R. v. Farrah (D.), 2011 MBCA 49

Citation: R. v. Farrah (D.), 2011 MBCA 49 Date: 20110628 Docket: AR 09-30-07279 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) R. T. Amy ) for the Appellant Respondent ) ) C. A. Vanderhooft ) for the Respondent - and - ) ) Appeal heard: ) December 8, 2010 DAVID FARRAH ) ) Judgment delivered: (Accused) Appellant ) June 28, 2011 CHARTIER J.A.

Introduction and Issues 1 This is a conviction and sentence appeal. 2 Following a trial, the accused was convicted of two counts of robbery with a firearm, possession of a prohibited weapon with ammunition without authorization or a licence, possession of a sawed-off shotgun for a dangerous purpose, disguise with intent and mischief under $5,000.

He received a total sentence of seven years’ imprisonment, less pre-sentence custody credit. 3 With respect to the conviction appeal, the judge found that there had been a violation of the accused’s rights under s. 8 of the Canadian Charter of Rights and Freedoms (the Charter ). However, she refused to exclude the evidence under s. 24(2) of the Charter .

The accused argues that the judge erred in refusing to do so. 4 When an accused appeals a decision relating to the non-exclusion of evidence under s. 24(2), the respondent Crown is entitled to raise the issue of whether the judge erred in finding that there was indeed a Charter violation in the first place (see R. v. Grant , 2009 SCC 32 at para. 129 , [2009] 2 S.C.R. 353, and R. v. Reddy , 2010 BCCA 11 at para. 46 , 251 C.C.C. (3d) 151).

The Crown is doing so in this case. 5 As a result, the principal issue on the conviction appeal is whether the accused’s s. 8 Charter rights were breached and, if they were, whether the evidence found as a result thereof should be excluded under s. 24(2 ) of the Charter . 6 The sole issue on the sentence appeal is whether the judge erred in giving the accused pre-sentence credit on a 1.5:1 basis instead of 2:1 with respect to the time he spent in custody on new charges, which arose after his initial release on the charges at issue on this appeal. The Standard of Review

7 By which standard is this court to review the issue of whether there is a Charter breach? There are several components tothis question. They are as follows:

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensurethat the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and thestandard of review is correctness.

b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether therewas an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, thefacts as found by the judge should not be disturbed (see Grant at para. 129).

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by thejudge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (see R.v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527).

d) The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is a question of law. However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s.24(2) assessment when the appropriate factors have been considered (see Grant at para. 86, and R. v.

Beaulieu, 2010 SCC 7 at para. 5,[2010] 1 S.C.R. 248). 8 The judge’s determination as to the amount of pre-sentence custody credit to be awarded under s. 719(3) of the CriminalCode (the Code) is an exercise in discretion and is therefore subject to deference (see R. v. Wust, 2000 SCC 18 at para. 45, [2000] 1S.C.R. 455, and R. v. Traverse (L.) et al., 2008 MBCA 110 at para. 82, 231 Man.R. (2d) 123). Assuming no reversible errors of fact orlaw and barring a decision so clearly wrong as to amount to an injustice, this court will not interfere (see R. v.

Regan, 2002 SCC 12, 2002 S.C.C. 12 at para. 117, [2002] 1 S.C.R. 297 and Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81, 245Man.R. (2d) 70, where Freedman J.A. provides astute comments on the standard of review analysis on questions involving the exerciseof discretion at paras. 24-28. The Facts 9 The convictions all arise from one incident. At approximately 11:30 p.m., on January 31, 2007, two patrons were using anATM located inside the front entrance of a bank when a man pulled out a sawed-off shotgun and attempted to rob them. The robber waswearing a trench coat, a tuque and a scarf over his face.

When the robber was distracted, the two patrons fled. As one of the patronswas driving away, the robber fired the shotgun at his vehicle. No one was injured, but the vehicle was damaged. 10 At 11:34 p.m., Sergeant Basic was called out to the scene with his tracking dog.

He was provided with the followinginformation about the incident: 1) that a gun had been fired; 2) that a vehicle was seen speeding away; 3) that a female had been heard screaming; 4) that two males had been seen running in a westerly direction on Sargent Avenue; and 5) that the robber was last seen near 558 Maryland Street, four houses south of Sargent Avenue. 11 When Sgt. Basic attended to that location, his dog picked up the scent and began tracking. It was now 11:48 p.m. At 12:10a.m., the dog led Sgt.

