COURT FILE NO.: 317-23 DATE: 2025/02/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – DONOVAN WENDT and FELICE R FERRI Applicants

S. Aujla, for the Federal Crown L. Dafoe, for the Provincial Crown

J. Cacciavillani and I. Heo, for the applicant, Wendt J. Lloyd, for the applicant, Ferri

HEARD: November 25-29 and December 5, 2024 and January 8 and 9, 2025

RULING (Re ss. 8 and 24(2) CHARTER)

Justice A. K. Mitchell

JURISDICTION

1Pursuant to s. 551.1 of the Criminal Code (the “Code”), I have been appointed as case management judge in this prosecution with the powers available to me pursuant to ss. 551.2 – 551.7 of the Code.

INTRODUCTION

2The applicants, Donovan Wendt and Felice Ferri, stand charged under this eighteen (18) count indictment. [1] The applicants are jointly charged with five (5) drug-related offences; Mr. Wendt is charged with ten (10) firearm-related offences; and Mr. Ferri is charged with three (3) child exploitation offences.

3The firearm and drug-related charges arise from events occurring on April 4, 2023.

4The applicants are scheduled to stand trial on these charges commencing February 10, 2025 in the Superior Court of Justice before a judge sitting without a jury.

NATURE OF THE APPLICATIONS

5Claiming their s. 8 rights as guaranteed by the Charter of Rights and Freedoms (the “Charter”) were violated, the applicants challenge the validity of the warrantless search of a massive residence located at 467 Commissioners Road East in the City of London (the “residence”) conducted by police on April 4, 2023 (the “warrantless search”). The applicants further challenge the validity of three (3) search warrants (described below) issued in reliance upon the “fruits” of the initial warrantless search.

6As part of his Charter challenge, Mr. Ferri claims his s. 8 Charter rights were further violated when the police failed to abide by the Lavallee [2] guidelines when applying for and executing the search warrants with respect to the residence and, in particular, the Lavallee warrant.

7The applicants submit that the appropriate remedy for breach of their respective Charter rights, is an order pursuant to s. 24(2) of the Charter excluding at trial all firearms evidence and drug-related evidence (more particularly described below) seized by police during their search of the residence on April 6 and 13, 2023.

8The applications were heard over eight (8) days. Sixteen (16) witnesses testified, including twelve (12) police witnesses.

BACKGROUND FACTS

9In April 2023, Mr. Wendt resided in the residence and Mr. Ferri was a tenant of the residence. In addition, Mr. Ferri maintained a law office in the residence.

10On April 4, 2023, police responded to a domestic disturbance at the residence. The complainant reported to police that she was barricaded in a bathroom and her boyfriend was attempting to get into the bathroom, and that he had access to weapons.

11Fearing for the complainant’s safety, police officers forced entry into the home. Within minutes of entering the residence, Mr. Wendt was located, unarmed, on the second level. He was detained, subjected to a pat down search and arrested. At the same time, the complainant was found uninjured in a bathroom located on the second level of the residence.

12Immediately after Mr. Wendt’s arrest, police began “clearing”‘ the residence (including the law office), looking for other persons. While clearing a room accessed through the garage of the residence, police came upon what they believed to be a drug lab.

13Minutes later while clearing a room on the second level of the residence believed to be Mr. Wendt’s bedroom (the “bedroom”), a loaded .308 semiautomatic rifle and ammunition were observed under the bed.

14Relying on their discovery of the drug lab and firearm, police obtained search warrants for the residence on April 5, 2023. These warrants expressly excluded the law office. The April 5th search warrants were executed on April 5 and 6, 2023 A search warrant relating to the law office was issued on April 11, 2023 and executed on April 13, 2023.

15The applicants do not challenge the warrantless entry of the residence, or Mr. Wendt’s detention, pat down search and arrest. The focus of these applications is the reasonableness of the warrantless “clearing” search of the residence following Mr. Wendt’s arrest. Additionally, the applicants challenge the validity of the warrants and their manner of execution.

EVIDENCE

1. COAST Call with the Complainant

16On April 4, 2023 at 12:36 PM Police Constable Kyle Uebershlag (PC Uebershlag) of the London Police Service (“LPS”) community outreach and support team (“COAST”), and his partner, registered nurse, Erik Krysa, contacted Teresa An, to offer support for mental health issues arising from a domestic incident which had taken place the previous day involving Mr. Wendt.

17During the call, Ms. An was placed on speaker so that both PC Uebershlag and Mr. Krysa could hear the conversation. While speaking with Ms. An, PC Uebershlag could hear a male voice in the background screaming “who the fuck is that on the phone, who the fuck are you talking to?” Ms. An advised she was locked in a bathroom for safety. PC Uebershlag could hear pounding on the door. He asked Ms. An whether she was okay and she responded: “I can’t say anything, he can hear me”.

18Ms. An did not respond when asked if she wanted police to attend. PC Uebershlag could hear the male in the background and described him as “irate”. The male continued to pound on the door. PC Uebershlag became very concerned for Ms. An’s safety.

19PC Uebershlag described Ms. An as sounding “exceptionally” scared and determined it was necessary to dispatch police to conduct a welfare check on Ms. An. Her home address was given to dispatch. Upon hearing the address, Ms. An advised she was not at home rather was at the residence. PC Uebershlag re-directed officers to attend at the residence.

20PC Uebershlag could heard Ms. An and the male screaming at each other. Ms. An then said “he has guns in the home and may use them”. When asked to clarify what she meant, Ms. An stated: “he does not currently have a weapon that I know of but he has access to them”. She identified the male as Mr. Wendt. PC Uebershlag relayed to dispatch that the male “had access to firearms” and upgraded his request to a Code 1 “lights and sirens”.

21The male continued to scream at Ms. An demanding that she open the bathroom door. Ms. An refused, stating: “I don’t want to get locked in the room like last time”. PC Uebershlag testified that the “terrifying nature of her voice” led him to believe Ms. An was at imminent risk of bodily harm or death.

2. Entry

22Police Constable Jordan Telfer was the first to respond to the dispatch. He arrived at the residence with lights and sirens activated. Upon arriving at the residence, he parked on the roadway. He took cover behind a wall to the side of the residence and waited for backup. He heard no sounds as he approached the residence and observed no vehicles in the driveway of the residence.

23Sargent Devon Gerber was next on the scene. Sargent Gerber was the highest ranking member responding to the call. While driving to the scene, he requested background checks on the persons involved. Sargent Gerber testified that he directed an officer to stop what they were doing and conduct background checks on the address of the residence for the purpose of identifying the occupants and determining whether any of the occupants possess a firearms license.

24Sargent Gerber described the residence as a “large structure” and “possibly multi-unit”. He was concerned that the residence may contain “separate units unrelated to each other” and wanted to ensure he was “making entry into the right place where this event is unfolding”.

25Together with PC Telfer, they approached the residence with firearms drawn. Neither of Sargent Gerber nor PC Telfer reported hearing any banging, screaming or dogs barking as they approached the residence. PC Uebershlag continued to relay information to the officers by radio as they approached the residence. The expansive residence had multiple entry doors. The officers looked into the windows on the main level of the residence and did not observe any occupants. Sargent Gerber observed but did not read a business sign in the window of the west-facing door. Concerned for Ms. An’s and their own safety, Sargent Gerber and PC Telfer determined that it was necessary to make immediate entry into the residence. The officers did not voice their presence, ring the doorbell or knock on the door. They attempted to gain entry through the north-facing door to the east of the three bay garage. However, the door was locked.

26As they began kicking the door lock, Sargent Gerber and PC Telfer were joined by Sargent John Dance of the Emergency Response Unit (“ERU”). The officers kicked and broke the lock on the door and entered into the mud room located on the main level of the residence. To the left of their point of entry was the kitchen and to the right was a closed door leading to the garage. Upon entering the residence, they observed a stairway leading to the second level just beyond the kitchen. None of the officers reported smelling cannabis or chemicals upon entering the residence.

27Immediately upon entering the residence, the three officers were met by an older woman. She was wearing blue cleaning gloves. Sargent Gerber asked the woman “where are the other people”. The woman did not respond. As the three officers made their way into the kitchen, the officers received information from PC Uebershlag that the female in distress was located on the second floor of the residence. With their firearms drawn, the three officers made their way past the woman to the stairway leading to second level of the residence. As they moved through the residence, they loudly and repeatedly yelled “police”. Multiple dogs were barking.

28With respect to the events leading to the forced entry into the residence and the encounter with the older female, the evidence of PC Uebershlag differs slightly from the evidence of Sargent Gerber, PC Telfer and Sargent Dance. These three officers did not recall PC Uebershlag being present during their forced entry into the residence. However, PC Uebershlag recalled standing behind the three officers when the door was breached.

29PC Uebershlag further testified that immediately upon entering the home, the officers encountered the older female. He recalls speaking with the woman while the other officers made their way to the second level. PC Uebershlag recalls the woman stating: “this is my son’s home” and her “mentioning something about a child”. PC Uebershlag did not relay the information about the child to the other officers because he was of the view “it was not important”. Similarly, he did not record the older woman’s mention of a child in his notes at the end of the shift because he did not feel the information “was important”.

30Shortly before these applications were argued when meeting with Crown counsel, PC Uebershlag prepared a supplemental statement containing the information provided by the older female with respect to the mention of a child.

3. Detention and Arrest of Mr. Wendt

31Upon reaching the second level of the residence, the officers encountered Mr. Wendt at the top of the stairs. None of Sargent Gerber, PC Telfer or Sargent Dance observed the (bed)room from which Mr. Wendt came from. They did not observe Ms. An. Shortly after encountering Mr. Wendt, Sargent Gerber, PC Telfer and Sargent Dance were joined on the second level by PC Uebershlag.

32Police encountered Mr. Wendt wearing basketball-type shorts. He was not wearing a shirt or shoes. He was not carrying a weapon. Mr. Wendt identified himself to police. Sargent Dance grabbed his arm and a short struggle ensued. Mr. Wendt was forced to the ground by PC Telfer and handcuffed to the rear. PC Telfer advised Mr. Wendt that he was being detained for an ongoing assault and weapons investigation. A pat-down search of Mr. Wendt was conducted. No weapons were found.

33After detaining Mr. Wendt, Sargent Dance entered the bedroom to conduct a sweep of the room in an effort to locate the complainant. He did not locate Ms. An or any other persons. He observed a large dog crated in the closet. He did not observe any firearms. After sweeping the room, Sargent Dance received word over his radio that the complainant had been located and was safe.

34Based on information supplied by PC Uebershlag over the radio, Mr. Wendt was arrested for assault at 12:57 p.m. Following his arrest, PC Telfer escorted Mr. Wendt out of the residence and placed him in the rear of a police vehicle. Mr. Wendt was transported to headquarters and booked into cells.

4. Locating and Securing the Safety of the Complainant

1Upon arriving at the residence, PC Uebershlag observed officers Gerber, Telfer and Dance attempting to break the lock on the door. He advised Ms. An that he had arrived at the residence. He could hear Mr. Wendt continuing to yell at Ms. An. Ms. An stated: “he may be going to get a weapon” and PC Uebershlag relayed this information to the other officers.

