COURT FILE NO.: CR-21-90000663-0000
DATE: 20230105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GURVIR DEOL and JUSTIN BOYA
Applicants/Defendants
Richard Posner and Lance Beechner, for the Applicant/Defendant Deol
Reid Rusonik, for the Applicant/Defendant Boya
Brendan Gluckman and Kelvin Ramchand, for the Respondent/ Crown
HEARD: May 24, 25, 26, 30, and June 7, 2022 (remotely by Zoom), with written submissions in June and July 2022.
Molloy J.
REASONS FOR DECISION
(Application To Exclude Evidence: ss. 8, 10(b) and 24(2) of the Charter)
A. INTRODUCTION
[1] Justin Boya and Gurvir Deol are jointly charged with conspiracy to commit drug trafficking and conspiracy to commit assault with a weapon causing bodily harm. The evidence supporting those offences is largely based on telephone communications intercepted by the police pursuant to a judge’s authorization order. The validity of that order was not challenged before me.
[2] Mr. Boya and Mr. Deol are also jointly charged with offences said to have been committed on April 18, 2020, as follows: possession of fentanyl, heroin, and cocaine for the purposes of trafficking; and possession of a loaded 38 caliber Smith and Wesson revolver contrary to ss. 92(1) and 95 of the Criminal Code. Mr. Deol is also separately charged with possession of a loaded Taurus semi-automatic firearm, contrary to ss. 92(1) and 95 of the Criminal Code. The evidence supporting the gun and drug charges was seized by police from various locations on or shortly after April 18, 2020. Those seizures are the subject of an application before me to exclude the evidence obtained from various searches, pursuant to ss. 8, 10(b) and 24(2) of the Charter.
[3] The application before me involves searches of three residences and of Mr. Deol’s car. All three residences were initially entered into without a warrant. For two of those locations, search warrants were subsequently obtained, based, at least in part, on what was seen by police during the warrantless entry. Mr. Deol’s car was seized and taken to a police garage without a warrant, and then subsequently searched after a warrant was obtained.
[4] The first search in time was Unit 2001 at 10 York Street in Toronto. Based on wiretap intercepts obtained in the course of an investigation by the Ontario Provincial Police (OPP), police believed this to be a “stash house” used in drug trafficking by Mr. Deol, Mr. Boya, and others. At 10:06 p.m. on April 18, 2020, members of the Emergency Task Force of the Toronto Police Service, working with the OPP, made a warrantless entry and arrested the seven people inside, one of whom was Mr. Deol. The police relied on exigent circumstances to justify the entry, based on wiretap intercepts they alleged showed a conspiracy to shoot, and possibly murder, an unknown man at an unknown location later that night. The police seized from 10 York: 227 grams of fentanyl, empty cocaine kilogram packaging, a cocaine press, a money counter, 2.8 grams of powder adulterants, $8,639 in cash, and a loaded Taurus G2S 9 mm handgun.
[5] Within minutes of the 10 York entry, police officers entered Unit 3103 at 88 Harbour Street in Toronto, also without a warrant. Earlier in the evening, Mr. Boya had been inside 10 York. Surveillance officers saw him leave in his car, but did not follow him. From the wiretap intercepts and surveillance prior to this point, the police believed Unit 3103 at 88 Harbour was also a stash house used by Mr. Boya, Mr. Deol, and others. The police relied upon exigent grounds to enter this unit, allegedly in order to search for Mr. Boya, who was believed to be part of the conspiracy to commit murder with a firearm. Neither Mr. Boya nor anyone else was in the unit at the time of the warrantless entry. A search warrant was subsequently obtained, and the search yielded 972 grams of fentanyl (223 grams mixed with heroin) and a loaded 38 caliber Smith and Wesson revolver handgun.
[6] Upon learning Mr. Boya was not at 88 Harbour, the police went to the home of Mr. Boya’s parents at 15 Danum Road in Brampton, knowing that he lived with them there. They found Mr. Boya in his car outside the residence and arrested him. Police then knocked on the door of the residence and spoke with Mr. Boya’s father. Officers entered the residence and seized items from Mr. Boya’s bedroom, but did not search elsewhere in the home. The Crown acknowledges the police breached Mr. Boya’s rights under s. 10(b) of the Charter by failing to hold off questioning him after he had invoked his right to speak to counsel. There was some evidence about officers believing they had consent to search Mr. Boya’s bedroom; other officers testified that it was justified by exigent circumstances. The Crown relies on exigent circumstances based on a need to preserve evidence and Mr. Boya’s parents having nowhere to go if officers sought to preserve the scene for the time required to obtain a warrant. In Mr. Boya’s bedroom, the police found two bricks of cocaine, a quantity of fentanyl, and a large amount of cash.
[7] After Mr. Deol’s arrest, the police seized his Mercedes from the 10 York parking lot and towed it to an OPP detachment. The car remained sealed until a warrant was obtained. The subsequent search of the car yielded: 109 grams of Fentanyl, a loaded magazine for a Taurus G2S 9 mm handgun (the type of gun found at 10 York), and a pair of shooting gloves.
[8] I was advised that this matter is scheduled for trial in January 2023. On November 21, 2022, I released an endorsement setting out my decision in this matter[^1] and indicating that my detailed reasons would follow. In particular, I ruled:
• The warrantless entry at Unit 2102 at 10 York Street was justified by exigent circumstances. The evidence is admissible.
• The warrantless entry at Unit 3103 at 88 Harbour Street was a breach of the Charter rights of both accused. However, I would still admit the evidence obtained pursuant to s. 24(2) of the Charter.
• The search conducted at 15 Danum Road breached the Charter rights of Mr. Boya. All evidence obtained is excluded from the evidence at trial.
• The seizure of Mr. Deol’s car prior to obtaining a warrant was a Charter breach. However, the evidence obtained is nevertheless admissible at trial.
My detailed reasons for those rulings are set out below.
B. BACKGROUND
[9] In the course of another investigation, the OPP received information that Mr. Deol was involved in drug trafficking. On April 13, 2020, they applied for and obtained a judicial authorization to intercept calls on Mr. Deol’s cellphone. After the first few days of monitoring Mr. Deol’s calls, the police had intercepted numerous drug-related conversations. Through these calls as well as surveillance and information from video cameras, the police connected both Mr. Deol and Boya with drug trafficking and identified Unit 3103 at 88 Harbour and Unit 2001 at 10 York as suspected stash houses. The police believed Mr. Deol to be the person in charge, and that he gave instructions to Mr. Boya.
[10] The OPP lead investigator for this drug investigation was D.C. Laura Goodenough. She was closely monitoring the phone calls and alerting her superiors to important information. On the night of April 17, 2020, D.C. Goodenough was called by staff in the wire room to listen to some calls on Deol’s phone. She attended at about 10:00 p.m. and listened to a call in which Mr. Deol called Mr. Boya and arranged to meet with him downtown at 11:30 p.m. Mr. Deol emphasized the importance of the meeting, saying, “we have to do something” and referred to “running a drill.” She reported this call to her superior officer, Det. Insp. Fulford (at the time of the events, Det. Sgt. Fulford). Surveillance officers were put in place to see who attended the meeting and other officers continued to monitor the surveillance cameras and calls made on Mr. Deol’s phone. Mr. Deol and Boya showed up, and at approximately 12:40 a.m., a man known to the police as Liban Hussein arrived with an unknown female. All four individuals left at 2:00 a.m. Mr. Deol made several calls in the early hours of the morning to various women and discussed paying them to hang out with a guy at a shisha bar, and confirming when asked that this was a set-up.
[11] The police believed Mr. Hussein to be part of the plan to set up the unknown male, particularly in light of the timing of Mr. Hussein’s arrival at 10 York and the almost immediate calls then placed by Mr. Deol making arrangements for the plan. The police knew Mr. Hussein was on a recognizance for other charges and that he was breaching the terms of his release. They decided to arrest Mr. Hussein for failure to comply with his conditions, hoping to thwart the scheme involving these three men setting up somebody else. On the afternoon of April 18, members of the Toronto Police Force attempted to stop the car Mr. Hussein was driving, with the intention of arresting him. However, Mr. Hussein failed to stop, and a police chase ensued, culminating in Mr. Hussein crashing his car into a tree and escaping on foot.
[12] Meanwhile, the OPP were continuing their surveillance at 10 York. At 4:04 p.m., a surveillance team saw Mr. Deol and a man matching Mr. Hussein’s description enter 10 York through the underground parking. From intercepted telephone conversations thereafter, it appeared that the original plan to set up this unknown male was still going ahead.
[13] At the direction of Mr. Deol, Mr. Boya (driving his own BMW) picked up Mr. Hussein and drove to 2009 Delaney Dr. in Mississauga, where they were to pick up a truck. In their cellphone conversation, Mr. Deol and Mr. Boya discussed that everyone should wear gloves, and that Mr. Boya should also bring a pair for Mr. Deol. At 8:03 p.m., a surveillance officer reported seeing Mr. Hussein and Mr. Boya leaving the 2009 Delaney area, with Mr. Hussein driving the BMW and Mr. Boya driving a Ford F150 pickup truck. Both vehicles headed for downtown Toronto. They arrived in the area of 10 York at around 8:20-8:23 p.m. and, consistent with instructions given by Mr. Deol, parked nearby and walked towards the building. By 9:08 p.m., police surveillance information confirmed that Mr. Boya, Mr. Hussein, Mr. Deol, and two unknown males were now inside Unit 2001 at 10 York.
[14] Shortly before that, at 8:25 p.m., police intercepted a call in which Mr. Deol spoke with a person later identified as Kulwant Sunner. Mr. Deol told Mr. Sunner that he was “running a drill” and that he needed Mr. Sunner to go to 10 Edgeforest Dr., pick up a key, and bring it to the downtown condo where they were waiting for him.
[15] At 9:18 p.m., a member of the surveillance team observed Mr. Boya leaving 10 York, driving his BMW. This was relayed to the team, but no instructions were given to follow him. He was permitted to simply drive away. It appears from the intercepts that Mr. Deol had sent Mr. Boya to complete a drug transaction, with instructions to return to 10 York after the deal was done.
[16] At 9:21 p.m., Mr. Deol again spoke to Mr. Sunner about the key and was advised that it worked. Mr. Deol told him to bring the key to the downtown condo (which police understood to be 10 York). In the background during this call, officers monitoring the intercepts heard the following conversation:
• You’re going to sit on this side of him.
• Make sure he says that he has speak very less because he knows his voice.
• He gave me …but with a bullet … cost you nothing.
• So he can’t turn around…going to put the safety locks on…the child locks on and them I’m gonna make him put his head down and then going to shoot.
[17] Police officers who heard this information believed that the incident planned for later that night at the bar would involve a shooting and considered it to be a plan to murder this unknown man.
[18] Various plans for arresting one or more of Mr. Boya, Mr. Hussein, and Mr. Deol had been discussed throughout that day. The Emergency Task Force (“ETF”) of the Toronto Police Service had been alerted about the situation at approximately 8:00 p.m. and agreed to assist. At 9:30 p.m., Det. Insp. Fulford was advised of the intercepted communication involving a planned shooting. He immediately gave instructions for the ETF to enter Unit 2001 at 10 York without a warrant. Det. Insp. Fulford testified that he did this based on what he considered to be exigent circumstances involving public safety. He referred to the call about shooting somebody in the head as “the straw that broke the camel’s back,” moving an already grave situation into the category of “an emergency.”
[19] Mr. Sunner (who had been directed to bring a key) arrived at 10 York at 9:53 p.m. and entered Unit 2001 at 9:55 p.m.
[20] At 10:06 p.m., the ETF entered Unit 2001 and arrested all seven occupants, including Mr. Hussein and Mr. Deol. A firearm was located on the ground near Mr. Hussein. Apart from objects that were in plain view, officers did not search the unit at that time. They maintained control over the unit until a search warrant was obtained.
[21] At 10:08 p.m., two OPP officers were dispatched to 88 Harbour, ostensibly to see if Mr. Boya was there. They were instructed to wait for the ETF. After clearing 10 York, the ETF officers went to 88 Harbour (which was not far away). They entered the unit using a fob provided by the building’s security and, having found nobody inside, turned it back over to the OPP at 10:55 p.m. Again, things in plain view were noted, and the unit was secured until a search warrant was obtained, following which a full search was conducted.
