(This document is from the CanLII Legal reference, and the original may be found here.)

COURT FILE No.: Barrie, Simcoe County, Central East Region, Information # JUN-03, 3517.

Citation: R. v. Login, 2006 ONCJ 51

DELIVERED ORALLY on February 10, 2006.

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JONATHAN WESLEY LOGIN

Before Justice J.J.A. Douglas

Reasons for Judgment, Order and Reasons on Applications for Exclusion of Evidence and a Stay of Proceedings Pursuant to Section 24 of the Canadian Charter of Rights and Freedoms released on February 10, 2006

Mr. Enno Meijers ....................................................................................................... for the Crown

Mr. Paul Shaw and Mr. Brian McClellan ....................... for the accused Mr. Jonathan Wesley Login

DOUGLAS J.:

1. One spring day in May 2003, Mr. Jonathan Login, the Accused, was in a farmer’s field, near his residence in Baxter, Ontario, a dominantly rural area. The large farm field was adjacent to a much smaller schoolyard, with school and playing field.

2. The Accused was there with the permission and at the request of the farmer to hunt rodents. He was there dressed in camouflage, scentless hunting clothes, and was using a very good ‘varmint’ rifle. This conduct was lawful: his weapon was of a lawful sort and was lawfully registered; he was lawfully licensed to possess firearms; and he was a licensed hunter, hunting in season, in a municipal area that did not forbid the discharge of firearms.

3. A soccer coach and some children arrived at the school for a practice. The soccer coach was concerned about Mr. Login and called 911. At about the same time or shortly after this call was made, Mr. Login saw the children and decided to end the day. He drove the one-half kilometers or so home. While driving home, he saw police cars racing towards the school.

4. Moments after arriving home, he was face down in his driveway and handcuffed. An automatic weapon was trained on him. A shotgun was pointed at him, then at his wife and children who were standing in the yard of their residence. He was frisked, arrested for a criminal offence he was never charged with and then strip-searched against the trunk of a cruiser, all while passersby and neighbours watched.

5. He then signed a consent to search his residence. The police searched his home and allegedly found several properly secured firearms, and one partially dismantled 22 calibre rifle, ammunition, and ammunition making equipment in a basement workroom.

6. He was charged with careless storage of the one 22 calibre firearm and the ammunition found in his residence, but no charges were ever brought with respect to the incidents in the school, the Crown conceding their lawfulness.

7. The legality and constitutional validity of the search of the Accused’s residence, and particularly, the consent of the Accused to this search is challenged in this main application. The Accused seeks to have all evidence of this search excluded from consideration by this court.

8. In a companion application, added as the matter continued, the Accused seeks the stay of these proceedings for constitutionally unreasonable delay, it now being, to date, nearly thirty-three (33) months since he was arrested.

9. These reasons are composed of the following sections:

1. Judgement and Order

2. Charges and Introduction

3. Core Issues

4. Approach to the Consideration of the Evidence and Burden of Proof

5. The Initial Complaint

6. Action of the Accused

7. The Dispatch

8. Immediate Response to Dispatch

9. At the School and to the Login Residence

10. The Takedown, the Initial Investigative Search and the Vehicle Searches

11. The Arrest

12. The Roadside Search

13. The Consent

14. The Tour and The Video Statement

15. Section 24.

16. Conclusion.

1. JUDGEMENT AND ORDERS

The Main Search Application.

10. For the reasons below, the main Application is allowed.

11. All evidence, including any statements against interest, circumstantial or direct evidence, and any real evidence obtained after the investigative detention and the search incident to those investigative detentions, as described below, was obtained pursuant to various and cumulative breaches of the Accused’s rights under sections 7, 8, 9 and 10 of the Charter.

12. The three-part test for exclusion remains as articulated in R. vs. Collins (1987), 33 C.C.C. 3^RD. 1 (S.C.C.). In my view, the admission of such evidence would bring the administration of justice into disrepute in that:

1. Admission would affect the fairness of the trial;

2. The violations are serious; and

3. The admission of the evidence would bring greater disrepute to the system of justice than its exclusion.

13. If the Crown has no further evidence to present, following delivery of these reasons, I will consider a motion to dismiss.

14. On the condition that such a motion is made and granted, I will hear from counsel respecting an order for the return to the Accused or as directed by the Accused, forthwith, of all items seized by Ontario Provincial Police.

The Companion Delay Application.

15. For two reasons, I make no order with respect to the application to stay for unreasonable delay.

16. First, in view of my decision with respect to the main application, it appears the matter is largely moot. Throughout the presumption appears to have been that a decision against the search would vitiate the Crown’s case.

17. Second, because I have no means of assessing, now, when the overburdened lists of this Court might allow for a trial of this matter to continue and conclude (only part of one day has currently been set aside for this matter), this may be one of those unusual cases where consideration of the issue of delay should best await a Court being in a better position to assess the totality of the delay and the issues of prejudice such delay encompasses.

18. Here, on a number of occasions, I have suggested to the Crown that they could review the cases currently set for trial before me so as to determine on the basis of their determination of priority which of those many cases could be otherwise dealt with; it, of course, being impossible and largely inappropriate for the Court, which has no knowledge of the matters scheduled before it, to assess such priority. The Crown has refused to do so, arguing it was impractical to do so and untenable in so far as it effectively puts the Crown in the position of detrimentally delaying one case for the benefit of the other. While I appreciate the Crown’s discomfort, this, effectively, is what the Crown does on a daily basis when it chooses which case to start with, particularly when trial lists are so over-booked as to regularly see some 14 hours of scheduled trial time in days that, practically speaking, have no more than five and a-half or so of sitting hours.

19. In any event, in the absence of the Crown being prepared to assist in this regard, the total time to trial completion of this matter could be the current 33 or 34 months, or it could be 39 or 40 months, or more. Obviously the degree of prejudice would change.

