R. v. J.U., 2023 ONCJ 441

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.U., 2023 ONCJ 441 DATE: September 20, 2023 COURT FILE No: 22-0369; 22-37200011 O N T A R I O C O U R T OF J U S T I C E B E T W E E N: HIS MAJESTY THE KING -AND- J.U.

Before Justice M. G. March Heard on July 24, 2023 Reasons for Decision regarding Alleged Breach of the Accused’s Rights under Sections 8 of Canadian Charter of Rights and Freedoms (“the Charter ”) and Seeking Exclusion of Evidence under Subsection 24(2) of the Charter Released on September 20, 2023 Mr. Conor Kyte………………...…….…………………...……………Counsel for the Crown Mr. James Coulter…….……………………………………………...Counsel for the Accused March, M.G., J.: INTRODUCTION 1 . J.U. stands charged that on March 17, 2022, in the Township of Whitewater, Ontario, he did:

a) without lawful excuse, store a firearm (sic), to wit: shotguns in a careless manner contrary to section 86(1) of the Criminal Code (“the Code ”), and

b) without lawful excuse, store a firearm (sic), to wit: rifles in a careless manner contrary to section 86 (1) of the Code . 2 . As will be seen upon a review of the relevant evidence below, I do not understand why J.U. was charged with two separate offences when it is the same delict which the Crown is alleging was committed by the accused. I suspect this is yet another case of ‘overcharging’, which is an all too common and bothersome police practice in Renfrew County. 3 .

J.U. also faces other charges of a violent and sexual nature allegedly perpetrated upon his wife, A.U., but they are unrelated to this hearing into whether J.U.’s rights to be secure against unreasonable search and seizure under

section 8 of the Charter were infringed or not. Those charges remain for trial on future dates set by this Court. THE RELEVANT EVIDENCE Cst. Redden : 4 . When Cst. Redden testified on July 24, 2023, he had been a member of the Ontario Provincial Police (“OPP”) for just under two years. It was his first occasion giving evidence in Court. 5 . He recalled that he had been on duty on March 17, 2022, with Cst. O’Connor and Acting Sgt. Bennett. Just after 4 p.m. that day, he learned of an alleged domestic dispute. He contacted the complainant, A.U., by telephone shortly thereafter. 6 .

At 4:50 p.m., Constable O’Connor and he attended at A.U.’s residence. She invited the police officers inside and showed them around. She explained that her husband, J.U., and she were estranged and sleeping in separate bedrooms. 7 . She opened the door to a room, which Constable Redden understood not to be hers, where a large quantity of firearms was stored underneath a bed. She retrieved one and set it on top of the bed. The officers asked her not to touch them anymore. 8 . Constable Redden could see that the firearms had been unsafely stored. They did not have trigger locks.

In his view, they could have been loaded and fired in a “split second”. 9 . A.U. told police that her spouse, J.U., had recently said to her, “If you try to take my kids, I have no problem putting a bullet in you”. She also expressed additional safety concerns to police based on a history of recent events. 10 . Further, A.U. informed the officers about the presence of firearms upstairs. The officers followed her up to see. Roughly 10 to 15 feet from the landing at the top of the stairs in a 10’ x 10’ open area, the officers discovered two-gun safes, one green, one black, both of which were unlocked.

The green one was slightly ajar. Constable Redden could see that there were firearms inside without trigger locks,

and thus, they were unsafely stored. 11 . Constable Redden was unsure whether Constable O’Connor or A.U. opened the black gun safe. 12 . Constable Redden explained that it was not until 5:17 p.m. following the arrest of the accused, J.U., after he arrived home that any of the guns were seized by police. 13 . Earlier, Constable Redden recalled, at the suggestion of Acting Sgt. Bennett, that Constable O’Connor and he entered a detached garage where they could hear music playing. The main door to the garage was left open and the lights were on inside. The officers were, at that point, still looking for J.U. 14 .

