ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
NONDE KARAPETROV
Defendant/Applicant
Beverley Olesko and Christie Black, for the Crown/Responding Party
Kim Schofield and N. Decock, for the Defendant/Applicant
HEARD: May 16, 17, 19, June 6, June 23, June 28, October 19, and December 14, 2022, March 30 and June 1, 2023, and by written submissions filed on January 18, March 7 and March 21, 2023
MOLLOY J.:
REASONS FOR DECISION
A. INTRODUCTION
1Tragically, on January 24, 2019, Leeann Wilfong died of a drug overdose. She was 30 years old and a drug addict. She had stayed overnight at the apartment of her boyfriend, Nonde Karapetrov, and it was he who found her unconscious in the morning. He called 911 and reported that she was not breathing. Following the directions of the 911 operator, he administered CPR while he waited for help to arrive. Fire, ambulance, and police responded to the 911 call. The paramedics were able to resuscitate Ms. Wilfong and she was rushed to hospital. However, she was found to have no brain function and died that afternoon. Both hospital personnel and police found no evidence of foul play.
2After the firefighters left and the paramedics took Ms. Wilfong to hospital, police officers remained in the apartment with Mr. Karapetrov. They wandered about the apartment looking in closets and various places. They found that the bathroom off the main bedroom was locked from the inside. Mr. Karapetrov told them that nobody used it. The officers opened the locked bathroom door, searched a cabinet in the bathroom, and found five loaded prohibited firearms in a drawer. They thereupon arrested Mr. Karapetrov and charged him with possession of the firearms.
3The police then sealed the apartment and the next day applied for a search warrant. Their search of the apartment on January 25, 2019 yielded: five prohibited loaded pistols, one of which had an over-capacity magazine containing 31 rounds of ammunition; 469.62 grams of heroin; 855.8 grams of fentanyl; 222.75 grams of heroin/fentanyl mix; 0.81 grams of cocaine; various indicia of drug trafficking (e.g. packaging, a money counter, pill presses, a vacuum bag sealing machine, cutting agents, a scale, and a bundle containing $2880 Canadian). Mr. Karapetrov’s fingerprints were on the slide of one the firearms seized and on the magazine of one of the other firearms.
4Mr. Karapetrov is charged with: possession of the five loaded firearms; breaching a prohibition order by being in possession of each of the firearms; possession of a prohibited device (the over-capacity magazine); possession of the fentanyl, heroin, heroin/fentanyl mix, and cocaine found in his apartment, all for the purposes of trafficking; and possession of proceeds of crime.
5Mr. Karapetrov applies to exclude all of the evidence seized from his apartment as having been obtained in breach of his rights under the Canadian Charter of Rights and Freedoms (the “Charter”). He submits that: the police arbitrarily detained him in his apartment (in breach of s. 9); failed to advise him of the grounds of his detention or his rights to counsel (in breach of s. 10 (a) and (b)); and, unlawfully searched his apartment without a warrant (in breach of s. 8). Further he alleges that, although the police later obtained a search warrant pursuant to which they seized the incriminating evidence in his apartment, that warrant was issued based on the fruits of the unlawful search, which must be excised from the Information to Obtain, leaving no basis upon which the warrant could have issued. Issues are also raised with respect to the implementation of Mr. Karapetrov’s right to speak to counsel after his arrest.
6The parties agree that if the evidence is admitted, Mr. Karapetrov can be found guilty on all counts. Conversely, if the evidence is excluded, all charges should be dismissed.
7For the detailed reasons that follow, I find that Mr. Karapetrov was arbitrarily detained in his apartment and not advised of the reason for the detention or his rights to counsel. This was a breach of s. 9 and 10 of the Charter. Further, the police conducted an unlawful search of Mr. Karapetrov’s apartment, resulting in the discovery of the five guns. This was a breach of s. 8 of the Charter. The police also made other observations and conducted other searches in the apartment, which were unlawful. Without this improperly obtained information, there was no basis upon which the search warrant could issue. Therefore, all of the drugs and cash seized were also obtained in breach of s. 8 of the Charter. I find no further breach of Mr. Karapetrov’s rights to counsel after his arrest.
8The more difficult issue in this case is whether, notwithstanding these Charter breaches, the evidence should be admitted at trial. The sole factor supporting the admission of the evidence is its sheer magnitude, both with respect to the number of firearms and the large quantity and dangerous nature of the illegal drugs. While recognizing the enormity of the consequences, I cannot countenance admitting the evidence in all the circumstances, including the seriousness and extent of the Charter-infringing police conduct and its impact on the rights of this accused. Accordingly, I concluded that the evidence must be excluded and all charges dismissed. On June 1, 2023, I advised the parties of this result and dismissed the charges. My reasons for these conclusions are set out below.
B. PROCEDURAL ISSUES
Procedural Motions
9A preliminary issue arose with respect to the availability of two police officers (Sgt. Malik Amah and P.C. Dwayne Stamplecoskie) to testify at the hearing before me. The Crown took the position that the officers were medically unable to testify in-person and brought a motion seeking leave to file the transcripts of their testimony from the preliminary hearing instead. The defence was opposed.
10The defence applied for leave to cross-examine several officers who were involved in the events at Mr. Karapetrov’s apartment on January 24, 2019: P.C. Persaud; D.C. Huk; P.C. Cheng; Sgt. Amah; and P.C. Stamplecoskie.1
11Mr. Karapetrov was arrested on January 24, 2019. The preliminary hearing took place on November 4-5, 2019. At that time, counsel for Mr. Karapetrov (different counsel than now before me) confirmed that committal for trial was not the issue and that the proceeding would be conducted as a “discovery” and also would be limited to the drug charges (which were federal), as there was no right to a preliminary hearing on the other charges. The defendant was committed to stand trial on November 19, 2019. In February 2020, trial dates in the Superior Court of Justice were set for October 26, 2020. Two weeks before that trial date, the Crown applied for and was granted an adjournment due to P.C. Brett Rivers having recently sustained a serious leg and spine injury. A new date was set for the trial to commence on January 24, 2022.
12In October 2021, the Toronto Police Service announced that all officers were required to disclose their COVID-19 vaccination status and become full vaccinated by November 30, 2021, failing which they would be placed on unpaid leave. By November 30, 2021, many officers were placed on unpaid leave. These included Sgt. Amah and D.C. Huk, both of whom were expected to be witnesses at trial. In December 2021, the Crown advised the defence that both Sgt. Amah and D.C. Huk had been suspended without pay due to their vaccination status, and that D.C. Stamplecoskie was on “indefinite medical leave.”
13On January 11, 2022, the parties appeared before Allen J. and the Crown requested an adjournment of the January 24 trial date. No material was filed in support of the application, but Crown counsel advised the court that both Sgt. Amah and D.C. Stamplecoskie had an “approved workplace injury” and would not be available to testify on the January trial dates. The vaccination status was not raised, nor was D.C. Huk mentioned. Allen J. adjourned the trial to May 16, 2022.
14On April 14, 2022, the Crown disclosed to the defence a will-say statement from the Officer-in-Charge, D.C. McGarrity, indicating that in December 2021 he had exchanged correspondence with D.C. Huk about his availability for the trial in January. D.C. Huk had replied that he did not wish to testify because he had been suspended without pay due to his vaccination status and that, if subpoenaed to testify, he would “forget” the details of the case and that he could prove “detrimental” to the Crown’s case.
15On April 19, 2022, the defence filed its application for leave to cross-examine several officers in support of its Charter motion. Officers Amah, Huk, and Stamplecoskie were on the list.
16On April 27, 2022, the Crown filed its application to use the transcripts of the testimony of Sgt. Amah and D.C. Stamplecoskie as evidence at trial. The Crown relied on s. 715.01 of the Criminal Code, R.S.C., 1985, c. C-46. In support of the application to use the transcripts from the preliminary hearing, the Crown filed two identical letters on the letterhead of the Toronto Police Service from someone with a degree in Kinesiology and the title “Claims Lead Wellness Unit.” Each letter was dated April 19, 2022 and stated that the officer in question “continues to have an approved workplace injury claim in accordance with the Workplace Safety and Insurance Act” and that the officer “is not able to perform policing duties, including the attendance or participation in court proceedings/testifying.”
17On May 16, 2022, the Crown filed a further application seeking to file the transcripts from the preliminary hearing evidence of the same two officers, but this time relying on s. 715 of the Criminal Code. By then, both officers had retained counsel, David Butt. Mr. Butt advised that his clients would consent to providing a letter from the treating physician for both officers Amah and Stamplecoskie.
Attendance of P.C. Huk to Testify
18On May 16, 2022, P.C. Paul Huk attended before me in response to a subpoena. The Crown did not examine him in-chief, but tendered him for cross-examination. P.C. Huk refused to answer any questions about his vaccination status and its role in his initial refusal to testify, maintaining that this was personal medical information. He acknowledged telling D.C. McGarrity that if he was subpoenaed he would “forget” the particulars of his role in this matter, but said that he was joking when he said that. He acknowledged that there was nothing from D.C. McGarrity to indicate he got the joke. In his testimony, P.C. Huk did not appear to deliberately testify in a manner detrimental to the Crown. He claimed to have no memory and no notes of many details, but the evidence he did provide appeared to be truthful.
Attendance of Sgt. Amah to Testify
19Section 715(1) of the Criminal Code provides:
Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person
a) is dead,
b) has since become and is insane,
c) is so ill that he is unable to travel or testify, or
d) is absent from Canada,
and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
20For Sgt. Amah, the only part of that test that would permit the use of his preliminary hearing transcripts would be s. 715(1)(b), which requires the Crown to establish that he is “so ill that he is unable to travel or testify.” The medical report filed in respect of Sgt. Amah clearly did not establish that he had an illness that would prevent him from testifying. I therefore issued an order that Sgt. Amah be requested to appear before me to testify on either May 19, May 20, or June 6 and that if he would not agree to any of those dates, a subpoena would issue requiring him to attend on June 6, 2022.
21On June 6, 2022, the matter proceeded before me on Zoom, with the Crown re-opening the argument on s. 715. Further medical evidence was filed and was sealed in the court file for personal privacy reasons. The Crown sought to have Sgt. Amah testify by Zoom. The defence objected. Based on the medical evidence filed, I considered that taking Sgt. Amah’s evidence by Zoom was a reasonable accommodation with respect to his medical issues.
22Sgt. Amah testified and was cross-examined that day without difficulty and without incident.