20. My remarks, however, should not be taken as in any way suggesting that the current time to trial does not raise constitutional issues. Section 525 of the Criminal Code contemplates summary matters proceeding to trial in thirty days, and R. vs.Askov, (1990) 59 C.C.C. 3^RD. 449 (S.C.C.) and R. vs. Morin (1992) 71 C.C.C. 3^RD. 1 (S.C.C.) and other authorities suggest guidelines in the range of 8 to 12 months; 33 months, and counting, is well outside those guidelines.

21. If on some basis, the matter proceeds further before me, the delay application is to be considered deferred until such time as the totality of the probable delay and the concomitant prejudice is better assessed.

2. CHARGES AND INTRODUCTION

22. The Accused faces two charges under section 86(1) of the Criminal Code of Canada (the “Code”); count one relates to the storage, in a basement workshop area of his residence, of several and various sorts of rounds of ammunition; and count two relates to the storage in the same area, on or near a work-bench, of a partially dismantled 22 calibre rifle.

23. The discovery of the ammunition and the firearms occurred during a police search of the residence of the Accused, which purported to be conducted within the four corners of the consent of the Accused, a consent memorialized in a document headed, CONSENT TO SEARCH, marked as exhibit 7.

24. Absent evidence respecting the ammunition and the rifle, it seems apparent that the Crown would have no case with respect either to the Accused’s possession of these items or, more importantly, the manner of their storage. Indeed, it appears the case proceeded subsequent to the initial pre-trial on the basis that the resolution of the Charter applications in favour of the Accused would resolve the matter; hence dates were only set by the presiding pretrial Justice for the hearing of the Applications, and not for the trial, proper.

3. CORE ISSUES

Main Issues.

25. The primary issue concerns the lawfulness of the search of the Accused’s residence and the concomitant seizures as assessed under section 8 of the Charter. The secondary issue concerns the extent to which the unlawfulness, if any, of that search is such as to warrant exclusion under section 24(2) of the Charter.

26. However, to assess the lawfulness of the residential search, it is necessary to assess the precursors to the residential search, being the factual context in which this occurred, including the assertion that that factual context discloses many interrelated breaches of section 7, 8, 9, and 10 of the Charter.

27. These asserted breaches include:

1. The initial investigative detention of the Accused, his wife and his two children,

2. The initial three searches argued to be incidental to that investigative detention,

3. The initial arrest of the Accused,

4. The search incident to that arrest,

5. The continuing restrictions on the liberties of the family of the Accused congruent with the proposed ‘control’ of the residence of the Accused prior to consent being given to search that residence,

6. The voluntariness of any statements made by the Accused on detention or arrest,

7. The validity of any waiver of the right to counsel, and, of course,

8. The lawfulness of the consent of the Accused to the search of his family’s residence.

28. Below, I will attempt to assess the evidence respecting these and other key events on the day in question in order to answer, as it were, the main question as to whether the Accused’s consent to search could be found to represent a valid consent.

Law of Consent.

29. In doing so, I will have in mind the following requirements for such validity, as stated by Doherty, J. A. in R. vs. Wills (1992), 70 C.C.C. (3^RD) 529 (O.C.A.), approved in R. vs. Borden (1994), 92 C.C.C (3^RD.) 404, and recently reiterated in R. vs. Backhouse (March 3, 2005), O.C.A. Docket C35171 by Mr. Justice Rosenberg:

“1. There was a consent, express or implied;

2. The giver of the consent had the authority to

give the consent…

3. The consent was voluntary…and was not the product of police oppression, coercion, or other external conduct, which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

4. The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

5. The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and

6. The giver of the consent was aware of the potential consequences of giving the consent.”

30. In Backhouse, the Court cited Justice Iacobucci as follows:

“In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over the other, but also sufficient available information to make the preference meaningful.”

4. APPROACH TO THE CONSIDERATION OF THE EVIDENCE AND THE BURDEN OF PROOF.

Issues of Credibility and Credit.

31. Crown counsel has strenuously argued that the Court must find that the Accused and many of his witnesses lied to the Court with respect to many substantive matters, including the details of the investigative detention, the strip search, and, most importantly, the advice to the police by the Accused and his family as to the severe health problems of the Accused’s son and their refusal to accommodate these.

32. In contrast, though somewhat less strenuously and, perhaps, less pointedly, counsel for the Accused argues that on these and other points, the police are not to be believed, largely because of their inconsistencies on various matters.

33. While I agree that the Court, generally speaking, is obligated to determine issues of fact in the sense of making findings that deal with glaring inconsistencies, the adage that the Court can accept, some, all or none of any witness’s evidence would have little meaning if the Court considered itself bound, in some sense, to pick one story over another; indeed, to approach it’s task in this way, in a trial, is a clear error of the application of the doctrine of reasonable doubt (see: R. vs. Riley (1978), 42 C.C.C. (2^ND.) 437 (O.C.A.).

34. For reasons that will become clear as I discuss the significant events on the day in question, in my view, this is one of those cases where the resolution of some of the points in dispute would be both dangerous and unnecessary.

35. It would be dangerous in my view because, on either side, so to speak, it is clear that core issues of credibility (accurate observation of events, accurate recording in memory of events and accurate recall from memory of events), have been significantly affected by the undoubted excitement and trauma of the day’s events, and its aftermaths.

36. Such credibility issues can also have a dangerous impact on a trier of facts ability to assess issues of credit or truthfulness, because, to the extent that objectively false observation, record and recall become, despite that falsehood, the memory actually possessed by a person, those persons will actually believe their account of the events in question.