2PC Uebershlag recalls he was the fourth officer inside the residence. After speaking outside the residence with the older female and leaving her with another officer who had just arrived on scene, he re-entered the residence. PC Uebershlag recalled the “deafening sound” of dog barking and described the house as “messy and very chaotic”. He remembers still being on the phone with Ms. An upon entering the residence. She advised she was on the second level of the residence. He voiced this information ahead to the other officers. He was still speaking with Ms. An as he made his way up the stairs to the second level behind officers Gerber, Telfer and Dance. At the top of the stairs he observed that the other officers had Mr. Wendt in custody.

3He described the second level as not having “a conventional layout” and having “lots of doors”. He eventually located Ms. An in a bathroom. She was crying and shaking uncontrollably and had difficulty answering basic questions. She confirmed that Mr. Wendt was her boyfriend and the person being taken into custody. After speaking with Ms. An for approximately five minutes, PC Uebershlag formed grounds for arresting Mr. Wendt for assault of Ms. An.

4PC Uebershlag escorted Ms. An downstairs to the kitchen on the main level where she provided a statement to another officer. Both Ms. An and Ms. Ferri were arrested but later unconditionally released.

5PC Uebershlag admitted during cross examination that during his telephone conversation with Ms. An, he did not hear Mr. Wendt threaten to kill or shoot Ms. An or hear him make any direct threats of violence.

6Both Ms. An and Gloria Ferri were arrested. However, both women were later released and not charged.

5. Clearing of the Residence – discovery of the drug laboratory

7After Mr. Wendt was taken into custody, Sargent Gerber returned to the main level leaving officers Uebershlag, Dance and Telfer on the second level with Mr. Wendt and Ms. An. He recalled that there were “more officers coming to the second floor” and that there was “a lot of resources on the second floor”.

8Acting in a managerial role, Sargent Gerber decided it was necessary to clear the entire residence. He enlisted the help of PC Prince, Sargent Dance and police Constable, David Klassen who had just arrived on scene. He explained that clearing the entire structure was necessary because there may be other persons in the residence who might have access to firearms and use them “to defend the male suspect”.

9Sargent Gerber further explained that clearing was necessary, stating:

I wanted to ensure that we cleared the structure for any other threats – certainly to us or another other persons - vulnerable people, children. I went down to the main level and found another ERU officer and advised that we are going to identify what the structure is and clear it for persons.

10When asked why he did not focus on clearing just the second level of the residence where Mr. Wendt was arrested and Ms. An had been located, Sargent Gerber stated:

The entire structure poses a threat. Could hear barking dogs. Perhaps these dogs could also pose a threat to us – a lot of unknowns in this situation. It is my responsibility to ensure the safety of those inside the structure – my police officers and the civilians we are dealing with.

11Sargent Gerber recalled that the dogs were barking and “running loose” and so also posed a risk to safety. This evidence was not corroborated by the other officers on scene who testified that all dogs inside the residence were crated.

12Sargent Gerber was of the view that where there is a report of firearms, the situation is not “deemed safe” until the entire structure is cleared for persons and “no one has access to guns”. He qualified the scope of the search to clearing only for persons, not weapons unless in plain sight. His intention was to “clear the structure, without searching the structure”. Notwithstanding that Sargent Gerber received information from other officers about the occupants of the residence, he admitted that he did not review this information before clearing the residence. He also did not enquire of Ms. An or the older woman (Gloria Ferri) whether there were other occupants in the residence. He was not aware that Ms. Ferri had mentioned the presence of a child to other officers.

13Sargent Gerber began clearing the residence starting with the garage. As he cleared the residence, Sargent Gerber repeated in a loud voice “show yourself” and identified himself as police. No one responded. He was not concerned that the residence was a multi-residential unit structure because “all interior doors were unlocked” and none were identified by unit number. Sargent Gerber opened the unlocked door to the garage and moved through the door into the 3-bay garage.

14While clearing the garage, Sargent Gerber and PC Prince walked through a doorway off the garage into a large room housing various equipment. A sign was posted on the door cautioning persons to wear gloves and masks. Large machinery was located within the garage covered in sheets. Large barrels of chemicals and empty cartons of baking soda were observed. The chemicals included hydrochloric acid, isopropyl alcohol and butane. The laboratory consisted of extensive machinery, large glass vat-like containers, electrical systems, ventilation, computers, tools, cameras and a shower/decontamination station.

15Sargent Gerber recognized the equipment as consistent with a synthetic drug lab operation. Due to his previous experience, Sargent Gerber believed the drug lab was highly volatile and created an enormous safety risk to both police and the public. At 1 p.m. Sargent Gerber advised all other officers by radio that a drug lab had been located within the residence and ordered the residence evacuated. Sargent Gerber donned “personal protective equipment” (“PPE”) and then proceeded to “clear” the lab area. He says he did so without searching, changing or disrupting any aspect of the environment within the lab. Photographs were taken. During cross-examination, Sargent Gerber admitted that at no time while in the residence did he smell cannabis or other chemicals.

16Police Constable Matthew Prince of the ERU responded to the dispatch. Upon arriving at the residence at approximately 12:53 p.m., he and his partner, police Constable Hellier, entered the residence through the front door with their firearms drawn. He recalls seeing officers Telfer, Gerber, Klassen and Whyton inside the residence and two females in the kitchen. Before arriving, he learned that Mr. Wendt had already been taken into custody. He described the scene as “chaotic” with police shouting and dogs barking.

17PC Prince spoke with Ms. Ferri. She told him that her name was “Gloria”. She mentioned something about a seven-year-old child. PC Prince asked her who was in the residence and she responded that she did not know and did not know where the child was located.

18PC Prince and other officers joined in systematically clearing the entire residence “room by room”. He described the residence as “a deceivingly large house - a beautiful house - very tidy”. PC Prince claimed that he found a cross-bow and arrows [3] in one of the rooms he cleared. He said he was focused on finding the child. He recalled clearing an office and observing papers on the desk but says did not read the documents on the desk.

19PC Prince recalls meeting up with Sargent Gerber and clearing the garage together. He remembers that he had already started clearing the residence before clearing the garage. He explained that he began clearing the residence because weapons had been reported and not because of his suspicion that a child was in the house. He acknowledged that there was redundancy to clearing and that some rooms were cleared multiple times.

20PC Prince testified that: “even if both the suspect and the victim are in custody and the firearms found, police would continue to clear the house to ensure no other person was in the house that posed a threat”.

6. Clearing of the Bedroom – discovery of the firearms

21On April 4, 2023, PC Klassen was a police constable with the ERU. He has since retired. PC Klassen received a dispatch to assist with a female locked in a bathroom who was fearful of a male who had access to guns. He arrived on scene with two other officers at 12:53 p.m. and immediately entered the residence. Upon entering the residence, he observed a male in handcuffs and an elderly female in the kitchen and realized the purpose for his attendance – to secure custody of Mr. Wendt and ensure that the complainant was safe – had been fulfilled. While in the residence, he was made aware (through another officer or over the radio) that a 7 year old child was in the house although the whereabouts of the child were unknown. He understood the source of the information was the elderly woman.

22PC Klassen recalls clearing the residence with Sargent Gerber. PC Klassen stated that the purpose for clearing the residence was to locate the child and potentially other vulnerable people. Notwithstanding this stated purpose, he did not ask the elderly woman any questions about the child including where the child might be found in the large house.

23At approximately 1 PM, he recalls entering the garage area with Sargent Gerber and observing tanks and equipment. Sargent Gerber advised him that the equipment was commonly used in drug labs.

24At approximately 1:09 p.m. and after discovery of the lab, PC Klassen says he was asked to returned to the bedroom (believed to be Mr. Wendt’s bedroom) to clear the room for persons. He said that he was unaware the room had been previously cleared by Sargent Dance. Upon entering the bedroom, he observed no people, or weapons in plain view and heard no sounds. He observed two large dogs crated in the closet.

25PC Klassen testified that he got down on his hands and knees and looked under the bed for any persons who might be hiding under the bed. He described being “able to see underneath the bed”. PC Klassen testified that while looking underneath the bed (on the long side of the bed), he observed a firearm and loaded magazine. He proceeded to pick up the bed and move the bed to expose a loaded semi-automatic .308 calibre rifle with a loaded magazine next to it.

26During cross-examination, PC Klassen’s evidence was directly contradicted by the photo evidence. Defence counsel showed PC Klassen a photograph of the bedroom. The photo showed a bed having a solid wood base resting on the floor with the frame extending beyond the base by approximately 12 inches on all sides. After reviewing the photo, PC Klassen identified the room as the one he searched and the bed as the one he searched under. He confirmed the bed was the one under which he observed the rifle and ammunition.

27Under cross-examination, PC Klassen admitted that he could not have observed the rifle and ammunition by kneeling down and looking under the bed as he described in his examination in chief and as he recorded in his notes because the bed had a solid wood frame that rested on all sides on the floor. He admitted that he had been “mistaken” and his earlier evidence had been “incorrect”. He agreed with defence counsel’s suggestion that to observe the rifle and ammunition he would have had to move the bed.

28He explained that he would have moved the bed solely for the purpose of locating a person or child. This explanation was not recorded by PC Klassen in his notes. PC Klassen denied he moved the bed in search of weapons.

29After finding the rifle, PC Klassen removed the live rounds from the chamber of the rifle and returned the rifle to the place he had located same. PC Klassen did not locate a child in the bedroom and he did not observe a handgun in the bedroom. After finding the rifle and ammunition, PC Klassen did not clear other bedrooms on the second level for persons, instead he cleared the basement and attic areas of the residence.

7. Dismantling the Drug Lab

30At approximately, 2 p.m. on April 4, 2023, police constable Josh Silcox of the LPS contacted OPP officer Frank Bates. PC Bates had experience and training in synthetic drug operations and clandestine labs. In 2019, he had trained the Saskatchewan police forces on clandestine lab operations including cannabis extraction labs and cannabis grow operations. He had acted as a liaison to Health Canada. PC Bates advised PC Silcox to clear the location and to send photographs of the drug lab.

31After reviewing the photographs provided by PC Silcox, PC Bates concluded that a closed loop cannabis extraction lab was located in the residence. PC Bates’ colleague, police constable Paul Hicks, arrived at the residence at 7:05 p.m. on April 4, 2023. PC Bates arrived at 11 p.m. and together they entered the lab without a warrant for the purpose of inspecting the equipment and ensuring it did not pose a fire or combustion hazard.

32On April 5 th , PC Bates returned to the residence and met with LPS officers, including Detective Constable Michael Hay, in a briefing area to discuss their roles and responsibilities. At that time, PC Bates was made aware that a law office was contained within the residence. He made arrangements for the disposal of chemicals.

33At 9:45 AM on April 6 th , PC Bates together with fire fighters entered the lab to take samples. By 11:18 AM all samples had been taken and dismantling of the cannabis extraction system began. Pressure gauges were reading “zero” but PC Bates believed the readings were not accurate and so all personnel were directed to enter the lab with respirators during the dismantling process. At 7:40 PM on April 6 th , dismantling was completed.

34PC Bates says he was in the residence a total 20.5 hours - twenty minutes on April 4 th , approximately four hours (4:30 PM to 8:30 PM) on April 5 th and from 8 a.m. to 8 p.m. on April 6 th .

