



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shomonov, 2019 ONCA 1008

DATE: 20191219

DOCKET: C62237

Brown,
    Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eran Shomonov

Appellant

Amit Thakore, for the appellant

Jeremy D. Tatum, for the respondent

Heard: December 17, 2019

On appeal from the convictions entered on January
    21, 2016 by the Honourable Justice J. David McCombs of the Superior Court of
    Justice, sitting without a jury, with reasons reported at 2016 ONSC 1553.

REASONS FOR DECISION


Introduction

[1]

The appellant was convicted of the following
    offences: two counts of possession of a prohibited firearm (
Criminal Code
,
    R.S.C. 1985, c. C-47, s. 95(1)); careless use of a firearm (s. 86(1)); and
    possession of a controlled substance (i.e., marijuana) (
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19, s. 4(1)). He was sentenced to 19
    months incarceration. He appeals his convictions.

Factual Background

[2]

This case arose when the appellant shot himself
    in the hand at an industrial unit that he leased in March, 2013. The bullet
    went through the wall and into the adjacent unit, which was operated as a
    boxing club. There were 10 people in the club at the time. They heard a loud
    sound and noticed a hole in the wall, which they thought was caused by a pellet
    gun. Blood was seen outside the front door of the appellants unit. The door
    was locked. The police were called at 8:39 p.m. The police arrived shortly
    thereafter and secured the premises.

[3]

The police obtained the appellants cell phone
    number and made contact with him. The appellant explained that he was at the
    hospital receiving treatment for an injury caused by a nail gun. He advised
    that his girlfriend had taken him to the hospital. The police went to the
    hospital to investigate. They discovered that the appellant told nursing staff
    that he had been a robbery victim and did not want the police involved. Moreover,
    the appellants girlfriend was contacted and said that she had not seen him all
    day.

[4]

The police interviewed the appellant at the
    hospital. By this time they had spoken to a doctor who said the appellant
    suffered a gunshot wound. There was nothing remarkable about the early police
    questioning; they were simply attempting to determine what happened. However, at
    about 10:20 p.m., their questioning became confrontational. They accused the
    appellant of lying to them about the cause of his injury. The appellant
    admitted that he recently bought two firearms and that they were still in his unit.

[5]

In the meantime, back at the unit, the police
    had attempted to determine if anyone was in the unit. They knocked on the door,
    but nobody responded. Between 10:45 to 11:00 p.m., they noticed fresh
    footprints in the snow, leading to a rear door, which was locked. The police
    had not previously noticed this evidence of activity around the unit.

[6]

At 11:14 p.m., concerned that someone might be
    in the unit and injured, the officer in charge ordered that the police conduct
    a warrantless search. The police broke down the door and searched the unit.
    Nobody was inside. However, the police found two firearms. A search warrant was
    obtained and the subsequent search also resulted in the discovery of a quantity
    of marijuana and cash.

The Trial Judges Ruling

[7]

The appellant sought exclusion of the fruits of
    both searches based upon breaches of ss. 8 and 10(b) of the
Canadian
    Charter of Rights and Freedoms
.

[8]

The trial judge found that, when the police
    arrived at the hospital, the appellant was not detained. However, when the
    police became confrontational with the appellant at 10:20 p.m. (i.e., accusing
    him of lying), he was at that point detained. The trial judge found that the
    appellants inculpatory statements about the firearms in his unit were taken in
    violation of s. 10(b) of the
Charter
and excluded them under s. 24(2)
    for the purpose of proving his guilt; however, the trial judge held that the
    information derived from this part of the interview could inform the reasonableness
    of the officers grounds to conduct a warrantless search.

[9]

The appellant also argued that both searches of
    his industrial unit infringed his right to be free from unreasonable search and
    seizure under s. 8 of the
Charter
. The trial judge found that the
    initial, warrantless search was justified on the basis of exigent
    circumstances. The trial judge further found that, if the warrantless search
    infringed s. 8, the evidence ought to be admitted under s. 24(2).

[10]

Moreover, the trial found that the second
    search, conducted pursuant to the warrant, did not infringe s. 8. He found
    that, after removing the paragraphs in the ITO that detailed the appellants
    admissions at the hospital, as well as information derived from the warrantless
    search, there was still a basis for the search warrant to issue.

