



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dunstan, 2020 ONCA 145

DATE: 20200224

DOCKET: C65780

Benotto, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brett Dunstan

Appellant

Frank Addario and Wesley Dutcher-Walls,
    for the appellant

James D.M. Clark, for the respondent

Heard: February 18, 2020

On appeal from the conviction entered on July 3, 2018 by Regional
    Senior Justice Michelle Fuerst of the Superior Court of Justice, with reasons reported
    at 2018 ONSC 4153.

REASONS FOR
    DECISION

[1]

Someone called the police anonymously to report a break-in at 76 Red Ash
    Drive in Markham. Police officers arrived at the house where they found the
    front door open. They entered and found drugs, drug paraphernalia and cash in
    plain view. The owner of the house  the appellant  was charged with various
    drug related crimes. He sought to exclude the evidence seized on the basis that
    his s. 8
Charter
rights were violated because the police staged the
    break-in. He contends that the anonymous caller was Detective Gillis, who had
    been extensively involved with a drug investigation.

[2]

At the appellants first trial, the evidence was admitted, and he was
    convicted of multiple counts of possession for the purpose of trafficking and
    one count of possession of the proceeds of crime.

[3]

This court allowed the appeal on the basis that the trial judge had
    reversed the burden of proof with respect to the identity of the anonymous
    caller. Once it is established  as it was  that the search was warrantless,
    the persuasive burden shifts to the Crown to prove on balance of probability
    that the warrantless search did not result from the work of a state actor. Speaking
    for the court, Blair J.A. said, at para 87:

the overall
burden of persuasion
rests with
    the Crown to justify the entry and the police conduct associated with it. That
    said, there is an
evidentiary burden
to be met by the
    appellant in the circumstances. The evidentiary burden required the appellant
    to lead evidence demonstrating a credible air of reality to the allegation
    that a state agent, Staff Sergeant Gillis, made the anonymous call and that he
    or his team was responsible for the initial break-in. For the reasons set out
    at paragraphs 69-70 above, the appellant succeeded in doing just that. The onus
    must then shift back to the Crown to counter the credible evidence led by the
    accused and to meet its ultimate persuasive burden of satisfying the court, on
    a balance of probabilities, that the police entry was justified. (Emphasis in
    original,
R. v. Dunstan
, 2017 ONCA 432)

[4]

This court set aside the convictions and ordered a new trial. The second
    trial judge dismissed the appellants application following a 10-day
voir
    dire.

[5]

The appellant submits that once again the trial judge improperly shifted
    the burden of proof by not holding the Crown to its full persuasive burden. It
    was up to the Crown to present evidence satisfying the court, on a balance of
    probabilities, that the warrantless police entry was justified, which in this
    context involved showing that state actors were not involved in the break-in or
    the call to the non-emergency line. The Crown could not simply rely on the
    denials of the officer. The appellant submits that the trial judge erred by
    relying on irrelevant considerations, in particular the riskiness of a police
    break-in and the fact that the officer would not risk his career by engaging in
    illegal activities.

[6]

We do not accept these submissions.

[7]

The trial judge accepted Gillis evidence because it was consistent with
    other corroborated evidence. The investigation was active and ongoing at the
    time, the evidence from the appellants home was not used in the investigation,
    there was no motive or opportunity to break in and Gillis was not near the
    appellants home at the time of the break-in. The trial judge was entitled to
    consider a risk to a police officers career as a relevant consideration to be
    weighed: see:
R. v. Thompson
,
2015 ONCA 800, 343 O.A.C. 76, at para. 68.

[8]

Since the Crown was required to establish a negative, its onus was
    fulfilled.

[9]

This court identified shortcomings at the first trial, at para 89:

in the face of the preliminary foundation
    laid by the appellant, the Crown remained passive. Although requested by the
    appellant to do so, it did not provide [Gilliss] cell phone records, which the
    pre-trial application judge observed would have been very helpful evidence.
    Although requested by the appellant to do so, the Crown also did not provide
    information respecting [Gilliss] whereabouts which, the appellant argued, may
    have shown whether he was or was not near 76 Red Ash Drive on the morning in
    question.

[10]

At the second trial this information, and more, was provided.  Gillis
    also provided multiple voice samples for expert review to confirm his claim
    that he was not the caller.

[11]

Most importantly, the trial judge rejected the allegation that Gillis
    made the call and accepted his evidence. She specifically accepted his evidence
    that: (i) he would never commit a crime to move an investigation forward; (ii)
    he did not make the call; (iii) he did not recognize the callers voice; and
    (iv) that neither he nor any member of his team was responsible for the
    break-in. These findings of credibility were open to her on the evidence.

[12]

The appeal is dismissed.

M.L. Benotto J.A.

Grant Huscroft J.A.

M. Jamal J.A.