Attendance of D.C. Stamplecoskie to Testify
23I had previously ruled that the medical evidence filed in respect of D.C. Stamplecoskie did not establish that he was too ill to testify and that the test in Section 715(1) of the Criminal Code was not met. The Crown then decided not to call him as a witness. However, the defence had always wanted D.C. Stamplecoskie to be produced for cross-examination in support of the defence Charter applications, in particular with respect to the s. 9 issues.
24On October 19, 2022, Ms. Schofield (for the defence) renewed her request that D.C. Stamplecoskie be required to attend for cross-examination. D.C. Stamplecoskie was present in Mr. Karapetrov’s apartment while what is alleged to be an illegal search was ongoing. Further, he was detailed to take Mr. Karapetrov to the basement parking garage to obtain identification papers, and permitted him to return to the apartment unescorted, which was relied on by the Crown as evidence that Mr. Petrov was not detained within the meaning of s. 9 of the Charter. There had not been full cross-examination on this issue at the preliminary hearing. I ruled that D.C. Stamplecoskie was a relevant witness required for the defence and directed that he be subpoenaed. The Crown agreed to serve the subpoena rather than putting that responsibility on the defence.
25D.C. Stamplecoskie appeared before me in response to the subpoena on December 14, 2022. He was examined in-chief by the defence and cross-examined by the Crown. He appeared to be a cooperative and truthful witness. Much of his evidence was helpful to the defence, particularly on the unlawful search issues.
C. SEARCH OF THE APARTMENT WITHOUT A WARRANT
The 911 Call and Outcome for Ms. Wilfong
26At 11:01 a.m. on January 24, 2019, Mr. Karapetrov called 911 for assistance, reporting that his girlfriend, Leann Wilfong, was not breathing. He said she was in his apartment, unit 711 at 125 Village Green Square in Toronto. He advised the 911 operator that Ms. Wilfong had taken Valium and had some beer the night before and had seemed fine at 10:00 a.m. that morning. He went out to purchase something, returning at 11:00 a.m. to find Ms. Wilfong unconscious with some blood on the side of her mouth. Following the directions of the operator, he attempted to perform CPR on her while waiting for emergency personnel to arrive. Ambulance, fire, and police all responded to the call because of the nature of this emergency.
27Paramedics were the first to arrive and they immediately took steps to attempt to resuscitate Ms. Wilfong. The first police officer to arrive was P.C. Ramace Persaud, who was on scene at 11:09 a.m.. When he arrived at the apartment unit at 11:15 a.m., the paramedics were still working on Ms. Wilfong. The door to the apartment was unlocked, so he entered and spoke to Mr. Karapetrov in the hallway. In response to questioning by P.C. Persaud, Mr. Karapetrov said that on the previous night Ms. Wilfong had two beers, two Valium, some vodka poppers, and some marijuana. He also said that she may have taken Percocet as she was a drug addict and had just been released from rehab about 5 months earlier. Mr. Karapetrov also told P.C. Persaud that Ms. Wilfong lived with her mother in a building on Lawrence Avenue and provided a phone number for her mother. P.C. Persaud described Mr. Karapetrov as being very concerned about his girlfriend, distraught, and crying at times. He still had blood on his hands, face, and clothing due to his efforts to revive her.
28P.C. Persaud testified that he provided dispatch with identification information for both Leann Wilfong and Nonde Karapetrov and received information back from dispatch.
29P.C. Persaud testified that he considered this to be a medical call. He did not consider that he was investigating any kind of crime. He also said that, in his view, Mr. Karapetrov could leave at any time.
30The next officer on scene was Sgt. Malik Amah, who was the road sergeant on duty at the time of the 911 call. When he arrived at the apartment at 11:34 a.m., the paramedics were still with Ms. Wilfong. Sgt. Amah testified that he was briefed by P.C. Persaud but could not recall being told anything about Mr. Karapetrov having a criminal record.
31At 11:52 a.m., the paramedics had restored Ms. Wilfong’s heartbeat and proceeded to rush her to the nearest hospital by ambulance. P.C. Persaud followed, at high speed, in his police cruiser. On the way, he notified Ms. Wilfong’s mother, who said that she and her husband would meet them at the hospital.
32P.C. Persaud testified that when Ms. Wilfong arrived at the hospital, she was administered Naloxone, a known medication used to reverse the effects of an opioid overdose. A number of tests were ordered. P.C. Persaud was advised that there were no signs of trauma. At 1:09 p.m. Ms. Wilfong was taken for a brain scan, and at 3:13 p.m. her parents told P.C. Persaud that the doctors had determined she had no brain function and was likely brain dead.
Evidence of the Officers Who Attended the Apartment
33Meanwhile, back at the apartment, Sgt. Amah stayed with Mr. Karapetrov. Other officers subsequently arrived as follows: P.C. Stamplecoskie at 12:10 p.m. (having been summoned there to transport Mr. Karapetrov to the station); P.C. Rivers at 12:20 p.m. (summoned there to assist in securing the scene); Detectives Goldsmith and Huk at 12:18 p.m.; and P.C. Cheng at 1:05 p.m. (a Scenes of Crime Officer who was requested to attend and photograph the scene).
34Sgt. Amah testified that for the short period he was with Mr. Karapetrov alone in the apartment, he was making phone calls to obtain updates and to arrange for additional officers to attend. He also engaged in what he termed “small talk” with Mr. Karapetrov. He said that Mr. Karapetrov was very upset about his girlfriend and was asking for updates on her condition. He described Mr. Karapetrov as crying and emotional.
35Sgt. Amah was asked why he felt he had to remain in the apartment. He said he had been told by one of the detectives that they would be coming to walk through the scene and he had to wait for them to do that. He testified that he was also told by one of the detectives (he thought Det. Goldsmith) that Mr. Karapetrov “had to” go to the police station to give a statement, but he was vague about the details. He said he “may have” asked for officers to come to the apartment to “escort” Mr. Karapetrov to the police station. P.C. Stamplecoskie was clear that he was sent to the apartment for that purpose and I accept that evidence. P.C. Rivers testified that he was sent to provide extra security on scene, and that it was Sgt. Amah who was in control of everything at the scene. I also accept that evidence. Sgt. Amah’s memory was vague, but his evidence was generally consistent with those officers’ descriptions of their assigned roles. Both officers also testified that after they arrived on scene, Sgt. Amah told them to just “stand by.”
36Sgt. Amah acknowledged on cross-examination that he would have wanted to know if Mr. Karapetrov had a criminal record, but denied any memory of being told about a criminal record. However, he could not recall receiving such information and made no note of it. P.C. Persaud agreed that if there was a criminal record for Mr. Karapetrov, he would have been told that by dispatch and acknowledged that it would be standard procedure to inquire of dispatch as to the existence of a criminal record for Mr. Karapetrov. He said that he would have passed on any information received to Sgt. Amah. However, he could not remember whether he made such an inquiry in this case, could not remember if he knew about any criminal record for Mr. Karapetrov, and had no note of it. If that inquiry had been made, and in the normal course it would have been, the officers would have known that Mr. Karapetrov had a criminal record that included a December 2016 conviction for possession of drugs for the purpose of trafficking.
37When asked if he had looked around the unit, Sgt. Amah said he had “made some observations.” He later admitted that he had looked inside the fridge. He said that Mr. Karapetrov told him that he had bought some meal replacement drinks for Ms. Wilfong and put them in the fridge and he wanted to verify that information. He confirmed that the drinks were there. He also admitted looking in the freezer. He conceded that he did not have any “formal excuse” or lawful authority to search the freezer. He said he “didn’t think much about it” and that he did not remember what was there. When specifically asked if he saw a digital scale, blue surgical gloves, and zip lock containers in the fridge, he denied any memory of seeing drug paraphernalia. However, he acknowledged that he had recorded in his notes that he had seen a 6x8-inch scale. He admitted being told by another officer that there were stacks of cash in the bedroom closet.
38P.C. Stamplecoskie arrived at the apartment at 12:10 p.m. having been assigned to come in a police cruiser and take Mr. Karapetrov to the station to provide a statement. He said that when he arrived, Sgt. Amah was on the phone and the only other person in the apartment was Mr. Karapetrov, who provided his name to him when asked. Sgt. Amah told him there was a change in plan about going to the station and that he should just stand by. P.C. Stamplecoskie testified that he waited with Mr. Karapetrov in the living room and looked generally around the apartment. He said that during this time he saw Sgt. Amah in the kitchen opening up cupboards and drawers and looking inside the fridge and the stove. I note that when officers searched the apartment pursuant to a warrant the next day, they found a backpack in the stove, inside of which was a large quantity of fentanyl and heroin and a small amount of cocaine.
39While wandering around the apartment, P.C. Stamplecoskie noticed a closed door to the right of the bedroom. He tried to open it and discovered it was locked. He asked Mr. Karapetrov why it was locked and Mr. Karapetrov told him that it was so dirty he did not want anyone to see it and people could use the other bathroom. P.C. Stamplecoskie was suspicious about Mr. Karapetrov’s desire to keep the officers out of the bathroom. He raised this with Sgt. Amah, suggesting there could be another person with “vital signs absent” inside the bathroom.
40Detectives Huk and Goldsmith arrived at the apartment at 12:14 p.m. and stayed until 12:38 p.m. Their purpose in being there, according to Det. Huk, was to see if there was anything unusual at the scene that would require a criminal investigation. The only thing he mentioned seeing was a stack of cash on a shelf in the bedroom closet. He said he could see it because the closet door was “ajar”. He could not remember if he told anyone about it. He asked Mr. Karapetrov about the money and said that Mr. Karapetrov acknowledged hearing the question but did not respond to it. Det. Huk tried to open the door of the room off the bedroom (which is the room in which the guns were ultimately found), but it was locked. He asked Mr. Karapetrov about that and was told that he kept it locked because they did not use it much. Det. Huk testified that unless they had the consent of Mr. Karapetrov, he could see no lawful authority to enter the locked bathroom. He said that he and Det. Goldsmith left at 12:38 p.m. because they had completed their investigation and there was nothing further for them to do there. He was unaware of any need for the scene to be processed. He was aware that Mr. Karapetrov would be coming to the station to give a statement, but had no discussion with Mr. Karapetrov about that.
