R. v. Rana, 2020 ONCJ 552

ONTARIO COURT OF JUSTICE CITATION: R. v. Rana , 2020 ONCJ 552 DATE: November 6, 2020 Central East Region (Oshawa) BETWEEN: HER MAJESTY THE QUEEN — AND — TARIQ RANA Before Justice F. Javed Heard on: January 7, 8, March 5, April 17, September 28, 29, 2020 Submissions heard on October 9, 2020 Reasons on Application and Judgment rendered: November 6, 2020 G. Black.............................................................................................. counsel for the Crown T. Rana ......................................................................................................... self-represented F. Javed J.: -

PART I: OVERVIEW [ 1 ] Tariq Rana (“Mr. Rana”) was tried for the offences of careless storage of a firearm, namely a handgun, contrary to s.86(1) of the Criminal Code and contravening a regulation made under

section 117(

h) of the Firearms Act, in relation to storage of firearms and restricted weapons contrary to s.86(2) of the Criminal Code . [ 2 ] The Crown elected to proceed by

summary conviction on both counts. Mr. Rana pled not guilty to both offences and represented himself at trial. [ 3 ] These are my reasons on Mr. Rana’s application seeking remedies for alleged violations under the Charter of Rights and Freedoms (“ Charter ”) as well as the issue of whether the Crown has proven the offences beyond a reasonable doubt. The reasons are lengthy and will proceed in five parts. First, I will provide an overview of the trial proceedings, which will take some space in the reasons, but it is important context for Mr. Rana’s Charter arguments.

My discussion will reference an earlier mid-trial ruling launched by Mr. Rana seeking leave to raise additional Charter and legal issues. Second, I will outline the legal issues and the analytical order in which they are to be decided. Third, I will address Mr. Rana’s remaining Charter arguments and whether any evidence should be excluded from under s.24(2) of the Charter . Fourth, I will address the merits of the prosecution with the admissible evidence, including whether the Crown has met their burden of proving the offences. Fifth, if the offences have been proven, whether Mr.

Rana has met his burden of proving that the proceedings should be stayed under s.24(1) of the Charter . It should be noted that depending on how the issues are resolved, I may not have to decide other issues as they may be moot. For example, if I determine Mr. Rana’s Charter argument succeeds in excluding the evidence of the firearm, it will gut the Crown’s case. A. The Charges [ 4 ] The circumstances of Mr. Rana being charged with the above criminal offences and the protracted litigation that followed are somewhat unusual. On October 15, 2018, Mr.

Rana placed three 911 calls to the Durham Regional Police Service (“DRPS”) to report that an unwanted male was in his home and refusing to leave. The trespasser was a disgruntled person known to Mr. Rana and his family. Mr. Rana told the 911 dispatchers he was a registered firearm owner and gets very violent and might kill him in self-defence, but later clarified, he wouldn’t use his firearm. He asked for the police to attend at his residence, ostensibly, to remove the trespasser. Eventually, the police arrived and safely removed the trespasser who did not have a firearm.

While inside the residence, and without a search warrant, the police investigated the circumstances of the firearm by asking Mr. Rana about its whereabouts. Ultimately, Mr. Rana, along with his spouse, Khudeja Rana (“Mrs. Rana”), turned over a 9mm Beretta handgun which was in a gun box. The firearm didn’t have a trigger lock and the gun box was not locked. Mr. Rana was legally registered to possess and store the handgun, but the Crown says the handgun was being carelessly stored, given the manner in which it was discovered. Mr. Rana was charged accordingly.

B. Overview of the Charter Arguments [ 5 ] Mr. Rana’s position is the police violated his rights under the Charter in several ways and this alleged impropriety spilled into the courtroom during the prosecution. He says the conduct of the both the police and the Crown Attorney’s Office and in some cases, the conduct of the prosecuting Crown, Mr. Black, amounts to an abuse of process in law and the court should cure this injustice by staying the proceedings. Alternatively, Mr. Rana says the police violated his Charter rights and the evidence of the firearm should be excluded.

In any event, he argues, he’s not guilty of either criminal offence because the handgun was safely stored in a designated gun box which was stored in his wife’s jewelry safe and therefore its’ storage was not careless as it was in compliance with the storage regulation under the Firearms Act . [ 6 ] Mr. Rana’s Charter complaints are grounded in alleged violations of sections 7 , 8 and 9 of the Charter . The sections 8 and 9 allegations involve an argument that the police entered and searched his home without a warrant and without reasonable grounds. Mr.

Rana says he was arbitrarily detained in his residence in violation of s.9 of the Charter when the police began to question him about the whereabouts of the firearm and coerced him into searching for the firearm. He says there were no grounds for the police to conduct a safety search because they were called to remove a trespasser and their authority vanished shortly upon entry into his home. In addition, Mr.

Rana alleges a separate violation of s.8 of the Charter on the basis that the police failed to file a Report to a Justice (“Report”) in respect of the seized firearm which lead to it being unlawfully detained in police custody as it remained in their possession without judicial supervision. He says this problem was aggravated when the police secured its continued detention with a new Report during the trial based on trial testimony. As a remedy for these alleged violations, Mr.

Rana seeks to exclude the evidence of the firearm under s.24(2) of the Charter . [ 7 ] The Crown concedes there was a warrantless search and arrest, which is a prima facie violation of

section 8 but defended the actions of the police based on their common law powers to investigate emergency 911 calls. The Crown says this duty includes the authority to enter a residence and authorizes a search related to this purpose, including a broader purpose of protecting the safety of the public. The Crown says Mr. Rana was not detained when he was asked about the firearm because the police were not investigating him but rather responding to the 911 call. Further, the search was reasonably conducted with Mr. Rana and his spouse offering to assist with the search.

The firearm was seized in plain view once the police had reasonable grounds to believe it was being stored carelessly. The Crown says the ss.8 and 9 complaints regarding the search should be dismissed or alternatively, were not serious police conduct which attract a Charter remedy under s.24(2) .

With respect to the s.8 complaint involving the Report issue, the Crown concedes the police failed to file a timely Report as required by the Criminal Code which resulted in a s.8 Charter violation but the Crown defends this complaint by arguing this was a technical violation, motivated by good faith and in any event, it was corrected during the trial when a new Report was filed. The Crown says the Charter violation flowing from the Report issue was not serious and should not result in a Charter remedy under s.24(2) . [ 8 ] Mr.

Rana also complains that his right under s.7 of the Charter to life, liberty and security of the person was violated based on the conduct of the police and Crown counsel during his prosecution. First, he says the police forensically tested his firearm, despite an admission from him during a judicial pre-trial (“JPT”) that the firearm met the definition under s.2 of the Criminal Code which would otherwise absolve the prosecution from proving this fact. He says this was abusive conduct because it was contrary to his admission and reduced the proprietary value of the firearm which was a legacy piece.

Second, he says the police engaged in abusive conduct by filing a supplementary Report during his trial after discovering that a “perjured” Report had not been filed. Mr. Rana says the officer who sought to file the first Report deliberately lied about the circumstances of the discovery of the firearm and it was improper to file a new one based on trial evidence. Third, Mr. Rana complains that the conduct of Crown counsel during his trial was abusive. He identified three complaints including (

i) the alleged improper exercise of Crown discretion in commencing a prosecution under s.86(2) of the Criminal Code after learning that the police had initially only charged him with an offence under s.86(1) , (ii) not preventing the police from forensically testing the firearm despite his admission, and (iii) the conduct of Mr. Black who represented in written submissions that his firearm was stored “in a cardboard box” not, as the disclosure revealed, a gun box. Mr. Rana complains this undermined his fair trial rights. As a remedy for the above alleged violations, Mr.

Rana seeks an order staying the proceedings, or stated differently, terminating the prosecution. [ 9 ] Crown counsel Mr. Black responds that all of the s.7 Charter complaints have no merit and should be dismissed. First, the Crown says there is nothing improper about charging a new and separate offence based on the same grounds as the original s.86(1) offence. Second, there is nothing improper about testing the firearm where there was no undertaking not to and third, while Mr. Black conceded referring to Mr.

Rana’s firearm “in a cardboard box” in written Charter materials, this was done inadvertently and was not done capriciously or with an intent to mislead. It was an honest drafting mistake and corrected during the trial and did not have the effect of undermining Mr. Rana’s fair trial rights, a trial which he reminds was heard before a Judge and not a Judge and jury. Mr. Black invited the court to strike this drafting error from the written materials and consider the evidence heard on the trial when determining the verdict in this case.