[22] At about 12:15 or 12:20 a.m. (now April 19, 2020), S. Sgt. Johnston who headed up one of the OPP surveillance teams, decided to look for Mr. Boya at the residence where he lived with his parents at 15 Danum in Brampton. Upon arrival in an unmarked car, S. Sgt. Johnston saw Mr. Boya parked in the driveway of his parents’ home, with the engine running and the rear and headlights on. Mr. Boya was in the driver’s seat, and an unknown person was in the front passenger seat. The passenger got out of the car and walked to a neighbouring home, which he then entered. Another OPP officer, D.C. Moir, was also on scene in a separate unmarked vehicle. The plan was to wait for backup from Peel Regional Police to arrive, but when Mr. Boya started to reverse out of the driveway, both Det. Insp. Fulford and D.C. Moir moved their vehicles to intercept him. Mr. Boya attempted to flee in his car, but crashed into a parked car on the street. He was arrested at gunpoint and removed from his vehicle. Peel Regional Police officers arrived at 12:53 a.m. At 1:00 a.m., S. Sgt. Johnston left Mr. Boya in the custody of Officers Moir and Mulville (who had also recently arrived on scene) and went to the house to speak to the occupants. He spoke with Mr. Boya’s father, who answered the door, and advised him of Mr. Boya’s arrest and the damage to vehicles on the scene.
[23] At 1:12 a.m., Officers Mulville and Flynn entered 15 Danum and carried out a search of the bedroom occupied by Justin Boya. Because of the competing evidence as to the circumstances and authority under which this entry was made, I will deal with those facts in more detail later in these reasons. The officers conducting the search found two bricks of cocaine in a bag in Mr. Boya’s closet, and some fentanyl and a large amount of cash in a dresser drawer. The police did not search anywhere else in the house.
[24] Meanwhile, back at 10 York, the OPP seized Mr. Deol’s car, which had been parked in the parking lot, and towed it to an OPP detachment. They waited until they obtained a search warrant before searching the vehicle. They found 109 grams of Fentanyl, a loaded magazine for a Taurus G2S 9 mm handgun (the type of gun found at 10 York) and a pair of shooting gloves.
C. GOVERNING LEGAL PRINCIPLES: SEARCH AND SEIZURE
[25] Section 8 of the Charter of Rights and Freedoms provides that everyone “has the right to be secure against unreasonable search or seizure.”
[26] In this case, the police entered two residential condominium units and a bedroom in a private residence, all without having a warrant. They also, in the absence of a warrant, seized a motor vehicle, and towed it to a police station, although they did not search the vehicle until after obtaining a warrant. In these circumstances, the onus is upon the Crown to establish that the search or seizure was authorized by law, that the law was reasonable, and the manner in which the search or seizure was carried out was lawful.[^2]
[27] The Crown relies on s. 529.3 of the Criminal Code as statutory authority to enter these premises based on exigent circumstances. That section provides:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
[28] The Crown bears the burden of establishing the exigent circumstances.
[29] There are two branches to the inquiry: (1) whether there are reasonable grounds to believe that the person sought is present; and (2) the existence of exigent circumstances. In turn, there are two situations in which exigent circumstances can be established: (1) where the officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death; and (2) whether the officer has reasonable grounds to believe that entry is necessary to prevent evidence from being lost or destroyed.
[30] It is to be noted that the legislation requires reasonable grounds to believe that a person is present or that evidence will be lost, whereas when danger to a person’s safety is involved, the standard required is merely reasonable grounds to suspect. It is a well-recognized principle of statutory interpretation that “[i]t is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings.”[^3]
[31] When considering whether the police had reasonable grounds to do something, or to believe or suspect something, the focus is on the officer who made the decision, not on the individual officers who acted on that decision.[^4]
[32] Understandably, when the challenged police action is undertaken to protect a person from harm, the level of certainty is less onerous than the standard required when justifying the need to preserve evidence. In the former situation, police need only have “reasonable grounds to suspect.” A subjective suspicion is not sufficient; the officer’s suspicion must be reasonable, which means it must be grounded in “objectively discernible facts, which can then be subjected to independent judicial scrutiny.”[^5] In R. v. MacKenzie, Moldaver J. defined reasonable suspicion as follows:
Reasonable suspicion means “reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” (Kang-Brown, at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime” (para. 27). [^6]
[emphasis added]
[33] An exigent entry can only be justified if the circumstances were such that “it would be impracticable to obtain a warrant.” This has been interpreted to mean something beyond mere inconvenience. The urgency of the exigent circumstances involved must make it impracticable to get a warrant, in the sense that the very purpose of the police action would be undermined by waiting. Further, that urgency must arise from the exigent circumstances themselves.[^7] The Supreme Court of Canada in R. v. Paterson stated:
While I am not persuaded that the strict condition of impossibility urged by the appellant is denoted by Parliament’s chosen statutory language of impracticab[ility], neither am I satisfied by the Crown’s argument equating impracticability with mere impracticality. Viewed in the context of s. 11(7), however — including its requirement of exigent circumstances — “impracticability” suggests on balance a more stringent standard, requiring that it be impossible in practice or unmanageable to obtain a warrant. The French version of “impracticable” in s. 11(7) — “difficilement réalisable” — is also consistent with a condition whose rigour falls short of impossibility but exceeds mere impracticality of obtaining a warrant. So understood, then, “impracticable” within the meaning of s. 11(7) contemplates that the exigent nature of the circumstances are such that taking time to obtain a warrant would seriously undermine the objective of police action — whether it be preserving evidence, officer safety or public safety.
In sum, I conclude that, in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.[^8]
[34] Finally, it must be recognized that the police make these decisions in the field in circumstances of great urgency and often danger. The consequences of making a wrong decision, or not making a decision at all, can often be dire. A reviewing court must be mindful of these circumstances when determining whether the officer’s decision to act was reasonable. As noted by the Ontario Court of Appeal in R. v. Golub:
In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.[^9]
[35] Similarly, in R. v. Pilon, the Ontario Court of Appeal cautioned:
…But a police officer does not have the luxury of time. The officer must make a decision in a matter of seconds, all the while mindful of his or her duty to the accused not to breach Charter rights and his or her obligation to protect the safety of people in the immediate vicinity, including civilians, other police officers and the accused.[^10]
[36] This principle has also been applied by the Supreme Court of Canada. In R. v. Nasogaluak, dealing with alleged excessive force by police officers, LeBel J. held:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.[^11]
D. ANALYSIS: 10 YORK SEARCH
[37] The police entered Unit 2001 at 10 York without a warrant and their entry is therefore presumptively unreasonable. The Crown relies on exigent circumstances to justify the entry. Specifically, the Crown argues that an urgent entry was necessary to arrest Mr. Deol and others for conspiracy to commit murder and thereby to prevent injury or harm to an unknown individual who was the intended victim of the conspiracy.
[38] The police knew Mr. Deol was in that unit because they had him under constant surveillance and were monitoring his cellphone calls. This is not contested. However, Mr. Deol contends that the police did not truly enter in circumstances of urgency. Rather, they had already decided earlier in the day that they would enter the unit, but deferred making other arrests because they did not want to tip off anyone inside the unit who might then be able to dispose of evidence relating to drug trafficking. The defence contends that by prioritizing protecting the integrity of their drug investigation over public safety, the police demonstrated that they did not consider the situation to be urgent.
[39] The defence relies on several cases establishing the unassailable principle that the police cannot, by their own conduct, create an urgent situation and then rely on that situation as exigent circumstances supporting a warrantless entry.[^12] I agree entirely with the principles established in those cases. However, I do not agree that they apply here. The police did not create the situation of urgency in this case. They simply responded to it.
[40] The decision to authorize a forced exigent entry at 10 York was made by Det. Insp. Fulford. He testified that he gave that order at 9:33 p.m., immediately after being advised of the intercepted call in which someone was overheard talking about shooting another person. Det. Insp. Fulford said that, for him, this was the “straw that broke the camel’s back” and that his decision to authorize the exigent entry flowed directly from that information. The ETF decided how to best effect entry from a tactical standpoint, and then carried out the order at about 10:00 p.m.
[41] I agree with the defence position that the police knew about the plan to set somebody up at a shisha bar for the better part of a day before taking action to enter Unit 2001. I also find that the evidence supports the conclusion that the police took this as a serious threat and believed this third party could come to harm. The police officers in positions of authority readily accepted that one of their considerations that day was how to preserve the ongoing drug investigation and still protect public safety. They did not want to take down the investigation that day if this could be avoided. However, I do not agree that this evidence demonstrates that the police did not have a good faith basis for the exigent circumstances relied upon for the eventual entry into Unit 2001, nor do I agree that the failure of the police to act earlier means that they thereby created the circumstances of urgency.
[42] I accept the evidence of Det. Insp. Fulford that the police considered Mr. Hussein and Mr. Deol to be the key individuals in this plot. The initial plan was to arrest Mr. Hussein for breaching his bail conditions, in the hope that this would derail the plot at the shisha bar. Unfortunately, Mr. Hussein evaded that arrest. It then became apparent from the intercepted telephone calls on the morning of April 18 that the plot was still alive and the plan was to carry it out that night. The OPP then planned to arrest Mr. Hussein, along with Mr. Boya and Mr. Deol, in Mississauga when they went to get the pickup truck. It was only when they were unable to carry out that plan and then started heading for 10 York, that the police shifted their focus to that address. The Emergency Task Force of the Toronto Police Service had been on alert throughout the day about the possibility of a high-risk takedown near 10 York that might require their assistance. At 8:55 p.m., the ETF team left their headquarters to meet with the OPP officers at a location near 10 York, arriving at 9:20 p.m. By this time, the OPP also had two surveillance teams posted in various positions around 10 York.
[43] Counsel for Mr. Deol submits that the police decision not to arrest Mr. Hussein when they saw him near 10 York at 8:23 p.m. that night shows that the police had decided to maximize their investigative outcomes at the expense of other objectives. However, I see nothing nefarious in the decision not to arrest Mr. Hussein so close to 10 York that the other conspirators could be tipped off to the police presence in the area. Admittedly, he seemed to be heading to Unit 2001, but that only made arresting him inside inevitable if he stayed inside. Throughout this time, there was ongoing planning and discussion about attempting to arrest all three men outside the building.
[44] I also attach no particular significance to the evidence of some officers who said that their understanding, early on, was that there was a plan to enter Unit 2001. Clearly this was one of the possibilities under consideration, but no decision had been taken to carry this out until much later. These officers were not responsible for making the decision to enter. That responsibility rested with Det. Insp. Fulford.
[45] By 9:20 p.m., the ETF team was on scene and consulting with the OPP. The team leader was Staff Sgt. Peter Morris, who had 21 years’ experience with the ETF. At this point, Mr. Deol and Mr. Hussein (along with other unidentified persons) were inside the unit, but Mr. Boya had left and driven away. Sgt. Morris believed that the safest option was to enter the unit (where the suspects were already “contained in a box”) rather than trying to arrest and contain the suspects outside the building in one or more cars. The latter option raised more concerns about the safety of the public and might result in a high-speed chase. Coinciding with this ETF consultation, the OPP continued to receive updates from the wiretap interceptions, which included information that an unknown person was coming to the condo with a key. It appeared that the people in the unit were waiting for this man to arrive. It also appeared that they might be making preparations to leave. It was at this critical juncture that Det. Insp. Fulford received the information about the call intercepted at 9:21 p.m. and passed on to him at 9:30 p.m., in which a shooting was specifically mentioned. He gave the order for the ETF to enter Unit 2001 within three minutes of receiving that call.
[46] I find that Det. Insp. Fulford made that decision believing things had now reached a new level of urgency and out of a genuine concern that further delay could result in the injury or death of the intended target of the conspiracy. At that time, he not only had a reasonable belief that Mr. Deol and Mr. Hussein were inside the unit, he knew that to be almost certainly true. I also find that Det. Insp. Fulford genuinely believed at that time that the matter was urgent and that the police needed to act quickly to prevent the murder plot from moving to the next step. Further, I find this was a reasonable belief in all the circumstances.
[47] I accept that if the police had made this decision to enter the unit earlier in the day, they might have had time to obtain a warrant for the entry, particularly if they used the telewarrant process. However, it was a decision-making process that evolved over time after the consideration of many options, and balancing various interests, one of which was the legitimate interest in preserving the integrity of the investigation that looked as though it would yield considerable evidence about a large fentanyl trafficking operation. At the point when the decision was made to enter Unit 2001, there was no time to lose. The entry needed to be made before the individuals left the unit, which looked to be imminent. That does not mean that the police created the urgency. It is easy enough to say now that if they had reached this decision earlier, they would have had time to get a warrant. However, it is not my task to second-guess that decision with the benefit of hindsight, and without having to manage the dynamic factors at play in the field. The factors the police were considering were relevant and appropriate. The conversation overheard on the wiretap with the explicit reference to shooting someone was a game changer, and the police acted accordingly. I find that all of the requirements for an exigent entry to protect the life and safety of this unknown person were met.