37. In the classic , The Art of Cross-Examination, 4^th. Ed. (New York, Dorset Press, 1986), of Francis L. Wellman, in discussing the “fallacies of testimony” notes, among many others, the difficulties posed by “desire” and “memory”.

38. Respecting desire, Mr. Wellman, at page 145, quotes Sir John Romilly from 16 Bevan, 105:

“It must always be born in mind how extremely prone persons are to believe what they wish….persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrences…which at first they begin by believing must have happened…. Without imputing anything like willful and corrupt perjury to witnesses of this description, they often in truth bona fide believe that they have heard and remembered…[that] which in truth never existed…[emphasis added].”

39. Respecting memory, Mr. Wellman, at page 151 quotes from Professor E. J. Swift, one of the first psychologists to investigate memory in the criminal justice context:

“First, what are the chances for a truthful narration of that which has been seen or heard? Clearly the chances of even a reasonably accurate narration are small. We have found observation itself exceedingly defective and unreliable; and when to the inaccuracy of observation there is added the disturbing effect of reviewing them with the deflected influence of conversation about the events and the excitement of the imagination, the testimony of witnessed becomes extremely undependable. Imagination reconstructs evidence with many omissions and substitutions… Expectation of an act may cause it to be seen and an intention to do something translates the thought into deed. Suggestion is always operative-suggestions of actions when one is an observer and suggestion from questions even of fact in conversation or when on the witness stand.”

40. It would also be unnecessary because, on my view of the evidence, even if one accepts, for the most part, the Crown’s evidence, the inferences to be drawn from that evidence do not support the core proposition of the Crown, that the search of the Accused’s residence was lawful pursuant to a lawful waiver by the Accused of his rights.

Burden of Proof.

41. This naturally leads to a consideration of the burden of proof on an application to exclude evidence based on an assertion of a breach of a Charter right, particularly, here, an assertion of a breach of section 8.

42. In my view, it is clear from the language of either sections 24(1) or section 24(2), that an applicant for Charter relief bears, at the very least, some evidentiary burden. Section 24(1) states that anyone whose rights “have been infringed” may apply for relief; clearly suggesting a presentation by the applicant of that infringement. In addition, section 24(2) obligates the Court to consider a remedy if it “concludes that evidence was obtained in a manner that infringed” (see: R. vs. Bartle, 1994 CanLII 64 (S.C.C.), [1994] 3 S.C.R. 173).

43. One might say that the applicant bears the burden of persuasion. Or say, at the very least, that the applicant can be seen to bear an evidential burden such as to call evidence to give an air of reality to the particular assertion of breach (see: R. vs. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3.

44. As well, the language of justification for limits prescribed by law under section 1 of the Charter clearly places the onus on the party seeking to justify the limitation, to the civil standard – on the balance of probabilities (see R. vs. Oakes 1986 CanLII 46 (S.C.C.), [1986] 1 S.C.R. 103.)

45. Most important for consideration in this warrantless search case is the principle enunciated in Hunter vs. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145. There the Court made it clear that, there is a presumption of unreasonableness, hence presumed unconstitutionality or a presumed breach of section 8, where the search is conducted without warrant, at least in the circumstance where the statutory authority supportive of that search has been found to be unconstitutional.

46. There has been some considerable debate respecting the application of these principles to warrantless searches conducted pursuant to a rigorous statutory regime, such as the approved roadside screening devices and approved breath analysis instruments regimes of sections 254 through 258 of the Code. The debate, there, has been whether, in these obviously warrantless searches, the mere assertion of that fact is sufficient to require the Crown to prove compliance with both the Code and the Charter, or whether something more is needed from the Applicant.

47. In Ontario, at least, this, for now, has been fairly certainly settled by the decision of the Ontario Court of Appeal in R. vs. Haas, C41963, which holds that, given the presumption of unreasonableness with respect to warrantless searches, the Crown must prove reasonableness in order to override the presumption of a Charter breach. The Crown application for leave to appeal to the Supreme Court of Canada was denied on December 16, 2005.

48. This case was conducted on the basis of compliance with the prescribed Rules of the Ontario Court of Justice, which contemplates a written application and response and, if necessary, a voir dire with, at the very least, an evidentiary, explanatory, or practical burden born by the Accused. Hence, the Accused went first and called evidence to which the Crown responded.

49. Given the warrantless nature of the search in question, the procedure for calling of evidence is nonetheless as described and the Applicant must present an explanation, of sorts, or a case to answer as to why this particular search is, as it were, off-side. In my view, however, at the end of the day, the Crown carries the ultimate obligation of satisfying the trier of fact that, though warrantless, the search was conducted in accordance with a recognized exception to the warrant requirement and in accordance with the manner of search obligations.

50. Hence, in my view, the sort of issue resolution sought by the Crown is unnecessary because, even if I accepted, for the most part, the evidence of the Crown, that evidence is insufficient to overcome the onus on the Crown to prove, as it were, that an inference of a lawful waiver or consent ought to be made.

5. THE INITIAL COMPLAINT.

51. The evidence of the ‘complaint’ made by the civilian caller (and it severely overstates it to characterize it as a complaint) must be the starting point for developing the context in which the actions of the police and the Accused are to be assessed, for it is from this point onwards and without pause that misperception pile on misperception to create the poisoned environment in which the Accused is asked to cooperate with the police.

52. Both the 911 tape of the call from Richard Grove and a transcript of that call were made exhibits on this Application. The call commences at about 18:15:51 hundred hours (6:15:51 p.m.) And concludes at about 18:15:52; clearly in less than a minute, if not in less than a second the Event Chronology (exhibit 8) seems to show.

53. On considering, with care, the tape, it is very clear that there is no imminent emergency asserted by the complainant or suggested by the background sounds; no cries of anguish, shouts of anger or screams of pain, etc. Contrary to subsequent suggestions, there is very little, other than the obvious presence of a man with a gun, to suggest an occurring or even developing ‘Columbine”.