The Crown says there were no proven s.7 Charter violations and in any event, Mr. Rana has not met his onus under s.24(1) to stay the proceedings because this is not a clear case where the proceedings should be stayed. C. Chronology of the Legal Proceedings [ 10 ] Mr. Rana chose to represent himself at trial. It was his constitutional right to do so. Mr. Rana conducted his defence ably because it is obvious, he is well educated, resourceful and respectful. Even though he advanced Charter complaints impugning the integrity of the police and the Crown Attorney’s office, including Mr. Black, he did so professionally.

While it remains to be seen whether any of these legal arguments have any merit, he advanced the arguments while conducting himself civilly and with some forethought, which is expected of litigants appearing before the courts. A criminal trial is not a mediation where the parties are expected to come to an agreement about disputed issues. Criminal cases are adversarial in nature. This case was no different. [ 11 ] Criminal trials with self-represented litigants are challenging for courts and this case was no different. Courts have a duty to ensure a litigant receives a fair but not necessarily a perfect trial.

This includes a duty to provide reasonable assistance to a self- represented litigant. This duty was realized in this case with the assistance of Crown counsel, Mr. Black, who as these reasons will demonstrate, also acted professionally by providing diligent assistance to both Mr. Rana and the court. Despite some of the Charter complaints levelled at his office and him personally, he reacted civilly. He assisted the court in making witnesses available for Mr. Rana

to be called and responded with focused legal submissions in response to Mr. Rana’s arguments. It is not lost on the court that Mr. Rana defended himself against the backdrop of feeling victimized by the administration of justice. As he repeatedly reminded the court, he called 911 for police assistance to remove a trespasser and ended up being charged with criminal offences. He says the police embarrassed him in front of the trespasser and his family. In his final written submission to the court he wrote: “The Crown has lost its way in prosecuting R. v. Rana”.

As the trier of fact, my function is to judge the evidence to determine if it proves his guilt to the requisite legal standard. I must do so dispassionately. Viewed in this context, the trial proceedings could have, but did not, devolve into a mud-slinging contest. Both parties should be commended for acting civilly and professionally. D. The Witnesses [ 12 ] The Crown called two 911 operators who received the frantic phone calls of Mr. Rana and police witnesses involved in the search and seizure of the firearm from his residence (PC Dean Birmingham, PC Pallister and A/Sgt. Clauson). Mr.

Rana elected to testify in his defence and also called his spouse, Mrs. Rana who testified with the assistance of an Urdu/Punjabi interpreter. Additionally, the Crown made some police witnesses available for Mr. Rana including PC Bryce Maclean, PC Peter Kirzsan and PC Francis Shahshani. Mr. Rana agreed to blend all the evidence on the trial and Charter issues. Finally, in support of his mid-trial Charter applications which I will review below, Mr. Rana filed a lengthy affidavit appending some of his disclosure materials.

This too becomes part of the record although given its timing, the Crown did not have the opportunity to test this evidence through cross-examination. E. The Admissions [ 13 ] Mr. Rana conceded the admissibility of the three 911 calls which were made Exhibits 1. In addition, the parties agreed to admit certain facts pursuant to s.655 of the Criminal Code . First, the seized firearm was a restricted firearm within the meaning of s.2 of the Criminal Code as it was tested by the Centre of Forensic Sciences (“CFS”). The parties had secured this admission at the JPT proceedings on January 28, 2019.

Prior to commencing the trial, Mr. Rana confirmed this admission on the record. Second, the parties agreed that PC Kriszan took 17 photographs of the firearm as a scenes-of-crime (SOCO) officer: Exhibits 3, 6. Third, the parties agreed to admit a factual issue which arose based on an assertion made in Mr. Rana’s affidavit which was filed as part of his mid-trial Charter applications. Specifically, Mr.

Rana alleged there was an abuse of process because the Crown in an unrelated proceeding before the Superior Court of Justice (SCJ) in Durham, was “leveraging the criminal proceedings, as part of their prosecution in the SCJ”. When the court raised this issue with the parties mindful that it was treading bad character evidence, Mr. Rana insisted the evidence was relevant and admissible to his Charter claim of an abuse of process because he took the position that the Crown’s decision to continue both prosecutions was motivated by an oblique purpose. Mr.

Black argued that the court should summarily dismiss this claim because it lacked merit but in the event the court chose to screen the application and to avoid cross-examining Mr. Rana on his affidavit, the court should know the date of the alleged offence in the SCJ to have a full chronology of the events. Mr. Rana agreed to admit this fact for the limited purpose of filling in the narrative to his claim and acknowledged he was charged with the SCJ offences on June 14, 2019, thus, while on a release for the offences before me. Further, Mr. Black fairly took the position that despite Mr.

Rana’s concession to blend all the evidence for all purposes, the Crown would not to rely on any alleged bad character evidence as part of the Crown’s burden of proving his guilt on these charges beyond a reasonable doubt. The parties agreed it would only be useful to screening the Charter argument to determine if it had a reasonable prospect of success. Ultimately, I ruled this specific complaint had no merit and it was summarily dismissed as it had no reasonable prospect of success: R. v. Cody , infra. These reasons will not address that issue. The fact of Mr.

Rana’s charge in the SCJ has not been factored into my evaluation of the issues in this case. F. Mr. Rana’s mid-trial application seeking leave to raise a Charter issue [ 14 ] The trial proceedings commenced on January 7, 2020 with the evidence of PC Birmingham. After his examination-in-chief, Mr. Black came into possession of a Report in respect of the seized firearm which was authored by PC Birmingham. PC Birmingham was prepared to swear under oath to a Justice that the firearm was seized based on a “plain view” seizure and sought an order of detention until the completion of the case.

However, the Report was never filed with a Justice which means that the order seeking detention of the firearm was never authorized. As part of the Crown’s ongoing disclosure obligation, the Report was disclosed and Mr. Black fairly conceded a s.8 Charter violation, however, took the position that it was a technical violation given the circumstances of the case and should not warrant a Charter remedy. He cited the case of R. v. Garcia-Machado , 2016 ONCA 569 , in support of this position. Armed with the Report, Mr.

Rana completed his cross-examination of PC Birmingham suggesting he “perjured” himself by stating the firearm was found in plain view when the evidence would establish it was retrieved by Mrs. Rana and given to the police. PC Birmingham denied “perjuring” his evidence. It is important to note that the Report was never sworn before a Justice and thus never became the functional equivalent of evidence under oath. It did, however, provide fodder for Mr. Rana to test the credibility of PC Birmingham who was prepared to have it treated as evidence under oath. [ 15 ] Mr.

Rana sought leave to amend his original s.8 Charter complaint to also include the Report issue given the Crown’s concession. As part of this application, he sought to call up to six (6) additional witnesses on the Charter voir dire as he would argue that in view of the illegal detention of the firearm, its testing by the CFS was unlawful, impacting both the s.8 Charter issue as well as amounting to an abuse of process under s.7 of the Charter .

In support of this expanded application, he sought to withdraw his admission dispensing the requirement of the Crown to prove his handgun was a firearm because he was under the impression from the JPT that his firearm would not be forensically tested thereby depreciating its proprietary value. Mr. Rana took the position that all of these circumstances, including the late disclosure and testing of his firearm unbeknownst to him amounted to a s. 7 Charter violation framed as an abuse of process and warranted a stay of proceedings under s.24(1) of the Charter . I indicated to Mr.

Rana that I would screen these applications if he chose to advance them in writing. [ 16 ] On January 8, 2020, Mr. Black closed his case subject to any reply evidence on the blended voir dire. Mr. Rana testified in his defence and was by cross-examined by Mr. Black. Mr. Rana called Mrs. Rana who testified with the assistance of an Urdu interpreter. She completed her evidence in chief but was not cross-examined. [ 17 ] The trial estimate by the parties secured at the JPT was two (2) days. This estimate had been extinguished and given the impending cross-examination of Ms.

Rana’s spouse by the Crown, I directed the parties to obtain one additional day to complete the trial along with a two-hour window in the intervening period to screen the issues raised by the late disclosure of the Report as well as the

other issues raised by Mr. Rana. Given my duty to ensure an efficient and fair hearing, mindful of the delay that had already been perpetuated by an adjournment of the first trial date, I indicated to the parties that I would screen the new proposed applications to determine if they had a reasonable prospect of success before allowing the parties to set aside additional days of court time: R. v. Cody , 2017 SCC 31 at para. 38 . To be clear, this was in relation to the new s.7 complaints, not the s.8 violation that the Crown had properly conceded.

