



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacKay, 2012 ONCA
    671

DATE: 20121004

DOCKET: C53979

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald MacKay

Appellant

Alan D. Gold, for the appellant

Bradley Reitz, for the respondent

Heard: September 6, 2012

On appeal from the judgment of Justice Bonnie J. Wein of
    the Superior Court of Justice dated June 13, 2011, with reasons reported at
    2011 ONSC 3318, allowing the appeal from the acquittal entered by Justice Paul
    R. Currie of the Ontario Court of Justice dated March 29, 2010.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant, Donald MacKay, was charged with importing diamonds
    contrary to the
Export and Import of Rough Diamonds Act
, S.C. 2002, c.
    25, as well as acquiring illegally imported goods and smuggling contrary to the
Customs Act
, R.S.C. 1985, c.1 (2
nd
Supp.).

[2]

At trial in the Ontario Court of Justice, and on the hearing of a
Charter
application brought by the accused, Currie J. concluded that the manner in
    which the warranted search was executed violated the appellants s. 8 rights.
    He excluded the evidence obtained from the search pursuant to s. 24(2) of the
Canadian
Charter of Rights and Freedoms
. The Crown was left with
    insufficient evidence to make out its case, and the accused was acquitted of
    all charges.

[3]

The Crown appealed to the summary conviction appeal court. On June 13,
    2011, Wein J. quashed the acquittal and ordered a new trial. She did so on the
    basis that the trial judge erred in concluding that the manner in which the
    search of the accuseds office had been conducted was unreasonable and a breach
    of  s. 8 of the
Charter
. In reaching this decision, the summary
    conviction appeal judge relied almost exclusively on the decision of the
    Supreme Court of Canada in
R. v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R.
    142, which was released after the trial judges
Charter
ruling.

[4]

The appellant applies for leave to appeal the decision of the summary conviction
    appeal judge and, if leave is granted, seeks an order allowing the appeal and
    reinstating the trial judges acquittal.

[5]

The principal issues on the appeal are whether leave to appeal should be
    granted and, if so, whether the summary conviction appeal judge erred in her
    analysis and conclusion on the s. 8
Charter
issue.

B.

facts

(1)

The parties and events

[6]

The investigation leading to the charges began on February 25, 2008,
    when a Canadian Border Services Agency officer opened a package addressed to
    the appellant and discovered four wooden statues containing hidden rough
    diamonds.

[7]

On February 27, 2008, the RCMP installed an alarm and a tracking device
    in the package so that investigators would know when the package was opened. They
    obtained a general warrant authorizing this installation.

[8]

The RCMP decided to make a controlled delivery of the package using an
    undercover officer posing as a courier. Due to perceived security concerns, the
    RCMP decided to employ its Emergency Response Team (ERT). Two RCMP officers
    testified that they had two reasons for their security concerns. First, investigators
    were unable to conclusively identify the appellant before the raid, precluding
    a complete threat assessment. Second, the appellants office was located in a
    high rise commercial building in the hub of Torontos jewellery district. The
    RCMP officers knew that jewellers typically operated from offices equipped with
    controlled access doors, closed circuit security monitoring, and other security
    measures. Because of the potential high value of the diamonds, the officers
    were also concerned about the presence of weapons.

[9]

The ERT was in place when the undercover officer delivered the package
    to the appellants office on February 27, 2008. Approximately ten minutes
    later, the investigators received notification that the package had been
    opened. The undercover officer immediately returned to the office, claiming to
    have forgotten her gloves. She was buzzed through the outer door of the office.

[10]

The
    ERT, with weapons drawn, then breached the inner door and secured the premises.
    The appellant was then arrested by plain clothes officers. The ERT left the
    premises seven minutes after entry.

[11]

The
    plain clothes officers searched the two-room office suite. They seized the
    package that had been delivered by the undercover officer, another similar
    package, and 54 diamonds valued at about $12,900.

(2)

The judicial decisions

(a)

The trial judges ruling

[12]

In
    his reasons, the trial judge addressed both the planning for the execution of
    the warrant and the entry by the ERT.

[13]

With
    respect to the preparation for the search, the trial judge concluded that the
    investigators plan was a reasonable one:

I do not fault the investigating officers or assisting police
    officers in any way, in terms of their preparation of the proposed search of
    the defendants business premises. The officers took all, in my view,
    appropriate and reasonable steps to ensure that the search proposed to be
    conducted would be effective and not dangerous to any persons involved,
    including the officers and the defendant and any other person who might be in
    the vicinity at the time of the search.

To that end, and I accept the evidence of the officers who
    testified in this regard, there were concerns about the potential of weapons on
    the premises of a business such as Mr. MacKays. It is not disputed that the
    building in which Mr. MacKay operated his business was primarily used for the
    jewellery business. It is common knowledge that those businesses involved high
    value items. There are features to the offices in that particular building,
    which one would not find in a normal office building. As I say, the officers
    original concerns were well founded and I do not fault the preparation that
    they took prior to the search being executed.