Basic, along with other police officers, to an apartment building at 590 Victor Street, approximately three blocksaway. A belt, commonly used to tie overcoats, was found inside the building. The dog went to the second floor. It initially showedinterest in suite 16, but then proceeded to the front door of suite 12. Sergeant Basic noticed water on the floor in front of suite 16 andobserved that the door was ajar. He knew that a gun had been fired in the commission of the offence and that there may be more thanone person involved in the robbery. Given this fact situation, Sgt.

Basic ordered that, in the interest of public and officer safety, bothsuites be secured by clearing them of any persons. 12 Officers Marr and Comte, after identifying themselves as police officers, entered suite 12 to clear it for public and officersafety concerns. They had their guns drawn. They found the accused hiding under a pile of clothing in a bedroom. The accused washandcuffed and escorted from the suite. Although the police had not yet arrested the accused, he was most certainly detained. 13 Officers Bergagnini, Wurr and Powell then entered suite 16 to clear it for public and officer safety concerns.

A sawed-offdouble-barreled shotgun was found in the kitchen closet. That closet was big enough for a person to walk into and hide. One live roundand one empty shell were found in the shotgun. An officer testified that the shotgun had recently been fired as it smelled of burntgunpowder. The officers also found, behind the main door to suite 16, a trench coat without a belt, a pair of wet runners, two tuques anda scarf.

The belt (see above at para. 11) found inside the building appeared to match the trench coat. 14 After the shotgun was found, the accused was placed under arrest for robbery and weapons related offences and read hisrights. When the accused was searched, the police found keys for suites 12 and 16. The accused told police that he was in the process ofmoving from suite 16 to suite 12.

The Trial Proceedings 15 A voir dire was held to determine the admissibility of the items found in suite 16 (2009 MBQB 50, 238 Man.R. (2d) 83). The Crown advised that it intended to put in all of its case during the course of the voir dire. The accused chose not to call any evidencein that proceeding.

During submissions on the voir dire, the accused argued, and the Crown conceded, that it had been established thatthe accused had a reasonable expectation of privacy in suite 16. 16 The judge determined that the warrantless search of suite 16 was not reasonable and found, as a result, that the accused’s s. 8Charter rights had been breached. However, the judge refused to exclude the evidence under s. 24(2). 17 Following the voir dire decision, the judge, with the consent of the accused, ordered that the evidence on the voir dire beapplied to the trial. The Crown then closed its case.

The accused and the accused’s girlfriend testified for the defence. The accusedprovided an alibi, which was confirmed by the girlfriend. The judge convicted the accused on all counts except one (2009 MBQB 177,242 Man.R. (2d) 130). Evidence at Voir Dire Departs Significantly from Evidence at Trial 18 Although the accused did not testify at the voir dire, he did take the stand at trial. The accused testified that, at the time ofhis arrest, he had no longer been living at suite 16 and that he had not been there since January 26. In essence, he was saying that he hadno privacy interest in suite 16.

This is contrary to the Crown evidence presented during the voir dire, where police officers testified thatthe accused had told them that, on January 31, he was still in the process of moving from suite 16 to suite 12. 19 More importantly, this is contrary to the position taken by the accused during the voir dire. The accused argued on the voirdire that his s. 8 Charter right had been breached when the police entered suite 16 without a warrant. To prove a breach of his s. 8 right,the accused must first establish that he had a reasonable expectation of privacy in suite 16.

Indeed, that was his counsel’s submission onthe voir dire, relying upon the evidence of the accused that was given through the police testimony. 20 However, at the trial hearing, this important evidentiary discrepancy was not raised by counsel or by the judge. Nevertheless, this contradiction is troublesome. The concern and unease are clear: an accused should not be able to successfully argue aposition at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial basedupon a change in his evidence.

Here, the position he took regarding a privacy interest at the voir dire allowed him to obtain a favourableCharter breach ruling. How can he then be allowed to withdraw from his earlier position and argue that he had no privacy interest insuite 16 and thus cannot be linked to the shotgun found in that suite?

The maxim quod approbo non reprobo comes to mind: one cannotapprobate and reprobate at the same time. 21 In the end, the accused’s evidence at trial no longer supported the position advanced for the accused in the voir dire or thejudge’s voir dire finding that the accused “had a reasonable expectation of privacy in both suites 12 and 16 (at para. 26).” Such asituation raises possibilities of mistrial when the matter is heard before a jury and puts a trial judge in a difficult, if not impossible,position with respect to the evidence before the court.