54. First, the speaking demeanour of Mr. Grove is one of calmness and query: ‘I’m just curious if he’s allowed to do that?”

55. And, second, the “that” in question is simply put, “we’re at a soccer practice in Baxter, okay, and there’s gentleman right next to us with a very high powered rifle, army fatigues and shooting”.

56. In short, the complaint is more of a question, is it legal to shoot a gun as he was doing, near a soccer practice? There is no sense of urgency or distress, or even emphasis that this is at a school; there is only a reasonable inquiry (if made, by 911).

57. Then the dispatch asks where he is and he replies at a school and he asks one Paul, where they are.

58. Then, for some reason, the phone is cut off, perhaps a cell phone connection failure in this rural environment. In any event, within moments they are reconnected and the dispatch summarizes, “a male is dressed in army fatigues and he has a gun?”

59. Then the caller says “maybe he’s ok, but I was concerned”, which he shortly reiterates, “just concerned”.

60. What is notable is that, on its face neither the caller nor the call suggests an emergency or a threat to themselves or the children, and their intended immediate removal of themselves and the children from there; only a question. At best, there is a concern, perhaps, without express vocalization of such, of the possible danger from a firearm being used in the vicinity. But, even there, the firearm is not, at the school, but “right next to us”.

61. While I understand that dispatchers have mere moments to assess risk from disembodied voices, if the assessment of the dispatcher here was of some imminent serious threat, that assessment was not only clearly wrong, but also contrary to the evidence he or she had (and we now have) from that call.

62. Indeed, the dispatcher’s actions are somewhat inconsistent with a serious imminent threat assessment, because the call was disconnected, apparently by the dispatch (given the last words, “…thanks for calling”). One would think that if current or contemplated tragedy was considered, the dispatch, as they frequently do in 911 calls, would have kept the complainant on the line, if only as a direct witness to unfolding events.

63. I hesitate to call these errors, but, given the somewhat unqualified radio call that the dispatch immediately put out, which will be discussed below, it is clear that the dispatch failed in at least the following ways with respect to how the complaint was dealt with:

1. The dispatch failed to inquire as to just what the Accused was doing and why, if at all it appeared to be an emergency or risk, or even a crime, or, as the complainant said, raise a curiosity or concern;

2. The dispatch may have interpreted the call as one of some urgency, when their was no indication of such directly or indirectly from the caller; and

3. The dispatch failed to keep the caller on the line, so that any developing situation could have been monitored and which, as noted, was inconsistent with any sense of emergency.

6. ACTION OF THE ACCUSED.

64. The only evidence we have as to what exactly the Accused was doing at this scene comes from the Accused (and from his walk through of the scene with the police, sometime after the fact, but this occurred after the detention and arrest event, and, hence, is also subject to this application, though not particularly argued). This walk through, it appears, satisfied most, if not all of the officers involved, that the charge of dangerous use of a firearm, on which he was initially arrested (if it was this) was not sustainable; in any event, he was not charged with such an offence.

65. None of this suggests that the Accused was doing anything unlawful or more than particularly dangerous, and, given that he was engaging in an inherently dangerous activity, hunting with a rifle, he was doing so, by all accounts safely, shooting away from the school, residences, etc and into an area where his shots were backstopped by the topographic characteristics of the land.

66. To explain, the Accused was a nearby resident, in a municipality without a by-law regulating this sort of discharge of firearms, a provincially licensed hunter, possessing a federally registered firearm while in possession of a valid possession license. On the day in question, the Accused went hunting at the request of and with the approval of the farmer on whose land he was hunting, both to kill the rodents, as requested, and, perhaps, to unwind or let off a little steam through the process and precision of shooting (I see nothing incongruent in the differences statements as to his reasons for the shoot, which, could, of course, be a combination of these, and others.) His hunting was directed away from the school and he was never on the school property, which appears to be a relatively small piece of property adjacent to the large farm fields. He did not at first see the children, parents, and coaches arriving at the school because he was there before them, concealed, wearing scent masking camouflage hunting clothes, lying on the ground, with his back to them. Notwithstanding the complete lawfulness of his conduct, when he did become aware of the people coming into the school area some distance behind him, alerted by having heard a whistle blowing, he determined that it would be best not to continue his rodent hunting and began to pack up to go home.

67. The Crown has conceded that his conduct was completely lawful; though suggest that the limited police knowledge of that conduct was sufficient to justify the actions they took.

68. To summarize, to the Accused, the context within what subsequently happened, happened, was that he was:

1. Lawfully and

2. Safely engaging

3. In a lawful,

4. If recognizably dangerous activity,

5. Within his own community,

6. When, out of concern for his neighbours arriving at the school, and

7. With no obligation to do so,

8. He voluntarily ceased his conduct, and

9. Drove home, at or near the lawful speed.

7. THE DISPATCH.

69. The time of the dispatch is not clear from either the recording or the prepared event chronology since it, from that, looks like the 911 call came in at 18:15:51 and the dispatch went out at 18:15:52, within a second, when it is clear the 911 call takes more than a second; hence, the chronology is not accurate, at least as to these times and there is simply no explanation for the error.

70. However, at about 18:15:52 hours, the dispatch put out the following call, which was heard in whole or in part by at least some of the various responding officers:

“Night shift L002, I just had a weapons call over at Baxter Central Public School. They have a male party dressed in army fatigues, he has a firearm, complainant is a soccer coach at scene, there are kids playing soccer there, and he’s quite concerned. Wanting an officer to attend. Both day shift zone 5 and 10-6, what do you request?”