8. Safety Concerns

35PC Bates admitted that, after inspecting the cylinders on April 4 th , he had no concerns with the system pressure and decided to leave and return the next day. He confirmed that solvents and chemicals needed to extract THC are generally available to the public.

36LPS told the London Free Press on April 5 th that the lab did not pose a danger to the public. PC Bates agreed with this assessment. Neighbouring property owners were not notified that a drug lab had been discovered next to their homes.

37Alarms began sounding at 8:14 p.m. on April 5 th , approximately 2 ½ hours after the start of manipulating and dismantling the equipment. PC Bates acknowledged that the safety alarm was triggered as a result of a manipulation of the pressure in the system by police. He further acknowledged that chemicals were spilled on the floor during the dismantling process.

38PC Bates conducted testing of the air-quality in the lab and the residence. The air-quality volatile organic compound (“VOC”) reading was 3 parts per million (“ppm”). PC Bates confirmed that an air-quality VOC reading of 15 to 20 ppm would be concerning and, by comparison, a VOC reading of 3 ppm was a “safe atmosphere” to work in without respirators. He further confirmed that a closed-loop extraction system prevents vapour escaping into the air thereby reducing the risk to safety. At no time did PC Bates smell cannabis while on site.

39Expert Dale Moore testified. Mr. Moore did not inspect or view the equipment located at the residence. Instead, he reviewed photographs and video recordings of the lab and residence. He testified that cannabis extraction labs pose safety hazards as they create a risk of fire and explosion due to the mixing of highly combustible chemicals. In his opinion, labs in urban areas place the general population at risk because mixing chemicals leads to “off-gassing” thereby creating a fire hazard.

40Mr. Moore explained that closed-loop extraction systems are pressurized so as to extract different types of solvents many of which are flammable. Hoses often leaks solvents which create a fire hazard if met with a fire source. Furthermore, if hoses come loose they create a physical hazard and could potentially cause solvents to leak thereby creating a risk of asphyxiation, if inhaled. He noted a number of highly flammable chemicals were being stored in the residence.

41From his review of the video, Mr. Moore identified a number of safety hazards relating to the manner in which the chemicals were stored relative to heat sources and lack of proper ventilation and separation systems. Possible hazards included electrocution and gas and chemical leaks.

42As part of his report, Mr. Moore included photos showing damage to structures caused by explosions of extraction systems. He acknowledged that the photos showed only damage caused by explosions of open extraction systems, not closed-loop systems. Mr. Moore acknowledged that, under normal operating conditions, a closed-loop extraction system does not pose the same risk to safety as an open-loop extraction system.

9. The Law Office

43Mr. Ferri testified on the applications. In April 2023, he maintained his law office in a room located inside the residence and he kept all legal files, both in physical and digital format, in the office. He participated in virtual hearings from the law office. On April 4, 2023 his office contained two computers, an iPad, an iPhone, various legal documents, a number of digital storage devices, two brown leather bags, a square file-tote containing a recently-closed client file and other client documents, his file reporting logs, his financial records for his law practice, mail, items unrelated to his law practice and various pieces of office furniture.

44Mr. Ferri had installed closed-circuit TV cameras in some parts of the residence, including the kitchen, however, not the law office. Mr. Ferri was able to access the video recordings remotely.

45On April 4, 2023, Mr. Ferri had seven (7) active legal files for clients charged with a variety of offences, including human trafficking, sexual assault, drug trafficking, escape lawful custody, dangerous operation of a motor vehicle, driving while impaired, kidnapping, and assault. He maintained hardcopies of his client files and estimated that on April 4, 2023, he had approximately 2000 pages of printed materials relating to his client files located in the office as well as elsewhere in the residence.

46Mr. Ferri would often review a client file in a common area of the residence or in his bedroom. However, he directed all persons who lived in or shared space with him in the residence not to review any piece of paper he may have left in a common area of the residence. He recalls that on April 5, 2023, a handwritten statement from his client relating to a bail review application was located within a stack of papers in the kitchen. Mr. Ferri testified that, by accessing the kitchen’s cameras remotely, he was able to observe police looking through a client file left on the kitchen table.

47As a result of police seizing the privileged items (defined below) on April 13, 2023, Mr. Ferri’s described his legal practice as being “paralyzed” and “stopped dead in its tracks”. As a result of these charges, he has placed himself on voluntary leave with the Law Society and transferred all of his open files to another lawyer.

10. The Search Warrants

48Following the initial warrantless search on April 4, 2023, three (3) search warrants were issued. [4] Detective Constable Brian Scott deposed the Informations To Obtain (ITO’s) in support of the warrants based on information provided by various records checks conducted; the statements of the officers who attended at the residence on April 4, 2023; and his review of photographs of firearms and a drug laboratory observed by the officers during their search of the residence on April 4, 2023. DC Scott also relied on information supplied by Ms. An, and the opinion of PC Bates with respect to the existence of a cannabis extraction laboratory located within the residence.

49The following search warrants were issued:

(a) two (2) warrants were issued on April 5, 2023 authorizing a search of the whole of the residence except for the law office. The warrants authorized a search for firearms pursuant to s. 487 of the Code and a search for cannabis, cannabis extraction equipment, solvents and currency pursuant to s. 87 of the Cannabis Act. The issuing justice added the following condition to the warrants:

Note: Should the search in the area outside of the law office result in the finding of legal documents of Mr. Ferri, they are to be sealed for review to determine if they are to be deemed privileged (as per the Lavallee Guidelines).

(b) a warrant was issued on April 6, 2023 authorizing the search of the law office. The warrant contained a protocol for the search which included a term that a referee be appointed from a list of lawyers supplied by the Law Society of Ontario which referee was to accompany the officers during the execution of the warrant. The April 6 th Lavallee warrant was not executed; and

(c) a warrant was issued on April 11, 2023 identical to the April 6 th Lavallee warrant save and except that Ko Bhamra, a lawyer, was named as referee to oversee the search of the law office.

50On July 10, 2023, police submitted a further application seeking a warrant authorizing them to search the privileged items. Police also sought to submit the privileged items for review by the referee in an effort to safeguard any potentially privileged material or content of these items.

51On July 12, 2023, this application was denied. In refusing to issue the warrant authorizing a search of the privileged items, Donald J. wrote, in part:

… While all the items were found in 467 Commissioners Road East, beyond that I know only whether any particular item was either within a bedroom and common area of residence or within the law office of Felice Ferri. This lack of precision is problematic in terms of conclusions the officer draws about what evidentiary value any item holds.

For each item included in paragraph 89 the affiant makes a conclusory statement about what he believes will be found on the device. However, most if not all of these statements lack an evidentiary foundation… On the information in the affidavit I cannot be satisfied that there are reasonable grounds to believe what the officer believes.

I am also extremely concerned about the (over)breadth of this application. The overall interests of the administration of justice, over the short and long term, would be better served with a more focused/selective approach of the items to be searched. To my knowledge nothing would prevent the police from seeking multiple authorizations should their investigatory needs require it. [Emphasis in the original]

52Police did not seek any further authorizations allowing them to review the privileged items. The privileged items were not returned to Mr. Ferri and remain in the possession of the police stored in a vault at the courthouse.

11. Execution of the Search Warrants

53DC Hay became involved in the investigation on April 5 th . DC Hay’s job was to coordinate the drug and gun investigation. He also liaised with PC Bates to dismantle the lab.

54At 7:09 PM on April 4, 2023, the LPS received email correspondence from Selwyn Pieters, a lawyer claiming to represent Gloria Ferri. Mr. Pieters advised that a law office was located within the residence. Specifically, he wrote:

I am writing in respect to the above-noted investigation for which a press release was sent out. [link omitted]

I am a criminal defence lawyer and I am calling to speak to one of the persons arrested Gloria Ferri, dob July 12, 1952.

It is my understanding that a male who was renting a room in the premises was arrested as a result of a call to police from his girlfriend as a result of a domestic dispute. I understand from the press release that a weapon was found as a result of the call for service. That had nothing to do with any other part of the home.

Ms. Ferri is not a resident of the home – she is a resident of British Columbia and is in London visiting her son.

There is also a home law office of the Commissioners Road East residence that police were seen on the surveillance cameras entering and leaving. I also want confirmation that no solicitor–client information in this office was touched by London Police Service Officers.

Please have the officer in charge contact me in respect to the above inclusive of what, if any charges, Gloria Ferri faces, and whether she will be released on a promise to appear or whether there will be a show cause hearing tomorrow.

I shall be grateful if you can pass this along to the appropriate authority.

55After reviewing the email from Mr. Pieters, DC Hay conducted a Versadex check on Mr. Ferri which confirmed he resided at the residence. Concerned that a law office was located within the residence, he sought advice from Crown counsel. After speaking with counsel, he determined that a separate Lavallee search warrant application was required for the law office. DC Hay asked Mr. Pieters to describe the office and its whereabouts in the residence. In response, Mr. Pieters wrote:

I am advised that the office is close to the kitchen area – a picture of the kitchen area is attached. The room where the office is located very definitely looks like an office. It does not have cameras because it is a law office and the LSO rules prohibits (sic) cameras in law offices”.

56DC Hay learned that a search warrant for the residence had been issued at 4:22 p.m. on April 5 th . DC Hay testified that all police officers entering the residence were told there was a room in the residence that was not to be searched. At 5:38 PM on April 5 th , police, wearing PPE including breathing apparatus, entered the residence and cleared through each of the rooms. An assessment video of the residence was completed at 6:41 PM. At 7:11 PM on April 5 th , PC Bates and fire marshals entered the lab and marked items for sampling. PC Bates assessed the extraction equipment to determine how to dismantle safely. At 8:14 PM, PC Bates was notified that a line had begun to leak and emit “blue smoke”. All officers were evacuated from the lab and the residence. Approximately 20 minutes later, the line was no longer leaking and the dismantling of the lab resumed. Air monitors were “dropped” in the lab and PC Bates confirmed that the air quality in the lab was stable.

57Police Constable Justin Bruni assisted with the air quality search of the residence the evening of April 5 th . PC Bruni recalls having a briefing with DC Hay before entering the residence during which he was advised about the law office and told not to enter the office.

58During the walk-through of the residence for purposes of assessing air quality, DC Hay entered the law office to test the air quality. He did not read any of the documents on the desk. Nothing was seized as evidence during the initial walk-through. During this initial walk-through of the residence, both doors to the law office were closed and marked not to be entered. A second search of the residence was conducted later on April 5 th . Officers did not enter the law office. During this search, the walk-through of the rooms was videotaped but, again, no evidence was seized.

59On April 6 th the warrants for the residence were executed for the purpose of gathering evidence. DC Hay oversaw the execution of the warrants to ensure the law office was not searched and the doors to the law office remained closed. Detective Constable Kevin Kreibich, Detective Constable Matthew Vanderidder, Detective Constable Erin Quinn and PC Bruni attended at the residence to assist with the search. At a briefing conducted by DC Hay, all officers were provided with copies of the warrants which they reviewed. The officers were directed not to access the law office. They were further told that any potentially privileged documents found outside the office were to be sealed in an envelope for later review by a lawyer.

60DC Kreibich recalls taping off the door to the law office to prevent access. He did not recall seizing any potentially privileged legal documents during his search of the residence.