From the doorway, “in plain view”, Constable Redden could see a few more firearms without trigger locks. They were hanging on a back wall. Around 5:30 p.m., those guns were seized as well. 15 . In the basement area of the home laying on the cement floor, Constable Redden also located and seized a crossbow. 16 . Under cross-examination, Constable Redden agreed that he learned during his police training that caution must be taken by officers entering onto private property. The police must abide by the Charter . 17 .

However, Constable Redden believed that if police were permitted by an owner or occupier to enter a residence, they could go in. He believed that Constable O’Connor and he were entitled to search anywhere within the home they wished with the permission of its owner or occupier. On that basis, Constable Redden accompanied A.U. to wherever she wished to bring the officers. 18 . Constable Redden offered that police were gathering information and investigating.

He reckoned that Constable O’Connor and he knew that the weapons A.U. was showing them belonged to J.U., some of which had been observed in his private room behind a closed door. 19 . As a basic premise, Constable Redden accepted that A.U. could not waive J.U.’s Charter rights. Equally, he acknowledged that if A.U. told police to do something, they would not necessarily have to do it. 20 . Constable Redden maintained that due to “exigent circumstances”, police had the authority to search for the weapons and to seize them.

He confirmed that he did not note in his duty book the words, “exigent”, “safety” or “emergency”. Nevertheless, it was this very concern police had for A.U.’s safety which caused them to seize J.U.’s weapons. 21 . Constable Redden conceded that A.U. did not grant permission for police to enter the garage. Rather, police went inside to look for J.U. whose whereabouts were unknown at that time. It was not until J.U. was seen by police returning to his home in his pickup truck that the officers knew he had not been anywhere on his property after they attended on scene. 22 .

The officers, Constable Redden explained, had already been in the garage by the time J.U. arrived home. 23 . Constable Redden could not recall whether A.U. informed police about the presence of a crossbow in the basement. Cst. O’Connor : 24 . When Constable O’Connor testified on June 1, 2023, he had been a police officer with the OPP for almost eight years. He estimated that he had been so employed for some 6 ½ years on the day in question, March 17, 2022. 25 .

At 2:54 p.m. that day, Constable O’Connor was contacted by a colleague from another detachment, Constable Ricci, about a concerning utterance that had been made to her friend, the mother of A.U., which perhaps constituted a threat. Consequently, Constable O’Connor felt it was incumbent upon him to investigate whether a criminal offence had been committed. 26 . The words spoken, Constable O’Connor related, were to the effect of “putting a bullet” in someone. Constable O’Connor passed this information along to Constable Redden, who, in turn, contacted A.U. 27 .

At 4:15 p.m., Constable O’Connor and Constable Redden attended at the residence of A.U. She came to the front door to meet the officers. She was packing up her things. It looked to Constable O’Connor as though she were intending to leave. 28 . Before doing so, A.U. took the officers inside the house and began telling them about the presence of firearms. She took police down a hallway to a bedroom on the right and pointed out a variety of guns within. Constable O’Connor was not certain but believed that A.U. told him that the bedroom was where J.U. was staying. 29 .

Constable O’Connor surmised that A.U. and J.U. were in the process of separating but living under the same roof. 30 . When questioned about whether it was OPP policy for police to seize firearms where domestic violence was alleged, Constable O’Connor offered that he could not say if it was policy, but with respect to “domestics”, it was a common practice for police to seize firearms. 31 . Constable O’Connor went on to explain that his worry was that J.U. would be free to return home at any point and accesses his firearms if police took no immediate action.

Accordingly, Constable O’Connor felt that “exigent circumstances” existed to seize J.U.’s weapons. 32 . Constable O’Connor related that A.U. also told police about the location of guns upstairs. He could not recall whether she accompanied police to where they were situated, but she advised of the presence of cabinets at the top of the stairs to the second floor of the home.

