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 unfortunate impact seems to have been a loss of consideration for the requirements of section 495 or a true understanding of just how intrusive a step an arrest is. This section and the underlying constitutional principles on which it rests actually combine a very high regard for the investigating officer’s personal assessment (the concept of personal or subjective belief) with an equally high regard for the principle of fair and balanced consideration of all the objectively available information. These, with the Justices of the Peace power to decline to issue process, acted as important filters to prevent not simply unfounded arrest, but resultant wrongful conviction. Fixing certain problems may unfortunately have diminished our regard for some very important historical protections.

135.         Here, the police did not even have in hand any sort of criminal complaint or complainant. All they had was a dispatch that alleged no crime.  

12.   THE ROADSIDE SEARCH.

Limits on Search Incident to Detention.

136.         Under R. vs. Mann, a search incident to a valid investigative detention may be authorized, but, as a warrantless search it is

“presumed to be unreasonable unless they can be justified…found reasonable, pursuant to …Collins…[as]…authorized by law…the law itself is reasonable…and…the manner in which the search is carried out was also reasonable….” (Mann, at paragraph 36).

137.          As well, the,

“…power to conduct a pat-down search incident to an investigative detention…does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances” (at paragraph 40) [emphasis added]”.

138.         Finally, at paragraph 45, Justice Iacobucci says:

“In addition [to the detention], where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. I note that the investigative detention should be brief in duration …The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest …”

139.         Mann is raised, here, not to suggest that the in-driveway search was in any sense contrary to Mann. In contrast, this protective pat down search is exactly what Mann authorizes. The issue, rather, is that Mann does not appear to authorize any sort of search incident to an investigative detention that is more thorough or intrusive than that of a protective pat-down search.

140.         Here, I have found that the arrest of the Accused has been proven to be unlawful and unconstitutional. This means that the roadside search fails the ‘authorized by law’ test of  Collins and, hence, that the roadside search cannot be justified as a search incident to an arrest.

Continuing Detention.

141.         Accordingly, if the roadside search is to be justified, it must be justifiable as an appropriate continuation of the protective pat-down search incident to the investigative detention and commenced in the driveway. It must also be proven to have been conducted in a reasonable manner.

142.         While it is not without doubt, in my view, Justice Iacabucci’s remarks are not meant to suggest that in no context can a search incident to an investigative detention be more thorough than what is at first glance encompassed by the words, ‘protective pat down search’.

143.         Logically, a pat down search could, for example, lead to the discovery of an object, which, by shape or heft, seemed like a weapon of sorts. Perhaps this felt object was located in the area of the genitalia and under the clothing. In such a case, surely it could not be argued that the searching officer could not go further in the search to the point of searching under the clothing and retrieving the suspicious item. Our collective regard for officer safety would dictate an authority to immediately continue the search to the end of securing the possible weapon. And, it is to be remembered that at the point in time the officer feels the object, the mere feeling of it does not lead to reasonable grounds to believe that any offence (possession of a restricted firearm, possession of a weapon for purposes dangerous, etc.) has occurred or is occurring; the object may be no more than a lighter, a key ring with keys, a pen, an I-pod or cell phone; yet, there can be no real question that the search can continue (if the manner is appropriate).

144.         Accordingly, in some limited circumstances, an investigative pat-down search might continue in a manner that is more intrusive than a mere pat down.

145.         As well, one can conceive of circumstance where a pat-down search cannot be adequately conducted instantly, at the point of detention, but might require some small movement of the subject in order to commence or continue it in a more controlled setting and in a more thorough way. For example, one subject might be detained for investigative purposes and the pat down has barely begun when a disturbance between another officer and another suspect breaks out in the immediate vicinity of the initial detainee. Surely in such a case the lawful detention continues and the pat down remains lawful notwithstanding that there is some minor delay while the detained person is moved to another nearby location and the disturbance is dealt with.

146.         Here, I would be prepared to consider the possibility that the movement of the Accused from the front yard to the back of the cruiser was to justifiably allow for the continuation of the initial search at a place more controlled and to a degree more thorough than the front yard easily allowed. This possibility arises in this context because of the evident seriousness of the potential risk to all if the Accused was concealing another weapon on his person - one weapon already having been discovered. It also arises because of the clothing worn by the Accused, which, while most appropriate for the activity he was engaging in, might not make one confident that a simple pat down will be sufficient to dispel officer safety concerns. P. C. Jaimeson specifically testifies at page 31, Volume V, that the driveway search was “just a quick cursory search at that time” and “we wanted to bring him out to where we’re a little bit more comfortable…[to] do a more thorough search at that point…”

147.         None of this is to say, however, that Mann specifically approves of the very thorough and intrusive sort of search conducted here as appropriate on a simple investigative detention, nor that this search was, in the totality of the circumstances conducted in a reasonable manner.

Nature of Roadside Search.

148.         The exact nature of the search is subject to some evidentiary disagreement.

149.         The Accused’s and a neighbour say white rubber-like gloves were used.  The accused says his anus was partially penetrated and that his pants were down around his ankles for some considerable time.

150.         P.C. Galenzoski: denies using rubber gloves, but admits using a Military Police Officer’s black, Kevlar gloves; denies anal penetration, but admits being in the area of the genitals, above the underwear, and giving them a “gentle squeeze to ensure it was consistent’; admits pulling back the underwear and examining inside them in the area of the waist band; and denies the pants were at the ankles, but admits the camouflage pants are on the ground, but the jeans are merely unbuttoned.

151.         In my view, the discrepancies are noteworthy, but not so important as argued by the Crown. No one, here, has a perfect recall, including P.C. Galenzoski, whose evidence respecting the pants is in part contradicted by P.C. Luscombe, who says the jeans slipped down below the buttocks to above the upper thighs. It may be that the Accused is simply exaggerating for his own reasons, or that his recall is not complete.

152.         Whatever the case, the following is clear about the roadside search:

1.                  The Accused was placed at the back of the cruiser parked roughly at the end of his driveway, on the narrow shoulder adjacent to the public roadway.

2.                  Many police were present in the area, including military police.

3.                  The police were directing some traffic past the scene of the search.

4.                  Some neighbours, including Mr. Johnson were observing the search.

5.                  The search lasted two or three minutes or longer.

6.                  At some point his jeans were lower than his buttocks so as to be pulled up by P.C. Luscombe, who then, if for light-hearted purposes, made some comments respecting “long showers in the wee hours o’ the morning” – apparently a well known quote from some movie, which was admitted to be inappropriate, if not degrading.

7.                  The bare details of the search from the Crown’s perspective are detailed at pages 133 to 136 of volume III.

Nature of Strip Search.

153.         There can be no doubt that these details constitute a strip search under R. vs. Golden [2001] 2 S.C.R. 679 at paragraph 47. At paragraph 102, Golden further found that pursuant to an arrest (if not an investigative detention), such a strip search could be lawful, but:

“Should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched [to this degree] prior to being transported,

 [Which] exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station…

 [which] could only be justified where there is a demonstrated necessity and urgency to search for weapons…

[where it is also shown]why it would have been unsafe to wait and conduct the strip search at the police station…”

154.         The reason, of course, is that such searches “in the field represent a much greater invasion of privacy and pose a greater threat to …bodily integrity”.

