



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foreman, 2015 ONCA 884

DATE: 20151214

DOCKET: C57408

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Foreman

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Jeremy Streeter, for the respondent

Heard: December 2, 2015

On appeal from the convictions entered on March 19, 2013,
    by Justice Mary Lou Benotto of the Superior Court of Justice, sitting without a
    jury.

Gillese J.A.:

OVERVIEW

[1]

Stephen Foreman (the appellant) was charged with drug and firearms
    offences. The charges arose from items seized by the police from the apartment of
    which he was the sole occupant. He was convicted of the offences of possession
    of cocaine and marijuana for the purpose of trafficking but acquitted of the
    firearms offences.

[2]

He appeals against conviction. His appeal hinges upon the decision of
    the application judge, under s. 24(2) of the
Charter
, to admit into
    evidence the firearms, drugs and money that the police located in his
    apartment.
[1]


[3]

The application judge correctly articulated the
Grant
[2]
test, considered the proper factors, and made no unreasonable findings. Consequently,
    her decision to admit the evidence is entitled to considerable deference:
R.
    v. Ansari
, 2015 ONCA 575, at para. 72. I would dismiss the appeal.

BACKGROUND


The Facts in Brief

[4]

On May 5, 2009, at approximately 5:30 p.m., the police received a 911
    call. The caller was a woman who lived in an apartment building. She reported
    that she had seen two suspicious-looking males going from unit to unit,
    checking the doors.

[5]

Two police officers were dispatched to respond to the high risk 911
    call. They had attended at the apartment building in the days leading up to the
    911 call. In the preceding month or two, there had been approximately four
    break and enters in the building.

[6]

The officers arrived at the apartment complex at approximately 5:36 p.m.
    They first searched floors 3 and 19, the floors on which the males were said to
    have been seen.  After finding nothing of significance, they decided to check
    the building, floor by floor, beginning on the top floor. They found nothing of
    concern on the top floor so descended to the floor below.  There they saw an
    apartment with its door completely smashed in and off its hinges. The paneling
    was ripped off from where the door attached to the hinges. The deadbolt lock
    was still engaged in the locked position.

[7]

The officers advised dispatch of the break-in at 5:40 p.m.  After
    listening for noises from the apartment, they announced their presence and entered
    it.  They cleared the apartment, looking for victims and suspects, but found no
    one. They decided to locate the occupant to let him or her know that the
    apartment had been broken into. To get the information necessary to find the
    occupant, one officer decided to look into the kitchen drawers. He thought it
    was common for people to have a junk drawer in the kitchen that would contain
    identifying information or documents such as mail, personal papers or
    medication. He opened a kitchen drawer but found only some utensils. He opened
    a second drawer and found a gun, drugs, and money.

[8]

At that point, the officer notified his supervisor. Other officers arrived
    very quickly. The apartment was secured and a search warrant obtained. The
    search turned up another gun, ammunition, a bulletproof vest, more drugs, and
    more money.

[9]

The appellant was arrested and charged with drug and firearms offences.

[10]

The
    appellant alleged a violation of his s. 8
Charter
rights and brought an
    application to exclude the evidence under s. 24(2).


The Application Judges Decision to
    Admit

[11]

The
    application judge found that the police entry into the apartment was justified
    but that the act of searching the two kitchen drawers was an unreasonable search
    and a breach of the appellants s. 8 rights.

[12]

The
    application judge then correctly articulated the test for exclusion of evidence
    under s. 24(2), as laid out in
R. v.
Grant
, 2009 SCC 32, [2009]
    2 S.C.R. 353. She referred to the three branches of the test:

1.

the seriousness of the
Charter
-infringing state conduct;

2.

the impact on the
Charter
-protected interests of the accused; and

3.

societys interest in an adjudication of the case on its merits.

[13]

On
    the first branch of the
Grant

test, the application judge found
    the
Charter
-infringing state conduct to be serious, but not egregious.
    She made the following findings in reaching this determination.

[14]

The
    application judge found that the officers had not acted with deliberate intent
    to ignore the appellants constitutional rights. She described the breach as
    neither flagrant nor abusive and the officers conduct as neither egregious nor
    a deliberate abuse of power. She concluded that the officer was not acting in
    bad faith when he searched the two kitchen drawers. Rather, his conduct was
    motivated by a desire to find tenant information so that the tenant could be
    notified of the break-in.

