger matching the description of the vehicle in question. When they attempted to apprehend the vehicle, it sped off, reaching speeds exceeding 100 km/hr and went through multiple red lights. The vehicle ultimately evaded its pursuers. However, the police did obtain its licence plate number. They were able to determine the vehicle’s owner and further investigation determined that a Brian Earhart was likely in possession of the vehicle at the relevant times. Mr. Earhart’s appearance is consistent with the description of the gunman provided by witnesses at the scene of the shooting.

[8] Subsequently, the police located the Charger in the parking lot serving several buildings in the Kipps Lane area, including *** Kipps Lane (address intentionally redacted). The police obtained and reviewed video footage of the parking lot and foyers of the apartment buildings in the vicinity and determined that Mr. Earhart had entered *** Kipps Lane and taken the elevator to the fourth floor.

[9] The accused, Wayne Faraj lived at apartment *** at *** Kipps Lane, located on the fourth floor. At 11:24 am, Mr. Earhart and Mr. Faraj were observed on video leaving *** Kipps Lane together. At 1:50 pm, the police were advised that Mr. Faraj had returned to *** Kipps Lane with an unknown female.

[10] Members of the London Police were dispatched to “lock down” apartment ***. As will be discussed later in these reasons, they were waiting in the fourth-floor hallway to secure the premises but knew not to enter the premises pending the return of a duly executed search warrant.

[11] The accused, Chelsey Rounding exited the apartment. The police stopped her and intended to conduct a pat down search. They took her purse and set it on the ground, where it came open. The police officer observed a handgun in her purse. It was then determined to be loaded. Forensic analysis later matched the bullets found at the scene of the shooting to the firearm. Ms. Rounding was charged with:

(i) Careless transport of a firearm, contrary to s.86(1) of the Code;

(ii) Carrying a concealed weapon, contrary to s.90(1) of the Code;

(iii) Unauthorized possession of a firearm, knowing it was unauthorized pursuant to s.92(1) of the Code;

(iv) Unauthorized possession of a prohibited weapon, contrary to s.92(2) of the Code; and

(v) Possession of a loaded restricted firearm, contrary to s.95(2) of the Code.

[12] Mr. Faraj was subsequently charged in relation to offences involving possession of the handgun.

Evidence on the Application:

Testimony of Detective Constable Fraser Smith:

[13] DC Smith has been a member of the London Police force for ten years. He has been with the Emergency Response Section for almost four years.

[14] May 2, 2020, was a day off for him. However, he was called in to respond to the shooting at approximately 8:45 am. He was involved with “locking down” apartment *** while they awaited a duly authorized search warrant. He described that this involved dealing with anyone coming from or going to the apartment.

[15] DC Smith emphasized that the whereabouts of the handgun was still unknown, which was of particular concern to the police.

[16] DC Smith attended with Constable Thomas in the parking lot. It was a parking lot shared among five residential apartment buildings. They then received information that Mr. Earhart and Mr. Faraj had been seen on the fourth floor and then departed the area. The police officers went into the subject building at 1:50 pm. Their assignment was to “contain” the apartment unit pending the arrival of an executed search warrant.

[17] DC Smith described “containing” entailed watching the apartment door. There was another officer watching the parking lot and balcony. This was to prevent escape, to prevent the loss of evidence, to protect the public and to persuade an occupant of the unit to exit safely. They knew the unit was related to Mr. Faraj and that Mr. Earhart had been observed with him. He further explained that he was instructed to detain all subjects leaving the apartment for the weapon investigation.

[18] DC Smith took the stairwell to the fourth floor. The subject unit was just off to the right near the stairwell. DC Thomas took the other stairwell and they met on the fourth floor. DC Smith was waiting near the door and could hear voices from inside the unit, but not the actual conversation that was taking place. Sergeant Dance and Officer Corsaut arrived shortly afterwards.

[19] A female (Ms. Rounding) exited the apartment in question. DC Smith identified himself as a police officer and took control of her by her arm. He moved her away from the doorway of the apartment. He had one hand on her bicep or wrist. He states that he guided her very gently down the hall and passed her off to Constable Corsaut, who further passed her back to Constable Thomas and Sergeant Dance.

[20] DC Smith believed that there was still at least one more person within the apartment and was aware that the firearm had not yet been recovered. He described this as an “outstanding threat”.

[21] Later on, DC Smith dealt with Mr. Faraj. At approximately 2:16 pm, the police knocked on the door and identified themselves. This was after the firearm was found in Ms. Rounding’s purse. Mr. Faraj came out a couple of minutes later and was arrested for possession of the firearm. His grounds for arresting Mr. Faraj were that Ms. Rounding had been found in possession of a loaded handgun. DC Smith provided Mr. Faraj with his rights to counsel caution.