33 . When Constable O’Connor arrived there at a landing near the top of the stairs, he saw two-gun lockers, one green in colour, the other black. He did not believe either one was locked, although the black one did have keys left in its lock. He could not recall whether police could see inside the green one. 34 . In giving his evidence, Constable O’Connor was clear - the firearms would be seized. There would be additional work, quite “labour intensive”, for police to record the particulars of which items were being seized. 35 .

He specifically remembered that 6 long guns were located inside the black cabinet, 7 inside the green one and 7 under the bed. None of the firearms had trigger locks. They were not properly stored. 36 . Constable O’Connor explained that Acting Sgt. Bennett later arrived on scene. The Sergeant asked if the garage had been “checked”. It had not. As a result, Constable Redden and he did so. 37 . Constable O’Connor could not recall whether he called out for J.U. before entering the garage; however, it was customary for him to do so. 38 .

On the wall inside the garage, Constable O’Connor noticed on a rack in plain sight 3 long guns which had not been secured, nor rendered inoperable. A further firearm was found in a soft case. Constable O’Connor believed that the weapons could be seen from the doorway of the garage. 39 . Candidly, Constable O’Connor testified that he did not seek a search warrant to seize the firearms and crossbow out of his concern for the possibility that J.U. was free to return home imminently, and he would then have access to his weapons. 40 .

Constable O’Connor understood that J.U. had a valid Possession Acquisition Licence for his weaponry. 41 . When J.U. arrived on scene in his truck at 5:16 p.m., he exited and walked towards the police officers. He was immediately arrested for sexual assault and careless storage of his firearms. 42 . Constable O’Connor later dealt with J.U. at the OPP detachment in Renfrew. He released the accused on an Undertaking, to which several conditions applied. One of the conditions, Constable O’Connor believed, permitted J.U. to have his firearms go to a named, third party, D.W. 43 .

Under cross-examination, Constable O’Connor acknowledged that in fact, it never crossed his mind to seek a search warrant for the seizure of the weapons located inside A.U.’s and J.U.’s home. To Constable O’Connor’s mind, the knowledge police gained of the manner in which the firearms were stored, coupled with what A.U. told police about her recent interactions with J.U., a pressing, public safety issue had arisen. As Constable O’Connor reiterated, once J.U. returned home, he would have access to his firearms. 44 .

Constable O’Connor conceded, however, that so long as police were on scene on the day in question, there was no exigency, but he ventured that police cannot be expected to stay indefinitely. The task of obtaining a search warrant would be “time-consuming”. 45 . Although Constable O’Connor was aware of the option of applying for a telewarrant, he did not believe there was a need to do so because of the exigent circumstances prevailing at the time. He reemphasized again - once police were gone, if the weapons were left within the home, exigent circumstances would exist. 46 .

In Constable O’Connor’s view, exigent circumstances arise when there is a need for police to take immediate action. No imminent peril is required, just the potential for it. The possibility that something could happen would be sufficient. 47 . Regarding the room where A.U. showed police guns were being stored underneath the bed, Constable O’Connor stated he did not know if his position would have changed on police powers to search were he to have been made aware that it was exclusively occupied by J.U. 48 .

Constable O’Connor conceded that even though A.U. invited him into the private dwelling, he knew that J.U. lived there as well. No “alarm bells rang” for the officer when he was invited into the home by A.U., even though he was told by her that she wanted to show him some guns. 49 . Constable O’Connor explained that he considered the entire house to be a common area. He need only obtain consent from one of the persons who lived there to be able to search it. 50 . Constable O’Connor agreed that, in his duty book notes, he wrote “guns to be seized”, but he gave no reason for his decision to do so.