The parties secured a trial continuation date of June 2, 2020 with a motion date of March 5, 2020. [ 18 ] On March 5, 2020, I heard submissions on Mr. Rana’s applications to: (

i) withdraw his admission of fact in respect of the firearm as it was forensically tested without his consent; (ii) expand his s.8 Charter complaint in respect of the Report issue which the Crown conceded amounted a Charter violation; (iii) expand his s.7 Charter complaints alleging Crown misconduct by breaching an undertaking not to test the firearm and/or participating in an abuse of process by allowing the police and the CFS to test it despite his admission; (iv) quash the information because it was a nullity including a separate application under s.7 alleging an abuse of process on the basis that the Crown decided to also proceed on the s.86(2) offence [violation of the storage regulation offence] when he was only originally charged with the s.86(1) [careless storage of the firearm offence], and (

v) application to call up to six (6) additional witnesses on the Charter voir dire, which was supported with an application to recall some witnesses who had already testified. [ 19 ] The parties elected to not call any evidence on the above applications. Instead, they agreed to argue the issues based on oral submissions and the court’s consideration of the evidence that had already been adduced on the blended proceedings.

In other words, the evidence on the voir dires which had previously been adduced could be used by the court during its screening function and if the motions were permitted to be argued, could also be applied to the applications with the proviso that additional evidence may be adduced. Mr. Rana ably and dutifully followed the courts direction by filing the applications in writing and with proper notice to the Crown. Mr. Black also responded in writing and took the position that Mr. Rana’s s.7 complaints had no merit and should be summarily dismissed.

With respect to the application to quash the information and related Charter issues, he said they should be argued at the end of the proceedings, not mid-trial. Further, without formally conceding the relevance of any witnesses to the issues, he agreed to make police witnesses available to Mr. Rana so they could be called by him. They included: Sgt. Storrey, PC Krizsan and DC MacLean. After hearing submissions, I reserved my ruling to April 17, 2020. I indicated that to promote an efficient hearing, I would deliver my ruling electronically to the parties prior to the return date. G.

The court’s ruling in respect of the mid-trial application [ 20 ] On March 13, 2020, the court delivered a written ruling in respect of the above issues. [1] In

summary, I ruled as follows: (

i) I granted Mr.

Rana to expand his s.8 Charter complaint to include the Report issue and permitted him to seek a Charter remedy under s.24(2) and or s.24(1) in respect of this issue; (ii) I denied his application to withdraw his admission in respect of the firearm, but permitted him to call evidence in relation to the testing of the firearm in support of his Charter complaints as the evidence was potentially relevant in meeting his burden on seeking a Charter remedy under 24(2) and 24(1); (iii) I denied his application seeking permission to argue that the conduct of Crown counsel amounted to an abuse of process under s.7 as this argument had no reasonable prospect of success; (iv) I adjourned his application seeking to quash the information on the basis that it was a nullity until the end of the proceedings; (

v) I ordered the Crown to have DC Shahshani available as a witness on the Report issue as he was involved in filing the second report which Mr. Rana says was “abusive”. Without making this finding, I was prepared to have Mr. Rana explore the issue in view of the Crown’s related s.8 concession. As well, on the Crown’s invitation, I ordered that the three above mentioned police witnesses be made available for Mr. Rana to call but decided that the other two witnesses sought by Mr. Rana were irrelevant. This latter order was made without prejudice to Mr. Rana and subject to review as the circumstances unfolded.

Along with the above ruling, the court gave directions as part of the court’s case management powers to ensure an efficient and fair hearing along with ordering a transcript of the proceedings on January 8, 2020 to allow the parties to properly prepare. The court directed the parties to secure an additional one and-a-half (1.5) days of trial time, on top of the one day in June, to complete the trial given the expansion of the Charter applications. H.

The shuttering of the court due to COVID-19 [ 21 ] On April 17, 2020, the matter did not proceed as scheduled because in late March, the court shuttered due to the COVID-19 pandemic. Given the directives of the Ontario Court of Justice (“OCJ”), the matter was presumptively adjourned for 12 weeks. [ 22 ] On May 25, 2020, the court communicated with the parties by email advising of the court’s continued closure due to the pandemic and advising the trial would not continue on June 1, 2020 as scheduled. Instead, the matter would be presumptively adjourned pursuant to the OCJ directive for 12 weeks to August 10, 2020.

The parties were invited to attend the remote appearance on June 1, 2020 by audio-conference if they desired. I directed that should the court be opened by August 10, the parties should secure two and-a-half (2.5) days of trial time to complete the matter as directed in the court’s ruling. The parties were reminded to request an Urdu interpreter for Mrs. Rana’s evidence. [ 23 ] On August 6, 2020, the court communicated again with the parties by email to advise that the remote appearance on August 10

would be adjourned to August 14, 2020 to accommodate the court’s schedule. [24] On August 14, 2020, the parties attended remotely by audio-conference. With the assistance of the trial coordinator, the partiessecured trial continuation dates of September 28, 29 and October 9, 2020. [25] In the intervening period, Mr. Rana filed two new applications, including: (

i) an application under s.490(15) of the Criminal Code seeking access to the firearm prior to the trial continuation to “examinethe firearm and its case and all the accessories of the firearm in order to refresh its recollection in the matter and to create a photographicrecord of the firearm and its case and accessories to be tendered as exhibits in court”; and (ii) notice of an impending application under s.11(

b) of the Charter alleging a violation of his right to a trial within a reasonabletime. The above applications were not served and filed electronically as required by the Rules of Criminal Proceedings following the COVID-19 filing protocol. Accordingly, the court communicated with the parties on September 10, 2020 by email, appending the new filingprotocol. I. Mr. Rana’s second mid-trial applications [26] On September 28, 2020, the trial proceedings resumed. With respect to the applications referenced in paragraph 25 of thesereasons, Mr. Rana advised he would not be pursuing the application to retrieve the firearm (item

i) as it was moot and would not pursuethe application under s.11(

b) of the Charter (item ii). For clarity, I was not asked to rule on a s.11(

b) application at any point during thelitigation. In the intervening period, Mr. Rana had launched two new applications in writing styled: (

i) Application for Remedies forAbuse of Process and (ii) Application to Exclude Testimonial Evidence. In support of these applications, he filed an affidavit fromhimself appending disclosure materials and copies of the trial transcripts including the aforementioned reference to a new criminalcharge being prosecuted in the Superior Court of Justice. [27] Mr. Black, in his written materials, argued both applications should be summarily dismissed because among other things, theydid not adhere to the Rules of Criminal Proceedings and lacked merit. Mr.

Rana was objecting to the admissibility of evidence alreadytendered and was seeking to raise a new Charter issue. As a matter of law, an objection to the admissibility of evidence should be madeno later than the time the evidence is tendered. This principle applies both at common law and to exclusion of evidence under theCharter: R. v. Kutynec (1992), (ON CA), 70 CCC (3d) 289 (Ont. C.A.), at 294-295.

However, there will be manysituations in criminal litigation where the interests of justice will require a court to consider, either with late notice or no notice at all,Charter implications related to already-admitted evidence: R. v. Gundy, 2008 ONCA 284, at paras. 22-23. Courts have cautioned that theneed to run efficient and focused trials cannot outweigh the need to do justice in an individual case, and trial judges "generally should bereluctant to foreclose inquiry into an alleged Charter violation”: R. v. Tash, (ON SC), [2008] O.J.

No. 200 (S.C.J.), atpara. 15; Gundy, at para. 24. [28] In view of the above principles, I ruled Mr. Rana’s application to exclude his testimonial evidence on the basis that he thought itwas unfair that the Crown was using his evidence against him to prove the offences, had no merit. I summarily dismissed thisapplication. Mr. Rana chose to testify in his defence on both the Charter and trial issues after I explained to him that he had the option tonot testify at all, testify on one hearing and not the other or testify on both.

I was satisfied he made an informed decision to testify and becross-examined once, and to have his evidence on the Charter issues apply to the trial issues. While the permutations of blended hearingsmay be difficult for some self-represented litigants, Mr. Rana is an exceptional self-represented litigant. I repeat, he proved to be an ableadvocate for himself. His oral submissions and legal materials are objective proof of his exceptional abilities. Mr. Rana may have feltdisadvantaged from a skillful cross-examination by Mr. Black, but this is was an informed risk Mr. Rana took.

It did not amount to anunfair trial nor an abuse of process. Mr. Black’s cross-examination of Mr. and Mrs. Rana was fair and never crossed the line. I advisedMr. Rana I would consider his submissions on what weight I should attach to his evidence because the court can accept some, all or noneof the evidence of a witness.