Propriety of Search.

155.         The issue then becomes, do the circumstances of this investigative detention that allow a continuation of the driveway pat down search also present the sort of exigent circumstances that support an exceptional road-side strip search? And, if so, was the manner of this exceptional roadside strip search appropriate?

156.         In my view, while I conceded that a more thorough search could reasonably be seen as mandated by the circumstances, I cannot conclude that the degree of this search in that location was so driven by reasonable and probable grounds to believe that the necessity and urgency to locate further weapons mandated that it would be unsafe to wait until the station to conduct a further search. Even if some sort of intrusive search at all similar to that described here was necessary, the manner of the search, particularly the positioning of it so that the Accused’s wife, children and neighbours were free, if not compelled, to watch it, was unreasonable.

157.         I appreciate that P.C. Galenzoski thought that Mr. Login needed to be searched again, but the why is not very fully articulated, beyond, “Uh, my next thought was that I had to search Mr. Login for safety reasons…” (at page 1341, volume III).  At page 66 of volume IV, he agrees with counsel that he “felt…Mr. Login should be searched…” With respect, none of this amounts to the sort of articulation of exceptional reasonable and probable grounds of an imminent security risk so as to justify a departure from the Supreme Court of Canada’s mandated practice of only conducting such searches in the relative privacy, as it were, of the police station. As well, in the context of a once-frisked Accused, who is totally cooperative, compliant, and polite, and already handcuffed behind his back, in the presence of numerous supporting officers the inference to draw, if any, is that such an intrusive search was not necessary, at least in the very public place chosen to conduct it.

158.         These conclusions mean that, while the continuation of the pat down search incident to the investigative detention at roadside was not per se unlawful, its continuation as a strip search outside the guidelines of Golden made it so. In so far as the manner of conducting it was also unreasonable, there are two failures to comply with the Collins requirement. Accordingly, the roadside strip search is both unlawful and unconstitutional.

13.   THE CONSENT.

159.         We arrive, then, at the core issue, the validity in the totality of the circumstances of the oral and written consent of the accused to the search of his residence.

Summary of Prior Events.

160.         Prior to assessing that consent, these circumstances, as I have found them to be, should be summarized:

1.                  The Accused was lawfully hunting on his neighbour’s property using a lawful firearm, for which he was properly licensed.

2.                  On seeing the soccer practice he appropriately stored his weapon and drove home.

3.                  Within moments of his arrival at home, he was lawfully if very forcefully subjected to an armed takedown (using shotguns and automatic weapons) by several police officers.

4.                  These officers were acting on deficient and misleading information provided to them by the dispatcher.

5.                  None of this information was inquired into, clarified, or rectified in the fifteen minutes prior to this detention.

6.                  The Accused was clearly fearful for his own life and that of his family, particularly because of his special knowledge of the dangerous firepower trained on him.

7.                  The Accused was fully cooperative with the police indicating both a polite respect and ‘please don’t shoot me attitude’.

8.                  During this takedown a gun was pointed at his wife and children.

9.                  His wife was fully cooperative with the investigative detention of her husband.

10.            Incident to this investigative detention, the Accused was lawfully subjected to a protective pat down search and tightly handcuffed behind his back.

11.            The vehicle of the Accused was lawfully searched incident to the detention and his weapon located appropriately stored.

12.            The adjacent vehicle of the Accused’s father was also searched and while this was not in issue, I also see this search as lawfully incident to the detention.

13.            The Accused was then unlawfully arrested, first for one offence, then, instantly, for another.

14.            This arrest was not only unlawful, but also unconstitutional.

15.            Any search following this unlawful arrest could not be lawful as incident to that arrest and could only be justified as a continuation of the initial investigative detention.

16.            There is some limited evidence supportive of considering the roadside search as a continuation of the investigative detention.

17.            As a strip search incident to a detention, conducted in the manner and location it was, and for the reasons provided, the roadside search was unlawful.

18.            The roadside strip search was unconstitutional.

19.            Following the strip search the detention of the Accused continued in the back seat of a police cruiser in full view of his family and neighbours.

20.            The investigative detention of the Accused continued from approximately 18:34:45 (or 6:34 p.m.), when the Accused was forcefully taken into custody, (exhibit 8) until and after 7:07 p.m. (exhibits 7 and 11), a period of 33 minutes.

21.            If the handcuffing, pat down, and strip search took the estimated two to three minutes, plus another two to three minutes, for four to six minutes total, then the Accused was detained for about 27 to 29 minutes in the cruiser before the consent was signed.

22.            During this time, that is, before the consent to search was signed, it does not appear that any steps to investigate the basis for the detention, the events at the school, were taken, though P.C. Jamieson states that after the strip search, at “just after seven o’clock” (page 38, volume V), he went back to the school to locate the complainant, whom he could not find, and that sometime later he had dispatch provide him the contact information for the complainant (the Event Chronology of dispatch indicates that at 20:24:51 to 20:24:59, or at 8:24 p.m.- one hour and 50 minutes after the first detention of the Accused- dispatch is providing the phone number and address of the initial complainant.

161.         It is in this context, the Accused and his wife are presented the opportunity to consent to the search of their residence.

Failure to Meet Burden of Proof.

162.          In my view, in this particular and, one would hope, highly unique context, it is impossible to say that the Crown has proved that this “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 “ (Wills, supra, at page 5). This particular requirement is the third condition mentioned by Justice Doherty in Wills; for reasons that will become clear, the fourth, fifth and sixth conditions have also not been proven, nor has the further, “sufficient available information” condition added by Justice Iacobucci in Backhouse been met (supra, at page 5).

No Authority to Search Without Warrant.

163.         Before addressing the details of the obtaining of the consent, it is important to note that it seems clear that the police must have believed that they did not have any authority to enter the premises, since, that is, they wanted to proceed either by way of warrant or consent, and not under the exigent circumstances authority of sections 117.04 (2) of the Criminal Code.

164.         Section 117.04 allows search with warrant if “there are reasonable grounds to believe that it is not desirable in the interests of …safety… for a person to possess weapons…” It further allows search without warrant if “ by reason of a possible danger to …safety…it would not be practical to obtain a warrant…” Unlike section 117.02(1), there is nothing to restrict the warrantless search of a residence if the noted preconditions are met.

165.         At page 141 and 142, P.C. Galenzoski describes his thought processes respecting the residential search. He told Mrs. Login “we had to investigate a situation involving firearms and asked if there were any firearms in the house…”. On being told there were, he “made the decision that I was going to search Mr. Login’s residence and remove any firearms in his possession from his possession [as he] felt it was necessary in the interest of public safety, given the information that I had, the fact that there was a man at a Baxter school during a children’s soccer game – certainly wasn’t somebody that I wanted to be in possession of firearms until such time as we could fully investigate what had happened.[emphasis added]”.This language of explanation suggests a number of things.