He did not specifically indicate that it was for a public safety purpose. Agreed Statement of Facts: 51 . Crown and defence counsel tendered the following evidence for the Court’s consideration at the hearing of the application under sections 8 and 24(2) of the Charter :

a) J.U. is indigenous,

b) he is an avid hunter, and hunts according to the Williams Treaty,

c) he has hunted for most of his life, and it holds significant familial and cultural importance to him,

d) he harvests game for personal consumption, and to support his immediate and extended family members,

e) approximately 80% of his meals include, in some respect, meat which he has personally harvested,

f) the firearms which were seized are his property, or family property, which he was storing for others, and

g) the seizure of the firearms has limited his ability to hunt. Position of the Applicant (J.U.) 52 . J.U. through his counsel argues that the absolute highest privacy interest attaches to one’s dwelling. 53 . Police did not advert to what they were doing when they entered the matrimonial home at A.U.’s invitation. They gave little to no thought at all to J.U.’s right to be secure against unreasonable search and seizure. 54 . Defence counsel submitted that no exigent circumstances existed to permit police to act as they did without the authority of a Warrant to Search.

Indeed, “exigent circumstances” were raised by police for the first time at the hearing of the Charter application. 55 . It was precipitous for police to believe that J.U. would act out violently and murderously toward his wife, A.U. 56 . The seizure of J.U.’s weaponry under the circumstances by which police entered his home constituted serious breaches of his

section 8 Charter right to be secure against unreasonable search and seizure. 57 . The impact of the breaches was profound upon J.U. He has been without his weapons used for legal, sustenance purposes for almost a year and a half. His ability to hunt lies at the core of his indigenous culture. Agents of the state ought not to have deprived him of a way of life for him. 58 . In the absence of judicial authorization to search for and seize his weapons, the police conduct in this case constituted an egregious breach of J.U.’s

section 8 rights under the Charter . Those breaches had a significant impact upon the Charter protected interests of J.U. When those factors are balanced against society’s interest in an adjudication of J.U.’s trial on the merits, the evidence regarding the seizure of the weapons in question ought to be excluded under section 24(2) of the Charter . Position of the Respondent (Crown) 59 .

Crown counsel conceded that Constables Redden and O’Connor breached J.U.’s rights to be secure against unreasonable search and seizure by taking his firearms and crossbow under the circumstances in which they did on the day in question. 60 . However, the police officers’ ignorance of the Charter did not amount to bad faith. Breaches of Charter rights fall upon a spectrum ranging from trifling and insignificant to flagrant and willful. 61 . The officers were invited into the matrimonial home by A.U., who, as an owner/occupier of the residence, had the right to allow police in and to show them around. 62 .

In other words, police were entitled to investigate as they did. 63 . Crown counsel agreed with the defence that the police ought to have sought judicial authorization before searching for and seizing the weaponry in question. The police conduct was “opportunistic”. The evidence was otherwise discoverable provided police obtained a Warrant to Search. 64 . Furthermore, police gave J.U. the ability to retake possession of his weapons, and to lessen the impact upon himself, had he pursued the option of having them delivered over to the third-party, D.W. 65 .

In balancing the factors at play to determine whether there should be exclusion under section 24(2) of the Charter , the Crown emphasized society’s interest in an adjudication on the merits of the real evidence obtained from J.U.’s home, namely his carelessly stored weapons. The admission of it at his trial would not affect the long-term repute in the administration of justice. The evidence was essential to the Crown’s case against J.U. on the two counts of careless storage. Its very nature favoured its admission. Issues 66 . The hearing into the alleged violation of J.U.’s

section 8 Charter right to be secure against unreasonable search and seizure raises the following issues:

a) Could A.U. validly waive J.U.’s privacy interest in their shared matrimonial home?

b) If there was no valid waiver, were J.U.’s

section 8 Charter rights breached under the circumstances leading to the seizure of his weapons?

c) If there was a breach of J.U.’s right to be secure against unreasonable search and seizure, what impact did it have upon him?

d) What effect would exclusion of the evidence have on society’s interest in an adjudication on the merits at J.U.’s trial?

e) Balancing the factors in

b) through

d) above, should the impugned evidence be excluded pursuant to section 24(2) of the Charter ? Analysis

Could A.U. validly waive J.U.’s privacy interest in their shared matrimonial home? 67 . In my view, as a joint owner/occupier of the matrimonial home in question, surely A.U. had the right to invite police to enter upon the premises and to look around the common areas of the dwelling at her invitation. However, that right of invitation must end there. The joint tenant does not have the power to waive the rights of other owners/occupiers to be secure against an unreasonable search and seizure. 68 . In R. v.