[48] In coming to that conclusion, I have taken into account the defence argument about the implications of the police decision not to follow Mr. Boya when he left, and the suggestion that the police waited unduly for the man with the key to get there. I find that neither of these factors undermine the existence of exigent circumstances.
[49] The police considered Mr. Boya to be involved in this plot, but they never considered him to be a key person in the event. Nobody believed he would go off independently and commit the planned murder. At the time he left 10 York, he could not have been followed without pulling several people off the surveillance teams focused on 10 York where the ringleaders were believed to be present. Letting Mr. Boya leave said nothing about whether the police believed, an hour later, that it was now necessary to effect an urgent entry into Unit 2001.
[50] I accept the evidence of Det. Insp. Fulford that he did not delay his decision in order to wait for the unknown man on his way to the unit with the key. That evidence is corroborated by the timing of when Det. Insp. Fulford learned of the intercepted conversation specifying someone would be shot, followed almost immediately by his order to effect an exigent entry. The police heard about the man bringing the key as early as 8:25 p.m. The ETF was not even in place at that time. The order to enter was given at 9:33 p.m. The man with the key did not arrive until 9:53 p.m. This individual was not known to the police at the time and there would have been no reason to delay just to be sure he was in place. The gap between when the order was given and the time that ETF made the entry is completely explained by the time it took for the ETF team to get prepared and move into position. I am satisfied on the evidence that there was no delay by the police because of the man who was bringing a key.
[51] Accordingly, I find that the police had lawful authority to enter Unit 2001 at 10 York. The police had a solid basis for believing Mr. Deol and Mr. Hussein were in the unit and a reasonable basis to suspect that, if they were not immediately arrested, they would follow through with a planned arrangement to shoot an unknown person at a shisha bar. Given the peril involved and the fact that these conspirators were planning to leave the unit, along with the ETF opinion that the safest manner of apprehension was inside the apartment, it was necessary for the police to act quickly. There was no time to get a warrant in light of all of these circumstances. The test for exigent circumstances is met, and there was no breach of Mr. Deol’s s. 8 rights when the police entered the unit and arrested him there.
E. ANALYSIS: 88 HARBOUR SEARCH
[52] The ETF entered 10 York at 10:06 p.m. under what I have held to be exigent circumstances. Two minutes later, S. Sgt. Johnston directed D.C. Mulville and D.C. Ferguson to go to 88 Harbour and secure Unit 3103, which was believed by police to be another stash house used by Mr. Deol and Mr. Boya in their drug trafficking operation. At this point, the police knew Mr. Deol and Mr. Hussein would be arrested at 10 York, but they had no idea where Mr. Boya had gone after he left 10 York at 9:18 p.m. S. Sgt. Johnston said that he knew of two other possible locations for Mr. Boya: the stash house at nearby 88 Harbour and his residence at 15 Danum in Brampton.
[53] I reject the Crown’s argument that Mr. Deol has no standing to challenge this entry into Unit 3103 at 88 Harbour. The Crown points to the evidence that Mr. Boya was the registered tenant for that unit and that he had the building key fob and keys to the unit. Mr. Deol was observed there on one occasion, but he was with Mr. Boya. Therefore, the Crown submits that Mr. Deol has not demonstrated that he could control or access the unit, or that he had a reasonable expectation of privacy with respect to it.
[54] In R. v. Jones, the Supreme Court of Canada noted that there is a “relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self-incrimination.”[^13] The Court further held that an accused could rely on the Crown’s theory of the case to establish s. 8 standing, stating:
. . . counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to their theory.[^14]
[55] In this case, the Crown alleges that Mr. Deol and Mr. Boya were jointly involved in an ongoing drug-trafficking enterprise, in which Mr. Deol was the directing mind and Mr. Boya trafficked drugs at his direction. From the agreed statement of facts filed on this application, it is clear that nobody was living in Unit 3103, but rather, it was being used as a stash house to provide storage for items the Crown alleges were jointly owned by Mr. Deol and Mr. Boya. It is a reasonable inference that Mr. Deol, as the directing mind of the enterprise, could direct and control the apartment unit and its use. According to the Crown’s theory of the case, although Mr. Deol did not live in the unit, he used it, at least in part, to run his drug trafficking business. As such, he had as much expectation of privacy over it as anybody would have for things such as a storage unit or personal office space. I find that both Mr. Deol and Mr. Boya had a reasonable expectation of privacy in Unit 3103.
[56] The police went to 88 Harbour hoping to find Mr. Boya there. Understandably, the police wanted to locate Mr. Boya and arrest him. Also, understandably, they believed there was likely to be evidence of drug trafficking at Unit 3103 at 88 Harbour and they wanted to preserve and seize it. S. Sgt. Johnston testified that when the ETF had finished at 10 York, he requested that they make a similar entry into Unit 3103 at 88 Harbour. The stated purpose of this entry was to attempt to locate Mr. Boya and to preserve evidence. S. Sgt. Johnston testified that he was concerned Mr. Boya might be armed, in light of the conversations intercepted on the wiretap and the fact that a firearm was found at 10 York. I accept that this was a reasonable concern.
[57] In my view, the potential for preservation of evidence in the unit at 88 Harbour would not, on its own, justify an exigent entry. The police were in a position to prevent anyone from entering the unit and tampering with evidence until such time as they could obtain a search warrant. It would only be the potential presence of Mr. Boya in the unit that could provide any basis at all for urgency. Further, the circumstances might have been such that a dynamic entry was appropriate, particularly if the suspect could be armed. However, there is a significant difference between a dynamic entry with a warrant and a warrantless entry on exigent circumstances.
[58] S. Sgt. Johnston did not instruct the officers sent to 88 Harbour to take any investigative steps to determine whether Mr. Boya was at that location. The officers understood that they were to arrest Mr. Boya for conspiracy to commit murder if they saw him, but otherwise they were directed to standby until the ETF arrived. The decision to make an exigent entry had clearly already been made at point.
[59] D.C. Mulville testified that, upon arriving at 88 Harbour, he met with three or four security guards there. He told them that the police would be entering the unit under exigent circumstances and they provided him with a key to the unit. These security guards were already familiar with the OPP investigation, having cooperated in the past by providing key fob information about who had accessed the building, as well as permitting OPP officers to view security camera footage of the building’s entrances and exits, elevators, and lobby areas. However, D.C. Mulville took no steps whatsoever to determine if there was any information as to whether Mr. Boya had entered the building that night.
[60] After the ETF had cleared 10 York, they went to 88 Harbour, arriving at 10:50 p.m. They also made no inquiries about whether Mr. Boya was in the unit. They immediately entered the unit, using the key provided earlier to D.C. Mulville by the building security personnel. Nobody was inside. They saw nothing of interest apart from a large safe in a bedroom closet.
[61] Although D.C. Mulville previously testified that the ETF made a dynamic entry into the unit because of the exigent circumstances, he acknowledged in cross-examination that there was no damage to the door into the unit, that he had not actually witnessed the entry, and that entry was gained using a key, although he continued to maintain that he had no memory of providing the key. After the ETF had cleared the unit, a uniformed officer was assigned to guard the entrance pending an application for a search warrant. Initially in his evidence, D.C. Mulville said that he did not go into Unit 3103 at all that night. He said that his first entry into the unit was the following day, after obtaining the search warrant. However, on cross-examination he was taken to a contradictory entry in his memo-book at 11:02 p.m., and then conceded that he had, in fact, walked through the unit with an ETF officer after the ETF had determined that there was nobody inside.
[62] I find that there were no exigent circumstances entitling the police to enter Unit 3103 at 88 Harbour on the night of April 18, 2020. Not long before the entry at 10 York, police officers watched Mr. Boya drive away without making any attempt to follow him. No officer who testified before me suggested there was any reason to believe that Mr. Boya, on his own, would carry out the previously discussed plan to murder or injure the unknown man at the bar. They did not articulate such a belief, nor would I have found such a belief to be reasonable or credible. The police took no steps to follow Mr. Boya when he left 10 York, and took no steps until after midnight to check his residence to see if he was there. If the arrest of Mr. Boya was an urgent matter to prevent bodily harm to another person, I would have expected there to be more priority placed on finding him in a timely way. I find that the actions of the police show they wanted to arrest Mr. Boya, but not that this was an urgent situation for the protection of the public.
[63] Further, the police had no reason to believe Mr. Boya was actually in Unit 3103. They knew he had been there in the past, including twice that same day, but that did not mean he went there again after leaving 10 York. Moreover, they took no steps to ascertain whether Mr. Boya had entered 88 Harbour that night, whether by reviewing security video, checking key fob information, or asking the security staff there if they had seen him.
[64] This was a warrantless entry with the onus on the Crown to justify it. I conclude that there were not exigent circumstances to justify that entry and it was made in breach of s. 8 Charter rights. I also reject the Crown submission that the entry was justified based on the doctrine of “hot pursuit”. Mr. Boya drove away from 10 York at 9:18 p.m. There was not only no “hot pursuit” at 10:50 p.m. when the ETF arrived at 88 Harbour, there was no pursuit at all. The first time anyone addressed the question of looking for Mr. Boya was at 10:06 p.m., when S. Sgt. Johnston sent two officers over to 88 Harbour to arrest Mr. Boya if they happened to see him, but instructed them to otherwise simply wait for the ETF. The police were searching for Mr. Boya, not pursuing him. In R. v. Macooh, the Supreme Court of Canada held that determining what constitutes a hot pursuit requires a “common sense approach” and defined the term as a “continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.”[^15] The common law authority to enter a dwelling without a warrant when in hot pursuit of a suspect has no application on the facts of this case.
[65] Accordingly, I find that the police warrantless entry into Unit 3103 on April 18, 2020, was a breach of the Charter rights of both Mr. Deol and Mr. Boya.
E. ANALYSIS: 15 DANUM SEARCH
[66] Upon learning that Mr. Boya was not at 88 Harbour, the police turned their attention to 15 Danum in Brampton, the home of Mr. Boya’s parents, where the police knew Mr. Boya resided. As I mentioned above, there is conflicting evidence about the circumstances surrounding the police entry into that residence. On this point, I heard evidence from the accused (Justin Boya) and his father, Goutam Boya (“Mr. Boya Sr.”) as well as from the police officers who were involved (Det. Insp. Fulford, S. Sgt. Robert Johnston, D.C. Scott Mulville, and D.C. Scott Moir).
The Evidence of S. Sgt. Robert Johnston
[67] S. Sgt. Robert Johnston was in charge of one of the OPP surveillance teams. He was a Detective Sergeant at that time and reported to Det. Insp. Fulford. He arrived at Danum Road in his unmarked car at 12:41 a.m. He said that D.C. Moir was already on scene in his own unmarked car, and they could see Mr. Boya sitting in his car in the driveway of 15 Danum. The engine was running, Mr. Boya was in the driver’s seat, and there was an unknown male sitting in the front passenger seat. S. Sgt. Johnston called Peel Regional Police to attend to effect the arrest of Mr. Boya and transport him to the OPP station. He and D.C. Moir then sat in their cars, watching Mr. Boya’s car and waiting for Peel Regional Police to arrive.
[68] At approximately, 12:48 a.m., the passenger got out of the car and entered a home in the neighbourhood. Mr. Boya started to leave the driveway in his car, at which point both S. Sgt. Johnston and D.C. Moir moved their cars forward to block his exit. Mr. Boya attempted to escape by reversing out of the driveway and over a neighbour’s lawn, but crashed into parked cars. Both officers then used their cars to pin Mr. Boya’s vehicle in place.
[69] S. Sgt. Johnston testified that he approached Mr. Boya’s vehicle to arrest him, and that Mr. Boya was not initially following police commands. Both officers had their weapons drawn. He said that after 10 or 15 seconds, Mr. Boya started to comply and got out of his car with his hands raised and lay face down on the ground. At about this point, D.C. Mulville had arrived, and, using his own cuffs, he handcuffed Mr. Boya with his hands to the rear. S. Sgt. Johnston said that he then left Mr. Boya in the custody of Officers Mulville and Moir with instructions that they advise him of his rights. S. Sgt. Johnston then went to deal with the Peel Regional Police officers who were arriving on scene. S. Sgt. Johnston did not hear anyone explaining to Mr. Boya his rights, as he had moved off by then and was dealing with other things.
