



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lai, 2019 ONCA 420

DATE: 20190521

DOCKET: C65278, C65279

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Lai and Kevin Lai

Appellants

Michael Crystal, for the appellants

Ghazala Zaman, for the respondent

Heard: May 6, 2019

On appeal from the convictions entered by Justice Mitch
    Hoffman of the Ontario Court of Justice on February 1, 2018.

REASONS FOR DECISION

OVERVIEW

[1]

Gary Lai and Kevin Lai, the appellants, were each convicted of three
    counts of possessing narcotics for the purpose of trafficking, and possession
    of proceeds of crime. The evidence supporting these convictions arose from a contentious
    warrantless search of their apartment, which led to a further search pursuant
    to a warrant. The trial judge found the warrantless search to be
    unconstitutional, but admitted the evidence that was seized during the
    execution of the warrant.

[2]

The appellants appeal their convictions, arguing that the trial judge
    erred in his s. 24(2) analysis. They ask us to set aside their convictions,
    order the evidence to be excluded, and acquit them of all of the charges.

[3]

At the end of the oral argument we allowed the appeal. We set aside the
    convictions, ordered the evidence excluded, and substituted verdicts of
    acquittal on all charges. These are our reasons.

MATERIAL FACTS

[4]

Police officers responded to sounds of a domestic disturbance in an
    apartment unit. Based on information received, they had ample grounds to attend
    the apartment unit to investigate. When police arrived at the apartment unit,
    they knocked on the door. One of the appellants, Gary Lai, partially opened the
    door. Their interaction with Gary Lai at the door, along with the information
    previously received, provided the police with objective grounds to enter the
    apartment on an exigent basis to verify the safety of anyone who may be inside,
    pursuant to the common law authority confirmed in
R. v. Godoy
, [1999]
    1 S.C.R. 311 [a
Godoy
search].

[5]

One of the officers [the searching officer] entered and searched the
    apartment. Although he did not find anyone in need of assistance, he saw cash
    and drugs. A search warrant was obtained which led to the seizure of
    approximately 3,000 grams of marijuana, 35 grams of cocaine, 140 MDMA
    methamphetamine capsules, and $36,000. The appellants, Gary Lai and Kevin Lai,
    were charged with possessing these narcotics for the purposes of trafficking,
    and with possession of proceeds of crime.

[6]

At their trial, the appellants brought an s. 8 unreasonable search or
    seizure
Charter
challenge to the admissibility of all of the seized evidence.

[7]

The trial judge held that the appellants s. 8 rights were indeed
    breached. He found that although the officers had objective grounds to enter
    and search the apartment to conduct a
Godoy
search, he was not
    satisfied that this is why the searching officer entered.

[8]

The trial judge was troubled by the searching officers claim that he did
    not smell the odour of marijuana until he stepped into the apartment, after his
    one to two minute-long exchange with Gary Lai through the partially opened
    door. The other officer, who was not immediately next to the door, testified
    that he could smell a strong odour of marijuana as soon as the door was opened
    a crack. The trial judge inferred that the searching officer must also have
    smelled it immediately, and it was likely that he did not accurately relate when
    he smelled the marijuana to the court in an attempt to strengthen his
Godoy
grounds.

[9]

The searching officer also responded to a hypothetical question about
    what he would have done if no-one answered the door, by saying he would have probably
    gotten a landlord with a key. The trial judge treated the searching officers
    readiness to delay entry while retrieving a key as being inconsistent with a
    belief that there was an exigent need to enter to protect life and safety of
    any occupants.

[10]

Despite
    finding that the Crown had not established the subjective grounds necessary for
    a
Godoy
search, he denied the appellants s. 24(2) application for exclusion,
    admitted the evidence, and found the appellants guilty of the offences charged.

ISSUES

[11]

The
    appellants appeal their convictions. The heart of their appeal is that the trial
    judge committed two material errors in his s. 24(2) analysis. They say the
    trial judge:

A.

failed to consider the
    searching officers misleading testimony in his s. 24(2) analysis, when this
    should have been a significant, if not determinative, consideration; and

B.

erred by giving undue
    emphasis to the objective grounds for the search, improperly diminishing the
    impact of the lack of subjective grounds.

[12]

If
    we find error, the appellants ask this court to conduct a proper s. 24(2)
    analysis, exclude the evidence, and order their acquittal.

ANALYSIS

A.

The trial judge failed to consider the SEARCHING Officers Misleading
    Testimony

[13]

A
    finding that an officer intentionally attempted to mislead a court about a
    constitutional violation that has occurred is an important pro-exclusionary
    consideration in an s. 24(2) application:
R. v. Pino
, 2016 ONCA 389, 130
    O.R. (3d) 561, at para. 103. In
R. v. Harrison
, 2009 SCC 34, [2009] 2
    S.C.R. 494, McLachlin C.J. said for the majority, at para 26:

I note that the trial judge found the officers in-court
    testimony to be misleading. While not part of the
Charter
breach
    itself, this is properly a factor to consider as part of the first inquiry
    under the s. 24(2) analysis given the need for a court to dissociate itself
    from such behaviour.

