Her Majesty the Queen - v. -, 2020 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 39 Date: October 15, 2020 Information: 24410213 Location: Indian Head _____________________________________________________________________________ Between: Her Majesty the Queen - and - Perry K. Thomson Appearing: Andrew Campbell For the Crown Sharon Fox For the Accused JUDGMENT M. B EATON, J INTRODUCTION [ 1 ] Mr. Perry Thomson Sr. is charged that on September 5, 2018 at Carry the Kettle First Nation he left multiple firearms unlocked and improperly stored contrary to s. 86(2) of the Criminal Code .

The evidence in this case was presented in a blended voir dire /trial, so I must deal with all defences raised, including those relating to potential Charter breaches. The principle issue in this case is whether the police entry and search of Mr. Thomson’s residence and the subsequent seizure of 31 firearms, all without obtaining judicial authorization, violated Mr. Thomson’s rights under s. 8 of the Charter and whether the evidence of firearms should be excluded under s.

24(2) of the Charter . If the evidence is not excluded, I need to determine whether the elements of the offence have been proven beyond a reasonable doubt. FINDINGS OF FACT [ 2 ] At 4:49 p.m. on September 5, 2018, Cst. Tran, an RCMP member seconded to the File Hills Police Service and the only File Hills member working that evening, received a call from RCMP dispatch. The dispatch operator advised that a neighbour of Perry Thomson Sr. had called 911 as she had heard shooting at Mr. Thomson’s residence on Carry the Kettle First Nation.

Dispatch advised that the complainant did not know at what anyone would have been shooting and was concerned since there were children around. Cst. Bambridge, a File Hills Police Services officer who had just finished her shift, and two Indian Head RCMP members, heard the dispatch call. As a result, they offered to help Cst. Tran because the call involved a firearm. [ 3 ] At 4:55 p.m. Cst. Tran obtained further information from the complainant as well as from her daughter who had observed the incident. Based on that additional information, Cst.

Tran advised the other officers as follows: that Aiden Thomson had just fired his rifle into the air once; that he was not really threatening anybody but he had yelled, “hurry up and clean up”; that Aiden was back in the house without a firearm; and that the complainant just wanted police to go over and check it out. Cst. Tran knew that the complainant wanted to remain anonymous. Ten minutes later, he tried calling the complainant again for further information, but was unsuccessful in reaching her. [ 4 ] I believe that Cst.

Tran became more concerned as he analyzed the complaint and thought it could be more serious than first reported. He believed that a person had unsafely discharged a firearm with children around and that this person might barricade himself when police arrived. All officers treated this call as a priority and risky.

As a result, they took carbines, hard body armour, and a breach kit used for getting into a house in exigent circumstances and met at the entrance of Carry the Kettle First Nation to formulate a plan. [ 5 ] They had a map of the area around the accused’s residence and knew that although it was a rural area, there were other residences nearby. Cst. Tran knew that the accused and his family were hunters and that the accused had a license to possess and acquire firearms. [ 6 ] The officers arrived at Mr. Thomson’s residence at approximately 5:40 p.m.

They parked their two police vehicles in a strategic fashion and pointed their firearms at the front door as Cst. Tran called out on the loud speaker for Aiden Thomson and others to come out of the house. Perry Thomson Jr. was the only person to come out of the house. He was angry. He paced in front of the house, flailing his arms, and yelling at police that they were going to shoot him in front of his children. He refused to obey police instructions to keep his hands raised and to get on his knees. He confirmed that there were children in the house and that Aiden had left.

The officers eventually detained Perry Thomson Jr. and placed him in the back of a police vehicle at 5:52 p.m. at which point he became cooperative. The officers then approached the house and were met at the door by three children, ages eight, seven and five years. The children were not crying and appeared fine. [ 7 ] What happened next is unclear as there were significant discrepancies amongst the witnesses’ accounts. Cst. Tran in particular could not remember the exact sequence of events and his testimony was at times internally inconsistent. The other officers had memory gaps.