[15]

The
    application judge found that the officers were not aware of their obligations
    under the relevant police protocol. The protocol provides that when premises are
    found insecure, among other things, the officer should attempt to locate a
    person in charge of the building, such as security personnel or the superintendent.

[16]

The
    officers testified that they did not want to split up, with one staying at the
    apartment while the other attempted to find a building superintendent. The application
    judge accepted this as reasonable. She also accepted their evidence that they:
    did not know whether there was a building superintendent on site at the time;
    did not know how long it would take to find the building superintendent, if
    there was one; and, had concerns that the superintendents records might not be
    current.

[17]

The
    application judge described the state-infringing conduct in the following terms:

In the heat of the moment, responding to a 911 call in a
    building where there had been multiple break and enters, faced with a violent
    entry into an apartment and what appeared to be an aborted break and enter,
    they decided to search for tenant information in the kitchen, believing that
    personal papers, medications and other documents are often placed in a drawer
    in the kitchen. They did not search the bedroom and more private areas of the
    apartment. They did not search the computer. They did not turn the place upside
    down. They opened the kitchen drawer. As soon as they saw what was in the
    drawer, they notified their superior, secured the premises and proceeded to
    obtain a search warrant.

[18]

The
    application judge referred to these findings and the impact of the breach on
    the appellants
Charter
protected interests. She then noted the seriousness
    of the charges, the reliable nature of the evidence and the central role that
    the evidence played in the prosecution of the offences. After balancing the
    various considerations, the application judge concluded that the administration
    of justice would be best served by admission  not exclusion  of the evidence.

THE ISSUES

[19]

The
    appellant raises two grounds of appeal. He submits that the application judge
    erred:

1.

in finding that the officers conduct was an error in judgment and not
    bad faith; and

2.

by conflating the first two branches of the
Grant
analysis.

[20]

If
    the court finds that the application judge erred in her analysis, the appellant
    raises a third issue:

3.

in performing the requisite balancing under s. 24(2), ought this court to
    assess the seriousness of the offences taking into consideration that the appellant
    was acquitted of the firearms charges?

ANALYSIS

Did the application judge err in
    her assessment of the seriousness of the police misconduct
?

[21]

The
    appellant acknowledges that the police had the authority to enter his apartment
    under the doctrine of implied licence. However, he submits that the application
    judge erred in finding that the officers conduct was an error in judgment and
    not bad faith.

[22]

I
    do not accept this submission.

[23]

In
    the circumstances of this case, the seriousness of the police misconduct was
    the key issue before the application judge. Thus, her factual findings on the
    first branch were crucial. In my view, those findings are reasonable and well-grounded
    in the evidence.

[24]

The
    application judge did not minimize the police misconduct. She critically
    reviewed the evidence and found that the officers conduct fell short in a
    number of ways: they were only vaguely familiar with the relevant police protocol;
    they were not aware of their obligations when dealing with premises that had
    been broken into; and, there were other lawful avenues which they could have
    used to determine the occupants identity.

[25]

Nonetheless,
    the application judge did not find the officers misconduct to be egregious,
    flagrant or abusive. She rejected the defence submission that the search of the
    kitchen drawers was done to obtain evidence that the occupant was a drug dealer,
    knowing that they did not have sufficient evidence to obtain a search warrant. She
    accepted the officers testimony that his motive in opening the two kitchen
    drawers was to find information which would enable him to contact the occupant
    and advise of the break-in. She further found that the officers had not acted with
    a deliberate intent to ignore the appellants constitutional rights. In her
    words, their misguided response was made [i]n the heat of the moment,
    responding to a 911 call in a building where there had been multiple break and
    enters, and where there was obvious, violent entry into the appellants
    apartment.

[26]

The
    application judges findings in relation to the police misconduct are
    reasonable and available on the evidence. They are entitled to considerable deference:
Grant
, at para. 86;
Ansari
, at para. 72.

Did the application judge conflate
    the first two branches of the
Grant
analysis
?

[27]

The
    appellant submits that the application judge conflated the analysis under the
    first two branches of the
Grant
test and failed to properly consider
    the impact of the state misconduct on his
Charter
-
protected
    interests.

[28]

I
    do not accept this submission.

[29]

The
    application judge correctly set out the
Grant
test for the exclusion of
    evidence and identified the three lines of inquiry.  I acknowledge that her
    reasons do not fit perfectly under the three lines of inquiry.  When read as a
    whole, however, it is clear that she considered not only the officers misconduct
    but also the impact of that conduct on the appellants
Charter
-protected
    interests, and societys interest in an adjudication on the merits.