With respect to the Abuse of Process application, it recycled some of the earlier complaints which I hadpreviously ruled would be addressed at the end of the trial but also included a new complaint alleging the failure of the Crown toestablish jurisdiction over the s.86(2) offence, ostensibly, because it was added to the 86(1) offence, and amounted to an abuse ofprocess. I did not summarily address this argument and permitted Mr. Rana to pursue it along with his application to quash theinformation as both arguments rested on similar legal footings.

One addressed the jurisdiction of the court to consider the s.86(2) offenceand the other was whether its consideration amounted to a s.7 Charter violation deserving of a Charter remedy. Mr. Rana agreed with thecourts’ framing of the issue. [29] After addressing the above issues, the trial resumed with Mrs. Rana being cross-examined by Mr. Black with the assistance of aninterpreter. Mr. Rana also called three police witnesses including PC Kriszan, DC MacLean and DC Shahshani. While Mr. Black madeSgt. Storrey available as a witness, Mr. Rana chose not to call him. Mr.

Rana closed his case on both the Charter and trial issues. Mr.Black considered seeking leave to recall A/Sgt. Clauson, but, decided against it. [30] Mr. Rana sought an adjournment of the proceedings to prepare for final submissions. The Crown was prepared to proceed but didnot argue against the request. I granted Mr. Rana’s adjournment request.

Prior to remanding the matter for final submissions, I reviewed,again, the elements of the two offences before the court and provided directions about the exchange of written submissions between theparties in order to ensure an efficient hearing on the scheduled date for submissions: October 9, 2020. Ultimately, Mr. Rana served andfiled a one-page document titled “Closing

Summary” while Mr. Black filed a twelve-page (12) document titled “Closing Submissions”. [31] On October 9, 2020, I heard submissions from the parties on all Charter and trial issues. At my suggestion, Crown counselagreed to proceed first, allowing Mr. Rana to focus his submissions in reply. Mr. Rana declined this offer and vowed to go first as he hadprepared “Final Submissions” which were twenty-nine (29) pages in length, appended with various disclosure materials and legislation.Mr. Rana read this prepared document into the record. After hearing the Crown’s submissions, he did not wish to make any reply

submissions. A date was fixed for judgment. [ 32 ] In the intervening period, Mr. Rana sought leave to file reply submissions in writing. After convening by audio-conference to hear submissions, Mr. Black did not oppose the request. The reply materials include a two-page email which I directed the clerk to attach to the information to complete the record. For clarity, I have considered all of the oral and written submissions of both parties in these reasons.

PART II. THE ISSUES [ 33 ] With the above backdrop in mind, these reasons will address the following legal issues: 1. Is the information charging the two offences a nullity because it is “defective”? 2. Was there a s.8 Charter violation on the basis of the police entering and searching Mr. Rana’s residence without a search warrant and by failing to file a Report and/or filing a Report during the trial proceedings? 3. Did the police form lawful reasonable and probable grounds to arrest Mr. Rana for the offences before the court? 4. Was Mr.

Rana arbitrarily detained by the police in his home under s.9 of the Charter ? 5. If there were proven Charter violations, has Mr. Rana met his onus to exclude the evidence of the firearm under s.24(2)? 6. If the evidence of the firearm is admissible, has the Crown proven beyond a reasonable doubt that he carelessly stored his firearm contrary to s.86(1) of the Criminal Code ? 7. Has the Crown proven beyond a reasonable doubt that Mr. Rana contravened a regulation under s.117(

h) of the Firearms Act in respect of storage of a firearm under s.86(2) of the Criminal Code ? 8. Has Mr. Rana proven on a balance of probabilities that his rights under s.7 of the Charter were violated resulting in an abuse of process? 9. Has Mr. Rana met his onus on a balance of probabilities to stay the proceedings under s.24(1) of the Charter ?

PART III: THE CHARTER APPLICATIONS [ 34 ] Before I turn to the Charter issues, I will summarize the evidence of the witnesses. It is common ground that Mr. Rana placed three (3) 9-1-1 calls which I will itemize below. While there is no conflict that the police entered his residence, there is a credibility dispute about what happened in his residence including the circumstances of the search that lead to the discovery of the firearm. In

summary, the defence position is that the firearm was stored in a locked jewelry safe and removed by Mrs. Rana after Mr. Rana called 9- 1-1 and illegally seized after the police demanded its whereabouts, after the trespass call had dissipated. The Crown’s position is the police lawfully responded to the 9-1-1 emergency call and there was no locked safe. Instead the firearm was unsafely stored in a gun box in a bedroom closet and lawfully turned over to the police. I will commence with a

summary of Mr. Rana’s evidence. A. Evidence of the 911 Calls [ 35 ] On October 15, 2018, Mr. Rana called 9-1-1 to have a trespasser removed from his home. The 9-1-1 calls were played in the courtroom and made Exhibit 1 on the blended voir dire and trial proceedings. To provide some context to the calls, Mr. Rana testified a family acquaintance, Mr. Rihan Quershi, attended at his house uninvited and was let in by Mr. Rana’s teenage daughter. Mr. Quereshi proceeded to blame Mr. Rana for instigating his (Mr. Quereshi’

s) daughter’s divorce. Mr. Rana explained he had previously testified in court proceedings, which ultimately led to some dissention in the Quereshi household. Mr. Rana asked Mr. Quereshi to leave and he refused. Mr. Quereshi began to raise his voice and threatened him. Mr. Rana testified he never threatened him in response but became scared as his children were in the house. As a result, he decided to call 9-1-1 to have the police remove Mr. Quereshi as a trespasser. [ 36 ] The first 9-1-1 call was made at approximately 6:31 pm, with Mr. Rana speaking with the dispatcher, Ms. Alana Timmers. She testified Mr.

Rana told her about Mr. Quereshi as the father of his wife’s best friend. He reported that Mr. Quereshi is threatening his 16 year-old daughter with violence. The other salient aspects of the first 9-1-1 call include the following comments made by Mr. Rana: • “Please have an officer here immediately [to remove a trespasser, Mr.

Quereshi] • “I don’t want to go down [in the living room] because I might kill him”, • “I get very violent and I can take care of him and I don’t want to do that”, • “I haven’t even spoken to him face to face, it’s just my wife who mentioned that he is in the house” • “I haven’t even spoken to him face to face, just my wife told me he’s in the house” • “he’s known to use alcohol and drugs” [ 37 ] Mr. Rana testified he was expecting the police would arrive immediately after the first 9-1-1 call, but they did not. As a result, he called 9-1-1 again at 6:44 pm, and told the 9-1-1 dispatcher, Ms.

Pauline McKnight that he previously called 9-1-1 and nobody

responded to the call. The following are salient aspects of what Mr. Rana said on this call: • “I already called 911 and there’s no police here, I need them here as soon as possible” • “I have a weapon and I will use it on him”, • “I do have a weapon, I have a lawfully obtained weapon”, • “I am not going to use any weapon”, • “It’s a registered 9mm handgun”, • “I have a firearms license for that” • “he’s there to threaten me”. [ 38 ] According to Ms. McKnight, Mr. Rana appeared animated and agitated, with a clear undertone of anger in his voice.

Based on the above information she changed the priority of the call from an unwanted party to a person with a weapon. This information was reflected in the police call card which would be available to any police officer that was dispatched to the call. In cross-examination, she confirmed the call card would have also reflected Mr. Rana’s status as a certified firearm registered owner or CFRO and his comment he wouldn’t use his weapon. [ 39 ] The third 9-1-1 call commenced with a dropped call followed with Mr.

Rana advising the dispatcher in an excited state: “I have a weapon and I need to defend my family, hurry up”. Mr. Rana repeats the complaint of the trespasser and is clearly anxious and upset, repeating “just hurry up”. B. The Police Investigation [ 40 ] The 9-1-1 calls were responded to by various members of the DRPS including Police Constables Dean Birmingham (“PC Birmingham”), Brian Pallister (“PC Pallister”), Sergeant Robert Storrey (Sgt. Storrey) as well as Acting Sergeant Robert Clauson (“A/Sgt. Clauson”).

In the end, PC Birmingham was assigned to be the lead investigator, which involved completing the Report to a Justice in respect of the seized firearm. I will review his evidence as well as the evidence of Police Constable Francis Shahshani who forwarded a second Report to Justice during the trial proceedings. In addition to the above officers, Mr. Black made other officers available for Mr. Rana. These officers were called by Mr. Rana and included: DC Bryce MacLean who examined Mr. Rana’s firearm and PC Peter Krizsan who was present during the photographing of some of the items seized from Mr. Rana’s residence.