Reeves , 2018 SCC 56 , a full panel of the Supreme Court of Canada (“SCC”) was dealing with the following fact scenario as set out in the headnote to the case: The accused shared a home with his common-law spouse. Following charges of domestic assault against the accused, a no-contact order was issued which prohibited the accused from visiting the home without his spouse’s prior, written and revocable consent.

When the spouse contacted the accused’s probation officer to withdraw her consent for him to enter the home, she reported that she had found what she believed to be child pornography on the home computer which she shared with the accused. A police officer came to the family home without a warrant. The accused’s spouse allowed the officer to enter and signed a consent form authorizing him to take the computer, which was located in a shared space in the home. The police detained the computer without a warrant for more than four months before searching it.

They also failed to report the seizure of the computer to a justice, despite the requirements of s. 489.1 of the Criminal Code . When the police finally obtained a warrant to search the computer, they found 140 images and 22 videos of child pornography. The accused was charged with possessing and accessing child pornography but applied to exclude the computer-related evidence claiming that his right to be secure against unreasonable search or seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The application judge agreed.

Accordingly, he excluded the computer evidence under s. 24(2) of the Charter and the accused was acquitted. The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order, and ordered a new trial. 69 . The SCC allowed the appeal from the decision of the Court of Appeal for Ontario, ruled that the evidence of the child pornography found on the jointly owned, home computer of the common - law spouses ought to be excluded, and restored the acquittal of the accused entered by the trial judge. 70 .

Speaking on behalf of the seven-member majority of the SCC, Karakatsanis J. discussed the issue of the police entry into the jointly held home as follows: [19] The application judge concluded that “the officer’s entry into a private residence without the consent of both owners or occupants constituted a search of those premises for

section 8 Charter purposes” (para. 11). He noted the police officer entered the shared home for the purpose of obtaining the computer. In his view, Gravelle’s consent did not render the officer’s entry Charter -compliant because a third party cannot waive another party’s Charter rights.

The Court of Appeal disagreed and concluded that Gravelle could consent to the search of shared areas of the home. [20] While the lower courts assessed whether the police entry into the home violated the Charter , given my conclusions on the other issues raised in this case, it is not necessary for me to decide whether the entry into the home constituted a separate violation of Reeves’ rights. Indeed, in oral submissions, Reeves’ counsel submitted that the entry was lawful. [21] Even if the officer had lawfully been in the home, this would not make the seizure of the computer lawful.

Section 489(2) of the Criminal Code provides that a police officer “who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds ” was used in the commission of an offence or would afford evidence of an offence. Here, however, this

section was not available; the officer testified that he asked for Gravelle’s consent to seize the computer because he did not believe he had grounds to obtain a warrant. Irrespective of whether the officer was “lawfully present” in the home, by his own admission, he did not have “reasonable grounds” to seize the computer. [22] Therefore, in this case, the legality of the police entry does not affect the legality of the taking of the computer.

As such, I proceed on the assumption that the entry was lawful. [23] In any event, I do not think it prudent to explore this issue in the absence of full submissions, given that many competing considerations arise in determining whether and when police entry into a shared home on the consent of one resident violates the Charter .

[24] Of course, the law has long recognized the prime importance of privacy within our homes (R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, at para. 140; see also R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22).