166.         The first is that he had recognized the inadequacy of the investigative information currently available respecting the events of the school. Since this discussion with Mrs. Login is after the arrest and the strip search, it suggests, either that he is just now contemplating that inadequacy (when it ought to have been contemplated before the arrest), or that he has received some information from, perhaps, Mr. or Mrs. Login (as they have insisted they provided) that is beginning to cause him to wonder about just what happened at the school.

167.         Second, some of his language seems to echo that of section 117.04 (2), necessary in the interests of public safety versus not desirable in the interests of public safety. The remainder does not reflect, however, the impractical to obtain a warrant and by reason of a possible danger to the safety of the public language of that section.

168.         The point, here, is not to critically parse the language used by the Officer to explain, now, his thinking, then. It is, rather, to try and understand his thinking, then, and why he did not think he could act without warrant so as explaining both why he wanted to enter the premises and why he wanted the Accused to consent.

169.         On the one hand, he might not even have known of the possibility of a warrantless search, or simply preferred not to engage in one, to avoid, perhaps, by way of ironic example, later legal challenges.

170.         His language, however, suggests to me a concern or developing concern with respect to the adequacy of the information he had and whether Mr. Login was or was not dangerous, was or was not, perhaps, guilty of any crime.

Disputed Evidence.

171.         There is an evidentiary dispute of some significance between the Crown and the Defence about one aspect leading up to the consent to search. This is perhaps the one area where, at first review, there is an apparent stark contrast between the Accused and the police version of events.

172.         This concerns the extent to which the health status of the one child of the Accused (indisputably exceptionally fragile) was brought to the attention of the police and the extent to which the child’s needed access to the medicine and food in the house was considered by the Accused and the police in the context of any restrictions on the use of the house pending the preparation of an application for a search warrant, the attendance on a justice of the peace and the return to the premises with that search warrant to search that house.

173.         Respecting, the matter of the child’s health, the Accused and his wife, and to some extent his father, say, to be blunt, that they brought the child’s health to the attention of the police in the context of the delay necessary to get a warrant, which they preferred, and the issue of access to the residence, and that rather than accommodating their concern, the police used this as leverage to extract the consent of the Accused.

174.         The Accused puts some of this conversation on D.C. Humber, but D.C. Humber puts his arrival on scene at 7:07 p.m., to him, after the consent had been signed, but exactly as it was noted to be signed on the document – exhibit 8 has D.C. Humber still on route at 6:56. It would thus appear that any inappropriate conversation respecting the consent that did occur likely must have occurred with someone other than he, probably P.C. Galenzoski, who was initiating he residential search and the named officer on the search.

Accused’s Evidence.

175.         I reject as embellished and, perhaps, as reconstructed and collaborative, the evidence of the Accused and his wife as to the extent they discussed with P.C. Galenzoski or others the condition of their son and the extent to which he or other police directly linked the family’s access to the house during the search warrant process to the issue of a consent to search. Crown counsel urges me to conclude the evidence in this area (and others) is an outright deliberate lie. I do not go so far.

176.         It is often the case that witnesses input into their remembered conversations matters that they were merely considering or thinking about, but did not at all, or at least very clearly articulate at the time. This is particularly so when there has been a significant passage of time since the incident  (two years or so) and much thought given to it –always on my mind. This is one of the very negative consequences of the delay inherent in our inadequately resourced system.

177.         I see no evasiveness in any of the examples cited by the Crown at Volume II, pages 71, 84, or 90, though in the example quoted from Volume III, page 10, I see the beginnings of the Accused taking a defensive posture respecting the search of his father’s van and displaying an unusual legalistic approach to the question, perhaps not surprising given the legalisms that have no doubt consumed this family for the last number of years.

178.         Respecting the lie to police during the video interview, noted at page 10, volume III, I do not see the Accused as agreeing it was a “sneaky tricky lie”, but characterizing it, first, as lie he corrected, and second, as, “Misleading…yes sir”. While such lies are not to be encouraged and certainly show a capacity for deceit, lies to police are not uncommon and, here, this one was very specific and for the very specific purpose of protecting, not the accused, but a police officer friend who had provided him some ammunition, and it was soon admitted to. This altruistic deceit stands in stark contrast to the majority of his interactions with the police that day, when he was totally honest, polite and fully cooperative; all to his detriment.

179.         I see no merit at all in the suggestion that the Accused is an inveterate liar because he made a false implication to the Court at page 17, Volume II, respecting the bringing of his daughter to the car. He himself characterized it as “I may have falsely implied that – that he literally held her hand and walked her to my car. That is not correct. He walked with my wife and brought my wife and child to the car.” This is nothing more than a nervous witness’ mode of correcting an unimportant subtlety.

180.         Finally, the various inconsistencies particularly noted by the Crown at paragraph 33 of its Written Submission are minor. This includes the argued core inconsistency between the Accused’s evidence respecting the video interview and his co-operative demeanour therein. The Accused testified that he thought, as the result of police inducement, that if he talked to the police, he might not be charged (p.17, Volume II) and might be released quickly (ibid) and that he “was very, very, very com[placent] with the officers, hoping to be released, not to try and rile them up and make them hunt for more stuff.” The Crown seemed to put the inducement of no charge to him as a given, in support of it’s assertion that in no way was he then ‘afraid’ of the police. Frankly, I see nothing in this argument at all. The Accused is clearly a fan of the police and military, perhaps connected to his hunting and shooting hobbies. He clearly respects them as a group. He was clearly trying to be cooperative from the moment they exited their cruisers pointing very significant firearms at him and his family. In many ways, his life was instantly turned up side down. In such a context, his cooperativeness is not in my mind a corollary of the absence of fear, or, indeed, of a full understanding of the risks he faced. I certainly do not see any of this as badges of deceitful evidence.

Police Evidence.

181.         While I reject the particular evidence of the Accused and his wife on this thorny issue, I do not whole-heartedly accept that of the police, though I do not conclude it is deceitful. I can fully accept that no individual officer has a detailed recall respecting the Accused’s protestations of innocence, and he and his wife’s concern for the children; explained, perhaps, by the stress the officers, themselves, had been under, and that their various and different obligations put them in different places at different times, and they were not taking anything like detailed and or verbatim notes at the scene.

182.         But, it seems to me highly unlikely that in the several minutes following the strip search and leading up to the consent, that there would not have been some important discussion respecting the events at the school, nature and their legality, or not.

183.         If there was no such discussion, this is a significant issue as, indeed, there was a positive obligation on the police to at least try to engage in such sorts of conversations in order to fulfill the obligation to form reasonable and probable grounds only after taking into account all available evidence and only disregarding that for which there is a reason to disregard. As well, there would have been an opportunity to observe the wife and children, shell-shocked, so to speak, as they might well have been, and to see the one’s child clearly fragile state, whether or not the wife was pointing it out in some clear way.

184.         In my view, however, the vitiation of the consent is found, first, in the overwhelming series of preceding events that undermine a reasonable capacity to consent; second, in the misleading nature of the document, itself; and third, in the admitted decision to restrict normal use of the dwelling house pending the return of a search warrant and its execution.

 The Consent Document.  