[22] On cross-examination, DC Smith confirmed that he intended to stop any person from leaving the apartment with the weapon they were searching for. They did not want to lose the weapon. He agreed that this could require the search of a person leaving and that any person leaving would be subject to search. He described this as “common practice” for firearm offences.

[23] Prior to interacting with Ms. Rounding, DC Smith indicated that he did not know she had been inside the apartment. They had no information about her, or any information that she had been involved in the shooting. They had no idea what connection she might have had with that apartment unit, other than being inside of it.

[24] They would not detain anyone exiting the apartment for very long, just long enough to search them for the firearm. It was not to detain them until the search warrant arrived.

[25] DC Smith was of the view that if they had a search warrant for the apartment, and Ms. Rounding exited the apartment, they would be justified in searching her purse. This was based on his training and experience.

[26] Prior to her purse being seized, DC Smith had no idea what its contents might be. He did believe that they would be successful in obtaining a search warrant for the apartment but had no idea at what stage that process was at.

Testimony of Sergeant John Dance:

[27] Sergeant Dance has been a member of the London Police Services since 2006.

[28] May 2, 2020, was a day off for him as well. He was called in from home due to the shooting. He was instructed to attend at the apartment complex at Kipps Lane. The Charger had been found in the parking lot there.

[29] Sergeant Dance was partnered with Constable Corsaut. They entered the apartment building and were tasked with “locking down” the apartment unit on the fourth floor. They were to deal with anyone coming or going to the apartment in question, given the search warrant that was being sought. The firearm had still not been recovered.

[30] They had been advised that Mr. Faraj and Mr. Earhart had been at the building, left the building and then returned.

[31] When they got up to the fourth floor, Constable Thomas advised him that a female (Ms. Rounding) had exited the apartment. Constable Thomas was talking to her. Ms. Rounding was pulled over towards the elevator when she approached the officers. This was a safer place, away from the door. Sergeant Dance advised her that she was being detained in relation to the search warrant they were awaiting and due to the concern about the firearm. He took her “tote bag” and placed it on the ground while he was still in the process of detaining her. He had not yet read Ms. Rounding her rights. He testified that he had intended to do so.

[32] When Sergeant Dance placed the bag down, it came open and he could clearly see the butt end of a Glock. He immediately arrested Ms. Rounding, handcuffed her, and read her rights to counsel to her. He cleared the handgun. It did not have any rounds in its chamber. However, it was loaded. There were two rounds missing.

[33] Sergeant Dance testified that there were safety concerns when Ms. Rounding appeared because they did not know the whereabouts of the gun they were looking for and did not know who was in the apartment.

[34] Sergeant Dance indicated that he never engages people when they have objects in their hands. He was going to read her rights to her when he detained her, which was his intention prior to placing her bag on the ground.

[35] Prior to seeing the gun, he did intend to pat Ms. Rounding down for weapons. He was detaining her due to the safety concerns.

[36] On cross-examination, Sergeant Dance indicated that Mr. Earhart was the target of the investigation. He was not sure who was in the apartment when he arrived at the fourth floor.

[37] When Sergeant Dance first saw Ms. Rounding, he did not know who she was. She was not involved in any criminal investigation. He described that she did not seem comfortable dealing with the police so that he did not think it was a regular occurrence for her. He did not know what connection, if any, she had with the apartment unit, other than she had exited it. He knew the initial investigation related to a shooting elsewhere and there was nothing he was aware of to suggest that a female had been involved in the shooting.

[38] On cross-examination, Sergeant Dance testified that it was not his intention to detain Ms. Rounding for very long, just long enough to ensure that she did not have any evidence with her. Thus, it was his intention to detain and search her at that time. This would include searching anything that she was carrying such as a purse or bag. He indicated that it would be easy to squeeze the outside of a purse to determine if a handgun was contained inside it.

[39] When he took the purse from Ms. Rounding, he had no idea what it might contain. He searched her because he did not want her to take a handgun down on the street, or to remove evidence from the apartment. He agreed on cross-examination that at the time he took her purse from her, Sergeant Dance did not have grounds to arrest her.

[40] Sergeant Dance agreed that he did not know what stage of the process the search warrant process was at while he was waiting and could not be sure that the search warrant would be granted.

[41] Sergeant Dance indicated that he would have done the same thing regardless of who exited the apartment.

Evidence of Constable Brent Thomas:

[42] Constable Thomas has been a police officer for sixteen years.

[43] He too was not working on May 2, 2020. He was called in due to the shooting.

[44] When he arrived at the Kipps Lane apartment complex, he and DC Smith were directed to the fourth floor to “contain the unit”. The unit in question was one of the end units, close to the stairwell. They maintained visual contact with the doorway. He could hear voices from inside the unit. Eventually, Ms. Rounding exited the unit.