However, if a residentcannot consent to police entry to a shared home without the consent of all the other residents, it could undermine the dignity andautonomy of that resident — especially for a victim of a crime. [25] Several provincial appellate courts have concluded that a resident has the right to permit police entry into common areas of thehome without the consent of all other residents (R. v. T. (R.M.J.), 2014 MBCA 36, 311 C.C.C. (3d) 185, at paras. 41-52; R. v.Clarke, 2017 BCCA 453, 357 C.C.C. (3d) 237, at paras. 55-56 and 62-63; R. v. Squires, 2005 NLCA 51, 199 C.C.C. (3d) 509, atpara. 34).

However, without deciding the issue, police entry into a shared home with the consent of only one resident raises a number ofimportant questions. Would police also be authorized to search common areas of the home? Should the privacy interests of otherresidents affect the authority to seize evidence, even if in plain view?

Could another resident who is present object to the police entry?What if the officers seek entry for the specific purpose of investigating one of the other residents? [26] In short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raises complexquestions that require a considered response. They are best answered in a case that directly turns on this issue, with the benefit of fullsubmissions. 71.

I take guidance in coming to this conclusion from the separate but concurring reasons of Cote J. in Reeves, who commented on theissue of police entry into a jointly owned or occupied home as follows: [104] This case presents two principal issues. First, can the police lawfully enter common areas of a shared home with the consent ofone cohabitant, or are they required to obtain the unanimous consent of all persons who live in that home in order to enter on the basis ofconsent?

Second, can the police lawfully seize a jointly owned computer (i.e., physically remove the computer, without searching itscontents) when that computer is located in a common area of a shared home and one of the computer’s co-owners provides her consent? [105] Karakatsanis J. for the majority declines to discuss the first issue. Since it was ably argued by the parties, and since thelawfulness of the police entry into the home is relevant to the analysis pursuant to s. 24(2) of the Canadian Charter of Rights andFreedoms, I will address it directly.

In my view, one cohabitant can validly consent to a police entry into common areas of a sharedresidence, obviating the need for a warrant. The alternative rule — that the police may enter the common areas of a shared home only ifthey obtain consent from each and every person who lives there — is entirely unworkable. It also has no basis in our existing s. 8jurisprudence as it pertains to physical spaces. 72.

Cote J. went on to add: [112] In my view, it is not objectively reasonable for a cohabitant, who shares a residence with others, to expect to be able to vetoanother cohabitant’s decision to allow the police to enter any areas of that home that they share equally. Although Mr. Reeves did havean expectation of privacy in those areas, that expectation was attenuated and limited by the reality of cohabitation. Other persons withoverlapping privacy interests in and rights to common spaces can validly permit third parties to enter those spaces. This includes thepolice.

To hold otherwise would be to interfere with the consenting cohabitant’s liberty and autonomy interests with respect to thosespaces. Thus, I would reject the argument that the entry was invalid because Ms. Gravelle could not waive Mr. Reeves’ Charter rights.That is beside the point. Properly understood, Ms. Gravelle did not waive anyone’s rights except her own. But in the context of a sharedhome, Mr. Reeves’ reasonable expectation of privacy was not sufficiently capacious to afford constitutional protection against acohabitant’s decision to give the police access to common areas.

This is especially true on the facts of this case, where Mr. Reeves hadno legal right to be in the home at the time of the police entry because Ms. Gravelle had revoked her permission for him to enter it earlierthat day pursuant to the no-contact order. The analysis is of course different concerning private areas of a shared residence, such asan individual’s exclusive bedroom or office — types of spaces that are not involved in this case. (My emphasis) 73.

Further, Cote J. explained why police must act with caution and constraint as follows: [116] That said, the ability of law enforcement officials to enter on the basis of consent is not without limits.

As the Crownacknowledges, the consenting person must have the authority to consent (as a first-party rights holder with his or her own Charter-protected privacy right in the shared place or thing); the consent must be limited to shared places or things; the consent must be informedand voluntary; and the police must respect the limits of the consent, which is freely revocable at any point during the entry or search. 74. In an earlier decision of the SCC, R. v. Cole, 2012 SCC 53, Fish J. explained: [78] For consent to be valid, it must be both voluntary and informed.

