R. v. Latham and Ryan Date:, 2012 BCPC 78

Citation: R. v. Latham and Ryan Date: 20120217 2012 BCPC 0078 File No: 218427-5-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THERESA ANNE LATHAM and DAMION PATRICK RYAN EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE AND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. BASTIN Counsel for the Crown: K. Murphy Counsel for the Accused Latham: E. Lewis (Agent for N. Cobb) Counsel for the Accused Ryan: S. Buck Place of Hearing: Vancouver , B.C.

Date of Hearing: February 17, 2012 Date of Judgment: February 17, 2012 [ 1 ] THE COURT: Regina versus Theresa Anne Latham and Damion Patrick Ryan, ruling on voir dire . [ 2 ] The two defendants, Theresa Anne Latham and Damion Patrick Ryan, are jointly charged in Information Number 218427-5-C, with thirty counts alleging the unlawful possession of various firearms and ammunition.

The offences are alleged to have occurred in Burnaby, British Columbia, on or about August 26, 2010. [ 3 ] At the outset of the trial, counsel for the defence advised the court that pursuant to certain provisions of the Canadian Charter of Rights and Freedoms , the defence contested the admission of evidence seized from the residence at 3774 Oxford Street in Burnaby, British Columbia, by members of the RCMP on August 26, 2010.

Both counsel for the defence conceded that their clients had an association with the residence in question sufficient to give each defendant standing to advance the Charter arguments. [ 4 ] A voir dire was then declared by the court in order that all of the challenged evidence and all issues related to it could be put before the court. A very large body of evidence was presented on the voir dire . The Crown called eleven witnesses over six days of hearing. In addition, several exhibits were entered on the voir dire including many admissions of fact.

The defence did not call evidence on the voir dire . [ 5 ] The main argument of the defence in this case is that the Oxford Street residence was unlawfully searched by the police and that items seized from that residence ought not to be admitted into evidence in this trial. The Crown position is that the evidence was the product of a lawful search. In the alternative, the Crown argues that if the court finds the search to be unlawful or unreasonable, it would

not bring the administration of justice into disrepute to admit the evidence pursuant to s. 24(2) of the Charter . [ 6 ] A broad overview of the events relating to the search of the Oxford Street residence will be helpful in putting in context the legal issues that arise on the voir dire . Those events began with what was seen and heard by Mr. Richard Cunningham at approximately 1:45 a.m. on August 26, 2010. At that time, Mr. Cunningham was a passenger in a vehicle driven by Mr. Larry Sylvert.

The vehicle was proceeding southward at the intersection of Esmond and Oxford Streets in Burnaby, British Columbia. [ 7 ] At that time and location, Mr. Cunningham heard what he believed to be two gunshots and he then observed three people running from the general area of the house at 3774 Oxford Street. Mr. Cunningham observed that one of the three persons was carrying a handgun. Mr. Cunningham observed the three persons run eastward on Oxford Street and then turn south on Esmond Street and then, one block later, turn left to go east on Dundas Street and out of view. Mr.

Cunningham called 911 and the vehicle he was travelling in moved to a position in front of and across the street from 3774 Oxford Street. [ 8 ] Approximately ten minutes later, RCMP members dealt with Mr. Cunningham and Mr. Sylvert at that location. Mr. Cunningham and Mr. Sylvert related to the police what each of them had just seen and heard. Several general duty Burnaby RCMP members attended the scene.

A search with the aid of a tracking dog discovered three handguns in bushes near the intersection of Esmond and Dundas Streets. [ 9 ] Members of the RCMP Emergency Response Team responsible for the Burnaby area learned of the incident over the police radio and, in due course, several members of that team attended the area of the incident.

Police activated emergency equipment on some police vehicles and also used call-outs from a loud-hailer in an attempt to have any people in 3774 Oxford Street come out of that residence. [ 10 ] At approximately 2:42 a.m., a woman exited the residence and was identified as the mother of the defendant Ms. Latham. Mrs. Latham told the police, inter alia , that she had not heard any gunshots and that she was concerned for the well-being of her daughter and her daughter's boyfriend, both of whom lived in the basement suite of the residence. The boyfriend was identified as Damion Ryan. Mrs.

Latham gave permission to the police to search the residence, but the police were of the collective opinion that the permission applied only to the two upper floors of the residence and not to the basement suite. [ 11 ] At approximately 3:38 a.m., RCMP members searched the two upper floors of the residence and nothing of significance was found. That search lasted approximately ten minutes.

Before and during the search of the upper floors, there was much discussion amongst all of the police as to what course of action they should follow. [ 12 ] At approximately 3:48 a.m., Constable Malone gave the order for the RCMP ERT members to enter the basement suite. That officer and others felt that exigent circumstances existed to justify the entry of the basement suite without a warrant. [ 13 ] Members of the Emergency Response Team forcibly entered the basement suite. In one of the two bedrooms in the suite, team members located three handguns and an assault rifle.

The actions of the team members that led to the discovery of those firearms is a critical issue relating to the admissibility of evidence in this case. [ 14 ] The residence was "cleared" by the Emergency Response Team members at approximately 3:56 a.m. on August 26th, 2010. The scene was then turned over to the general duty members of the Burnaby RCMP. [ 15 ] In due course, the police applied for a search warrant for the residence. That warrant was granted by a judicial justice of the peace and the warrant was executed by the police at the residence commencing at 1:14 p.m. on August 26, 2010.

The search lasted for several hours. [ 16 ] In the course of the search, numerous items were seized by the officers executing the search warrant. The firearms and ammunition that are enumerated in the charges in the Information were included in the items seized from the residence. Defence counsel have advanced several arguments as to why the seized items, particularly the firearms and ammunition, ought not to be admitted into evidence in this trial. [ 17 ] The Crown witnesses on the voir dire consisted of Mr. Richard Cunningham and ten RCMP officers. Larry Sylvert did not testify on the voir dire .

The police witnesses were either general duty members of the Burnaby RCMP or members of the RCMP Emergency Response Team (ERT) assigned to the Burnaby area. [ 18 ] The activities of the general duty members concerned the initial investigation of events related to 3774 Oxford Street and the execution of the search warrant at that residence.