[70] S. Sgt. Johnston said that after speaking with the Peel Regional Police, he knocked on the front door at 15 Danum and spoke with Mr. Boya’s father. He said this was at about 1:00 a.m. He said he told Mr. Boya three things: that there had been a collision, that his son was under arrest, and that the police would be obtaining a search warrant to search his home. He then asked Mr. Boya Sr. if there was anywhere he and his wife could go. He testified that Mr. Boya Sr. told him that his wife was ill with flu-like symptoms and that there was nowhere for them to go. (It should be noted that this was about three weeks into the initial lockdown period as a result of the COVID-19 pandemic.) He said he had this discussion with Mr. Boya Sr., in the presence of his wife, in the vestibule area of their home. He then stepped outside and called Det. Insp. Fulford from the area in front of the home.
[71] S. Sgt. Johnston testified in chief that he told Det. Insp. Fulford that Mr. Boya was under arrest and they would need a search warrant for the home. He also told Det. Insp. Fulford that Mr. Boya Sr. was cooperative and polite but was taking the position that they could not leave their home because of Mrs. Boya’s illness. He said that he was then told by Det. Insp. Fulford that, in view of the exigent circumstances and the complications of the pandemic, they could enter the home and search only Mr. Boya’s bedroom. He denied saying anything to Det. Insp. Fulford, at the time, or later at 2:30 a.m., about the search being based on consent.
[72] S. Sgt. Johnston did acknowledge that D.C. Mulville told him that Mr. Boya said his parents were not involved and that everything would be in his bedroom. This was part of the explanation S. Sgt. Johnston gave for searching only that one room, the other stated reason being that they wanted to get in and out as quickly as possible because of COVID. However, he was adamant that it was never contemplated that they would be doing a consent search. He testified that he directed Officers Mulville and Flynn to search Mr. Boya’s bedroom based on the express order he was given by Det. Insp. Fulford to carry out that search under exigent circumstances. He denied that D.C. Mulville went in on his own initiative.
The Evidence of D.C. Scott Moir
[73] D.C. Moir testified that he arrived on Danum at 12:34 a.m. and that S. Sgt. Johnston arrived shortly after that. His evidence about what Mr. Boya was doing, the passenger in the car leaving, and Mr. Boya’s thwarted attempt to escape in his car tallies with the testimony of S. Sgt. Johnston. D.C. Moir’s account of removing Mr. Boya from the car at gunpoint is also essentially the same as S. Sgt. Johnston’s account. He also said that D.C. Mulville arrived at about that time and placed handcuffs on Mr. Boya.
[74] D.C. Moir testified that he could not remember who searched Mr. Boya, but that he had written in his notes that this was done by D.C. Mulville. D.C. Moir recalled advising Mr. Boya of his rights and had fairly detailed notes about doing so. He said he told Mr. Boya he was under arrest for conspiracy to commit murder and read him his rights from an OPP-issued card which he had in his pocket. This information included telling Mr. Boya he had a right to speak to counsel. When asked if he wanted to speak to a lawyer, Mr. Boya responded affirmatively. D.C. Moir told him that he could facilitate that right there, but he could not assure him of privacy, and that, alternatively, he could wait until he got to the police station. He said that Mr. Boya opted to wait until he was at the police station. He also advised Mr. Boya that he had a right to remain silent and Mr. Boya said he understood. D.C. Moir said he did not read the additional portion of the caution about the possibility of any statement Mr. Boya made being used against him, explaining that this was unnecessary because he was not going to ask Mr. Boya any questions. On cross-examination, he stated that, upon Mr. Boya stating he wanted to speak to a lawyer, he understood the responsibility of the police was to facilitate connecting him with a lawyer and to refrain from questioning him until he had the opportunity to do so.
[75] D.C. Moir said that he went over to the area beside D.C. Mulville’s jeep to read Mr. Boya his rights. He could not remember if he walked across to the Jeep on his own with Mr. Boya, or whether there was another officer (such as D.C. Mulville) with him. D.C. Moir said he changed locations because his own vehicle was in the middle of the road and both his and Mr. Boya’s vehicle were involved in the collision just prior to the arrest and would be investigated by the Peel Regional Police. D.C. Mulville had arrived just after the collision and his jeep was parked at the side of the road.
[76] D.C. Moir could not remember any other officer being present at the time he read Mr. Boya his rights. He acknowledged that it was possible D.C. Mulville was there, even though he had no memory of it and could provide neither an explanation for why D.C. Mulville would have left, nor why he then came back. However, he said that after he had completed reading Mr. Boya his rights, he handed him over to D.C. Mulville and then went to speak to the Peel Regional Police. He said he had no recollection of telling D.C. Mulville that Mr. Boya had invoked his right to speak to legal counsel, but could not provide a reason why he would not have done so if D.C. Mulville had not been there when Mr. Boya said that.
[77] D.C. Moir had noted 12:53 a.m. as the point when he began to read the caution at the conclusion of giving Mr. Boya his rights. Other notes indicated that it was at 12:53 a.m. that Peel Regional Police arrived on scene. D.C. Moir turned Mr. Boya over to D.C. Mulville at 12:56 a.m. for transfer to one of the marked cruisers and then went to speak to the Peel officers who would be investigating the collision.
The Evidence of Det. Insp. Fulford
[78] Det. Insp. Fulford testified that he received a call from S. Sgt. Johnston at 12:38 a.m., advising that Mr. Boya had been arrested after attempting to flee. He said this call lasted for five to six minutes. He instructed S. Sgt. Johnston that, if there was nobody inside the house, they should secure it and apply for a search warrant. A few minutes later, he got another call from S. Sgt. Johnston advising that there were people in the house and that one of them was ill with flu-like symptoms. Det. Insp. Fulford said that he believed there were five or six people in the house and that there was nowhere for these people to go while they waited for a search warrant. The police were aware that Mr. Boya would leave from 15 Danum to do drug deals. Det. Insp. Fulford testified that he believed evidence would disappear if they did not enter immediately. In order to minimize the impact on the family, he agreed that the search could be limited to Mr. Boya’s bedroom. This was about ten days into the first COVID-19 pandemic lockdown, and there was also a concern for the safety of all involved to spend as little time as possible inside the house. Det. Insp. Fulford said that at 12:56 a.m., he got approval from a superior officer Det. Insp. Lake to authorize an entry based on exigent circumstances. He said he gave those instructions to S. Sgt. Johnston at 1:10 a.m. He did not know why there was a 14-minute gap between when he received that advice and when he communicated it to S. Sgt. Johnston. He acknowledged being told by S. Sgt. Johnston that Mr. Boya had consented to the search of his bedroom, but maintained that this was at 2:30 a.m. (after the search was already completed), and that it was not a basis for conducting the search.
The Evidence of Goutam Boya (Father of the Accused)
[79] Mr. Boya Sr. testified that on the night of April 18/19, 2020, he and his wife were asleep and were awakened by knocking on the front door. They were the only two people in the house at the time. He dressed and went to the door and could see through the peephole that a police officer was standing there. He described the officer as being Asian, either Chinese or Japanese, and wearing a police vest that said OPP on it. It is accepted that this would have been S. Sgt. Johnston. Mr. Boya Sr. opened the door and said that as soon as he did so, S. Sgt. Johnston walked into the front hallway. He said that the officer told him his son was under arrest for conspiracy to commit murder. He described feeling shocked by that. He said that the officer then told him that everyone in the house would have to leave so that they could search the property. Mr. Boya Sr. told S. Sgt. Johnston that his wife was not feeling well and that because of the pandemic they had nowhere they could go. However, he said S. Sgt. Johnston told him again they would have to leave.
[80] At first, his discussion was only with S. Sgt. Johnston, but soon after that, two uniformed officers from Peel Regional Police entered, one male and one female. He said his wife was at the top of the staircase and they directed her to come downstairs. She asked if she could use the washroom and the officers at first refused, but then agreed she could use the downstairs washroom. A police officer waited outside the door while she was in there.
[81] Mr. Boya Sr. testified that a few minutes after that, two white officers wearing OPP vests entered. They said something to S. Sgt. Johnston as soon as they entered, which Mr. Boya Sr. did not hear, and then went straight upstairs. He recalled that they did not remove their shoes. He said he had no conversation with either of them. Mr. Boya Sr. said these two officers were upstairs for a few minutes and then came back down carrying a bag. They said something to S. Sgt. Johnston, which again he did not hear, and left. S. Sgt. Johnston then said that he and his wife could stay in the house and would not be required to leave.
[82] According to Mr. Boya Sr., S. Sgt. Johnston was in the house for this entire time, did not use his phone, and did not step outside. He said the officer was polite and courteous throughout. He denied any discussion of whether his wife had COVID-19. He said the only reference to the pandemic was in connection with them having no place to go. He denied ever having a discussion about his son’s bedroom.
The Evidence of the Accused, Justin Boya
[83] Mr. Boya testified on the application. He admitted trying to escape from the police when they attempted to stop him in the driveway of his parents’ home in the early morning hours of April 19, 2020. He said the police then trapped his car and he was ordered out of the car and to his knees by two police officers, one of whom he said was Asian, and the other Caucasian. He said he was then thrown to the ground and cuffed behind his back. When he was picked up off the ground, a third officer was there, whom he identified as D.C. Mulville. He testified that the Asian officer then went towards his parents’ house (this would have been S. Sgt. Johnston), leaving him with D.C. Mulville and the Caucasian officer (this would have been D.C. Moir). According to Mr. Boya, D.C. Mulville searched him and D.C. Moir pulled a card from his pocket and read his rights to him, including asking him whether he wanted to call a lawyer. He told D.C. Moir that he did want to call a lawyer, and gave him the name of his lawyer (Mr. Gill). He testified that as D.C. Moir was doing this, D.C. Mulville was standing right next to him and holding him. He described the three of them as being in a triangle, all facing each other with about an arms-length of space between them. He said this took place next to the car that he had been driving just before his arrest.
[84] Mr. Boya testified that after he said he wanted to speak to a lawyer, D.C. Moir told D.C. Mulville to put him in the SUV (Mulville’s vehicle) until “the cage” arrived. At the time, Mr. Boya did not know what that term meant, but it would have been a reference to waiting for a marked police cruiser to take him to the station. He said he waited inside Mulville’s car for a “couple of minutes” until a police cruiser arrived, at which point D.C. Mulville walked him to the cruiser, holding him by the arm. He could see the front entrance of his parents’ house and could see officers going inside. He said he asked D.C. Mulville why police were going into his parents’ home and was told that they were going to search the house for drugs. D.C. Mulville then asked him if they were going to find anything, to which he made no reply. He testified that D.C. Mulville then told him that they were going to “tear the place apart” and that if they found anything “they would charge everybody.” He reported that D.C. Mulville then asked again, “are you sure you don’t want to tell me what is in there, because if you don’t we will charge everyone.” He asked the officer if they would leave his parents alone if he told him where everything was. He then advised D.C. Mulville that everything was in his bedroom, telling him to go upstairs, turn right, and the first bedroom on the left was his. He said there was cocaine in the closet and fentanyl in a drawer in the tall dresser. At this point, he said that D.C. Mulville warned him that he had better not be lying, placed him in the rear of a police cruiser, and went into the house.
[85] Mr. Boya denied that D.C. Mulville ever advised him of any rights or read anything from a card. He said this was only done by D.C. Moir.
[86] On cross-examination, Mr. Boya admitted he had been smoking marijuana earlier and was high at the time this was occurring. He accepted that marijuana can impair a user’s faculties and their memory. He testified that he had been living a double life, lying to his family about what he was doing. However, he denied fabricating his evidence about his discussions with D.C. Mulville.
The Evidence of D.C. Scott Mulville
[87] There are many conflicts in the evidence of these various witnesses, some of which are difficult to reconcile. However, by far the most problematic witness was D.C. Mulville, and for this reason I have opted to review his evidence last, and at times to juxtapose it against the evidence of other witnesses who testified.