The evidence of the latter two officers is less controversial and I will review them when considering the Charter issues. (

i) Evidence of PC Birmingham [ 41 ] PC Birmingham testified he was dispatched to Mr. Rana’s residence at Unit 21-1087 Ormond Drive in Oshawa shortly before 7pm. While in transit he learned about the 9-1-1 calls involving a male trespasser and information that the caller (Mr. Rana) had a 9mm handgun and would defend himself. Upon arriving at the residence, he saw Mr. Rana at the front porch standing by himself. After speaking with him quickly, he determined Mr.

Rana was not in possession of any weapon. [ 42 ] PC Birmingham testified given the nature of the information on the 9-1-1 call involving a 9mm handgun, the police entered Mr. Rana’s residence to ensure the safety of “anyone who may be inside”. Upon entering, he saw a male sitting on the couch, later identified as Rihan Qureshi. He spoke to him briefly. He also confirmed the presence of Mrs. Rana who was inside the house. He confirmed there was nobody in the home with a firearm who needed medical attention. He said the scene was chaotic as everybody appeared agitated.

It was apparent there was a heated argument in a language that was not English which he could not understand. After speaking with Mr. Quereshi, he learned there was some sort of dispute between him and Mr. Rana’s family. [ 43 ] PC Birmingham turned his attention to the 9mm handgun referenced in the 9-1-1 calls. He attended upstairs after A/Sgt. Clauson had gone upstairs with Mrs. Rana. When he arrived upstairs, he saw A/Sgt. Clauson with a box. While he did not search the premises, he learned from A/Sgt.

Clauson that the box contained a handgun that was retrieved from a closet in a bedroom, which in his view, did not appear to be a room where one might store a firearm. He ensured the firearm was “proven safe” which means it was not loaded with ammunition. He testified there was no trigger lock on the firearm, nor was the gun box able to be secured with a lock. [ 44 ] In cross-examination, PC Birmingham confirmed his authority to enter Mr. Rana’s residence and search for the firearm was vested in “his common law powers”. In other words, he did not say he relied on any statutory authority.

He explained he did not have to knock on Mr. Rana’s door as Mr. Rana was standing outside of his residence on the porch and was invited inside. Further, he added that upon entering the residence and confirming that nobody was in immediate danger of a firearm, he still felt prudent to ask about the firearm as it was the basis for the 9-1-1 call.

He stated: “ [my] purpose for being there was not to take away your gun, per se, my purpose for being there was to ensure the safety of everyone, including your own – because you called us.” Finally, PC Birmingham also testified he wasn’t involved in the search of the firearm from the bedroom and it was never in his plain view until after it was shown to him by A/Sgt. Clauson. (ii) Evidence of Acting Sergeant Robert Clauson [ 45 ] Officer Clauson has been employed as a police officer for approximately 11 years. On the date in question, he was on duty as an Acting Sergeant in a supervising capacity.

He was working alone and responded to a radio call for an unwanted person at Mr. Rana’s residence. He was operating a fully marked cruiser. A/Sgt. Clauson said he learned from dispatch that a caller had a 9mm handgun and if necessary, would use the firearm to defend himself. There was also information that the caller said he can act violently.

[ 46 ] At 7:07 pm, he arrived at Mr. Rana’s residence. PC Birmingham and PC Pallister were already on scene. Mr. Rana was standing outside the residence and learned he was the 9-1-1 caller. He spoke to Mr. Rana about the 9mm firearm and testified Mr. Rana told him the firearm was “located upstairs in a box”. A/Sgt. Clauson determined there were exigent circumstances in locating the firearm given the nature of the 9-1-1 call including the reference that it may be used in self-defence.

As such, he decided to enter the Rana residence without seeking a search warrant and search for the firearm. [ 47 ] Upon entering, he observed a male and female inside the residence. Mr. Rana escorted him upstairs into a bedroom which was already open. Mr. Rana proceeded to look for the firearm in the bedroom and on a shelf, but he could not find it. At this point, Mrs. Rana entered the bedroom and went to the walk-in closet and began “rifling” through the laundry and presented him with a blue box which was buried underneath some clothing, “not a locked cabinet”.

The blue box had a Beretta USA symbol inscribed on it which he understood to be a firearm. Exhibit 3 are SOCO photographs of the firearm and box identified as DSC0002 to DSC0005. He observed that the box was not locked. He opened it and saw a 9mm pistol with a magazine seated in the receiver. He removed the receiver. There were no rounds in the magazine. Nor was there a trigger lock. A/Sgt.

Clauson testified that he did not obtain a search warrant for the Rana residence as the 9-1-1 calls made it clear the caller had a 9mm handgun and “it was urgent that we locate this firearm forthwith.” [ 48 ] In cross-examination, A/Sgt. Clauson confirmed he’s not designated as an “inspector” under the Firearms Act which permits entry into a home but instead entered the home under his “common-law powers” to investigate a possible criminal offence of threatening somebody with a firearm, which he learned from the 9-1-1 call. He said upon entering Mr.

Rana’s residence, he didn’t know if anybody had a firearm and did not search Mr. Quereshi nor Mr. Rana or his spouse. When asked if he still believed the circumstances were exigent in his mind after entering, he stated: “Absolutely. I don’t know where - who had access to the firearm”. A/Sgt. Clauson confirmed, while inside the residence, he did not know if PC Birmingham had a conversation with him (Mr. Rana) about the firearm. [ 49 ] A/Sgt. Clauson was challenged by Mr. Rana about whether Mrs. Rana handed over the gun box to him directly or whether she gave it to Mr. Rana who handed it over to the police.

Ultimately, A/Sgt. Clauson conceded he couldn’t recall for sure how the box ended up in his hands, but he was clear that it was retrieved by Mrs. Rana from a walk-in closet. He was also adamant that the never entered the walk-in closet and instead stood at the threshold of the closet. When asked why he didn’t enter the closet, he responded: “Given the size of the closet and the fact that there’s a potential of a firearm being in there, for my safety, I’m not going to stand beside you in small confined space like that”. When challenged on his grounds for the search, A/Sgt.

Clauson said: “… I did not know where your firearm was at that time, and I believed you had a firearm. You had a firearm registered to your residence, as well you made reference to the call- taker, 9-1-1, that you had a firearm and you would use it”. (iii) Evidence of Police Constable Bryan Pallister [ 50 ] PC Pallister was called in-chief by Mr. Rana. He has been a police officer with the DRPS for over 25 years. On the date in question, he too was dispatched to Mr. Rana’s residence and arrived within seconds of PC Birmingham and A/Sgt. Clauson.

He testified he parked his cruiser a few homes away and walked to Mr. Rana’s residence which is depicted in photographs marked as Exhibit 4. Upon arriving at the residence, he saw Mr. Rana standing outside, and spoke to him about the circumstances of the firearm which according to him, Mr. Rana “downplayed”. In his view, Mr. Rana was not being deceptive but also was not forthcoming about the firearm. While he couldn’t recall the exact conversation, Mr.

Rana was focused on the intruder in his home and wasn’t volunteering information about the firearm which raised his suspicion. [ 51 ] At 7:09 pm, PC Pallister advised dispatch over radio that the matter had been “overblown”. He testified he did this because he suspected other officers, including the K-9 unit, would also be dispatched to the home, possibly in haste given the information about the firearm, and wanted them to slow down. In the end, he said other police officers did not have to attend, except for Sgt. Storrey which is routine when there’s a call of a firearm. Sgt. Storrey was made available for Mr.

Rana to call but never ended up testifying. PC Pallister said Sgt. Storrey arrived and spoke with the other officers on scene. He briefed Sgt. Storrey on why Mr. Quershi was present in Mr. Rana’s home and after doing so, Sgt. Storrey left without entering the home because the situation had calmed down. [ 52 ] PC Pallister said he entered at the same time with PC Birmingham and Acting Sgt. Clauson. He was likely the first person to enter. Upon entry, he saw a person sitting on a couch in the living room. He spoke with Mr. Qureshi and did a pat down search and a quick search of the couch.

He was searching for a firearm but didn’t find anything of interest. Unlike Mr. Rana, Mr. Quereshi was forthright and said he had no gun. He didn’t search anybody else for a firearm. He testified that based on the call card, he believed the firearm was either on Mr. Rana or Mr. Qureshi. Mr. Quereshi told him he was in the home because Mr. Rana was speaking to his daughter which he did not like. PC Pallister added while knew other officers were searching for the firearm, he was not involved in the search. PC Birmingham remained on the main level, but he was unsure about the whereabouts of Acting Sgt. Clauson.

