2010 MBPC 57, 2010 MBPC 57

Date: December 13, 2010 Citation No. 2010 MBPC 57 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Debbie Buors, ) for the Crown - and - ) ) T.W.B., ) Gerri Wiebe, a young person ) for the Accused ) ) Judgment delivered: ) December 13, 2010 These reasons are subject to a mandatory publication limitation pursuant to the Youth Criminal Justice Act , section 110(1) CARLSON, P.J. [ 1 ] T.W.B., a young person, is charged with a number of offences, including offences relating to a firearm that was found and seized by police, on November 21, 2008, in T.W.B.’s bedroom of the home he lived in, located at a particular address, in Winnipeg, Manitoba. [ 2 ] Specifically, T.W.B. is charged with careless storage of a firearm, a Jiminez Arms 9 millimetre handgun, possession of that firearm without a registration certificate, and possession of that firearm without a licence, contrary to sections 86(1) , 91(2) and 91(1) of the Criminal Code of Canada (“the Criminal Code” ) .

He is also charged with two counts of possession of a prohibited device, specifically a 12 round magazine, without a licence, contrary to section 91(2) of the Criminal Code. [ 3 ] Age, notice, jurisdiction, the fact that the accused is, in fact, T.W.B., and that T.W.B. was a youth within the meaning of the Youth Criminal Justice Act , at the time of the alleged offence, are admitted. [ 4 ] At the outset of T.W.B.’s trial, a voir dire was held to address the motion filed by his counsel seeking a judicial finding that the search of the home at which T.W.B’s resided, and the seizure of the gun and magazines found there, were in violation of T.W.B.’s right to be free from unreasonable search and seizure under

section 8 of the Canadian Charter of Rights and Freedoms ( the “ Charter ”) , and an order excluding the evidence obtained as a result of that search pursuant to section 24(2) of the Charter. [ 5 ] This is my ruling on the voir dire . The Evidence [ 6 ] The Crown called four witnesses on the voir dire. Three of those witnesses were officers employed by the Winnipeg Police Services, namely Constable Kathlene Kuzak, Patrol Sergeant Norbert Bauer and Constable Christian Guyot. The Crown also called T.W.B.’s step grandmother, P. G. Defence counsel called one witness, being T.W.B.’s mother L.

B. [ 7 ] There are some personal relationships between some of the witnesses that are important. Constable Kuzak is L.B.’s best friend. Patrol Sergeant Bauer is Constable Kuzak’s husband, and at the time of this incident, was her common law partner, and was known to L.B. as such. P.G. knew Constable Kuzak as L.B.’s friend, and recognized Patrol Sergeant Bauer as Constable Kuzak’s common law partner. [ 8 ] The evidence of all the witnesses taken together establishes that the following occurred on November 21, 2008.

[ 9 ] As of November 21, 2008, L.B. lived in a home in Winnipeg, with her 17 year old twins, her son T.W.B. and her daughter K.B. [ 10 ] On November 21, 2008, P.G. was house-sitting at L.B.’s home, at L.B.’s request. P.G. is L.B.’s stepmother. L.B. was away from Winnipeg that day, and planned to be away for a couple more days on a short vacation, in Montreal, for the Grey Cup football game. P.G. was staying at L.B.’s home for the primary purpose of taking care of L.B.’s dog.

She was also doing some housekeeping at L.B.’s home, and was providing some limited monitoring of L.B.’s children, T.W.B. and his sister, K.B. [ 11 ] On that day, while at the house, P.G. received a telephone call from L.B.’s mother, C.B. They had a conversation, during which C.B. provided information to P.G.

What C.B. told P.G. led P.G. to take the step of going into T.W.B.’s bedroom, when he was not home, to see if she could locate a gun. [ 12 ] P.G. testified that she was often in T.W.B.’s bedroom, with his knowledge, to do cleaning, and she would typically tidy up and put his clothes away in his drawers. [ 13 ] After checking in the bedroom closet and finding nothing of concern, P.G. noticed that the vent in T.W.B.’s bedroom. Specifically she noticed that the screws on the vent cover were loose. She looked inside the vent, and saw a sock. She pulled the sock out, looked inside the sock, and saw a gun.

She replaced the gun, still inside the sock, back in the vent and put the vent cover back on. [ 14 ] She then called C.B. and told her that she had found a gun in T.W.B.’s room. They had some conversation, and the way the conversation was left, from P.G.’s perspective, was that C.B. was going to ask somebody what to do about the gun. P.G. said she was waiting to hear back from somebody, and was worried that T.W.B. might come back, realize she had been in his room and hide the gun. [ 15 ] P.G. did not speak to anyone else about the gun.

Very shortly after her conversation with C.B. ended, three Winnipeg police officers arrived at the door of the home. Those were Patrol Sergeant Bauer, Constable Guyot and Constable Hardbottle. [ 16 ] What happened from the time P.G. and C.B. spoke on the phone until the three police officers attended at L.B.’s home is addressed in the evidence of Patrol Sergeant Bauer, Constable Kuzak and L.B. There are some differences about what was or was not said during conversations between L.B. and Patrol Sergeant Bauer and between L.B. and Constable Kuzak. Those differences will be addressed later.

But the evidence of all witnesses is consistent as to the sequence of events. [ 17 ] Constable Kuzak, who was on police duty and at work, received an email from her uncle asking her to contact C.B. Constable Kuzak called C.B. from her office at about 4:37 p.m. Constable Kuzak received information during that call, including that L.B. was out of town and that T.W.B.’s other grandmother, P.G., had searched T.W.B.’s room and found a gun.