185.         The document, in my view, needs close examination. As it is proffered by the Crown as the stated consent of the Accused, it must, as said, be proven by the Crown to be voluntary. Respecting its content, as a document prepared by the Crown or police, the contra proferentem rule should be a rough guideline for its interpretation; at least in the limited sense that as they wrote it, they should to some significant degree be held to the doubt raising, reasonable interpretations of it that the Accused might have made.

186.         Respecting it, a number of points can be made.

187.         The first line begins, “in order to cooperate in an investigation…” This is problematic because the particulars of any such investigation are first, not described, and second, this is not how the purposes of the search were described to the Accused and is open-ended, rather than confined to a particular purpose, as both the Accused thought it was and the police explained it was.

188.         The only investigation at issue was about the events at the schoolyard and there is no evidentiary basis whatsoever to suggest that an entry to the residence would advance that investigation, about which they knew essentially nothing. This is not a case where something criminal had occurred and there was some basis to think that the lair of the perpetrator would provide evidence of motive or means, etc.

189.         As noted above, the reason for the search advanced to the Accused, as stated by P.C. Galenzoski, was a public safety seizure of his firearms, pending full investigation of the events at the school. At page 49, Volume I, though speaking about an explanation he says he received from P.C. Humber, the Accused says, “…he told me that in the interest of public safety, all my firearms would have to be seized…”. There does not appear to have been any discussion of the point of the search being to further the investigation of the schoolyard incident or any other investigation.

190.         If, of course, the reason for the search was otherwise than stated or that a broader based search of greater scope was contemplated, then, of course, the Accused was actually misled by the document and the supporting oral explanations. He would have been misled as to the reasons for the search, the scope of the search and, concomitantly, perhaps, the risk he was facing; all of which would call into question his consent.

191.         The document continues, “ I…do hereby voluntarily authorize Norm Galenzoski to search my personal residence and its contents…”. What, here, is noteworthy is that the document does not authorize this officer and any other person or officer he wants to come with him. What the document clearly, on its face authorizes is one named officer to enter the premises for the stated purpose. Other officers sign the document, and their evidentiary confusion as to whether they signed as witnesses or intended search participants highlights that there probably was no clear explanation to the Accused that several officers would be entering to look everywhere for whatever impropriety they could find.

192.         In this light, while the Accused admits the difficulty of any one person carrying all his guns out at once, and that more than one officer went in with him, this does not undermine his core testimony that he thought the real point of the exercise, and his attendance on it, was to enter the house with P.C. Galenzoski and, maybe, D.C. Humber, go to the gun locker and get his guns and leave. He clearly was not contemplating that officer’s would fan out throughout his residence on a general search for incriminatory material.

193.         The document then authorizes Norm Galenzoski “to remove any items pertinent to their investigation”. If the investigation in question for the search was the schoolyard incident, then the consent to seize is limited to only that covered by that investigation. In that regard, it is difficult to see how a carelessly stored firearm or ammunition is in any clear sense “pertinent to their investigation” of the schoolyard incident. This means, then, that the seizure of the allegedly carelessly stored items is the seizure of items beyond the scope of the consent.

194.         In such a circumstance, an officer may have a “plain view” right to seize, under, for example, R. vs. Shea (1982), 1 C.C.C. (3^rd.) (O.H.C.J.) However, in such a circumstance, there appears to be an obligation to inform a person who is about to consent to a search that the police “are intending to use the fruits of the search in an investigation different from the one for which the consent is given” (see Fontana, Law of Search and Seizure in Canada, 4^th. Edition, Butterworths, at p. 360 citing R. vs. Borden, (1994), 92 C.C.C. )3^rd.) 404 (S.C.C.) There is nothing to suggest this obligation was met; if anything, the language of the document of consent seems to suggest the opposite – that seizures would only be made of that ‘pertinent’ to the purportedly identified investigation.

195.         Next, the consent says, “I am aware that any items taken by the police will be used in their investigation and may be introduced as evidence…” This language also suffers from the continuing reference to the inadequately or not at all described investigation, meaning, again, that, on the face of the document, there is some significant ambiguity about just what was being consented to and for just what purpose, and to just what risk.

196.         When one considers what was being said orally, it is not at all clear that the Accused would have understood that his residence was to be searched for any reason beyond the stated seizure of his guns pending investigation of the school yard incident, and that he would be at risk should something criminal be discovered during that search. Since the Accused knew, as it were, that his conduct at the school was lawful and that the firearms they wanted were lawful, lawfully registered and licensed to him, he had little to risk in consenting to a limited search; hence the importance to him of elaborating on just what the real risk was. Without such elaboration, the Accused was not “aware of the potential consequences of giving the consent [Supra, at p. 6]”. Nor was he possessed of  “requisite informational foundation for a true relinquishment of the right [supra, at p.6]”.

197.         The document indicates that the “ I have been informed …that I may refuse to consent to any search and that I may revoke my consent at any time.” Respecting that right to refuse, I will discuss this below with respect to the discussion of the ‘control’ of the residence, but with respect to the right to revoke the consent, this appears to have been effectively overridden by, first, the splitting up of the search team so that the Accused could not know what the others were up to and, two, the removal of the Accused from the premises shortly after the search began. At pages 165 to 166, Volume III, P.C. Galenzoski states that “I opted to turn over the search to Detective Humber, and I took Mr. Login outside…[because] I was – myself and Mr. Login were – were pretty much in the way of what was being conducted as part of the search.”

198.         What, here, appears to have happened is that upon the retrieval of the main firearms from the locker and, importantly, the discovery of other material (perhaps the ammunition or the firearm downstairs – as the Accused says they overheard from upstairs (something like, ‘we got him’), P.C. Galenzoski hands things over to P.C.Humber and gets the Accused out of the premises, where, of course, he is no longer able to know what is going on and is deprived of any chance to revoke his consent.

199.         It is interesting to note that P.C. Humber, at pages 98 to 99 of Volume VI, carefully describes how he, as the Detective, would take over command, but did not before the search because of the capability of the on-site officers “and the –the threat had been apprehended at that particular time…” Yet, immediately upon some event in the residence, command is given over to the Detective, and the Accused is removed from his own residence. If the Accused had not been ‘got’, something clearly had changed.

200.         Finally, and, given the circumstances, very importantly, the document says:

“I have been advised by the above named officer [P.C. Galenzoski] of my right to retain and instruct counsel prior to signing this consent [emphasis added].”

201.         Between pages 147 and 156, the Crown addresses this officer’s discussions with the Accused about right to counsel and the search at least four, if not five times. On each occasion, the officer responds, to the effect, as with the number four, “I - I don’t recall ever speaking about – to him about a lawyer in conversation with this document.” Given the number and ways this was repeated, I took the officer’s testimony to be, clearly, that he had no such conversation. If anything, he thought, “another officer did [page 147]”, perhaps P.C. Luscombe.

202.         In contrast, P.C. Luscombe says that P.C. Galenzoski (page 132, Volume IV) explained the document.  P.C. Luscombe also states that after the strip search, he read the normal course rights to counsel to the Accused while the Accused was seated in the back seat of P.C. Galenzoski’s cruiser.