61DC Vanderidder was assigned by DC Hay to be the drug exhibit officer. His responsibilities included tagging and marking all items seized by police. He remembers being seated at a table in the kitchen and searching officers would bring items to him. He explained that he was responsible for “bagging and tagging” documents. He did not review or read any documents provided to him for bagging. All items seized, including any documents, were sealed in clear property bags.

62DC Quinn testified that she located and seized dried marijuana and mushrooms from the pantry. She also found banker boxes containing documents in a closet. DC Quinn acknowledged reviewing the documents to determine whether they were subject to privilege. After her review, she placed documents she believed were potentially privileged in separate evidence bags.

63The April 11 th Lavallee warrant was executed on April 13 th . DC Hay accompanied Ms. Bhamra to the residence and was physically present in the law office during the search. DC Hay described how Ms. Bhamra would hand him evidence seized from the law office which she believed was potentially relevant and he would seal the evidence in an envelope. He did not review or read any item seized by Ms. Bhamra. DC Hay said that he relied entirely on Ms. Bhamra to determine whether a document was potentially subject to solicitor-client privilege.

64DC Vanderidder was also the drug exhibit officer when the April 11 th Lavallee search warrant was executed on April 13 th . He attended a briefing before the search was conducted. He recalls waiting outside the office while the search was conducted by Ms. Bhamra in the presence of DC Hay. He was responsible for taking a photo of each item in the location where it was found in the office.

65DC Vanderidder testified that all items seized from the law office together with two items seized from an area outside the law office were locked in a vault at the courthouse (the “privileged items”).

12. Evidence Seized During Execution of the Warrants

66The following items were seized during the search of the residence:

(a) from the bedroom (believed to be occupied by Mr. Wendt):

• a Norins M305 semiautomatic .308 WIN long rifle;
• a loaded ROHM 38 calibre black revolver handgun;
• 14 rounds of .38 calibre ammunition;
• two loaded magazines each with 4×.308 rounds of ammunition;
• a metal box containing 256 ×.308 rounds of ammunition,

(collectively, the “firearms evidence”).

(b) From common areas of the residence:

• 672 marijuana gummies;
• 143 marijuana lollipops;
• 551 g of psilocybin;
• 231 g of suspected MDMA;
• 8999 g of marijuana bud,

(c) from the laboratory:

• approximately 140 kg of marijuana;
• approximately 324 L of suspected marijuana resin;
• approximately 26 L of suspected marijuana butter;
• approximately 1340 g of suspected marijuana shatter;
• various unknown liquids;
• an elaborate closed-loop cannabis extraction system;
• freezers and multiple roto-evaporators and various laboratory extraction equipment,

(collectively, (b) and (c) are referred to as the “drug-related evidence”).

POSITIONS OF THE PARTIES

67The applicants are united in their position on this application. Both applicants challenge the validity of the initial warrantless search of the residence and the validity of the search warrants issued in reliance upon the “fruits” [5] of the warrantless search. The applicants submit that once the “fruits” are excised from the ITO’s, insufficient grounds remain upon which the warrants could have issued.

68Furthermore, Mr. Ferri submits that, should the court find that the warrantless search was reasonable and therefore constitutionally valid, and the search warrants validly issued, the execution of the search warrants failed to comply with the Lavallee guidelines thereby violating his s. 8 Charter rights. Consequently, all drug-related evidence seized by police during their execution of the search warrants ought to be excluded from the trial pursuant to s. 24(2) of the Charter.

69In response, Crown counsel takes the position that the clearing of the residence on April 4, 2023 was not a search incident to arrest and, further, that the decision to clear the residence was reasonable having regard to the totality of circumstances.

70Furthermore, Crown counsel submits that police took all reasonable steps to protect the solicitor/client privilege rights of Mr. Ferri’s clients when executing the search warrants relating to the residence and Mr. Ferri’s law office. Moreover, privilege cannot be asserted as a shield to protect Mr. Ferri’s criminal activity.

71Last, the Crown takes the position that, if any or all of the firearms evidence and/or drug-related evidence was obtained in a manner which violated the s. 8 Charter rights of the applicants, or either of them, the applicants have failed to demonstrate that the admission of such evidence at trial would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.

ISSUES

72Five issues arise on this application. They are:

(i) Did the warrantless search of the residence violate the applicants’ s. 8 Charter rights?

(ii) Did the warrantless search of the bedroom violate Mr. Wendt’s s. 8 Charter rights?

(iii) Are the April 5 th search warrants invalid because:

(a) the grounds contained in the ITO are insufficient to support their issuance once the information obtained by police from the search conducted on April 4, 2023 is excised; and/or

(b) the warrants failed to comply with the Lavallee guidelines; and/or

(c) the search of the residence pursuant to the authority contained in the warrants was conducted in an unreasonable manner?

(iv) Was the April 11 th Lavallee warrant issued and executed in violation of Mr. Ferri’s s. 8 Charter rights?

(v) Should the firearms evidence and drug-related evidence seized by police pursuant to the authority provided under the warrants be excluded pursuant to s. 24(2) of the Charter?

ANALYSIS

1. Did the warrantless search of the residence violate the applicants’ s. 8 Charter rights?

Section 8 Charter

73Section 8 of the Charter states that "everyone has the right against unlawful search and seizure." The purpose of s. 8 is to "protect individuals from unjustified state intrusions upon their privacy" which requires preventing unjustified searches before they happen through pre-authorization. [6]

74The Charter protects intrusions upon a person’s privacy interests. Crown counsel raises a threshold standing issue, namely, whether Mr. Wendt and Mr. Ferri held a reasonable expectation of privacy in the residence and in particular, the garage and area of the residence housing the drug lab. I will address this issue at the outset before considering whether the clearing of the residence was in fact a “search incident to arrest” which engaged the applicants’ Charter rights.

Reasonable Expectation of Privacy

75The factors to be considered in assessing whether an accused has a reasonable expectation of privacy were set out by the Supreme Court in R. v. Edwards [7] at para. 45:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

76The Edwards test was applied in R. v. White [8]. In White police entered the common areas of a building where the accused owned a unit which led to a seizure and drug charges. The affiant of the ITO did not inform the issuing justice that the investigating officer had entered the locked building without permission. The accused applied successfully to exclude the drug-related evidence on the basis police violated his s. 8 Charter rights. The court held that the accused had a reasonable expectation of privacy in the common areas of his condominium building.

77The reasonable expectation of privacy analysis is contextual as noted by Huscroft J. in White at para 44:

[T]he lesson from Edwards is that a reasonable expectation of privacy is a context- specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.

78In R. v. Maric [9] the applications judge distinguished the case from White and found that police observations of an eighth floor hallway in a multi-unit residential building were not particularly invasive compared to the police conduct in White, and the accused was using the unit and was not the owner. In Maric the court found that the accused did not have a reasonable expectation that his “comings and goings” in the eighth floor hallway (the common area) would not be observed by others or that these observations would not be divulged to police.

Reasonable Expectation of Privacy – Mr. Wendt

79I will first consider whether Mr. Wendt held a reasonable expectation of privacy in the residence, including the garage and the drug lab. Crown counsel urges me to find that the residence was a multi-unit building with Mr. Wendt’s bedroom consisting of one unit and the bathrooms, kitchen, basement, yard, garage and drug lab comprising the common areas associated with his “unit”. The Crown argues that in these common areas Mr. Wendt did not have a reasonable expectation of privacy.

80I am unable to conclude the residence was a multi-unit residential structure. [10] I find that the whole of the residence was home to Mr. Wendt in April 2023 and, thus, he had a reasonable expectation of privacy in the entire structure including the garage and the area of the drug lab. [11] I arrive at this conclusion having regard to the following:

(i) A City of London land registry query conducted by police on April 4, 2023 revealed that 467 Commissioners Road, East, London, Ontario is a single-family detached residence;

(ii) A Ministry of Transportation of Ontario driver’s licence query for Mr. Wendt conducted by police on April 4, 2023 revealed an address of 467 Commissioners Road, East London, Ontario;

(iii) Mr. Wendt was subject to an 18-month conditional sentence order issued January 13, 2022 (the “CSO”). A condition contained in the CSO required him to reside at “467 Commissioners Road, East, London, Ontario ”;

(iv) the residence did not contain separate “units” identified by number or letter;

(v) there was no evidence that Mr. Wendt had a locking mechanism on the door to the bedroom. At the time of entry into the residence on April 4, 2023, all interior doors including the door leading to the garage and the door leading to the drug lab were unlocked.

(vi) Mr. Ferri rented the residence and was Mr. Wendt’s lawyer in connection with the charges resulting in the CSO; and

(vii) evidence of persons, other than Mr. Wendt and Mr. Ferri, living in the residence was not adduced on the applications.

Reasonable Expectation of Privacy – Mr. Ferri

81To support their position that Mr. Ferri did not hold an expectation of privacy in the residence at the time of the search on April 4, 2023, the Crown endeavored to establish Mr. Ferri resided at 702 Jackpine Way in London (the “Jackpine Way residence”), not 467 Commissioners Road East.

82The Crown called Syed Akhter, the owner of the Jackpine Way residence, as a witness. Mr. Akhter testified that in 2018 he rented the property to Mr. Ferri and Mr. Ferri continues to rent the house on a month-to-month basis. His rental payments are current. In addition, the Crown adduced a Ministry of Transportation driver’s license check for Mr. Ferri wherein his address is stated as the Jackpine Way residence. [12] Mr. Ferri’s ex spouse, Anne-Elise Visser, testified that Mr. Ferri told her he wanted to distance himself from the drug lab.

83Noticeably absent was any evidence from the owner of 467 Commissioners Road East attesting to the status of any lease of the residence in April 2023.

84Notwithstanding the evidence relating to the Jackpine Way residence, I find that the evidence overwhelmingly establishes Mr. Ferri lived at 467 Commissioners Road East in April 2023 and, thus, had a reasonable expectation of privacy in the whole of the residence. I arrive at this conclusion having regard to the following:

(i) Mr. Ferri testified that he rented and lived at 467 Commissioners Road East in London, Ontario since May, 2021 and prior to that time, lived at the Jackpine Way residence;

(ii) Mr. Ferri’s evidence is corroborated by a London Police Versadex records check for Mr. Ferri conducted on April 4, 2023 which showed his address as 467 Commissioners Road East, London Ontario;

(iii) on October 20, 2021, Mr. Ferri was the subject of a dog bite investigation involving a dog at 467 Commissioners Road East. On that date, police contacted Mr. Ferri who they identified as the “homeowner”. [13] Mr. Ferri also confirmed he (not Mr. Wendt) was the owner of the dogs; [14]

(iv) on March 2, 2022 police contacted Mr. Ferri as part of their probation investigation regarding Mr. Wendt residing at the residence. Mr. Ferri confirmed that he rents the residence and that Mr. Wendt resides in the residence; [15]

(v) when police arrived at the residence on April 4, 2023, the exterior door was locked notwithstanding a business sign in the window. This suggests an intent to exclude the public;

(vi) Ms. Visser testified that in April 2023 all visits between Mr. Ferri and their daughter, Keira (including overnight visits), took place at 467 Commissioners Road East. This evidence is corroborated by police photographs showing a child’s kitchen set on the main level of the residence;

(vii) Ms. Visser further testified that although she was aware of the Jackpine Way residence, Mr. Ferri was not living at that address in 2023; and

(viii) Ms. Visser’s testimony that Mr. Ferri’s mother would stay with Mr. Ferri at 467 Commissioners Road East when visiting from out of province was corroborated by the presence of his mother in the residence on April 4, 2023.