Constable Kuzak said she was not asked by C.B. to do anything specific and agreed that C.B. was looking to her, as L.B.’s friend and because she was a police officer, for guidance as to what to do. [ 18 ] Constable Kuzak told C.B. to call L.B., tell her what had happened and ask L.B. to call her (Constable Kuzak). [ 19 ] Immediately upon ending the call with C.B., at 4:43 p.m., Constable Kuzak went to the Street Crimes Unit, located in the same building as her office, and spoke to Patrol Sergeant Bauer and Sergeant Hay.

She told them that she had just spoken to L.B.’s mother, C.B., and had received information that T.W.B.’s other grandmother, P.G., had found a gun in the vent in T.W.B.’s bedroom. [ 20 ] While Constable Kuzak was meeting with Sergeants Bower and Hay, L.B. called Constable Kuzak on her cell phone. They had a very brief conversation. L.B. confirmed that C.B. had called her and told her what happened. Constable Kuzak told L.B. that she was at work and was handing her over to Norbert Bauer, and she then handed the phone over to him.

Constable Kuzak said she was present for the first twenty or thirty seconds of that conversation. She heard Patrol Sergeant Bauer say that the matter needed to be dealt with and that he wanted to go and get the gun. [ 21 ] When Patrol Sergeant Bauer and L.B. had finished talking, Patrol Sergeant Bauer handed the phone back to Constable Kuzak, and Constable Kuzak spoke to L.B. again. L.B. told her she needed to make arrangements to come home, and that she was aware T.W.B. would be getting arrested. [ 22 ] Constable Kuzak called L.B. back shortly after that, at 5:01 p.m. L.B. said she was flying back that evening.

Constable Kuzak told her the street unit would be dealing with things and would attend L.B.’s home “quietly” or “low key”, though she can’t recall the words she used exactly. L.B. did not recall Constable Kuzak using those words but agreed she may have. [ 23 ] Patrol Sergeant Bauer attended at L.B.’s home with Constables Hardbottle and Guyot. The officers were wearing jackets with the word “police” on them, and otherwise wearing civilian clothing. Patrol Sergeant Bauer knocked on the door. P.G. answered and he identified himself to her.

P.G. recognized Patrol Sergeant Bauer as L.B.’s friend Kathy (Kuzak)’s boyfriend. P.G. opened the door and let them in. Patrol Sergeant Bauer told P.G. he had spoken to L.B. on the phone, that L.B. knew he was there, and that he was there to get the gun. P.G. took the officers to T.W.B.’s bedroom, pointed to the vent on the floor, and said “it’s in there”. Patrol Sergeant took the vent cover off, and found a handgun. There was an empty magazine inside the gun and another magazine beside it.

He made the gun safe and gave it to Constable Hardbottle. [ 24 ] He went to the kitchen with P.G. and called T.W.B. on his cell phone. He told him he was a police officer, that he had located the gun and that T.W.B. needed to come home and turn himself in. He called L.B. and told her she needed to call T.W.B. and tell him to turn himself in. [ 25 ] At 5:34 p.m. Patrol Sergeant Bauer called Constable Kuzak and advised that he was at L.B.’s home and that he had located a handgun. [ 26 ] At about 6:20 p.m. T.W.B. returned home, and was arrested.

He was taken to Division 11, processed, released, taken home and received at home by P.G. Later that evening, L.B. arrived home.

[ 27 ] It was admitted into evidence that a Report to a Justice was never done by officers with respect to the search and the gun and magazines seized at L.B.’s home. Differences in the evidence [ 28 ] There are some differences in the evidence as between L.B. and Constable Kuzak, and as between L.B. and Patrol Sergeant Bauer.

Some of the differences are immaterial and L.B. candidly said that she was in shock upon learning that a gun had been found in T.W.B.’s room, and that some of the things that Constable Kuzak testified had been said between them she could not remember, but agreed indeed were probably said by Constable Kuzak.

The most significant difference in L.B.’s version of events from that of Constable Kuzak and Patrol Sergeant Bauer is that L.B. said Patrol Sergeant Bauer told her during their first telephone conversation that he was going to rely on a piece of law called “exigent circumstances” so that it would not be necessary for him to get a search warrant. Patrol Sergeant Bauer adamantly denied he ever used the words “exigent circumstances” in his discussions with L.B.

Constable Kuzak testified that she did not hear Patrol Sergeant Bauer use those words during the part of the conversation between L.B. and Patrol Sergeant Bauer that she overheard, although she acknowledges she did not hear the entire conversation. [ 29 ] Due to this difference in evidence, and a number of instances when L.B. acknowledged that, if her recollection was different than Constable Kuzak’s, but that, as L.B. said “Constable Kuzak wouldn’t lie”, the Crown asks the court to find that L.B.’s evidence is not credible. [ 30 ] I am satisfied that, when I consider the evidence of all the witnesses, the sequence of events is as set out above.

I am also satisfied that I do not need to rely on L.B.’s evidence at all, as the statement of facts above is sufficient for the court to make the findings required to decide the issues raised on the voir dire, and it is not necessary for me to decide between the evidence of L.B. and other witnesses. Statement of the Ultimate Issues to be decided on the Voir Dire [ 31 ]