[88] D.C. Mulville has been an OPP officer for 16 years. On April 18/19, 2020, he was assigned to the surveillance team supervised by S. Sgt. Johnston. He testified that he arrived on scene at 15 Danum at 12:50 a.m., just after hearing S. Sgt. Johnston saying they could not wait as Mr. Boya was “going mobile.” He said that as he was arriving, he could see damage to several vehicles and Mr. Boya lying on the ground under arrest. He ran to assist. He said that S. Sgt. Johnston had already placed a handcuff on one of Mr. Boya’s wrists at that point and that he assisted him with completing the handcuffing of Mr. Boya. (Contrary to Mulville’s testimony, S. Sgt. Johnston said that D.C. Mulville handcuffed Mr. Boya using his own cuffs. D.C. Moir also said it was D.C. Mulville who put the cuffs on Mr. Boya.)
[89] D.C. Mulville initially testified that D.C. Moir did a pat-down search of Mr. Boya by the side of his car after they stood him up. Elsewhere in his evidence, he said D.C. Moir did this at the side of the jeep. When confronted with this discrepancy, he said that D.C. Moir did an immediate pat-down when they stood Mr. Boya up by his car, and then did a full pat-down at the jeep. Later, in his cross-examination, he said he had not actually seen D.C. Moir do the search beside the jeep, but he assumed he had done that based on his experience of what police officers do when they take charge of a prisoner. (D.C. Moir claimed to have no memory of who did the pat-down search, but acknowledged that he had recorded in his notes that it was done by D.C. Mulville. Mr. Boya also testified that the pat-down search was done by D.C. Mulville.)
[90] D.C. Mulville testified that D.C. Moir then took the initiative to walk with Mr. Boya over to where D.C. Mulville’s jeep was parked for the purpose of advising him of his rights to counsel and cautioning him. He said he was not present for that and that he did not hear it being done. He said he had walked back to the scene of the collision. He was unable to explain what he was doing there or why he went there. When asked in cross-examination why he left D.C. Moir alone with Mr. Boya, he said that it was “none of [his] business to listen to that” and that he did “not want to be a witness to it.” At another point in his cross-examination, he said that explaining the rights to counsel to a person under arrest is “usually a one-person job.” (S. Sgt. Johnston said that he left Mr. Boya in the custody of the other two officers and instructed them to advise him of his rights. Mr. Boya testified that S. Sgt. Johnston left the scene of the collision and headed for his parents’ front door, leaving him with the other two officers. He said that P.C. Moir read his rights to him from a card and that D.C. Mulville was there throughout, holding onto his arm. D.C. Moir testified that he had no memory of D.C. Mulville being there, but agreed it was possible and that he had no explanation for where else D.C. Mulville might have gone.)
[91] D.C. Mulville testified that at 12:56 a.m., he was asked by D.C. Moir to take control of Boya and place him in a Peel Regional Police cruiser that had now arrived. He said that at this point, Mr. Boya was still standing beside the jeep. He denied that Mr. Boya had ever been placed inside the jeep. (Mr. Boya claimed he was put inside the jeep. D.C. Moir testified that after reading Mr. Boya his rights, he handed him over to D.C. Mulville as he had to go speak to the Peel Regional Police.)
[92] D.C. Mulville said that as he was walking with Mr. Boya the distance of about 20 to 25 meters to the cruiser, Mr. Boya expressed some concern about his parents and asked what was going to happen to them. According to D.C. Mulville, he told Mr. Boya to stop talking until they got to the cruiser. Upon reaching the cruiser, he placed Mr. Boya in the rear seat, took out a card from his police vest, and read to Mr. Boya a “secondary caution” about making a statement. He also explained to him again that he was under arrest for conspiracy to commit murder and was under no obligation to say anything. He asked Mr. Boya if he understood, and Mr. Boya said, “Yes.” In his evidence-in-chief, D.C. Mulville testified that he then asked Mr. Boya if there were any weapons in the house that could get any of his family members into trouble, to which he gave no response. D.C. Mulville then proceeded to shut the door of the cruiser, but Mr. Boya stuck out his foot to prevent it closing and said “Wait. What is going to happen if…”. D.C. Mulville responded, “If what?” and re-asked Mr. Boya if there were drugs or weapons in the house. Mr. Boya then said, “Go up to my bedroom, bottom right closet” and then he (Mr. Boya) shut the cruiser door. He said that Mr. Boya did not tell him what was in the closet. He insisted in cross-examination that he had a clear memory that it was Mr. Boya who shut the door of the police cruiser. I pause to note the difficulty of that feat for a person who is seated in the car and whose hand are cuffed behind him. I also note that later in his cross-examination (while explaining that Mr. Boya was blurting out things to him on his own initiative, rather than in response to questions), D.C. Mulville said, “He continued to speak after I shut the police car door.”
[93] D.C. Mulville testified in chief that after Mr. Boya shut the cruiser door, he immediately went to the front of 15 Danum where S. Sgt. Johnston was standing, and at 1:10 a.m. told him what had just unfolded, specifying that he told his S. Sgt. Johnston that Boya had volunteered this information but had not said what was in the closet. He said that S. Sgt. Johnston told him that the father was also cooperative about the police going into his son’s bedroom. In his memo book, D.C. Mulville noted: “1:10 – advised Johnston what Boya said – consent to get what was in closet. Advised to enter residence as S. Sgt. Johnston told me homeowner cooperative and consented to entering home and consenting to entering Boya’s bedroom.”
[94] D.C. Mulville said that S. Sgt. Johnston then stepped away briefly. He thought he was perhaps calling a superior officer, although he could not hear the discussion. He said that at 1:12 a.m., S. Sgt. Johnston came back to him and told him that he and D.C. Flynn should go in and retrieve whatever was in the closet. D.C. Mulville acknowledged that he had nothing in his notes about S. Sgt. Johnston stepping away and then returning two minutes later and giving his instructions to enter. However, he maintained that he remembered this detail even though it was not in his notes.
[95] D.C. Mulville testified that he and D.C. Flynn entered the house at 1:12 a.m. and met both parents inside the front door. He said that they were both upset and that he apologized to Mrs. Goya for the circumstances. In chief, he said Mrs. Goya took him upstairs and showed him where her son’s bedroom was and pointed out the closet. Later, in cross-examination, he said that when he apologized to Mrs. Goya, she said that she did not mind and that if there was anything in her son’s room, she wanted it out. Later again in his cross-examination, he said that he apologized to Mrs. Boya about his boots and asked her if he should take them off and she said, “No.” (Interestingly, this detail about the officers still wearing their boots when they went upstairs was noted by Mr. Boya Sr., but he did not hear them apologizing for that, much less his wife giving them permission to keep them on. Also, according to his version of the search, the officers went straight upstairs on their own, rather than being led there by Mrs. Boya.)
[96] D.C. Mulville searched the closet and found a bag containing cocaine, as well as some cash. He also searched the dresser next to the closet and found fentanyl in two of the drawers and a quantity of Canadian cash secured with elastic bands in a third drawer. He said he left the bedroom at 1:32 a.m., taking the seized items with him.
[97] D.C. Mulville testified that Mr. Boya had only mentioned the closet as a place to look. However, upon finding the cocaine in the closet, he said he decided to search the dresser because the drugs in the closet were “in plain view”. Needless to say, based on D.C. Mulville’s own evidence from the day before, the drugs in the dresser were not “in plain view,” but rather were inside the closed dresser drawers. Further, the drugs in the closet were: firstly, inside a closet; and secondly, inside a bag inside the closet. Nothing was in plain view. D.C. Mulville did not mention searching anything other than the closet and the dresser.
[98] D.C. Mulville denied going into the house prior to being instructed to do so by S. Sgt. Johnston and was clear that this discussion took place outside the house. (This is contradicted by the evidence of Mr. Boya Sr,. who said that S. Sgt. Johnston did not go outside before D.C. Mulville and D.C. Flynn entered, spoke briefly with S. Sgt. Johnston, and then went upstairs.)
[99] In cross-examination, D.C. Mulville was asked what he believed was his legal authority to enter and search the bedroom. He said that consent was one of the reasons, and that he thought exigent circumstances also applied. He acknowledged that there was nothing in his notes about exigent circumstances, or about S. Sgt. Johnston telling him anything about exigent circumstances.
[100] D.C. Mulville testified that he believed the police had exigent circumstances to enter the unit at 88 Harbour and, after leaving 88 Harbour, he believed the same reasoning applied to 15 Danum. He said he always believed they were going into 15 Danum once they had left 88 Harbour. The ostensible reason for entering 88 Harbour based on exigent circumstances was the belief that Mr. Boya would be inside. On cross-examination about this point, D.C. Mulville said that he did not remember thinking about whether there would be any impact on exigent circumstances if they arrested Mr. Boya outside the residence at 15 Danum.
[101] In cross-examination, D.C. Mulville was asked why he bothered to seek Mr. Boya’s consent to search his room if he believed they had exigent circumstances. He responded that he never tried to get consent. Rather, Mr. Boya just started talking and he listened to what he had to say. However, when then asked if that conversation included his speaking to Mr. Boya about consequences, he stated that he told Mr. Boya that if anything was found in the house, his parents would be held accountable. He denied telling Mr. Boya that there might be damage done to the house. He said that there was no such discussion. However, in his notes he had written that Mr. Boya expressed concerns about “his house and his parents”. (Notably, this detail about him telling Mr. Boya that there would be consequences for his parents if anything was found in the house was not mentioned in D.C. Mulville’s examination-in- chief. It does, however, bear some similarity to the threats reported by Mr. Boya. Likewise, the reference in D.C. Mulville’s notes to Mr. Boya saying he was concerned about the house provides some corroboration for Mr. Boya’s evidence that D.C. Mulville told him that the house would be torn apart.)
[102] D.C. Mulville was cross-examined extensively and at multiple times about when and where he made his notes about what transpired at 15 Danum. I will not go through the muddled and inconsistent explanations D.C. Mulville provided at various times about his note-taking. He contradicted himself in several ways and his testimony became so confusing that it is, frankly, impossible to straighten it out. His testimony on this issue demonstrates the extreme unreliability of his evidence, as well as his apparent willingness to stretch the truth. However, eventually he conceded that he would have made his notes about what occurred at 15 Danum in his car at the scene, immediately after seizing the drugs and cash from the house.
Consent as a Basis for the Search of 15 Danum
[103] With respect to the 15 Danum entry, the Crown relies on s. 11(7) of the Controlled Drugs and Substances Act, which authorizes a peace officer to conduct a warrantless search of a private residence for evidence of a drug offence “if the conditions for obtaining a warrant exist but by reasons of exigent circumstances it would be impracticable to obtain one.” The Crown does not rely on consent as a basis for the entry and search at 15 Danum. The Crown’s position is that there were exigent circumstances justifying the search based on a concern for the preservation of evidence connected to drug trafficking and the circumstances of the residents of the house in light of the COVID-19 pandemic. Notwithstanding the Crown’s position with respect to the consent issue, the issue of consent played a major role in the evidence and in the mind of the officer who actually did the search. The issue cannot be simply ignored.
[104] Likewise, the Crown concedes that the statements made by Mr. Boya to D.C. Mulville were obtained in breach of his Charter rights and are not admissible. However, that does not make the issue irrelevant to the matters I have to decide.
[105] I do not believe the testimony of D.C. Mulville that he was not present when D.C. Moir advised Mr. Boya of his rights and that he did not know Mr. Boya had invoked his right to speak to legal counsel. Overall, D.C. Mulville was an unreliable witness. His evidence was riddled with inconsistencies. Either he had little or no memory of the events that transpired that night, or he was at times untruthful and could not keep straight what he had previously said. Either way, I am not able to accept the truth of any fact merely because D.C. Mulville said it happened, but am always looking for some kind of corroboration for his evidence, even if it is simply logic or common sense. D.C. Mulville’s testimony that he was not present and could not have heard Mr. Boya say he wanted to speak to a lawyer is contrary to common sense, as well as contrary to other evidence.
[106] There would have been no reason for D.C. Mulville to simply wander away as D.C. Moir was reading Mr. Boya his rights. Mr. Boya was facing serious charges, including conspiracy to murder someone by shooting him. Both officers believed him to be high on drugs and he had already tried to flee from the police in a violent and dangerous manner just moments earlier. It would not be impossible for one officer single-handedly to keep Mr. Boya under control on the side of the road, while at the same time reading him his rights from the police-issued card. However, it would be more prudent for both officers to be present for purposes of officer safety, to ensure Mr. Boya was under control, and to provide corroboration that the appropriate information was given to Mr. Boya in case this might later become an issue at trial. If D.C. Mulville had other pressing matters to attend to, there might be some rational basis for his leaving D.C. Moir alone on the street to deal with Mr. Boya. However, D.C. Mulville had nothing else he needed to do and nowhere else he needed to be. He was neither involved in the collision with Mr. Boya’s vehicle and the other cars, nor was he a witness to it. The OPP had no jurisdiction to investigate the collision; this would be the responsibility of the Peel Regional Police. His assistance would not be required in that investigation. He also had no involvement with speaking to people inside the house; S. Sgt. Johnston was taking care of that. Indeed, when the Peel Regional Police officers arrived, it was D.C. Moir who had to step away and speak to them as to what had happened, as he was a witness to the collision. At that point, Mr. Boya was left for D.C. Mulville to transfer to a Peel Region police cruiser for transport.
