



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rutledge, 2017 ONCA 635

DATE: 20170802

DOCKET: C61395

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Rutledge

Appellant

Andrew Faith, for the appellant

Michael Fawcett, for the respondent

Heard: June 29, 2017

On appeal from the conviction entered on June 30, 2015 by
    Justice Bonnie J. Wein of the Superior Court of Justice, sitting without a jury.

REASONS FOR
    DECISION

[1]

The appellant appeals his convictions of firearms and ammunition
    offences on the ground that the trial judge wrongly admitted evidence of guns
    and ammunition seized during a search of a farmhouse in which he was the only
    occupant.

[2]

At the conclusion of argument we dismissed the appeal with reasons to be
    given later. These are our reasons.

The Background Facts

[3]

A justice of the peace granted two telewarrants to search a remote
    Dufferin County farmhouse for firearms, ammunition, controlled substances and
    related paraphernalia. Among other sources furnishing information relied upon
    in the support of the ITO, was a confidential informant who provided precise,
    current details about activities taking place in the farmhouse, described those
    associated with it and related what was likely to be found there.

[4]

Considered in its entirety, the ITO supported a reasonably grounded
    belief that several persons occupied or had access to the farmhouse. Some had
    histories of violence. Drugs were trafficked there or from there. And weapons,
    firearms including a semi-automatic rifle, were present and available for use
    by its occupants.

[5]

The officer in charge of the investigation considered that an undetected
    approach to the farmhouse to execute the warrants was essential to the successful
    conclusion of the investigation. The safest course of action for all concerned
     occupants and searching officers alike  was thought to be to flush out any
    occupants, thus to avoid a shootout or armed standoff.

[6]

To execute the warrants, the police came loaded for bear. Equipment for
    a dynamic entry. Tactical units. Night vision eyewear. Loud hailers.
    Negotiators in case of a standoff. And tear gas.

[7]

Members of the search team broke a window on the ground floor of the
    farmhouse. An officer tossed a tear gas canister onto the floor of a room
    adjacent to the broken window. The canister was not incendiary. It dispensed
    gas, but not heat.

[8]

The appellant was the only occupant of the farmhouse. As the tear gas
    began to spread, the appellant quickly left the building. He coughed and was
    teary-eyed, but required no medical intervention or assistance. He was promptly
    arrested.

The Grounds of Appeal

[9]

The appellant contends that the trial judge erred in law in failing to
    conclude that the search conducted and seizures made offended s. 8 of the
Charter
and to exclude the things seized as evidence at his trial.

[10]

The argument advanced is twofold:

i.

that the use of tear gas is a search, which requires, but did not
    receive prior judicial authorization, thus was an unreasonable search in breach
    of s. 8 of the
Charter
; and

ii.

that the use of tear gas rendered the manner of the search conducted
    under the telewarrants unreasonable, thus in contravention of s. 8 of the
Charter
.

[11]

As we briefly explain, we did not give effect to either ground of
    appeal.

Ground #1: Tear Gas as a search

[12]

The first ground of appeal faults the trial judge for failing to
    conclude that the use of tear gas in execution of a search warrant is, on its
    own, a discrete search within s. 8 of the
Charter
. It follows,
    according to the appellant, that this use of tear gas required, but did not
    receive, prior judicial authorization, thus amounted to an unreasonable search
    in contravention of s. 8.

[13]

We rejected this ground of appeal for both procedural and substantive
    reasons.

[14]

First, the procedural obstacles.

[15]

The argument was not advanced at trial. As a result, it lacks not only
    an evidentiary foundation, but also the critical findings of fact necessary for
    a judicial determination of its merits. It is for these reasons that we do not
    generally permit advancement of grounds for the first time on appeal. We see no
    reason to depart from that salutary practice here.

[16]

Second, the substantive defect.

[17]

We regard the appellants argument on this ground of appeal as
    fundamentally and fatally flawed.

[18]

To begin, the use of tear gas in these circumstances does not fall
    within the plain or any extended meaning of search within s. 8 of the
Charter
.

[19]

Every investigatory technique used by police does not amount to a
    search within or for the purposes of s. 8 of the
Charter
. It is only
    where those state examinations constitute an intrusion upon some reasonable
    privacy interest of individuals that police conduct amounts to a search:
R.
    v. Evans
, [1996] 1 S.C.R. 8, at paras. 10-11;
R. v. A.M.
, 2008 SCC
    19, [2008] 1 S.C.R. 569, at para. 8. It is not only the
type
of police
    conduct that determines whether a search has occurred, but also the
purpose
of that conduct that is controlling. A search is about looking for things to be
    used as or to obtain evidence of a crime:
R. v. Silveira
(1994), 88
    C.C.C. (3d) 61 (Ont. C.A.), at para. 35. See also,
R. v. MacDonald
, 2014
    SCC 3, [2014] 1 S.C.R. 37, at paras. 25-26.

[20]

To be certain, s. 8 protects personal privacy. It guarantees the right
    of persons not to have their bodies touched or otherwise explored for the
    purpose of disclosing objects, matters or information that they wish to
    conceal. State actions that interfere unreasonably with a persons bodily
    integrity for such a purpose breach a persons right to privacy. But not every
    state action does this:
R. v. Dyment
, [1988] 2 S.C.R 417, at pp.
    431-432;
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 21.

[21]

In this case, the use of tear gas was not for the purpose of obtaining
    personal information about the appellant which he sought to shelter from state
    discovery and use. The purpose of using tear gas was to flush out the occupants
    of the premises so that confrontation would be avoided. Section 8 interests
    were not implicated by what occurred.

[22]

We also reject the submission that the investigative decision or plan to
    use tear gas should have been disclosed in the ITO. This submission comes
    perilously close to micromanagement of police choices about equipment and the
    manner of execution that are to be avoided or better considered as part of the
    inquiry into whether the search was conducted in a reasonable manner:
R. v.
    Cornell
, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 31. We also note that
    the statutory form used for an ITO, Form 1, makes no reference to the manner of
    execution.

Ground #2: Unreasonable Execution of the Search

[23]

The second ground of appeal alleges that the trial judge erred in
    failing to find that the search was executed in an unreasonable manner. This
    submission also focuses on the use of tear gas during execution of the warrant,
    a substantial departure from the knock-and-announce rule which the Crown failed
    to justify.

[24]

Confronted with a similar argument, the trial judge correctly set out
    the governing legal principles, examined the evidence adduced at trial and
    found as a fact that the use of tear gas was not unjustified, thus did not
    result in execution of the search in an unreasonable manner. Her factual
    findings were not cumbered by any misapprehension of the evidence. The
    inferences she drew were reasonable. Her findings were untainted by legal
    error. They are entitled to significant deference in this court.

[25]

In reaching our conclusion, we have in mind that police decisions about
    the manner in which a search will be carried out fall to be adjudged by what
    was or should reasonably have been known to them at the time the search was
    conducted, not through the lens of how things turned out to be. Hindsight is
    not our measuring stick.

[26]

We also recognize that police are entitled to some latitude on how they
    decide to enter premises under a warrant. Omniscience is not a prerequisite for
    a search to be conducted in a reasonable manner. In an assessment of the manner
    in which a search has been executed, a reviewing court balances the rights of
    suspects, on the one hand, with the requirements of safe and effective law enforcement,
    on the other. The trial judge did this. This is no place for the Monday morning
    quarterback.

CONCLUSION

[27]

It is for these reasons that we dismissed the appeal.

David Watt J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