Section 8 of the Charter guarantees one’s right to be secure against unreasonable search and seizure. If a breach of an accused’s

section 8 right is found, section 24(1) of the Charter requires the Court to determine whether the evidence located as a result of an unreasonable search and seizure should be excluded from the trial evidence. [ 32 ] The ultimate issues to be determined by the court on this voir dire are: 1. Was T.W.B.’s

section 8 Charter right infringed when Patrol Sergeant Bauer and his two fellow officers searched T.W.B.’s bedroom and seized the gun and magazines from the vent? 2. If so, should the evidence of that search and seizure be excluded from the evidence on the trial of the charges against T.W.B.? [ 33 ] Defence counsel says the answers to both questions is “yes”. [ 34 ] The Crown says the answer to both questions is “no”, and that even if the answer to the first question is “yes”, the answer to the second is “no”. Issue 1: Was there a

section 8 breach? Questions to be answered on the voir dire as to the issue of whether there was a

section 8 breach [ 35 ] T.W.B. was 17 years old at the time the alleged offence occurred. Accordingly, he was a young person within the meaning of the Youth Criminal Justice Act. Pursuant to

section 3(

e) of the Charter , young persons are fully entitled to the rights secured by the Charter . [ 36 ] The onus to establish that his

section 8 right was breached is on T.W.B., on a balance of probabilities ( R. v. Collins , 1987 CanLII 84 (SCC) , [1987] S.CJ. No. 15). To do so, T.W.B. must establish: • That the search was conducted by a government agent; • That he had a reasonable expectation of privacy with respect to the place that was the subject of the search; and • That the search was unreasonable

( R. v. Swidnicki , [1999] M.J. No. 187 (Man. Q.B.) . [ 37 ] A warrantless search is presumptively unreasonable ( Hunter v.

Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145). [ 38 ] The Crown may rebut this presumption in a particular case by proving, on a balance of probabilities that the search was either authorized by a valid consent or was reasonable. [ 39 ] A warrantless search that is not consented to will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable ( R v Collins , supra .), or where there are “exigent circumstances”. [ 40 ] Accordingly, the onus in this case is on T.W.B. to establish that he had a reasonable expectation of privacy in his bedroom, or at least in the vent in his bedroom, that the search was carried out by agents of the government and that the search was warrantless. [ 41 ] The evidence establishes that the search was done by three Winnipeg Police Services officers.

Police officers are government agents. The evidence also establishes there was no search warrant obtained. Accordingly, the remaining issue for T.W.B. to establish is that he had a reasonable expectation of privacy in his bedroom. If he can prove that, then the onus shifts to the Crown to prove the search was either validly consented to, or otherwise reasonable on the basis there were exigent circumstances. [ 42 ] The Crown contends that the search of T.W.B.’s bedroom was authorized by law on both, or at least one, of two bases, as follows: 1.

That there was consent to enter the home and to search T.W.B’s bedroom, given, explicitly or impliedly by L.B. and/or by P.G., such that it was unnecessary to obtain a search warrant; and 2. That in any event, there were exigent circumstances that justified the search without getting a warrant. [ 43 ] Accordingly, each of the following questions has to be answered in order for the Court to decide the ultimate issues on the voir dire : A. Did T.W.B. have a reasonable expectation of privacy in his bedroom, and specifically in the vent where the gun was found?

If not, there is no need for the court to decide anything else, as T.W.B. will not have satisfied his onus to prove a

section 8 breach occurred. If so, the court must go on to decide whether the Crown has established reasonableness of the search by answering the following questions. B. Was the search authorized by consent? (

i) Could L.B. and/or P.G. give consent, in law, to the search of T.W.B.’s bedroom, as homeowner and house-sitter respectively? (ii) If so, did L.B. and /or P.G., in fact, give police consent? (iii) If so, were those consents, or either of them, informed consent(s), so as to make them valid consents? C. Did exigent circumstances exist? The law and its application to the questions to be answered on the voir dire A. Did T.W.B. have a reasonable expectation of privacy in his bedroom? [ 44 ] A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

The factors to be considered in assessing the totality of the circumstances may include, but are not limited to, the following: (1) presence at the time of the search; (2) possession or control of the property or place searched;

(3) ownership of the property or place; (4) historical use of the property or item; (5) the ability to regulate access, including the right to admit or exclude others from the place; (6) the existence of a subjective expectation of privacy; and (7) the objective reasonableness of the expectation. ( R. v. Edwards (1996), 1996 CanLII 255 (SCC) , 104 C.C.C. (3d) 136 (SCC.). [ 45 ] Generally, an individual has a reasonable expectation of privacy in his own home ( R. v.

Wong (1990), 1990 CanLII 56 (SCC) , 1 C.R. (4 th ) 1 (S.C.C.). [ 46 ] There have been some different views of a teenager’s expectation of privacy in his bedroom within a home owned by a parent. In R. v. J.P.W ., [1993] B.C.J.

No. 2891 (youth court) , the court said that a teenager’s bedroom is probably the place in which he would have the greatest expectation of privacy, that it is the teenager’s “home” within the larger home provided by his parent, and the fact a parent might go into the room to clean or even to search, and that there may not be a lock on the door, does not diminish the reasonable expectation of privacy that teenager has vis-a-vis the state. [ 47 ] But in R. v. Rai, [1998] B.C.J.

No. 2187 (B.C.S.C.) the court considered other decisions, and found that the young person in that case did not have a reasonable expectation of privacy in a room that he used exclusively, although it was not his bedroom. In R. v. Rai , the court said that while parental control is not always irrelevant to a teenager’s expectation of privacy, it is also the case that parental property rights in a house are not determinative of a teenager’s expectation of privacy. Instead the court said one must come back to the factors set out in the R. v.

Edwards case, in order to determine the extent of a teenager’s actual expectation of privacy. In R. v. Rai the court found that the accused’s expectation of privacy was high but conditional upon his father’s consent, because the reality was that his father limited who did and did not go into that room. [ 48 ] In R. v. Fash (1999), ABCA 267, the Alberta Court of Appeal held that a teenaged accused did not have a reasonable expectation of privacy relating to his bedroom or its contents. In that case, there was specific evidence led about rules the accused had to follow in relation to his room.

His mother imposed house rules he had to follow. His mother went in his room a couple times a week to pick up dirty clothing and tidy. Several other occupants of the house also went into his room without his permission, and one of them borrowed his clothes. Applying the factors in R. v.