71. There are several interesting things about this dispatch, in view of what followed.

72. First, there is no particular stress or sense of urgency or emergency used in the actual language of the dispatch, so as to notify the officers of some particular danger; but, conversely, there is no attempt to indicate something consistent with the dispatch’s assessment of the absence of an emergency as is consistent with the decision to terminate the 911 call.

73. Second, no particular 10-code for any or any sort of emergency is used (see exhibit 14), so as to notify the officers of some particular danger. The 10-6 respecting the day shift simply indicates that the day shift is busy with other matters. It should be noted that the dispatch assigned this matter an immediate response code, but that seems to be a form of coding internal to the dispatch scheduling or stacking of calls system that occurs before officers are notified, rather than something told to the responding officers.

74. Third, rightly or wrongly, as I have no particular evidence respecting dispatch training, a phrase, one that is apparently inflammatory to the officers, is used, “a weapons call”.

75. Fourth, this phrase is used without any of the qualifications suggested by the actual call of Mr. Grove or by the actions of the dispatch in hanging up on Mr. Grove.

76. Fifth, the phrasing, “over at Baxter Central Public School”, if not factually wrong, if it was meant to state where the call was from, as opposed to where the man with the gun was, was also clearly inflammatory as directly suggestive of a man at a school, not near a school.

77. Sixth, the dispatch gives some correct factual information as he or she knew it: male party, army fatigues, firearm, soccer coach, kids playing soccer.

78. Seventh, the dispatch, then, substantially misstates the stated view of the complainant. From the, “I have a question for you” and “I’m just curious if he’s allowed to do that”, to “maybe he’s ok but I was concerned” to “just concerned”, all as said by the complainant, the dispatch goes out as;

“…he’s quite concerned” and, the dispatch links this to, “Wanting an officer to attend”,

79. This was something that was never said by the complainant, but was initiated by the dispatch.

80. As the dispatch did not testify and no one testified as to dispatch training and their understanding of the import of particular words in the context they used them, it is difficult to characterize these seven points as dispatch errors. However, again, in light of how the officer’s perceived these words, one is driven to the conclusion that the dispatch bears some significant responsibility for the events that followed.

81. In short, the dispatch:

1. Says nothing to suggest they do not have a developing emergency,

2. Uses language that to the officers, at least, is coded for emergency, ‘weapons call’ and ‘over at Baxter Central Public School”,

3. Misstates the question, curiosity or concern of the complainant as ‘quite concerned’,

4. Importantly, wrongly suggests that the complainant is so worried that he is ‘wanting an officer to attend’ – something quite different than what he said, and something suggestive of emergency, not inquiry, and

5. Perhaps, most importantly, having said all of this, the dispatch does not qualify any of it by saying something like, ‘the complainant does not say that there is anything going on and the kids are not being threatened and the coach is not so fearful that he is beginning to move everyone away, so be cautious, but don’t overreact.’

8. IMMEDIATE RESPONSE TO DISPATCH.

82. While it is noted that the recorded response to the dispatch is logged as occurring at about 2 minutes and 1 second after the dispatch goes out and that there is no explanation for this time discrepancy, not much can be made of this, particularly given that the recorded response to the dispatch is, itself, largely uneventful.

83. Some points, though, are worth noting.

84. First, PC Young, consistent with his position as Acting Sergeant, is the first responder and he directs L505, PC’s Galenzoski and Luscombe to attend the school, and PC O’Rourke.

85. Second, PC Jamieson then offers his assistance, and dispatch, not PC Young, agree –“10-4 thanks”- which is the first hint of any confusion over the command structure on the ground. This is highlighted by the fact that a few moments later PC Jamieson asks if they still want him, and dispatch confusingly now asks PC O’Rourke if he was attending, when he had been directed to by PC Young. On his response that he is, PC Jamieson is told not to by dispatch, but then told to continue when he says he’s close by.

86. Third, PC Young shows insight into the need for more information by first requesting that dispatch call the military, then calling them himself to see if they have any one training, etc. in the area.

87. Fourth, PC Young, however, does not ask if dispatch has or if they can get further information as to what is actually occurring on the ground.

88. Fifth, only PC Luscombe seems to want more information about the scene; he asks “what’d you got, where’s the suspect located …where’s the suspect supposed to be?

89. Sixth, to which the short answer is, again, the very emotive and somewhat factually wrong, “weapon call … school…army fatigues…firearm…soccer coach…kids …playing…concerned…wants officer to attend”

90. Seventh, the professional nature of these conversations perhaps is not fully consistent with the testified to emotional reaction of the various officers and the spectre of the Columbine High School massacre of children and teachers, that they each had, summarized by PC Galenzoski, who said that his “greatest fear was realized”. One expects their training enabled them to control the disquiet of their emotions.

91. Eighth, it should be noted that on hearing the dispatch, all of Constables Galenoski and Luscombe, and Young retrieved additional armament from, respectively, the Angus gun locker (a shotgun and an automatic Ruger Mini-14) and the Beeton gun locker (a shotgun).

92. All of this shows:

1. Some limited attempt by PC Young to take command, but some beginning and perhaps unimportant confusion on this caused by dispatch seeming to decide how many and who are needed;

2. Some limited assessment by both Constables Young and Galenzoski that the information is inadequate, but no clear or unambiguous attempts to clarify or seek further information from dispatch and /or the complainant;

3. Some significant further exacerbation of the tension inherent in this developing situation by dispatch repeating the earlier given emotive or coded, and, in part, erroneous information, and by not taking the initiative to call the complainant back and clarify what was happening; and

4. Some obvious decision by all of Constables Galenzoski, Luscombe and Young that heavier armament than side arms were required, but no articulated statement or discussion of that need at the time, or, more importantly, no command decision as to the necessity of such- this may support an inference that post-Columbine training suggests, firepower first, discussion later. As well, this might be a strategy that is particularly important in a rural environment, where access to supporting backup is some distance and time away, but it does beg the question as to who in command decides on the necessity of its use.