Based on the evidence and logical inferences drawn from the evidence, I find that the officers, upon seeing the children, asked them if they were all right, if Aiden Thomson was in the house, and if there was a firearm in the house. The children told the officers that Aiden had left and that there were firearms in the house. Based on the whole of the evidence, I cannot accept Cst. Tran’s testimony that the children told the officers there was a gun under a bed prior to police entry into the residence.

I find that the officers had made the decision to search the house for Aiden Thomson, a firearm, and potentially injured persons even before speaking to the children. The plan was to neutralize any threat posed by Aiden. Nothing said by the children influenced the officers’ decision to clear the house. [ 8 ] The children then exited the residence and spoke to Cst. Bambridge on the deck. While the other officers were searching the house, the children told Cst. Bambridge that Aiden Thomson had fired a shot once in the air near the trampoline because the children were not cleaning as they had been instructed. Cst.

Bambridge passed this information on to Cst. Tran who later searched the yard and found spent cartridges. [ 9 ] No one, other than the children, was found in the house. However, the officers testified that they continued to be concerned for their safety as well as for the safety of the public, as Aiden Thomson had not been located and he could still have been armed. [ 10 ] While searching the residence, the officers found a 270 Winchester in plain view in an open closet in Aiden Thomson’s

bedroom (police Exhibit 5). This firearm had ammunition in a sleeve on the stock. It was later tested by RCMP National Forensic Laboratory Services and found to meet the Criminal Code definition of a firearm. [ 11 ] In a living room, the officers located three firearms in soft cases laying on a pool table, an unlocked gun safe and a firearm leaning against that gun safe. As part of the search, the officers opened the soft gun cases and the gun safe. Cst. Hoffart explained that he tested the handle on the safe to ensure it was locked given that there were a number of unsecured guns lying in the open.

The officer stated that the search of the gun safe was necessary for public and police safety to ensure the residents of the house, or anyone who may have access to the property, could not obtain possession of the firearms in the safe. [ 12 ] Cst. Hoffart remained in the residence with the firearms while the other officers continued the investigation. Officers took photos of some of the firearms and spent cartridges that were located outside. Cst. Tran then made the decision to seize the firearms without a warrant to ensure public and police safety. In particular, Cst.

Tran testified that they had insufficient resources to secure the residence and obtain a search warrant. There were approximately six people outside who were unhappy with the police presence and there was concern that the crowd would grow. Officers were also concerned that the accused, who was believed to be difficult, was on his way home. In addition to these concerns about controlling the scene, Cst.

Tran seized the guns because the accused had shown that his manner of storing guns created safety concerns for the public and for occupants of his residence. [ 13 ] After the firearms were secured in a police vehicle, two officers went to retrieve a police vehicle that they had left near a police trailer, and which was approximately a five-minute drive from Mr. Thomson’s residence. While they were gone, Aiden Thomson arrived and was arrested at 6:42 p.m. by Cst. Bambridge. He was cooperative. Then the accused arrived. He was upset, refused to interact with police, walked into the residence and locked the door.

The officers left the scene with two prisoners and 31 firearms at 6:57 p.m. [ 14 ] In total, 31 firearms were seized from the residence. None of them had activated safeties, trigger locks or cable locks. Each were photographed and given exhibit numbers by police. Police located the guns marked as Exhibit 32 and 36 stored with ammunition in soft gun cases. One of the firearms inside the safe, being a .410 shotgun (also referred to as the Mossberg 505 pump action shotgun) (Exhibit 6), smelled of gunpowder suggesting recent use.

Aiden Thomson testified at trial to having shot that firearm in the backyard on the date in question to scare away stray dogs. Aiden Thomson also identified several of the firearms as guns he had used for hunting. He confirmed the firearm marked as Exhibit 34 was used for hunting elk and that Perry Thomson Sr. had adjusted the scope on that firearm not long before it was seized. It was also found on the pool table in a soft gun case with ammunition and two rounds in the magazine. Aiden used the firearm marked as Exhibit 8 for duck hunting.