Edwards , supra., the court held the accused did not have a reasonable expectation of privacy. [ 49 ] The Supreme Court of Canada in R v Wong , supra. , found a hotel guest had a reasonable expectation of privacy as to objects not left in plain view or stored in areas not requiring daily maintenance, even though it was anticipated that housekeeping staff would enter the room daily to clean. [ 50 ] In the case of T.W.B., there was no evidence that anyone other than T.W. B. controlled access to his room, or that anyone imposed conditions that limited control by T.W.B. of his room.

P.G. went in from time to time, with his knowledge, to clean and put away clothes but P.G. specifically confirmed that access did not extend to looking through his things, and that T.W.B. would not have given her permission to snoop through his things. There was no evidence that anyone else went into T.W.B.’s room, or that there were any rules or conditions relating to use of his room. Indeed, T.W.B. may not have had an absolute expectation of privacy in his bedroom. But, applying the R. v.

Edwards criteria to the circumstances of this case, I find that T.W.B. certainly had a reasonable expectation of privacy in his bedroom. [ 51 ] Further, the gun and magazines were not found out in the open in T.W.B.’s room. They were found concealed inside a sock, that was located in a vent, which had a cover on it. In my view, this distinction is important.

T.W.B. had a reasonable expectation that even though his grandmother might enter his room to do cleaning or take laundry, she, nor anyone else, would take the cover off the vent and remove what was inside. [ 52 ] T.W.B. has established that he had a reasonable expectation of privacy in his bedroom, and in the vent located in his bedroom. B. Was the search authorized by consent? [ 53 ] A person may waive his rights under

section 8 of the Charter . The onus to prove that a person has waived his or her right is on the Crown to establish that the person had full knowledge of his right to be secure against an unreasonable search, and that he had full knowledge of the effect the waiver would have on that right ( R . v. Nielsen (1988), 1988 CanLII 213 (SK CA) , 43 C.C.C. (3d) 548 (Sask. C.A.) [ 54 ] In order for such a waiver to be effective, the person purporting to consent must have the requisite information as a foundation to provide a true release of the right.

The right to choose requires not only the information to prefer one option over another but also enough information to make the choice meaningful ( R. v. Borden , 1994 CanLII 63 (SCC) , [1994] 3 S.C.R. 145). [ 55 ] Although the police do not have a duty to advise someone of his or her right to refuse to consent to a search, if they do not do so, that may lead to a violation of a

section 8 right where police actions can only be justified on the basis of informed consent. A person

cannot give an effective consent to a search unless he or she is aware of the right to refuse to consent ( R v Lewis (1998), 1998 CanLII 7116 (ON CA) , 122 C.C.C. (3d) 481 (Ont. C.A.) [ 56 ] The Manitoba Queen’s Bench in R. v. Swidnicki, supra., adopted the passage in the Ontario Court of Appeal case of R. v.

Wills (1992), 1992 CanLII 2780 (ON CA) , 70 C.C.C. (3d) 529 at pp. 546-547, as to the requirements to be met by the Crown to establish there has been a valid consent to search, as follows: “In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and (vi) the giver of the consent was aware of the potential consequences of giving the consent…” [ 57 ] In this case, if consent to search T.W.B.’s bedroom, and the vent in his bedroom, was given, it will only be effective to waive T.W.B.’s

section 8 right if it was given by someone who was authorized in law to consent to the search, and if it was a valid, namely an informed, consent. (

i) Could L.B. and/or P.G. give valid consent to police to search T.W.B.’s bedroom, or is it only T.W.B. himself that could give such consent ? [ 58 ] T.W.B. himself was not present when police arrived, entered the residence, and searched his bedroom. [ 59 ] The right guaranteed by

section 8 of the Charter is a personal right. Accordingly, the consent to a waiver of that right is a private matter between the individual who has that right guaranteed and the state agents. That makes sense, since it would seem generally unacceptable for a third party to be able to surrender someone else’s constitutional rights. [ 60 ] However, there are situations in which a valid consent to search a person’s property may be given by a third party. [ 61 ] The Supreme Court of Canada in Duarte v.

R. (1990), 1990 CanLII 150 (SCC) , 53 C.C.C. (3d) 1, held that for a third party consent to effectively be a substitute for the consent that can only be given by an accused, it must be found to be an acceptable substitute for the absence of prior judicial authorization. In other words, police must have had reasonable and probable grounds to have obtained a search warrant at the time they conducted the search in issue. [ 62 ] In R. v. Barrett, [1995] O.J. No. 920 (Ont.

C.J.) , consent was given by an accused’s common law wife and by his mother, to a search of the accused’s locked briefcase in a drawer in his dresser in the bedroom he and his common law wife shared in a home owned by his parents. The court, in assessing whether those third party consents were sufficient to excuse the requirement of a search warrant assessed whether the officers had reasonable and probable grounds to have obtained a search warrant at the time. The court found that the Crown could not rely on the consent of the common law spouse or mother of the accused to waive the accused’s

section 8 right, because the police did not have reasonable and probable grounds to obtain a search warrant. [ 63 ] In R. v. J.P.W ., supra., it was found that the consent of a young person accused’s father to search the accused’s bedroom was not an effective waiver of the accused’s

section 8 right as it was not an acceptable substitution for a warrant. There were not reasonable and probable grounds to get a warrant, simply mere suspicion. [ 64 ] In R. v. Rai, supra ., the accused’s father invited police in to search the accused’s bedroom and consented to them searching that room. The court held that consent could be relied on to effect a waiver of the accused’s

section 8 right because the police had reasonable and probable grounds upon which they could have obtained a search warrant, even though they chose not to do so. [ 65 ] In this case, did Constable Kuzak and/or Patrol Sergeant Bauer, based on the information they had, have reasonable and probable grounds, so as to have been able to obtain a search warrant at the time police attended at T.W.B.’s residence? [ 66 ] The information that both Constable Kuzak and Patrol Sergeant Bauer had was from C.B. that the other grandmother P.G. had found a gun in the vent in T.W.B.’s bedroom. They had no information, and asked no questions of C.B., nor of P.G. about: • when the gun was found;