85Both Mr. Wendt and Mr. Ferri had a reasonable expectation of privacy in the residence including the garage and the area of the drug lab and, therefore, have standing to challenge the reasonableness of the warrantless clearing of the residence on April 4, 2023.

Search Incident to Arrest

86A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable. [16] Generally speaking, a warrantless search incident to arrest is reasonable if it meets the common-law standard.

87In their oral submissions, Crown counsel objected to the clearing of the residence following Mr. Wendt’s arrest being characterized as a “search incident to arrest”, or any other manner of search. For this reason, the Crown objects to the applicability of the principles laid down by the Supreme Court of Canada in R. v. Stairs [17]. Instead, the Crown urged me to consider a combination of principles taken from the decisions in R. v. Golub [18] and R. v. Godoy [19] for purposes of my analysis. A review of the factual scenarios in each of Golub, Godoy and Stairs is a useful starting point.

88In Golub, the Crown appealed the accused’s acquittal on charges relating to possession of a sawed-off rifle which police had seized from the accused’s home during a warrantless search conducted immediately after his arrest in the hallway just outside of his apartment. Earlier in the evening, the accused and the complainant had been drinking together in various bars. The manager of one of the bars refused to serve the accused more alcohol. The accused told the complainant he planned to “get even” with the bar staff for cutting him off. Later in the evening, the accused became upset and angry and struck the complainant. Just before leaving one of the bars, the accused showed the complainant a rifle he had underneath his jacket. The complainant reported the threat to the bar staff who in turn reported the threat to police.

89Police attended at Mr. Golub’s basement apartment. Police made contact by telephone with the accused and asked him to open the door with nothing in his hands. A short while later the accused open the door and backed out of the unit. He had nothing in his hands. Police directed the accused to leave the door open; however, Mr. Golub closed and locked the door behind him. Mr. Golub was taken into custody and, ultimately, arrested approximately 15 feet from the door of his apartment. The accused was asked whether there was anyone else in the apartment. Initially, he did not respond and then shrugged and said, “I don’t think so”.

90Concerned that another suspect or another occupant might be in the apartment and believing a dangerous weapon remained in the apartment, police entered, searched and secured the apartment without a warrant. Police were directed to search only for persons who might be in the apartment, not evidence. Police searched in every conceivable place where someone might be hiding. The rifle was found between two mattresses. The appeal was allowed, the acquittal set aside and a new trial ordered.

91In Godoy two police officers were dispatched with respect to a 911 call originating from the accused’s apartment in which the line had been disconnected before the caller spoke. The officers together with two backup officers attended at the apartment and knocked on the door of the apartment. The accused partially opened the door and when asked if things were all right inside responded that there was “no problem”. One of the officers asked if they could enter the apartment to investigate and the accused tried to close the door. The four officers forced their way into the apartment. Upon entering, they heard the sound of a woman crying and found the accused’s spouse in the bedroom, curled in a fetal position and sobbing with swelling above her left eye. The complainant told police the accused had hit her. The accused was placed under arrest for assault.

92In Godoy the complainant placed a 911 call; however, was unable to communicate with the 911 dispatcher. The caller’s inability to communicate suggested they were in imminent danger and a timely police response was critical to ensure their safety. The appellants suggested other alternatives such as knocking on the neighbours’ doors and questioning them or waiting in the hall for further signs of distress, should have been taken before forcing entry into the apartment. The Supreme Court held that such alternatives were not only impractical but dangerous and found the forced entry reasonable in the circumstances.

93In Stairs a 911 call was placed to report a man repeatedly hitting a woman in a vehicle. Police located the vehicle parked in the driveway of the home. They knocked on the front door and loudly announced their presence but no one answered. Fearing for the woman’s safety, police entered the house without a warrant. A female with injuries to her face came up a flight of stairs leading from the basement. The accused was observed running past the bottom of the staircase and barricading himself in the basement laundry room. He was arrested a short time later. After his arrest, police conducted a visual clearing search of the basement living room area from which the accused and the women had just emerged. Police maintained that the purpose of the “clearing search” was to confirm that no one else was in the apartment and that there were no other hazards. During the search, the police saw a clear container and a plastic bag containing methamphetamine in plain view. The Supreme Court was divided. The majority of the court held that the search of the living area was a lawful search incident to arrest.

94Godoy addressed the scope of police powers in responding to emergency 911 calls and, in particular, the scope of their common-law power to enter a private dwelling in response to a disconnected 911 call. The Ontario Court of Appeal found that the police had a power at common law to enter the apartment (a private dwelling) in response to a disconnected 911 call in the circumstances because the police were acting in the course of their duty to protect life which included preventing death or serious injury to the disconnected 911 caller.

95At paragraphs 11 and 12, Chief Justice Lamer writing for the court stated:

11 In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case.

12 If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions: first does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.

96Similar to Godoy, the forcible entry by police into the residence in the circumstances of this case constitutes a prima facie interference with the liberty and property of the applicants. Quite rightly, the applicants concede that, such interference with their constitutionally-protected rights to be free from unlawful entry by police was justified to ensure the safety of Ms. An. In the circumstances, police reasonably believed there was an imminent risk of serious bodily harm or death to Ms. An.

97However, Godoy does not deal with the reasonableness of a search of a private residence following an arrest, as is the case here. By comparison, the facts in Golub are more closely aligned with the facts of this case. Golub involved the search of the accused’s apartment incident to his arrest in the hallway outside the apartment. At paras. 41 and 42, the Supreme Court considered the principles governing a search of a home incident to arrest, writing:

41 In my opinion, searches of a home as an incident of an arrest, like entries of a home to affect an arrest, are now generally prohibited subject to exceptional circumstances where the law-enforcement interest is so compelling that it overrides the individual’s right to privacy within the home. After Feeney, the general principles governing the scope of searches as an incident of arrest set down in Cloutier do not control where the place to be searched is a residence. Those principles are still helpful in that they identify relevant considerations. However, those considerations must be looked to, not to balance competing interests, but to determine whether the circumstances are sufficiently exceptional to justify overriding the general prohibition against warrantless searches of the home.

42 What will amount to exceptional circumstances justifying a warrantless search of a residence as an incident of an arrest? I will not attempt an exhaustive answer. Exceptional circumstances do not, however, refer to circumstances which rarely arise, but rather to circumstances where the state interest is so compelling that it must override a person’s right to privacy within the home.

98Golub and, subsequently, Stairs involved a search of a private residence incident to an arrest. The facts in Stairs are closely aligned to the facts of this case. In both cases, the accused was arrested in his home with a clearing search conducted immediately thereafter. No interpretation of the manner of search, other than one incident to arrest, may be inferred from the facts of this case.

99The Supreme Court in Stairs expands on the legal principles in Golub and articulates the test governing the scope of a search of an accused’s home incident to his arrest. Stairs is the most recent authority on the subject and I am bound to apply its principles.

100Turning now to those principles. The Crown must rebut the unreasonableness presumption by showing that the clearing search of the residence following Mr. Wendt’s arrest was a valid search incident to arrest. To do so, the Crown must establish that:

(i) Mr. Wendt was lawfully arrested;

(ii) the search was truly incidental to the arrest in the sense that it was conducted for a valid law enforcement purpose connected to Mr. Wendt’s arrest; and

(iii) the search was conducted reasonably. [20]

101The case law has identified three valid law enforcement purposes: (i) police and public safety, (ii) preventing the destruction of evidence, and (iii) the discovery of evidence that may be used at trial. [21]

102Moreover, the police law enforcement purpose must be subjectively connected to the arrest, and the officer's belief that the purpose will be served by the search must be objectively reasonable. [22]

103For a search incident to arrest to be lawful, police need not have reasonable and probable grounds. However, they "must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable". [23] The important consideration is the link between the location and purpose of the search and the grounds for the arrest. [24]

104A search incident to arrest extends to the surrounding area of an arrest. In Stairs the Supreme Court modified the common law standard for search incident to arrest as it applies to the search of a person’s home as follows:

(i) the police must have reason to suspect that there is a safety risk to the police, the accused or the public which would be addressed by a search; and

(ii) the search must be conducted in a reasonable manner, tailored to the heightened privacy interests in a home. [25]

105The Supreme Court distinguished between two subcategories within the surrounding area of an arrest. These areas are: (i) the area within the physical control of the person arrested at the time of arrest; and (ii) areas outside the physical control of that person, but which are part of the surrounding area because they are sufficiently proximate to the arrest. The task of determining whether a particular area is part of the surrounding area of the arrest is a contextual and case-specific inquiry that falls to the trial judge. [26]

106When police have entered a home without a warrant (as was the case in Stairs and is the case here), police must meet a higher standard of suspicion to search the area outside the arrestee's physical control. Under the existing common law standard, when police make an arrest they may conduct a pat-down search and examine the area within the physical control of the person arrested. But when the police go outside the zone of physical control, the standard must be raised to recognize that the police have entered a home without a warrant. In these circumstances, it is not enough to satisfy the existing common law standard, which requires some reasonable basis for the search. Rather, the police must meet a higher standard: they must have reason to suspect that the search will address a valid safety purpose. [27]

107In summary, a search of a home incident to arrest for safety purposes will comply with s. 8 of the Charter provided the following requirements are met:

(i) the arrest was lawful;

(ii) the search was incident to the arrest. The search will be incident to arrest when the following considerations are met:

(a) where the area searched is within the arrested person's physical control at the time of the arrest, the common law standard must be satisfied;

(b) where the area searched is outside the arrested person's physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the accused;

(c) where the area searched is outside the arrested person's physical control at the time of the arrest but the area is sufficiently proximate to the arrest — the nature and the extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home. [28]

Application of the Stairs Principles

108The applicants do not challenge the lawfulness of the initial entry into the residence. Furthermore, Mr. Wendt does not challenge the lawfulness of his detention and arrest or the validity of the initial pat-down search and the scan of the bedroom by Sargent Dance in an attempt to locate Ms. An.

109The issues for determination with respect to each of (i) the clearing of the residence beyond the second level; and (ii) the second “clearing” of the bedroom by PC Klassen, are:

1. Whether the police had a reason to suspect that there were safety risks which justified the search of the residence beyond the second level of the residence and/or the second search of the bedroom; and
2. Whether in each case, the search was conducted in a reasonable manner.

A. Reasonable Suspicion

110Dealing first with the search of the residence. The search must meet the standard for reasonable suspicion, both in terms of its subjective and objective components.

(1) Subjective Component

111Sargent Gerber was in charge of the scene and the investigation. Immediately following Mr. Wendt’s arrest and after being notified that Ms. An had been located unharmed in a bathroom on the second level, he determined it was necessary in the interests of police and public safety to clear the residence.