[107] S. Sgt. Johnston testified that he left Mr. Boya in the custody of both D.C. Mulville and D.C. Moir and told them to advise him of his rights. In the face of that instruction, I am hard-pressed to understand why D. C. Mulville would simply walk away while those rights were being given.
[108] D.C. Mulville’s explanation for leaving this task to D.C. Moir to handle by himself was far from convincing. He said he did not want to be a witness to it, which makes no sense whatsoever, as being a witness to it would actually be a helpful thing. He also said it was usually a one-person job (which is also not logical) and that it was “none of his business” (likewise nonsensical). He said that instead of remaining with Mr. Boya, he went over to the scene of the collision, but he could not explain why or what he did there. If anything was “none of his business,” it was investigating the scene of the collision.
[109] D.C. Moir could not remember whether D.C. Mulville was present or not when he was reading Mr. Boya his rights, but could not think of anything else D.C. Mulville would have been doing. He agreed it was possible that D.C. Mulville was present. He did not recall advising D.C. Mulville that Mr. Boya had expressed a wish to speak to counsel, but could think of no reason not to tell him this. Clearly, if D.C. Mulville had not been present for this conversation, it would have been important information to convey to him when he took sole custody of Mr. Boya in order to transfer him to the Peel police cruiser for transport. This suggests to me that D.C. Mulville already knew this information because he was there when Mr. Boya said he wanted to speak to a lawyer, and that he heard it from Mr. Boya firsthand.
[110] It also makes sense that D.C. Mulville was the one who kept custody of Mr. Boya throughout. I accept the evidence of S. Sgt. Johnston that he saw D.C. Mulville use his own handcuffs to restrain Mr. Boya. D.C. Moir also said that it was D.C. Mulville was the one who handcuffed Mr. Boya. If anyone was going to be called away to deal with the Peel Regional Police investigation, it would have been D.C. Moir. D.C. Moir testified that while he has no present memory of it, he wrote in his notes that D.C. Mulville did a pat-down search of Mr. Boya after they stood him up beside the car. Mr. Boya also testified that it was D.C. Mulville who did the pat-down search. This was denied by D.C. Mulville, but his evidence as to when the search was done was inconsistent and unreliable.
[111] Mr. Boya testified that D.C. Mulville did the pat-down search and then held him by the arm as D.C. Moir read him his rights. That evidence makes sense, is consistent with the evidence of S. Sgt. Johnston, and is not inconsistent with what D.C. Moir said. I accept it as true.
[112] It follows that when D.C. Mulville was asking Mr. Boya what the police were going to find in his parents’ house, he knew that Mr. Boya had invoked his right to counsel and had not yet had an opportunity to talk to a lawyer. I also find that D.C. Mulville either knew, or at the very least should have known, that there was an obligation on the police to hold off on any further questioning of a suspect.[^16] The questions he asked were a clear breach of Mr. Boya’s Charter rights.
[113] It is not necessary for me to find that the threats and inducements Mr. Boya said were made by D.C. Mulville were as extreme as Mr. Boya described them. Even on D.C. Mulville’s own version of the incident, he told Mr. Boya that his parents would be held legally responsible for any contraband the police found in the house, whereupon Mr. Boya told him where to find the drugs in his room. I find this to be a clear threat that induced Mr. Boya to make a statement contrary to his own interests. The circumstances of this situation do not even approach a free and informed consent to search Mr. Boya’s bedroom, as required under established cases such as R. v. Wills.[^17] Not only were the requirements for a valid consent not met, but the statement was also made in response to questioning after Mr. Boya had expressed his wish to speak to counsel and before his right to obtain legal advice was implemented. This was a further breach of his Charter rights.
[114] Needless to say, the police did not have a valid consent from the accused, Justin Boya, to search his bedroom. This is conceded by the Crown and by the two most senior officers that testified (S. Sgt. Johnston and Det. Insp. Fulford). To the extent D.C. Mulville may have believed he had a valid consent, he was mistaken. Further, it was apparent during cross-examination that D.C. Mulville was completely ignorant of what would be required to obtain an informed consent.
[115] It is also clear on the evidence before me that the police did not obtain, and indeed did not even seek, a consent to search from the owners of the home, Mr. Boya Sr. and his wife. I found Mr. Boya Sr. to be a truthful and reliable witness. I recognize that this was a shocking, perhaps even traumatic, incident for him and that he did not take notes. It may well be that his memory as to details is not wholly reliable. However, I have every confidence that he tried his best to tell the truth and it troubles me to say that his version of the events is as close to the truth as we are likely to get. It is certainly more reliable than the testimony of D.C. Mulville.
[116] Based on the evidence of Mr. Boya Sr. and S. Sgt. Johnston, it appears that all direct conversations about matters of substance inside the house were between the two of them. There is only one significant difference between the evidence of Mr. Boya Sr. and the evidence of S. Sgt. Johnston. S. Sgt. Johnston said he stepped outside the house to speak to D.C. Mulville and also to call his superior, Det. Insp. Fulford, to get instructions, whereas Mr. Boya Sr. said that S. Sgt. Johnston was inside the home the entire time and never stepped out. It is entirely possible that either or both of these witnesses were simply mistaken about that detail. It is possible Mr. Boya Sr. has simply forgotten that small detail, or that when S. Sgt. Johnston stepped outside briefly, Mr. Boya Sr. was preoccupied with something else (e.g. his was wife ill, and was very upset by what was happening). It is also possible that S. Sgt. Johnston moved closer to the front door where he could not be heard, but did not step outside, but has misremembered that detail. I am not troubled by this difference. It does not need to be resolved. The key point is that the interactions were between these two men.
[117] Mr. Boya Sr. testified that after S. Sgt. Johnston told him that the family needed to leave while the police waited for a search warrant, two other OPP officers came in and spoke briefly with S. Sgt. Johnston, although he could not hear what they were saying. He said that those two officers then went up the stairs to the second floor, without even removing their footwear, and headed straight for his son’s bedroom. Mr. Boya Sr. reported that the conversation between those two officers occurred inside the house near the front door. S. Sgt. Johnston and D.C. Mulville said this conversation took place outside the house. Nothing turns on whether it was inside or outside, apart from whether this discrepancy is something that affects my assessment of the reliability of the evidence of Mr. Boya Sr. (which it does not). I find that, one way or the other, Mr. Boya was aware that the two officers who conducted the search spoke first with S. Sgt. Johnston and then went upstairs. There actually was such a discussion between those two officers and S. Sgt. Johnston. The only way for Mr. Boya Sr. to have known this was by witnessing it himself. Whether it was in the hallway out of Mr. Boya’s earshot, or outside the front door (where he could see, but not hear them), is immaterial. The point is that they had a conversation with S. Sgt. Johnston and then went upstairs.
[118] Mr. Boya Sr. was clear that the two officers who did the search did not speak to him at all, but rather went directly upstairs. According to D.C. Mulville, Mrs. Boya told him that if there was anything in her son’s room, she wanted it out of the house. He also said that they offered to remove their shoes, but Mrs. Boya told them not to bother. Further, he said that Mrs. Boya personally escorted them upstairs, and not only showed them her son’s room, but pointed out the location of his closet. I have no doubt that Mr. Boya Sr. would have remembered the conversation that D.C. Mulville reported having with Mrs. Boya if it had actually occurred. D.C. Mulville’s version of the entry is completely at odds with what Mr. Boya Sr. described. In my view, the discrepancy is too great to attribute it to faulty memory on the part of Mr. Boya Sr. There is nothing in D.C. Mulville’s notes confirming that he had this discussion with Mrs. Boya, nor is the conversation confirmed by S. Sgt. Johnston. The second officer involved in the search, D.C. Flynn, was not called as a witness. I do not believe Mr. Boya Sr. lied about this detail, nor do I believe he could simply have forgotten it. I am left with the conclusion that D.C. Mulville, at the very least, embroidered his evidence about any conversation he had with the Boyas. I reject his evidence on this point. I believe what Mr. Boya Sr. said.
[119] S. Sgt. Johnston testified that he did not seek a consent from the homeowners to search their son’s room, nor did they provide such a consent. That is completely consistent with Mr. Boya Sr.’s evidence. I accept that evidence as true.
[120] D.C. Mulville testified that after the conversation with the accused in the cruiser, he went straight to S. Sgt. Johnston (who was at the house) and told him the information he had received. According to D.C. Mulville, at 1:10 a.m. he told S. Sgt. Johnston that Mr. Boya had volunteered that they should go to the bottom right closet of his room, but did not tell him what he would find there. D.C. Mulville testified that, at this point, S. Sgt. Johnston told him that the homeowner was also being cooperative and was consenting to the police entering the home and going into his son’s bedroom. He said that S. Sgt. Johnston then had a brief conversation on his phone with a person he believed to be a superior officer, but that he did not hear that conversation. S. Sgt. Johnston then came back and told D.C. Mulville and D.C. Flynn to go into the bedroom and retrieve whatever was on the floor of the closet. He said that he and D.C. Flynn then entered the home at 1:12 a.m.
[121] As I have already noted, S. Sgt. Johnston did not have the consent of Mr. Boya Sr. to search the bedroom. However, D.C. Mulville recorded this 1:10 a.m. conversation in some detail in his notes, as follows:
Advised D.S. Johnston what Boya had said to me. Consent to go into the bedroom and get whatever was in the bottom right closet. Advised to enter residence as D.S. Johnston advised me that the father of Boya and homeowner was completely cooperative as well as consenting to entering the home and entering their son’s Boya’s bedroom.
[122] After extensive cross-examination and much obfuscation, D.C. Mulville eventually testified that he wrote those notes at the scene while sitting in his car, immediately after conducting the search of the bedroom. I find that to be significant.
[123] A perplexing question arises. Why would D.C. Mulville make such a detailed note about S. Sgt. Johnston telling him that the homeowner had consented to the search if S. Sgt. Johnston said nothing of the kind?
[124] In his testimony, S. Sgt. Johnston denied having told D.C. Mulville that he had the consent of the homeowner to search his son’s bedroom. He also denied having told Det. Insp. Fulford that they had a consent to search the bedroom, either at the time or later. S. Sgt. Johnston wrote his notes hours later, after he was back at the police station but before he went off shift. He has nothing in his notes about Mr. Boya Sr. being asked for, or providing, any consent to a search. However, Det. Insp. Fulford testified that S. Sgt. Johnston told him that they had consent to search the bedroom, but he said he was only given that information after the fact, during a 2:30 a.m. briefing.
[125] Unfortunately, the testimony of Det. Insp. Fulford does not provide much clarity. It is not entirely clear why Det. Insp. Fulford was consulted about the entry at 15 Danum, or when that happened. He was not consulted about the exigent entry into 88 Harbour; S. Sgt. Johnston made that decision on his own. Det. Insp. Fulford was not on scene at 15 Danum. He testified that he received a call from S. Sgt. Johnston immediately after Mr. Boya’s arrest and before S. Sgt. Johnston had approached the front door of the house. He said that he instructed S. Sgt. Johnston that if there was nobody inside the house, they should secure it and apply for a search warrant. He said this call was at 12:38 a.m. That timing is impossible. It is clear that the clock used by Det. Insp. Fulford was completely out of sync with the times used by the officers on scene. According to the other officers who testified, Mr. Boya was not arrested until sometime after 12:48 a.m. It strikes me as odd that anyone would have contemplated that there might be nobody in the house at that hour, since the police were aware that Mr. Boya resided there with his parents. However, assuming this call did happen, and that it did take five to six minutes, it could only have been at some point between 12:50 and 1:00 a.m.