• how long the gun had been in the location in which it was found; • whether or not C.B., who was providing the information, had actually seen the gun herself; • whether or not T.W.B. had a registration or licence for the gun (and no checks were done by police to determine this); or • what the gun looked like or whether it appeared to be operational. [ 67 ] There was no information at all as to P.G.’s observations of the gun. The information Patrol Sergeant Bauer relied on was fourth hand information. No efforts at corroboration were made.

There was no evidence that either Constable Kuzak or Patrol Sergeant Bauer asked any questions about the gun. In my view, the Crown has not established that police had reasonable and probable grounds to obtain a search warrant. [ 68 ] Accordingly the only consent that would suffice to permit a search of T.W.B.’s bedroom was that of T.W.B. himself.

The third party consents, even if otherwise valid, given by L.B. and/or by P.G. were not effective to permit the search. (ii) If I am incorrect as to the above, and the third party consents, or either or them, could have effectively authorized the search and amounted to an effective waiver of T.W.B.’s

section 8 right, were such consent(

s) in fact given, and if so, were they informed ? Did L.B. and/or P.G. give explicit or implied consent to police to search T.W.B.’s room ? [ 69 ] The onus to prove that an informed consent was given is on the Crown. [ 70 ] There is no dispute in the evidence that neither L.B. nor P.G. said words to the police to the effect of “I consent to you coming into the house, and searching T.W.B.’s bedroom”, or “I agree that you can come into the house to search T.W.B.’s bedroom”.

All of the evidence is consistent that there were no words spoken by either L.B. nor P.G. that could constitute express consent. [ 71 ] In considering whether implied consent was given, there was no dispute as between the evidence of witnesses that: • At no time did Patrol Sergeant Bauer tell L.B., when he was speaking to her, before attending to her residence, that police required her consent to go into her residence, or that she did not have to consent to police going into her home • At no time did Patrol Sergeant Bauer, or either of the other two officers with him, ask P.G.’s permission to enter the residence, nor tell her that she did not have to let them into the residence, or that once inside the residence that she could ask them to leave at any point • L.B. did not tell Patrol Sergeant Bauer or Constable Kuzak not to attend her residence, or not to arrest T.W.B. • P.G. never told the officers that they could not come in, and at no time while they were in the house, told them to leave [ 72 ] Patrol Sergeant Bauer’s evidence was that he thought he had the consent of L.B. to go into the house, based on his discussion with her.

He said that when he spoke with L.B. on the phone, he told L.B. his concerns about there being a gun in the house, including the safety of P.G., that T.W.B. might come home and remove the gun, and that he had public safety concerns if T.W.B. came and removed the gun. He said L.B. was in agreement that the gun had to be removed before T.W.B. got home. He said he asked L.B. if she had any concerns about him going to the home to get the gun, and that she said “no. These are the words he relies on as his authority to enter the house and get the gun.

He says it was not necessary for him to explain to her that she did not have to let him enter the house or that she could tell him to leave at any point once he was in the house. [ 73 ] Constable Kuzak’s evidence is that she told L.B. on the phone that the first thing was to get the handgun secured and that L.B. agreed. [ 74 ] According to P.G., Patrol Sergeant Bauer said to her, when she answered the door, words to the effect of “you know why I’m here?” She said “I think so”, and testified that she thought he was there because somebody had talked to him about the gun.

P.G. said that as he was walking into the house, Patrol Sergeant Bauer said “I’ve talked to L.B.. L.B. knows I’m here”. He said “L.B. knows everything. I just got off the phone with her”. P.G. said she did not feel she had the right to ask them to leave because, based on what Patrol Sergeant Bauer told her, she felt L.B. had given the officers permission to come into the house. P.G. testified that her reaction to the police coming into the residence was relief that L.B. knew about the gun, and that the police were going to take the gun out of the house.

P.G. says that if the officers had not told her that L.B. knew about it, she would have called L.B., or L.B.’s mother to ask what to do, and that she would not have made the decision about letting the police into the house on her own. She let them in because they told her that L.B. knew about the gun and knew they were coming to the house. [ 75 ] Constable Kuzak says that when she told L.B. the street crimes unit would be going to her house, L.B. said “ok”. [ 76 ] There was no implied consent for police to enter the home and to search given by L.B. and/or P.G.

P.G. only let officers in because, based on what Patrol Sergeant Bauer told her, she assumed L.B. had given consent and that things were essentially “out of her hands”. L.B., even on the evidence of the other witnesses, and without even considering her evidence, clearly did not say words from which it could be implied that she consented to a search. L.B. was told by Patrol Sergeant Bauer that police were going to her residence

to get the gun. (iii) If I am wrong that the third parties could not, in law, give consent on behalf of T.W.B. and/or I am wrong that neither L.B. nor P.G. actually or impliedly gave consent, was any consent that was given valid? Specifically, was any such consent informed consent? [ 77 ] The Crown argues that the requirements for a valid consent set out in R. v . Swidnicki, supra , apply only to a consent given by an accused person, and that if a person who is not the accused, gives consent to search a place, there is no requirement of police to tell that person of his or her right to refuse.