112Sargent Gerber believed there was a safety risk to other possible persons in the residence that would be addressed by clearing the “entire structure”. In his view he was justified in clearing the residence beyond the second level where both Ms. An and Mr. Wendt were located by police. He testified as follows:

…I don’t know if there’s more people inside this residence; if this person has access to firearms; is it possible that there are other occupants who have the same access to firearms who may try to take defence for this subject male I am dealing with now? There’s a lot of unknowns. And to protect the safety of certainly myself and the other officers and the safety of these two individuals I am dealing with.

I do not know if there are more vulnerable persons inside [the residence] that require police assistance. Or if indeed that the male and female are the two that we received the initial information about are indeed those people. [I am] not rooting through any areas where persons could not be found. I limited my search to clearing the residence to that – less of a search and more of a clearing.

113Sargent Gerber explained that in his experience with executing “gun search warrants”, people have been found hiding in the most unlikely places. He gave as an example once finding a person under a chair. Sargent Gerber did not provide an example in the analogous context of a warrantless clearing search.

114I find Sargent Gerber’s subjective belief that there was a safety risk to officers on scene and possible other occupants of the residence due to the possible presence of firearms, and that clearing the residence of all persons addressed that risk, was a valid law enforcement purpose.

115Sargent Gerber’s suspicion was, therefore, subjectively reasonable.

(2) Objective Component

The Dynamic of the Arrest

116When police first arrived on scene at 12:47 PM, the situation was volatile. Ms. An was locked in the bathroom and Mr. Wendt was pounding on the door trying to get in. Ms. An sounded terrified. Mr. Wendt sounded irate. Ms. An told police that Mr. Wendt had access to weapons. At no time before locating her in the residence, do police lose telephone contact with Ms. An. Ms. An continuously provides updated information to police. There are few, if any, “unknowns”.

117These exigent circumstances justified a warrantless forced entry into the residence. Upon breaching the door lock and entering the residence, police encounter Gloria Ferri who appears surprised by their presence. Still on the phone with police, the complainant immediately directs police to the second level where they encounter Mr. Wendt in the hallway at the top of the stairs. Mr. Wendt is detained at 12:52 PM. He identifies himself. He is unarmed. He is not combative. He does not try to escape police custody. No weapons are found nearby in the hallway. Mr. Wendt is arrested at 12:57 PM – 10 minutes had elapsed since police first arrived on scene.

118Moments after Mr. Wendt is detained, police find Ms. An in a bathroom on the second level of the residence. She is not injured or otherwise harmed. She is taken to the kitchen of the residence where her statement is taken. After discovery of the drug lab, police arrest Ms. An. Ms. Ferri is similarly arrested.

119The volatility of the situation immediately de-escalated upon Mr. Wendt’s detention five minutes after police arrived on scene. Fortunately, the fears of police did not materialize. Mr. Wendt had no history of violence. His prior single conviction was drug-related. Ms. An made two references to firearms during her telephone conversation with PC Ueberschlag - the first was that Mr. Wendt had access to weapons. The second was that she thought he had gone to get a gun.

120It would have been apparent to police when detaining Mr. Wendt that he had not, in fact, “gone to get a weapon” as Ms. An feared he might. Any concerns for Ms. An’s safety were allayed after the pat down search was conducted and no weapons were found on Mr. Wendt or nearby.

The Nature of the Offence

121Mr. Wendt was arrested for assaulting Ms. An, his domestic partner. At para. 90 of Stairs the court quoted with approval para. 21 of Godoy:

One of the hallmarks of [domestic violence] is its private nature. Familial abuse occurs within the supposed sanctity of the home. While there is no question that one’s privacy at home is a value to be preserved and promoted, privacy cannot trump the safety of all members of the household. If our society is to provide an effective means of dealing with domestic violence, it must have a form of crisis response. (Emphasis added)

122All persons reported on the distress call were accounted for and there was no reason to believe other persons were involved in the domestic incident. Ms. An made no mention of persons other than herself and Mr. Wendt. More importantly, she made no mention of any person, other than herself, who might be at risk of harm.

123All police officers arriving on the scene following Mr. Wendt’s arrest joined in the clearing search which was underway without questioning their authority to do so. None of the officers considered the option of securing the residence and obtaining a search warrant. None of the officers made inquiries of Ms. An or Ms. Ferri as to the identity and whereabouts of other occupants. Inexplicably, officers did not immediately take Ms. An and Ms. Ferri to a place of safety outside of the residence notwithstanding their fear that other persons might be hiding in the residence with access to weapons.

124Sargent Gerber was live to the possibility of other tenants. While travelling to the residence following his dispatch, he considered that the residence may contain multiple units. These concerns caused him to direct another officer to conduct a search of the address. Notwithstanding the availability of information which would have alerted him to the fact Mr. Ferri was the homeowner and was Mr. Wendt’s lawyer, Sargent Gerber determined he was lawfully entitled to conduct a clearing search of the entire residence without regard to the privacy interests of other occupants.

125All police officers called as witnesses on the applications testified that it was LPS policy with respect to calls reporting domestic violence involving a firearm, to clear the entire residence without a warrant. The evidence of the officers makes it clear, that they acted based solely on a blanket policy with regards to domestic violence calls involving weapons without regard to the particular circumstances of the case.

126With respect to additional safety risk associated with the possibility that a child was in the residence; I note that Sargent Gerber was unaware there had been mention of a child. Thus, the possible presence of a child could not have been the catalyst for his decision to clear the residence. I note that until a few weeks before these applications were argued and his supplemental statement disclosed to defence counsel, PC Ueberschlag was of the view that the mention of a child by Ms. Ferri was “unimportant”.

127The court noted at paragraph 94 in Stairs, that “police often respond to domestic violence calls with limited information. For example, they may not know if other family members, including children, are involved. This is further exacerbated when victims at the scene of the arrest are uncooperative, a common phenomenon in the domestic violence context.” This was not the situation facing police in this case. Ms. An requested the involvement of police. She was cooperative. She maintained constant communication with police throughout the incident. There was no reason to conclude that Ms. An could not be depended on for reliable information about the presence of other people or other hazards in the residence.

128By deciding to clear the residence beyond the second level, without first making inquiries of Ms. An, and/or reviewing information contained in police searches on hand, police acted on a generalized suspicion that was not objectively reasonable in the circumstances. On the facts of this case, the applicants’ privacy interests in the residence should prevail over society’s interest in effective law enforcement.

Nature of the Search

129On the facts of this case, both the search of the residence and the second search of the bedroom by PC Klassen were not conducted in a reasonable manner.

130With respect to the clearing search of the residence, the scope of the search beyond the second level of the residence far exceeded the area which could reasonably be construed as “sufficiently proximate to the [area of] arrest”. When asked why he started with the garage, Sargent Gerber replied that he “remembered a door closed to the right when he made entry and wondered if the [door] was associated with the unit”. The area of the garage was no where near the area of arrest. His explanation makes no sense and does not suggest he was concerned that other persons may be hiding out in the garage.

131I find that the scope of the search was inappropriate and, therefore, unreasonable.

132I note the comment in Stairs at para. 99: “Had [police] searched the upper floors of the home or other rooms, the search would have been unreasonable. But they did not do so. They only cleared the basement living room area immediately adjacent to where Mr. Stairs had been arrested – the very area from which he and the victim had emerged just moments earlier.” (Emphasis added)

133In this case, police did not make any efforts to limit the scope of their search to the second level of the residence. Their stated objective was to search for persons in “every nook and cranny” of “every room” of this “extensive structure”.

B. Did the warrantless search of the bedroom violate Mr. Wendt’s s. 8 Charter rights?

134With respect to the bedroom, the initial clearing search by Sargent Dance was appropriate in scope. Notwithstanding that none of the officers had observed Mr. Wendt coming out of the bedroom, the search of the room was sufficiently proximate to the time of arrest and to the area of arrest. At the time Sargent Dance entered the bedroom Ms. An had not yet been located. Accordingly, his suspicion that Ms. An may be located in the bedroom was both subjectively and objectively reasonable in the circumstances.

135Sargent Dance engaged in a cursory search of the bedroom. He described “scanning” the room and determining quickly that no persons were hiding in the bedroom. He did not move furniture or open drawers. He did not linger in the bedroom. His search or “scan” of the bedroom was minimally invasive. He observed a two dogs crated in the closet of the bedroom. He did not observe any weapons.

136Turning now to consider the reasonableness of the second clearing search of the bedroom conducted by PC Klassen. PC Klassen testified that he was asked to conduct a clearing search of the bedroom although he could not recall who made the request of him. PC Klassen claims that the intended purpose of his search was only to clear the bedroom of persons, possibly a child. He said he was not searching for firearms or other weapons.

137I do not accept this evidence. At the time of his search, the drug lab had been found, the firearms had not. PC Klassen intentionally misled the Court with respect to the manner of his search. He could not have and did not observe firearms when he got down on his hands and knees and looked under the bed because the solid wood bed frame prevented him from doing so. I find his evidence in this regard was fabricated and was intended to support the lawfulness of his warrantless search of the bedroom after the fact.

138I find that PC Klassen conducted a search of the bedroom for firearms, not persons. By doing so, his search of the bedroom was unreasonable and a violation of Mr. Wendt’s s. 8 Charter right.

C. Are the April 5 th search warrants invalid?

Is the information contained in the ITO’s sufficient to support the issuance of the warrants once the information obtained by police on April 4, 2023 is excised?

139There is a narrow basis upon which an authorization may be quashed by a reviewing judge. The test for review was established in Garofoli [29]:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

140The applicants argue that insufficient grounds remain to support the issuance of the warrants once the unlawfully obtained information relating to the firearms and drug lab generated by the unlawful warrantless search of the residence is excised from the ITO’s.

141It is well-established that courts reviewing the sufficiency of ITO’s are required to excise facts obtained by means of a Charter breach regardless of the gravity of the breach and without the kind of assessment of contextual factors that takes place in a s. 24(2) analysis. [30]

142In assessing the sufficiency of the information contained in the ITO’s, I must excise the information and beliefs of DC Scott relating to or stemming from the search of the residence on April 4, 2023. That is, all references to the rifle and ammunition observed in the bedroom and all references to the drug lab and other drug-related evidence observed by police on April 4 th must be excised. In addition, all references to information provided by Ms. An during her police interview in response to questions relating to the drug lab must also be excised from the ITO’s.

143I find that following excision, the ITO’s contain insufficient grounds upon which the April 5 th warrants could have issued. Accordingly, the April 5 th warrants are invalid and the searches and seizure of evidence on April 6 th 2023 were warrantless and, therefore, unreasonable and in violation of the applicants’ s. 8 Charter rights.

144Ms. Cacciavillani acknowledges that the information provided by Ms. An to police in her initial interview conducted April 4, 2023 combined with the information provided to PC Ueberschlag during the COAST call would have been sufficient to support DC Scott’s reasonable and probable grounds for the issuance of a Code search warrant, restricted in scope to the bedroom. However, police applied for a Code warrant for the entire residence. At paragraph 80 of the ITO, DC Scott deposes:

I believe that the residence located at 467 Commissioners Road East, London, Ontario, will house the items to be searched for as officers entered the residence emergently for another investigation and observed the items. Police have been monitoring the residence since Donovan Wendt’s arrest. Allowing investigators to enter the address via this requested authorization will assist with the collection of the firearm, ammunition, cell phone, chemical solvents, cannabis products and derivatives, extraction apparatus and packaging materials without the risk of the items being moved, damaged or becoming a risk to public safety.