He also identified Exhibit 12 as the gun with which he had shot his first deer. ISSUES [ 15 ] Mr. Thomson raised during argument that the Crown had failed to establish that police had reported the seizure of the firearms to a justice pursuant to s. 489.1 of the Criminal Code . Under s. 489.1, police must report a warrantless seizure to a justice “as soon as is practicable”.

The Supreme Court of Canada in R v Reeves , 2018 SCC 56 , 367 CCC (3d) 129 [ Reeves ] at para 63 stated that these reporting requirements are important for Charter purposes, as they mandate police accountability for seizures that have not been judicially authorized. [ 16 ] This potential breach was not raised in the Charter notice. Neither counsel raised the reporting issue during the presentation of evidence. Mr. Thomson first raised it during final argument without a proper evidentiary basis.

I am not prepared to consider this issue at this late stage of the proceedings. [ 17 ] I will deal with the following issues: 1. Has the Crown proven that the seized guns met the Criminal Code definition of “firearm”? 2. Did police officers breach Mr. Thomson’s right to be secure against unreasonable search and seizure when they entered and then searched his residence? 3. Did police officers breach Mr. Thomson’s right to be secure against unreasonable search and seizure when they seized the firearms? 4. If there was a Charter breach, should any evidence be excluded pursuant to s. 24(2) of the Charter ?

ANALYSIS 1. Has the Crown proven that the seized guns met the Criminal Code definition of “firearm”? [18] Although only one firearm was tested and determined to meet the criteria for being a firearm pursuant to the definition unders. 2 of the Criminal Code, the Crown submits that the Court can draw inferences from the circumstances to find that the other guns werefirearms pursuant to the Criminal Code. Mr.

Thomson argues that the Crown has only proven that two of the 31 seized firearms satisfythe Criminal Code definition of “firearm”. [19] The Crown can prove that an object is a firearm by evidence that the firearm could be or was discharged or throughreasonable inferences drawn from the evidence.

For example, courts have drawn these inferences when an accused brandished an objectthat looked like a firearm and used it in a threatening manner that made complainants believe it was operational: R v Charbonneau, (Ont CA), R v Gordon 2017 ONCA 436, 348 CCC (3d) 426. [20] In the case before me, there is evidence that one gun had been fired on the date in question and the RCMP tested the firearmlocated in Aiden Thomson’s bedroom. There is also evidence that one gun had recently been scoped for use. Several others were storedwith ammunition and were easily accessible for use.

Others had been used for hunting in the past. These circumstances allow me to drawthe inference that they were working firearms. I find that the firearms identified by police as Exhibits 5, 6, 8, 12, 32, 34, and 36 met theCriminal Code definition of a firearm. [21] I also find that these firearms belonged to Mr. Thomson and that he was responsible for their proper care and storage. 2. Did police officers breach Mr. Thomson’s right to be secure against unreasonable search and seizure when they entered andthen searched his residence? [22]

Section 8 of the Charter entrenches the right to be secure against unreasonable search and seizure where there is a reasonableexpectation of privacy. It is not disputed that the entry by the police in Mr. Thomson’s residence constituted a search of his residence andintruded on Mr. Thomson’s reasonable expectation of privacy. [23] As a matter of established law, a warrantless entry into a dwelling house is presumptively unreasonable: R v Silveira, (SCC), [1995] 2 SCR 297.

However, a warrantless search may be reasonable if the Crown can demonstrate, on a balance ofprobabilities, that the search was authorized by law, the law itself is reasonable, and the manner of the search was reasonable: R vCollins, (SCC), [1987] 1 SCR 265 [Collins], R v MacDonald, 2014 SCC 3 at para 26, 303 CCC (3d) 113 [MacDonald]. The reasonableness of the law is not at issue in the case before me. Authorized by Law [24] The Supreme Court of Canada in Reeves has recently examined the common law powers of police based on the Waterfield (Rv Waterfield, [1963] 3 All ER 659 (Eng CA) [Waterfield] framework.