The general duty RCMP officers that were involved in the initial investigation and testified on the voir dire were Corporal Tetreault, Constable Culic, and Corporal Perhar. [ 19 ] The Emergency Response Team members who testified on the voir dire were Corporal Koughan, Constable Malone, Corporal Elliott, and Constable Tennant. [ 20 ] The general duty officers who testified on the voir dire in relation to the obtaining and executing of the search warrant were Constable Sangha, Corporal Lew, and Constable Carwithen. [ 21 ] I will now review the evidence heard on the voir dire chronologically in relation to the events of August 26, 2010.

Mr. Richard Cunningham's evidence on the voir dire has been briefly referred to above. Mr. Cunningham stated several times in his evidence that he observed the three men in question running "from the house." That house, Mr. Cunningham testified, was on the south side of Oxford Street three houses west of Esmond Street. The house at that location is 3774 Oxford Street. [ 22 ] Mr. Cunningham testified that the vehicle he was in moved to a position in front of and across the street from the house from which he saw the three people running. Mr.

Cunningham testified that a few minutes after the vehicle he was in stopped on Oxford Street, RCMP members arrived and he gave them a report of what he saw and heard and that he pointed out to them the house and the

property from which he had observed the three people run. [ 23 ] In cross-examination, Mr. Cunningham agreed that he gave a statement to Constable Culic stating that it was the second house from Esmond and not the third house from which he had seen the people run. Mr. Cunningham testified that he "misspoke" in saying that to Constable Culic. Mr. Cunningham also testified to the event that it was "possible but highly unlikely" that the people he saw ran from the second house from the corner. [ 24 ] In re-examination, Mr.

Cunningham confirmed that when he first called 911 he told the operator it was the third house from which he had seen the people running. When further cross-examined on this issue, Mr. Cunningham agreed that he had first told the police he saw the three people "coming running out of the second house in," but that he later corrected that statement to refer to the third house. [ 25 ] As a result of Mr. Cunningham's 911 call, several Burnaby RCMP officers attended to the area of 3774 Oxford Street. It appears that Corporal Perhar was the first officer on scene arriving at 1:50 a.m.

Corporal Tetreault arrived a minute or two later and Constable Culic arrived just after that at approximately 1:53 a.m. [ 26 ] Corporal Perhar observed Mr. Cunningham and Mr. Sylvert near the Oxford Street residence and received a brief report from them. Corporal Perhar accompanied Constable Marleau, a dog handler, and that officer's police service dog as a search was conducted to the east of the subject residence and then south on Esmond Street. [ 27 ] Three handguns were located by the service dog in bushes near the intersection of Esmond and Dundas Streets. The guns were found between 2:07 and 2:26 a.m.

All three of the handguns were fully loaded. Corporal Perhar noted a smell of gunpowder from one of the handguns which indicated to him that the gun had been recently fired. Corporal Perhar secured the three handguns and formally turned them over to the custody of Constable Chan at 4:40 a.m. [ 28 ] Corporal Tetreault arrived in the 3700 block of Oxford Street and observed Corporal Perhar speaking to witnesses. Corporal Tetreault also spoke to a witness who on the evidence had to have been Mr. Cunningham and Mr. Cunningham told the officer what he had seen and heard which was essentially what was related by Mr.

Cunningham in his evidence on the voir dire . [ 29 ] Corporal Tetreault wanted to make sure which property was being referred to by Mr. Cunningham as the property from which he observed the three people run immediately after hearing the two gunshots. Corporal Tetreault shone his flashlight on the address of a house and Mr. Cunningham confirmed that that was the house or the property that was the subject of his observations. Corporal Tetreault testified that the address on the house was 3774 Oxford Street. [ 30 ] Corporal Tetreault was the general duty officer in charge of the scene.

He obtained a large body of information at the scene from Mr. Cunningham, Mr. Sylvert, Constable Culic, Corporal Perhar, and other sources. I will review that information later in this judgment. [ 31 ] Constable Culic arrived at the Oxford Street residence at 1:53 a.m. just minutes after Corporal Perhar and Corporal Tetreault. He spoke with Mr. Cunningham and Mr. Sylvert as to what they had seen and heard. Sometime later in the course of his investigation, Constable Culic spoke with Mrs. Latham who had exited the Oxford Street residence. Mrs.

Latham told the officer that her daughter, Theresa Latham, lived in the basement suite of the residence with her boyfriend, Damion Ryan. [ 32 ] Constable Culic also made inquiries about a vehicle parked in front of the residence and learned that it belonged to Theresa Latham. All of the information obtained by Constable Culic was shared with other police members at the scene. [ 33 ] At approximately 2:18 a.m. on August 26th, 2010, the RCMP Emergency Response Team responsible for the Burnaby area was called to the scene on Oxford Street.

As noted above, the members who attended and testified on the voir dire were Corporal Koughan, Constable Malone, Corporal Elliott, and Constable Tennant. [ 34 ] Constable Malone arrived on the scene at approximately 2:20 a.m. He learned of the reports of shots fired and people seen running from the area of 3774 Oxford Street and the recovery of guns by Corporal Perhar. At 2:42 a.m., Constable Malone spoke to Mrs. Latham. Mrs. Latham was also referred in the evidence as Mrs. Williams. Mrs. Latham told Constable Malone, inter alia , that she had not heard any gunshots.

She also told Constable Malone that her daughter and her daughter's boyfriend stayed downstairs, but she did not know if they were there at that time. [ 35 ] Mrs. Latham told the officer that she had yelled downstairs, but received no response and that she was unable to reach her daughter or the boyfriend by telephone. Constable Malone testified that Mrs. Latham was crying and expressed concern about the well- being of her daughter. Constable Malone asked Mrs. Latham if it was okay for the police to go in her home and look for people and Mrs.

Latham said, "No problem, go ahead." [ 36 ] Constable Malone testified that call-outs continued after he spoke to Mrs. Latham with no result. Constable Malone testified that at approximately 3:22 a.m., he was directed by Corporal Koughan to enter and search the residence. Constable Malone and members of his team searched the upper two floors of the residence and located nothing of consequence. [ 37 ] Shortly after that search, Constable Malone and other ERT members forcibly entered the basement suite of the Oxford Street residence.

The members that entered the suite were Constable Malone, Corporal Elliott, Constable Tennant, and Corporal Kuharsky. [ 38 ] Constable Malone was not precise in his evidence as to the time that certain events occurred. He did testify that the order from Corporal Koughan to clear the upper floors of the house was given at 3:22 a.m. and that those floors were secure at 3:36 a.m.