145The Code does not provide for the retroactive amendment of an overly broad warrant. After excision of the reference to the “observed” items, DC Scott’s belief that the items to be searched for would be found in the whole of the residence is without foundation.

146Reference to the scope of the search cannot be severed from the warrant or amended to restrict the scope of the warrant to the bedroom. Being overly broad, the April 5 th Code warrant is invalid. [31]

Did the April 5 th warrants fail to comply with the Lavallee guidelines?

147Having found that the April 5 th warrants are invalid, it is unnecessary to consider whether their terms adequately addressed the Lavallee guidelines (see below).

Was the search of the residence pursuant to the authority contained in the warrants conducted in an unreasonable manner?

148Similarly, this issue deals with the reasonableness of the searches conducted April 5 th and April 6 th with regard to items and documents potentially subject to solicitor-client privilege located in areas of the residence outside the law office. Having found the April 5 th warrants to be invalid, the searches of the residence conducted on April 5 th and April 6 th are deemed to be unreasonable.

D. Was the April 11 th Lavallee warrant issued and executed in violation of Mr. Ferri’s s. 8 Charter rights?

149For the same reasons rendering the April 5 th warrants invalid, I find that the April 11 th Lavallee warrant could not have issued once all references to observations of drug-related evidence are excised from the ITO. In addition, the ITO failed to properly address the Lavallee guidelines.

150The Lavallee decision stemmed from the seizure of materials from a lawyer’s office pursuant to a warrant issued pursuant to s. 488.1 of the Code. The lawyer asserted solicitor client privilege over the material seized and challenged the constitutionality of the review procedure under s. 488.1.

151Lavallee stands for the general proposition that, with respect to privileged information, unless consent of the privilege holder is first obtained, police are not entitled to such information. Police must adopt an approach to their review of information which restricts the chances of accessing privileged information to a reasonable minimum. [32]

152The Supreme Court of Canada deemed the review procedure provided under s. 488.1 unconstitutional. After arriving at their decision, the court considered the nature of solicitor and client privilege and the common law principles governing the legality of searches of law offices pending the enactment of new legislation. At para. 49 the court stated:

1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.

2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.

3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor client confidentiality.

4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.

5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the bar should be allowed to oversee the sealing and seizure of documents.

6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.

7. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.

8. The Attorney General may make submissions on the issue of privilege but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.

9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.

10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

153Before issuing the warrant, police had to satisfy the issuing justice that “there exists no other reasonable alternative to the search”. This requirement is mandatory. A search of a law office is an investigative tool of last resort. [33]

154DC Scott did not provide information upon which the issuing justice could conclude there was no other reasonable alternative and that the information sought could not be obtained from other sources. The ITO did not provide information about the nature and extent of investigative efforts to obtain the information sought from other reasonably available sources such as from items seized during searches already conducted.

155Furthermore, the ITO contained the same conclusory statements without evidentiary foundation as were contained in the ITO filed in support of the application for a search warrant of the privileged items, which application was denied. That is, there was no evidence to suggest that the items sought (for example, debt lists or purchase orders) would be found in the law office.

156I find that the April 11 th Lavallee warrant is invalid. Having found the warrant invalid, the April 13 th search was presumptively unreasonable and a breach of Mr. Ferri’s s. 8 Charter rights. As such, it is unnecessary to consider whether execution of the warrant on April 13 th was also unreasonable having regard to the Lavallee principles.

E. Should the evidence seized by police pursuant to the authority provided under the warrants be excluded pursuant to s. 24(2) of the Charter?

The Applicable Legal Principles

157Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violates an individual's Charter rights, where admitting the evidence would bring the administration of justice into disrepute.

158The first issue to address under s. 24(2) is whether the evidence sought to be excluded was "obtained in a manner" that infringed on a right guaranteed by the Charter. In determining whether evidence was obtained in a manner that infringed on a Charter right, the connection between the evidence and infringement need not be causal in nature. The connection may be temporal, contextual or causal, or a combination of the three. Evidence may be tainted by the infringement if it is part of the same transaction or course of conduct. [34] The "obtained in a manner" requirement is "just the gateway to the focus of s. 24(2) - whether the admission of the evidence would bring the administration of justice into disrepute" and should be approached generously [35].

159The second issue is whether the admission of the evidence would bring the administration of justice into disrepute.

160In R. v. Grant [36], the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:

(i) the seriousness of the Charter infringing state conduct;

(iii) the impact of the breach on the Charter -protected interests of the accused; and

(iv) society's interest in the adjudication of the case on its merits.

161In assessing the seriousness of the breach, the court is required to evaluate whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. [37] The overarching concern is to maintain public confidence in the rule of law and its processes.

Obtained in a Manner

162In this case, because the search of the residence on April 4, 2023 was not a lawful search incident to arrest, the items observed (and ultimately seized) were obtained in a manner that infringed on the applicants’ s. 8 Charter rights. There is a clear, causal, temporal and contextual connection between the evidence and the breach. But for the unreasonable clearing search of the residence and the unreasonable second search of the bedroom, the drug-related evidence and the firearms evidence, respectively, would not have been observed and, ultimately, seized.

163In this same vein, because the April 5 th search warrants and the April 11 th Lavallee search warrant could not have issued [38] without reference by DC Scott to the observation of firearms and the drug lab during the clearing search of the residence, the firearm and drug-related evidence seized from the residence during execution of the April 5 th warrants was also obtained in a manner that infringed on the applicants’ Charter rights.

Grant Analysis - Firearms Evidence

(i) Seriousness of the Charter -infringing state conduct

164The first Grant factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct leading to the Charter violation, the greater the need for the courts to disassociate themselves from the conduct so as to preserve public confidence in the rule of law. [39] When assessing the seriousness of the state conduct under s. 24(2), I must also take into account the cumulative effect of the breaches. [40]

165To begin, Mr. Wendt's Charter rights were violated when PC Klassen conducted a second search of the bedroom under the guise of a second clearing of the bedroom for persons. PC Klassen was searching for firearms which Ms. An reported were in the possession of Mr. Wendt. The bedroom had previously been screened or “cleared” by Sargent Dance for persons in an attempt to locate Ms. An immediately following Mr. Wendt’s detention. No firearms were observed by Sargent Dance in plain sight. PC Klassen did not intend to conduct a lawful clearing search incident to arrest. There was nothing “incidental” to the search. Rather, his intention was to conduct a warrantless firearms search which he knew or ought to have known was unlawful.

166I find that the seriousness of the violation of rights is exacerbated by the fact that PC Klassen deliberately misled the court when he testified that he located the rifle and ammunition when “he got down on all fours” (hands and knees) and looked under the bed. During cross-examination, PC Klassen admitted that it was not possible to observe the rifle and ammunition under the bed because the solid wood bed frame extended to the floor on all sides of the bed.

167Furthermore, no notes or records were kept by any of the investigating officers with respect to the seizure of the handgun and ammunition, including the identify of the officer who first located and secured the firearm and the identity of the officer who seized the firearm. The failure of police to document the chain of custody with respect to the handgun suggests a dereliction of duties and wilful negligence on the part of the investigating officers.

168All LPS officers dispatched to the residence on April 4 th testified that the LPS policy required that a “clearing search” of any residence associated with a domestic violence call involving firearms, be conducted. In the view of the officers, the circumstances of the case did not need to be considered before clearing a residence, including, whether the structure was home to other persons having a significant privacy interest in the home. This blanket approach to clearing searches is not in accord with the law established in Stairs. An approach tailored to the circumstances of the arrest as well as the attributes of the home in question, must be undertaken by police before a clearing search incident to arrest is undertaken.

169A “one-size-fits-all” approach is not reasonable. As earlier noted, the law does not permit a carte blanche or wholesale search of a private residence following a warrantless entry. The LPS policy with respect to clearing searches for all domestic violence calls suggests a systemic disregard of Charter rights. As a result, I find that the first factor pulls strongly toward the exclusion of the firearms evidence.

(ii) The impact of the breach on the Charter - protected interests of the accused

170In respect of the second Grant factor, I must address the privacy interests of Mr. Wendt.

171Mr. Wendt did not testify on the applications. However, it is not disputed that Mr. Wendt resided at the residence on April 3, 2024 and it was not seriously challenged that Mr. Wendt had a high expectation of privacy in the bedroom. The Crown argues that Mr. Wendt did not have an expectation of privacy in the drug lab. This is a curious position given that he has been charged with the same drug-related charges as Mr. Ferri, the only other person residing in the residence. A more in-depth analysis of Mr. Wendt’s privacy interest in the lab is unnecessary since Mr. Ferri has challenged the police “clearing search” of the garage and lab. I will address the privacy interests of Mr. Ferri in the residence and in particular the lab below as part of my s. 24(2) analysis with respect to the violation of Mr. Ferri’s s. 8 Charter rights.

172I find that Mr. Wendt had a heightened expectation of privacy in the bedroom and a moderate expectation of privacy in all other common areas of the residence, including the lab. In my view, the warrantless “clearing” search of the residence, and in particular the bedroom, had a significant impact on his s. 8 Charter rights.

173Based on the foregoing, I find that the impact of the breaches on Mr. Wendt’s Charter -protected interests weighs strongly towards exclusion of the firearms evidence.

(iii) Society's interest in an adjudication on the merits

174The third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct. [41]

175Society's interest in an adjudication on the merits almost always favours admission of the evidence. [42] However, the admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offence is serious and that the evidence reliable and central to the Crown's case. [43] The negative effects of the loss of reliable, important evidence must be considered, but cannot be allowed to overwhelm the other considerations. [44]

176In Grant, at para. 81, the Supreme Court held that the "exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective thus bringing the administration of justice into disrepute."

177The exclusion of the firearms evidence seized from the bedroom will "gut" the Crown's case" against Mr. Wendt with respect to the firearm charges. I am well aware that the courts have repeatedly recognized that guns pose a persistent and serious threat to public safety and the welfare of the community. [45]

178In this case, there is a strong public interest in having the charges against Mr. Wendt for possession of prohibited firearm adjudicated on their merits. Not intending to downplay the seriousness of the firearm charges, I have considered that the police were responsible for compromising the continuity of the handgun evidence such that it is inadmissible leaving only the long gun and ammunition evidence to support the charges. In addition, the Crown does not allege that the firearm was wielded during the alleged assault of the complainant. It is a relevant consideration, that Ms. An did not report that Mr. Wendt was in actual possession of a firearm or that he threatened her to shoot her.

179Given the importance of the evidence to the Crown's case and its reliability, this factor weighs in favour of the admission of the evidence; however, for the reasons stated, such weight is moderate, at best.

(iv) Balancing

180In R. v. Lafrance, [46], the Supreme Court held that "it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry." (Emphasis in original.) In McGuffie, at para. 63, Doherty J.A. held that "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. 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." (Internal citations omitted.)

181The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute [47].

182In this case, the first and second factors weigh significantly in favour of exclusion of the evidence. The third factor weighs moderately in favour of inclusion.