[45] They “intervened” with her. Constable Thomas and Sergeant Dance interacted with Ms. Rounding. The other officers watched the door. He moved Ms. Rounding away from the doorway but they remained on the fourth floor. They spoke with Ms. Rounding. They asked her who was in the unit. She advised that she had two children inside and there was also a man. Constable Thomas could not recall if she identified the man inside the apartment. However, upon reviewing his willsay statement, he recalled that Ms. Rounding was reluctant to tell the police the man’s name.

[46] Sergeant Dance advised Ms. Rounding why they were there and what they were investigating. He advised her that they had reason to believe that there was a suspect within the unit. Ms. Rounding was wearing a tote style bag. Sergeant Dance advised her that given that she was leaving a unit where there was a suspect, they wanted to ensure that she was not removing any evidence. He advised her that she was going to be patted down for those reasons. She was not asked whether she had any weapons on her.

[47] She either placed her bag on the ground, or one of the officers put it on the ground. Constable Thomas could not recall who did that. The bag came open and Sergeant Dance observed the butt end of a handgun. Sergeant Dance placed Ms. Rounding under arrest for possession of the handgun.

[48] On cross-examination, Constable Thomas indicated that there was no specific direction to detain anyone that exited the unit, but it is his understanding that this would occur, even prior to the search warrant being obtained. This is based on their training, especially when there is a firearm involved. That would be a policy of the police department, to ensure that no one was leaving with a firearm.

[49] Constable Thomas had been advised by some officers that had reviewed surveillance video and had observed the suspect enter the unit in question. Pressed on this issue, Constable Thomas reviewed his notes and agreed that the surveillance did not show the suspect go into the unit in question. The suspect had only been seen leaving the building, not the specific unit. Mr. Earhart had been seen leaving the building with Mr. Faraj. Other officers were obtaining a search warrant for the unit.

[50] Constable Thomas did not know who Ms. Rounding was until she identified herself. He did not have any reason to believe that she was involved in the shooting, or any other incident of concern. There was no information that a female had been involved in the shooting. The police were not looking for a female suspect in connection with the shooting.

[51] Constable Thomas did not know whether the search warrant would ultimately have been granted.

Credibility:

[52] I do not intend to spend much time discussing credibility. In my opinion, this case does not turn upon the credibility of the officers involved. They readily admitted the important fact that it was their intention to detain and search any person that exited from the premises. The issue is whether such police action infringed Ms. Rounding’s Charter rights.

[53] However, I had no concerns whatsoever with the credibility of any of the officers that testified. There were moments that they were required to refresh their memories from their willsay statements. They did not, in my view, exaggerate the circumstances in which they were working. Their evidence was consistent both internally and with that of each other.

[54] I accept their testimony in its entirety. It is noteworthy that the defence did not raise any credibility concerns during argument.

Other Evidence Tendered:

[55] In addition to the viva voce evidence of the police officers, the Crown tendered documentary evidence.

[56] This evidence included still photos from the building surveillance that the police reviewed. The photos show a man consistent with the description of the shooter in the elevator. Later, he is observed in the stairwell and has changed his clothes. It is important that the police noted that the man had a satchel with him when he went up to the fourth floor but did not have the satchel when he exited. This evidence also demonstrated that Mr. Earhart spent approximately 3 hours on the fourth floor.

[57] A photograph of Ms. Rounding’s purse or tote bag has been included. It has a very wide opening such that I accept that it would “fall open” if placed on the ground.

[58] Subsequent to Ms. Rounding’s arrest, ballistic testing confirmed that the gun in her purse had fired the bullets located at the scene of the shooting.

[59] The ITO in support of the warrant has been produced. The warrant was ultimately granted on May 2, 2020. It was not executed until May 3, 2020. Thus, a justice found that there were reasonable grounds to believe that there was evidence of an offence at the apartment in question. However, I attach little or no weight to this. The ITO that was submitted to that justice apparently included reference to Ms. Rounding exiting the apartment and having the handgun in her purse.

Positions of the Parties:

Ms. Rounding’s Position:

[60] The defence argues that the police lacked the necessary grounds to detain Ms. Rounding, thereby violating her s. 9 Charter rights. The subsequent search of Ms. Rounding was without lawful authority and therefore violated Ms. Rounding’s right to be secured against unreasonable search and seizure under s. 8 of the Charter.

[61] Ms. Rounding argues that to detain an individual as part of an “investigative detention”, the police must have a reasonable suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence (see: R. v. Mann, 2004 SCC 52). There must be a “constellation of objectively discernible facts” which provide the detaining police officer with reasonable grounds to suspect that the individual is connected with recent or ongoing criminal activity. A hunch cannot suffice, no matter how accurate the hunch might prove to be (see: R. v. Simpson, 1993 3379 (ON CA)). Her position is that, at best, the police were acting on a hunch.