Constable Malone had a note of 3:38 a.m. that he thought might have been the time of the basement entry. [ 39 ] For reasons that follow below, I find from the evidence on the voir dire that the basement suite entry was made at approximately 3:48 a.m.

[ 40 ] Corporal Elliott and Constable Tennant gave extensive evidence as to their actions in the search of the basement suite. The critical aspect of their evidence involves the finding of three handguns and an assault rifle in a bedroom of the suite. I will refer to that bedroom as the "second bedroom." Later in this judgment, I will review in detail the evidence of Corporal Elliott and Constable Tennant relating to the search of the second bedroom. [ 41 ] Corporal Kuharsky was a member of the ERT team that searched the basement suite.

That officer did not testify on the voir dire and was not involved in the search of the second bedroom. [ 42 ] Corporal Koughan testified as to his activities as the team leader of the ERT team at the scene of the incident on Oxford Street. Corporal Koughan testified that he received the radio dispatch regarding the incident at 2:06 a.m. on August 26th, 2010, and attended the scene at 2:25 a.m. Corporal Koughan arranged for containment of the area around the residence. [ 43 ] The officer called his supervisor, Superintendent Debolt, and gave information about what was occurring.

Superintendent Debolt told Corporal Koughan to contain the residence and initiate call-outs, but that he did not think at that point "there was enough justification to enter the house." [ 44 ] As events progressed, Corporal Koughan obtained the various pieces of information that had been shared with all or most of the RCMP members present at the scene. Corporal Koughan learned that a woman had exited the home and had advised Constable Malone that her daughter and her daughter's boyfriend may be in the downstairs suite of the home.

Corporal Koughan passed on all information he had to Superintendent Debolt and the superintendent ordered that the residence of the woman be "cleared." [ 45 ] Corporal Koughan relayed that direction to Constable Malone who then entered the upstairs part of the residence at approximately 3:38 a.m. Corporal Koughan testified that he was informed by Constable Malone at 3:48 a.m. that entry had been made to the basement suite.

The search of the basement suite lasted only for approximately six minutes and, at approximately 3:56 a.m., control of the residence was turned over to the RCMP general duty members from the ERT members. [ 46 ] The evidence of the various police officers given on the voir dire differed as to the actual time of entry of the basement suite.

On this issue, I find the evidence of Corporal Koughan to be most reliable and I therefore find the time of entry to have been at approximately 3:48 a.m. on August 26th, 2010. [ 47 ] Constable Justin Sangha of the Burnaby RCMP was the officer assigned to apply for a search warrant for the Oxford Street residence. That assignment was made by Corporal Tetreault at the scene of the incident at approximately 3:45 a.m. on August 26th, 2010.

Constable Sangha had first attended the scene approximately 45 minutes earlier. [ 48 ] In order to obtain information for the search warrant, Constable Sangha spoke first with Corporal Tetreault and then with Corporal Elliott and Constable Tennant. Constable Sangha made notes of his conversations with the other officers to aid himself in preparing the Information to Obtain (ITO) for the search warrant. Constable Sangha then returned to the detachment where he waited for reports to be available through the police reporting system.

Constable Sangha received the reports of Corporal Koughan, Corporal Perhar, and Corporal Tetreault. Constable Sangha also spoke in person to Corporal Koughan and Constable Chan. [ 49 ] Constable Sangha prepared the ITO for approximately three hours from 7:30 a.m. to 10:30 a.m. He then attended at the office of the judicial justice of the peace and the search warrant was issued at approximately 11:40 a.m. Constable Sangha then returned to the residence to execute the warrant and that was formally commenced at 1:14 p.m.

Constable Sangha participated in the search of the basement suite of the residence and seized several items. [ 50 ] Constable Carwithen and Corporal Lew, both general duty members of the Burnaby RCMP, also testified on the voir dire as to their involvement in the search of the basement suite of the Oxford Street residence. Each officer located and seized several items that were enumerated in their evidence and are included in the exhibit flowchart entered as Exhibit A on the voir dire . [ 51 ] The exhibits entered on the voir dire are as follows: A. Exhibit Flowchart with diagram; B.

Booklets of photographs and index; C. Search Warrant and ITO; D. Photograph of residence and yard marked on by Richard Cunningham; E. Google map of 3774 Oxford Street; E1. Photocopy of Exhibit E with yellow marking; F. Admissions of fact regarding firearms and ammunition; F1. Certificates of analysis of firearms, magazines, and ammunition; G. Corporal Elliott's diagram of bedroom where guns found and location of guns from his notes; H. Photocopy of area showing incident scene and location of exhibits seized outside of 3774 Oxford Street; I. Original photographs taken by Corporal Perhar with index; J.

Enhanced photographs taken by Corporal Perhar;

K. Two photographs, one original photograph from Exhibit 41 and one photocopy of an original photograph from Exhibit 41; L. Written submission by counsel for the defendant Latham; M. Written submission by counsel for the defendant Ryan; N. Written submission by Crown counsel. The Legal Arguments [52] Counsel for the defence makes several submissions as to why the evidence obtained in the course of the police search of theOxford Street residence should not be admitted in the trial.

Both defence counsel submit that the initial entry of the basement suite of theresidence was unlawful and unreasonable because there were not exigent circumstances to justify the entry. [53] The defence also submits that the manner of the search of the basement suite went well beyond permissible legal limits in theevent the court finds the initial entry to be lawful.

The defence submits that the court should find that the search warrant issued by thejudicial justice of the peace ought not to have been issued because of inaccurate and misleading information that was in the Informationto Obtain the warrant. [54] The defence submits that the s. 8 Charter right of each defendant to be secure against unreasonable search or seizure wasbreached and that, in all the circumstances, the admission of the challenged evidence into the trial would bring the administration ofjustice into disrepute pursuant to s. 24(2) of the Charter. [55] Counsel for the Crown submits that the initial entry of the basement suite was lawful as being done in exigent circumstances.

The Crown submits that the manner of the police search of the basement suite was lawful in furtherance of the exigent-circumstancessearch. [56] The Crown submits that the search warrant executed by the police was lawfully issued and that any inaccuracies in the ITO canbe cured by application of the legal principle of amplification.