[14]

The
    trial judge gave no consideration to the searching officers misleading testimony
    in arriving at his s. 24(2) decision.

[15]

Initially,
    the Crown sought to answer this ground of appeal by challenging the trial
    judges factual finding that the searching officer did not have subjective
    grounds. There are indeed some curiosities in the trial judges reasoning on
    this point. During oral argument, however, the Crown acknowledged that it was
    bound by the trial judges factual finding that the searching officer did not
    have the subjective grounds he claimed in his testimony. The Crown is bound by
    that finding, and so too are we.

[16]

The
    Crown also attempted to overcome the absence of consideration of the searching officers
    misleading testimony during the trial judges s. 24(2) analysis by urging that he
    never made a finding that the searching officer intentionally misled the court.
    Hence, this consideration is irrelevant.

[17]

We
    acknowledge that the trial judge did attempt to gently couch his finding by
    stating at one point that he did not need to determine whether the searching
    officer lacked believability or lacked reliability. We take believability
    to be a reference to the credibility or honesty of the searching officers
    testimony, and reliability to refer to those factors that can cause honest testimony
    to be mistaken, such as a compromised opportunity to observe, memory problems,
    or ineffective communication: see
R. v. Norman
(1993), 26 C.R. (4th)
    256 (Ont. C.A.), at p. 274. In other words, the trial judge did say that it was
    not necessary for him to decide whether the searching officer was being
    dishonest or was mistaken when he provided his inaccurate testimony.

[18]

In
    spite of this, when the trial judges decision is looked at as a whole, it is
    clear that the trial judge found on the balance of probabilities that the searching
    officer was not being truthful when he claimed that he was conducting a
Godoy
search. The trial judge twice ventured that the problem was likely with
    the searching officers credibility.

[19]

Both
    reasons offered by the trial judge for rejecting the searching officers
    subjective-belief testimony are purely about credibility, and have nothing to
    do with reliability.

[20]

Specifically,
    an honest mistake by the searching officer about when he first smelled
    marijuana would logically have no bearing on his claim that he searched the
    apartment because he honestly believed that someone inside could be in peril.
    The inaccurate claim that he did not smell the marijuana until he was inside
    was relevant only on the theory that he gave this inaccurate information as a
    strategy to avoid the suggestion that he entered because of the smell of
    marijuana. In the words of the trial judge, it was likely  an attempt to
    strengthen [the searching officers
Godoy
] grounds.

[21]

Similarly,
    the admission by the searching officer that he would have sought the landlord
    has no logical relevance to whether he accurately remembered his actual subjective
    reason for entering. Its logical relevance is that an admission in his testimony
    that he was prepared to wait for a key to be obtained is inconsistent with the
    state of mind he claimed to have, requiring an exigent entry to protect life
    and safety.

[22]

Finally,
    in commenting on the seriousness of conducting a search without subjective
    grounds, the trial judge said [i]t is serious
Charter
infringing
    State conduct when a [c]ourt does not find upon reliable and believable
    evidence on that point. Manifestly, the trial judge did not find the sworn
    testimony offered by the searching officer about his
Charter
grounds
    to be believable.

[23]

It
    was therefore an error for the trial judge not to consider the searching officers
    misleading testimony when determining whether exclusion of the evidence was
    required.

B.

THE TRIAL JUDGE ERRED IN ThE usE OF THE OBJECTIVE GROUNDS

[24]

The trial judge found that a search
    without subjective grounds is serious
Charter
infringing State conduct
    that pushes strongly towards exclusion. He also found that the impact of the
    exclusion of reliable evidence on such serious charges pulls moderately
    towards inclusion. He therefore reasoned that whether the evidence is excluded
    would depend on the second
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353

consideration  the impact of the breach on the
Charter
-protected
    interests of the accused.

[25]

We take no issue with any of this. He
    erred, however, in making this critical determination on the second
Grant
consideration.
    He was wrong to have accepted the Crowns argument that the
Charter
breach
    had little impact on the
Charter
-protected interests of the appellants,
    because the public does not have the right or reasonable expectation to be
    free from a search even of a dwelling where objective reasonable serious public
    safety grounds exist.

[26]

First, the underlying legal proposition
    that he accepted  there is no right to be free from an objectively reasonable
    search even into an area an individual enjoys a very high expectation of
    privacy  is wrong in law. As the trial judges own holding on the
Charter
breach
    reflects, a person with a reasonable expectation of privacy in a place has the
    constitutional right to be free from an illegal search. A search without
    subjective grounds is illegal, even where objective grounds would have existed
    had the officer acted on those grounds:
R. v. Feeney
, [1997] 2 S.C.R.
    13, at para. 29.

[27]

Second, the trial judge misconceived
    the second
Grant
factor: As the Supreme Court said in
Grant
, at
    para. 76:

This inquiry focusses on the
    seriousness of the impact of the
Charter
breach on the
Charter-
protected
    interests of the accused. It calls for an evaluation of the extent to which the
    breach actually undermined the interests protected by the right infringed.

[28]

The extent to which the breach
    undermines the substantial privacy interest in a dwelling house does not vary
    depending upon whether, in spite of the breach, objective grounds existed. The
    trial judge erred in finding that it does.