[62] Ms. Rounding asserts that where a search is conducted by the police without the benefit of a warrant, the Crown bears the onus of establishing on a balance of probabilities that:

(i) The search was authorized by law,

(ii) The law itself is reasonable; and

(iii) The search was carried out in a reasonable manner (see: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C. R. 265).

[63] Ms. Rounding concedes that a warrantless search may be justified under the common law if either:

(i) The search is incidental to investigative detention; or

(ii) the search was incident to arrest (see: R. v. Calderon, 2004 7569 (ONCA).

[64] I agree with the legal principles that Ms. Rounding has enunciated.

[65] As a result of these violations, Ms. Rounding submits that the evidence found should all be excluded under s. 24(2) of the Charter.

Crown’s Position:

[66] The Crown concedes that Ms. Rounding was detained by the police when she left the apartment unit. She was not free to leave with her purse until it had been searched to ensure that she was not removing evidence from the apartment. The Crown argues that in stopping Ms. Rounding, the police were executing their duties under s. 42(1)(f) of the Police Services Act to execute warrants and perform related duties. They were also executing their common law duties to preserve the peace, prevent crime and protect life and property (see: R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 and R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311).

[67] The Crown argues that allowing Ms. Rounding to leave the apartment without being searched would have frustrated the search warrant process by permitting key evidence to be removed from the premises before the court even had the opportunity to consider the warrant application. More importantly, the loaded firearm would have been at large again in the community, posing considerable risk.

[68] The Crown also asserts that the detention and search of Ms. Rounding were minimally intrusive. Furthermore, the gun was in plain view when the purse was placed upon the ground.

[69] The Crown recognized, properly, that it bore the onus of justifying the search given that it was done without a warrant.

Sections 8 and 9 Analyses:

[70] As conceded by the Crown, I find that Ms. Rounding was detained in the circumstances of this case. The police, in their testimony, made it clear that she was not free to leave until she had been subjected to a search. In my view, she was both physically and psychologically restrained from departing the hallway. As stated in R. v. Grant, 2009 SCC 32, at para. 44, “a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply”.

[71] Having concluded that Ms. Rounding was detained, the next step of the analysis is whether the detention was arbitrary. The detention must:

(i) be authorized by law;

(ii) not be pursuant to an arbitrary law; and

(iii) be carried out reasonably (Collins, supra.).

[72] The lawfulness of Ms. Rounding’s detention depends upon whether the police officers were justified in conducting an investigative detention. In Mann, supra, the Supreme Court of Canada addressed the common law ability of police officers to conduct investigative detentions. Iacobucci J., for the majority, noted that it is well recognized that a lawful detention is not “arbitrary” within the meaning of s. 9 of the Charter such that an investigative detention that is carried out in accordance with the common law power described in Mann does not infringe upon the detainee’s rights under s. 9 (Mann, supra, at para. 20).

[73] Police powers derive from the duty of police officers to preserve the peace, prevent crime and to protect life and property (Mann, supra, at para. 26, Dedman, supra at p.32). Iacobucci J. noted that at the second stage of the test, the competing interests of the police duty must be balanced against the liberty interests at stake. Quoting Cloutier v. Langlois, 1990 122 (SCC), at pp. 181-82), Iacobucci J. described that this aspect of the test required a consideration of:

Whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals.

[74] Borrowing from Simpson, supra, Iacobucci J. observed that investigative detentions are only justified at common law “if the detaining officer has some ‘articulable cause’ for the detention”. At para. 34, he stated:

34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

[75] Thus, it was held that police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is necessary on an objective view of the circumstances. The power to detain, however, cannot be exercised on the basis of a “hunch” (Mann, supra, at para. 35).

[76] The general duty of officers to protect life may give rise to the power to conduct a pat-down search incident to an investigative detention. As Iacobucci J. explained, the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. Pursuant to an investigative detention, a police officer has no right to conduct a search unless the officer has reasonable grounds to believe his or her safety or the safety of others is at risk (Mann, supra, at paras. 40 and 45).

[77] In R. v. McGuffie, 2016 ONCA 365, the accused was identified by the doorman of a bar as one of several men that had been passing a firearm around. The Court of Appeal found that the continued detention of the accused violated his s. 9 Charter rights, and that the manner of the very intrusive search violated his s. 8 Charter rights. However, it is instructive to consider that the Court held that the initial investigative detention was lawful and that the initial pat-down safety search was incidental to that lawful detention. Doherty J.A., in doing so, focused on the legitimate and immediate public safety concerns and that the investigating officer had a duty to investigate the gun-related incident and the accused’s potential connection to it (McGuffie, supra, at para. 34).