41Detective Goldsmith testified that he attended at the scene with Det. Huk at the request of Sgt. Amah. According to his notes, they arrived at 12:18 p.m. He said they had a quick look around the apartment. Det. Goldsmith noted some drug paraphernalia in the kitchen area (a small amount of marijuana, a pipe, rolling papers). He said he did not see anything that alarmed him. There were no signs of a struggle or disturbance. There was an air mattress in the bedroom with stains on the bedding, and he noted that Mr. Karapetrov had some staining around his mouth from doing CPR. He then had a brief word with Mr. Karapetrov. He said that the information provided by Mr. Karapetrov about the event matched what he had told the 911 operator and was consistent with what Det. Goldsmith could see at the scene. While he was still at the apartment, he received information from Sgt. Amah that the officer at the hospital (P.C. Persaud) had reported there were no signs of trauma found on Ms. Wilfong and she was being treated as if she had overdosed. He believed that he was also told that Ms. Wilfong was not responding to treatment. Det. Goldsmith was the senior officer at the scene (with 27 years’ experience) and he said that he had investigative oversight. He said that he would have received input from Det. Huk, but that they both agreed that there was no basis to investigate further. Det. Goldsmith testified that if Ms. Wilfong died, it would be necessary to have photographs of the scene taken to corroborate his findings as there would be an autopsy done. He decided to have those photographs taken before waiting to see if Ms. Wilfong died, which he conceded was not usual, but seemed appropriate to him in this case.
42On cross-examination, Det. Goldsmith described his decision to photograph the apartment while Ms. Wilfong was still alive as a “preemptive measure.” He conceded that there was no lawful basis to conduct a search of the apartment regardless of whether Ms. Wilfong lived or died. He said that the purpose of the photographs was merely to record the scene and not to open bags, open drawers, or things of that nature. He advised Sgt. Amah that a SOCO officer should come to photograph the scene. He gave no instructions to P.C. Cheng who was the officer assigned to take the photographs. He said that once he left the apartment, Sgt. Amah would be in charge.
43P.C. Stamplecoskie testified that he raised with Detectives Huk and Goldsmith his concerns about the possibility of there being a person with vital signs absent inside the locked bathroom. However, they did not share his concern.
44P.C. Cheng arrived at approximately 1:17 p.m. He said he was told that when he had finished processing the scene, the police would leave the apartment and turn it back over to Mr. Karapetrov. He testified that he knew the detectives from the Criminal Investigation Bureau had already come and gone and had found nothing suspicious. He further testified that Sgt. Amah was the officer instructing him and that he was told to look for anything Ms. Wilfong might have taken. He agreed that it was usual to photograph the scene in cases of a suspicious or sudden death, and also agreed that, at the time he was taking the photographs, Ms. Wilfong was still alive and the detectives who attended the scene had determined there was nothing suspicious. However, he said Sgt. Amah wanted the scene processed at that time, just in case she died, so that they would not have to stay there and wait until she died.
45Not long after P.C. Cheng arrived, Sgt. Amah determined that he was not satisfied with Mr. Karapetrov’s verbal self-identification and wanted to see an official form of identification. Mr. Karapetrov said that his identification was in his car, which was in the underground parking lot of the apartment building. Sgt. Amah detailed P.C. Stamplecoskie to “escort” Mr. Karapetrov to his car and to verify his identification. Although Sgt. Amah claimed to have no memory of this, I am fully satisfied on the evidence of P.C. Stamplecoskie that this is what happened. Other officers also noted that this was done.
46After going to the parking garage with Mr. Karapetrov and checking his driver’s license, P.C. Stamplecoskie noted the particulars in his memo book. P.C. Stamplecoskie intended at that point to go back to his cruiser to get sealing tape before returning upstairs. He said Mr. Karapetrov asked him if he could just go back to his unit and P.C. Stamplecoskie told him to go ahead and he would see him up there. P.C. Stamplecoskie then went to his cruiser, picked up the seals, and returned to the apartment. He said Mr. Karapetrov was already there and P.C. Cheng had started photographing things.
47P.C. Stamplecoskie was candid in his evidence that, in his view, the proper procedure was to seal the unit and hold the scene, pending an update on the status of Ms. Wilfong. Commenting on the extent to which officers were searching and disturbing the scene, he said, “I’ve never seen anything like it. It is not what I would have done.” He suggested to Sgt. Amah that they should seal the apartment but was ignored.
48P.C. Cheng readily acknowledged that he did not simply photograph the scene, he actively searched the apartment. He referred in cross-examination to this being a “dual role” – to search and to photograph. His search included: looking inside and examining the contents of a duffle bag, a backpack, and a suitcase that were in the living room; opening and entering the locked bathroom; and searching inside the drawers and cupboards in that bathroom.
49Sgt. Amah claimed to have no knowledge of whether P.C. Cheng looked inside suitcases, bags, or cupboards and said he did not remember giving him instructions to do so. However, he admitted telling P.C. Cheng that that they needed to search for medications. He also admitted telling P.C. Cheng that it would be necessary for him to take pictures inside the locked bathroom off the bedroom.
50P.C. Cheng testified on cross-examination that he believed his lawful authority to search the apartment was based on the consent of Mr. Karapetrov. He said his understanding was that Mr. Karapetrov had consented because Sgt. Amah told him they would turn over the apartment to him when they were done photographing the scene, and not before. He acknowledged that Sgt. Amah did not specifically tell him Mr. Karapetrov had consented to the search, but he assumed that to be the case because he was asked to take the photographs. He said that because Sgt. Amah was his supervisor, he believed he would have been acting lawfully.
51P.C. Cheng started photographing at the front door of the apartment and worked his way through to the bedroom at the back where Ms. Wilfong had been before she died. One of the first rooms photographed was the powder room near the front entrance. P.C. Cheng photographed the exterior of the cabinet in that bathroom, which included some type of medication in the form of a puffer or inhaler sitting beside the sink. He did not open any drawers or cupboards in that room and did not note the nature of the medication sitting there in plain view. He said he did not search further because the bathroom did not appear to be in use.
52In the kitchen, P.C. Cheng photographed only exterior surfaces. He testified that he did not look inside cupboards, drawers, the fridge, the freezer, or the stove in the kitchen. He denied being told by Sgt. Amah that these areas had already been searched. He said that he did not search the cupboards and drawers in the kitchen because he was trying to be “efficient and as quick as possible” and because, based on his experience, people did not keep medications in their kitchen.
53In the living room and bedroom there was very little furniture, as Mr. Karapetrov had only recently moved in. P.C. Cheng searched the contents of three separate pieces of luggage that were there but photographed only their exteriors and items that were hanging out of open bags. The air mattress in the bedroom was clearly the scene of the trauma and was where both Mr. Karapetrov and the paramedics performed procedures designed to restore Ms. Wilfong’s vital signs. P.C. Cheng took extensive photographs of everything in that room.
54Next, P.C. Cheng moved to the bathroom off the main bedroom. The door was locked from the inside. There was no key for the door, but there was a safety feature that enabled it to be opened from the outside by pushing a narrow pointy object into a small hole near the handle. P.C. Cheng testified that he was searching through his multi-tool device for an appropriate tool to open the door and that Mr. Karapetrov was explaining to him what kind of device he needed. At this point, P.C. Rivers stepped forward and popped the door open using the ink cartridge from his ballpoint pen. P.C. Cheng testified that there was an aluminum foil tray on the sink with a cigarette butt in it (which he photographed) but that apart from that, the room appeared to not have been in use. There were no toiletries, no towels, and only an unwrapped roll of toilet paper. P.C. Cheng first photographed the surface areas of the bathroom and then proceeded to search through the doors and cupboards. There was nothing of interest in the cupboard under the sink, but in the first drawer he opened, he found five firearms. P.C. Cheng said he was “very shocked” to see the guns and yelled out “Guns” to alert everyone, while at the same time drawing his own service revolver. At this point, Mr. Karapetrov was placed under arrest for possession of the firearms in the bathroom.
55At 1:48 p.m., immediately after Mr. Karapetrov’s arrest, P.C. Cheng photographed the firearms lying in the drawer. He took one more photograph of a closed door, just to show that this room had not been searched. The photographs of the firearms were the last ones taken by P.C. Cheng. No further search was carried out. The apartment was then sealed while the police applied for a search warrant. Subsequently, after obtaining a search warrant, officers searched a suitcase that was located in the bathroom and photographed its contents. These included a large cardboard box that occupied most of the suitcase and appeared to be the packaging from the inflatable mattress Ms. Wilfong had been sleeping on in the bedroom. Also in the box were a digital scale and some oil, spray, and tools used to clean guns. P.C. Cheng testified in cross-examination that he did not search the suitcase in the bathroom. He said it was open and had a box in it, but he did not see any other items. His explanation for not searching the suitcase was that he did not think there was anything in it.
56The firearms were found and Mr. Karapetrov placed under arrest at 1:47 p.m. No further search was carried out of the apartment once the guns were discovered. As at that time, to the knowledge of the police officers there, Ms. Wilfong was still alive. She had been taken for tests at 1:09 p.m. and then returned to the ICU at 1:23 p.m.
No Lawful Basis for the Search
57It is well established in the case law that the police have a common law power and duty to enter a home from which a 911 call has been placed and to ensure the safety and well-being of the person about whom the call was placed. That does not mean, however, that upon making a lawful entry the police are then entitled to act in a manner that goes beyond the right to protect someone from injury or death. As stated by the Supreme Court of Canada in its landmark decision in R. v. Godoy:
Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances.2
[Emphasis added]
58The test has both a subjective and an objective component. The officers involved must believe that their actions are necessary to save life or protect individuals from harm, and that belief must also be objectively reasonable.3 In this case, neither branch of the test has been met.
59The Crown’s position is that the police had lawful authority to search the apartment unit under their common law duty to preserve life and prevent injury. This theory is premised on the search being conducted for the purpose of locating medications or substances that Ms. Wilfong might have taken and that could have caused her medical crisis.
60The defence does not challenge the initial police entry in response to the 911 call. However, the defence contends the police authority ended when Ms. Wilfong was taken to hospital and did not extend to either remaining in the apartment or searching it. The defence also submits that the police did not conduct the search for the purpose of finding medication, but rather used this excuse to search for incriminating evidence against Mr. Karapetrov.