[11]

As a result of this ruling, the appellant was
    found guilty based on an Agreed Statement of Facts.

Analysis

[12]

The appellant challenges the trial judges
    conclusions concerning the lawfulness of the two searches conducted at his
    industrial unit. We are not persuaded that the trial judge erred.

[13]

In terms of the warrantless search, the trial
    judge accepted the evidence of the police officers involved in authorizing and
    executing the warrantless search, and that there was a genuine concern that an
    injured person might still be inside. As the trial judge said, at paras. 24-25,
    and 27-28 of his reasons:

Det. Sgt. Zajak authorized the warrantless
    entry into unit B. [He] gave credible evidence that was not shaken in
    cross-examination.
I accept without reservation his and DC Doyles evidence
    that they had a shared concern that someone could be injured inside the unit.
    Given the information they had at the time, I find their concern to have been
    reasonable.

Det. Sgt. Zajak acknowledged that, in his
    words he didn't know what the deal was, but he had enough information that he
    was seriously concerned that someone could be inside, injured from a gunshot
    wound. He also had concerns about officer safety, and the possibility that
    someone could be inside getting rid of evidence, but those concerns were
    secondary to his concern about a possible injured victim inside the unit. In
    response to the suggestionthat there were no exigent circumstances and that he
    could have waited for a warrant, Det. Sgt. Zajak said he couldnt live with
    himself if he went in 5 or 6 hours later and found a dead person who had bled
    out: thats something I would have to live with for the rest of my life.



I have no hesitation in concluding that the
    officers had an honest and reasonable concern that there could be an injured
    victim inside the unit. They were not prepared to take a chance by waiting for
    several hours until a search warrant could be obtained.

In my opinion, in entering unit B without a
    warrant,
they made the right decision.
The fact that the search revealed
    that there was no injured victim inside the unit does not mean that the
    decision was the wrong one.
There was a reasonable belief that a persons
    safety could be at risk. [Emphasis added.]

[14]

Based on these factual findings, the trial judge
    concluded that the warrantless search was justified by exigent circumstances.

[15]

We see no error in the trial judges analysis.
    The trial judges factual findings are entitled to deference on appeal. The
    findings set out in the paragraphs reproduced above were firmly grounded in the
    evidence. Although the trial judge did not refer to the evidence that the
    Emergency Task Force refused to participate in the warrantless entry without a
    search warrant, he was clearly aware of this circumstance. Indeed, this issue
    was clarified through the trial judges questions of Det. Sgt. Zajak. His
    failure to mention this evidence in his reasons, or other incidental aspects of
    the evidence, did not undermine the ample evidentiary foundation from which he
    drew his conclusions.

[16]

The circumstances known to the police at the
    time amply justified the warrantless entry into the appellants commercial
    unit. In other words, the trial judge did not err in finding that the entry was
    compelled by urgency, calling for immediate police action to preserve
    evidence, officer safety or public safety and that taking the time to obtain
    a warrant would pose serious risk to those imperatives:
R. v. Paterson
,
    2017 SCC 15, [2017] 1 S.C.R. 202, at para. 37.

[17]

This ground of appeal is dismissed.

[18]

The appellant further argues that the search
    warrant that was subsequently obtained was invalid because the police
    improperly relied upon (1) the appellants admissions made following a breach
    of his rights under s. 10(b) of the
Charter
, and (2) the fruits of the
    warrantless search.

[19]

The trial judge agreed that the paragraphs in
    the ITO referring to the appellants admissions should be excised. The trial
    judge said, at para. 34: Clearly, the balance of the ITO provides an abundant
    basis for the conclusion that reasonable grounds existed to permit the issuance
    of a search warrant. Further, the trial judge rejected the submission that, if
    reference in the ITO to the fruits of the warrantless search were also excised,
    the warrant would be invalid. The trial judge disagreed, at para. 35: Again,
    with those paragraphs omitted, there is still a more-than-adequate basis for
    the issuance of the search warrant. These findings were reasonable.

[20]

We see no error in the trial judges analysis of
    the validity of the search warrant and we would also dismiss this ground of
    appeal.

Disposition

[21]

The appeal is dismissed.

David
    Brown J.A.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.