203.         It would thus appear, that despite the clear assertion on the face of the document that there had been a discussion respecting retaining and instructing counsel “prior to signing this consent” and hence, by implication, the consideration and rejection by the Accused of the need for a lawyer’s advice about the search, there was no such discussion, whatsoever, and the assertion on the document is utterly incorrect, false, as it were. The absence of a waiver of an opportunity to consult counsel calls into question the degree of the Accused’s awareness of the proposed police conduct, his right to refuse to that conduct, and the possible consequences of his consenting to that conduct.

Discussions Respecting Consent.

204.         This leads, then to a consideration of the odd discussion with the Accused about the obtaining of a search warrant. This was led by P.C. Galenzoski, but somewhat overheard by P.C. Luscombe, and perhaps by D.C. Humber, in part.

205.         P.C. Galenzoski states at page 143 to 144, that:

“I explained to him that there were…two processes that I could do that. Uh, I identified the first…as being my getting a search warrant, explained to him that the search warrant would involve me leaving, going back to my detachment, typing up a search warrant, and then faxing it to a justice. And, if he or she agreed with it, uh, I would then get the search warrant, come back and do the search.”

206.         There are a number of difficulties with this explanation. 

Reasonable Grounds.

207.         First, it is not clear from this whether the warrant being discussed is one under  section 117.04, or section 487. This is the same ambiguity that was discussed respecting the form of consent. It is an important one because it underscores the inadequacy of the basis for the search based on the information available.

208.         Section 117.04 requires reasonable grounds to believe that an individual possesses a weapon (not in issue here given the evidence of all as to the possession of weapons), but it also requires “reasonable grounds to believe that the person possesses and that it is not desirable in the interests of the safety of the person, or any other person…for the person to possess…” While I don’t wish to bedevil a dead horse, what, here, could be the proffered grounds to reasonably believe that the Accused was, broadly speaking, such a sufficient threat to safety - that a soccer coach expressed a concern, that we have yet to investigate, but so far have no evidence of any criminal conduct, but we did, at gun point, detain, arrest and strip search a totally cooperative, licensed hunter, lawfully possessing a lawful firearm that was lawfully registered, all in the front yard of his own residence in front of his wife and children, and neighbours?

209.         And, under section 487, there is a similar requirement for reasonable grounds to believe an offence has been committed and that evidence respecting that offence can be located in the targeted dwelling. Obviously, no such grounds existed here given the paucity of information or inquiry with respect to the schoolyard and the absence of any known or articulated relevant connection with the schoolyard and the contents of the residence.

210.         Under Mann, as noted supra, an officer’s hunch based on intuition gained by experience is not even enough basis for an investigative detention; it is thus certainly not enough to support a search warrant.

No Reference to Telewarrant.

211.         Second, the tedious description of the efforts necessary to obtain a warrant and return and execute it, through the reference to sending the warrant by facsimile, are impliedly contemplative of the procedures of section 487.1. They do not, however, reference the core nature of that section, which is, if it is “impractical to appear personally before a justice of the peace”, he may “submit an information on oath by telephone…” Of course, one interpretation of what P.C. Galenzoski is talking about here, perhaps with a few added details, is that it is impractical, in the sense of difficult and delaying, to leave this rural scene and get a warrant; in which case, the solution would have been to pick up the phone and tell a Justice of the Peace what had occurred and that a warrant to search was required, which, of course, would have required the articulation of just what reasonable grounds existed for the believe in the commission of an offence and the presence of evidence thereof in the residence, something, of course, that was sorely lacking. So, the description omits to advise the Accused that I could do it all quickly by phone.

The Easy Way or the Hard Way.

212.         Third, this same tedious description, of course, is capable of another interpretation. This is, that the process is described as it was to make a point, such as, we can do this the easy way or the hard way. In my view, this was why the process was so described, not for the benefit of providing the Accused accurate information to assist in his decision, but misleading information to encourage making the only decision that would ensure the police could enter his residence.

213.         I appreciate that it has long been established that when dealing with criminal suspects a certain degree of police trickery is both necessary and considered appropriate, given that many criminals are ones not inclined to play by civilized standards. In my view, the restrictive authorities respecting consent to search noted above countenance no such viewpoint, precisely because the person consenting “must be possessed of the requisite informational foundation for a true relinquishment of the right (supra, at page 6)”. If they are lied to with respect to important information, this high test cannot be met.

214.         By way of example, and while I appreciate that this is not the direct evidence in this case, it may well be reasonable to conclude hat this polite, cooperative, police-friendly Accused either did not, at all, or did not, clearly, relay to the police his concerns about his family, particularly his sick child, and the delay pending the search warrant, but that this was very much on his mind; the condition of such a terribly sick child in all likelihood being something no father or mother can for long not have on their mind. When the police emphasized this delay, without consideration or discussion of the telephone warrant procedure, this misinformation created an overriding concern in the Accused sufficient to prompt an ill-considered consent, particularly given all the other factors of concern noted above.

Controlling the Residence.

215.         P.C.Galensoski then continues with the Accused:

“Explained to him that, as part of the search, I would have to leave two officers at the residence to ensure that nobody removed anything from the residence that constituted a firearms offence or was in fact a firearm…”

216.         To understand the true impact of this statement, it is important to look at what these words might just truly mean.

217.         First, is the inherent contradiction; I do not have any authority to search and until I go and get a search warrant, but nonetheless, until I get that authority, “as part of the search’, I will somehow control the residence or somehow restrict access and egress thereto, and the removal of property from there.  As noted from Mann, supra, “the police …may act only to the extent that they are empowered to do so by law.”; what warrant had they for this control?

218.         During argument, on several occasions, I requested authority for the proposition that any such restriction was lawful; none was provided. Below I will later discuss some I have located through a search, inter alia, of the Canadian Charter of Rights Annotated, 2^nd. Series, Butterworths.

219.         Second, where, “at the residence” would the officers be put? In it? Outside it? On the property? On the street?  This is not clear now, and, no doubt, would not have been clear, then, to the Accused. Apart altogether from the issue of the child’s health, this assertion is a clear threat to interfere with the normal course use of one’s residence and it’s property.

220.         Third, the phrase, “to ensure that nobody removed anything” signifies some lawful authority to prevent removal. What authority is there to prevent the removal of property? Is it a general authority or a more particular one? Is it based in statue or common law? How would it be exercised? Would people be stopped and searched?  Would vehicles be stopped and searched?  Would force be used to effect such stops?

221.         Fourth, the phrase, “that constituted a firearms offence” might be a limitation on the above asserted power that might suggest, at least, a comprehensible nature to that power; if it meant, solely, if we see someone doing something with a firearm that is illegal, we will intervene. Such a power is, of course, nothing more than the normal police power to investigate offences they see occurring, but this raises the question of why mention it, to which the obvious answer, in part, is the threat mentioned above.

222.         Fifth, the phrase, “or was in fact a firearm” adds to the phrase noted in four, above, and must have been meant to suggest a further power, the power to prevent the removal of a firearm. From where does this power come? And, what if the removal, whether it incidentally thwarted the police interest or not, was, itself, lawful; for example, a fully licensed friend or relative of the Accused came to take some or all the Accused’s firearms into his possession for safekeeping at the request of the Accused or his agent. In such a case, where is the authority to stop the transfer?