[78] The issue thus becomes whether the police officers in this case had reasonable grounds to detain Ms. Rounding. In my view, they did. The police were not engaged in a fishing expedition but had objectively discernible grounds to suspect that there was a firearm connected to a brazen shooting in downtown London within the apartment unit in question. Based on the description of the shooter from the witnesses involved, it was reasonable for the police to conclude that Mr. Earhart was the shooter and in possession of the handgun in question. He had been connected to the dodge Charger, which was located within the Kipps Lane parking lot. Observations had been made of Mr. Earhart entering the building with a satchel and leaving the building several hours later after having changed his clothes, without the satchel. A satchel is a logical container in which to carry a handgun. Mr. Earhart attended the fourth floor, the same floor upon which Mr. Faraj resided. Mr. Earhart was observed in the company of Mr. Faraj, who was linked to the apartment unit in question, driving away together from the building.

[79] It was therefore reasonable for the police to detain any person observed exiting that apartment on the grounds of both officer and community safety, to determine whether that person had the firearm in question in their possession. Had a person exited the apartment in the possession of the firearm, they would have posed a direct threat to the police at the scene. Thus, officer safety was directly implicated. They also would have posed a direct threat to the safety of those in the community. This was not a vague or non-existent concern for safety, but a well-founded one. There had been a shooting earlier that day, the gun had not been located and the police reasonably suspected that it was within the apartment unit. Thus, while the police would not have the requisite reasonable grounds to arrest all persons exiting the apartment, I conclude that they did have the reasonable suspicion required for an investigative detention of such persons.

[80] The Crown focused its arguments on the removal of evidence. It is sufficient, in my opinion, that one of the rationales provided for the police actions was constitutionally legitimate. The police officers all testified that safety was one of their main concerns given that a gun was at large. Although the handgun was evidence, the officers were all clear that the fact that it was a firearm was important to their calculations. This is not a vague assertion of safety concerns. This was a case in which the police were specifically looking for a firearm that had, only hours before, been used in a shooting.

[81] Thus, even though the police had no reason to believe that a female was involved in the shooting itself, there was a clear nexus between Ms. Rounding and the firearm in question. There were reasonable grounds to suspect that both Ms. Rounding and the weapon were within the apartment unit at the same time. The police were not detaining every person that exited the building or walked down the hallway. They were detaining those persons who exited the specific apartment in question. Ms. Rounding was, in the language of Mann, connected to the particular crime that the police were investigating. I find that the police exercised their powers of investigative detention reasonably in the totality of the circumstances.

[82] For the same reasons, the police officers had the reasonable grounds to perform a protective search of Ms. Rounding. This included the minimally intrusive, brief pat down search that they intended to conduct. This included taking her purse from her and placing it on the ground during the protective pat down search. There is no evidence that the police were aggressive or used unnecessary force. Up until the firearm was observed within the purse, the police interaction with Ms. Rounding was conducted reasonably.

[83] In Calderon, supra, Laskin J.A., at para. 78, described that a warrantless search may be justified at common law in two ways. The first is by characterizing the search as a search incidental to an investigative detention. While Laskin J.A. noted that the police do not have an unrestricted power to search incidental to an investigative detention, such a search is justified for “protective” purposes. The officers must believe on reasonable and probable grounds that their safety or the safety of others is at risk.

[84] I accept that the search of Ms. Rounding’s purse began before it was taken from her. There can be no issue that Ms. Rounding had a privacy interest in her purse. However, given Ms. Rounding’s connection with the apartment in which a gun was reasonably suspected to have been located, I find that the police were justified in searching her purse for safety reasons. The alternative after not finding any weapon during a pat-down search would have been to allow Ms. Rounding to carry on, with her purse in hand. This would expose the police officers to significant risk of harm, especially if she chose to engage the police officers. Furthermore, allowing a weapon to be carried from the scene in her purse would undoubtedly impair the safety of the community.

[85] In R. v. Plummer, 2011 ONCA 350, the Court of Appeal upheld the trial judge’s finding that a search of the accused’s girlfriend’s overnight bag, located in their vehicle, following a pat-down search of the accused conducted as part of an investigative detention, did not violate s.8 of the Charter (I note that for the purpose of dealing with the issue, the Court accepted that the accused had a privacy interest in the handbag). MacPherson J.A., at para. 52, remarked that a Mann search was “anchored in safety concerns and is limited to weapons”. He continued at paras. 53 and later 58, as follows:

53 However, there is nothing in Mann confining a search incidental to an investigative detention to only the person detained. Indeed, in Mann, the court actually considered both a pat-down search of the person detained, which it upheld, and a search inside the detainee’s pockets, which it found to be unreasonable. Accordingly, I agree with this court’s interpretation of Mann in R. v. Batzer (2005), 2005 33026 (ON CA), 200 C.C.C. (3d) 330 at para. 16: “the [Supreme Court of Canada] leaves the clear inference that on the right facts, a search incidental to a lawful stop could comply with the common law and pass constitutional muster even though it went beyond a pat down.”