9. AT THE SCHOOL AND TO THE LOGIN RESIDENCE.

Timing

93. If the dispatch was at 18:15:52 and the Accused was in custody by 18:34:45, the police gathered their weapons, drove to the school, drove to the accused’s residence, and affected the take down of the Accused within 19 minutes or so.

94. The evidence indicates the Accused’s residence was about one half a kilometer from the school. At 50 kilometres an hour, far less than what I think are the somewhat exaggerated estimates of the Accused’s speed on the way home, one travels 833.33 metres in 60 seconds. Home would be reached in about 36 seconds. At 100 km. Per hour, not a particularly unusual speed on rural roads, home would be reached in 18 seconds.

95. If the takedown at gunpoint to the ‘man in custody’ dispatch took, say, three minutes, probably a very generous estimate, then the remaining time to get to the school and assess that scene was around 15 minutes. The evidence of the Event Chronology and the Logger Tape Summary suggests Constables Galenzoski and Luscombe, followed closely by P.C. Jamieson arrive at the school at 18:33:47, and report a man in custody 58 seconds later.

96. Either approach to the evidence shows the officers on scene with the complainant for a very negligible amount of time.

97. This is important, first because it confirms the state of mind of the police and their approach as being not investigative, but tactical: certainly not, shoot first, question later, but disarm, then investigate. Generally, no one could reasonably quarrel with such a response, if only on the simple basis that you cannot very effectively ask reasonable questions with guns pointed at you. And, in the context of this case, no quarrel is directly taken with the subsequent armed detention of the accused.

Importance of Precursor Events.

98. To be very clear, questions respecting the precursor events are asked solely because the steps taken, or omitted to be taken, on the way to the school and at the school, in the available 15 or so minutes are, as it were, forgivable until the time of the detention, but those omissions cannot be forgotten and must be made up for once the immediate danger has past.

99. To put it another way, the accused was detained out of a real, if wrong and misinformed, sense of urgency, but without reasonable and probable grounds, because no further information was asked for or provided during the initial 15 minutes (and, perhaps, even without any reasonable suspicion that an offence had occurred –remember, all the complainant had said was the accused was nearby and had been shooting; he did not say he was shooting at people or dangerously, etc.)

100. In my view, the first obligation of the police, having affected the detention was to investigate what all the fuss was about. Instead, without further investigation, the police, having detained him for investigative purposes – largely conceded to be the only lawful basis for his detention- did not investigate the events at the school until much later, but nonetheless arrested him for those events (dangerous use of a firearm), though they had not a whit of evidence to suggest he was using a firearm in such a manner.

Detention or Arrest.

101. There is a significant point of departure developing here, which was not recognized by the police, perhaps because, for some reason, training has yet to catch up to the developing Charter law respecting detention and arrest, and the important distinction, even though that distinction existed before the Charter, but was expressly contained in it. That is, the police did not have reasonable and probable grounds for the investigative detention or takedown, but did not need them and could act exigently, as conceded, given the little they knew and the possible degree of threat. But, precisely because they did not have reasonable and probable grounds, they could not then turn a detention into an arrest without gathering more evidence-as all should know, the silk purse simply never does come from the cow’s ear.

102. It should be noted that no further evidence of any offence was gathered at the school, though the identity of the suspect of whatever was being investigated was. While, there is some conflicting police evidence of the emotional state of the complainant, from fine to ‘hysterical’ (which contrasts remarkably with his apparent 911 affect), this contrasts even more with the near idyllic nature of the scene of a rural setting with children playing soccer - ‘a normal community soccer game.’ While there is some evidence of the police ‘pursuing’ the accused to his residence, the short distance between the school and the residence, and the undisputed evidence that the accused had departed the field by the time the police were pulling into the drive – otherwise he would not have been visible on the road- all confirms that the accused was just driving home at no sort of abnormal speed. At best that drive probably took only between 18 and 36 seconds, barely enough time to say hi to the complainant, hear his response, turn the cruiser and follow.

103. In short, if anything the evidence gathered, if only by osmosis over the fifteen-minute period – perhaps even by those officers driving a motor vehicle at dangerous speeds - should have been saying to all concerned, this may not be a‘Columbine’, which, again, is not to say the police ought not to have detained the Accused, simply that, having done so, they ought to have stepped back and made inquires and thought about what they had before they arrested anyone.

104. While I make no direct comment on tactical take-down practice, the Logger Tape Summary suggests some thought they had enough strength on the ground, but not one of the three at the school were detailed to stay and get some facts, nor, if this was tactically inadvisable, was any one else immediately detailed to do that.

105. Similarly, having secured the Accused and the two motor vehicles, no one from the residence or elsewhere was dispatched to the school to see what had actually happened, at least not until much later.

10. THE TAKEDOWN, THE INITIAL FRONT YARD SEARCH AND THE VEHICLE SEARCHES.

Nature of the Takedown.

106. No real issue is made of the core lawfulness of the takedown as an investigative detention conducted in concerning circumstances. It was swift, in part because of the cooperation of the Accused, and, in part, because of the professionalism of the officers involved, even if no one of the three seemed to be clearly in charge and no one seemed to recall exactly who was using command language.

107. But there can be no doubt whatsoever that the takedown, while controlled, was very forceful, violent, in the sense of “having a marked or powerful …physical… effect” (Oxford English Dictionary, 1993), on, not only the Accused, but his wife and children, all of whom were in the immediate area and subject to the events. There can also be no doubt that the affect created on the recipients of this armed intervention, the Accused, his wife and his children, would be very significant. As the Accused said in commenting on the Mini-Ruger and the safety issue: ‘…that’s as close as a person can get to comin dead without becoming dead and as [his] wife and kids were on the other side of him …if he hits [me] with the first [shot] the other two are gonna kill his family…”

Not in Dispute.