Eventually, he saw Acting Sgt. Clauson holding the firearm but did not speak to him about its discovery. In cross-examination, he said the police did not apply for a search warrant as “other officers were dealing with the matter”. [ 53 ] In cross-examination by the Crown, PC Pallister confirmed he was not involved in the search for the firearm. He said he remained in the home until he saw A/Sgt. Clauson bring the firearm downstairs, and after determining it was safe to leave, left. He confirmed that the exigency of the police investigation dissipated after the firearm been retrieved. C.

The Evidence of Mr. and Mrs. Rana (

i) Evidence of Mr. Rana [ 54 ] Mr. Rana chose to testify in his defence after it was explained to him that it was his constitutional right to remain silent and have the Crown prove his guilt beyond a reasonable doubt. He further agreed to have his evidence on the Charter voir dire apply to the trial issues to avoid being cross-examined twice. He is 50 years old and does not have a criminal record. As noted above, he is a highly intelligent man with a degree in biochemistry and business administration. He also completed a couple of years of medical school. Mr. Rana has been married to his spouse, Mrs.

Rana for years. The couple have three children. The parties moved to Oshawa from Ottawa several years ago. [ 55 ] Mr. Rana explained while living in Ottawa, he enlisted with the Canadian Armed Forces and was a commission officer as a

second lieutenant medical in training. He received firearms training in Borden, Ontario and developed a passion for firearms. In 1990, he purchased a 9mm Beretta semi-automatic handgun (“the firearm”) as a legacy item to pass on to his children. The firearm was “never used”, “never touched” and had no ammunition. Mr. Rana applied for and was granted a CFRO in respect of this firearm. There is no evidence before me that his spouse, Mrs. Rana, was also lawfully permitted to possess and store firearms on the date in question. [ 56 ] Mr.

Rana testified that the firearm was stored in a locked safe, which was a metal box advertised to hold valuables. Over time, the safe was mainly used to store his wife’s jewelry. In cross-examination, Mr. Rana provided further details about this safe. He said he purchased the safe about 25 years ago, possibly from Walmart and added: “My wife has taken it over for her use”. And, “she has the key to that safe”. On the date in question, the safe was stored on the floor of his bedroom closet.

When pushed further about its’ exact location in the walk-in closet, he said it was on the “right half” side of the wall upon entering the walk-in closet, which is the corner furthest from the door of the bedroom. The implication of this evidence is that somebody standing at the threshold of the bedroom may not be able to see a safe in the closet. Mr. Rana added that his wife had the key to the safe. Crown counsel, Mr. Black challenged him on this issue producing this evidence: Q. Only your wife had access to the safe? A. Yes. Q. And only your wife had been the one using the safe for a number of years? A. Yes. Q.

I take it, there was only one key for the safe you’re aware of? A. Yes. Q. And you didn’t have possession of that key? A. No. Q. Your wife had possession of the key? A. Yes. [ 57 ] Mr. Rana testified it was never his intention to use the firearm to threaten Mr. Quereshi. Further, the firearm could not be used as it had no ammunition and there was ammunition in the residence. With respect to the 9-1-1 calls, Mr. Rana acknowledged in hindsight, his choice of language to the 9-1-1 operators was careless because he was frustrated the police didn’t attend at his residence immediately. He admitted Mr.

Quereshi was at most a trespasser, and he was prepared to “mislead” the 9-1-1 dispatcher in leaving a false impression about the circumstances of the urgency to “gain an advantage” in having the police attend more quickly. Mr. Rana said it was the first time he called 9-1-1. I note, parenthetically, Mr. Rana was never charged with an allegation of public mischief.

It is arguable whether sufficient grounds existed for this offence based on his careless use words which would have the effect of inciting an emergency involving a handgun – and possibly threatening to use it in self-defence which has a specific legal meaning. Mr. Rana added he was clear with the 9-1-1 operator he would not use the firearm. In his testimony before the court, but not to the 9-1-1 operator, he added: “She [his spouse] has access to it and she would never give it to me”. [ 58 ] With respect to control over the firearm, the pertinent evidence was as follows: Q.

So, during those, that period of time, that extended period of time you wife as far as you were aware, knew that apparently the gun was in the safe? As far as you were aware, your wife knew that the gun was in the safe? A. Correct. Q. And she had access to it and control over the safe, right? A. Correct. Q. You didn’t have control over the safe, right? A. I can’t have control to open the safe. Q. Right. A. But the safe was there. Q. And in fact, when you wanted the handgun for yourself, you weren’t able to get it were you? A. When I wanted the handgun, no. …. Q.

Sir, you’re the only one in the household to possess a firearm, right? A. Yes. After establishing that Mr. Rana knew the inherent dangers of firearms, including a 9mm handgun, Mr. Rana acknowledged he knew it

was important to prevent handguns from being handled from people who are not trained to handle firearms. He admitted he knew he was “clearly responsible” for the handgun that was in his home. [ 59 ] Mr. Rana explained he went upstairs to his bedroom to call 9-1-1. While on the call, he saw his wife go into the closet with the locked safe. Mr. Rana confirmed it had “probably been a couple of years” since he last saw the firearm and knew it would be in the locked safe. Mr. Rana was challenged on whether he knew his wife had removed the firearm from the closet. He stated: I asked my wife for the, for the gun.

She said “No.” I asked her again. She was, she was not willing to remove the handgun from the safe. Then I, then I asked her again and she relented, removed the handgun from the safe and removed it from the box. I asked for the handgun, she said “No”. And then at that time, she had it with her and she left the bedroom and I was upstairs. I called 911. I asked her for the gun, she refused. I asked again, she refused.

She finally, the kids were alone downstairs, and she opened the safe, removed the gun, left the box in the closet and took the gun with her and said to me that I, you know, the police are coming, you don’t need it. So, she just had the gun and took it. Mr. Rana testified he saw his spouse put the firearm under her “chador”, which is an Urdu word for a traditional shawl worn by a woman to cover her entire body and walk out of the room. He knew she went downstairs even though he was distracted and still on the line with 9-1-1.

He told his spouse: “Make sure you put it back in the safe”. [ 60 ] After calling 9-1-1, and knowing his firearm was no longer in the locked safe, he went downstairs and directly went outside and waited on the porch to avoid any conflict with Mr. Quereshi. He did not take possession of the firearm which was still in the possession of his spouse because he knew she couldn’t have returned it to the safe as she remained in the kitchen with the children. He saw a number of police cruisers situated 50 feet away. Mr. Rana tendered a number of photographs depicting their position as Exhibit 8.

He waved them down and did so to assuage any concerns that he may be in possession of firearm. He testified PC Pallister asked him about the firearm and he told him he didn’t have it on his person. Mr. Rana acknowledged he wasn’t forthcoming about the firearm because the basis of his 9-1-1 call was to remove Mr. Quereshi from his home and he wanted the police to remove him, but they seemed to be fixed on the firearm. While he spoke with other officers as well, nobody searched him for a firearm. [ 61 ] PC Pallister was first to enter his residence with the other two officers following behind.

Both PC Birmingham and A/Sgt. Clauson began to immediately ask him “where is the gun”. He repeated he didn’t have one. Mr. Rana testified PC Birmingham said: “you said you had a gun in the 911 call”. A/Sgt. Clauson went outside and returned and told him he was on a 911 call and said you had a 9mm Beretta and said you would use it. Mr. Rana testified he felt “harangued” by PC Birmingham about the location of the firearm. When he refused to reveal the location, he testified PC Birmingham told him he would charge him with public mischief for calling 9-1-1 and saying he had a gun that he was threatening to use it.

Again, he was never charged with public mischief. Mr. Rana said this was uttered to him with his children present and he felt humiliated as he was a registered firearm owner. [ 62 ] Mr. Rana testified he admitted he had a firearm and kept it upstairs, however, he felt pressured to divulge its whereabouts. When asked where, he responded the bedroom. Unlike the police account, he did not say it was in a box. He was worried he would be charged if he didn’t respond to the police questions. He went upstairs with A/Sgt. Clauson into his bedroom. PC Birmingham remained downstairs and came up afterwards. A/Sgt.