Moldaver J. in concurring reasons stated as follows: [77] Whether police have the authority at common law to take an action that interferes with an individual's liberty or property isassessed using the framework set out by the U.K. Court of Criminal Appeals in R. v. Waterfield, [1963] 3 All E.R. 659 (Eng. C.A.), at pp.660-62, per Ashworth J. Canadian courts have used the Waterfield framework — sometimes referred to as the ancillary powers doctrine— to affirm many common law police powers now considered fundamental. For example, the R.I.D.E. program stops (Dedman v.

TheQueen, (SCC), [1985] 2 S.C.R. 2), investigative detentions (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59), searchesincident to arrest (Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158), 911 home entries (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311), sniffer dog searches (R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456), and safety searches (R. v.MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37) were all affirmed through the Waterfield framework. [25] The Waterfield framework contains two steps.

First, the court must determine whether the police actions fall within thegeneral scope of a police duty imposed by statute or recognized at common law. It is trite law that police have a common law duty to

protect life and safety. The next step is to inquire into whether the police actions constitute a justifiable exercise of powers associatedwith the duty. As the Supreme Court of Canada summarized in MacDonald: [36] At the second stage, if the answer at the first is affirmative, as it is in this case, the court must inquire into whether the actionconstitutes a justifiable exercise of powers associated with the duty.

As this Court held in Dedman, [t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regardto the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added; p. 35.] Thus, for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty inlight of all the circumstances (Mann, at para. 39; Clayton, at paras. 21 and 29). [37] To determine whether a safety search is reasonably necessary, and therefore justifiable, a number of factors must be weighed tobalance the police duty against the liberty interest in question.

These factors include: 1. the importance of the performance of the duty to the public good (Mann, at para. 39); 2. the necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at paras. 21, 26and 31); and 3. the extent of the interference with individual liberty (Dedman, at p. 35). If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action inquestion will not constitute an "unjustifiable use of ... police power[s]" (Dedman, at p. 36).

If the requirements of both stages of theWaterfield test are satisfied, the court will then be able to conclude that the search in question was authorized by law. [26] The Court in MacDonald confirmed that police could perform a search if the circumstances establish a necessity, reasonablyand objectively considered, to address an imminent threat to the safety of the public or the police. Therefore, a search will only beauthorized by law if the police officers believe on reasonable grounds that their safety or the safety of the public is at stake and it istherefore necessary to conduct a search.

A search cannot be justified because of a vague concern for safety.

Rather, for a safety search tobe lawful, the police must act on reasonable and specific inferences drawn from the known facts of the situation: MacDonald at para 41. [27] The Court in R v Clayton, 2007 SCC 32 at para 31 had stated, in the context of safety searches, that the determination ofreasonable grounds will focus on the nature of the situation, including the seriousness of the offence, as well as on the informationknown to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to thesecircumstances.

In that case, the Court found that police had reasonable grounds to believe that there were several handguns in a publicplace and that as a result there was a genuine risk of serious bodily harm to the public. The police were entitled to take reasonablemeasures to investigate the offence without waiting for the harm to materialize: Clayton at para 33. [28] The common law has also recognized that exigent circumstances may create a legal basis for warrantless searches.

The powerto search in exigent circumstances where there is a concern for the safety of the public or the police has been overtaken by the Waterfielddoctrine as this power must also be authorized by law: R v Godoy, (SCC), [1999] 1 SCR 311 at para 17 [Godoy],MacDonald at para 32-37.

Exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy onlywhere necessary: R v Feeney, [1997] 2 SCR 1. [29] Exigent circumstances will justify a warrantless search where the urgency of the situation requires prompt police interventionto prevent imminent bodily harm or death and it is impracticable to wait for a warrant to authorize the search: Godoy, MacDonald. Insuch situations, the subject’s reasonable expectation of privacy must yield to the safety and well-being of others thought to be at risk.

Inparticular, the police duty to protect life is engaged whenever it can be inferred that the 911 caller is or may be in some distress: Godoy atpara 16. The police have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such aninvestigation depends on the circumstances of each case: Godoy para 11. There has to be no reasonable alternative.

