COURT FILE NO.: CR/23-667, 23-668 DATE: 2024-01-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

T. Mimnagh, for the Public Prosecution Service of Canada,

Respondent

• and -

HOLLY RUSSELL

K. Schofield, for the Applicant

Applicant

HEARD: December 4, 5 and 6, 2023

REASONS FOR RULING - SS. 8, 10(b), AND 24 OF THE CHARTER

A. J. GOODMAN J.:

[1] The applicant, Holly Russell, ("Russell") is charged with several drug offences including possession of cannabis for the purpose of distributing; unlawfully cultivating, propagating and harvesting cannabis; possession of psilocybin for the purpose of trafficking, contrary to their respective provisions of the Cannabis Act, S.C. 2018 c. 16, and Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") She is also charged with possession of proceeds of crime over $5000, contrary to the Criminal Code, RSC 1985, c. C-46.

[2] The offences are alleged to have occurred on June 2, 2021 in the City of Hamilton.

[3] Following a search warrant executed in relation to an alleged commercial marihuana dispensary, a significant quantity of marihuana, psilocybin, cash, and other related cannabis products were discovered and seized by officers of the Hamilton Police Service ("HPS"). The applicant was arrested and was transported to the HPS Central Station.

[4] The applicant seeks an order to exclude the drugs seized by the HPS. The relief sought is premised on several grounds, including assertions of an unlawful entry into the apartment, a failure to fille a Report to a Justice, ("RTJ") and a failure to provide her with Rights to Counsel ("RTC") pursuant to ss. 8, 10(b), and 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 ("Charter"). The applicant also seeks a stay of proceedings pursuant to s. 24(1) of the Charter, related to cumulative effect of the number of breaches that allegedly arose in this case.

[5] For the purpose of the Charter voir dire, the trial proceeded as a blended hearing.

Background:

[6] In late 2020, the HPS became aware that a cannabis dispensary known as the "Georgia Peach" – which had formerly had brick-and-mortar storefronts – was operating as an online delivery service.

[7] HPS received information regarding the operation of an online dispensary from a combination of four confidential informants and a Crime Stoppers tipster.

[8] Based on information received from these sources, the HPS began an investigation into the Georgia Peach, which they believed to be operating out of a residential unit at 140 Main Street West, Hamilton Ontario. Police began conducting surveillance on this building at some point in late 2020. During this surveillance, police observed what they believed to be suspected delivery drivers for the Georgia Peach entering the building. The officers made a number of observations (such as alleged marihuana odours coming from some of these drivers) that led them to focus their investigation on the building.

[9] On April 28, 2021, Detective Constable Michael Dougherty applied for and was granted a general warrant to allow police access to 140 Main Street, to enable HPS to determine the specific unit numbers involved. With their access to the building, police were able to narrow their investigation down to the 25th and 14th floors, and ultimately to unit numbers 1414 and 2502.

[10] On May 27, 2021, DC Dougherty applied for and was granted a warrant to search both units.

[11] At the time of authoring the Information to Obtain ("ITO"), DC Dougherty and the HPS were not aware of the specific potential occupants of those units. At no point in the ITO was it claimed that police believed the occupants were armed, dangerous, or otherwise posed a threat to the safety of officers upon entering.

[12] The same ITO also requested a production order to require the building's property management to provide police with information that could identify any parties that were connected with the units, so that police could rely on that information in planning and preparing to execute the warrant. Through the production order, police learned that unit 1414 was registered to a company known as "UH Properties" - Unit 2502 was registered to Russell.

[13] HPS officers ultimately executed the warrant on unit 2502 on June 2, 2021. The Crown called a number of police officers including PC Contos, Mogford, Lentz, Pacheco, James, and Tweedle. These officers did not knock or announce their presence when outside of the applicant's unit. Instead, PC Tweedle employed a battering ram to gain entry into unit 2502 at 1:21 p.m. Unbeknown to the police, the dynamic entry to this unit was captured on video by the applicant's security camera.

[14] At this hearing, the various police officers were questioned about this specific no-knock entry. All the officers testified that there was no information that the occupants were armed or dangerous, nor that police had safety or weapons concerns. In addition, all the officers who testified provided vague recollections of the briefing or did not recall if there was any discussion of any fortifications or weapons in the unit. Some of the officers, including PC Lentz, could not recall why the decision was made to make a dynamic entry into the unit – citing instead a "usual" concern for the loss of evidence, but no specific safety or weapons concerns. It was also PC Lentz' and Mogford's evidence that HPS employed dynamic entries 90% of the time – and maybe even more often than that. All the police officer witnesses did not detail the information provided at the briefing prior to the search. The officers could not explain the justification for the no-knock entry into the applicant's unit.