Clauson stood at the threshold of the closet as Mr. Rana began to look for the firearm in the closet. He could not find the firearm and called for assistance from his spouse and Mrs. Rana came upstairs with PC Birmingham. In cross-examination, he was challenged on this evidence resulting in the following exchange: Q. If you don’t have access to the safe though, how could you look for it? A. I told my wife to put it back in the safe. Q. So, did you look in the safe when you went up to the closet? A. No. Q. So, you had no idea where the firearm was, right? … A.

Yes, at that point in time, I did not know where the firearm was. [ 63 ] Mr. Rana testified his spouse located the firearm in the closet and handed him the gun box which was heavy. Based on the weight alone, he knew the gun was in the box. Before giving it to him, he tried to open it to make sure it was inside. A/Sgt. Clauson “forbade” him not to open it. He handed the gun box to A/Sgt. Clauson and his spouse left the bedroom. A/Sgt. Clauson opened the box and pulled the firearm out, ejecting the magazine. It had no ammunition. He accompanied A/Sgt. Clauson and PC Birmingham downstairs.

He believed PC Birmingham tried to embarrass him by placing the firearm on the console in plain view of Mr. Quereshi, who was still in the residence. PC Birmingham told him he would be charged with criminal offences as the firearm was unsafely stored, the box was not locked, and the firearm did not have a trigger lock. Mr. Quereshi was ultimately told he could leave and left. (ii) Mr. Rana’s Detention and Arrest [ 64 ] Mr.

Rana testified after the gun box was taken downstairs and “displayed” for everyone to see, PC Birmingham told him he would be charged with unsafe storage of a firearm, but he wasn’t formally arrested or charged at this point. Instead, the police asked him for his firearm registration certificate which he produced, and A/Sgt. Clauson took both the firearm and the certificate outside and told him to “standby”. In my view, any reasonable person standing in the shoes of Mr. Rana at this point, objectively, would feel detained.

This arguably amounted to a detention for purposes of the Charter because he was told to “standby” which means he was not free to move around or leave the house. Even if the police meant for him to wait, the waiting was in relation to confirming the grounds they had just acquired to suspect a criminal offence not something else. As I will explain later in these reasons, I am satisfied Mr. Rana was

detained at this juncture and not earlier, as he was clearly suspected of committing a criminal offence. The police were asking him questions (about his registration certificate) related to the reasons for the detention: R. v. McSweeney , 2020 ONCA 2 , at paras. 42-44 . This triggered a police duty to provide him with his rights to counsel “without delay” or immediately, upon being detained: R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460 , at paras. 38 , 42. There was no evidence lead as to this occurring. A/Sgt Clauson confirmed PC Birmingham issued Mr.

Rana an appearance notice which might have been a function of him being arrested in his home but it doesn’t erase the obligation to provide timely rights to counsel. [ 65 ] Mr. Rana testified during his examination-in-chief, upon learning he would be charged with an unlawful storage offence, A/Sgt Clauson told him the gun box didn’t have a lock. As a result, he testified in a manner which might suggest he made some out of court utterances upon being confronted with this allegation which would otherwise be inadmissible as prior consistent statements.

This did not invite an objection from the Crown, and I have carefully reviewed this evidence and have determined that the utterances were not actually uttered to the police at the time but rather constituted his trial testimony as to what was in his mind. Either way, in R. v. Edgar , 2010 ONCA 529 , the Court of Appeal observed that an admissibility inquiry for this kind of evidence must consider three factors: (

i) the accused must testify, (ii) the statement must be made when the accused was arrested or when first accused of committing a crime and (iii) the statement must be spontaneous. Here, there were no utterances per se, but I will assess the evidentiary impact, if any, of his reaction to the charges below. [ 66 ] Finally, Mr. Rana added “in the interests of full disclosure”, he wanted the court to know that the criminal charges resulted in significant collateral damage, thus he commenced civil proceedings against the DRPS, and they remain outstanding.

He also mentioned his charges in the SCJ as he is now on the police’s radar. In cross-examination, he confirmed the civil proceedings are not in relation to the specific officers in this case but “some of the material” (from this case) is mentioned in the civil proceedings. Again, the charge in SCJ plays no role in my determination of the issues. (iii) Evidence of Khudeja Rana [ 67 ] Mrs. Rana was called by Mr. Rana and testified with the assistance of an Urdu interpreter. She was examined in-chief by Mr. Rana and cross-examined by Mr.

Black who explored the possibility of bias in that her husband told her what to say. On several occasions, she denied “being coached” by her husband. [ 68 ] Mrs. Rana confirmed the evidence of her husband that he is a registered firearm owner who possessed the 9mm handgun which had been purchased in 1990 and stored in her jewelry safe which remained locked. The safe was with them in Ottawa and brought to Oshawa when the moved. It was stored in the master bedroom closet, which has a walk-in closet. Mr.

Rana had never asked for the firearm and to her knowledge, their kids didn’t even know he had a firearm. [ 69 ] On the night in question, Mr. Quereshi, who is a family friend, attended at their house as an unwanted guest. Mr. Rana immediately called 911 to have him removed and asked her for the firearm. She refused. Mr. Rana asked her to open the safe, and she refused again. She refused both requests because she feared the firearm might be used to scare Mr. Quereshi and she wanted to avoid conflict.

Without telling her husband, she removed the firearm from the locked safe and removed it from the gun case and hid the firearm under a shawl knowing that the police had been contacted and were on their way. She told Mr. Rana she had the firearm on her and went downstairs. [ 70 ] Prior to the police attending, Mr. Rana told her to “put the gun back into the safe immediately”. She was in the living room with her children, focused on Mr. Quereshi and refused because to return it she didn’t want to leave him alone with her children as Mr. Rana was waiting outside.

When the police arrived, one police officer entered the residence and searched Mr. Quereshi. The other two officers followed Mr. Rana upstairs to the bedroom. She said one officer began to shout: “where is the gun, called 911”. He became furious, insisting that if Mr. Rana didn’t turn over the gun, he would be arrested. [ 71 ] Mrs. Rana said she still had possession of the firearm but didn’t say anything as she became scared. She did not volunteer she had the firearm because nobody asked her, and her children were in ear shot. Mr.

Rana proceeded to go upstairs with a police officer and yelled down at her asking where is the gun? She went into the bedroom and without anybody seeing, removed the firearm from her shawl and deposited it into the box which was on top of the safe. She handed over the gun box to Mr. Rana. She confirmed Mr. Rana was not in the closet with her. Finally, she saw Mr. Rana holding the gun and attempting to open the gun box but a police officer said, “no let me open it”. The officer took the firearm and the box from Mr. Rana. [ 72 ] In cross-examination, Mrs. Rana was challenged by Mr.

Black as to whether she reviewed any material with Mr. Rana in preparation of her testimony. She adamantly said “No” explaining she can’t read English and only speaks English “a bit”. Further, she was aware of the courts’ order not to discuss the evidence and abided by it. She repeated there was no need to discuss the evidence because she was present for the events and saw what happened. [ 73 ] Mrs. Rana confirmed she was not a licensed firearm owner at the time of the incident. She was aware that Mr.

Rana was a licensed owner and stored the firearm in a safe which she described as a black box that opens with a key. She said it was stored in the closet “in the middle [of the closet] but behind things”. She was the only person who had access to it because it only contained her jewelry and the gun. She added that it was stored in the master bedroom, which at the time was being used by Mr. Rana as she was sleeping with her kids in a different room. That said, her items were still in the master bedroom, including her clothes and jewelry. [ 74 ] Mrs.

Rana was firm in her position that prior to police arriving at her home, Mr. Rana asked her for the gun, and she said no. This resulted in an argument and she went into the closet, unlocked the safe and took the gun with her and hid it under her shawl because the police were on their way. She left the gun box on top of the safe and went downstairs into the kitchen to be with her kids as Mr. Quereshi was still in the house and Mr. Rana was outside. She said Mr. Rana knew she had the gun because he was on the phone with the police. She was worried about Mr. Rana having a firearm in his hand when the police arrived.

Mr. Black asked her as the keeper of the key to the safe, why didn’t she just leave the gun in the safe and hold on to the key. She stated: “it all happened very fast, if he [Mr. Rana] finds the key, he could take gun out of the safe and he would be in trouble”. She added she was scared and confused and worried about what might happen between her husband and Mr. Quereshi. When pushed on what Mr. Black suggested was an illogical

explanation, she added: “You might be right, but at that time, I kept it with me”. [75] Finally, she said when the police arrived, they kept asking her husband about the gun. She didn’t speak up because nobody askedher about the gun. And she began to worry about having the gun on her. When her husband called for her, she went upstairs into thebedroom and without anybody seeing, removed the gun from her shawl and placed it in the gun box which was still on top of the safe. She handed the gun box with the gun to Mr. Rana, not a police officer. D.