58 There is no logic in this shift. If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bullet proof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity.”

[86] In his concurring decision, Sharpe J.A., with whom Laskin J.A. agreed, was of the view that the Court should not deal with the “difficult and contentious issue” of whether the limited power to conduct a pat-down search to ensure officer safety should be extended to permit the search of bags and vehicles. However, he did state at paras. 76-78:

76 A search incidental to an investigative detention is defined and limited by the immediate concerns of officer safety. This reflects an important difference between the narrowly focussed and strictly limited protective search that may accompany an investigative detention, and the broader power to search consequent to a lawful arrest. It is necessary to maintain that distinction and to confine the scope of a search incidental to an investigative detention within strict limits. Here, the police did not arrest the appellant, presumably because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon or some other valuable evidence. This is a tendency that the courts should resist.

77. However, on the facts as found by the trial judge, I agree that a modest extension of the Mann pat-down search was justified in this case. Although the officers had the appellant under their temporary control, the situation was fluid. The appellant’s earlier actions, when he appeared to conceal something in the vehicle, combined with the Officer Safety Alert indicating that he might be carrying a gun, gave rise to a legitimate serious concern that he had immediate access to a weapon that he could use if the officers were to simply release him and return to their own vehicle.

78 On those specific facts, I agree that the officers were entitled to search the bag in the car as an incident of the investigative detention to ensure their own immediate safety. While this does represent a modest extension of the protective pat-down search in R. v. Mann, it is limited by the concern for immediate officer safety that underpins Mann.

[87] While recognizing the Court of Appeal’s reluctance to over-expand searches conducted in furtherance of investigative detention, where police officers have a reasonable suspicion that a person is carrying a firearm with them, they are not necessarily limited to only searching the person. It would have taken only the briefest of time for Ms. Rounding to reach into her purse, pull out the handgun and imperil the lives of the police officers. In my view, a search of the purse was justifiable as part of the search incident to investigative detention for the purpose of officer safety.

[88] In any event, on the oral evidence of the police officers, corroborated by the photograph of Ms. Rounding’s purse, I find that when the purse was placed on the ground, it fell open enough that the firearm was “in plain view” of Sergeant Dance. The police officers did not open up her purse and rummage through it. It was not a secured briefcase or backpack. In my view, once the firearm was visible, the police officers were duty-bound to affect the arrest and seize the firearm.

[89] I would be remiss not to address R. v. Kelsy, 2008 29599 (ONSC), 2011 ONCA 605 () given the factual similarities to the within case. In Kelsy, the police believed that they were dealing with a home invasion and hostage situation at an apartment building, having been summoned by 911 call. Upon arriving, they found a man who had been beaten and duct taped. The man described his assailants as two men with guns. Moments later, the accused, Ms. Kelsy, and her daughter exited from the apartment. Ms. Kelsy was carrying a black backpack and two plastic bags. She was ordered to drop her bags and ushered out of harm’s way. It is important to understand that at the time the backpack was searched, Ms. Kelsy and her daughter had left the immediate vicinity. Once it was determined that the apartment was safe, the officer inspected the backpack and located a loaded handgun within it along with drug trafficking paraphernalia. Ms. Kelsy sought to exclude this evidence under s. 8 of the Charter.

[90] At trial, Trotter J. (as he then was) relied upon exigent circumstances to determine that the police search did not violate Ms. Kelsy’s section 8 rights. In his view, exigent circumstances could authorize certain police activity, without prior authorization, when reasonable grounds already existed to either search a place or make an arrest. It is important to note that Trotter J. found as a fact that while the officer had well founded concerns, they had not yet crystallized into reasonable grounds to believe the backpack contained evidence of criminal offences or something that might compromise officer or public safety.

[91] The Ontario Court of Appeal, on the other hand, found that Ms. Kelsy’s section 8 Charter rights had been infringed. Nonetheless, the Court would not have excluded the evidence under s. 24(2) of the Charter. Rosenberg J.A. for the Court opined that neither exigent circumstances nor the Waterfield doctrine could justify the search of Ms. Kelsy’s backpack. In Rosenberg J.A.’s view, exigent circumstances should primarily apply where there is an imminent risk of loss or destruction of evidence and, if time permitted, the police could have obtained prior authorization. This would not justify warrantless searches on less than reasonable grounds. Exigent circumstances may also apply when there is a concern for the safety of the public or the police. Importantly, Rosenberg J.A. added, at para. 34:

[34] I should not be taken as having held that reasonable grounds are required in other circumstances where the exigent circumstances doctrine is invoked to justify a search for the purpose of protecting the public or police officers. It may be that a lesser standard, such as articulable cause or reasonable suspicion as codified in s. 529.3(2)(a), will be appropriate in some circumstances. …

[92] In ruling that the doctrine of exigent circumstances did not apply in Kelsy, Rosenberg J.A. explained that the police officer had no grounds to believe that the backpack contained anything that would threaten the safety of the public or the police officers. Furthermore, Ms. Kelsy had been separated from her backpack. There was no imminent risk of loss or destruction of evidence.

