R. v. Trout, 2011 ONCJ 807

COURT FILE No.: Sioux Lookout Citation: R. v. Trout , 2011 ONCJ 807 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TYRONE TROUT Before Justice A. T. McKay Heard on October 12, 27, 2011 Reasons for Judgment released on November 30, 2011 Carl O’Brien and Peter Keen....................................................................................... for the Crown Reid Thompson ................................................................................... for the accused Tyrone Trout MCKAY J.: BACKGROUND [ 1 ] Mr.

Trout is charged with three offences arising out of an incident in Frenchmen’s Head, which is one of the communities which make up the Lac Seul First Nation. The specific charges are comprised of one count of carrying a concealed weapon, contrary to

Section 90 of the Criminal Code , one count of resisting arrest contrary to

Section 129 of the Code, and one count of breach of probation by failing to keep the peace, contrary to

Section 733.1 of the Code. [ 2 ] On August 28, 2011, Constables Davis and Fairgrieve of the Lac Seul police were on duty. As a result of a call regarding an unidentified intoxicated person in the community, the police went to the residence referred to in the report. Upon arrival, they saw the accused, who was well known to them, standing in the driveway with two teenage girls. In their opinion, the accused matched the general description of the subject of the report. When they arrived in their vehicle, they observed Mr.

Trout look back at them, put something in the front of his shorts, and run into a nearby house. Mr. Trout was pursued, and when he attempted to close the door to the residence, the door was forced open. He was apprehended at the bottom of the stairs to the basement in the house. He was observed to throw an object later identified as a pellet pistol towards one of the bedrooms in the house. He resisted the police attempts to arrest him. He was on probation at the time. At trial, Mr. Trout brought an application under the Charter of Rights alleging violations of his right under

Section 8 of the Charter to be secure against unreasonable search and seizure and a breach of his right under

Section 9 of the Charter not to be arbitrarily detained or imprisoned. Mr. Trout maintained that his arrest was unlawful, and asked for exclusion of the evidence related to the pellet pistol pursuant to Section 24(2) of the Charter. The Court commenced a voir dire. EVIDENCE OF CONSTABLE DAVIS [ 3 ] Constable Davis has been with the Lac Seul police force for approximately 13 months. He was originally not scheduled to work on August 28, 2011, but was called in because of the volume of work that day.

At 3:05 p.m., he received a call regarding “a drunk, half naked guy walking on the road by the Ronald Angeconeb residence” . At 3:10 p.m., he and Constable Fairgrieve arrived at the Ronald Angeconeb residence in their marked police vehicle. He observed Mr. Trout standing in the driveway with two teenage girls. Mr. Trout was wearing shorts, no shirt. Constable Davis testified that Mr. Trout looked back at the police vehicle, crouched down and put something in his pants and then ran. Constable Davis gave chase and caught up to Mr. Trout at the doorway to the Chisel residence, which was the house next door.

When Constable Davis caught Mr. Trout at the doorway, he smelled alcohol on Mr. Trout. His evidence was that Mr. Trout tried to close the door, but Constable Davis blocked that action with his arm. Constable Davis shoved the door back open and pursued Mr. Trout downstairs into the basement. At the bottom of the stairs, Mr. Trout took what appeared to be a gun from the front of his shorts and threw it into the bedroom. [ 4 ] Constable Davis indicated in his evidence that initially he did not know what Mr. Trout was putting into the front of his shorts, but he believed that it was a black object.

At the point that he and Constable Fairgrieve arrived at the Ronald Angeconeb residence, Constable Davis was of the opinion that Mr. Trout matched the description of the intoxicated individual that the complaint related to. He indicated that Mr. Trout staggered a bit, but was quite capable of running. His evidence is that he chased Mr. Trout in order to detain him, “to find out what was going on”. The behaviour of Mr. Trout in looking back at the police, hiding something in the front of his

shorts and running way aroused Constable Davis’ suspicion. [5] When he caught Mr. Trout at the foot of the stairs in the basement of the house, he grabbed Mr. Trout, who resisted by pullingaway. Constable Fairgrieve arrived in the house at that point. He took control of Mr. Trout and took him upstairs and outside to thepolice vehicle. Mr. Trout continued resisting after he was handcuffed, after he was placed in the vehicle, and at the police detachment. [6] In cross-examination, Constable Davis indicated that his intention at the time he pursued Mr. Trout was to detain him forinvestigative procedures.