108. To consider this event, it is important to note that there are various viewpoints, if you will, about who engaged what weapons and how, and what was said by whom and when, but there can be no doubt that many weapons were there and were used aggressively and defensively, if not fired.

109. On this, the evidence of all witnesses leads to the following largely indisputable description:

1. Brian Luscombe comes out his car pointing his Mini-Ruger 14 at the Accused, who is in the driveway area and has or is putting his hands up.

2. P.C. Luscombe is joined by P.C. Galenzoski, with a shotgun, and P.C.Young, with another shotgun.

3. The wife and children are at the front of the house, about five to ten feet away.

4. The wife comes to be on her knees cradling the two children, one in each arm;

5. The wife and children at some point are ordered not to move.

6. Loud commands are given to the Accused who throughout is cooperative;

7. He is ordered to his knees;

8. He is ordered to the subservient prone position then handcuffed behind his back;

9. The Accused is saying something, possibly that he is unarmed;

10. The Accused is compliant;

11. The Accused may have said the gun is in the front seat of his vehicle;

12. The wife did or on request identified the accused as her husband;

13. He’s ordered to look at P. C. Luscombe;

14. He is asked what he sees and identifies it as a Mini—14 Ruger;

15. The gun is pointed at him and this and other guns remain pointed at him for some time

16. If the finger was not on the trigger with the safety off, it is within the trigger guard resting against the safety (and while this may be being recalled accurately by the officer, it is somewhat inconsistent with the notion of imminent danger from the accused);

17. The accused was handcuffed;

18. A weapon, if only momentarily, is pointed at the wife and the children while the officers “sweeps” the area with his firearm.

19. The accused was first searched on the ground for weapons by one of the four officers who attended at the start or during the takedown.

20. Both of the nearby motor vehicles (one, that of the Accused, and one, that of his father) that were anywhere near the accused or his reasonable reach were searched and the hunting rifle he had been using was found appropriately stored.

11. THE ARREST.

Rights to Detain and Rights on Detention.

110. With respect to the investigative detention, the Accused was never informed of the reasons for this detention, except, at best, indirectly and much after the fact during the tour of the school. Nor with respect to this detention was the Accused provided a right to retain and instruct counsel.

111. Accordingly, the Accused’s rights under sections 10(a) and 10(b) of the Charter were breached when he was not “informed promptly of the reasons” for the detention and provided notice of and implementation of his right to counsel with respect to that detention.

112. Given the so-called “high-risk” nature of the detention, it seems unusual to suggest that the police must pause, provide an explanation of their conduct and rights to counsel, and this is not the point being made. The point is, rather, and again, that following the detention there is no further, immediate investigation of the matters for which the detention was sought,- the actions at the school. Instead, there is a complete shifting of gears, as it were, from the mode of investigation of the suspicious conduct at the school that justified the detention into the criminal arrest mode.

113. This is a key distinction, one, perhaps, not fully grasped, maybe because of the developing nature of the law in this area. However, the failure to grasp the distinction colours much of what follows.

114. If the high-risk takedown is justifiable at law, it is justifiable under the authority of R.. vs. Mann, 2004 S.C.C. 52. There the Court very importantly reiterated that in a free society,

“Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and, more broadly, the state) may act only to the extent that they are empowered to do so by law (at paragraph 15).”

115. Hence the Supreme Court of Canada authorized investigative detentions, but only where the police have “reasonable grounds to detain” (paragraph 14), something that is not met “merely by the officer’s hunch based on intuition gained by experience (paragraph 30) - this seems to be what was called in R. vs. Simpson, 1993, 79 C.C.C. (3^rd.) 316 (O.C.A.), “articulable cause”.

116. Thus, in my view, here, while it is not without some question, the police here did and could detain the Accused for investigation, based on, essentially, the dispatch, what they reasonably considered that meant and the risk it posed (though one very much wishes someone had asked for clarification of just what they were being sent into, either from the dispatch or at the school) and the identification proffered at the school. This then leads to a consideration of the issues of arrest.

Right to Arrest.

117. To criminally arrest the Accused, the police needed more than they need for an investigative detention, at the very least, the subjective belief, based on objectively reasonable grounds, that the Accused had committed a criminal offence, the standard section 495 of the Criminal Code requirements. Under R. vs. Storrey, 1990 CanLII 125 (S.C.C.), [1990] 1 S.C.R. 241, the subjective believe of the officer in the guilty of someone being arrested is simply not enough; the grounds supportive of an arrest must be those that meet the test of reasonableness. And, under Chartier vs.Quebec, 1979 CanLII 17 (S.C.C.), [1979] 2 S.C.R. 474 and R. vs. Golub (1971), 117 C.C.C. (3^RD.) 193 ) (O.C.A.) reasonable grounds do not exist unless the officer considers all the available information and disregards only that he has a reasonable basis to reject.

118. The general evidence of the Accused and his wife respecting confusion as to what the arrest was about is largely confirmed by P.C. Galenzoski’s evidence that he placed him under arrest for possession of a restricted firearm. Then, that P.C. Luscombe stepped in and placed him under arrest for “weapons dangerous”.

119. As I see the evidence, at the time of the arrest, the confusion is the result of the fact that none of the officers actually had any reasonable and probable grounds to believe that an offence of either possession of a restricted weapon or weapons dangerous had occurred. At best, they had only the suspicion or reason necessary to support an investigative detention. As P.C. Jamieson said at page 100, Volume V, “we acted on cursory information.”