[14]

The
    trial judge also analyzed the controlled delivery and the entry by ERT
    officers. He noted that when the undercover officer delivered the rough
    diamonds, she had an opportunity to make observations, both of the suite and also
    of the appellant. The trial judge then observed that each ERT member entered
    the suite armed with two loaded firearms, and concluded that such a show of
    significant arms was not necessary:

Given what the undercover officer, who did not testify, as a
    result of agreement between the parties as to what transpired, the undercover
    officer could have simply approached Mr. MacKay, if necessary, with a show of
    force in the background, that is behind her at the doorway, to ensure that
    there was no difficulty with the arrest of Mr. MacKay and the subsequent
    seizure of the items. That was not done.

In my view, the manner in which the warrant was executed was
    unreasonable. I do find a breach of the defendants Section 8 rights in the
    circumstances of this case.

[15]

Having
    found a breach of s. 8, the trial judge proceeded to analyze the admissibility
    of the impugned real evidence. He concluded that the infringement was serious
    because one is left with the sense that where steps are taken to involve a
    specialty task force, such as the one here there is almost an inevitability
    about the sense that they will in fact be deployed. The trial judge also
    concluded that the breach had a great impact on the appellant because of the
    terrifying effect of the ERT entry. Ultimately, he held that the public
    interest would be served best by excluding the evidence. With the essential
    real evidence inadmissible, the Crown elected to call no other evidence and the
    charges were dismissed.

(b)

The summary conviction appeal
    judges decision

[16]

The
    Crown appealed the trial judges order. The summary conviction appeal judge,
    who had the benefit of the Supreme Court of Canadas decision in
Cornell
,
    allowed the appeal and ordered a new trial. The heart of her analysis, at para.
    14, is as follows:

It is true that a trial judges view of the facts must be
    accorded great deference. However, it is argued by the Crown in this case that
    having found that the presence of the ERT was reasonable, the finding that in
    effect a show of force in the background would have been adequate amounted to
    speculative second-guessing in hindsight. The defence argues that whether or
    not the trial judge found that a lesser entry by the ERT was reasonable is
    simply irrelevant, but I do not agree. That finding makes it clear that the
    trial judge was, to a degree, judging dynamic operational decisions made by the
    police with the benefit of hindsight. Had he found that the entire involvement
    of the ERT was unreasonable, the situation might have been different. Having
    held that the threat assessment
was
well founded,
    and the use of ERT
was
reasonable, the
    determination that the precise placement of the officers was excessive amounted
    to an impermissible after-the-fact assessment. [Emphasis in original.]

[17]

Having
    found that the trial judge erred in his s. 8 analysis, the summary conviction
    appeal judge, at para. 17, made only cursory comments with respect to, and reached
    no decision about, s. 24(2):

In these circumstances, it is not strictly speaking necessary
    to determine the issue under s. 24(2). However, I would not have found any
    deficiency in the approach taken in the reasons, succinct though they were.
    Following
Cornell
, the assessment of the seriousness of the breach
    must be considered in light of the public interest in supporting police
    tactical decisions made in good faith in dynamic and difficult situations.

[18]

The
    appellant seeks leave to appeal the summary conviction appeal judges decision.

C.

ISSUES

[19]

The
    issues are:

(1)

Should leave to appeal be granted?

(2)

If the answer to (1) is Yes, did
    the summary conviction appeal judge err by concluding that the trial judge
    erred in his s. 8
Charter
ruling?

(3)

If the answer to (2) is No,
    should the trial judges s. 24(2) decision be confirmed?

D.

ANALYSIS

(1)

Leave to appeal

[20]

The
    leading case on this issue is
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R.
    (3d) 641. The starting point for the analysis, as stated by Doherty J.A. at
    para. 27, is that in the summary conviction appeal context, [a]ccess to this
    court for a second appeal should be limited to those cases in which the
    applicant can demonstrate some exceptional circumstance justifying a further
    appeal. Doherty J.A. went on to say, at para. 37, that leave to appeal should
    be granted in two categories of cases: (1) those with an arguable question of
    law that is significant to the general administration of justice; and (2) those
    where the summary conviction appeal judge seems to have made a clear error of
    law, even if the error may not have significance to the administration of
    justice.

[21]

The
    appellant submits that this case is different from
R.(R.)
, and indeed
    most proposed appeals from decisions by summary conviction appeal judges, in
    that this will not be his second appeal since he was acquitted at trial. I
    agree with this submission; it is, in my view, an important contextual factor
    within which to address the two-part
R.(R.)
test.

[22]

Support
    for this conclusion is found in the recent decision of this court in
R. v.
    OMeara
, 2012 ONCA 420, a drinking and driving case in which the accused
    was convicted at trial. The appeal was allowed and the summary conviction
    appeal judge entered an acquittal. The Crown sought and was granted leave to
    appeal and M. Brown R.S.J. (
ad hoc
) stated, at para. 25: As well, I
    think there is some significance to the fact that while this is the second
    appeal of this matter, it is the Crowns first appeal. The appellant here is
    in the same position as the Crown was in
OMeara
.