61Essentially, there was only one officer, Sgt. Amah, who maintained that the search was necessary to protect Ms. Wilfong’s life by attempting to find what she had ingested. P.C. Cheng testified that Sgt. Amah told him to search for medications, but that he believed the police had Mr. Karapetrov’s consent to search the apartment and to enter the locked bathroom. However, P.C. Cheng did not discuss this directly with Mr. Karapetrov. He merely assumed that from the fact that Sgt. Amah had asked him to search. It is clear that nobody asked for Mr. Karapetrov’s consent to search the apartment and that he never provided consent. Furthermore, Mr. Karapetrov maintained throughout that the police had no basis to enter the locked bathroom because it was never used by Ms. Wilfong.
62P.C. Stamplecoskie believed they had no basis to be searching the apartment, apart from the possibility of there being a dead body inside the locked bathroom, which none of the other officers considered to be reasonable. The two detectives who attended found that there was no reason to believe there was evidence of foul play but said that there should be photographs taken of the scene just in case Ms. Wilfong died. They did not believe that there was any lawful basis to enter the locked bathroom. However, they authorized having photographs taken of the scene on a “preemptive basis” just in case Ms. Wilfong died.
63I do not accept the testimony of Sgt. Amah and P.C. Cheng that the purpose of the search was to find the medication or drugs that Ms. Wilfong had taken. Furthermore, I do not believe that the police officers on scene subjectively believed it was necessary to search the contents of the apartment to find the medication or drugs Ms. Wilfong had taken. Neither the paramedics nor the hospital asked for such information. If the officers truly believed that Ms. Wilfong’s life depended on them finding the substance she had ingested, I would expect an immediate, frantic, and exhaustive search of the entire apartment. That did not happen. Instead, while Mr. Karapetrov was in the living room with P.C. Stamplecoskie, Sgt. Amah wandered about the kitchen, opening cupboards and drawers and looking in the fridge, freezer and stove. Would a reasonable person believe that Ms. Wilfong kept her medication in the stove? Or the freezer?
64No immediate search was made of the suitcase in the living room, which clearly belonged to Ms. Wilfong, and which would be an obvious place where she might keep medications. Instead, that obvious source of medications was ignored while Sgt. Amah gave priority to searching the stove and freezer. The search of the suitcases and bags in the living room did not occur until the arrival of P.C. Cheng, who had been assigned by the detectives on the case to photograph the scene just in case Ms. Wilfong died. Sgt. Amah took advantage of this opportunity to instruct P.C. Cheng to also search the premises, rather than merely photographing it. He was operating on suspicion based on bits and pieces of information he was accumulating in the apartment over the time he was there, including the locked bathroom, drug paraphernalia in the kitchen, the digital scales he saw in the freezer, the backpack he almost surely would have seen when he looked in the oven, and another officer advising him that there was a pile of cash on a shelf in a bedroom.
65It is telling that P.C. Cheng did not search any of the drawers or cabinets in the first bathroom he encountered, which was just inside the front door. His explanation was that he did not search it because it did not seem to be in use. That does not ring true. There were only two bathrooms in the apartment and it is clear the other bathroom (where the guns were found) was not actually being used as a bathroom. There was some form of medication sitting on the countertop in the first bathroom. Surely that was some indication that this room was being used. However, P.C. Cheng, ostensibly on the hunt for medications, did not even look at this medication, nor did he search the drawers or cupboards to see if there were any other medications in the room.
66This is to be contrasted with his approach to the bathroom off the main bedroom, which had been locked. Obviously, suspicions were raised as to why Mr. Karapetrov had locked this room and clearly did not want officers going in there. Upon entering, P.C. Cheng concluded it had not been used, for logical reasons such as no toiletries, no towels and no toilet paper. However, he then immediately started opening cupboards and drawers, a sharp contrast to what he did in the first bathroom, where there was actually a basis for believing it was in use.
67P.C. Cheng’s explanation for not looking in kitchen cupboards was that time was of the essence and he did not expect to find medication in the kitchen cupboards. If that is the case, why was Sgt. Amah searching the kitchen? The most obvious explanation for why P.C. Cheng did not search the kitchen is that it had already been searched by Sgt. Amah, although P.C. Cheng specifically denied this.
68Further, once it was learned that there was no medication in the second bathroom, why was that the complete end of the search? Ms. Wilfong was still in intensive care. If P.C. Cheng truly believed that the purpose of his search was to identify what she had taken, why would he not now turn his attention to the first bathroom and the kitchen cupboards, which he had not yet searched?
69I also note that P.C. Cheng searched every other suitcase and bag in the apartment, but not the one he found in the locked bathroom. His explanation that he thought it was empty is not plausible. It plainly was not empty. I find that he did not search it because, having located the firearms, he already had grounds to arrest Mr. Karapetrov and a further search could then await obtaining a search warrant. Needless to say, the delay involved to obtain a search warrant would make any evidence found in that manner useless to Ms. Wilfong’s welfare. Abandoning the search for medication before the apartment had been fully searched underscores the truth that this had never been the purpose of the search.
70The truth is that these officers were never looking for the substance that Ms. Wilfong had taken in order for them to save her life. They suspected that Mr. Karapetrov was a drug dealer, and they set out to look for evidence to confirm their suspicion, in order to arrest him. They used the pretense that they were trying to save Ms. Wilfong to cover up that true intention. They may not have expected to find a cache of firearms. But as soon as they did, their search was done. All thought of saving Ms. Wilfong by finding the substance she had taken instantly evaporated. The fact that the police abandoned any further search for medication illuminates the truth – they were never looking for evidence to save Ms. Wilfong; they were always looking for evidence to incriminate Mr. Karapetrov.
71Further, even if any of the officers subjectively believed it was necessary to find the medication, that belief was not objectively reasonable. First of all, there is no medical evidence that such information was needed or would have been helpful. The police were never asked by any medical professionals to search for such evidence. The paramedics who attended the scene did not ask for it. More importantly, P.C. Persaud went to the hospital in the ambulance and was with Ms. Wilfong at the hospital. If the doctors wanted police assistance to identify the nature of the drug taken, it would have been an easy thing for them to ask. P.C. Persaud was in constant communication with his supervisors by phone and would have immediately passed on such a request. However, no such request was made. At no time was there any indication that searching for medication or drugs was important, or even useful, to save Ms. Wilfong’s life. By the time P.C. Cheng entered the locked bathroom, it was nearly three hours after Ms. Wilfong had been found unconscious, and nearly two hours since she had been rushed to hospital. An objective basis for searching the apartment for medication has not been established.
72There were no exigent circumstances here. The officers did not subjectively believe that they had an urgent basis to search for whatever substance Ms. Wilfong had taken for the purpose of turning this information over to her doctors. Further, there were no objectively reasonable grounds to search the apartment for that purpose.
73This was an illegal search.
74In addition, even if there was a basis for photographing the scene to document the circumstances of a sudden death, that basis did not exist at the time the photographs were taken, as Ms. Wilfong was still alive. The police did not have Mr. Karapetrov’s permission to photograph his home. Both Ms. Wilfong’s doctors and the lead detectives on the case had ruled out suspicious circumstances. Ms. Wilfong was, to the knowledge of the police, still alive when the photographs were taken. They cannot justify such an invasion of privacy by saying it was more convenient for the police to photograph the scene ahead of time, to save them having to wait around for her to die. This is repugnant. This constitutes a further invasion of and violation of Mr. Karapetrov’s privacy rights under s. 8 of the Charter.
75The Crown does not rely on consent as a basis for doing the search or for photographing the scene. I will therefore only address it briefly, even though it was relied on as a basis by P.C. Cheng who was the one who entered the bathroom and found the guns. The requirements for a valid consent were established by the Ontario Court of Appeal in R. v. Wills, which held that there is a burden on the Crown to establish on a balance of probabilities that:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent.4
76The Court in Wills elaborated further on the sixth criterion relating to awareness of the consequences of consent as follows:
The awareness of the consequences requirement needs further elaboration. In Smith, supra, at pp. 726-28 S.C.R., pp. 322-23 C.C.C., McLachlin J. considered the meaning of the awareness of the consequences requirement in the context of an alleged waiver of an accused's s. 10( b) rights. She held that the phrase required that the accused have a general understanding of the jeopardy in which he found himself, and an appreciation of the consequence of deciding for or against exercising his s. 10( b) rights.
A similar approach should be applied where s. 8 rights are at stake. The person asked for his or her consent must appreciate in a general way what his or her position is vis-a-vis the ongoing police investigation. Is that person an accused, a suspect, or a target of the investigation, or is he or she regarded merely as an "innocent bystander" whose help is requested by the police? If the person whose consent is requested is an accused, suspect or target, does that person understand in a general way the nature of the charge or potential charge which he or she may face?
In addition, at least in cases where the person is an accused, suspect or target of the investigation, the person whose consent is sought must understand that if the consent is given the police may use any material retrieved by them in a subsequent prosecution.5
77The Crown has not established any of the applicable preconditions. Mr. Karapetrov would have been the one with authority to consent. However, no officer testified that Mr. Karapetrov consented to the search. At most, he stood by and let it happen. With respect to the locked bathroom, based on the evidence of P.C. Stamplecoskie, Mr. Karapetrov actually refused his consent. Further, the police told Mr. Karapetrov that they would not turn the apartment back to him until they had photographed all of it. This was without legal foundation and was oppressive. Mr. Karapetrov was completely unaware of his right to refuse to permit this conduct or of the consequences of it. As I will deal with below, he was never advised he was under detention, nor of his right to speak to a lawyer during the two-hour period that the police took over the apartment, searched, and photographed it. There is no basis in fact or law to justify the search based on consent, and the Crown, to their credit, did not seek to do so.
D. SEIZURE OF THE CAR WITHOUT A WARRANT
78Upon discovery of the five firearms, the police sealed and guarded the apartment while they started the process of applying for a warrant. They took no such steps with respect to Mr. Karapetrov’s car, which they knew was parked in the parking garage. Instead, they sealed it and towed it to the Toronto Police Service garage facility, although they did not search it before they had obtained the warrant. Obviously, Mr. Karapetrov was unable to use the car anyway because he was in custody. Also, it would have been worse if the police first searched the car and then applied for a warrant (like they did for the apartment). Nevertheless, the seizure of the car without a warrant was another breach of s. 8 of the Charter. Furthermore, the police obtained their information about the whereabouts of the car by demanding formal proof of Mr. Karapetrov’s identity and then escorting him to his car to fetch his driver’s license. This was while Mr. Karapetrov was under arbitrary detention (see below), which compounds the s. 8 breach.