It could also raise difficult ethical questions which were not fully before us andupon which we reach no conclusion (see for example, The Canadian Bar Association, CBA Code of Professional Conduct, Ottawa: CBA, 2009, ch.

IX, commentary 11 which states that defence counsel must not “call any evidence that, by reason of the admissions[made by the accused], the lawyer believes to be false” and The Law Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society of Manitoba, 2010, ch. 4, Rule 4.01(1) and the commentary on the Duty of Defence Counsel). 22 What is a judge to do when the evidence at trial no longer buttresses an earlier voir dire ruling? To begin with, a judge is notfunctus officio once the voir dire has ended (see R. v. Hunter (1980), (ON CA), 58 C.C.C. (2d) 190 (Ont. C.A.)).

Thetest for when a judge may revisit a previous ruling at trial was explained by Sopinka J. in R. v. Adams, (SCC), [1995] 4S.C.R. 707, as follows (at paras. 29-30): A court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The courtcontinues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. See Oley v. City ofFredericton (1983), (NB CA), 50 N.B.R. (2d) 196 (C.A.). With respect to orders made during trial relating to theconduct of the trial, the approach is less formalistic and more flexible.

These orders generally do not result in a formal order beingdrawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order maybe varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will beless formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be variedor revoked.

This will apply with greater force when the initial making of the order is mandatory. As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the timethe order was made have materially changed.

In order to be material, the change must relate to a matter that justified the making of theorder in the first place. …. 23 In circumstances where the evidence at trial departs significantly from that of the voir dire and where it relates to a matterthat justified the voir dire ruling, a court may, on its own motion, reopen the voir dire and decide the matter afresh (see R. v. Smith(1986), (MB CA), 38 Man.R. (2d) 184 (C.A.); Adams at paras. 29-30; R. v. Calder, (SCC), [1996] 1S.C.R. 660 at para. 21; and R. v. Underwood, (SCC), [1998] 1 S.C.R. 77 at para. 13).

When the contradictory evidencedoes not affect the voir dire ruling, the judge should note the inconsistency and factor it in when assessing the witness’s credibility.

24 In the instant case, neither counsel nor the judge pointed out the inconsistency when the disavowal of the privacy interestoccurred at trial. Nothing would have been gained by the Crown asking for a re-opening of the voir dire at that point as its primaryobjective (the admission of the evidence) had been achieved by reason of the judge’s s. 24(2) ruling. However, the judge could havenoted the inconsistency and re-opened the voir dire.

Although the outcome as to the admissibility of the evidence, doubtless would haveremained unchanged, her ruling as to whether there was a s. 8 Charter violation may well have been different. 25 In the end, even though the judge did not mention the inconsistent evidence, it would appear that she did factor in thisdiscrepancy when determining the credibility of the accused.

After stating that she rejected the accused’s evidence, the judge stated (atpara. 35): I, therefore, reject [the accused’s] evidence generally, including his evidence about advising the officers of his alibi, as well as his denialof having told the officer that he was in the process of moving from suite 16 and his denial of hiding under a pile of clothes.

It followsfrom this general rejection of his testimony that I do not accept his alibi evidence or his denial of involvement. [emphasis added] Analysis 26 On the principal issue of whether the accused’s s. 8 Charter rights were breached and, if they were, whether the evidencefound as a result thereof should be excluded under s. 24(2) of the Charter, this court will review the record as a whole. As the evidenceon the voir dire was applied to the trial, the record as a whole includes both the voir dire and the trial record (see Harper v. The Queen, (SCC), [1982] 1 S.C.R. 2 at 14, and R. v.

R.E.M., 2008 SCC 51 at para. 57, [2008] 3 S.C.R. 3). 27 When determining whether there has been a s. 8 breach, all of the surrounding circumstances must be kept in mind. Thisdetermination essentially involves a two-step process (see R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 at para. 33). First, the accused must satisfy the judge, on a balance of probabilities, that he had a reasonable expectation of privacy with respect tosuite 16.

If satisfied, the judge will then proceed to the second step and inquire as to whether the search was reasonable. 28 Normally, the onus falls on the accused to prove a Charter violation. However, because warrantless searches arepresumptively unreasonable, it is the Crown that bears the burden of establishing, on a balance of probabilities, that the search wasreasonable (see R. v. Nolet, 2010 SCC 24 at para. 21, [2010] 1 S.C.R. 851).