The adoption of a doctrine of third-party waiver in this countrywould imply that the police could interfere with an individual’s privacy interests on the basis of a consent that is not voluntarily given bythe rights holder, and not necessarily based on sufficient information in his or her hands to make a meaningful choice.

[79] I would therefore reject the Crown’s contention that a third party could validly consent to a search or otherwise waive aconstitutional protection on behalf of another. 75. It is clear in this case that neither Constable Redden nor Constable O’Connor gave any thought to a limit upon their police powersafter being invited in and shown around the matrimonial home shared by A.U. and J.U. 76. Both officers ought to have paused before entering what I find they knew was the private bedroom of A.U.’s estranged spouse,J.U.

Equally, the officers ought to have seriously questioned any power on their part to open the gun cabinets, even to observe thefirearms which were kept upstairs in the home. Those things, the cabinets, appeared to belong to J.U. (see Reeves at para. 116). A.U.gave police no reason to believe that she had a shared common interest in them with J.U. 77. Further, Constable O’Connor and Constable Redden are at odds as to whether A.U. led them upstairs to the gun cabinets.Constable O’Connor was not sure whether this occurred. The officers may have gone upstairs on their own after speaking with A.U.

Onthe other hand, Constable Redden had no memory of whether A.U., or Constable O’Connor, of his own volition, opened the gun cabinetsto allow police to see their contents. 78. I disbelieve that either officer was able to ascertain whether firearms were safely stored or not by peering through the door of oneof the cabinets, which was slightly ajar. 79. I seriously question as well the authority of police to enter the basement, and most definitely, the garage.

I have no satisfactory,evidentiary basis for finding that an invitation to search those areas (the basement and the garage) was specifically offered by A.U. 80. Constable Redden presumed A.U. gave him information regarding the presence of a crossbow in the basement. I place noreliance upon that presumption. 81. Neither officer was granted unequivocal permission to enter the garage by A.U. Rather, they acted on the direction of ActingSergeant Bennett to do so.

Under the circumstances by which the police found themselves on jointly owned or occupied private property,some thought ought to have been given to the Charter rights of the absent owner/occupier. 82. The more prudent course of action for police would have been simply to gather information from A.U. They were on scene. Shewas not in any danger while with the officers. She told the police things which ought to have provided reasonable grounds for believingthe offence of careless storage of firearms had been committed, and that evidence of its commission could have been found within thematrimonial home. 83.

I appreciate that obtaining a telewarrant would have been “time-consuming” for the officers. However, that was no excuse for theshortcuts police took. 84. In sum, A.U. was in no legal position to waive her husband’s right to privacy in the subject areas of the matrimonial home. Policewere on scene to keep the peace, to gather information from her, to safeguard her based on what they learned from interviewing her, andto take reasonable steps to carry out their duties to investigate possible crimes without infringing upon as fundamental a Charter right asthe privacy interest the other spouse held in the home. 85.

Officers could have remained on scene while steps were taken to obtain a warrant to search for and seize the weaponry inquestion. They chose not to for the sake of expediency. 86. The Crown did not argue that the police seized the weaponry at issue under authority of subsubsection 489(2)(

c) of the Code.Hence, in fairness to the defence, I can give it no regard. Were J.U.’s

section 8 Charter rights breached under the circumstances leading to the seizure of his weapons? 87. I find that Constable Redden’s and Constable O’Connor’s conduct in relation to J.U. was a serious breach of his

section 8 Charterright to be secure against unreasonable search and seizure. 88. Properly so, Crown counsel conceded the breach. 89. I would not go so far as to characterize, as urged upon me by defence counsel, that the breach was egregious. The officers did notwillfully and flagrantly violate J.U.’s

section 8 Charter rights. They were simply negligent by not turning their minds to how theirconduct, albeit at the invitation of A.U. somewhat, would affect J.U.’s equal right to privacy and security from any intrusion upon theirjointly owned or occupied home. 90. I do not accept that police were acting under “exigent circumstances’ as that term has come to be defined through the case law.(see R. v. Golub, (ON CA), [1997] O.J. No. 3097 (Ont. C.A.) at paras. 41 – 48, R. v. Pawar, 2020 BCCA 251 atparas. 68 – 73). 91.