[93] Similarly, Rosenberg J.A. held that the Waterfield doctrine could not justify the search because it was not necessary for officer safety to open the backpack and there were other reasonable alternatives by which the police could have carried out their duties. On the findings of Trotter J., the officer was acting on a hunch and lacked reasonable suspicion or articulable cause to search the backpack.

[94] Despite the similarities between Kelsy, supra, and the within case, the separation of Ms. Kelsy from her backpack compared to Ms. Rounding remaining in close proximity to her purse is sufficiently distinguishing in my opinion. Ms. Kelsy could not pose a threat to the police because she was no longer near her backpack, thus it was not necessary to search the backpack for officer safety. In the case before me, I find that the police had reasonable grounds to suspect that the firearm that had been in Mr. Earhart’s possession had been located in the apartment in question and was therefore in Ms. Rounding’s possession. Ms. Rounding would have been walking down the hallway from the officers with purse in hand. Absent a search of the purse, she would pose a legitimate threat to the safety of the police officers depending upon the contents of the purse.

[95] In any event, the Crown during reply submissions retreated from its assertion that exigent circumstances justified the detention and search in this case. I do not rely upon exigent circumstances.

[96] For the foregoing reasons, I conclude that Ms. Rounding’s section 8 and 9 Charter rights were not infringed upon.

S. 24(2) Analysis:

[97] In the event that I am in error with respect to my determination that the police did not violate Ms. Rounding’s Charter rights, I will conduct the requisite s. 24(2) inquiry.

[98] S.24(2) of the Charter requires the exclusion of the evidence if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The onus is upon Ms. Rounding on a balance of probabilities.

[99] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada stated that the purpose of s.24(2) is to “maintain the good repute of the administration of justice”. The question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[100] The Grant analysis is a three-part test. First, the court must assess the seriousness of the Charter-infringing state conduct. Secondly, the court must assess the impact of the breach on the Charter protected interests of the accused. Thirdly, the court must consider society’s interest in the adjudication of the case on its merits.

[101] In McGuffie, supra, the Ontario Court of Appeal described the interaction of the three strands of the test as follows, at para. 62:

[62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquire, society’s interests in an adjudication on the merits, pulls in the opposite direction towards the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C. R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

[102] It is important not to put undue emphasis on the third part of the test. Society’s interest in adjudicating cases on their merits will always appear paramount when charges are particularly serious. Nonetheless, the court cannot condone serious breaches of important Charter protected interests (see: McGuffie, supra, at paras. 75-83).

Seriousness of the Breaches:

[103] This factor focuses on the seriousness of the breach with a view to preserving and encouraging public confidence in the courts. There is a spectrum of state misconduct running from inadvertent, technical errors to wilful or flagrant disregard for individual rights and interests. The court must not condone significant state misconduct. The more serious or deliberate the breach, the greater the need for the courts to dissociate itself from the misconduct to preserve confidence in the justice system and the rule of law (Grant, supra, at paras 72-75).

[104] Ms. Rounding argues that the breaches by the police were flagrant. She points to the fact that the police officers all referred to the London Police Services having a policy of detaining all persons that might exit an apartment in similar circumstances. In her submissions, the police services should be sent a clear message that its policy violates Charter rights.

[105] I cannot agree with those submissions. I do agree that the police had, as part of their rationale for detaining everyone who exited that apartment, a further motive of ensuring that evidence did not get removed from the premises. Such a policy is problematic if not connected to officer safety, in my opinion. Whether the police should detain all persons exiting an apartment while they wait for a search warrant in all cases is an issue I need not decide. The key component to this case, in my opinion, is the legitimate concern about the location of a handgun that had been used that morning in a brash shooting in a downtown London residential neighbourhood. It posed a considerable hazard to the police and others. I am satisfied in the circumstances of this case that safety concerns were overriding.

[106] Ms. Rounding places considerable reliance upon R. v. Ismail, 2021 ONSC 3883. In that case, Thomas RSJ excluded a firearm found in the accused’s vehicle. Importantly, the search conducted by the police was further to the accused’s arrest and the arrest was not in relation to any firearm offences. He found that the officers felt the arrest provided an opportunity to see if Mr. Ismail was committing further offences. In Thomas RSJ’s view, this demonstrated an ignorance of the limitations of the long-standing common law power of arrest. This could not be considered inadvertent or technical.