The search will be reasonable if the police are authorized bylaw (either through statute or common law) to conduct the search, if the law authorizing the search is reasonable and if the search isconducted in a reasonable manner (see R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at 278, and R. v. Gomboc, 2010 SCC55 at paras. 18-20, [2010] 3 S.C.R. 211). 29 In the instant case, the judge stated that it was “common ground” (at para. 26) that the accused had a reasonable expectationof privacy in suite 16. The Crown did not dispute at trial, or on appeal, that the accused had met the first step.

Earlier I did raise, atparas. 18 through to 25, a concern regarding the accused’s contradictory testimony with respect to his “reasonable expectation ofprivacy” (idib.) in suite 16.

Notwithstanding this concern, I am prepared to accept, in the face of additional evidence connecting him tosuite 16 (personal papers belonging to the accused were found in the suite, he still possessed the keys to the suite and he had paid the rentfor that suite until the end of January), that it was open for the judge to find that the accused had established that he had a reasonableexpectation of privacy in that suite. 30 Let me now proceed to the second step of the inquiry: namely, whether the search was, in all of the circumstances,reasonable. In the instant case, the judge found that it was not.

She held that the police had acted without authority when they searchedsuite 16, because the search was neither incidental to arrest nor to detention. She also found that the 911 call cases (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311; R. v. Tereck (R.S.), 2008 MBCA 90, 228 Man.R. (2d) 260; and R. v. Buors (C.J.), 2004 MBQB249, 189 Man.R. (2d) 118) were not applicable because the safety concerns in this case arose, not in response to a 911 call, “but ratherfrom the recent commission of a crime and the officers’ pursuit of one or more of the suspects” (at para. 69).

The judge condensed herreasoning as follows (at para. 71): In

summary, looking at the existing jurisprudence, the common law recognizes warrantless searches incident to both lawful arrests anddetentions, as well as searches in response to 911 calls. For the reasons outlined, none of these cases provide authority for the search ofsuite 16. The authorities do not suggest that the police can rely on some general search power at common law.

In fact, the authoritiesprovide that there is no right to enter a private dwelling house, without warrant, to search for property, even where there are exigentcircumstances involving the imminent danger of loss, removal or destruction of the evidence (R. v. Silveira (A.), (SCC),[1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161; [1995] S.C.J. No. 38, paras. 49 and 50). Therefore, I must apply the balancing test inWaterfield/Dedman, [ (SCC), [1963] 3 All E.R. 659, [1985] 2 S.C.R. 2] to determine whether there is a basis atcommon law for the search that was conducted.

While the search was clearly conducted in the execution of police duties, the issue iswhether it involved a justifiable use of police powers in the circumstances. That is, a balance must be struck between the competinginterest of the police duty and the privacy of the individual. In my view, the common law does not authorize the police to do what theydid here. That is, they were not justified in entering a private dwelling house for a purpose connected with the arrest of a suspect or toapprehend a further suspect without the subjective belief that there were grounds for arrest.

[emphasis added] 31 The sources of legal authority for police to conduct warrantless searches will arise through statute or common law. Thecommon law will typically provide the legal basis for warrantless searches when:

a) there is consent to the search;

b) the police come upon evidence in the course of their duties or unexpectedly and that evidence is in plain view (under the “plain viewdoctrine”);

c) the search is incident to arrest;

d) the search is incident to detention; or

e) the search is ancillary to the common law police powers and duties to keep the peace and preserve life pursuant to theWaterfield/Dedman test (R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.); Dedman v. The Queen et al., (SCC), [1985] 2S.C.R. 2). 32 No case law need be cited for the fundamental proposition that an individual’s dwelling house is deserving of specialprotection from police intrusion. In this case, any authority to perform the search conducted by the police would emanate from

e) above,the ancillary police powers and duties to keep the public peace and preserve life, specifically to ensure public and police safety (seeDedman at 11-12). 33 To determine whether the entry and search amounted to a lawful exercise of their common law powers (and was thereforeauthorized by law), the two-pronged Waterfield/Dedman test, as was recently restated in Gomboc, has to be met (at para. 144): The Crown attempts to show common law authorization by relying upon the ancillary police powers doctrine articulated in R. v.Waterfield, [1963] 3 All E.R. 659 (C.C.A.).

To succeed, the Crown must show that (1) the search “fell within the general scope of theduties of a police officer under statute or common law”, and (2) the “interference with liberty [was] necessary for the carrying out of theparticular police duty and [was] reasonable, having regard to the nature of the liberty interfered with and the importance of the publicpurpose served by the interference”: Dedman v.