[126] According to S. Sgt. Johnston, he had no discussion with Det. Insp. Fulford until after he had gone inside the house at approximately 1:00 a.m. and had spoken to Mr. Boya Sr. He said that he told Mr. Boya Sr. that he and his wife would have to leave, but that Mr. Boya Sr. said his wife was ill with flu-like symptoms, and they had nowhere to go. According to S. Sgt. Johnston, it was at this point that he called Det. Insp. Fulford to see what he thought they should do. Det. Insp. Fulford testified about getting a call from S. Sgt. Johnston about there being five or six people in the house who had nowhere to go and that one of them had flu-like symptoms. However, he said that he received that call at 12:53 a.m. and then consulted with Det. Insp. Lake about it. He said he was advised by Det. Insp. Lake at 12:56 a.m. that, due to the complications of COVID, they could enter under exigent circumstances, but should confine the search to Mr. Boya’s bedroom. According to the various times reported by officers in the field, it is unlikely that S. Sgt. Johnston had entered by house at all by 12:53 a.m., much less been in a position to have spoken to Mr. Boya Sr. and explained the situation and then placed a call to Det. Insp. Fulford seeking instructions. According to S. Sgt. Johnston’s notes, Peel Regional Police were just arriving on scene at 12:53 a.m. and he spoke to them before he approached the home to speak to the occupants. His estimate of first approaching the front door at 1:00 a.m. seems accurate. Mr. Boya Sr. testified that he was asleep when he heard the knocking on the door. It would have taken some time for him to come downstairs and then another few minutes for them to have a conversation about what had happened. Mrs. Boya was at the top of the stairs at that point and one of the Peel Regional police officers asked her to come down. I see no way all of this could have happened prior to 12:53 a.m., which is when Det. Insp. Fulford says he first heard about the people in the house and the COVID-19 complication. He is simply wrong about the timing of that call. Det. Insp. Fulford was also wrong about there being five or six people in the house; there were only two.
[127] The next note Det. Insp. Fulford had was at 1:10 a.m., which he said was when he advised S. Sgt. Johnston to enter under exigent circumstances and search only the bedroom. He had no explanation for why it took him 14 minutes between being told by Det. Insp. Lake to authorize an exigent entry and when he conveyed that instruction to the officers on scene. An additional discrepancy is that S. Sgt. Johnston made no reference to there being any delay between his first conversation with Det. Insp. Fulford (in which he told him that the people in the house had nowhere to go and one of them was ill) and receiving instructions from Det. Insp. Fulford to enter on exigent circumstances. Based on S. Sgt. Johnston’s testimony and the testimony of D.C. Mulville, there was no time for Det. Insp. Fulford to make that additional call to his superior. However, I am confident that Det. Insp. Fulford did make that call. He recorded it in his notes and he has a memory of it. The consultation happened. The question is when it happened in relation to when D.C. Mulville conducted the search of Mr. Boya’s room.
[128] Accepting that Det. Insp. Fulford’s clock was 12 minutes earlier than everyone else’s, (based on the timing of his first conversation with S. Sgt. Johnston), the conversation he reports with S. Sgt. Johnston about the people in the house having nowhere to go would have been at approximately 1:05 a.m., his consultation with Det. Insp. Lake would have been at 1:08 a.m., and his instructions to S. Sgt. Johnston to enter under exigent circumstances would have been at 1:18 a.m.
[129] According to D.C. Mulville, he and D.C. Flynn entered the house at 1:12 a.m. He also recorded in his notes that at 1:10 a.m., he had a discussion with S. Sgt. Johnston about what Mr. Boya told him. In his testimony, he said S. Sgt. Johnston stepped away to consult with a supervisor, but there is absolutely no mention of that in D.C. Mulville’s notes. His notes speak only to the issue of consent. There is no reference whatsoever to exigent circumstances as a basis for entry.
[130] I have no doubt that S. Sgt. Johnston and Det. Insp. Fulford had a discussion about whether there were grounds for an exigent entry. I also have no hesitation in accepting the testimony of Det. Insp. Fulford that he consulted his own supervisor before getting back to S. Sgt. Johnston with an answer on this issue. As I have indicated, the only real question here is timing.
[131] Looking at the evidence as a whole, I conclude that the most likely explanation is that the call described by S. Sgt. Johnston in which he called Det. Insp. Fulford to tell him about the problem with the people in the house having nowhere to go must have been somewhere between 1:05 and 1:10 a.m. It would have been at that point that Det. Insp. Fulford consulted with Det. Insp. Lake, and sometime after that when he got the approval for an exigent entry.
[132] It was D.C. Mulville who initiated the discussion with S. Sgt. Johnston about a consent to search the bedroom. He said this was at 1:10 a.m., and that is what he recorded in his notes. He then entered the house at 1:12 a.m. Quite apart from the fact that D.C. Mulville has nothing at all in his notes about D. Sgt. Johnston placing a call or consulting with anyone before instructing his to enter, it would have been impossible for all of that to happen in two minutes. D.C. Mulville entered the house and started the search at 1:12 a.m. It is also worth noting that D.C. Mulville does not describe a thorough search of the bedroom, but only of the closet and dresser, the two locations where the accused Mr. Boya told him to look. Upon completing the search, he went to his car with the evidence he had seized. He then remained on scene for some considerable time and used that time to write up his notes. Everything in his notes is about having consent to do the search. There is nothing at all about exigent circumstances. Although he testified before me that he did the search on both grounds, I do not believe that this was on his mind at all at the time. When he carried out the search, he did so based on consent.
[133] Furthermore, I find that the addition to his notes about being told by S. Sgt. Johnston that Mr. Boya Sr. had also consented to a search of the bedroom can only have been done based on an expectation that S. Sgt. Johnston would have backed him up on that. It is inconceivable that D.C. Mulville would have made up such a thing on his own and added it to his notes without some sort of discussion with S. Sgt. Johnston.
[134] S. Sgt. Johnston, however, only wrote up his notes after returning to the station, and after his discussion with Det. Insp. Fulford that they would do the search based on exigent circumstances. Although he had nothing in his notes about doing the search on consent, and testified that he had no discussion with Det. Insp. Fulford about it, Det. Insp. Fulford testified that he did have a conversation with S. Sgt. Johnston about doing the search based on consent. Det. Insp. Fulford testified that this was at a 2:30 a.m. briefing after the search had already been done. However, almost every time recorded by Det. Insp. Fulford is inconsistent with everybody else’s timing. The fact that this information is recorded tells me that the conversation did happen, and I readily accept that this was after the search had already occurred. However, the precise timing is impossible for me to determine.
[135] Based on the whole of the evidence, I am satisfied that D.C. Mulville conducted the search based on the purported consent of the accused, Mr. Boya, and that he did so before the decision was made by senior officers that there were exigent circumstances to justify the search. I make no finding as to whether Det. Insp. Fulford told D.C. Mulville that Mr. Boya Sr. had also consented and whether D.C. Mulville believed that to be true, as opposed to both officers agreeing that this is what they would say to justify the search. However, I find as a fact that no consent was even sought from Mr. Boya Sr. Further, the “consent” obtained from the accused Mr. Boya is hopelessly tainted. There was no valid consent to search the house.
[136] It was conceded by everyone (except D.C. Mulville) that the search could not be justified on the basis of consent. However, given the problems with the evidence on this issue, I considered it relevant to expand on why there was no valid consent, before moving on to the issue of exigent circumstances.
Exigent Circumstances as a Basis for the Search
[137] The first difficulty with exigent circumstances as a basis for the search is that by the time the senior officers had approved this basis for entry, D.C. Mulville was already inside searching, and perhaps was already finished. The senior officers involved (Det. Insp. Fulford and Det. Insp. Lake) might not have known that the search was being done already, but I find that S. Sgt. Johnston and D.C. Mulville could not have received the exigent circumstances instruction until after the search had started.
[138] However, for purposes of this analysis, I will leave that aside and examine whether, on a stand-alone basis, there were exigent circumstances justifying the entry and search. I find that there were not.
[139] I accept, as did defence counsel, that there was a reasonable basis for believing that there would be evidence of drug offences on the premises. Mr. Boya had been seen leaving from 15 Danum to do a drug transaction, and then returning there afterwards. The defence conceded that there would have been grounds to issue a search warrant if one had been sought. I also accept the evidence of the officers who testified that they knew nothing about Mr. Boya Sr. and Mrs. Boya and were concerned that evidence could be lost or destroyed if they remained on the premises unsupervised while the police sought a search warrant.
[140] However, that does not mean that it was necessary to conduct a warrantless entry and search in order to preserve that evidence. The police officers took no steps whatsoever to determine whether there was in fact a place for Mr. and Mrs. Boya to go pending obtaining a warrant. They did not, for example, look at possible hotel accommodations. They did not offer to bring them to the police station while they waited. At a minimum, they could have required them to stay downstairs in the house and posted an officer at the door to ensure that they did not go into their son’s room. None of these options were considered.
[141] The police also made no inquiry about how long it would take to get a telewarrant in these circumstances. A warrant based solely on the drug trafficking by Mr. Boya would not take as long to prepare as a global warrant for all three locations, or a warrant based on the conspiracy to commit murder. The issue with respect to drug dealing would be fairly straightforward. This does not even appear to have been considered. Further, the police simply accepted at face value that the Boyas could not leave, and that the only alternative was therefore to search the bedroom without a warrant.
[142] I recognize that the COVID-19 situation made things more awkward, but I do not accept that preserving the scene while waiting for a telewarrant was rendered impossible by the pandemic. It was certainly more convenient to do the search in this manner without waiting for a warrant, but I do not accept that it was necessary.
[143] I also note that when Mr. Boya left 10 York and drove away, the police simply let him leave. If preserving evidence at the 15 Danum address was a key concern, I would have expected steps to have been taken much earlier in the evening to prevent Mr. Boya from being able to enter that address and remove or destroy evidence. This concern does not even appear to have arisen until after Mr. Boya was arrested, at which point the concern was that his parents (who had no criminal records) might destroy the evidence. I am not saying that the concern about what a parent might do to shield a child facing criminal charges was not a legitimate one. However, my point is that the concern about the evidence disappearing had no urgency in the minds of the police until after Mr. Boya’s arrest.
[144] I therefore find that the entry into 15 Danum was not justified on the basis of exigent circumstances and was a breach of Mr. Boya’s Charter rights. I make that finding independent of my primary determination that there was no bona fide entry based on exigent circumstances because the entry and search was done on the basis of a purported consent, which was invalid. By whichever route, the search was unconstitutional.
F. ANALYSIS: SEARCH OF MR. DEOL’S CAR
[145] The initial seizure of Mr. Deol’s car was made without a warrant. Therefore, the onus is on the Crown to establish on a balance of probabilities that the seizure was reasonable.[^18] In order to be reasonable: (1) the seizure must be authorized by law; (2) it must be carried out in accordance with procedural and substantive requirements of the law; and (3) it must not exceed the scope for which the seizure is permitted by law.[^19] In this case, the Crown argues that the police could have seized and searched Mr. Deol’s car as an incident to his arrest. I disagree.
[146] Although the police eventually had a warrant to search the vehicle, they seized the car before obtaining the warrant. The Crown has not established any lawful basis to seize the car. This was not an incident to Mr. Deol’s arrest. He was arrested in Unit 2001; his car was parked in the parking lot and had been there for well over an hour before Mr. Deol’s arrest.
[147] In Caslake, the Supreme Court of Canada summarized the test as follows:
In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.[^20]
[148] Mr. Deol was arrested for conspiracy to commit murder. No evidence was led as to there being any reason to believe the seizure of the car would yield evidence of that offence. The police also believed Mr. Deol to be involved in drug trafficking. However, that was not the reason he was arrested. The seizure must be connected to the arrest itself or the offence for which the person was arrested in order to fall within the common principles of a search or seizure incident to arrest. The seizure was also both temporally and geographically distanced from the arrest. If it was truly incident to the arrest, it is for the Crown to establish that connection. However, there was no evidence led before me on the issue.
[149] I can only assume that the car was seized because it was expedient to do so. Certainly, it would have been possible for an officer to watch the vehicle until a warrant was obtained and to then seize and search it. It was no doubt more efficient for the police to tow the car first and get the warrant later. However, that is not the test for when the police are entitled to seize somebody’s property.
[150] I therefore conclude that the premature seizure and the search of the vehicle was a breach of s. 8 of the Charter.