That is, the Crown says, because the person who is giving the consent, unlike an accused, is not facing potential jeopardy. In R. v. Swidnicki , the consent being contested was indeed purported to be given by an accused. [ 78 ] The Crown says in this case, neither L.B. nor P.G. was facing potential jeopardy as a result of the giving of the consent, and so all of the safeguards built into the type of consent described in R. v. Swidnicki are not applicable here. [ 79 ] I do not accept this argument. The Ontario Court of Appeal in R. v. Wills , supra., and the Manitoba Court of Queen’s Bench in R. v.

Swidnicki , in listing the requirements for valid consent, refer in each requirement, not specifically to “the accused” but to “the giver of the consent”. In fact the court in R. v. Wills goes on to provide some further specific requirements for a valid consent when the person asked for his consent is an “accused, suspect or target” that are not required for a consent given by any other “giver of the consent” to be valid. [ 80 ] Accordingly, I am satisfied that to be an informed, and valid consent, all of the requirements set out in R. v. Swidnicki must be met.

Accordingly, the Crown must prove that L.B. and/or P.G. knew that they had a right to refuse to let police enter and search. [ 81 ] Even on the police evidence, none of the officers even allege that they told L.B. or P.G. this. Having not been told, there is no reason to expect they would know that they could refuse. [ 82 ] In the circumstances, if consent was given by L.B. and/or by P.G., it was not informed and therefore not valid. C.

Did exigent circumstances exist? [ 83 ] Both Constable Guyot and Patrol Sergeant Bauer testified that they felt there were exigent circumstances that justified going into the residence and conducting the search without being required to obtain a search warrant. [ 84 ] All three officers who testified said that it was Patrol Sergeant Bauer who made the decision not to apply for a search warrant. [ 85 ] Patrol Sergeant Bauer said he did not apply for a search warrant due to time constraints.

Specifically, he said, no one knew when T.W.B. would get home, and he had concerns for the safety of P.G. who was still in the house, and for public safety in case T.W.B. came home and moved or removed the gun. He said it takes at least two hours to get a search warrant, and he did not think he had enough time to do that.

He said he did not consider making application for a telewarrant, and did not consider posting an officer outside T.W.B.’s house while a warrant was being applied for as a viable option. [ 86 ] As earlier stated, there is a difference in the evidence as to whether or not Patrol Sergeant Bauer told L.B., when he spoke to her on the phone before going to her residence, that he was relying on there being “exigent circumstances” to go to the house without a warrant. L.B. says that he did.

Patrol Sergeant Bauer says that he did not refer to “exigent circumstances” at all during his conversation with L.B. [ 87 ] The Crown attorney asks the court to not believe L.B.’s evidence on this point. Since the onus is on the Crown to prove that exigent circumstances did exist, I find that whatever was, or was not, said as between L.B. and Patrol Sergeant Bauer about exigent circumstances is really not relevant to the critical issue as to whether or not in fact exigent circumstances existed.

Accordingly, again, I find that I do not need to assess L.B.’s credibility as I can decide this issue based solely on the evidence called by the Crown. [ 88 ] The “exigent circumstances” provision of the Criminal Code is

section 529.3 , which 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 or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in

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

section 529.1 exist but by reason of exigent circumstances it would be impracticable 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 or death to any person; or

(

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.” [ 89 ] The

section specifically sets out two prerequisites that must exist for police to enter a dwelling house without a warrant, before even considering whether exigent circumstances exist. First, police must have reasonable grounds to believe the person they intend on arresting is present in the dwelling house. Here, the officers knew in fact, that T.W.B. was not in the dwelling house. Second, police must have reasonable grounds to believe that the conditions for obtaining a warrant exist.

I have already found that police did not have those grounds. [ 90 ] Accordingly, neither of the two prerequisites has been established to even entertain a consideration of whether exigent circumstances existed. But if I am incorrect in that finding, did exigent circumstances exist in this situation? [ 91 ] The only information police had when they left for the residence was that one of T.W.B.’s grandmothers had found a gun in T.W.B.’s bedroom.

They did not have any information about: • when she had found the gun (there was no information about timeframe provided at all; they did not know if this was a recent development or one that was dated); • how she knew it was even a gun (there was no information about what it looked like); • whether the gun was operational or capable of being operational; • whether T.W.B. had ever returned to the residence since the grandmother had found the gun, before leaving again; • whether T.W.B. had any licence or registration for firearms; or • when T.W.B. might be expected to return home. [ 92 ] The officers did not take any steps to corroborate any of the information that they had received. [ 93 ] The officers left the station within fifteen minutes of receiving the information.

They did not go with the usual back up police units, nor were they poised for an entry requiring any element of surprise. There was no evidence they hurried to get to the residence. [ 94 ] Patrol Sergeant Bauer said there were three reasons that there were exigent circumstances.

These were: • because they were dealing with a gun, • because of the people involved; and • because of manpower issues. [ 95 ] Patrol Sergeant Bauer acknowledged the fact alone that there was a gun was not sufficient to make circumstances exigent. [ 96 ] The fact that Patrol Sergeant Bauer knew the family involved does not make circumstances exigent, nor does it justify police conduct that takes any less account of an accused’s rights. [ 97 ] The fact that there may not have been sufficient resources available is not a basis upon which police may circumvent the requirement to obtain a warrant. [ 98 ] Patrol Sergeant Bauer gave an example of a situation in which he did take the time to get a warrant.

That involved receipt of information that there was a gun in a known crack house, where gang members were known to frequent, and there were a number of people present, some of whom may reasonably have been expected to be intoxicated or high. It seems to me that the “exigency” of the circumstances in the present case is less than in that case. [ 99 ] There is simply no evidence to support reasonable grounds for suspecting that entry into the residence was necessary to prevent imminent bodily harm or death to anyone, nor imminent destruction or loss of evidence.