E. DETENTION WITHOUT BEING ADVISED OF REASON OR RIGHTS TO COUNSEL
79There is no question the police were authorized to enter Mr. Karapetrov’s apartment in response to the 911 call. This is not disputed by the defence. However, the defence challenges the right of the police to remain on scene hours after Ms. Wilfong had been taken to hospital, and to photograph the premises during that time. The defence further maintains that Mr. Karapetrov was detained by the police during this time, but was never advised of the reason and never advised of his right to counsel.
80The 911 call was at 11:01 a.m. and the paramedics left with Ms. Wilfong in an ambulance at 11:52 a.m. The firearms were found at 1:47 p.m. and Mr. Karapetrov was immediately arrested. The question is whether, for any part of the nearly two-hour period after Ms. Wilfong had been taken to the hospital, Mr. Karapetrov was detained within the meaning of s. 9 of the Charter. The Crown takes the position that Mr. Karapetrov was never detained. It is clear he was never advised he was under detention, nor was he provided with his rights to counsel. The Crown does not advance any basis upon which it would have been lawful to detain Mr. Karapetrov, but rather maintains that he was free to leave at any time. It follows, that if there was a detention, no basis for it has been established.
81Sgt. Amah testified that he told Mr. Karapetrov that he “had to” go to the police station to provide a statement about what happened to Ms. Wilfong. P.C. Stamplecoskie was summoned to the apartment with a marked cruiser to take Mr. Karapetrov to the station. According to Sgt. Amah, Mr. Karapetrov was prepared to go to the station to provide a statement, but he wanted the police officers out of his apartment first. The police had the keys to his apartment. Sgt. Amah told him that he would not be permitted to get his apartment back, or the return of his keys, until after the SOCO officer arrived and finished taking all of the photographs.
82As I have already discussed, the police had no legitimate reason to remain in the apartment, and no legitimate basis at that point in time to photograph it. The police did not have, indeed did not even seek to obtain, Mr. Karapetrov’s consent for the SOCO officer to take photographs or for the officers to remain in his unit. He was presented with only two options: (1) leave his apartment full of police officers (who were already prowling about and looking into things) while he was escorted to the police station by an officer in a marked cruiser to give a statement; or (2) stay in his apartment until the photographs were done and all the police officers out of his apartment, and then go to the station. He elected to stay until he was given his apartment back. Given that the police had no right to be there at this point, in my view, this was not a fair option to present.
83There is a clear power imbalance between the police and the accused in this situation. This is partly due to the power imbalance that naturally exists between police as authority figures and members of the public but was also exacerbated here by the traumatic circumstances Mr. Karapetrov had just been through, his clearly emotional and distraught state, and the sheer number of officers who were in his small apartment. Although Mr. Karapetrov was free to wander around the apartment and go out on the balcony and talk on his cellphone, he was not able to do any of this in privacy. There was always a police officer with him.
84An individual can be considered detained for purposes of s. 9 of the Charter without any physical restraint being applied. Depending on all of the surrounding circumstances, a psychological form of restraint will suffice in a situation where a reasonable person would conclude they had no choice but to comply with police requests.6 In Le, the Supreme Court of Canada noted:
Even, therefore, absent a legal obligation to comply with a police demand or direction, and even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave. Most citizens, after all, will not precisely know the limits of police authority and may, depending on the circumstances, perceive even a routine interaction with the police as demanding a sense of obligation to comply with every request (see S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83).7
85The Supreme Court of Canada summarized these principles in Grant as follows:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.8
86At an early stage, Sgt. Amah directed P.C. Stamplecoskie to escort Mr. Karapetrov to the parking garage so that he could satisfy himself of his identity by checking government identification, which Mr. Karapetrov said was in his car. The Crown points out that P.C. Stamplecoskie allowed Mr. Karapetrov to return to his unit unescorted and submits that this supports the position that Mr. Karapetrov was not detained. First of all, Mr. Karapetrov was not simply released from the apartment to go and retrieve his identification; P.C. Stamplecoskie was detailed to escort him to the car for that purpose. Also, the conduct of Mr. Karapetrov indicates that he believed he was obliged to comply with police demands. The police had no right to demand his identification, but Mr. Karapetrov clearly felt he had to comply. He was not comfortable about the officers having free rein in his apartment while he was not in it, but nevertheless went to get his identification from his car and provided it to P.C. Stamplecoskie. The officer then wanted to go back to his cruiser to pick up sealing tape at which point Mr. Karapetrov asked for permission to go back to his apartment unit, to which P.C. Stamplecoskie agreed, stating he would “see him up there.” The fact that Mr. Karapetrov asked permission to do this, rather than simply announcing to the officer what he was going to do, is some evidence of the degree of psychological control the police had exerted over Mr. Karapetrov.
87It must also be noted that P.C. Stamplecoskie had formed the view that the police had no authority to simply search or occupy the apartment. The reason he returned to his vehicle was to pick up sealing tape as he thought the apartment should be sealed and monitored until there were lawful grounds (such as a search warrant) to enter. Whether P.C. Stamplecoskie believed he had grounds to detain Mr. Karapetrov, and therefore whether he was detained, is not the issue. It was Sgt. Amah who was running the investigation, and he did not permit Mr. Karapetrov to leave without a police escort.
88As a lay person, Mr. Karapetrov would have no way of knowing that the police had no right to be in his apartment, no right to photograph his home and his belongings, and particularly no right to search through his things. He did not object, but merely stood by as they took over. In my view, this shows the extent to which he was completely under the control of the police and believed he had no choice but to go along. Many reasonable people, uninformed of their rights, would believe the same thing. That is why police are required to advise a person under detention that they have a right to speak to a lawyer without delay. This is exactly the kind of situation in which a person, confronted with the might and authority of the police, is in critical need of advice about their legal rights.
89I find that the police in this situation simply ran roughshod over Mr. Karapetrov’s rights, taking control of his apartment for nearly two hours, photographing it, searching it, and finally forcing their way into a locked room he did not consent to them accessing. He was told he could go to the police station, under escort, to give a statement, but that while he was gone the officers would remain behind and carry out these activities in his absence. He chose to stay. In my view, that is not a demonstration of his freedom to leave, but rather evidence of his belief that he had no realistic option but to stay. No officer ever told him that he was free to leave. And in any event, why should he leave? This was his apartment. It was the police who should have been leaving.
90As I have already noted above, I do not accept that the purpose of the police presence in the apartment was to find medical evidence to save Ms. Wilfong. On the contrary, their purpose was to search for evidence of a criminal offence. As a result of the initial call and their subsequent snooping around the apartment, they had: a known drug addict who was found with vital signs absent after what the hospital was treating as a drug overdose; drug paraphernalia in the kitchen; a money counting machine and packaging material; a backpack in the stove; a stack of money in a closet; and a locked bathroom that Mr. Karapetrov did not want them to enter. Much of this information had already been obtained by the police without lawful authority. To maintain that their purpose in going into that bathroom was to look for medication is sheer nonsense. This was a criminal investigation and the police failed to advise Mr. Karapetrov of that, in breach of his rights.
91I find Mr. Karapetrov was detained during this period of time. There was no lawful basis for it. This was, therefore, an arbitrary detention contrary to s. 9 of the Charter.
92Further, Mr. Karapetrov was not told the reason for the detention, nor was he advised of his right to counsel, much less given an opportunity to seek legal advice about his situation, which was a breach of his rights under ss. 10(a) and 10(b) of the Charter. Under s. 10(a) of the Charter, a person under detention (including investigative detention), has the “right to be informed promptly of the reasons therefore.” This was not done until after he was arrested for possession of the firearms.
93The rights under s. 10(b) of the Charter have both an informational and implementation component. The police have three obligations: (1) they must “without delay” advise the detainee of his right to consult any counsel he chooses and of the availability of free advice through legal aid and duty counsel; (2) if the detainee expresses a wish to speak to a lawyer, they must immediately provide the detainee with a reasonable opportunity to exercise that right; and (3) they must hold off eliciting any statement from the detainee until he has had the opportunity to speak to counsel.9 For the two hours prior to his arrest, while Mr. Karapetrov was detained in his apartment, no officer advised him of his right to counsel.
94I find the words of Doherty J.A. in R. v. McGuffie, with respect to the purpose underlying s. 10(b) of the Charter, to be particularly apt here:
The purpose animating s. 10(b) applied with full force in this case. The appellant was under the control of the police. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser. Constable Greenwood took advantage of that control to subject the appellant to an unconstitutional detention and two intrusive unconstitutional searches, both of which yielded incriminatory evidence. The appellant was in serious legal jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it. The conduct of the police, and specifically Constable Greenwood, ensured that he would not receive that advice until after the police were done with the appellant and had the evidence they needed to convict him. The appellant's rights under s. 10(b) were breached.10
[Emphasis added.]
F. IMPLEMENTATION OF RIGHTS TO COUNSEL AFTER ARREST
95When the firearms were discovered, Mr. Karapetrov was in the bedroom adjacent to the bathroom where they were found. At 1:47 p.m., immediately after the firearms were discovered, P.C. Rivers handcuffed Mr. Karapetrov and told him he was under arrest for possession of the firearms. This satisfies the requirements of s. 10(a) of the Charter.
96P.C. Rivers then decided to take Mr. Karapetrov to the living room area to conduct a pat-down search and advise him of his rights. That was a reasonable decision given the location of the firearms and the number of officers in that area attending to that issue. I have no difficulty with delaying the informational component of s. 10(b) for a few minutes in order to move to a quieter area for the purpose of ensuring those rights are heard and understood. Unfortunately, P.C. Rivers did not hold off asking any questions before advising Mr. Karapetrov of his rights. As he was walking with Mr. Karapetrov past the open bathroom door, P.C. Rivers asked if the guns were real. Mr. Karapetrov responded that the guns were real. This was prior to him being advised of his rights. P.C. Rivers testified that he meant that question for P.C. Cheng but that Mr. Karapetrov answered before P.C. Cheng had a chance to do so.
97After doing a pat-down search of Mr. Karapetrov in the living room, P.C. Rivers advised him of his rights. Mr. Karapetrov responded that he understood and that he wanted to speak to a lawyer, specifying Christophe Preobrazenski. This was at 1:51 p.m., merely four minutes post arrest, and I find it to be compliant with the informational component of s. 10(b) of the Charter.