Finally, the Crown submits that if this court finds a breach of the s. 8Charter rights of the two defendants, it would not, in all the circumstances, bring the administration of justice into disrepute to admit thechallenged evidence into the trial. [57] All counsel have filed thorough written arguments on all issues enumerated above. Several case authorities are referred to in thewritten submissions. The written submissions have been filed as exhibits on the voir dire in order that there is a full and complete recordof all that is before this court.

The rulings that follow below have considered the full submissions of counsel without necessarilyreferring in detail to those submissions. The Lawfulness of the Police Entry to the Basement Suite of 3774 Oxford Street [58] A central and critical issue to be decided on this voir dire is whether the initial police entry to the basement suite of the OxfordStreet was lawful. As this entry was without a warrant, it was prima facie unreasonable and a breach of s. 8 of the Charter.

The onuslies on the Crown to show on the balance of probabilities that the entry was lawful. [59] An entry to a residence without warrant such as that involved in this case can be justified if the police entry is based upon thecommon law duty of the police to protect life and ensure public safety. This principle of law was established by the Supreme Court ofCanada in the case of R. v. Godoy, (SCC), [1999] 1 S.C.R. 311. [60] A recent judgment of the British Columbia Supreme Court addresses the principles of the Godoy case and how those principleshave been applied in various cases in British Columbia.

That recent judgment is R. v. Borecky, 2011 BCSC 1573, and the cases referredto in the judgment are R. v. Jamieson, 2002 BCCA 411; R. v. Brown, 2003 BCCA 141; R. v. Hill, 2006 BCCA 530; R. v. Wu, 2008BCCA 7; and R. v. Larson, 2011 BCCA 454. In Borecky, the court concluded that the entry into and the clearing of the residence inquestion was done in the reasonable execution of the police common law duty to protect life and preserve public safety. [61] In the case at bar, the decision to enter the basement suite was made by Constable Malone.

The reason for that decision in partwas Constable Malone's belief that an injured person could be in the suite in need of assistance. Constable Malone was clearly of theview that exigent circumstances existed to lawfully justify a forced entry of the suite by the police. [62] Strangely, Constable Malone did not have knowledge of at least two important pieces of information. First, he did not know thathis team leader, Superintendent Debolt, had effectively instructed the Emergency Response Team not to enter the basement suite. Second, Constable Malone was not aware of the criminal history of Mr.

Ryan who was associated to the suite. [63] It appears from Constable Malone's evidence that he understood Corporal Koughan's order to clear the house as applying to thewhole of the house and not just to the upper two floors. Corporal Koughan's evidence makes it clear that he intended to direct ConstableMalone only to clear the upper two floors and not the basement suite. [64] Another complicating factor involved in the entry to the basement suite is the view of the situation held by Corporal Tetreaultwho was the officer in charge of the general duty members.

Corporal Tetreault in his evidence, particularly at page 29 of the transcriptof November 3rd, 2011, makes it abundantly clear that he felt the police were obliged by duty to enter the basement suite. [65] However, it was not the general duty officers over whom Corporal Tetreault held authority that made the entry to the upperfloors or the basement suite of the residence. That entry was made by the ERT members led by Constable Malone. Constable Malone'sentry to the residence was at the direction of Corporal Koughan.

The voir dire evidence makes it clear that the decision to enter thebasement suite was made by Constable Malone alone.

[ 66 ] It is equally clear on the evidence that that decision was made on the basis of a misunderstanding of an order from Corporal Koughan. Corporal Koughan was clearly of the belief that the police had the legal grounds to enter the basement suite. That view, however, was not shared by his superior officer, Superintendent Debolt. [ 67 ] Mrs. Latham had given permission to search "the house," but it was not at all clear that that consent applied to the basement suite. All of the officers in charge of decision-making with regard to events at the Oxford Street residence were of the view that Mrs.

Latham's consent to enter and search did not apply to the basement suite because it was a separate dwelling. Superintendent Debolt, Corporal Koughan, and Corporal Tetreault all shared that view. [ 68 ] Superintendent Debolt instructed Corporal Koughan to enter and search only the upper floors of the residence pursuant to Mrs. Latham's consent. Thereafter, call-outs would continue and any decision to enter the basement suite would be reconsidered.

That course of action was acceptable to Corporal Koughan at the time. [ 69 ] Superintendent Debolt's directions were not precisely conveyed to Constable Malone by Corporal Koughan. Constable Malone understood that he was to search the whole of the residence. He testified that, "I was requested by the team leader to go and check the residence and ensure nobody was injured inside." (November 3rd, 2011, transcript page 48, line 5).

Constable Malone also testified that, "Corporal Koughan requested that I go and clear the residence." (November 3rd, 2011, transcript page 49, line 40). [ 70 ] I agree with the defence submission that so far as his actions were concerned, Constable Malone made no distinction between the upper floors and the basement suite of the residence.

Superintendent Debolt, Corporal Koughan, and Corporal Tetreault had all made that important distinction. [ 71 ] I am well satisfied that had Superintendent Debolt's instruction been clearly conveyed to and understood by Constable Malone, he would not have entered the basement suite when he did. He entered the suite because of a misunderstanding as to his orders.

One can only speculate as to what would have happened if entry was not made to the basement suite when it was, but one possible outcome was that the suite would not have been entered at all. [ 72 ] Clearly, Constable Malone believed that he could lawfully enter the suite, but he did not act on that belief. He acted on the misunderstood direction of Corporal Koughan.

Constable Malone's evidence as to why he believed he could lawfully enter the basement suite must be considered in light of the fact that he only entered the suite because he understood he had been ordered to do so by a superior officer. [ 73 ] The Crown position in this area seems to be that the basement suite entry was made in error, but was lawfully justified in any event. The court is then asked to evaluate the legality of a decision to enter a residence in alleged exigent circumstances when a decision to enter was made on the basis of a misunderstanding.

To resolve this issue, I look to the evidentiary burden that applies to it. That burden rests on the Crown to establish on the balance of probabilities that the entry was lawful. [ 74 ] On the unusual facts of this case, I am not satisfied on the balance of probabilities that the basement suite entry was lawful.