The Queen, (SCC), [1985] 2 S.C.R. 2, at p. 35. 34 In the instant case, the judge found that the police had entered suite 16, not only to address public and police safety concernson the one hand, “but also for a purpose connected to their pursuit and discovery of the accused and their intention to apprehend anyother suspects” (at para. 69). On the other hand, she also found that the officers did not have a subjective belief that they would arrestsomeone when they entered suite 16.

Applying the Waterfield/Dedman test, the judge held that the common law police powers did notauthorize the officers to enter suite 16, because they entered the premises for “a purpose connected with the arrest of a suspect or toapprehend a further suspect without the subjective belief that there were grounds for arrest” (at para. 71). 35 The Crown argues the judge erred. It submits, in the circumstances of this case, that it was irrelevant whether the police hadthe subjective belief that there were grounds for arrest when they entered suite 16. It points to R. v.

Godoy, (SCC),[1999] 1 S.C.R. 311 as its authority. 36 In response, the accused says that, first 911-call cases like Godoy are not applicable, given the lack of evidence thatassistance was required by anyone in suite 16 and, second, that, because the police did not have reasonable and probable grounds tobelieve that there may have been an injured party or an armed suspect in suite 16, the search was not justified.

He submits that a hunchor possibility cannot justify the intrusion in a dwelling. 37 In my respectful view, the judge erred in law by conflating, in her “justifiability” analysis, the common law police duty toensure public and police safety with any ancillary action that may have been required following the entry (arresting suspects). In myopinion, whether the police believed they had grounds to arrest was not determinative of whether they were justified to enter the suite inthe particular circumstances of this case.

What mattered was first, whether the police action (the warrantless entry into a dwelling) “fellwithin the general scope” of any duty imposed by law or recognized at common law and second, if it did, whether that action was in line,in the circumstances of this case, with the second prong of the Waterfield/Dedman test. 38 On the first part of the test (whether the search fell within the general scope of police duties), it is trite law that the commonlaw powers of the police include the protection of life and property.

Any number of cases have also indicated that the police commonlaw duties includes safety concerns. See, for example, the comments of Lamer C.J.C. in Godoy, that the police “had the common lawduty … to act to protect life and safety” (at para. 23). In this case, the principal duty to be performed, and the main reason for entry intosuite 16, was to address public and police safety concerns.

As a result, the police entry to address such concerns would fall within thegeneral scope of the common law duties of the police. 39 The second part of the test is whether the carrying out of that duty was “reasonable, having regard to the nature of the libertyinterfered with and the importance of the public purpose served by the interference” (Dedman at 35). Put another way, was it ajustifiable use of powers associated with the duty (see Godoy at para. 12)? 40 In Godoy, and more recently in R. v.

Clayton, 2007 SCC 32 at para. 25, [2007] 2 S.C.R. 725, the Supreme Court of Canadaadopted the factors developed by Doherty J.A. in R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) todetermine the “justifiability” of police conduct when it interferes with individual liberties (Godoy at para. 18):

In Simpson, supra, Doherty J.A. applied both Waterfield, supra, and Dedman, supra, and described what is meant by a “justifiable” use ofpolice power as follows (at p. 499): ... the justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which someinterference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to thepublic good, the liberty interfered with, and the nature and extent of the interference. I agree that these considerations should form the basis of analysis.

In the case at bar, it was necessary for the police to enter theappellant’s apartment in order to determine the nature of the distress call. There was no other reasonable alternative to ensure that thedisconnected caller received the necessary assistance in a timely manner. While the appellant suggested that the police could knock onthe neighbours’ doors and question them, or wait in the apartment corridor for further signs of distress, in my view these suggestions arenot only impractical but dangerous.

If a 911 caller is in serious danger and is unable either to communicate with the 911 dispatcher oranswer the door upon police arrival, the caller’s only hope is that the police physically locate him or her within the apartment and cometo his or her aid. 41 In addition to these “justifiability” factors, there must be an evidentiary basis underlying the police safety concern (see R. v.Cornell, 2010 SCC 31 at para. 20, [2010] 2 S.C.R. 142, and R. v. Golub (D.J.) (1997), (ON CA), 102 O.A.C. 176 atpara. 48). The police must not be speculating or acting on a hunch.