[23]

Quite
    apart from this contextual point, I cannot say that the appellant is outside
    the first component of the
R.(R.)
test. In my view, the application of
    the Supreme Court of Canadas decision in
Cornell
to the manner of the
    ERTs entry to the appellants business premises is potentially significant to
    the general administration of justice.

(2)

Section 8
Charter

[24]

A
    key factor in this appeal is that the trial judge made his s. 8
Charter
ruling before the Supreme Court of Canadas decision in
Cornell
,
    whereas the summary conviction appeal judge had the benefit of that decision.

[25]

Cornell
is directly on point in this appeal. It was a case dealing with the search
    powers of a police tactical unit making a hard entry into a suspects
    residence. At paras. 23-25 of his reasons, Cromwell J. set out the parameters
    for judicial review of this category of police search:

First, the decision by the police must be judged by what was or
    should reasonably have been known to them at the time, not in light of how
    things turned out to be.  Just as the Crown cannot rely on after-the-fact
    justifications for the search, the decision about how to conduct it cannot be
    attacked on the basis of circumstances that were not reasonably known to the
    police at the time:
R. v. DeWolfe
, 2007 NSCA 79, 256 N.S.R. (2d)
    221, at para. 46.  Whether there existed reasonable grounds for concern
    about safety or destruction of evidence must not be viewed through the lens
    of hindsight:
Crampton v. Walton
, 2005 ABCA 81, 40 Alta. L.R. (4th)
    28, at para. 45.

[
24
]

Second,
    the police must be allowed a certain amount of latitude in the manner in which
    they decide to enter premises. They cannot be expected to measure in advance
    with nuanced precision the amount of force the situation will require:
R.
    v. Asante-Mensah
, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73;
Crampton
,
    at para. 45.  It is often said of security measures that, if something
    happens, the measures were inadequate but that if nothing happens, they were
    excessive.  These sorts of after-the-fact assessments are unfair and
    inappropriate when applied to situations like this where the officers must
    exercise discretion and judgment in difficult and fluid circumstances. 
    The role of the reviewing court in assessing the manner in which a search has
    been conducted is to appropriately balance the rights of suspects with the
    requirements of safe and effective law enforcement, not to become a Monday
    morning quarterback.

[
25
]

Third,
    the trial judges assessment of the evidence and findings of fact must be
    accorded substantial deference on appellate review.

[26]

The
    appellant does not challenge the initial police decision to employ the ERT in
    the raid on his office. However, the appellant asserts that the police had a
    duty to reassess the situation after the undercover officer entered the
    premises the first time. Such a reassessment should have led to a decision to
    downgrade the hard entry nature of the raid to the point that the ERT would
    play a back-up role to regular police officers.

[27]

This
    was essentially the position adopted by the trial judge. He said:

[T]he undercover officer could have simply approached Mr.
    MacKay, if necessary, with a show of force in the background, that is behind
    her at the doorway, to ensure that there was no difficulty with the arrest of
    Mr. MacKay and the subsequent seizure of the items. That was not done.

[28]

With
    respect, this description of what the police might have done in this case falls
    afoul of the first two propositions in the passage from
Cornell
, above
. According to the testimony of
    the lead officer in the investigation, even after the undercover officer had
    been inside the appellants office, information critical to the imminent raid
    remained unknown, including: the size of the office, the number of rooms, the
    number of people inside, and whether anyone inside had access to weapons.

[29]

Of
    these, the most important factor was the presence of weapons. On this issue,
    the trial judge said: I accept the evidence of the officers who testified in
    this regard, there were concerns about the potential of weapons on the premises
    of a business such as Mr. MacKays. There was nothing in the undercover
    officers brief visit to the premises to remove this extremely important
    concern.

[30]

In
    conclusion,
Cornell
says explicitly, at para. 24, that the police
    must be allowed a certain amount of latitude
in the manner
in which
    they decide to enter premises. (emphasis added)  Given the many unknowns,
    particularly the possibility of weapons inside the premises, there is no basis for
    concluding that the ERT hard entry in this case  brief and focussed  amounted
    to an unreasonable search. I agree with the summary conviction appeal judge
    that [n]o doubt, had the trial judge had the benefit of the guidance of the
Cornell
decision, a different conclusion on the s. 8 decision would have been arrived
    at on the facts as found by the trial judge.

(3)

Section 24(2)
Charter

[31]

In
    light of my conclusion in the previous section, the issue of the potential
    exclusion of evidence does not arise.

E.

disposition

[32]

I
    would grant leave to appeal, dismiss the appeal, and confirm the decision of
    the summary conviction appeal court judge ordering a new trial.

Released: October 4, 2012 (J.C.M.)

J.C. MacPherson J.A.

I agree. Robert P. Armstrong
    J.A.

I agree. David Watt J.A.