223.         In my view, these are not unimportant questions since they underlay the apparent police belief that pending the obtaining of any authority to search the residence and seize the known weapons, they have, in fact, authority to seize them and exercise some restraint over the comings and goings of people to the targeted residence. This strikes me, at large, as a highly suspect proposition, but, in any event, in context, it strikes me as a fairly blunt sort of statement to be made by the police to someone whose ‘voluntary’ consent they are requesting. Delivered calmly or wildly, a threat to intervene is a threat to intervene.

Authority to Control the Residence.

224.         What authority does there appear to be? In brief, the answer is none was provided, and I have found little.

225.         Perhaps somewhat analogous to this concept is the perimeter search, roughly speaking a look and see of a suspects property conducted by walking around it while remaining on public or another’s property. The limited analogy comes from the suggestion that perhaps the officers assigned to the contemplated task would simply sit in their cruiser on the street. Under Grant, (1992), 3 S.C.R. 223, deliberate warrantless perimeter searches are per se illegal, even if there are reasonable and probable grounds for believing an offence was being committed within the residence.

226.         In R. vs. Roger (1994), 25 W.C.B. (2^nd.) 267, (Ont. Ct. (Gen. Div.)) A warrantless search of a hotel room on the arrest of an Accused in the hotel lobby was found a breach, even though it was argued that the search was justified to determine if any one was in the room who could destroy possible evidence, here, cocaine. The court noted that the presence of another could be determined merely by opening the door, and that thereafter, any concerns could be met by posting an officer outside, pending arrival of a warrant. The case is not helpful in that there is no discussion of the authority to do so, and it is not a case where the consent was obtained by promising, as it were, to so limit access. As well, there seems to be some emphasis on the limited power to post an officer as arising from the nature of the room contents being contraband; that is, something per se unlawful.

227.         More directly on point is R. vs. Ouaida, 30 W.C.B. (2^nd.) 250 (Ont. Ct. (Gen. Div.)). There, a burned residence was seized and searched, purportedly under the authority of the Fire Marshals Act, R.S.O. 1990, c. F. 17. The Fire Marshall was collaborating with the insurance company, which was usual practice, but was unusually collaborating with the police. The owner was excluded from the residence and from access to personal property, meaning they had no control over their property. Criminally incriminating evidence was located, but no warrant was obtained. The court found a breach under section 8 of the Charter on the basis that without a warrant, the residents had no ability to determine in what manner their property and their privacy was being taken, for how long, for what reason, by whom and under what authority.

228.         These circumstances are similar to those here, except, in Ouaida, there actually was some initial authority, in at least one state agent, the Fire Marshall, to be in the residence, and the court apparently considered that there were reasonable and probable grounds to obtain a warrant. Despite this, the exclusion of the owners from their property was found unreasonable.

229.         Here, of course, the police had no authority to be in the residence or on its property (respecting the latter, after the initial detention). Nor did they, in my view, have the required grounds to obtain a warrant. Hence, even if the police did not, in the beginning, propose to exclude all, pending obtaining a search warrant (though it is noted that after commencing the search they quickly excluded the Accused and his father, while his wife remained outside), they did propose to ensure, in some manner not fully explained, that nothing was removed, without any apparent authority to do so.

230.         The case of R. vs. Dawson (1998), 58 C.R.R. 2^ND. 362 (Ont. Ct. (Gen. Div.)) Is even more opposed to the Crown’s position. There, the police had reasonable and probable grounds to believe the accused, a member or associate of the Hells Angels and Paradice Riders motor cycle clubs, was involved in a drug trafficking conspiracy, though not in the actual possession of proceeds. Contrary to the restrictions on arrests in residential premises subsequently stated in R. vs. Feeney 1997 CanLII 342 (S.C.C.), [1997] 2 S.C.R. 13, there had been a decision to enter the apartment to effect the reason, regardless that the Accused was arrested at the doorway to her apartment on her answering the police knock and there was no reason to believe that there was someone else in the apartment, any threat to them or to evidence. On entry, police found some potentially incriminating evidence.

231.         The court found a breach and excluded all of the evidence; notwithstanding a search warrant (with some problems) was later obtained. Of major concern to the court was the absence of any grounds to enter the premises and, very importantly, the fact the police stayed on in the residence pending the arrival of a search warrant. Clearly the Court was of the view that if the entry was unlawful, any over holding of it, even to secure known evidence, did not become lawful and continued to be unlawful.

232.         Perhaps most importantly, in R. vs. Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 S.C.R. 297, the Supreme Court of Canada found that the warrantless entry into a residence not authorized by stature to prevent the destruction of narcotics pending the arrival of a warrant violated section 8 of the Charter, even though no search of the residence commenced until the warrant arrived. There the police entered, searched for weapons and detained the occupants; all of this was found to be unconstitutional.

233.         In the circumstance, the Court, however, did not exclude the evidence, but did note, at page 330, that the officers “seemed ill informed about the extent of their authority”. The Court further commented that: “I do not find it reassuring that the police believed they had the right to enter the house to preserve evidence (ibid).” This decision was rendered in 1995, yet some eight years later, the police here seemed to think they could somehow control the Accused’s residence pending getting a warrant.

234.         To be fair, it should be noted that section 487.11 was enacted in 1997 and may authorize warrantless searches otherwise authorized under section 487 (1) [regular search warrants] or section 492.1 (1) [tracking warrants], but only if  “by reason of exigent circumstances it would be impractical to obtain a warrant”. Two points about this section must be made.

235.         First, what exigent circumstances existed? As discussed above, in the overall context of this case, what was the pressing need that required any form of exigent control of access to or egress from this residence?

236.         Second, section 487.11 is only a limited and partial parliamentary answer to Silveira. It only applies to circumstances where there are reasonable and probable grounds to believe that evidence will be found in a place in respect of which an “offence …has been or is suspected to have been committed…or is intended to be used for the purpose of committing any offence…” In other words, unless the police concern rises to the level of belief in the prior, present, or anticipated commission of a criminal offence, section 487.11 does not create any exigent power to search.

237.         While, here, the police had some authority to enter into the driveway area to effect the investigative detention, that authority to detain and search incident thereto was essentially dissipated, either by their wrongful arrest of the Accused as supplanting the initial authority, or by the passage of time, which ameliorated any of the reasons for the detention, itself. Hence, even if they entered onto the driveway in accordance with a Feeney based  or common law exemption, hot-pursuit, for example, there was nothing to authorize their continuing attendance.

Summary Respecting Right to Control the Residence.

238.         Where the police lawfully detain someone for investigation, they can search him and to some extent the immediate vicinity for narrow protective purposes. The extent of such searches is very limited, as is the right to detain. Where they lawfully arrest someone, with or without warrant, they can search incident to arrest both the arrested person and the vicinity, both for protective purposes and to preserve evidence, but the extent of such a search is also limited, in part by the privacy interest impacted, a car being different than a motel room, being different than a residence.