[29]

We also agree with the appellants that
    the effect of the trial judges reasoning was to trivialize improperly the
    subjective component of the reasonable grounds test. The net effect of the
    trial judges reasoning was to denude his determination that a search without
    subjective grounds is serious
Charter
infringing conduct, by finding
    that the absence of subjective grounds was outpointed by the presence of
    objective grounds.

[30]

In
R. v. Caslake
, [1998] 1
    S.C.R. 51, at para. 27,

Lamer C.J. explained why the subjective
    component of the reasonable grounds standard is important:

The
Charter
requires that
    agents of the state act in accordance with the rule of law. This means that
    they must not only objectively search within the permissible scope, but that
    they must turn their mind to this scope before searching. The subjective part of
    the test forces the police officer to satisfy him or herself that there is a
    valid purpose for the search  before the search is carried out. This accords
    the ultimate purpose of s. 8, which, as Dickson J. stated [in
Hunter v.
    Southam Inc.
, [1984] 2 S.C.R. 145] is to prevent unreasonable searches
    before they occur.

[31]

The trial judge also committed a
    conceptual error by using the objective grounds for a
Godoy
search to
    mitigate the impact of the breach, after finding that the searching officer did
    not conduct a
Godoy
search. In
Caslake
, Lamer C.J. made clear
    that a court cannot justify a search based on the existence of objective
    grounds for a form of search that was not undertaken. In that case, the
    officers purported inventory search could not be justified based on the fact
    that he would have had objective grounds if he had conducted a search incident
    to arrest. The same principle applies to mitigation. It is improper to diminish
    the seriousness or impact of an illegal search because the searching officer
    would have had objective grounds had he conducted a different kind of search.

[32]

Unfortunately, the trial judges s.
    24(2) decision was undertaken without considering the effect of the searching
    officers misleading testimony on the repute of the administration of justice,
    and it was premised on a legal error. He also misapplied the second branch of
Grant
,
    and his decision had the effect of trivializing the important subjective
    component of the reasonable grounds standard. The trial judges s. 24(2)
    decision cannot stand.

C.

The EVIDENCE sHOULD HAVE BEEN
    EXCLUDED

[33]

This is an appropriate case for us to
    determine the s. 24(2) issue, as the trial judges factual findings are clear.
    The problems were with his analysis.

[34]

The trial judge stopped short of
    finding that the searching officer used the
Godoy
search as a Trojan horse
    or pretense for a drug search without grounds. We therefore cannot take up the
    appellants invitation to rely on this to find the breach to have been serious.

[35]

Nonetheless, the breach is serious. We
    agree with the trial judge that it is a serious breach to conduct a search
    without subjective grounds.

[36]

Moreover, while we stop short of
    endorsing the appellants claim that misleading testimony about a
Charter
breach
    requires exclusion on its own, the searching officers misleading evidence does
    significantly aggravate the seriousness of the breach. As Cronk J.A. said in a
    passage in her dissenting decision in
R. v. Harrison
, 2008 ONCA 85,
89
    O.R. (3d) 161,
at para. 160:

[T]he integrity of the judicial
    system and the truth-seeking function of the courts lie at the heart of the
    admissibility inquiry envisaged under s. 24(2) of the
Charter
. Few
    actions more directly undermine both of these goals than misleading testimony
    in court from persons in authority. Our system of criminal justice is fashioned
    on the collective expectation of the community that police officers who testify
    in a criminal case will do so honestly and impartially, unmotivated by
    self-interest or the desire to secure a conviction. The central importance of
    this expectation cannot be overstated where the testimony is received in a
    criminal trial involving allegations of serious constitutional violations by
    the police.

[37]

The Supreme Court of Canada ultimately
    agreed with the outcome of Cronk J.A.s dissenting decision, and this specific
    passage found favour when it was quoted from by McLachlin C.J.
at para.
    26
.

[38]

The second
Grant
consideration
    also strongly supports exclusion. Contrary to the finding of the trial judge,
    the impact of the search on the
Charter
-protected interests of the
    appellants was considerable. The police entered their dwelling house illegally,
    violating their privacy interests.

[39]

We accept the trial judges conclusion
    that the final
Grant
consideration pulls moderately towards inclusion. There
    is apt to be some damage to the repute of the administration of justice by
    jettisoning the reliable, crucial evidence that is needed to sustain serious
    charges.

[40]

Given that the first two
Grant
considerations
    strongly favour exclusion, however, this courts decision in
R. v. McGuffie
,
    2016 ONCA 365,
131 O.R. (3d) 643,
at para. 63 would
    counsel exclusion. In our view that is the appropriate outcome, especially
    considering the trial judges conclusion relating to the searching officers
    testimony. We exclude the evidence obtained both during the initial search and
    the subsequent search with a warrant.

CONCLUSION

[41]

We therefore allow the appeal, set
    aside the convictions, order the exclusion of the evidence seized from the
    apartment and substitute verdicts of acquittal on all of the charges.


C.W. Hourigan J.A.
David M. Paciocco J.A.
Harvison Young J.A.