Although indeed that must always be a concern when information is received about a gun being located in a residence, there must be more than suspicion that, if time is taken to get a warrant, someone may be hurt with the gun, or that the gun may disappear or be destroyed. [ 100 ] I conclude that, even if the prerequisites of

section 529.3 of the Criminal Code were present, which I find they were not, there were no exigent circumstances here that justified entering and searching L.B.’s home, and in particular T.W.B.’s bedroom. [ 101 ] I note that when Patrol Sergeant Bauer was asked on what authority he was proceeding without a warrant, he stated he was relying on

section 117.04(2) of the Criminal Code . That

section reads as follows:

“117.04……

(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any thing and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.” [ 102 ] Again, in order to act without a warrant, there must grounds for obtaining a warrant.

I have already found that such grounds did not exist. [ 103 ] In any event, when a peace officer does a search without a warrant under subsection (2), there is a mandatory requirement set out in

section 117.04(3) that he: “ Forthwith make a return to … a justice who might otherwise have issued a warrant, showing……in the case of a search conducted without a warrant, the grounds on which it was concluded that the peace officer was entitled to conduct the search, and the things or documents, if any, seized.” [ 104 ] In this case, no return or report was provided to a justice. Conclusions as to the questions to be answered on the voir dire as to whether there was a breach of T.W.B.’s

section 8 Charter right [ 105 ] Based on the foregoing, I have concluded that: 1. T.W.B. had a reasonable expectation of privacy in his bedroom and in particular, in the vent in his bedroom; 2. Neither L.B. nor P.G.’s consent, if it was given, could be a substitute in law for T.W.B.’s consent which would be required, and was not given, to search his bedroom; 3. In any event, neither L. B. nor P. G. gave express consent to search, nor can consent be implied from the circumstances; 4. Further, any such consent that purported to be given or implied, was not valid as it was not informed consent; and 5.

Exigent circumstances did not exist so as to justify police entering the home or T.W.B.’s bedroom without a search warrant. [ 106 ] Accordingly, I am persuaded, on a balance of probabilities, that T.W.B.’s

section 8 Charter right to be secure against unreasonable search and seizure was violated when police officers entered his home, and in particular his bedroom, and searched his bedroom, and seized the gun and magazines. A

section 8 breach has been established. Issue 2: Should evidence about the results of the search and seizure made by police of T.W.B.’s bedroom be excluded from evidence at trial, pursuant to section 24(2) of the Charter ? [ 107 ] The burden is on T.W.B. to establish, on a balance of probabilities, that to admit the evidence could bring the administration of justice into disrepute. [ 108 ] In R. v.

Grant , 2009 SCC 32 (CanLII) , [2009] 2 S.C.R. 353, the Supreme Court of Canada revised the approach judges are to take in considering whether evidence obtained as a result of a Charter breach should be excluded under section 24(2) . At paragraph 71 of that decision, a three pronged test was articulated:

“A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach of the Charter – protected interests of the accused (admission may sent the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.” Seriousness of the Charter – infringing state conduct [ 109 ] The court must assess the nature of the police conduct that constituted the Charter breach and led to discovery of the evidence.

The more serious or intentional the infringing conduct was, the greater the need for the court to distance itself from that conduct by excluding evidence obtained as a result of that conduct, so as to preserve public confidence in the rule of law and thereby ensure public compliance with the law. Inadvertent or minor breaches are at the low end of the continuum of seriousness, whereas deliberate, wilful or flagrant breaches are at the high end. [ 110 ] This case presents some unique circumstances, due to the personal relationships of Constable Kuzak and Patrol Sergeant Bauer with L.B. and her family.

All the police officers in this case clearly took seriously their duty to protect the public, and were focused on their duty to locate and seize potentially dangerous firearms. While Constable Kuzak and Patrol Sergeant Bauer were put in the position of having to deal with people with whom they had a close personal relationship, the fact is that they were on duty and accepted responsibility for dealing with this matter in their professional capacity.

Having done so, they were duty bound to protect the accused’s Charter rights, to the same extent as they are duty bound to protect the Charter rights of anyone whose family members they did not know personally. [ 111 ] The evidence of even just the police officers, without any reference to the evidence of P.G. or L.B., make clear that: • They did not have grounds to get a warrant based on the information they had when they attended at the home; • There were not exigent circumstances when they attended; • They did not take any steps to get any further information upon which they could have proceeded to apply for a warrant; • There was no effort made to contact T.W.B. prior to attending at the home; • Police did not ask either L.B. or P.

G. for consent or permission to enter the residence or T.W.B.’s bedroom; and • Police did not provide any explanation to L.B. or P.

G. that they could not enter without permission or consent, that they had the right to refuse them entry and that they had the right at any time they were in the residence, to tell them to leave. [ 112 ] Where consent to search is given by a third party with what may be reasonably perceived as apparent authority by police, even if the consent given by a third party turns out not to be valid because it cannot substitute for actual consent of the accused, that apparent authority may be considered in determining admissibility of evidence obtained in doing the section 24(2) analysis ( R. v.

Barrett, supra.) In this case, both L.B. and P.G. may have reasonably seemed to police to have apparent authority to consent to police searching T.W.B.’s room. L.B. was the homeowner and P.G. was someone who seemed to be in charge of the home in L.B.’s absence. If police had specifically given L.B. and/or P.G. the requisite information to make an informed decision, including telling them they had a right to refuse the search, and actually asking them if they agreed to the search, even though such consent(

s) would not be valid substitutes for the consent of T.W.B., those actions of police, in my view, would have lessened the seriousness of the Charter infringing conduct. [ 113 ] Instead, due to the personal relationships involved, Patrol Sergeant Bauer essentially told L.B. that he and other officers were going to her residence to get the gun. L. B. did not object but she was not told that she could object. P.G., when she answered the door, was told by Patrol Sergeant Bauer that L.B. knew he was there to get the gun. P.