I reach this conclusion because it is not possible to properly evaluate Constable Malone's true thoughts regarding his right to enter the basement suite when he entered for reasons other than those considerations. [ 75 ] It follows that I find the police entry to the basement suite was a violation of the s. 8 Charter right of the two defendants to be secure against unreasonable search or seizure. The effect of that Charter breach upon the admissibility of seized evidence will be discussed below.

The Manner of the Search of the Basement Suite [ 76 ] In my opinion, it is necessary for this court to rule upon the reasonableness or lawfulness of the manner of the search of the basement suite of the Oxford Street residence. Such a ruling is necessary to properly address all considerations relevant to s. 24(2) of the Charter . The ruling may also be useful for appellate purposes. Had the entry to the basement suite been justified, the actions of the police in the suite cannot exceed their powers associated with their duty. [ 77 ] In the recent case of R. v. Batanov , 2011 BCSC 1749 , Mr.

Justice Joyce at paragraph 48 commented about those powers as follows: Their powers are limited to those required to ensure public safety. They do not have the power, without a warrant, to conduct a search for evidence or otherwise conduct an investigation, within the Residence, into an offence [ Godoy ; Jamieson ; Larson .] [ 78 ] It is this principle of law that will be applied in the subject case to assess the lawfulness of the search of the basement suite. In the subject case, the clear purpose for the police entry was to look for an injured person.

It is my ruling in this case that if the police entry to the suite had been lawful, the search that followed would only be lawful and reasonable if it was in furtherance of that purpose. The analysis that follows below assumes, contrary to my finding made above, that the police entry to the suite was lawful. [ 79 ] On the basis of that assumption, the police clearly were entitled to look anywhere in the suite where an injured person could be. The law also permits the police in an exigent-circumstances search to make note of anything illegal that is in plain view.

In the subject case, Crown counsel has submitted that the police were lawfully entitled to look for hidden weapons when searching the basement suite. [ 80 ] With respect, I cannot accept that submission. To permit that type of activity would be tantamount to allowing a search for evidence and/or the conduct of an investigation.

That action by the police is not permitted at law in the course of an exigent- circumstances search to look for injured persons. [ 81 ] All of the evidence found by the police in the course of the alleged exigent search that is material to this case was found in the second bedroom by Corporal Elliott and Constable Tennant. That evidence consisted of three handguns and one assault rifle. The discovery of those items was reported to Constable Sangha by Corporal Elliott and Constable Tennant. That information was then used

by Constable Sangha to prepare the ITO that led to a judicial justice of the peace issuing a search warrant for the Oxford Street residence. [ 82 ] I will now address the evidence of Corporal Elliott and Constable Tennant that relates to the search of the second bedroom. The evidence of the officers differed as to the lighting in the room. Corporal Elliott testified that the lights were off and he used the light on his gun to illuminate the room. (November 2nd, 2011, transcript page 3, line 7).

Constable Tennant testified that the lights in the room were on. [ 83 ] Corporal Elliott testified that he searched the right side of the room. Constable Tennant testified that he searched the right side of the room and that Corporal Elliott searched the left side. Constable Tennant located the first firearm that, in fact, was a Taurus handgun, but was referred to in the evidence as a "Sig Sauer" handgun. I will refer to this firearm as handgun number 1. [ 84 ] Constable Tennant found that gun on the right side of the bed. At first he testified that the handgun was in plain view on the ledge beside the bed.

The bed and the ledge are shown in photograph number 46 of Exhibit B. In cross-examination, Constable Tennant acknowledged that his note stated that the gun was on the floor on the right side of the bed. [ 85 ] Further in cross-examination, Constable Tennant was asked, "And there is one handgun on the right side of the bedroom on the floor, right," and he answered, "We believe so, yes. I think we went over that with the other defence about whether it was on the ledge or the pillow and I don't recall." (November 2nd, 2011, transcript page 81, line 20).

Constable Tennant's evidence makes it clear that he does not recall precisely where and how he discovered handgun number 1. [ 86 ] I am well satisfied beyond the balance of probabilities that handgun number 1 was found by Constable Tennant on the floor in the small space between the right side of the mattress and the wall.

If nothing was covering that handgun, it still could only be seen by Constable Tennant positioning himself in an awkward manner to look in the small space. [ 87 ] Constable Tennant agreed in his evidence that a gun on the floor to the right of the bed would not be in "plain view." (November 2nd, 2011, transcript page 63, line 27). The officer also agreed that there was no possibility for a person to be in the space between the mattress and the wall to the right of the mattress because that space was so small.

But there is even more uncertainty in the voir dire evidence relating to the handgun I have designated as handgun number 1 apart from whether it was seen on the floor or on a pillow or on a ledge. [ 88 ] Constable Sangha testified as to the information he received from Constable Tennant as to the finding of the handguns. Constable Sangha testified that Constable Tennant told him that one of the firearms (handguns) was located under a blanket. Constable Sangha knew that three handguns had been found in total, but through an error, he only referred to two of them in his ITO.

He was cross- examined by defence counsel about the "third gun," which is the handgun I have referred to as handgun number 1. [ 89 ] Constable Sangha testified that that gun "may have been the one that was under the blanket." (November 15th, 2011, transcript page 14, line 43). Similarly when asked about this handgun by defence counsel, Corporal Elliott gave this evidence: Q Could it have been under something? A I can't remember. I don't -- I don't think it was, but it could have been.

I don't know. (November 2nd, 2011, transcript page 8, line 2). [ 90 ] I conclude that the evidence on the voir dire does not establish on the balance of probabilities that the handgun I have designated as handgun number 1 was not covered before it was discovered. [ 91 ] I turn now to consider the discovery of the two handguns on the left side of the mattress. Corporal Elliott recalled that those two handguns were initially located by Constable Tennant. (November 1st, 2011, transcript page 38, line 42).

However, by considering the notes of Corporal Elliott and the evidence of Constable Tennant, I conclude that those two handguns were initially located by Corporal Elliott. One of the handguns was a Heckler & Koch with a silver barrel. I will refer to that item as handgun number 2. The other handgun located on the left side of the mattress was a Glock.

I will refer to it as handgun number 3. [ 92 ] From the whole of Corporal Elliott's evidence on the voir dire , I conclude beyond the balance of probabilities that handguns 2 and 3 were discovered by Corporal Elliott moving a large stuffed animal and finding the guns that were under that item. [ 93 ] This conclusion flows from the cross-examination of Corporal Elliott as to his notes of the discovery of the two handguns including a diagram he prepared related to the discovery. The diagram is Exhibit G on the voir dire .