FINDINGS AND ANALYSIS [76] I now turn to my findings of fact and analysis of the legal issues commencing with Mr. Rana’s argument that the informationcharging him with the two offences is a nullity depriving the court of any jurisdiction to try the offences. This jurisdictional argumentwas raised mid-trial as part of the package of mid-trial applications, and not prior to commencing the trial. It was not revived after theCrown closed its case on a directed verdict application. Instead, it was left for determination at the end of the trial given that Mr.

Ranaalso relied on the argument as part of his s.7 claim, namely the Crown decision to add the s.86(2) offence amounted to an abuse ofprocess. I propose to address these issues together as the evidence overlaps. Issue 1: Validity of the information & s.7 Charter claim [77] Mr. Rana argued the information sworn by a peace officer, T. Papparella, charging him with the two offences before the courtshould be quashed because it contained a “latent defect” as PC Papparella did not have reasonable grounds to believe an offence had beencommitted which is a precondition to swearing an information.

Specifically, PC Papparella had no grounds to believe there was arestricted firearm in his residence which was unlawfully stored. [78] Mr. Black’s position is the information does not suffer from a latent defect and there is nothing legally improper with the Crownproceeding on a new offence arising from the same evidence as Mr. Rana was not prejudiced. The Crown invites the court to dismiss theargument. [79] In my view, Mr. Rana’s argument about the information being defective has no merit.

As articulated in my reasons on March 13,2020, the golden rule of a charging document is to give a defendant adequate notice of the charge against him or her: R. v. Cote, (SCC), [1977] S.C.J. No. 37. Mr. Rana clearly had notice of all the charges against him. The information had beenparticularized by the police alleging two discrete offences of carelessly storing a firearm and contravening a regulation under theFirearms Act in respect of storage of firearms. The effect of particularizing the information was to put Mr.

Rana on notice of the specificcharges which are related to storage of the firearm, not something else such as carrying or using the firearm. [80] Mr. Rana’s complaint that Officer Papparella didn’t have the requisite grounds to swear the information because the officerrelied on the hearsay evidence of PC Birmingham is also without merit. This complaint fails because an informant does not needpersonal knowledge of all or even some of the facts in support of a criminal allegation to swear an information which is required tocommence a criminal proceeding.

Officer Papparella was entitled, as a matter of law, to rely on the grounds furnished by PCBirmingham to swear the information. The Officer did not have to personally investigate the merits of the information. See for example,R. v. Sharma [2019] O.J. No. 481 (O.C.J.). Mr. Rana’s complaint is really with the grounds that PC Birmingham acquired, not those heconveyed to Officer Papparella, who acted on them. In this respect, the information was not invalid on its face or suffering from a latentdefect. [81] Mr.

Rana’s second complaint with respect to the conduct of the Crown Attorney’s office in proceeding on a second charge unders.86(2) when the police only laid an offence under s.86(1) is also without merit. Crown counsel, as quasi-ministers of Justice, workindependently of the police and enjoy the constitutional freedom to make decisions free of partisan concerns. An important role forCrown counsel is to make independent decisions about whether to proceed with a prosecution once the police have presented theevidence to them.

Crown counsel conduct this role by assessing if there is a reasonable prospect of conviction and whether it’s in thepublic interest to proceed with a prosecution: Krieger v. Law Society of Alberta, 2002 SCC 65 , [2002] S.C.J. No. 45, [2002] 3S.C.R. 372. Crown counsel are not immune from oversight and regulation.

Decisions made by Crown counsel can be reviewed by courts.In Krieger, supra, the Supreme Court of Canada distinguished between two types of discretion exercised by the Crown in criminal cases:“prosecutorial discretion”, which is owed great deference, and the ordinary discretion exercised by counsel in matters of “tactics orconduct before the court”, which may not be owed deference. [82] The Supreme Court held that the “core elements” of this [prosecutorial] discretion “involve the ultimate decisions as to whether aprosecution should be brought, continued or ceased, and what the prosecution ought to be for: Krieger, supra at para, 47.

Mr. Rana’scomplaint with respect to the decision to proceed with a prosecution under s.86(2) and s.86(1) is in my view, a discretionary decisionwhich is owed deference unless it can be shown it was abusive. There is no evidence that the decision to pursue the s.86(2) offence,which is largely regulatory in scope, and arguably carrying less stigma than the s.86(1) offence was abusive. It rested on the sameevidence. There is no evidence it was motivated by dishonesty or bad faith. There is not a scintilla of evidence that the decision amountsto abusive conduct.

It was entirely proper and done early in the proceedings and did not prejudice Mr. Rana’s fair trial interests. [83] For the above reasons, the information is valid and there is no basis to quash it. Further, I do not find the conduct of Crowncounsel proceeding on the s.86(2) offence amounts to an abuse of process. This s.7 complaint is dismissed. Issues 2, 3, 4: Sections 8, 9 of the Charter A. Overview [84] Mr. Rana advances two arguments under s.8 of the Charter. The first complaint involves the police entering and searching hishome without a search warrant leading to the seizure of the firearm.

The second involves the failure of the police to file a timely Reportauthorizing lawful detention of the firearm. A corollary of the first s.8 argument is a complaint he was arbitrarily detained in his home inviolation of s.9 of the Charter. A third and related complaint to the Report issue is a separate complaint under s.7 based on the policefiling a new Report during the trial which he says amounts to an abuse of process. I will address issues 2, 3 and 4 together as the

evidence overlaps. B. The legal principles [85]

Section 8 of the Charter guarantees the right of every person to be secure against unreasonable search or seizure. It serves toprotect the privacy of individuals from the intrusive conduct of the state.

Section 8 is engaged when agents of the state intrude upon areasonable expectation of privacy: R. v. Evans, (SCC), [1996] 1 S.C.R. 8, at para. 11. The right to privacy protected bys.8 of the Charter is connected to the underlying values of dignity, integrity and autonomy: R. v. Plant, (SCC), [1993] 3S.C.R. 281 at p.292 and R. v. Davidson, 2017 ONCA 257 at para. 20. The Supreme Court has repeatedly held that people have a strongexpectation of privacy in their dwellings which includes the ability to exclude people from and deny entry to their dwelling: R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13. [86] It is common ground that the police did not have a search warrant to enter or search Mr. Rana’s residence. In the absence of awarrant, it falls to the Crown to justify the search. In order for a warrantless search to be constitutional, the Crown must meet theirburden on a balance of probabilities in proving (

i) the search was authorized by law, (ii) the law must be reasonable, (iii) the search mustbe conducted in a reasonable manner: R. v. Collins, (SCC), [1987] 1 S.C.R. 265. The parties did not make submissionson the second prong of this test and instead focused on the first and third requirements. I will address them all. (

i) Was the warrantless search authorized by law? [87] The Crown defends the warrantless search of Mr. Rana’s residence by arguing the police were permitted to make a warrantlessentry into his home based on their common law powers which exist when responding to emergency 9-1-1 calls. Further, the safety searchthat followed was an extension of this permitted entry: R. v. Godoy (1999), (SCC), 131 CCC (3d) 129 (SCC). R. v.Waterfield (1963), [1964] 1 Q.B. 164 (Eng. C.A.); R. v. Dedman, (SCC), [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52,[2004] 3 S.C.R. 59, at para. 25; R. v. MacDonald, 2014 SCC 3, [2014] S.C.R. 37.

These principles are well settled but can sometimes bechallenging in their application. A recent decision from the Ontario Court of Appeal provides a succinct two-step framework. In R. v.Stairs 2020 ONCA 678, Fairburn J.A. held at paragraph 14: The first step involves considering whether the police were operating within the scope of a duty imposed by statute or by the commonlaw. If so, the second step involves considering whether the actions taken in fulfillment of that duty constitute a justifiable use of power:Godoy, at para. 12; Mann, at paras. 24-25.

In other words, the question is whether the exercise of power was reasonably necessary in thecircumstances. [88] In this case, I agree with the Crown that that the police were justified in entering Mr. Rana’s residence because they were actingwithin their common law duties to respond to emergency 9-1-1 calls and there were exigent circumstances in doing so. There is nocontroversy that 9-1-1 calls were placed about an intruder and information intimated to the dispatcher involved the caller stating he was aregistered gun owner who may use his firearm in self-defence as he gets violent.

The clear implication of this is

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