183Based on my balancing of the Grant factors, my view of the totality of the circumstances of this case, it is one in which the court should dissociate itself from evidence obtained in this manner. In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the exclusion of the firearms evidence would not bring the long-term reputation of the administration of justice into disrepute.

Grant Analysis – Drug Lab and Drug-related Evidence

(i) Seriousness of the Charter -infringing state conduct

184I have found a breach of Mr. Ferri’s rights under s. 8 of the Charter because the search of the residence was not a lawful search incident to Mr. Wendt’s arrest.

185For the reasons already provided, I do not accept the rationale for searching the garage given that the officers knew the individual they had arrested on the second level of the residence was Mr. Wendt; that the reported disturbance was one of domestic violence involving his girlfriend who was also found on the second level, uninjured. There was no discernable connection between the location of Mr. Wendt’s arrest and the location of the garage and drug lab. Notwithstanding the absence of proximity, Sargent Gerber, as officer in charge, decided it was necessary in the interests of public and police safety to clear the whole of the residence starting with the garage (the door to which was closed upon entry). This decision was then communicated to all officers on scene and arriving on scene. None of the officers arriving on scene following Mr. Wendt’s arrest questioned their authority to enter into and search the residence without a warrant.

186Mr. Ferri was the primary tenant of the residence. This information was available to Sargent Gerber had he enquired of the officer whom he directed to obtain information about the tenants or owner of the residence. The LPS blanket policy cannot provide justification for the warrantless search of the whole of the residence. There was no objectively held suspicion that other persons were or may be hiding in the residence beyond the second level.

187Sargent Gerber was unaware of the possible presence of a child in the residence when he decided to clear every “nook and cranny” of this massive residence. He was never privy to that information. The fact that other officers involved in the “clearing” of the residence had information that a child was possibly present somewhere in the residence cannot provide support for the reasonableness of the search retrospectively. In the same way, a search that ultimately yields no other persons cannot render a reasonable search, unreasonable.

188The actual conduct of the officers in this case suggests they were overzealous and not objectively concerned for their own or public safety. I have considered that the officers did not have their guns drawn during the clearing search and, furthermore, that Ms. An and Ms. Ferri were not taken to safety outside the residence during the clearing search. Instead, the two woman were questioned in the kitchen of the residence which had not been deemed safe.

189Good faith cannot be claimed if the Charter breach arises from a police officer's negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards. [48] The officers’ conduct in this case does not evidence bad faith. However, the absence of bad faith does not equate to evidence of good faith.

190Furthermore, I have found that the Cannabis Act search warrant issued April 5 th and the April 11 th Lavallee warrant could not have issued without reference to the drug lab observed during the unlawful clearing search of the residence on April 4, 2023. I have found, therefore, that the searches conducted on April 5 th , 6 th and 13 th , 2023 were unreasonable and a violation of Mr. Ferri’s s. 8 Charter rights.

191As earlier noted, the law does not permit a carte blanche or wholesale search of a residence upon a lawful entry. Yet, that is what police conducted and what they understood was lawful notwithstanding the absence of a search warrant. The officers conduct in this case suggests a systemic disregard of Charter rights. As a result, I find that the first factor pulls strongly toward the exclusion of the drug-related evidence.

(ii) The impact of the breach on the Charter - protected interests of Mr. Ferri

192Mr. Ferri testified in support of his application. I find that Mr. Ferri had a subjective expectation of privacy in the entire residence including the lab with the exception of Mr. Wendt’s bedroom on the second level, and that expectation was objectively reasonable. In my view, the warrantless “clearing” search of the residence, and specifically the law office, had a significant and serious impact on his s. 8 rights. For reasons unexplained, police continue in possession of the privileged items notwithstanding they unsuccessfully applied for a warrant to search these items. The cumulative effect of the Charter violations has resulted in Mr. Ferri being unable to practise as a lawyer which indirectly impacts on the rights of his clients and his ability to earn an income.

193Based on the foregoing and taking into consideration the cumulative impact of the s. 8 breaches, I find that the impact of the breaches on Mr. Ferri’s Charter -protected interests weighs strongly towards exclusion.

(iii) Society's interest in an adjudication on the merits

194As already noted, the third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct.

195As noted earlier in these reasons, society's interest in an adjudication on the merits almost always favours admission of the evidence. However, the admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offence is serious and that the evidence reliable and central to the Crown's case. The negative effects of the loss of reliable, important evidence must be considered, but cannot be allowed to overwhelm the other considerations.

196From a high level one can argue that the public and in particular the London community has a significant interest in seeing the charges against the applicants relating to running a drug lab in a high-end residential neighbourhood determined on their merits. However, a more granular analysis is required in order to assess the public interest in this case.

197Unlike fentanyl which can be lethal in small doses, the consumption of cannabis does not pose a safety risk to the public and is legal in Canada. In this case, the safety risks to the public arise from the process of extracting the THC from the marijuana plant. The extraction process involves pressurizing highly-flammable and combustible chemicals. Mr. Moore provided expert evidence detailing the numerous safety risks associated with a cannabis extraction lab such as the one found in the residence. Common sense grounded in basic scientific principles supports a finding that the chemicals found in the lab and the garage are highly flammable should they come in contact with an ignition or heat source. These same chemicals are highly combustible under pressure. However, Mr. Moore agreed with the suggestion that the same can be said of propane stored maintained under pressure in a BBQ tank.

198I find that, generally speaking, drug labs pose a risk to public safety. However, the degree of risk depends on the nature and sophistication of the system. In this case, the system was a “closed-loop” extraction system. Such systems pose less of a risk to public safety than “open” extraction systems. As their name suggests, a closed-loop system prevents chemicals used in the extraction process from being released into the air thereby reducing the risk of combustion (explosion). Mr. Moore provided photographs of the aftermath from various extraction lab explosions he was involved in investigating. None of these explosions involved a closed-loop cannabis extraction system such as the one found in the residence. As an aside, one of these explosions involved a meth(amphetamine) lab.

199With respect to the drug lab found in the residence, the actual risk to public and officer safety was minimal as evidenced by the following:

1. none of the officers at the scene reporting smelling cannabis or chemicals while in the residence;

2. air quality within the lab and residence was within normal range (2-3 ppm);

3. police reported to the media on April 4, 2023 that the presence of the lab did not pose a threat to public safety; and

4. upon discovering the lab, police did not notify the neighbours of any risk to their safety.

200Given the importance of the evidence to the Crown's case and its reliability, this factor weighs in favour of the admission of the evidence; however, not strongly.

(iv) Balancing

201With respect to the drug-related evidence, the first and second factors weigh significantly in favour of exclusion of the evidence. The third factor weighs moderately in favour of inclusion.

202Having regard to whether admitting the evidence would bring the administration of justice into disrepute, I find that a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the exclusion of the drug-related evidence would not bring the long-term reputation of the administration of justice into disrepute. Based on my balancing of the Grant factors, this case is one in which the court should dissociate itself from evidence obtained in the circumstances of this case.

CONCLUSION AND DISPOSITION

203On balance, I am satisfied that the repute of the administration of justice would suffer more from the admission of the firearms evidence and drug-related evidence than by its exclusion.

204For these reasons, both applications are granted and all evidence seized by police during their search of the residence on April 6 th and 13 th , 2023 is inadmissible at the applicants’ trial.

205With respect to the privileged items, they remain in storage at the courthouse. The application for a warrant authorizing a search of these items was denied. Accordingly, the continued possession of the privileged items is not lawful. The Crown shall forthwith return the privileged items to Mr. Ferri.

“Justice A.K. Mitchell” Justice A. K. Mitchell

Released: February 5, 2025

1Pursuant to an earlier ruling (see R. v. Wendt, 2024 ONSC 3484), twelve (12) charges against Mr. Wendt contained in the original thirty (30) count indictment were severed and are now the subject of a separate indictment.

2Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (“Lavallee”).

3A cross bow and arrows were not seized during the search of the residence.

4Mr. Wendt acknowledges he does not have standing to challenge the law office search warrants issued April 6 and 11, 2023.

5The firearms evidence and drug-related evidence.

6Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 160.

7R. v. Edwards, [1996] 1 S.C.R. 128 (“Edwards”).

8R. v. White, 2015 ONCA 508 White.

9R. v. Maric, 2024 ONCA 665 [2024] O.J. 4028.

10Query whether the Edwards factors need be considered where the case does not involve a multi-unit structure. Both Manac and White are distinguishable on this basis.

11Mr. Wendt does not assert a reasonable expectation of privacy in the law office.

12This document indicates that the last date on which the address history was updated with the Ministry was November 29, 2018.

13See case summary prepared by Police Constable Diaz on October 20, 2021 - occurrence number 21 – 107281.

14Paragraph 26, Information to Obtain sworn by Detective Constable Brian Scott April 5, 2023.

15Statement submitted by Police Constable Raynor on occurrence number 22 – 17722.

16R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

17R. v. Stairs, 2022 SCC 11 [2022] S.C.J. No. 11 (“Stairs”).

18R. v. Golub, [1997] O.J. No. 3097 (C.A.) (“Golub”).

19R. v. Godoy, [1999] 1 S.C.R. 311 (“Godoy”).

20Stairs, supra, at para. 35.

21R. v. Fearon, 2014 SCC 77, at para. 75.

22Stairs, supra, at para. 37.

23R. v. Caslake, [1998] 1 S.C.R. 51, at para. 25.

24R. v. Nolet, 2010 SCC 24, at para. 49.

25Stairs, supra, at para. 8.

26Stairs, supra, at paras. 59 and 60.

27Stairs, supra, at para. 61.

28Stairs, supra, at para. 82.

29R. v. Garofoli, [1990] 2 S.C.R. 1421, at page 1452.

30R. v. Grant, [1993] 3 S.C.R 223 (“Grant (1993)”) at page 251.

31R. v. Lachance, [1990] 2 S.C.R. 1490 at para. 19; and see also R. v. Sonne, 2012 ONSC 584 at para. 16.

32Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, at para. 24.

33Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, supra, at para. 49; and Maranda v. Richer, 2003 SCC 67, at para. 16.

34R. v. Mack, 2014 SCC 58, at para. 38.

35R. v. Pino, 2016 ONCA 56, at para. 56.

36R. v. Grant, 2009 SCC 32 (“Grant”), at para. 71.

37R. v. Grant, 2009 SCC 32, supra, at para. 72.

38With respect to the Criminal Code warrant issued April 5, 2023, the information provided by Ms. An to PC Ueberschlag and during her police interview provided insufficient grounds to support a warrant to search the entire residence.

39R. v. Grant, 2009 SCC 32, supra, at para. 72.

40R. v. Poirier, 2016 ONCA 582 at para. 91.

41R. v. Morelli, 2010 SCC 8, at para. 102.

42R. v. McGuffie, 2016 ONCA 365 (“McGuffie”), at paras. 62-63.

43R. v. Harrison, 2009 SCC 34.

44R. v. Omar, 2018 ONCA 975, at para. 53, rev'd on other grounds 2019 SCC 32.

45R. v. Wong, 2012 ONCA 767, at para. 11.

46R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90.

47R. v. Whittaker, 2024 ONCA 182, at para. 60.

48R. v. Tim, 2022 SCC 12, at para. 85.