His position was that he had the ability to enter the residence because he was in hot pursuit of Mr. Trout, andthat he did not require grounds related to the commission of a criminal offence in order to justify entering the residence in hot pursuit. Heindicated that at the point he pursued Mr. Trout into the residence, he did not have any grounds to arrest Mr. Trout. He also indicatedthat he was unaware of an offence being committed at that point, but that Mr. Trout’s behaviour was suspicious. He did not know whereMr. Trout resided, as Mr. Trout is somewhat of a transient individual. He conceded that Mr.

Trout could have been living in the Chiselresidence, although, he indicated that he did not know Mr. Trout to be residing there. Constable Davis indicated that the biggest issueupon arrival for him was the original call about the “half naked guy wandering around”, and then the subsequent suspicious behaviourby Mr. Trout. [7] Constable Davis agreed that it was a warm summer day and took no issue with the suggestion that it was probably 25 degreesCelsius. He agreed that the nearby lake can be seen from the residence.

He agreed that the two teenage girls were not making anyindication that they required police assistance. Constable Davis also indicated that Mr. Trout ran before the police had an opportunity tosay anything to him. Constable Davis then jumped out of the rolling police vehicle and yelled “Tyrone stop”. At that point, Mr. Troutwas 15 to 20 feet away and approximately 30 feet from the doorway to the Chisel home. Constable Davis described him as “running ata pretty good clip”. He agreed that there was nothing to suggest at that point that Mr. Trout was intoxicated.

EVIDENCE OF CONSTABLE FAIRGREIVE [8] Constable Fairgrieve has been a member of Lac Seul police for a period in excess of four years. She indicated that at 3:05 p.m., therewas a call to detachment. The call involved a report related to a “drunk half naked male staggering in front of Ron Angeconeb’sresidence”. She attended in the police vehicle with Constable Davis. Upon pulling up to the location, she saw Tyrone Trout in thedriveway of the Angeconeb residence with two young females. Her recollection was that Mr. Trout was dressed in shorts, no shirt, withsocks, but no shoes. She testified that Mr.

Trout looked back at them, and put something in his shorts, and ran. Constable Davis pursuedMr. Trout. She stopped the vehicle and closed the open door that Constable Davis had leapt out of. She followed Constable Davis intothe Chisel residence. She observed Constable Davis and Mr. Trout at the bottom of the stairs and Mr. Trout was resisting ConstableDavis. [9] Her evidence was that she did not know what Mr. Trout put down the front of his shorts. She indicated that she pursued Mr. Troutbecause his actions were suspicious and her partner was already in pursuit. She followed for officer safety concerns.

She indicated thatshe was very familiar with Mr. Trout from previous contact. She was also very familiar with the Chisel residence, but was not sure wholived there other than Mr. Chisel. She confirmed that they recovered an air pistol in the basement of the house and in her view Mr. Troutwas intoxicated. [10] In cross-examination, she confirmed that the original call did not mention Mr. Trout by name. In her view they went to thearea of the Angeconeb residence in order to investigate a possible Liquor License Act offence. On arrival, she did not see anything toindicate that Mr. Trout was intoxicated. Mr.