Those two handguns may also have been covered by a blanket as has been submitted in the written argument, Exhibit M, on the voir dire made by counsel on behalf of Mr. Ryan. [ 94 ] From the above, I conclude at least on the balance of probabilities that none of the three handguns was in plain view when Corporal Elliott and Constable Tennant entered the second bedroom. I conclude that handguns 2 and 3 were covered at least by a large stuffed animal and perhaps by a blanket, as well.

For reasons stated above, I do not find on the balance of probabilities from the evidence on the voir dire that handgun number 1 was not covered with a blanket or other item before being discovered by Constable Tennant.

Constable Sangha was very clear in his evidence that he was advised by Corporal Elliott and Constable Tennant that the handguns located in the second bedroom were in "plain view." That was simply not the case. [ 95 ] I turn now to consider the discovery of the SKS rifle described in the evidence as an "AK-47." The rifle was discovered by the police lifting the mattress in the second bedroom and seeing the rifle. The mattress is perhaps best shown in photograph number 46 of Exhibit B. [ 96 ] There is uncertainty as to who lifted the mattress to discover the rifle.

Corporal Elliott testified that he lifted the mattress. Constable Tennant could not recall who lifted the mattress. The ITO states that Constable Tennant lifted the mattress. Whoever lifted

the mattress testified that he did so to look for an injured person. So the uncertainty of the evidence on this point may not be of greatmoment except to add to the general uncertainty of what actually occurred in the course of the search of the second bedroom. [97] The critical issue regarding the lifting of the mattress is the reasonableness of that act to look for an injured person. In myopinion, it was not reasonable to believe that a person injured or otherwise could have been under the mattress. There was no lump in themattress and it had the appearance of being used as a normal bed.

The only way a person could have been under the mattress was if themattress had been hollowed out. That possibility in this case was so remote as to be unreasonable, in my opinion. [98] The evidence of Corporal Elliott and Constable Tennant as to a person possibly being under the mattress is suspect, in my view. Ireach this conclusion in large part because of the strange statement in paragraph 2.6 of the ITO which is part of Exhibit C on the voirdire.

That statement refers to the mattress in the second bedroom and reads as follows: The bed was a platform-style bed without a box spring mattress so it was possible for a person to fit between the platform slats and themattress. [99] I find it extraordinary that this statement came to be included in the ITO. It is completely inaccurate. Constable Sangha testifiedthat the information he obtained about the bed or the mattress came from Corporal Elliott and Constable Tennant.

I conclude that theinformation given to Constable Sangha by Corporal Elliott and Constable Tennant about the mattress was incorrect and misleading. [100] Furthermore, this issue was more clouded by Corporal Elliott in his evidence referring to the mattress as a "box spring." Incross-examination, the officer acknowledged that that was an error and he testified, "I must have had it confused with a different house." (November 2nd, 2011, transcript page 26, line 29). [101] The collective police evidence about the nature of the mattress seriously undermines the evidence of Corporal Elliott andConstable Tennant as to their belief that a person could be under the mattress.

I conclude on the voir dire evidence that it was notsubjectively or objectively reasonable for the police to believe that a body or a person could be under the particular mattress involved inthis case. [102] It follows from the above analysis that the Crown has not established on the balance of probabilities that any of the four firearmsfound in the second bedroom was lawfully discovered in the course of an exigent-circumstances search as either being in plain view orincidentally exposed to plain view in the course of a lawful and reasonable search. [103] In reaching this conclusion, I find the evidence of Corporal Elliott and Constable Tennant to be unreliable on the material issuesrelated to the search of the second bedroom.

Although this finding would appear to be critical of those two officers, it is not intended tobe. I will comment further on this issue later in this judgment. [104] From the above determinations, assuming the entry of the basement was lawful, I conclude that the police search of that suiteexceeded their lawful duties and was unlawful and unreasonable. If that search had been done in a lawful and reasonable manner, noneof the firearms discovered in the second bedroom would have been discovered. [105] The police search of the second bedroom amounted to a search for evidence and the conduct of an investigation.

I find that themanner of the police search of the basement suite was a violation of the s. 8 Charter right of each of the two defendants to be secureagainst unreasonable search or seizure. The Validity of the Search Warrant [106] The search warrant involved in this case is part of Exhibit C on the voir dire. The warrant was issued on the basis ofinformation provided to the judicial justice of the peace by Constable Sangha. That information related to the observations of CorporalElliott and Constable Tennant made in the second bedroom of the basement suite.

Those observations are set out in paragraph 2.6 of theITO. [107] It is the submission of counsel on behalf of Mr. Ryan, adopted by counsel on behalf of Ms. Latham, that the court's finding thatthe search of the second bedroom was unlawful and an infringement of s. 8 of the Charter should result in the excision of paragraph 2.6and the related paragraph 3.3 from the ITO, with the result that no basis would remain for the issuance of the warrant. [108] This submission is based upon the rulings of the Supreme Court of Canada in the case of R. v. Araujo, 2000 SCC 65 ,[2000] S.C.J.

No. 65, at paragraphs 51 to 59 inclusive. (It should be noted that the ITO had two paragraphs numbered 3.3. The defencesubmission refers to the first of those that begins with the words, "On the 26th of August, 2010.") I accept the defence submission thatparagraphs 2.6 and 3.3 should be excised from the ITO for the reasons advanced by the defence. [109] Both counsel for the defence also submit that paragraph 2.6 should be excised from the ITO because its contents misled thejudicial justice of the peace (the JJP).

In this regard, it is submitted that the JJP was misled as to the location of the handguns and themanner of the search. It is submitted that the statements in the ITO left the impression that the handguns were in plain view when theywere not. [110] It is also submitted that the erroneous description in the ITO of the mattress left the impression that it was reasonable for thepolice to look under the mattress for an injured person. That impression was clearly false.

The defence submits that the misleadinginformation in the ITO resulted in the JJP being misled on material facts. [111] It is submitted that the misleading information should be excised from the ITO leaving no basis for the search warrant to beissued. The Araujo case as well as the case of R. v. Morelli, 2010 SCC 8 , [2010] S.C.J. No. 8, were cited in support of thissubmission.