[107] That case is distinguishable. In this case, the police officers, in my view, were acting entirely in good faith for the purpose of their protection and the protection of the community at large. Their testimony indicates that while the preservation of evidence within the apartment was a concern, there was also a significant safety component to their actions. Courts have repeatedly described that police officer’s actions in the heat of exercising their duties ought not to be examined as if under a microscope. These officers had been summonsed from their off days to respond to a situation of considerable urgency. If they crossed a line, I cannot determine that their conduct falls within the end of the spectrum at which this court must signal its disapproval.

[108] The detention and proposed pat-down search was on the evidence, minimally intrusive and brief. The purse was not delved into by Sergeant Dance, but instead taken from Ms. Rounding such that it fell open and the firearm was visible.

[109] I conclude that the breaches, if there were any, were not so serious as to favour exclusion of the evidence.

Impact on the Charter-Protected Interests of the Accused:

[110] The court, at this stage, must consider the extent to which the breach undermined the interests protected by the rights infringed upon. An unreasonable search, for example, may impact upon the accused’s privacy interests, which can include their human dignity. An unreasonable search that encroaches on an area in which there is a high expectation of privacy, or is demeaning, is more worthy of condemnation by the court.

[111] I have already indicated that I accept that Ms. Rounding had a reasonable expectation of privacy in her purse. I further accept that a purse involves far more than a trivial privacy right given the personal items that might be contained therein. In fact, I am prepared to accept that Ms. Rounding would have a significant privacy interest in her purse. Such a privacy interest was recognized in R. v. M. (A.), 2006 13550 (ON CA), 2006 CarswellOnt 2579 (ONCA) with respect to a student’s backpack. Arguably, a purse would carry with it a greater privacy interest.

[112] Furthermore, ss. 8 and 9 of the Charter reflect an individual’s right to be left alone by the state absent justification for state interference with the individual. In McGuffie, supra, at para. 49, this is described as an essential precondition to individual liberty and security of the person. The courts must guard against unwarranted state intrusion lest we become a police state.

[113] In the present case, the manner of the detention and search was not intrusive. It was brief. While I accept that taking Ms. Rounding’s purse constituted a “search”, the police did not go through it to discover the firearm. They set it down, it fell open and they observed the butt end of the handgun.

[114] This factor does tilt towards exclusion.

Society’s Interests in Deciding the Case on Its Merits:

[115] The third factor requires the court to consider society’s interests in conducting a trial on the merits. The exclusion of evidence under s.24(2) of the Charter most often results in the dismissal of criminal charges as the Crown is left with no case. This is a strong factor in favour of inclusion of evidence. It is well accepted that the third Grant factor almost always weighs in favour of admitting the impugned evidence.

[116] The evidence sought to be excluded is real evidence. It is very reliable evidence with respect to the offences charged. The Crown’s case entirely depends upon this evidence. Furthermore, the nature of the evidence itself must be considered. The firearm found within Ms. Rounding’s purse was only some hours earlier used in a downtown London daylight shooting outside of a home. Unauthorized firearms are a real problem and present a grave danger to those in the community.

[117] The third Grant factor, as is usual, strongly points to the admission of the evidence.

Balancing the Grant Factors:

[118] The balancing exercise mandated by s.24(2) is qualitative and not capable of mathematical precision. The evidence must be weighed on each line of inquiry to determine whether, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

[119] It is not a contest between the degree of police misconduct and the seriousness of the offence. Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s.24(2) analysis would ‘deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’ (see: R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494, at paras. 37 and 40).

[120] This is a case in which I find that if there were breaches of Ms. Rounding’s section 8 and/or 9 Charter rights, they were far from egregious but instead were modest given valid protection concerns in a rapidly evolving situation. The police officers had to make decisions in real time without the benefit of legal analysis. On the other hand, there is no question that the evidence is critical to the Crown’s case and society’s interests in prosecuting offences involving weapons is considerable.

[121] In my view, Ms. Rounding has not met her burden of persuading the court that the admission of the challenged evidence would bring the administration of justice into disrepute.

Disposition:

[122] Accordingly, I find that the police officers did not infringe Ms. Rounding’s section 8 or 9 Charter rights. They were exercising valid powers of investigative detention for the purpose of officer and public safety when they detained her, which would have justified a pat-down search and when they took her purse from her and observed the firearm within.

[123] If I am wrong about the infringement of her Charter rights, I would nonetheless admit the evidence as its admission would not bring the administration of justice into disrepute.

[124] Ms. Rounding’s application is dismissed.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: August 30, 2022