98Mr. Karapetrov was transported to the police station in 42 Division by P.C. Stamplecoskie. P.C. Rivers followed in a separate police cruiser. P.C. Rivers testified that they arrived at their cars at 2:09 p.m. and there was a delay of 18 minutes while P.C. Stamplecoskie booted up his car’s computer and entered information about Mr. Karapetrov that would be required for booking. They departed the scene at 2:27 p.m. and arrived at 42 Division at 2:37 p.m. Mr. Karapetrov was then paraded and a Level 3 search was conducted, a process that was completed at 3:12 p.m. He was placed in a cell at 3:14 p.m.
99It was P.C. River’s duty to contact Mr. Karapetrov’s chosen counsel, Mr. Preobrazenski. He did not place that call until 3:57 p.m. That is a delay of 42 minutes from when Mr. Karapetrov was placed in the cell and the first attempt to implement his expressed wish to speak to a lawyer. During that time, P.C. Rivers got the name of the lawyer from Mr. Karapetrov and then brought his cellphone to his cell so that he could look up the phone number for Mr. Preobraszenski. P.C. Rivers did some checking to determine that this was the name and number of a practicing lawyer. He also did some routine administrative work and spoke with officers in the Major Crime Unit. At 3:57 p.m., Mr. Preobrazenski told P.C. Rivers that he was in court but would call back when he was free. At 4:47 p.m. Mr. Preobrazenski called the station and was connected with Mr. Karapetrov. At 5:08 p.m., Mr. Karapetrov was returned to his cell, having completed his discussion with his lawyer. No attempts were made by any police officers to elicit a statement from Mr. Karapetrov prior to 5:08 p.m. Mr. Karapetrov did provide a statement to police later that evening, but only with respect to the circumstances of Ms. Wilfong. He refused to answer any questions with respect to the charges against him.
100The officers’ compliance with their duty to implement Mr. Karapetrov’s right to counsel by connecting him with a lawyer after his arrest was less than perfect. I agree with the submission of defence counsel that more could have been done to implement that right at the apartment before Mr. Karapetrov was taken to the station. P.C. Rivers simply stated that there was no way to provide the privacy necessary to permit that while in the apartment. It is difficult in retrospect to be specific about how that could be done. However, the small powder room was available and could quickly be searched before putting Mr. Karapetrov inside with a cellphone. Another alternative would be the balcony with the doors closed so that Mr. Karapetrov could be watched while he was making the call to ensure he was not making other calls. I do not consider this to be an egregious breach, however, and there could have been security issues involved in permitting Mr. Karapetrov the free use of his phone at this point. Likewise, at the station, insufficient priority was given to placing the call to counsel at the earliest opportunity, but the delay occasioned was likely no more than half an hour. In any event, if Mr. Preobrazenski was in court at 3:57 p.m., he was also likely in court at 3:14 p.m. when Mr. Karapetrov was placed in a cell. It is unlikely that placing an earlier call to Mr. Preobrazenski would have resulted in Mr. Karapetrov speaking to him any earlier.
101I therefore find a minor breach of the implementation duty under s. 10(b), but it had little impact on the accused.
G. THE SEARCH WARRANT
Contents of the ITO Filed to Obtain the Warrant
102On January 25, 2019, the police obtained a search warrant to search Mr. Karapetrov’s apartment at 125 Village Green Square and his Infiniti car based on an Information to Obtain (ITO) sworn by D.C. Michael Lane. Although D.C. Lane states that he was aware of the legal requirement for his affidavit to be “full, frank and fair,” there are many material things not disclosed in the ITO. For example, there is no mention of the fact that police officers searched the apartment or their basis for doing so, and in particular, no discussion of the authority of those officers to enter the locked bathroom where they found the firearms. There is also no mention of the fact that Mr. Karapetrov did not consent to the police entering the bathroom. The ITO reports that P.C. Cheng was “taking photographs and documenting the scene” but does not state that he was also searching the apartment. Further, the ITO does not disclose that many other areas of the apartment were also searched, nor the basis for doing that, nor for taking the photographs, some of which were included in the ITO. The ITO also omits any information about the conclusion by the doctors and by the criminal detectives that there were no suspicious circumstances with respect to Ms. Wilfong’s medical crisis.
103In addition to information obtained from officers who searched Mr. Karapetrov’s apartment, the ITO relies on the following information obtained from Leann Wilfong’s mother, Shelly Wilfong as follows:
Her daughter Leann and her daughter’s three children were living with her in her apartment;
She (the mother) has known Mr. Karapetrov for approximately one year and buys “weed” from him;
Her daughter dated Mr. Karapetrov for about six months but they have never lived together;
Mr. Karapetrov is a drug dealer in Toronto and “up north” and got her daughter hooked on opiates;
Mr. Karapetrov deals drugs in his black Infiniti;
In the past (date unspecified), while in her apartment, Mr. Karapetrov pulled out what she believed to be cocaine and described it as “a half quarter amount”;
Three weeks earlier Mr. Karapetrov’s brother had been shot in the head;
A week earlier, Mr. Karapetrov was at her apartment and told her that he “had protection”, stated “blood for blood”, and got her to feel his side, which she said felt like the handle and barrel of a gun.
104The ITO further states that Mr. Karapetrov has a criminal record consisting of a dangerous driving conviction and several failures to comply with a recognizance and attend court in 2007, and a conviction for possession of a Schedule 1 drug for the purpose of trafficking in 2016.
105A routine motor vehicle search also revealed that Mr. Karapetrov was the registered owner of a 2012 Infiniti with the license plate CAAE 372. The recorded address for Mr. Karapetrov with the Ministry of Transportation was an apartment on Lawrence Avenue East. The ITO also states that while officers were at Mr. Karapetrov’s apartment on Village Green Square, P.C. Stamplecoskie escorted him to the parking garage to retrieve his driver’s license and noted that his car was a 4-door black Infiniti with the license plate CAAE 372. The ITO disclosed that the police had already seized the Infiniti, sealed it, and towed it to the police garage in advance of applying for a search warrant.
Legal Test for Reviewing a Search Warrant
106The starting point for every review of a search warrant is the presumption that the search warrant is valid. Because of the presumption of validity, the onus is on the party seeking to set aside the warrant to establish, on a balance of probabilities, that the presumption has been rebutted. My role as a reviewing judge is not to consider whether I would have issued the warrant, but rather whether based on the whole of the evidence, particularly after offending material is excised or amplified, there remains any basis upon which the initial judge could have issued it.11
107As The Supreme Court of Canada stated in R. v. Morelli:
In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.12
108Where the applicant establishes that information in the ITO was obtained in breach of the Charter rights of the accused, that information should be excised from the ITO before considering whether the warrant was validly issued. The determination of validity is then considered based only on lawfully obtained information set out in the ITO. At this point, there is not a balancing exercise such as would be carried out under s. 24(2) of the Charter. The excisions or amplifications are simply made.13
109After excising the offending information, my task is to consider whether, based on the remaining material, there is still a basis for the warrant to have issued. As stated by the Supreme Court in Araujo, the “test is whether there was reliable evidence that could reasonably be believed on the basis of which the authorization could have issued.”14
110In R. v. Debot, the Supreme Court of Canada identified the three criteria important for assessment of the reliability of information provided in an ITO.15 First, the information should be compelling, particularly with respect to the source of the knowledge, the level of detail provided, and the currency of the information. Second, the information should be assessed for credibility, which includes a consideration of the nature and character of the person providing the information and their possible motivation to lie. Third, it is important to consider the extent to which the information provided is corroborated. Corroboration of the actual criminality is particularly useful, but where that is not available, the extent of corroboration of other details may suffice. Weaknesses in one of these “three Cs” may be compensated for by strengths in other factors.
Analysis
111All of the evidence garnered by police at the apartment after the paramedics left with Ms. Wilfong is tainted. It was obtained in breach of Mr. Karapetrov’s Charter rights. It is therefore excised.
112What is left is information about what happened to Leann Wilfong and information from her mother Shelly Wilfong (“Shelly”), along with some independent information corroborating what Shelly said.
113Shelly provided a formal statement to the police within hours of her daughter’s death. Even while her daughter was still in Intensive Care, Shelly told P.C. Persaud that she believed Mr. Karapetrov to be a drug dealer and that she blamed him for her daughter becoming addicted to opiates. In her formal statement, Shelly provided additional details. I will review this information in relation to the “compelling, credible, and corroborated” factors. With respect to the information being credible, I am not suggesting that Shelly lied to the police or fabricated evidence. However, she was grieving the death of her daughter and blamed Mr. Karapetrov. Her information must be considered in that light.
114Shelly Wilfong had firsthand knowledge that Mr. Karapetrov was a drug dealer because she said she bought “weed” from him. However, it is unclear how current that situation was. There is some corroboration for that information in that Mr. Karapetrov was convicted in 2016 of possession of drugs for the purpose of trafficking. However, that is also dated. Shelly said that he showed her a substance she believed to be cocaine. However, she did not know that to be the case, and does not claim that Mr. Karapetrov told her it was cocaine. This incident appeared to have occurred in Shelly’s own apartment and the date is not specified. The ITO does not disclose how Shelly got the information that Mr. Karapetrov supplied cocaine to her daughter. But that information was also dated as Leeann had been in rehab for some period of time before her death.
115The ITO relies on information from Shelly that Mr. Karapetrov deals drugs from his black Infiniti car. The information that Mr. Karapetrov owns an Infiniti was corroborated and is a matter of public record. However, there is no corroboration that he dealt drugs out of that car, nor is there any indication of how Shelly obtained that information. It is neither credible, compelling, nor corroborated.
116Shelly’s information that Mr. Karapetrov’s brother was shot in the head is corroborated by police occurrence reports. Shelly told the police on January 24, 2019 that this had happened “approximately three weeks ago.” Police records show the incident occurred on January 4, 2019. This information is compelling and corroborated and credible. However, it does not relate to Mr. Karapetrov, but rather only to his brother.
117The ITO reported information from Shelly that a week previously Mr. Karapetrov had been in her apartment and told her that he had protection, and that she then felt what she believed to be the handle and barrel of a handgun under his shirt. Even Shelly did not know it was a gun, much less a real gun. Again, the information is neither compelling nor corroborated.