They must have reasonable grounds for the concern (see Cornell atparas. 20-22). 42 In the instant case, the information available to the police at the time of entry into suite 16 was that they were in “hotpursuit” of a suspect(

s) involved in a robbery at a bank and that a gun had been discharged. They were aware that there was possiblymore than one suspect. The tracking dog had led them first to suite 16 and then to suite 12. An unarmed suspect was found in suite 12. The gun had not yet been located. Their attention returned to suite 16. It must be remembered that a live round of ammunition hadalready been discharged in the direction of one of the complainants.

I can easily conclude that, on these facts, the police had reasonablegrounds to be concerned for public and officer safety. 43 Finally, it must be determined whether the forced entry into the dwelling to address public and officer safety concerns wasjustifiable considering the totality of the circumstances.

The justifiability analysis is a contextual one and, for that reason, thecircumstances of each case will inform the validity of the warrantless search (see Godoy at para. 22). 44 Although the police had reasonable grounds for concern, they had no way of knowing, with certainty, who or what theywould find upon entry into the suite. They were confronting an unpredictable and potentially volatile situation with a real possibility thatthe safety of the public or police officers may be imperilled if time were taken to obtain a warrant. Waiting for a warrant was simply nota viable option.

There may have been an injured party in that suite, a hostage may have been taken or an armed suspect may havesuddenly exited the suite. Immediate action was required to address these safety concerns. There is considerable authority on the needfor the police to act quickly when a gun is involved to address the risk posed to the community and the police (see R. v. Clayton, 2007SCC 32 at paras. 36, 108; [2007] 2 S.C.R. 725; Reference re Firearms Act (Can.), 2000 SCC 31 , 2000 S.C.C. 31 at para. 33;[2000] 1 S.C.R. 783, at para. 36; R. v. M. (M. R.), (SCC), [1998] 3 S.C.R. 393 at para. 52; and R. v.

Felawka, (SCC), [1993] 4 S.C.R. 199 at 211). 45 In my view, and in the particular circumstances of this case, the forced entry into the suite amounted to a justifiable use ofpolice powers to address public and officer safety concerns. The following passage, recently cited by Cromwell J. in Cornell, is wellsuited to the case at bar (at para. 20): ....

I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police toput their lives or safety on the line if there is even a low risk of weapons being present”: para. 24. 46 Furthermore, this court has previously concluded, where extraordinary circumstances exist (such as a legitimate cause forconcern with respect to the safety of those at the scene or of the public generally), that the police are permitted to enter the dwellingwithout a warrant to conduct a “sweep search” for other persons (see Tereck at paras. 3, 12).

As was stated by Monnin J.A. in Tereck, todo otherwise “would have been a dereliction of their duty” (at para. 12).

In Tereck, as in this case, the principal reason for entry into thedwelling was not to effect an arrest (although one did ultimately occur), it was to address a real and urgent concern surrounding publicand police safety. 47 A legal warrantless entry into a dwelling will often arise in an emergency setting, where it would be impractical to obtain awarrant because of the fluidity and potential volatility of the situation (in response to 911 calls) or the dangerousness of the conditions(as in this case, where a shot had been fired and the police were in pursuit of the suspect).

To be clear, because of the “high value”placed on the security and privacy of the home (see R. v. Feeney, (SCC), [1997] 2 S.C.R. 13 at para. 43), situationscalling for a warrantless non-consensual entry in a dwelling will be the exception. 48 In the case at hand, the judge referred to Feeney a number of times in her detailed reasons and appeared to be preoccupied

with the effect of that decision upon the fact situation before her. The judge noted that the police entered suite 16 for a dual purpose: to address safety concerns and to apprehend suspects, if any were found. With Feeney in mind, she was concerned that, because the police did not have the “ subjective belief that there were grounds for arrest” (at para. 71) when they entered the suite, their conduct was not justifiable.

This exact preoccupation with the impact of Feeney was addressed in Godoy , where the Supreme Court of Canada concluded that the reasoning in Feeney did not apply in that case because the entry was driven not to make an arrest, but by the 911 call concerns. Although the police did, in fact, arrest the husband in the home after they entered the dwelling in the Godoy case, their principal preoccupation was to respond to the 911 call. Any ensuing arrest was ancillary. 49 What happened in Godoy is exactly what happened here.

The principal reason for entry into suite 16 was to secure the premises to address public and officer safety concerns, not to make arrests. As a result, Feeney is distinguishable from the case at bar. 50 In the end, the Crown has convinced me that the Waterfield/Dedman test has been met in this case. As a result, the entry into and the search of suite 16 was authorized by law. The remaining question on the alleged s. 8 Charter violation, as per the Collins analysis, is whether the manner in which the search was conducted was reasonable.