Also, what is criticalis the content of the information provided to the police rather than the specific mechanism, whether that information is communicated ina 911 call or in some other form of communication: R v Zouhri, 2018 ABQB 291 at para 50. [30] The common law power to search for evidence in exigent circumstances has been codified in the Criminal Code: R v Kelsy,2011 ONCA 605 at para 27, 280 CCC (3d)

Section 487.11 of the Criminal Code authorizes a warrantless search by a peace officerif the conditions for obtaining a warrant under s. 487(1) (the normal search warrant provision) or s. 492.1(1) (the tracking warrantprovision) exist “but by reason of exigent circumstances it would be impracticable to obtain a warrant”. I do not believe that this sectionauthorizes police to enter residences to protect life and safety as per Godoy or MacDonald. However, this

section would apply if police

were in a residence and were required to seize items by reason of exigent circumstances. [ 31 ] Similar enactments authorize police to enter into a dwelling without warrant to effect an arrest or to search a place for controlled substances where exigent circumstances make it impracticable to first obtain a warrant: see s. 529.3(1) Criminal Code , s. 11(7) Controlled Drugs and Substances Act , SC 1996, c 19 . Only s. 529.3(1) contains a definition of exigent circumstances. The Supreme Court of Canada held that the definition of exigency in s. 529.3(1) does not apply to the other sections .

However, it recognized the common theme from the case law that exigent circumstances denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve officer or public safety: R v Paterson , 2017 SCC 15 at para 33 , 347 CCC (3d) 280 [ Paterson ] . Reasonable Manner of Search [ 32 ] Pursuant to the test stated in Collins the search must be carried out in a reasonable manner.

Determining whether the search was carried out in a reasonable manner requires a consideration of whether the search was minimally intrusive on the privacy interest at stake: MacDonald at para 47 . In other words, the manner in which the search was carried out must have been reasonably necessary to eliminate any threat. Police authority, upon entering a residence in response to a 911 call, is limited to ascertaining the reason for the call and providing any needed assistance. Police do not have any further authority to search the residence or intrude on a resident’s privacy or property.

R v Davidson , 2017 ONCA 257 para 26 , 352 CCC (3d) 420. Even a search conducted pursuant to a search warrant must be no more intrusive than is reasonably necessary to achieve its objectives: R v Vu, 2013 SCC 60 , 302 CCC (3d) 427. [ 33 ] The Crown argues that officers had authority either under s. 487.11 of the Criminal Code or under the common law authority laid out in MacDonald to conduct a safety search of Mr. Thomson’s residence without a warrant. In particular, the Crown argues that exigent circumstances existed that justified a search of the residence based on the content of the 911 call, Mr.

Thomson Jr.’s behaviour, the information relayed by the children and the need to locate and neutralize any potential threats within the house. [ 34 ] Mr. Thomson argues there were no exigent circumstances in this case that would legally support a search of Mr. Thomson’s residence pursuant to the common law or s. 487.11 of the Criminal Code . Further, the officers had the time to obtain a warrant prior to entering the residence. [ 35 ] I do not believe that s. 487.11 gives police authority to enter a residence to protect life and safety as this

section refers to Criminal Code provisions relating to the gathering of evidence. The Waterfield test as articulated in Godoy and MacDonald applies to the case before me. In succinct terms, I need to decide whether the police officers believed on reasonable grounds that their safety, or the safety of the public was at stake and it was therefore necessary to enter the house. Again, the test is one of objectively verifiable necessity. [ 36 ] Decisions by police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be.

Therefore, decisions on how to conduct a search cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R v Cornell , 2010 SCC 31 at para 23 , 258 CCC (3d) 429 [ Cornell ]. [ 37 ] Cst. Tran did not initially believe that the call for service was urgent. This was not an urgent 911 call or a 911 hang up call. Based on the information that Cst. Tran obtained from the complainant, no one had been threatened, and Aiden Thomson, who had fired a shot into the air, was now back in the residence without a firearm. There was no concern that someone had been injured.