It has been set out in some detail in this judgment as to the body of inaccurate information that found its way into the ITO. [112] In the case at bar, counsel for the Crown submits that certain portions of the evidence heard on the voir dire can be used as

amplification to correct any errors or shortcomings in the ITO. This submission is countered by defence counsel referring to the Araujocase and submitting that amplification cannot be used as "a means of circumventing a prior authorization requirement." [113] It is my opinion and finding in this case that the errors in the ITO were very serious and misled the JJP as to the true state ofaffairs, particularly as to the circumstances of the locating of the three handguns and as to the nature of the bed or mattress.

Had the truestate of affairs been presented to the JJP, it is my opinion that the search warrant should not have been issued. [114] In my opinion, the principle of amplification cannot be applied in this case to render the search warrant valid. I rule that thesearch warrant was not lawfully issued. This finding is another aspect of the breach of the s. 8 Charter right of the defendants.

Section 24(2) Analysis [115] I have found above that the s. 8 Charter rights of the two defendants were breached by the police conduct in entering thebasement suite in question and in the manner in which the search was conducted thereafter.

I have also found that the search warrant thatwas the basis for the complete search of the basement suite should not have been issued and therefore that search also violated thedefendants' s. 8 Charter rights. [116] Pursuant to s. 24(2) of the Charter, the court must decide if the admission of the seized evidence into the trial would bring theadministration of justice into disrepute. The onus is on the applicant, in this case, each of the defendants, to establish the grounds forexcluding the evidence. [117] The Supreme Court of Canada case of R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, establishes the threeconsiderations that apply when considering s. 24(2) of the Charter. Those considerations are the seriousness of the state conductresulting in the Charter breach, the impact of the breach on the Charter-protected interests of the accused, and society's interest inadjudication of the case on its merits. [118] In the case at bar, I have found that the police exceeded their powers both in entering the basement suite in question and in themanner in which they searched the suite thereafter.

The seriousness of the police conduct in entering the suite is difficult to assess. [119] I have concluded above that the entry by Constable Malone occurred because of a miscommunication between himself andCorporal Koughan. Corporal Koughan did not advise Constable Malone that Superintendent Debolt had directed that the basement suitenot be entered.

After the search of the upper two floors of the residence was completed at approximately 3:48 a.m., the police had beenat the scene of the 911 call for almost two hours. [120] All of the members of the ERT squad who testified on the voir dire were of the view that they could lawfully enter the basementsuite due to the presence of exigent circumstances. Corporal Tetreault, the officer in charge of the general duty members, was of thesame opinion.

However, the most senior officer involved in the matter, namely, Superintendent Debolt, was of the view that there werenot sufficient grounds to enter the basement suite without a warrant. [121] The police entry of the basement suite by the ERT members was contrary to the direction of Superintendent Debolt who was theofficer in charge of that team. The situation was further complicated by Corporal Tetreault's opinion that entry had to be made.

On thatissue, the officer testified as follows: After the loud-hailing, I felt it strongly that it was time to go in and I remember speaking with the ERT commander after he had spokenwith Debolt where he had received his orders that he was not going to be entering the basement suite. I said that then -- then general dutymembers would be entering the basement suite to ensure the safety of those people. (November 3rd, 2011, transcript page 29, line 6). [122] Corporal Tetreault testified that this assessment of the situation was made at approximately 3:00 a.m. after he had been at thescene for more than one hour.

In his evidence, Corporal Tetreault set out in detail why he held the opinion he did. Corporal Tetreault,directly or indirectly, received all relevant information regarding the situation at the Oxford Street residence. In his evidence, the officerreferred to that information at some length (see pages 8 and 9 of November 3rd, 2011, transcript). [123] He had the information from Mr. Cunningham as to what he saw and heard. The officer confirmed with Mr. Cunningham whathouse or property was involved. Corporal Tetreault knew of the guns recovered by Corporal Perhar.

Corporal Tetreault was fullyinformed of all information given to the police by Mrs. Latham. Corporal Tetreault referred to Mrs. Latham as Mrs. Williams. Theofficer obtained information from police sources as to the criminal background of Mr. Ryan. [124] After compiling all of that information, Corporal Tetreault concluded that: We deemed it exigent circumstances to enter the house to make sure that no one was injured and that we could perhaps help save theirlife. [125] I found the evidence of Corporal Tetreault to be very compelling.

It is my opinion and ruling that, subjectively and objectively,he had lawful grounds to forcibly enter the basement suite in exigent circumstances. But that did not occur because of the two chains ofcommand involved in the police operation. Corporal Tetreault had formed his opinion by 3:00 a.m. on the morning in question. ERTmembers entered the basement suite at 3:48 a.m.

So Corporal Tetreault did not act during that period on his belief that the general dutymembers should enter the basement suite. [126] The suite was entered by the ERT members at 3:48 a.m. as a result of a misunderstanding of orders from the team commander,Superintendent Debolt. One can only speculate as to what would have happened if those orders had been accurately passed on toConstable Malone. It is very unlikely that Constable Malone would have disobeyed the order.

If the ERT squad had not entered thebasement suite, Corporal Tetreault would have had to decide if he would order entry contrary to the order of his superior officer in adifferent

section of the RCMP.

[ 127 ] Considering all of this, it is at least possible that the suite would not have been entered when it was and, if that had occurred, developing circumstances may have resulted in the suite not being entered at all. My conclusion on the strange facts of this case is that the general duty RCMP members had lawful authority to enter the basement suite, but did not do so, and that the ERT members who did enter the suite did so unlawfully because of a lack of subjective grounds due to miscommunication. [ 128 ] The unlawful forced entry of a dwelling house by police is a very serious matter.

In the subject case, the police conduct is less serious because of my findings as to what Corporal Tetreault could have done if events had occurred differently than they did. Nevertheless, the entry was unlawful and the police collectively did not take care to properly make the decision to enter.

As noted above, had that been done, the entry may not have happened. [ 129 ] From all of the above, I conclude that the police conduct in entering the basement suite should be characterized as being quite serious as it relates to the breach of the s. 8 Charter rights of the defendants. [ 130 ] I turn now to consider the effect of the nature of the search of the basement suite on the s. 24(2) Charter considerations.