G. was not given any choice in the matter. [ 114 ] Accordingly, due to personal relationships, Patrol Sergeant Bauer circumvented what he was required to do in order to protect citizens’ rights against unreasonable search and seizure. He knew the players involved, assumed, without asking them, that they would want him to get the gun at all costs, and accordingly did not take the steps he is required to, by law, of providing the required explanation to request consent, or, alternatively of taking steps to get further information and then apply for a search warrant. [ 115 ] T.W.B. has the same rights under

section 8 of the Charter as do the numerous individuals that Patrol Sergeant Bauer does not know personally and deals with every day. Those rights of T.W.B. must be protected by the law just as closely. The fact T.W.B. and his family were friends of Patrol Sergeant Bauer and Constable Kuzak did not justify Patrol Sergeant Bauer treating those Charter rights with any less regard than those of people unknown to him.

Although I have no doubt that Patrol Sergeant Bauer and Constable Kuzak had the safety interests of T.W.B., P.G. and the public forefront in their minds, the fact is that the personal relationships here caused Patrol Sergeant Bauer to take shortcuts and to make assumptions about what L.B. would want, instead of doing what he would normally do in order to ensure a subject’s Charter rights were protected. Although certainly not driven by any sort of malicious intent or ill will,

the fact is that Patrol Sergeant Bauer disregarded T.W.B.’s

section 8 Charter right. This was not a technical breach, but based on deliberate police action. Accordingly the infringement of the right is at the high end of the seriousness continuum. Impact on the Charter-protected interests of the accused [ 116 ] This line of inquiry looks at the degree to which an accused’s Charter protected interests were violated.

The more significantly the breach actually undermined the interests protected by the right breached, the more likely admitting the evidence would result in the administration of justice being brought into disrepute. [ 117 ] The impact of the breach is that police went into T.W.B.’s bedroom, in which he had a high expectation of privacy against state intrusion, and found a gun, without either consent or a search warrant, and when circumstances were not exigent. [ 118 ] The impact is significant as a gun and magazines, potentially extremely incriminating evidence, was found.

Society’s interest in adjudication on the merits [ 119 ] This inquiry requires a consideration as to whether the repute of the administration of justice would be better served by admitting the evidence or by excluding it, bearing in mind society’s interest in ensuring people who break the law are dealt with according to the law. [ 120 ] Factors to consider include the reliability of the evidence, the importance of the evidence to the prosecution’s case and the seriousness of the offence at issue. [ 121 ] The evidence of the search in this case is highly reliable.

It is physical evidence that can be testified about and, if necessary, produced in court. The evidence is critical to the prosecution’s case. The offence is serious, since it involves a firearm, and in particular, a firearm being in a residence. [ 122 ] Society has an interest in having cases involving firearms adjudicated, given the danger firearms pose to our communities. [ 123 ] The facts that evidence obtained in breach of a Charter right is reliable, and is tendered on a serious charge do not necessarily mean such evidence will not be excluded. In the R. v.

Harrison case ( 2009 SCC 34 (CanLII) , [2009] 2 S.C.R. 494), a large amount of cocaine was seized as a result of a breach of the accused’s Charter rights. Even though that evidence was highly reliable and was tendered on a very serious charge, the court excluded it pursuant to section 24(2) of the Charter , finding that the seriousness of the offence and the reliability of the evidence did not in that case outweigh the factors in favour of exclusion. Balancing of the Grant factors [ 124 ] The gun and magazines were found as a result of T.W.B.’s right to unreasonable search and seizure guaranteed by

section 8 of the Charter being breached. When the three step inquiry mandated by R. v. Grant is applied to the facts of this case, a balancing of the factors favours exclusion of the evidence of the search. Although the gun and magazines are reliable evidence on a very serious charge, and are critical to the prosecution’s case, and although members of the community have an interest in having serious offences such as those involving firearms found in residences adjudicated on their merits, the long term repute of the administration of justice is more important.

Admitting the evidence would condone police taking short cuts and treating the Charter rights of certain accused with less consideration than others and than required by law. Even though a police officer may be motivated by intentions related to ensuring public safety and getting guns out of the hands of people who should not have them, the fact he may have a personal relationship with an accused or his family, cannot be seen, in the public’s eyes, to permit any sort of “watering down” of the diligence with which an accused’s Charter rights must be safeguarded.

Although it may be understandable that Patrol Sergeant Bauer would rely on the apparent authority of L.B. and /or P.G. to consent to the officers searching T.W.B.’s bedroom, even though legally no consent could be substituted for T.W.B.’s consent, L.B. and P.G. were not asked for their consent, nor told police needed consent to enter the residence, and no information that could justify informed consent was provided.

No steps were taken to apply for a warrant, even though there were clearly not exigent circumstances, because Patrol Sergeant Bauer assumed, knowing L.B. as he did, that L.B. would want him to get the gun. Although he did not ask to be put in that position, the fact Patrol Sergeant Bauer had a personal relationship with the accused’s family resulted in his treating the accused’s Charter rights with less regard than they otherwise would be.

The repute of the administration of justice depends on members of the public, who are fully informed, being confident that the protection of his or her Charter rights does not in any way depend upon personal relationships, and is protected to an independent standard.

To admit evidence obtained in a way that circumvented that independent standard would negatively impact on the long term repute of the administration of justice. [ 125 ] Accordingly, the evidence of the search conducted by police of T.W.B.’s bedroom, and of the seizure of the gun and magazines, shall be excluded from evidence at the trial, pursuant to section 24(2) of the Charter . Original signed by: CATHERINE CARLSON, P.J.