There was no concern that someone was being held hostage or that an individual was barricaded in the residence. There was no suggestion that the children were in serious or immediate danger. [ 38 ] The more Cst. Tran thought about the complaint, the more concerned he got. As the complaint referenced a firearm, there was the need for precautions. However, I also note that approximately 50 minutes had elapsed from dispatch to the officers’ arrival at the residence so it was likely that the situation described by the complainant had changed.

As a result, police needed to continue to investigate, to assess the situation and to develop the grounds to enter into the residence. [ 39 ] I do not need to comment on whether the police actions in pointing carbines at the residence and calling out the occupants was warranted. However, in retrospect, this did result in aggravating the situation as Perry Thomson Jr., who was alone with his children and niece in the residence, was upset with the police actions.

When he calmed down, the officers did have an opportunity to speak with him and to find out that there were only children in the house and that Aiden was not there. The children confirmed this.

[ 40 ] I find that the officers did not have the time to obtain a warrant prior to attending the residence. The delay inherent in obtaining a warrant would have made the response time even slower and such delay could not be justified. As well, I do not believe the officers even had the grounds to obtain a warrant. [ 41 ] As Cst. Tran knew that Mr. Thomson was a hunter, he could reasonably assume that there were hunting rifles in the house.

However, although the children confirmed that there were firearms in the residence, the officers had no reasonable grounds to believe, prior to their entry into the residence, that any firearms were improperly stored or a danger. I find that the facts known to the officers were insufficient for them to draw a reasonable inference of immediate concern for the life or safety of themselves, people in the residence or the children in particular.

In essence, there were no reasonable grounds to believe that police or public safety was at stake such that prompt police intervention to prevent imminent bodily harm or death was required. [ 42 ] The officers stated that they were concerned about Aiden Thomson’s whereabouts throughout this incident. Their concerns could have been appeased by further investigation prior to entry into the house. In particular, information about any threat posed by Aiden could have been obtained from Perry Thomson Jr. and the children. [ 43 ] I find that officers breached Mr.

Thomson’s s. 8 rights when they entered his residence as the circumstances did not establish a necessity, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. If the entry into the residence was unlawful, all other searches within the residence will also be unlawful.

However, I will deal with all issues that were raised by counsel and consider the lawfulness of the search in the residence, and the subsequent seizure of firearms. [ 44 ] The Crown argues that once the officers were in the residence, the firearm in Aiden Thomson’s bedroom was in plain view, as were the firearms located on the pool table.

Further, the Crown states that a search of the gun safe by opening its door was necessary for public and police safety to ensure the residents of the house, or anyone else who may have access to the property, could not obtain possession of the firearms, especially since the person who had fired a shot had not yet been located. [ 45 ] Mr. Thomson states that if the officers were lawfully in the residence, they had no authority to conduct a warrantless search of the residence after they had finished their initial safety search.

Further, they had the time to obtain a search warrant and there were no exigent circumstances. [ 46 ] Assuming that the officers were lawfully in the residence, they had a right to conduct a safety search. However, once the officers had ascertained that no one was in the house with weapons, and that no one needed assistance, I find that there was no further immediate threat to safety. They found two firearms in the open, three soft gun cases, and a closed gun safe. They then proceeded to open the gun cases and the safe, and located additional firearms.

In my opinion, there was no reasonable basis for opening the case or the safe as no one else was in the house. I find that police had the means to secure the residence at that point and seek a warrant authorizing a further search. 3. Did police officers breach Mr.

Thomson’s right to be secure against unreasonable search and seizure when they seized the firearms? [ 47 ] The Crown argues that the firearms had to be seized without waiting for a warrant, as it was not feasible to have officers stand guard in the house while simultaneously controlling the crowd outside, arresting suspects and finishing the investigation. As well, when the guns were seized, Aiden Thomson had not been located which created a safety concern. The Crown also argues that s. 489(2) of the Criminal Code authorized police to seize the firearms. [ 48 ] Mr.