Nor were police acting under the reasonably held belief that A.U. was at risk of “imminent harm”. (see R. v. Stairs, 2022 SCC 11at para. 76) 92. The police conduct was simply expeditious. It was a means to avoid the “labour intensive” task of obtaining a telewarrant. 93. Further, I find that the police conduct in delaying seizure of the firearms until J.U. was arrested, and then purportedly takingpossession of them as an incident to a search following arrest, was both strategic and tactical on their part. It was not a proper search

incident to arrest. 94 . Police were already well aware of the presence of the firearms, and the state in which they were being stored by J.U. Constables Redden and O’Connor had the legal means to obtain prior judicial authorization for the search and seizure of J.U.’s weapons. Instead, they opted for an easy way out, but one which clearly infringed J.U.’s

section 8 Charter rights. The Impact of the Breaches on the Charter -Protected Interests of the Accused 95 . The impact of the seizure of the firearms and crossbow upon J.U.’s Charter protected interests has been significant. It seriously hampered his ability to sustain himself and his extended family members. 96 . While I appreciate that hunting is not a right, rather a privilege, it was still an important cultural practice by which J.U. could provide for himself and his family.

The Crown does not contest the effect the deprivation of his ability to hunt has had upon J.U., and as set out in the Agreed Statement of Facts. Society’s Interest in the Adjudication of the Case on its Merits 97 . Most definitely, society would have an interest in allowing for the admission of the evidence as to how J. U.’s weaponry was stored. The firearms themselves are real evidence. The testimony of Constables Redden and O’Connor as to the manner in which they were stored is both credible and reliable.

Its admission would permit the Court to determine on the merits whether or not the Crown has proven J.U.’s guilt beyond a reasonable doubt in respect of the two counts at issue. Balancing of the Factors 98 . Considering the effect of the Charter breach perpetrated by police on J.U.’s constitutional rights and its impact upon the long- term repute of the administration of justice, I conclude that the evidence surrounding the seizure of his weaponry must be excluded. 99 .

While I appreciate that the weaponry seized from A.U.’s and J.U.’s matrimonial home is real evidence, the exclusion of which will gut the prosecution of its ability to demonstrate J.U.’s guilt, the long-term repute of the administration of justice, in my view, requires it to be ruled inadmissible. 100 . Police expediency in obtaining critical evidence cannot take precedence over the violation of the sacrosanct privacy interest one has in the contents of one’s home. Conclusion 101 . While I do not believe Constables Redden and O’Connor willfully or flagrantly breached J.U.’s

section 8 Charter rights, their conduct showed an aloofness which police ought not to demonstrate toward Charter values. The Charter is not a list of suggestions to peace officers in this country. It is the supreme law of Canada. It must be acknowledged, embraced, and respected by every one of our citizens including police. 102 . To the contrary, I fear that too often, many within the rank and file of the ‘thin blue line’ see the Charter as a thorn in their side. They would rather breach Charter rights, and risk such evidence being excluded by a Court of law than adhere up front to the dictates of the Charter .

Indeed, I know of no formal system for informing and educating police on instances where the Courts have found their actions to constitute a breach of Charter rights. This widespread, institutional inattention by police to what Courts decide and offer by way of direction needs to change – sooner rather than later. 103 . The application brought by J.U. is granted. The weaponry in question seized by police from his home shall be excluded at his trial. DATED: September 20, 2023 ________________________________ March, M.G., J.