[30]

When
    the application judge set out the three branches of the
Grant
test, she
    stated that the second branch required her to assess the impact of the state
    misconduct on the appellants
Charter-
protected interests. She then
    stated that she had to determine to what extent the breach actually undermined
    those interests.  Later in her reasons, in the paragraph following her
    conclusion that the officers were not acting in bad faith although the breach
    of the appellants rights was serious, the application judge begins with the
    words, [a]s for the impact of the breach on the
Charter
-protected
    interests of the [appellant].

[31]

I
    accept that thereafter, the application judge went on to discuss again the police
    misconduct. But I do not accept that this means that she impermissibly
    conflated the first and second branches of the
Grant
test or that she
    ignored the impact of the police misconduct on the appellants
Charter
-
    protected interests. Her further discussion of the police misconduct, in my
    view, was to indicate that the impact on the appellants
Charter
rights
    did not outweigh the competing considerations in the final balance.

[32]

The
    application judge knew that the appellant was the sole occupant of the
    apartment and that he had a high privacy interest in it. In my view, she stated
    that the police acted lawfully in entering the apartment in order to make it clear
    that the appellants rights were not breached as a result of entry into his
    home. Rather, the breach consisted of the officer  who was lawfully in the
    premises  looking into the two kitchen drawers so that he could find
    information and locate the occupant to advise of the break-in. Her comments 
    albeit in the context of the first branch  that the search was limited and did
    not extend to more private areas of the apartment or to the appellants
    computer, also show her awareness and consideration of the impact on the
    appellants rights.

[33]

While
    the application judge could have been clearer in her discussion of the second
    line of inquiry, she did not miss facts or misapprehend their significance. In
    conducting the final balancing, the application judge summarized why the
    evidence should be admitted, saying:

The search was not conducted in bad faith. While the breach was
    serious, the reliability of the evidence favours admissibility.

[34]

Her
    conclusion elaborates on how she carefully balanced the factors in coming to
    her decision:

In conclusion, although the breach of the accuseds rights was
    serious, it stemmed from what seems to have been an error in judgment by police
    in a highly charged situation. Weighing all of the relevant interests, in the
    circumstances of this case, I conclude that this is not one of those cases
    where the evidentiary fruits of the misconduct should be excluded. On
    balance, the exclusion of evidence would provide a remedy that is out of
    proportion to the wrong.

[35]

For
    these reasons, I would not give effect to the second ground of appeal.


Ought the Court to take the acquittals into consideration
?

[36]

The
    appellant says that if this court is persuaded that it ought to conduct its own
    s. 24(2) analysis, that analysis should take into consideration the appellants
    acquittals on the firearms charges. He says that a fresh consideration by this
    court puts it in a position akin to that which it is in when sentencing afresh.
    Thus, he maintains, the firearms offences are to be ignored, with the result
    that the seriousness of the offences is diminished.

[37]

I
    do not accept this submission. In my view, if this court found it necessary to
    engage in its own s. 24(2) analysis, I would consider the firearms charges. Put
    another way, in my view, the appellants acquittals on the firearms charges would
    be irrelevant to a s. 24(2) analysis undertaken by this court.  If appellate
    intervention were required in this case, this court would stand in the shoes of
    the application judge and should perform the analysis on the same basis as that
    of the application judge.

[38]

The
    decision to admit evidence under s. 24(2) is not about securing convictions. It
    is the long-term repute of the justice system which is the focus of a s. 24(2)
    analysis.  The application judge must consider the three lines of inquiry
    identified above to determine whether, on balance, admission or exclusion of
    the evidence obtained by a
Charter
breach would bring the administration
    of justice into disrepute:
Grant
, at paras. 84-85. Acquittals do not render
    the firearms charges less serious nor do they undermine societys interest in
    an adjudication of charges on their merits.  Either the evidence was
    admissible, based on a balancing of the
Grant
lines of inquiry, or it
    was not. An acquittal does not mean that the trial should not have taken place. 
    That fact is irrelevant, even if it is this court that is deciding the s. 24(2)
    application.

DISPOSITION

[39]

For
    these reasons, I would dismiss the appeal.

Released: December 14, 2014 (K.F.)

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. David Watt J.A.





[1]
The ruling of the application judge, Justice Susan Himel, was made part of the
    trial record at the outset of the trial.



[2]

R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353.