239.         Without a warrant, absent exception, police cannot enter premises to affect an arrest; hence, a search incident to a warrantless arrest will generally, by its very nature, exclude a search of a residence.

240.         Given this, it is in my view subject to some serious question whether police have some broad, sweeping authority to restrict the normal enjoyment of real or personal property by somehow restricting access to and egress from a residence, pending the obtaining of a search warrant, by ‘leaving two officers at the residence to ensure that nobody removed anything from the residence that constituted a firearms offence or was a firearm.’

241.         In my view this is subject to greater question when there was no reasonable and probable grounds to effect the arrest for which the proposed search was, in part, in relation to, and there were no reasonable and probable grounds for the search proposed.

242.         It is made more suspect when there is no basis, at all, to connect the contents of the residence to some per se illegal activity, such as the possession of illegal drugs.

243.         Finally, it is made completely suspect when there is no basis at all to connect the contents of the residence as evidence of any illegal activity

244.         I recognize that Section 42 of the Police Services Act preserves the common law ancillary powers of the police. I also recognize that the historic description of these is encompassed by the two-pronged duty and justified use of power test enunciated in  R. v. Waterfield, [1963] 3 All E.R. 659 9  (C.C.A.), most recently affirmed by Justice Doherty in R. v. Clayton and Troy, March 18, 2005, Docket C37990-C36722, a case that upheld a limited police   power to establish road-block stops.

245.         Here, there can be no doubt that the officers were acting pursuant to their obligations to prevent and investigate crime; I accept this even though some would reasonably think that by this point in time they all should have recognized that there was no crime to investigate and no reason to search the house. What I do not accept is that there is such a vague ancillary power to interfere with a homeowner’s liberties with respect to his home or its property as is articulated here. In other contexts, there may be; in this one, I see none.

246.         Most importantly, in the context of this case, where the police are seeking the consent of an arrested individual to search his home, the statement that the police would do so is a very unfortunate choice of a persuasive argument. It amounts to no more or less than a threat to use unarticulated powers to restrict, in a publicly embarrassing way, the above noted Mann articulated right of individuals, “absent a law to the contrary, …to do as they please”. It also suggests, contrary to Mann that the police have some inherent powers, rather than that they “may act only to the extent they are empowered to do so by law.”

247.         For one contemplating consenting or not to a police search of one’s dwelling and for one who may also have been contemplating, if not well articulating, a concern for his family, particularly one child, the suggestion that the police were staying, regardless, which, of course, is more or less what the average person would take from these words, might well lead to the conclusion that waiting would be futile; hence acquiescing in something one did not wish to consent to.

14.   THE TOUR AND THE VIDEO STATEMENT

248.         The tour of the farmer’s field and the statements of the Accused during this reenactment were agreed to be admissible for the limited purposes of consideration during this application, as was the video statement. Their admissibility for the trial was challenged as being both involuntary and unconstitutional. It is argued that these are involuntary in the traditional sense as flowing from the loss of will congruent with and following upon the many articulated Charter breaches, as well as the lawful, if violent, takedown. It is argued that these are simply more fruit of the articulated breaches.

249.         I agree. If the Accused was capable of consent or voluntary conduct after the horror of his arrest and the subjection of his wife and children, this soon dissipated with the unlawful arrest, unlawful strip search, induced consent, and unlawful search of his residence. His cooperative demeanour following all of this – recall, ‘please don’t shoot me’- is not surprisingly malleable and complacent, particularly when it is noted as coming from an individual who wants to not only assist the police, but, perhaps, to emulate them. This does not mean that he was unaffected by the trauma besetting him, only that his natural tendency to please authority came to the fore, but this does not mean that he understands his risks well enough to waive them off.

15.   SECTION 24.

250.         The test under Collins is noted supra.

251.         Respecting trial fairness, by all accounts, without the evidence so seized, there is no Crown case. A non-lawyer might well ask, how can it possibly be that a trial based totally on unlawful and unconstitutional seizures would is fair?

252.         The law would seem to be, however, that the issue of trial fairness goes largely, if not exclusively, to the procedural or functioning of the trial as it is occurring, not, necessarily, its result. In other words, where an infringement of a right affects the ability of one to conduct the trial, such as delay having affected the memory or availability of witnesses, then the process of the trial becomes unfair. As well, where real evidence is seized after a breach of the Charter, trial fairness is usually not diminished by its admission, because the evidence, as it were, still speaks for itself. (See: R. vs. Stillman. 1997 CanLII 384 (S.C.C.), [1997] 1S.C.R. 607 (S.C.C)).

253.         Hence in Clayton and Troy, the Court of Appeal agreed that the illegal stopping of a vehicle and subsequent arrest of the Accused resulting in the seizure of firearms did not vitiate trial fairness (supra at p. 16.) In Clayton and Troy, police conducted the seizures without any cooperation by those Accused. They were not, that is, asked to consent to being stopped or searched.

254.         Here, however, the search is largely sought to be justified on the basis of the consent of the Accused, hence, in the trial, the Crown, so to speak, seeks to incriminate him not only with the presentation of the fruits of the search, the firearm and ammunition, but also by the words of consent he spoke, or wrote, when those words, themselves, were unlawfully obtained. In such a case, the dictates of R. vs. Stillman respecting conscriptive and non-conscriptive evidence suggests trial fairness is so affected as to require exclusion if the evidence comes about from the compulsion of the accused, such as occurs when an accused provides bodily substances or gives an incriminatory statement.

255.         The real evidence obtained from the search of the Accused’s residence, including the police observations of the inside of the residence, were in my view conscripted. If this conscription is not the direct cause of this evidence, it is the indirect cause of it, and, under Stillman, derivative evidence arising from conscription is similarly excluded.

256.         Respecting the seriousness of the violations from the perspective of both of the significance of the violations and the causative police conduct (see Clayton and Troy, at paragraphs 75 to 90), several points can be made.

257.         First, there are a number of breaches, including: the denial of right to counsel on detention, the arrest without reasonable and probable grounds, the strip search, the denial of right to counsel with respect to the consent,  the stated intent to control the residence without authority, the obtaining of consent without compliance with the law, and the search  of the residence and seizure of property without warrant and outside the terms of the granted consent.

258.         Second, these various breaches are individually and severally serious. An arrest is not a momentary detention, but, as noted above, the start of a very negative criminal justice process.  An intrusive strip search in a public place, next to a bodily cavity search in a public place, is as significant a violation of bodily integrity as the law ever authorizes. The search of a family dwelling house is as serous a breach of property protections as is contemplated.

259.         Third, in the context of the lawful conduct of the Accused on the day in question, the seriousness of these breaches is increased.

260.         Fourth, the causative police conduct shows, not an individual, but an apparent systemic failure to instruct on, train in, refresh, or enforce some very fundamental aspects of criminal justice. These include: the distinction between investigative detention and criminal arrest; the different and very important preconditions for a detention on reasonable or articulable grounds, and an arrest on reasonable and probable grounds; the different ancillary powers to search on detention and search on arrest; the overriding restrictions on the authority to strip search; the nature of a valid consent and the obligations of informational disclosure in respect thereof; and the authority to interfere with real and personal property. In Clayton and Troy, Justice Doherty, at paragraph 86, quoted with approval from Justice Hill as follows:

“The apparent good faith of the individual…[police officer] ought not to mask police fault where it can be established that an institutionalized policy of features effectively drive a pattern of legal non-compliance.”