118Finally, there is no indication that Shelly Wilfong even knew that the apartment at Village Green Square existed. Mr. Karapetrov used to live near Shelly’s apartment on Lawrence Avenue East, which is how she apparently came to know him. The Lawrence Avenue address is on his driver’s license and vehicle registration. Mr. Karapetrov told the police that he was in the process of moving from Lawrence to the Village Green Square apartment and the police noted that it contained no furniture. Although there was evidence that Mr. Karapetrov had some things there and had slept there the night before, the evidence does not support an inference that he was actually living there yet. The only information Shelly had with respect to drugs (which was limited) or a firearm (which was speculative) came from what she observed in her own apartment. She had no information whatsoever connecting any drugs or guns to the Village Square apartment or the Infiniti.
119In my view, the limited information set out in the ITO, after excision, does not meet the standard required to support a warrant to search Mr. Karapetrov’s apartment and car. It comes down to: Mr. Karapetrov had been a marijuana supplier sometime prior to 2019; he had a bag of something in Shelly’s apartment on an unspecified date, which she “believed” was cocaine; he had a possible motive to arm himself after his brother was shot; a week previously he had an object under his shirt that Shelly touched and “believed” felt like a handgun, although she did not see it. There is no connection to the Village Green apartment or car and the evidence does not rise much beyond speculation. It does not amount to reasonable and probable grounds to believe that there would be evidence of drugs and firearms in either the Village Green Square apartment or Mr. Karapetrov’s car on January 25, 2019. There was no basis upon which the search warrant could have been issued without the tainted evidence from the police officers at the scene. Accordingly, the search warrant is quashed and all the evidence obtained pursuant to it was obtained unlawfully.
H. ADMISSIBILITY OF THE EVIDENCE: SECTION 24(2)
The Test
120The Crown submits that notwithstanding these Charter breaches, the real and reliable evidence found by the police should be admitted at trial. Both parties agree that the applicable test is as set out in R. v. Grant,16 pursuant to which I am required to consider the effect of admitting the evidence on society’s confidence in the justice system, having regard to three factors:
i) the seriousness of the Charter-infringing state conduct;
ii) the impact of the breach on the Charter-protected interests of the accused; and,
iii) society’s interests in adjudication of the case on its merits.
Society’s Interests in Adjudication on the Merits
121I will address the third factor first. It is almost always the case that society’s interests in a case being adjudicated on its merits will tip the scales in favour of admitting the evidence. The firearms and drugs recovered by the police are tangible and reliable evidence. Such highly reliable evidence typically points strongly towards inclusion of the evidence. This is particularly true when the evidence consists of firearms and extremely dangerous drugs, in this case heroin and fentanyl. Further, there were five loaded firearms, not just one, and very large quantities of both fentanyl and heroin. I am all too well aware of the significance of gun violence in Toronto and I recognize the impact this must have on the s. 24(2) analysis. In R. v. Omar, the Supreme Court of Canada considered a decision of the Ontario Court of Appeal, which excluded a firearm under a s. 24(2) analysis. The Supreme Court reversed that decision, essentially for the reasons of Brown J.A. in dissent. In his decision, Brown J.A. stated:
I completely agree with my colleague that it is "fundamental to our social order that the police, like all other state actors, perform their duties in accordance with the law and that they respect Charter rights": at para. 55. At the same time, it is equally fundamental to our social order that Canadian citizens can walk their public streets and exercise their Charter liberty rights without finding themselves at the wrong end of an illegal handgun. In R. v. Chan, [2013] A.J. No. 1213, 2013 ABCA 385, 561 A.R. 347, the Alberta Court of Appeal put the matter as follows, at para. 49: "[W]e consider society's interest in the adjudication of the merits to be greater where the offence is one that so literally involves the safety of the community."
It is, of course, a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis.17
122The same came be said for heroin, and in particular for fentanyl, which has repeatedly been described as a “scourge” on our society, and a deadly epidemic. Fentanyl has been the cause of much misery, suffering, and death throughout Canada, a reality that is impossible for a trial judge to ignore or forget.
123I am keenly aware of the danger of both the guns and the drugs in this case. I am also aware that excluding this evidence will completely gut the Crown’s case. Indeed, the Crown has agreed that if this evidence is excluded all the charges against Mr. Karapetrov should be dismissed.
124I deal with this point first to emphasize that I am aware of its strength. Nevertheless, the analysis under Grant is a balancing exercise. No one factor is determinative, even where there are guns, and even whether there are guns together with heroin and fentanyl. In this regard, I agree entirely with the comments of my colleague Davies J. in R. v. Miller as follows:
Brown J.A.’s ruling in Omar about the inherent dangers associated with guns, as endorsed by the Supreme Court, might suggest that cases involving the discovery of firearms in violation of the Charter are precisely the sort of cases that call for the admission of the evidence even if the first two branches of the Grant test favour exclusion. However, the fact that the evidence obtained in violation of the defendant’s Charter rights is a firearm cannot tip the balance in favour of admission in every case. That would be tantamount to creating a “firearms exception” under s. 24(2), which was rejected in Omar.18
Seriousness of the Conduct
125The seriousness of the state-infringing conduct in this case weighs strongly towards excluding the evidence. I am shocked, and indeed outraged, by the conduct of the police in this case. Some of the breaches, when taken alone, might be considered minor in nature. For example, a delay of under an hour in contacting Mr. Karapetrov’s lawyer after he was at the police station could be seen as on the less serious side, particularly given that the lawyer was in court and calling him earlier would have had no impact anyway. Likewise, seizing the car prematurely rather than waiting for a warrant is not the most serious of breaches. However, breaches cannot be looked at in isolation. It is the whole of the police conduct that must be considered, and it is nothing short of disgraceful.
126There is no difficulty with any of the police conduct right up to the time the paramedics leave with Ms. Wilfong. From then on, the police systematically breached Mr. Karapetrov’s Charter rights over and over again, for a period of hours, and in multiple different ways. First of all, they had no right to take over Mr. Karapetrov’s apartment unit without his permission, which they did not even bother to ask for. They justified this by saying they needed to take photographs of the scene. This was described as a pre-emptive move to document a suspicious or sudden death. I say pre-emptive because Ms. Wilfong was not yet dead. Then they photographed the scene, purportedly to record the scene of the sudden death. At the same time, the photographer was tasked with searching though suitcases of personal belongings and cupboards and drawers throughout the unit, ostensibly in an effort to save the life of the very person they were treating as dead for the purposes of taking the photographs. The senior officer on site, an experienced sergeant, searched the kitchen, looking in cupboards, drawers, the fridge, the freezer and the stove, and then later testified he was doing this for the purpose of locating medication Ms. Wilfong had taken. This testimony, quite simply, was untrue. Then, confronted by a locked door to a bathroom, and knowing Mr. Karapetrov had objected to their going in there, the officers opened that door and proceeded to search there as well. Characterizing these searches as a life-saving effort stretches credulity and smacks of bad faith.
127Throughout this time, I have found that Mr. Karapetrov was arbitrarily detained. He was not told about that and not given rights to or access to counsel. If he had been given the opportunity to speak to counsel he might have been able to prevent the wholesale violation of his rights that was going on all around him. This s. 9 breach and the attendant s. 10 breaches involved in that are extremely serious. This was for a long period of time, was accompanied by other Charter breaches, was not undertaken in good faith, and was carried out at a time of intense personal grief and trauma for Mr. Karapetrov.
128Having improperly obtained information about the location of Mr. Karapetrov’s car, the police impounded it without waiting for a warrant. As I said, this was not as serious as other breaches, but must be seen as part of the continuum.
129After Mr. Karapetrov’s arrest, there was unacceptable delay in implementing his rights to counsel, both prior to and after his arrival at the police station. Again, these were not extremely long delays and no statements were elicited during that time. However, it must be considered in light of all the surrounding circumstances.
130The police then proceeded to draft the ITO for the purposes of obtaining a search warrant. As I have already stated above, there were many material omissions from the search warrant. I do not know if that was deliberate on the part of the officer who swore the affidavit, or if he was given only limited information by the officers involved in the search. However, I note that divulging full information about the extent to which a search of the premises had already been conducted without a warrant and the purported basis for taking the photographs, might well have alerted the justice of the peace to the Charter breaches and might have occasioned a refusal to issue the warrant. That said, I stop short of saying that the police deliberately lied or deliberately misled the justice of the peace in the course of seeking the search warrant.
131This Charter-infringing conduct cannot be said to be inadvertent. It was done deliberately and flagrantly. One of the more junior officers on the scene, P.C. Stamplecoskie, understood this. He went to his car and brought back materials to seal the apartment while they waited for either developments in Ms. Wilfong’s condition or a search warrant. He suggested to his superior officer that they should seal the apartment, but he was ignored. As he said, “I’m not the one with the chevrons on my shoulders. It was not my call.”
132P.C. Cheng who did much of the searching, was willfully blind to the illegality of what he was doing. He maintained that he assumed Mr. Karapetrov must have been consenting to the search because Sgt. Amah had asked him to search and to photograph the scene “as if for a sudden death.” He knew that Ms. Wilfong was still alive. He knew there was no basis for a lawful search without consent. However, he did not ask Mr. Karapetrov, nor did he ask Sgt. Amah, if there was consent. He testified that he “believed” Sgt. Amah was acting lawfully. He did not check, notwithstanding lots of warning signs that he should have.
133I find that the state-infringing conduct was egregious, and some of it was in bad faith. This factor strongly supports excluding the evidence.
Impact on the Rights of the Accused
134This factor also strongly favours exclusion of the evidence.
135After running an errand, Mr. Karapetrov returned to the apartment at 11:00 a.m. that fateful morning to find that his girlfriend, who he thought was sleeping, was in fact without vital signs. He immediately called 911. He administered CPR. He did everything he could to save her life, which is very much to his credit. Based on the evidence before me, it is abundantly clear that Mr. Karapetrov knew there were guns in the bathroom and a large quantity of drugs in the backpack inside the stove. To his credit, he did not remove the drugs and guns before summoning emergency assistance for Ms. Wilfong. In short, he did the right thing. He was entitled to believe that the emergency responders he summoned, and whom he readily admitted into his apartment, would also do the right thing.