[15] The officers who testified all claimed that, upon entry, they shouted, "police" or "police – search warrant". This was contradicted by the audio video CCTV captures of the police entry into the unit. Rather, the CCTV shows police breaking down the door to unit 2502 with a battering ram, which took many strikes, entering the unit with weapons drawn in a holding position, and then yelling "search warrant, get on the f*** ground" after gaining entry.

[16] Once police entered, the applicant and three other women were immediately confronted by the HPS officers.

[17] During the search of the unit. police located a safe containing Canadian currency, a quantity of psilocybin, and hundreds of pounds of cannabis.

[18] The applicant was arrested by PC Contos for distribution of marihuana and for possession for the purpose of distribution. He provided the applicant with RTC and a caution at 1:25 p.m. Russell immediately requested to speak with her counsel, Mr. Peter Boushy. Other occupants of the unit at the time were also placed under arrest.

[19] Twenty minutes later, PC Contos turned over custody of the applicant to PC Anderson for the purposes of transportation to the HPS Central station. PC Contos' evidence was that he had no idea if there was an operational plan for facilitating the RTC for any of the arrested parties. The applicant was not provided with any opportunity to speak with counsel at the scene. Russell maintained that she wanted to speak to her lawyer of choice.

[20] PC Anderson arrived with Russell at HPS Central Station by 2:06 p.m. The applicant was given an opportunity to contact counsel at 2:30 p.m., but there was no answer and she left a voicemail. Russell was eventually able to contact and speak with Mr. Boushy at 3:40 p.m. – over an hour after the booking process had begun.

[21] Ultimately the delay in implementing RTC was from 1:25 p.m., when the Applicant was arrested to 3:40 p.m. – a period of 2 hours and 15 minutes.

[22] At the police station, while waiting to speak with counsel, PC James advised the applicant of an additional charge with regards to the psilocybin. No RTC or caution was ever provided to the applicant.

[23] PC Tweedle seized the drug evidence from the applicant's unit. PC Pacheco was the exhibit officer. No RTJ regarding the seized items was ever completed or submitted. PC Pacheco claimed it was "overlooked." It has not been remedied since and there are no plans to do so.

Positions of the Parties- [ss. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html), [10](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and [24](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):

[24] Ms. Schofield, on behalf of the applicant, submits that the search warrants were executed via dynamic entry, commonly referred to as a "no-knock raid." The HPS's use of dynamic entry, in the absence of exigent circumstances, and with limited or no information about the occupants was a breach of s. 8 of the Charter. The practice of dynamic entry without justification cannot be condoned.

[25] The applicant emphasizes that the actions of the police leading up to, during and after the search warrant was executed were not only disorganized but cavalier. This includes the fact that the RTJ was never completed, even up to the time of trial.

[26] Upon arrest, Russell asked to speak to counsel of choice. The first recorded instance of Russell speaking to counsel is three hours and 39 minutes after the search warrant was executed. When facing an additional charge, no further RTC was ever provided. The applicant submits that the HPS did not, without delay, facilitate their RTC informational or implementation obligations.

[27] The applicant submits that these breaches reflect the HPS's systemic and repetitive disregard for the rights guaranteed under the Charter. As such, the circumstances of this case justify the exclusion of the drugs based on s. 24(2) of the Charter and the Grant factors. The applicant submits that all evidence seized from and through the execution of the search warrant, and in proximity to her arrest, must be excluded from evidence pursuant to s. 24(2) of the Charter. The evidence in this case was obtained in a manner that offended her Charter rights.

[28] The Crown disagrees with the applicant's assertions. The manner of entry into the apartment was swift and dynamic. In addition, due to the various officers' experience, the evidence to be sought, the nature of the offences and background knowledge, there were legitimate officer safety concerns.

[29] The Crown submits that the applicant' rights were not infringed by the police conduct in relation to this investigation and that there were no violations of ss. 8, and 10 of the Charter in the totality of the circumstances. Even if the arrest, detention, or related search and seizure are found to be a violation of the Charter, the evidence ought to be admitted under s. 24(2). The admission of such evidence would not bring the administration of justice into disrepute.

[30] The Crown further submits that the relief sought by the applicant in the alternative by way of a stay of proceedings pursuant to s. 24(1) of the Charter should also be rejected by this Court. The remedy of a stay is only appropriate in the clearest of cases, when no other remedy could suffice. If a breach is found the Court could implement other remedies, such as a reduction in sentence.

Legal principles – Dynamic Entry- (No Knock):

[31] Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure.

[32] To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265 at 278 [Collins 1987].

[33] To be reasonable and therefore compliant with s. 8 of the Charter, searches must also be executed in a reasonable manner, including acting within the bounds of the authorization: R. v. Amare, 2014 ONSC 4119, at para. 86, aff'd 2015 ONCA 673.

[34] When police depart from a "knock, announce and notice" entry" there is an onus to explain the necessity for such an approach. In other words, it is acceptable for the police to enter a dwelling for which they have a warrant, without announcing themselves, where reasons exist