When an entry into a dwelling is justifiable, the ensuing search will be reasonable if it is limited to what is necessary to meet the ends (see Godoy at para 22 ). In this case, as the entry into suite 16 was to address public and officer safety concerns, a reasonable interference would be to limit the intrusion to clearing the premises of any immediate threat they may find inside. 51 In my view, the search of suite 16 was limited to such a purpose. The police entered the suite and conducted, to use the words of the judge of first instance, a search “proportionate to [the] concern” (at para. 78).

The purpose of the entry and search was to clear the suite of any persons who may cause harm. In such circumstances, it is reasonable to limit the interference with the person’s privacy to a search of any part of the suite which might provide a space for a person to hide. It is uncontested that that is what occurred here. One of the places searched was a closet which was large enough to hide a person. That is where they found the gun.

In my view, the search that occurred here was, in all of the circumstances, conducted in a reasonable manner. 52 In the result, I would conclude that the s. 8 Charter rights of the accused were not violated.

The Section 24(2) Analysis 53 Furthermore, even had I been of the view that the accused’s s. 8 Charter rights had been violated, I would not interfere with the judge’s s. 24(2) ruling that the evidence should not be excluded. 54 Although the expectation of privacy in one’s dwelling is prima facie high, the fact that a Charter breach occurred in such a setting does not inevitably lead to the conclusion that the admission of evidence would bring the administration of justice into disrepute (see Gomboc at paras. 45-46 ). 55 While the judge did not have the benefit of the three lines of inquiry as set out in Grant when she conducted her s. 24(2) analysis, in my view, the application of the recent Grant approach would not have changed the end result.

As was just explained by the Supreme Court of Canada, first in R. v. Beaulieu , 2010 SCC 7 at para. 7 , [2010] 1 S.C.R. 248, and then in R. v. Sinclair , 2010 SCC 35 at para. 219 , [2010] 2 S.C.R. 310, although the test for exclusion under s. 24(2) was recently refined and restated in Grant , “the relevant [ Collins ] factors have not changed” ( Beaulieu at para. 7 ).

In the instant case, the judge essentially conducted a form of the Grant analysis. 56 The first line of inquiry under the s. 24(2) analysis requires the court to assess whether the admission of the evidence would send a message that the court condones the breach by failing to dissociate itself from the unlawful search. The reasons of the judge show that she turned her mind to the seriousness of the Charter -infringing state conduct.

First, she accepted that the search of suite 16 was an attempt by the police to ensure public and officer safety and, second, that “they were genuine and acted in good faith in searching suite 16 for public safety purposes” (at para. 76). The actions of the police were driven by real, immediate and understandable safety concerns. It is not the kind of conduct from which the court needs to distance itself in order to protect the integrity of the justice system. 57 The second line of inquiry as per Grant relates to the impact of the breach on the Charter -protected interests of the accused.

The reasons show that the judge found the search to be “proportionate” (at para. 78) to the safety concern. It was a limited and focussed search for safety concerns and not particularly invasive. The suite was almost bare because the accused had essentially completed his move from suite 16 to suite 12.

As a result, the dignity of the accused was not compromised when the police cleared suite 16. 58 As to the third line of inquiry, society’s interest in adjudication on the merits, the judge’s reasons clearly show that she was satisfied that the exclusion of the evidence “would have a greater negative effect on the repute of the administration of justice than would its inclusion” (at para. 79). There could be no question that the gun was reliable evidence and that it was vital to the Crown’s case. 59 A judge’s s. 24(2) decision on whether to exclude evidence attracts significant deference (see Grant at para. 86 ).

In the case at hand, the judge considered the appropriate factors and her findings were reasonable. In the end, I would not interfere with her decision. The Sentence Appeal 60 The narrow issue on the sentence appeal is whether the judge erred in calculating the accused’s pre-sentence credit. This brings into consideration s. 719(3) of the Code , which provides that a sentencing court may give credit for any time spent in pre-sentence custody “as a result of the offence.” This means that th e pre-sentence custody must be “in relation to the offence for which a person has been convicted” ( R. v.

