R. v. W.A., 2012 NUCJ 12

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. W.A., 2012 NUCJ 12 Date: 20120627 Docket: 18-11-260 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: W.A. ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): S. Hughes Counsel (Accused): P. Harte Location Heard: Rankin Inlet, Nunavut Date Heard: May 3, 2012 Matters: Criminal Code, s. 495 ; Charter, ss. 8, 9, 24(2) REASONS FOR JUDGMENT (NOTE: This document has been edited for publication)

Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] The accused is charged with a number of offences, including an assault on his spouse, and a charge of careless storage of firearms. He seeks to have the evidence of the firearms excluded as evidence at trial on the charge of careless storage of firearms on the basis that they were obtained in a manner that violated his right to be secure from unreasonable search or seizure pursuant to s 8 of the Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982 c 11 [Charter]. II. EVIDENCE [ 2 ] In the afternoon of December 29, 2011, the complainant in the assault attended at the RCMP detachment and gave a statement alleging an assault upon her by the accused. It was alleged that the previous evening the accused was becoming angry and verbally abusive with the complainant at the family home. The complainant had left the home and went to stay with her sister. Shortly after she arrived at her sister’s, the accused entered the residence, assaulted the complainant, and then left.

The complainant spent the night at her sister’s and went to the police the following day to report the assault. At the time she attended at the police detachment she had not yet been back to the family home. During the course of taking a statement from the complainant, the police asked her if there were firearms in the house. They were advised that there were and that they were located in the furnace room of the residence. [ 3 ] The police attended at the residence and arrested the accused for assault. They went to the furnace room and located a number of rifles.

They asked the accused if there were other firearms in the residence and he told them that there was one firearm in the bedroom. The accused led the police to the bedroom where another firearm was seized. The accused did not consent to a search of the residence or the seizure of the firearms. [ 4 ] Once the accused had been arrested and taken into custody and the firearms seized, the police contacted the complainant to update her on the situation. They asked that she meet them at the residence to confirm that all of the firearms had been taken from the house.

Based on information provided by the complainant, two more firearms were seized from a shed adjacent to the residence. In total, approximately five or six firearms were seized from the family home and the shed. [ 5 ] The police officer testified that he did not explicitly seek the permission of the complainant to enter the home and obtain the firearms but that he had no doubt that if he had asked for permission she would have provided it.

This would be based on the fact that the complainant sought the assistance of the police and, throughout their dealings with her, she was forthcoming and cooperative. [ 6 ] The officer also testified that he has been involved in similar searches for firearms on prior occasions where there is a complaint of spousal assault. The prior occasions normally involved circumstances where the accused and the complainant were both still in the residence and the matter had a sense of urgency to it.

He further testified that the secondary search, after the removal of the accused from the home, is common and is directed at ensuring the safety of the complainant. [ 7 ] In cross examination, the officer testified that in instances of spousal assault the practice is to arrest an accused and bring him or her before a Justice of the Peace to address release. He testified that it would be unusual to release an accused on an undertaking given to an Officer in Charge.

The officer testified that there were no grounds for believing the accused had committed an offence with a firearm nor were there grounds for believing that there was evidence relating to the offence of assault in the home. [ 8 ] The officer testified that no thought was given to obtaining a warrant. He testified that it is common at show cause hearings on domestic assault charges for the Crown to ask for a condition that the accused be prohibited from possessing firearms and that all firearms be turned over to the RCMP. In his experience, such a condition is always imposed as a term of release. III. ISSUES

[ 9 ] The Crown concedes that the seizure of the firearms violated

section 8 of the Charter . [ 10 ] The issue is whether the firearms should be excluded as evidence at the trial pursuant to section 24(2) of the Charter . A. Positions of the parties (i). Crown [ 11 ] The Crown argues that the Court should infer that the complainant would have consented to the firearms being seized had the question been put to her.

They say this flows from her having engaged the assistance of the RCMP, from her having provided information in response to questions about the presence of firearms, and her having provided the RCMP with firearms from the shed when they attended at the residence a second time. [ 12 ] The Crown also argues that a warrant to seize the firearms could have been obtained that same day so the impact of the breach on the Charter-protected rights of the accused is minimal. (ii).

Defence [ 13 ] The Defence concedes that the purpose of the seizure was to ensure the safety of the complainant but argues that the same goal could have been accomplished by obtaining a warrant and that the police proceeded without a warrant as a matter of convenience. [ 14 ] They further argue that the evidence was not discoverable but for the breach. IV. ANALYSIS: [ 15 ] Section 24(2) of the Charter states:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 16 ] The Supreme Court of Canada decisions in R v Grant, 2009 SCC 32 , [2009] 2 SCR 353; R v Harrison, 2009 SCC 34 , [2009] 2 SCR 494; and R v Coté, 2011 SCC 46 , [2011] 3 SCR 215, set out the analysis the court is to undertake when considering whether evidence should be excluded pursuant to s. 24(2) of the Charter .

The court must consider the seriousness of the Charter violation, the impact of the violation on the Charter-protected rights of the accused, and society's interest in having the case decided on its merits. A. Seriousness of the breach [ 17 ] Citizens have a high expectation of privacy in their homes so the fact that this was a warrantless search of a dwelling supports the proposition that this was a serious breach. However, it is also significant that this was a focused search, restricted to those areas where firearms were stored, as identified by the complainant and the accused.

It was not a general search of the entire residence. [ 18 ] The existence of a lawful means to obtain the evidence may enhance or mitigate the seriousness of a breach, depending upon the circumstances. In instances where the officers are aware of the lawful alternatives and simply choose to ignore them, in blatant disregard

of Charter-protected rights, the seriousness of a breach may be enhanced.

In instances where the officers are acting in good faith or under a mistaken belief as to the lawfulness of their conduct, the seriousness of the breach might be mitigated. [ 19 ] The officers' expectation that the accused would be released with a condition that he not possess firearms was reasonable given that s 515(4.1) of the Criminal Code provides that where a person is charged with an offence in the commission of an offence in which violence against a person was used, attempted, or threatened, a firearms prohibition must be a condition of release, unless the justice determines that the condition is not required for the purposes of public safety, in which case reasons for not including the condition must be provided. [ 20 ] I find that the seizure was undertaken in good faith, for the legitimate purpose of public safety, particularly that of the complainant.

B. Impact of the breach on the Charter-protected rights of the accused [ 21 ] The impact of the breach was on the privacy rights of the accused. As previously discussed, the focused scope of the search mitigated, to some extent, the invasiveness of the search. There is nothing in the evidence to suggest that the seizure was carried out in a manner that was not reasonable or respectful. The liberty rights of the accused were not impacted as his arrest and detention in custody did not flow from the seizure, they flowed from the assault charge. C.

Society's interest in having the matter adjudicated on its merits [ 22 ] The Court must consider the greater context in which this seizure occurred. The rate of spousal violence in Nunavut is almost twelve times the national average. There can be no doubt that domestic conflict creates a dangerously volatile environment. The presence of and easy access to firearms increases the inherent danger. Over the last few years Nunavut has seen an increase in offences that involve the use of firearms. Nunavummiut can no longer afford a relaxed attitude towards the proper storage of firearms. V.

CONCLUSION [ 23 ] On balance, I find that the administration of justice would be brought into disrepute if the firearms were not admitted as evidence in this instance. Accordingly, the firearms will be admitted as evidence. Dated at the City of Iqaluit this 27th day of June, 2012 ___________________ Justice S. Cooper Nunavut Court of Justice