Thomson argues the officers had the time to obtain a search warrant. [ 49 ] Section 489(2) reads as follows: Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, 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 (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [ 50 ] The test set out in this self-contained provision is distinct from the requirements of the ‘plain view’ common law doctrine. Justice Layh in R v Shingoose , 2019 SKQB 308 recently reviewed cases interpreting s. 489(2) of the Criminal Code : [71] Section 489(2) is legislation of relatively recent vintage, enacted in 1997. The Manitoba Court of Appeal in Frieburg at paras 64 - 69 offers a helpful description of the intended use of s. 489(1) and (2) .

Section 489(1) applies to the seizure of items not specified in a search warrant but that are seized while executing a search warrant. The court cited its earlier decision in R v Le (T.D.) , 2011 MBCA 83 , 270 Man R (2d) 82, where it found that s. 489(1) was not coextensive with the plain view doctrine. The Courts of Appeal of Alberta and Ontario have both come to the same conclusion regarding s. 489(2) . The Court of Appeal of Quebec has come to a contrary conclusion. The court in Frieburg then offered that the approach in Alberta, Ontario and Manitoba is consistent with the comments of James A.

Fontana & David Keeshan in The Law of Search and Seizure in Canada , 8 th ed (Markham: LexisNexis Canada Inc., 2010) where the authors state (at p. 213): ...The provisions of s. 489, and the test set out therein, are quite distinct from what is normally taken into account on "plain view"... There is no requirement that the thing be found in plain view, but the test in s. 489 must be met nevertheless... [72] In Frieburg the court was satisfied that the appropriate

interpretation of s. 489 made it "a self-contained provision, separate from the plain view doctrine [and]...does not require the police to meet all of the requirements of the plain view doctrine." (Para. 67) [73] Section 489(2) has three requirements, being that the officer: 1) is lawfully in a place; 2) is acting in the execution of his duties; and 3) has reasonable grounds to believe that the item seized will afford evidence of a federal offence. [74] Section 489(2) does not permit the police to search any location, only to seize.

However, if the court accepts the lawfulness of the search (as the court already has under both the emergent circumstances and the right to search incidental to arrest), then the seizure is authorized by s. 489(2) . [ 51 ] I am satisfied that if the officers were lawfully in the residence in the execution of their duties and all of the searches were lawful, s. 489(2) permitted them to seize the firearms as they were evidence of the commission of an offence pursuant to s. 86(2) of the Criminal Code . 4.

If there was a Charter breach, should any evidence be excluded pursuant to s. 24(2) of the Charter ? [ 52 ] Given that I have found the officers breached Mr. Thomson’s Charter rights by entering and searching his residence, I am required to conduct an analysis as set out in R v Grant , 2009 SCC 32 , 245 CCC (3d) 1 [ Grant ] and R v Le , 2019 SCC 34 , 375 CCC (3d) 431 [ Le ] to determine if the evidence of the firearms should be admitted or excluded under s. 24(2) of the Charter .

I must make an assessment under three lines of inquiry and then conduct a final balancing to determine whether, having regard to all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute. The question to be answered is whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. The purpose of excluding evidence is not to punish the police or to compensate the accused.

The First line of inquiry: The Seriousness of the Charter -infringing State Conduct [ 53 ] At this stage, the Court must look at the nature of the police conduct that infringed the Charter and situate it on a scale of culpability: Paterson at para 43 . The more severe or deliberate the infringing conduct, the more the courts need to disassociate themselves from it by excluding the evidence linked to the conduct so as not to undermine public confidence in the administration of justice: Grant at para 72 .

Wilful or a reckless disregard for Charter rights will be a more serious violation and will have a negative effect on the public confidence in the rule of law: Grant at para 74 .

[54] If there was good faith on the part of the police officers or if the breach was merely technical in nature or resulted from anunderstandable mistake, the court will not have to be as concerned with disassociation: R v Harrison, 2009 SCC 34 at para 22, 245 CCC(3d) 86 [Harrison].