Wust , 2000 SCC 18 at para. 3 , [2000] 1 S.C.R. 455). If there is no connection between the pre-sentence custody time that an accused has accumulated and the charges upon which an accused is being sentenced, then there is no principled reason to allow any credit for that time. To do otherwise “would distort the sentencing regime” (see R. v. Wilson , 2008 ONCA 510 at paras. 42-45 , 236 C.C.C. (3d) 285 ).

61 The judge recognized that the accused was entitled to some credit, but discounted it because of the fact he was re-arrested and held in custody on new charges after his release on the charges at issue on this appeal. Those new charges arose when the accused allegedly attended the same bank where he committed the robbery and attempted to cash a cheque payable to another individual. He was charged with fraud, personation and two breaches relating to his release on his own recognizance with respect to these robbery charges.

At the time the sentence was delivered on November 4, 2009, those other charges were still pending. This court now knows that those other charges were stayed on May 18, 2010. 62 The accused was arrested on the robbery-related charges on January 31, 2007. On March 19, 2007, he applied for, and was denied bail. On July 19, 2007, he applied for bail review and was released on his own recognizance. He had until then spent 170 days in pre-sentence custody. On March 17, 2008, he was arrested on the fraud charges and for breaching his recognizance on the robbery charges.

After applying for release on the new charges, the accused was denied bail and his previous release order, on the charges before this court, was vacated. He was held in pre-sentence custody until his sentencing hearing. This second instance of custody represents 595 days. 63 The Crown’s position at the sentencing hearing was that the accused should only receive pre-sentence credit on a 1:1 basis because of the serious nature of the charges and the anticipated changes in the law with respect to these credits.

It also argued that he be credited no more than on a 1:1 basis because, but for his reinvolvement in the new charges, he would not have been in custody. In essence the Crown points out that the accused was not in custody solely “as a result” of the robbery offences, but also on the new offences. 64 The accused asked for the usual 2:1 credit, even with respect to the custody arising in part from the new charges, because they are much less serious than the robbery charges. 65 The judge credited the accused on a 2:1 basis for the first period of custody (170 days x 2 = 340 days).

That credit is obviously not being appealed by the accused. 66 With respect to the second period of 595 days, the judge noted that the robbery charges were “much more serious” than the fraud-related charges and was satisfied that “most, though not all” of the time the accused served in the second period of custody should be attributed to the robbery offences. In essence, she found that the reason the accused had had his bail order on the robbery incident vacated was, only in part, “as a result” of the new charges. She referred to the R. v.

A. (R.K.) , 2006 ABCA 82 , 208 C.C.C. (3d) 74, as authority for her position. She then reduced the period in custody for which he would be entitled to the credit by 25 per cent, or 148.75 days, to take into account the fraud-related charges. Instead of giving credit on a 2:1 basis for 75 per cent of the second period in custody (446.25 days x 2 = 892.5 days), she gave credit on a 1.5:1 basis for the full 595 days (595 days x 1.5 = 892.5 days).

In the end, these two calculations lead to the same amount of credit. 67 The question to be determined is whether the judge erred in giving credit for only 75 per cent of the days of the second period of pre-sentence custody? In my view, she did not. 68 The determination of the pre-sentence custody credit award under s. 719(3) is discretionary and consequently subject to deference. It cannot be disputed that, had the accused not become re-involved in the fraud charges, he would not have had his bail order vacated.

Therefore, the judge was correct in her determination that part of the reason he was in custody was “as a result” of the new charges. It would then necessarily follow that it was open to the judge to decide not to attribute all of the time in custody in the second instance solely to the robbery charges. In the end, she decided to attribute the 2:1 credit to 75 per cent of the second period of pre- sentence custody. The other 25 per cent of the pre-sentence custody was found not to be in relation to the charges before her.

That attribution is not unreasonable. 69 Finally, the fact that new charges were later stayed does not retroactively render her original exercise of discretion improper, nor does it give this court cause to intervene ( see A. (R.K.) , at paras. 9-10 and R. v. Greaves (J.

M.) , 2007 BCCA 430 at paras. 17-18 , 245 B.C.A.C. 248). 70 In the end, I am of the view that the accused has not demonstrated any misdirection in law or on the facts, nor can it be said that the judge’s exercise of discretion on the pre-sentence credit is wrong, let alone so clearly wrong as to amount to an injustice. 71 I would grant leave to appeal sentence, but dismiss the appeal. Conclusion 72 I would therefore dismiss the accused’s appeal against his conviction, grant leave to appeal sentence, but dismiss his sentence appeal. __________________________ J.A. I agree: _________________________ J.A.

I agree: _________________________ J.A.