G. ADMISSIBILITY OF EVIDENCE OBTAINED: s. 24(2) OF THE CHARTER
1. The Test
[151] The defence seeks to exclude from trial all evidence obtained from searches of 10 York, 88 Harbour, 15 Danum, and Mr. Deol’s car, pursuant to section 24(2) of the Charter. In its landmark decision in R. v. Grant, the Supreme Court of Canada held that the focus of the analysis under s. 24(2) is to maintain the good repute of the administration of justice, a concept that is long-term, prospective, and societal.[^21] The Court held:
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.[^22]
2. The Evidence Obtained at 10 York
[152] I have determined that the police had exigent circumstances to enter Unit 2001 at 10 York. All evidence seized was lawfully obtained and is admissible at trial. That evidence consisted of: 227 grams of fentanyl, empty cocaine kilogram packaging, a cocaine press, a money counter, 2.8 kilograms of powder adulterants, $8639 cash, and a loaded 9 mm handgun.
[153] If I had found a breach of s. 8 with respect to this entry, I would nevertheless admit the evidence under s. 24(2) of the Charter. I find that the police acted in good faith in entering Unit 2001, believing they had the authority to do so in order to save the life of a person who was the target of a murder plot. Having entered the unit and arrested the people therein, the police waited until after they had a search warrant before actually searching the unit. This is an additional indication of their good faith. It is conceded that the police had enough evidence from their wiretap interceptions to obtain a search warrant for this unit, so discovery of the evidence was, in that sense, inevitable. The seriousness of the police conduct is therefore at the low end of the scale. Likewise, there was minimal impact of the Charter-protected rights of Mr. Deol. He had a privacy interest in the unit, but it was not his residence. Indeed, nobody was living there; it was merely being used as a stash house. Real evidence was obtained, which is highly probative and reliable. Given the nature of the substances found, the scourge that fentanyl represents in our society, and the loaded firearm that was found with it, there is a high public interest in this case being determined on its merits. In my view, all the Grant factors point towards admitting the evidence and the administration of justice would be brought into disrepute more by excluding the evidence than by admitting it.
3. The Evidence Obtained from Mr. Deol’s Car
[154] I have found that the seizure of Mr. Deol’s car constituted a breach of s. 8 of the Charter. However, in my view, it was a breach that had very little impact on Mr. Deol’s rights. Given that the car had been parked in a parking lot at the time, Mr. Deol had a limited privacy interest in it. It was always open to the police to secure the car and keep it under observation until a warrant was obtained. The police were aware the car was there and would not have left it unattended while waiting for the warrant. A warrant was in fact obtained and the search thereafter was pursuant to that warrant. It is clear, and indeed not challenged, that there were reasonable and probable grounds to issue the warrant. It was inevitable that the car would have been searched, and the evidence seized, once the warrant was obtained. The evidence obtained was not conscriptive. There was minimal impairment of Mr. Deol’s rights.
[155] I do not agree that there is a basis to find that the police acted in bad faith in towing the car to the OPP detachment. Hours before Mr. Deol’s arrest, an omnibus search warrant was in the process of being drafted for the two stash houses and several vehicles, which included this vehicle. I agree the police overstepped their authority by physically impounding the car while waiting for the search warrant, but I do not accept the defence submission that the subsequent application for a warrant demonstrates bad faith in seizing the car in the first place. On the contrary, in my view, the fact that the police held off on the search until the search warrant had been issued demonstrates their overall good faith.
[156] The police could have stood watch over the car in the parking lot to protect the evidence within it while waiting for a search warrant. Instead, they towed the car to a protected space and waited for a warrant. The extent of the Charter-infringing conduct is on the far less serious side of the range.
[157] There is always a public interest in having a case decided on its merits, particularly in a situation involving the subject matter here. Given that the conduct of the police was not egregious and the minimal impairment of the rights involved, I find that the public interest in having this case adjudicated on its merits outweighs the other factors. In my view, the admission of the evidence seized from the car would not bring the administration into disrepute.
[158] Therefore, I find this evidence to be admissible, notwithstanding the Charter breach.
4. The Evidence Obtained from 88 Harbour
[159] The warrantless entry at 88 Harbour was not justified by exigent circumstances or hot pursuit. The police made no attempt to determine if Mr. Boya was in the unit, or indeed if he was anywhere else (such as at his home) before entering the unit. I find that the police had no good faith basis for believing Mr. Boya would be present in the unit. They entered based only on a possibility that he might be there, and not in any circumstances of urgency. In particular, I am troubled by the seeming lack of any real deliberation as to whether exigent circumstances existed to enter this unit. Rather, after much consideration leading up to a decision to enter 10 York, the police seemed to merely carry on by sending the ETF over to do the same thing at 88 Harbour, without ever addressing the difference between the two situations. I consider the police conduct to be on the serious end of the continuum, albeit not at the very top.
[160] Mr. Deol did not take the position that he resided at 88 Harbour. Both Mr. Boya and his father testified that Mr. Boya lived with his parents at 15 Danum in Brampton. In argument, counsel for Mr. Boya pointed out that a person could have more than one residence (which is clearly true) and that there was evidence of someone living at 88 Harbour (a used bed, clothing in the cupboard and in the closet, a bathroom with male cosmetics, dishes in the sink, laundry detergents with the laundry machine, a chair on the balcony, a drawerful of papers and documents, and a squeegee to clean the windows). Undoubtedly, people (including Mr. Deol and Mr. Boya) were using the unit. That does not mean they were actually living there, notwithstanding that they might have slept there occasionally and kept some personal items there. As noted by the Crown, there was no food in the unit. The cupboards were bare, and the fridge contained only water and beer. There were no dishes or cutlery in the kitchen and no towels in the bathroom. There were no chairs, no couch, and no television in the living room. There was an abundance of materials indicating the unit was used for preparing and processing drugs. I find that this was not a personal residence of either of the accused.
[161] Had this been a residence, the impact on the Charter rights of the accused would have been higher. However, this unit was being used more for storage and other activities related to the drug trade, which makes the entry less personally intrusive. Further, neither of the accused was present at the time of the warrantless entry. The police seized 972 grams of fentanyl (some of which was laced with heroin) and a loaded 38 caliber Smith and Wesson revolver handgun. The evidence is tangible and objective, as opposed to being conscriptive. Also, the evidence would have been discovered in any event, as there were reasonable and probable grounds for the search warrant that was issued the next day. I find the impact on the rights of the accused to be on the low end of the scale.
[162] The real evidence seized (fentanyl and a loaded handgun) is highly reliable. The nature of that drug and its possession, along with a loaded handgun, support a strong public interest in a trial on its merits. I do not need to repeat what has been said by myself and scores of other judges in innumerable cases. Drugs such as fentanyl are a scourge on our society and a great danger to the people who live in our community. The combination of the drugs with a loaded handgun makes the situation even more dangerous, and potentially lethal. This was a close decision for me, and I have struggled with it. However, when I balance and weigh these factors, I find the scales tipped more to the interests of justice requiring the admission of the evidence. Notwithstanding the high-handed actions of the police in barging into an apartment unannounced in the middle of the night without lawful excuse, I consider that the administration of justice is more likely to be tainted by the exclusion of this evidence than by its admission.
[163] Accordingly, I find the evidence obtained from the unit at 88 Harbour to be admissible at trial.
5. The Evidence Obtained from 15 Danum
[164] Unlike the situation with 88 Harbour, the privacy intrusion at 15 Danum was at the high end of the scale. This was Mr. Boya’s personal residence and, in particular, his bedroom. The warrantless entry into the home constituted a serious interference with his rights. I cannot find that the entry was in good faith. The police were content to search only the bedroom because they had extracted information about the location of drugs from Mr. Boya through coercion and threats and also in blatant violation of his rights to counsel. This is not simply a matter of the consent being invalid. There was a separate violation of his right to counsel under the Charter. In this regard, the conduct of D.C. Mulville, in particular, was egregious. In my view, this was connected to the search, because it buttressed the decision to search only the bedroom rather than the rest of the house. I have also found that some of the officers, in particular, D.C. Mulville, were not completely honest about their conduct that night. Accordingly, I find that the state Charter-infringing conduct is very serious. I do recognize that in deciding not to search the entire house, the officers involved showed concern and compassion for the circumstances of Mr. Boya’s parents, particularly in light of the COVID-19 considerations. However, I do not find that this moves the seriousness of the state conduct away from the high end of the scale. I disagree with the Crown submission that obtaining the statement from Mr. Boya was an “isolated” Charter breach with no causal connection to obtaining the contraband from Mr. Boya’s room. Firstly, it wasn’t “isolated,” but rather followed immediately by a warrantless and unjustified entrance into the residence and a search of Mr. Boya’s bedroom. I recognize that regardless of the statement extracted from Mr. Boya, the evidence in his room would inevitably have been discovered. However, the offending conduct was a blatant breach of Charter rights, both with respect to the entry and the questioning of Mr. Boya, and the fact that the police could have obtained the same evidence without violating those rights does little or nothing to mitigate their conduct in these circumstances. I find that the seriousness of the state conduct factor favours excluding the evidence from trial.
[165] On the second of the Grant factors, I also find that the impact on the Charter-protected rights of the accused is at the high end of the scale. Mr. Boya was clearly very concerned about the impact on his parents. This concern was exploited by D.C. Mulville, who told Mr. Boya that his parents would be charged if they found any contraband in his house. Mr. Boya knew that there was fentanyl and cocaine in his room. In order to protect his parents, he made a self-incriminating statement about the location of the drugs. This was after he had invoked his right to counsel and before he had been given the opportunity to speak to counsel. The right to remain silent and the right to counsel are Charter rights that are of vital importance in the protection of persons charged with criminal offences. Mr. Boya’s rights were overridden in a blatant and wholly unacceptable manner. This factor also favours excluding the evidence from trial.
[166] Society’s interest in the adjudication of this case on its merits supports admitting the evidence at trial. However, this is almost always the case where the evidence itself is not tainted or in some way suspect. In this instance, the evidence obtained is real evidence (two bricks of cocaine, fentanyl, and a large amount of cash). Further, the quantities and nature of the drugs involved are very troubling. However, part of the basis upon which the evidence was obtained involved a conscripted statement from the accused, in clear violation of his Charter rights. I accept that the police officers involved were courteous to Mr. Boya Sr. and Mrs. Boya, and that they were concerned not to inconvenience them, particularly in light of COVID-19 and Mrs. Boya’s ill health. This is to their credit. However, it does not overcome the extreme nature of the Charter violations in other respects. The evidence obtained is important evidence for the Crown, but excluding it does not completely gut the Crown’s case against Mr. Boya.
[167] In my view, admitting the evidence in these circumstances would cause a reasonable and informed member of the public to think poorly of the justice system. To do otherwise would be to condone the actions of the police in this case, which are inexcusable. When all of the factors are weighed in the balance, I find the scales are tipped towards excluding the evidence.
[168] Accordingly, I direct that none of the evidence obtained from the 15 Danum residence is admissible at trial. Although already conceded by the Crown, I also rule that none of the statements made by Mr. Boya to D.C. Mulville are admissible.
Molloy J.
Released: January 5, 2023
COURT FILE NO.: CR-21-90000663-0000
DATE: 20230105
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
GURVIR DEOL and JUSTIN BOYA
Applicants/Defendants
REASONS FOR JUDGMENT
Molloy J.
Released: January 5, 2023
[^1]: R. v. Deol and Boya, 2022 ONSC 6511.
[^2]: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 23; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at para. 82; R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75; R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 76 O.R. (3d) 737 (C.A.), at paras. 22-27.
[^3]: Ruth Sullivan and Elmer A. Driedger, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002), at p. 162, cited in R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 72.
[^4]: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1166-1167.
[^5]: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 26; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 41.
[^6]: MacKenzie, at para. 74.
[^7]: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 33-34.
[^8]: Ibid, at paras. 36-37.
[^9]: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at para. 44.
[^10]: R. v. Pilon, 2018 ONCA 959, 144 OR (3d) 54, at para. 39.
[^11]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 35.
[^12]: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paras. 54, 74-85; R. v. N.M (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.), at para. 232; and R. v. Phoummasak, 2016 ONCA 46, 346 O.A.C. 9, at para. 14.
[^13]: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 19.
[^14]: Ibid, at para. 32.
[^15]: R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802 at p. 817, citing Roger E. Salhany, Canadian Criminal Procedure, 5th ed. (Aurora: Canada Law Book, 1989), at p. 44.
[^16]: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 69-71.
[^17]: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (C.A.).
[^18]: Haas, at paras. 23-24; R. v. Sheppard, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 15.
[^19]: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 12.
[^20]: Ibid, at para. 25.
[^21]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-70.
[^22]: Ibid, at para. 71.