261.         Justice Doherty added to this at paragraph 87 that “the failure …to train… is made all the more damaging by the absence of effective supervision by more senior police officers …” As noted in these reasons, above, while the evidence was not well developed, there is some cause for concern with respect to who was making the command decisions (the police or dispatch, or the Acting Sergeant) or, if that evening, any such command decisions were being precisely made by anyone, or if events, rather,  were simply flowing from one to another, at the whim, so to speak, of the individual officer [and, on this, see Justice Doherty’s comments at paragraphs 87 and 88 of Clayton and Troy].

262.         Respecting the effect of the exclusion of the evidence obtained from unlawful searches on the repute of the criminal justice system, the Court must balance our mutual interest as citizens in convicting criminals based on reliable evidence against our interest in regular state compliance with the interpreted dictates of the Constitution. While the matter must be decided on a case-by-case basis, the court must adopt a long-term view (ibid, at paragraph 93).

263.         Here, it should be noted that in this case, only some of the evidence obtained is reliable or determinative in the sense noted above respecting real evidence generally. In Clayton and Troy, it appears that there was no issue as to the lawfulness of the possession of the handguns by these accused, it being clear they had no such authority; hence, the admission of the evidence of the search, arrest and seizure would determine the matter. Here, while the mere existence of the ammunition and the one firearm within the residence might go a very long way to establishing some of the elements of the offence, such as possession, the core issue of careless storage, or not, would remain open to some factual and legal debate, since simple possession and storage are not, per se, criminal or mala in se, and the officer’s observations with respect to that storage might, at least, be capable of some contradiction.

264.         In Clayton and Troy, in the discussion of the seriousness of the breaches, it is noted at paragraph 78 that the significance of a breach is not determined by the results of the discoveries of the search proving the guilt of the search – “Criminals do not have different constitutional rights than the rest of the community.” This is certainly true with respect to the issue of seriousness of the breach, if only because the police cannot know in advance who is and who  is not a criminal (though they may or may not have some pretty good suspicions) and, without such prescience, would have no restraint on their conduct as against either so-called known criminals or others.

265.         However, when assessing the issue of the repute of the criminal justice system, the court must consider the broadly held notion that criminals, to some extent, willfully engage in a business, so to speak, where the mere possession of some substance or thing strongly argues their guilt, and voluntarily accept, as it were, that while they might seek to keep this possession secret, such private criminal possession might just become publicly known. This does not mean that criminals waive their constitutional rights, but it does mean that the public recognizes that they have, whether the criminal agrees to this or not, a diminished expectation of privacy in their criminal exploits, having voluntarily assumed that inherent risk of public disclosure. Hence, when police conduct, short, perhaps, of deliberate malfeasance, occurs and results in the discovery of this sort of conclusive evidence, the system is not necessarily brought into disrepute by it use in a criminal trial. The cases authorizing regulatory searches of those in particular businesses contain a similar thought. (See: R. vs. Potash, R. vs. Selection Milton, [1994] 2 S.C.R 425 (S.C.C.)

266.         The point, here, is that where the opposite is true, or largely true, the opposite conclusion with respect to repute can be drawn. That is, where someone is not a per se criminal engaging in conduct that is per se criminal, such as drug dealing, robbery or impaired driving, but a law abiding or relatively law abiding citizen engaging in lawful activities in ones own residence, then there is damage to the repute of the system if unconstitutionally obtained evidence is allowed in to prejudice such an accused.

267.         When considering such issues, the nature of the offence is obviously a related and equally relevant consideration as is the nature of the accused’s willful conduct. Here, I would not say that careless storage of firearms or ammunition in a dwelling house are minor offences, because there is some risk to others involved in each, particularly to children who may not understand the risk in picking up or playing with such items. These are, to some extent, however, relatively new offences, without much specific legal definition, broad public knowledge of their nature or understanding of their import. They in no event generally equate in nature to intentional crimes such as drug trafficking, robbery, and impaired driving. In the context of such an offence, a near regulatory one (see section 5, SOR/98-209 made under the Firearms Acts, S.C. 1995, c. 39), if one constitutionally criminally defined, the disrepute arising from admission increases, particularly if in the case of crimes such as drug trafficking, robbery and impaired driving some very minor police failures routinely lead to the exclusion of evidence.

268.         In my view, the criminal justice system would suffer some significant disrepute if the questioned evidence, obtained in the manner I have found, were admitted.

16.  CONCLUSION

269.         All evidence, direct, indirect, real or otherwise obtained following the arrest of the Accused was obtained in breach of the Accused’s rights under the Charter. The admission of such evidence would bring the administration of justice into disrepute and is in its totality excluded.

270.         Having reached this conclusion, I  feel bound in this most contentious case to note the following.

271.         The Ontario Provincial Police decision to detain the Accused based on the incomplete information provided by the soccer coach, who no doubt had no idea what was about to be unleashed, and so inadequately conveyed to them by the dispatch is, again, not in question in these proceedings. Nor is the decision to do a high-risk take down.

272.         When the Ontario Provincial Police act to protect our children at school from men with guns, we have every reason to expect that they will act quickly and forcefully, if professionally and effectively. Neither their professionalism nor their effectiveness is in question with respect to that detention. The community can remain proud that this dangerous task was completed both professionally and effectively.

273.         We may now wish that the dispatch asked more questions or kept the lines of communications open. We may now wish that the involved officers, driving at frightful speeds to the school, had the foresight to ask for more information. We may now wish that some senior officer was nearby or by radio could have assumed command and asked the questions that needed to be asked. But, to now blame anyone for the initial takedown because our current wishes were then not met would be second guessing, hindsight of the worst sort.

274.         My point of criticism of police conduct, if seen as criticism rather than as the application of important rules to a very difficult case that might, I think, have been better dealt with in other ways, is with the events that transpired after the investigative detention.

275.         At the point in time the Accused was detained for investigation, an investigation should have occurred. Simply put, as he was detained with respect to whatever had occurred at the school, there should have been an investigation of whatever had occurred at the school. This should have occurred before he was arrested for an offence related to whatever had occurred at the school. While it is somewhat hypothetical, if that investigation had occurred, it is likely that none of what followed would have followed, including the problematic arrest, strip search, and residential search.

276.         The difficulties that followed the detention have many causes, including the continuation of the inadequate information and unfortunate absence of senior command. One of the core difficulties seems to have been the failure to recognize, perhaps because of the apparent initial compliance of the Accused and his family, the shocking impact the takedown would have had on most citizens in most neighbourhoods. Another would be the inadequate training with respect to the issues respecting the extent of police authority noted above, and the subject of some comment by other Courts. One would hope that more focused training would assist.

277.         I will hear counsel with respect to a motion to dismiss and an order for the return of all property seized.

Released:    February 10, 2006

 

 

 

_________________________

Mr. Justice Jon-Jo A. Douglas