I have found above that the search of the second bedroom in the basement suite by Corporal Elliott and Constable Tennant was unlawful and unreasonable as going beyond the legally permissible limits of a warrantless search in alleged exigent circumstances. It is very understandable in the heat of the moment why the officers conducted the search as they did. They were acting in an emotionally charged situation without knowing what to expect. [ 131 ] This case offered an unusual insight into the operations of a unit of the RCMP Emergency Response Team.

I was very impressed by the professionalism of the four ERT members who testified on the voir dire , that is, Corporal Koughan, Corporal Elliott, Constable Malone, and Constable Tennant. In my opinion, the public is very well served by having such capable officers assigned to the Lower Mainland ERT unit. [ 132 ] The subject case demonstrates, however, how difficult it is for an emergency responder to also act as an observer or collector of evidence.

It is the conflict between the performance of those two functions that, in my opinion, has resulted in my findings as to the unreliability of evidence concerning the search of the second bedroom. Those findings are not meant to be critical of Corporal Elliott and Constable Tennant.

My findings are simply the reality of what happened in the course of the search. [ 133 ] Even though the manner of the search of the second bedroom is understandable as to why it occurred as it did, I still conclude that the police action in conducting the search amounted to a very serious violation of the s. 8 Charter rights of the defendants.

The police actions went beyond their lawful powers in conducting the search for injured persons in exigent circumstances. [ 134 ] So far as the issue of good faith of the police is concerned in relation to the s. 24(2) analysis, my conclusion is that this is a neutral consideration. On the one hand, I find that all of the police officers who testified on the voir dire to the effect that they believed they could and should enter the basement suite were honest in holding that opinion. [ 135 ] On the other hand, the actual entry to the suite was done carelessly resulting in my finding that it was unlawful.

Moreover, the manner of the search of the second bedroom and the inaccurate information that came to be in the ITO for the search warrant were areas of serious collective carelessness by the police officers involved. Those actions cannot be characterized as being done in good faith, in my opinion. [ 136 ] I turn now to consider the impact of the breach of the Charter -protected interests of the two accused. Here I adopt the reasoning of Mr. Justice Joyce in the Batanov case.

At paragraph 62 of that judgment, His Lordship made this statement concerning the privacy interests of a person in relation to his home: Those privacy interests are entitled to the utmost protection. In my view, the court must guard against the notion that once the police are lawfully inside a person’s home unlawful searches conducted by them will be viewed as a minimal intrusion into protected privacy interests.

Godoy and similar cases stress the importance of maintaining clear limits on the extent of the police powers flowing from the duty to preserve public safety. [ 137 ] In my opinion, the comments quoted above apply to this case, especially in view of how the search of the second bedroom was conducted. [ 138 ] I turn now to address the issue of society's interest in the adjudication of cases on their merits. The subject case involves allegations of unlawful possession of loaded handguns and unlawful possession of other firearms and ammunition.

The charges are serious and I must say that there is a strong societal interest in having them decided on their merits. [ 139 ] The ultimate question to be decided by the court is whether, in all the circumstances and by applying the considerations set out in the Grant case, the admission of the evidence would bring the administration of justice into disrepute. At paragraph 68 of the Grant case, the court said this: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system.

Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. [ 140 ] This case involves the extent of the police powers to enter a dwelling house in exigent circumstances without a warrant. Such an entry is an infringement of the privacy interests of the owners or occupants of the dwelling house of the highest order.

The law, however, permits such an entry in appropriate circumstances and, as a balance, seriously limits the powers of the police in the course of a search in furtherance of the reason for the entry. In the case at bar, the police action went far beyond permissible legal limits in the conduct of the search. [ 141 ] Upon a consideration of all the factors related to s. 24(2) of the Charter as they apply to this case, I conclude that the long-term

repute of the justice system is better served by the exclusion of the challenged evidence. Therefore, I rule that all of the evidence seized from the Oxford Street residence in the course of the execution of the search warrant is not admissible in this trial. [ 142 ] I wish to express my thanks and compliments to all counsel for their able submissions on the legal issues involved in this ruling. Those submissions were of great assistance to the court in deciding the many interesting and challenging issues involved in this case. That concludes the court's ruling on the voir dire . [ 143 ] Now, Ms.

Murphy, you have just had seconds to digest the court's ruling. Do you know what course of action you wish to take at this time? [ 144 ] MS. MURPHY: Well, Your Honour, in view of your judgment, I will be directing a stay of proceedings on all counts in the indictment. [ 145 ] THE COURT: All right. Do either counsel for the defence wish to say anything about that? I do believe that course of action still preserves the Crown's appellate rights so that is all I have to say about that. Ms. Lewis, is there anything you wish to say about the Crown's direction? [ 146 ] MS.

LEWIS: No, Your Honour, that is certainly in her hands if that is how she wishes to address it. [ 147 ] THE COURT: All right. Mr. Buck, is there anything you wish to say? [ 148 ] MR.

BUCK: No, Your Honour. [ 149 ] THE COURT: All right. [SUBMISSIONS RE FORFEITURE ORDER] [ 150 ] THE COURT: Very well, perhaps the order could be then, that all of the firearms, magazines, and ammunition referred to in the exhibit flowchart -- just one moment, please; I will look at that, which is Exhibit A. [ 151 ] The proposed order then would be this, that I order forfeiture pursuant to s. 490(9) of the Criminal Code of all firearms, magazines, and ammunition referred to in the exhibit flowchart, Exhibit A on the voir dire , and that this order will not take effect during the appeal period of 30 days and, if an appeal of the court's ruling is launched within that time, the order will not take effect until the outcome of that appeal. [ 152 ] Is the order made in that fashion agreeable, Ms.

Murphy? [ 153 ] MS. MURPHY: Yes, please, Your Honour, thank you. [ 154 ] THE COURT: All right. That will be the order. Is there anything further, then, with regards to the Information before the court that was for trial, Ms. Murphy? [ 155 ] MS. MURPHY: No, Your Honour, but I should just mention that number 3 on your list, the companion Information, I will be directing a stay of proceedings on that, as well. [ 156 ] THE COURT: All right. So noted. That deals with all matters on the court list this morning, and concludes this case. [ 157 ] Mr. Ryan is in custody on this matter.

If he is not being held on any other matters, he is to be released forthwith. [RULING ON VOIR DIRE AND REASONS FOR JUDGMENT CONCLUDED]