Trout quickly ran away. At the time he ran, she assumed that he had put a bottle of alcoholdown the front of his shorts. CROWN’S POSITION [11] The position of the Crown is that the police were entitled to pursue Mr. Trout into the basement of the Chisel residence andthat the arrest was lawful. Therefore, Mr. Trout resisted the officer while the officer was in the course of his duty. In addition, theevidence of the pellet pistol is admissible in connection of the

Section 90 charge. The Crown provided the court with copies of severaldecisions. The Crown’s position is that those decisions are binding on this Court and apply to this fact situation. Those cases include R.v. Jackson [2002] O.J. No. 4005; R. v. Beckles [2005] O.J. No. 4705, and R. v. Ford 2011 ONCA 622 , [2011] O.J. No. 4320. Each of those decisions is a trial court decision of the Superior Court of Justice. ARREST POWERS [12]

Section 495 of the Criminal Code sets out the power of the police to arrest without a warrant. It reads as follows: “495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reason able grounds, he believes has committed or is aboutto commit an indict able offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set outin

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction,or (

c) on offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having re- gard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the com mission of another offence, may be satisfied without so arresting the person, and (

e) he has reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in orderto be dealt with accor- ding to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution ofhis duty for the purposes of (

a) any proceedings under this or any Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). R.S., c. C-34, s. 450; R.S., c. 2 (2nd Supp.), s. 5; R.S.C. 1985, c.27 (1st Supp.), s. 75.” [13]

Section 529.3 of the Criminal Code deals with the authority of the police to enter a dwelling house without a warrant inexigent circumstances. It reads as follows: “529.3(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act orlaw, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred toin

section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in thedwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would beimpracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm ordeath to any person; or (

b) has reasonable grounds to believe that evidence relating to the com- mission of an indictable offence is present in thedwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction ofevidence. 1997, c. 39, s. 2.” [14] The Supreme Court of Canada dealt with the issue of lawfulness of arrest in a dwelling-house in R. v. Feeney (1997) (SCC), 115 C.C.C (3d) 129. The Court recognized an exception to the general rule that a warrant is required to affect anarrest in a dwelling house.

At paragraph 47, the Court stated “in cases of hot pursuit, society’s interest in effective law enforcement takesprecedence over the privacy interest and police may enter a dwelling to make an arrest without a warrant”. The Court was speaking ofsituations where the officer has personal knowledge of facts which would justify arrest. [15] The Court referred to its 1993 decision, R. v. Macooh (1993) (SCC), 82 C.C.C. (3d) 481, in which theCourt held that the power to enter a dwelling house to make an arrest while in hot pursuit is not limited to an arrest for an indictableoffence.

The court held that in the case of hot pursuit, there is a right to enter a residential premises to make an arrest both for indictableand provincial offences provided that the circumstances otherwise justify an arrest without a warrant. At page 490 of the decision, thecourt states the following, “it would be unacceptable for police officers who were about to make a completely lawful arrest to beprevented from doing so merely because the offender had taken refuge in his home or that of a third party”.

That suggests that for thehot pursuit exception to apply, the police must have reasonable and probably grounds to make an arrest at the time of the pursuit. It islogical that the grounds must exist at the time the police enter the residence, and cannot be formulated after entry to the dwelling house. [16] As indicated in paragraph 11, the Crown the provided copies of three Superior Court of Ontario trial decisions, and took theposition that they were binding upon this Court. They are not. A decision made by the Superior Court sitting in an appellate capacitywould be binding on this court.

Each of the cases referred to by the Crown were trial decisions of the Superior Court. When sitting as atrial court, the Superior Court is a court of concurrent jurisdiction with this court, and its decisions are not binding upon this court. Inaddition, all three cases referred to by the Crown are distinguishable on the facts. None of those cases involved entry into a residence.

In each of those cases, the police were investigating serious criminal behaviour and had some basis to make some connection betweenthe individual being pursued and those issues. [17] In this case, the police received a telephone call regarding an unidentified, possibly intoxicated person walking on theroadway. At that point, it was a report related to something that potentially was more an annoyance than a crime. Upon arrival at the

scene, the police saw nothing to lead them to believe that a crime was being committed. The police were specific in their evidence, thatat the time that Mr. Trout was pursued into the residence, they did not have reasonable and probable grounds to believe that a crime hadbeen committed by anyone, including Mr. Trout. Notwithstanding that, the officer chased Mr. Trout into the residence, forced the dooropen and apprehended Mr. Trout at the bottom of the stairs. His arrest was unlawful. The conduct of the police violated Mr. Trout’srights under

section 8 of the Charter to be secure against unreasonable search and seizure, and his right under

section 9 of the Charter notto be arbitrarily detained or imprisoned. The evidence related to the pellet pistol was obtained in contravention to Mr. Trout’s Charterrights. SECTION 24(2) ANALYSIS [18] The Crown takes the position that if the Charter of Rights of the accused were infringed, the evidence should not beexcluded under section 24(2) of the Charter. The onus is on the Applicant to establish that the evidence should be excluded. Thedecision of the Supreme Court of Canada in R. v.

Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 provides guidance. [19] This court must determine whether, in all the circumstances, admission of the evidence obtained by the charter breachwould bring the administration of justice into disrepute. The Supreme Court of Canada has indicated that the phrase, “bring theadministration of justice into disrepute” must be understood in the long term sense of maintaining the integrity of, and public confidencein, the justice system. The focus is on the broad impact of admission of the evidence of long term repute of the justice system.

Inmaking that determination, this court must examine the three factors set out below. THE SERIOUSNESS OF THE BREACH [20] In Grant, the Supreme Court indicated that the more severe or deliberate the state conduct that lead to the Charter violation,the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct, in order topreserve public confidence in and ensure state adherence to the rule of law. Admission of evidence obtained through inadvertent orminor violations of the Charter may minimally undermine public confidence in the rule of law.

At the opposite end of the spectrum,admitting evidence obtained through a wilful or reckless disregard of charter rights will inevitably have a negative impact on publicconfidence on the rule of law, and risk bringing the administration of justice into disrepute. In this case, the police pursued Mr. Troutinto a residence, forcing open the door. They did so having no reasonable and probable grounds to believe that Mr. Trout had committedan offence either under the Criminal Code or under the Liquor License Act. The breach is a serious violation of Mr. Trout’s charterrights.

IMPACT ON THE CHARTER PROTECTED INTERESTS OFTHE ACCUSED [21] This aspect focuses on the seriousness of the impact of the charter breach on the charter protected interests of the accused. It requires an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. PursuingMr. Trout into the residence without any legal basis to believe that an offence had been committed, and forcing open the door toeventually apprehend him seriously impacted Mr. Trout’s protected interests.

SOCIETY’S INTERESTS IN ADJUDICATION ON THEMERITS [22] As pointed out by the Supreme Court of Canada, society generally expects that a criminal allegation will be adjudicated onits merits. Therefore, the third line of inquiry for this court is whether the truth seeking function of the criminal trial process would bebetter served by admission of the evidence, or by its exclusion. Thus, this court must consider not only the negative impact of admissionof the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence.

The evidence of thepellet pistol is reliable, and that would militate towards its admission. Another relevant factor in this inquiry is the importance of theevidence to the prosecution’s case. Obviously, admission of the evidence is important to the crown’s case on the weapons charge. It isthe crown’s only evidence that the offence was committed. However, I note that at the conclusion of argument on the voir dire, counselagreed to file two witness statements which are relevant to the weapons offence. They are the statements of the two teenage girls whowere standing in the driveway with Mr. Trout.

The essence of those statements is that Mr. Trout was using the pellet pistol as a toy,playing with it. The crown candidly admitted that given that evidence, even if this matter is adjudicated on the merits, the crown may beunable to obtain a conviction on the weapons charge.

SECTION 24 RULING [23] The court must balance all three inquiries in order to make a determination. As indicated, this was a serious breach of Mr.Trout’s charter rights, and one which had a serious impact upon those rights. The court is of the view that the evidence must be excludedin order to maintain the integrity of, and public confidence in the justice system. Therefore, the evidence of the pellet pistol is excluded. REMAINING ISSUES

[ 24 ] The court understands that the Crown’s position is that if the arrest was invalid, and the evidence of the pellet pistol is excluded, there is no further evidence for the Crown on the trial, and acquittals must result. If that is not the Crown’s position, the Crown may indicate so on the return date set for continuation. Released: November 30, 2011 Signed: “Justice A. T. McKay”