120. The officers knew that the accused had a gun, it was in hand, from the vehicle, and the Accused, and/or his wife either was saying, as he says, or would have cooperatively said that he and it were properly licensed. There, further, was nothing so unusual about the weapon as to suggest some presumptive per se criminality about it; one gathers it was a very expensive and impressive weapon, but there is nothing to and no one not suggested that is looked like some sort of prohibited police or military type fully automatic weapon. It was, simply, a hunting rifle, if, apparently, a very good one.

121. The officers also knew that the Accused, in this rural area, had been “at Baxter …school…in army fatigues…[with] a firearm…[and] a soccer coach [was] quite concerned…kids are playing soccer…[and] wanting an officer to attend”. Again, nothing about this dispatch actually suggested any per se criminality by the Accused- neither the dispatch nor the soccer coach ever said he was aiming or firing dangerously, in, for example, our direction, or, even, that he looked like he would; indeed, there is no indication, to the police, that the gun had been fired, at all.

122. In my view, the so-called reasonable and probable grounds of the commission of an offence to support an arrest are logically more and different than the reasonable grounds needed to support a detention [even if, given Justice Iacobucci’s use of the word, reasonable, in Mann (unlike Justice Doherty’s use of the phrase, articulable cause, in Simpson) it sometimes difficult to draw the distinction.] Both the duration and degree to which one’s personal liberty can be infringed and the extent of the powers incidental to that restriction depend on a qualitative distinction being drawn between the needed support for a mere detention and that needed for a criminal arrest.

123. I note, here, that in the Respondent’s first factum respecting the matter, the Crown, at paragraph 32, argues that there were reasonable and probable grounds to support an arrest. They further alternatively argue at paragraph 34 in support of an investigative detention. It is interesting to note, however, that most of the discussion and authority cited between paragraph 26 and 32 seems directed to supporting the argument that the roadside search was incident, not to the arrest for an offence, but to the investigative detention.

124. Indeed, within paragraph 27, the Crown cites Chief Justice Warren from Terry vs. Ohio in the United States Supreme Court. There, that court upheld the notion of investigative detentions and searches, what they call, ‘stop and frisk’, but said:

“An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.”

125. I agree; in my view, the sorts of grounds to the degree of reasonable probability necessary to support an arrest could not be found in either or all of the evidence provided by the dispatch, at the school or from the detention and vehicle searches. More was needed. In addition, the protestations of innocence by the Accused, or the information offered by him or his spouse, or, if they were not then saying anything because they were told to be quiet, their cooperative willingness to offer information could not reasonably be disregarded.

126. It is implicit in the justification of investigative detentions that following an investigative detention, there will be an investigation leading to more evidence of an offence by the detained person or to his or her release. Here, there was no further investigation, just the transmogrification of the detention into the arrest. No investigation occurred of any offence occurred until some significant time after the arrest of the accused.

Unlawful and Unconstitutional Arrest.

127. Hence in my view, the arrest of the accused was unlawful under section 495 of the Code and unconstitutional under sections seven and nine of the Charter.

128. The general protections of section 7 are implicated because an unauthorized arrest is a “deprivation of life, liberty and security of the person” not “in accordance with the principles of fundamental justice”. The particular protections of section 9 are breached because discretionary detentions are arbitrary if without governing criteria (R. vs. Therens, 1985 CanLII 29 (S.C.C.), [1985] 1 S.C.R. 613 and R. vs. Hufsky, 1988 CanLII 72 (S.C.C.), [1988] 1 S.C.R. 621.)

129. Not every unlawful arrest can be called arbitrary (R vs. Duguay, et al (1985), 18 C.C.C. (3^rd.) 289 (O.C.A.)). Such a decision is context driven, in part based on the Court’s view of the extent of the departure from the standard and the bona fides of the officer’s view. Where the preceding circumstances are lawful conduct by the Accused and a forceful investigative detention, which is not immediately followed by a thorough review of the available evidence, the subsequent breach of section 495 of the Code realizes a concomitant breach of section 9.

130. Here, the departure from the standard is significant because it is very clear that there is simply no evidence, of any kind, of any offence having been committed; at the very best, the complainant had a concern and the dispatch relayed that concern to the police – no one ever actually said or implied or even hinted that an actual offence had been committed, was imminent or was being planned.

131. Bona fides are a difficult concept. I do not question that the officers honestly thought they should arrest the accused, but it is totally unclear why they thought this; is it a failure in their training with respect to the differences between investigative detention (as postulated above) and criminal arrest, or what can constitute reasonable and probable grounds?

132. But, if it is a failure in training, this was systemic, since not one of the many officers seems to have really put their mind, at that point in time, the point in time just before the arrest, to just what evidence of just what offence there was, or was not. The Accused’s evidence respecting the confusion over the charge and P.C. Galenzoski’s evidence on this show that at least two officers knew there was some sort of issue as to just what offence might be supported by evidence, but the thinking did not seem to go farther so as to ask the question and consider an answer to the question (before making the arrest), was any offence committed?

133. Perhaps concomitant with the lack of training as to the developing law respecting the distinction between arrest and detention, and the incidental powers arising in connection with either, is the unfortunate diminishment of the requirements of section 495 that police and supportive Crown practice respecting certain offences has led to and is regularly observed in these Courts. That is, with respect to certain offences, such as intra-familial violence, child abuse, sexual assault, and others, case after case makes it clear that common investigative practice is, simply, if generally, to effect an arrest on the word of a complainant, without any regard for Storrey, Cloutier or section 495, itself. The policy or practice as revealed in case after case, and occasionally testified to, is to take the complaint, arrest and charge, and only incidentally, if ever, and even then, only after the arrest, consider the issues of the officer’s personal, that is, subjective belief in the guilt of this particular accused, and the available other evidence, which often appears to be disregarded without cause.

134. While I appreciate the laudable goals that led to such policies, the unfor