As held in R v Buhay, 2003 SCC 30 at para 59, [2003] 1 SCR 631 [Buhay], and Paterson, at para 44, a "good faith"error on the part of the police must be reasonable and is not demonstrated by pointing to mere negligence in meeting Charter standards.In other words, the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtainedbecause of police negligence in meeting Charter standards: Le at para 143. [55] I find that the officers’ purpose for entering the residence was to secure the life and safety of anyone who might have been inharm’s way, and not for the ulterior motive of investigating a crime.

They were well-intentioned. However, I conclude that the officersdid not have an objectively reasonable basis to enter the residence as they had no objectively reasonable basis to conclude that anyonewas in danger, or that there was a possible assailant in the residence who would present a risk to anybody. The failure of the police togive due consideration to the objective circumstances makes their conduct relatively serious. As quoted in R v McMahon, 2018 SKCA26, 361 CCC (3d) 429 “Ignorance of this fundamental limit on police powers cannot be equated with good faith”.

I conclude that in thecircumstances of this case, the court needs to dissociate itself from the conduct of the officers. The Second line of inquiry: The Impact of the Breach on the Charter-protected Interests of the Accused [56] This line of inquiry involves examining the interests engaged by the Charter rights and the extent to which the breach affectsthose interests. It focuses on the degree of seriousness of the breach. Some breaches may be transient or trivial in their impact: Harrisonat para 28.

The more serious the infringement, the greater the risk that the admission of the evidence would bring the administration ofjustice into disrepute: Grant at para 76. [57] The

section 8 right to be secure against unreasonable searches protects a person’s expectation of privacy from state intrusion.Nowhere is that expectation of privacy higher than in one’s home. Infringements arising from circumstances denoting a high expectationof privacy tend to favour exclusion of evidence: Paterson at para 49. [58] I conclude that the breach of Mr. Thomson’s right to be free from unreasonable search and seizure had an extremely seriousimpact on his privacy rights. The search, which was not brief, involved entry into many rooms of his private residence.

The Third line of inquiry: Society’s Interest in the Adjudication of the Case on its Merits [59] This stage deals with the criminal trial process and asks whether its truth-seeking function is better served by the admission orexclusion of the evidence in question. It is in the interest of society to ensure that individuals who are accused of violating the law arebrought to trial, and are dealt with according to the law: Grant at para 79.

This line of inquiry pulls towards admission of reliableevidence as exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render thetrial unfair from the public’s perspective: Grant at paras 81 and 83. [60] In particular, the question that has to be asked is “whether the vindication of the specific Charter violation through theexclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial”: R v Kitaitchik, (2002) (ON CA), 166 CCC (3d) 14 (Ont CA) at para 47, cited in Grant at para 82. [61] The seriousness of the offence should not be the primary concern under the third inquiry, and should not “overwhelm the s.24(2) analysis”: Harrison at para 40.

While disrepute may result from the exclusion of relevant and reliable evidence (Grant at para 81),so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to "judicial condonation ofunacceptable conduct by the investigatory and prosecutorial agencies": Collins at page 281. An "adjudication on the merits", in a rule oflaw state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms: Le at para 158. [62] The firearms are real and reliable evidence which weighs in favour of inclusion.

They are also fundamental to the Crown’scase. Any charges relating to firearms are serious. However, this is a case of an irresponsible gun owner, as opposed to being a case of an

individual who possesses a firearm for violent purposes. Balancing the Grant factors [ 63 ] Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the Court must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute: Grant at para 85 .

The balancing has a qualitative nature and there is no overarching rule as to how the balance is to be struck: Harrison at para 36 . [ 64 ] Taking into account and balancing all three of the Grant consideration, I have concluded that the evidence ought to be excluded as to do otherwise would adversely affect the repute of the administration of justice in the long term. While I acknowledge that there is a public interest in having this case adjudicated on its merits, I find that interest is outweighed by the other Grant factors.

Conclusion [ 65 ] Given that I have excluded the evidence, there is no evidence that Mr. Thomson committed an offence pursuant to s. 86(2) of the Criminal Code . He is therefore acquitted. __________________________ M. Beaton, J