136The police did not do the right thing. Instead, they systematically violated his rights by staying in the apartment for the purpose of gathering evidence against him. They coerced his acquiescence by telling him that they would not leave the apartment and give him back his keys until after the SOCO officer had completed his photographs of the scene. Sgt. Amah had seen the indicia of trafficking in the kitchen, including a digital scale in the freezer, packaging materials, and a backpack in the stove. He was also advised there was a wad of cash on the shelf in the closet. Instead of advising Mr. Karapetrov that he was being detained on the suspicion of drug trafficking, and advising him of his rights, he continued to investigate, while telling Mr. Karapetrov nothing. This went on for two hours. During that time, several officers chatted with Mr. Karapetrov and gathered information, including asking him about the apartment and why the bathroom door was locked. Mr. Karapetrov made statements establishing that he had control of the apartment and that he had deliberately locked the door of the bathroom, statements that were very much against his interest. He also made a statement that the guns in the bathroom were “real”. All of this was done without advising him of his right to refuse to consent to the search of his apartment and without advising him of his rights to counsel. Various officers noted how distraught Mr. Karapetrov was, that he was upset, asking for updates about Ms. Wilfong, extremely emotional, and crying at times. Notwithstanding this, they kept him there for two hours on the ruse that photographing the unit was required before the police could leave.
137The right to counsel is crucial to a person under the control of the state, whether it be because of a detention or an arrest. The impact of the denial of these basic constitutional rights should not be under-estimated. As stated by Doherty, J.A. in R. v. Rover:
In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.19
138The delay in implementing Mr. Karapetrov’s right to counsel after his arrest compounds the adverse impact on his rights. Although no officer attempted to elicit any further statements during the time after the arrest, Mr. Karapetrov was strip searched at the station before any attempt was made to contact his lawyer, and by the time he eventually was able to speak to a lawyer, he had been in police custody (in some form or other) for just over five hours.
139The cumulative nature of these breaches, the number of officers who were complicit, and the length of time involved are also aggravating.
140I find that the impact of the Charter breaches on Mr. Karapetrov’s rights is at the high end of the scale.
Analysis and Conclusion
141The ultimate conclusion as to whether the evidence obtained should be excluded from trial involves a balancing of the three factors set out in Grant and a determination as to whether “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”20
142As the Supreme Court noted in Grant, the focus at this stage engages “public interests that are viewed in a long-term, forward-looking and societal perspective.”21 The concern is for the general repute of a justice system that permits breaches of the Charter, not just with respect to the immediate case at hand, but viewed in the long-term. Exclusion of evidence obtained through Charter violations is not aimed at punishing police for wrongdoing, but rather on the “broad impact of admission of the evidence on the long-term repute of the justice system.”22 The question is not whether there will be some people, or indeed many people, who would not be concerned about the evidence being admitted. Rather, the perspective to be applied is that of a “reasonable person, informed of all relevant circumstances and the values underlying the Charter.”23
143The more serious the nature of the police conduct, the greater the need for the court to distance itself from such conduct by excluding the evidence, for to do otherwise would in effect be condoning the wrongdoing and undermine public confidence in the rule of law.24 Likewise, “the more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”25
144The first two of the Grant factors in this case point strongly toward excluding the evidence. The third leans toward its inclusion. In such situations, the evidence is typically excluded. As explained by Doherty J.A. in McGuffie:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third [page660] inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see, e.g., Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at paras. 81-89; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140.26
[Emphasis added]
145That said, the s. 24(2) analysis is never mathematical. There will certainly be cases in which evidence is admitted notwithstanding serious misconduct by the police and a substantial impact on the Charter-protected rights of the accused. The kinds of cases in which this might be done are those involving large amounts of lethal drugs and multiple loaded firearms, which indeed is the situation before me.
146Notwithstanding the strong pull of the third of the Grant factors in this case, which I fully acknowledge, I cannot countenance admitting this evidence in all of the circumstances of this case.
147Ms. Schofield, for the defence, referred to and relied upon the Good Samaritan Drug Overdose Act, S.C. 2017, c. 4. This legislation was passed in 2017 to add a section (s. 4.1) to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Essentially, this legislation provides that if a person seeks emergency medical or law enforcement assistance for someone suffering from a drug overdose or other medical emergency, that person cannot be charged or convicted of an offence under s. 4(1) of that Act if the evidence in support of it was obtained or discovered as a result of that person having sought assistance or having remained at the scene. The legislation also protects a person in these circumstances from being prosecuted for breaching various types of court orders related to a s. 4(1) offence (e.g. bail, conditional sentence terms, parole conditions and probation orders). Section 4.1 also does not require any police misconduct or Charter breach before the immunity from prosecution under s. 4(1) will apply.
148Section 4(1) of the Controlled Drugs and Substances Act prohibits possession of certain listed illegal drugs. It does not relate to drug trafficking or possession of drugs for the purposes of trafficking, nor does it have anything to do with possession of illegal firearms.
149I am not suggesting that Mr. Karapetrov acquired immunity from prosecution for the offences with which he is now charged. These offences are far more serious than the possession offences falling under Section 4(1) of the Controlled Drugs and Substances Act. However, the enactment of these provisions provides some guidance with respect to the greater public interest in cases of this nature. At the time of their enactment, the deferral Minister of Health described their purpose as being “to remove the fear of drug possession charges for individuals who call 911 when they witness an overdose.”27 The Assistant Deputy Minister of Health referred to it as part of the government’s harm reduction approach to substance abuse, stating:
For example, the Good Samaritan Drug Overdose Act encourages people to seek help in the event of an overdose by providing some legal protection for those who experience or witness an overdose. We hope this act will reduce the fear of police attending overdose events and encourage people to help save a life.28
150In this case, Mr. Karapetrov stepped up. He called 911. He stayed with Ms. Wilfong. He administered CPR in a desperate attempt to save her life. When the paramedics came, they continued these efforts and were able to restore vital signs. When he called 911, Mr. Karapetrov, who already had a drug-related criminal record, knew there was considerable contraband and numerous firearms in the apartment. He called 911 anyway. Having done the right thing, he was entitled to believe that the Toronto Police Service would act lawfully. If he did hold that belief at the time, he was mistaken.
151Leeann Wilfong’s death was a great tragedy. She was a young woman with three children and parents who loved her. She was trying hard to overcome her opioid addiction. As happens all too often in our country, she was not successful in that effort, with the result that she lost her life to those drugs. I am all too aware that my decision to exclude the evidence in this case benefits a drug dealer, indeed (at least according to her mother) the very drug dealer that introduced her to the drugs that killed her. The irony of that result is not lost on me.
152Nevertheless, the broader public interest applies. The police conduct in this case was reprehensible, and the impact on the rights of the accused was significant. The Charter has to stand for something. It cannot be applied only when the consequences of excluding evidence will not have a significant impact. The police must understand that the rights guaranteed by the Charter apply in every case. To me, admitting the evidence in this case is akin to saying “OK, that conduct was really, really bad, but since the Charter breaches yielded such a big haul, I’ll just turn a blind eye.” Certainly, real and reliable evidence such as multiple guns and large quantities of drugs will often justify admitting such evidence even where the Charter breaches are significant. However, in my view, a member of the community knowing all the circumstances here, and mindful of the importance of the values enshrined in our Charter, would lose confidence in the fairness of our justice system if evidence obtained in the manner here is admitted at trial.
153Accordingly, I have ruled that the evidence obtained by the police as a result of their illegal search of the apartment, including the additional evidence obtained upon execution of the search warrant, is not admissible at trial.
154Further, if I have erred in my conclusion that once the illegally obtained evidence is excised from the warrant there is no basis for the warrant to have issued, I have considered in the alternative whether the evidence then obtained from the execution of the warrant should nevertheless be admitted. In these circumstances, the discoverability of the evidence is a relevant factor to take into account. Thus, if Shelly Wilfong’s information would have been sufficient to justify the warrant, it is arguable that the police would inevitably have found the drugs and firearms. However, even if I had found the warrant could have issued, I would still have excluded the evidence. In R. v. Pino, the Ontario Court of Appeal held that in determining whether a remedy was available for a Charter breach, simple cause and effect is not required. Rather, it is relevant to look at whether the Charter breaches were part of the same chain of events and were temporally and contextually connected to the evidence the defence seeks to exclude.29 In this case, there was a pattern of behaviour and a continuous series of Charter breaches from the time the police arrived, right through to the point at which they finally called defence counsel from the police station several hours later. The fact that they belatedly thought they had best obtain a search warrant when, to their own surprise, their illegal search turned up five firearms, does not excuse their prior conduct. Further, they were less than forthright in the information they chose to include in the ITO for the warrant. Therefore, even if the warrant was valid after excision, I would still exclude all of the evidence obtained, as to do otherwise, is to effectively condone the egregious conduct of the police in this case.
I. CONCLUSION
155The evidence obtained from the search of the apartment and car being inadmissible, the Crown agrees that there is insufficient evidence upon which to find Mr. Karapetrov guilty of any of the offences charged.
156Accordingly, all charges are dismissed.
Molloy J.
Released: July 26, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
NONDE KARAPETROV
Defendant/Applicant
REASONS FOR DECISION
Molloy J.
Released: July 26, 2023
Footnotes
- Initially, the defence also sought leave to cross-examine another officer (Lane), but later abandoned that request.
- R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 22.
- R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37.
- R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (C.A.) at p. 29.
- Ibid, at p. 30.
- R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 4; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 25-32.
- R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 26.
- Grant, at para. 44.
- R. v. Willier, 2010 SCC 37, at para. 29.
- R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 44.
- R v. Garofoli, [1990] 2 S.C.R. 142, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51.
- R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40.
- R. v. Guindon, 2015 ONSC 4317, at paras. 6 and 20; R. v. Nguyen, 2022 ONSC 1102, at para. 103.
- R. v. Araujo, 2000 SCC 65, at para. 54.
- R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 53.
- R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
- R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at paras. 137-138 (dissenting), aff’d 2019 SCC 32, [2019] 2 S.C.R. 576.
- R. v. Miller, 2019 ONSC 7417, at para. 57.
- R. v. Rover, 2018 ONCA 745, 143 OR (3d) 135, at para. 46.
- Canadian Charter of Rights and Freedoms, s 24(2), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
- Grant, para. 71.
- Ibid, at para. 70.
- Ibid, para. 68.
- Ibid, para. 72.
- Ibid, at para 76.
- R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63.
- Hansard, Minister of Health Jane Philpott, January 31, 2017: https://www.ourcommons.ca/DocumentViewer/en/42-1/house/sitting-30/hansard.
- Health Committee, Nov. 29, 2018, Suzy McDonald, Deputy Minister, Opioid Response Team, Department of Health, https://openparliament.ca/committees/health/42-1/126/suzy-mcdonald-1/.
- R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 49.