IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. French,

 

2018 BCSC 825

Date: 20180516

Docket: 27023

Registry: Vancouver

Regina

v.

Michael John French

Before: The Honourable Madam Justice MacNaughton

Oral Ruling on Voir Dire on Charter Issues

Counsel for the Crown:

J. Hermanson

Counsel for the Accused:

K. Westell

Place and Date of Trial:

Vancouver, B.C.

March 5-7 and 12, 2018

Place and Date of Judgment:

Vancouver, B.C.

May 16, 2018


 

Table of Contents

Introduction. 3

Issues. 4

The Facts. 5

Admissions of Fact. 16

Credibility of the Officers’ Evidence. 18

The Legal Principles for Assessing a Breach under s. 8 of the Charter. 22

The Application of the Legal Principles in This Case. 29

Conclusion. 30

Investigation of Alleged Assault 31

Concern for Officer or Public Safety. 33

Mental Health Concern. 33

The Search Which Followed Discovery of the Live Round. 37

Section 9 of the Charter. 38

Sections 10(a) and (b) of the Charter. 41

Section 24(2) of the Charter. 44

The Seriousness of the Charter-Infringing State Conduct 47

The Impact of the Charter-Protected Interests of the Accused. 49

Society’s Interest in an Adjudication on the Merits. 50

Balancing the Grant Factors. 51

Conclusion. 51


 

Introduction

[1]             Michael John French is charged with six firearms offences. They are for possessing, without a licence, prohibited or restricted firearms with readily accessible ammunition, oversize ammunition magazines and firearms-related accessories (collectively, the “Firearms”) under ss. 92(1), 92(2), and 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. He is also charged with unsafe storage of firearms contrary to a regulation under the Firearms Act, S.C. 1995, c. 39 and s. 86(2) of the Code.

[2]             The Firearms were found at Mr. French’s residence at Suite 1606, 1199 Seymour St. in Vancouver in the early morning hours of May 19, 2014 (“suite 1606” and the “Apartment Building”). The Firearms were found after officers from the Vancouver Police Department (“VPD”) attended the Apartment Building in response to a call from a resident of the 16th floor, reporting an assault in progress.

[3]             Mr. French asserts that his right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter] was breached.

[4]             Mr. French also asserts that he was arbitrarily detained in breach of s. 9 of the Charter, and that he was denied the right to be advised of the reason for his detention and the right to speak to counsel, in breach of ss. 10(a)-(b) of the Charter.

[5]             In the event that I conclude that Mr. French’s Charter rights were breached, he submits that the Firearms should be excluded after an inquiry under s. 24(2) of the Charter.

[6]             The Crown denies that Mr. French’s Charter rights were breached and submits that the VPD officers searching suite 1606 were exercising their common law duty to protect life and safety.

[7]             After the initial search, which I describe below, the Crown relies on s. 117.04(2) of the Code in support of its position that a secondary search of suite 1606, which located the handgun which led to Mr. French’s arrest and the VPD obtaining a search warrant, was legal. It was pursuant to the search warrant that the rest of the Firearms were discovered.

[8]             The Crown also submits that, if I conclude that Mr. French’s Charter rights were breached, the Firearms should, nevertheless, be admitted after an inquiry under s. 24(2) of the Charter.

[9]             Mr. French’s Charter challenges and the inquiry under s. 24(2) were considered in a single voir dire at the commencement of the trial.

Issues

[10]         There are four main issues to be decided:

a)    Did the warrantless searches of suite 1606 breach Mr. French’s right to be secure against unreasonable search and seizure under s. 8 of the Charter?

b)    Was Mr. French arbitrarily detained contrary to s. 9 of the Charter?

c)     Was there a breach of Mr. French’s right to be advised of the reason for his detention and his right to counsel under s. 10(a) and (b) of the Charter?

d)    If Mr. French’s Charter rights were breached, should the Firearms be excluded as trial evidence after an inquiry under s. 24(2) of the Charter?

[11]         For the most part, counsel agree on the legal principles which apply in this case and rely on the same authorities.

[12]         The Crown acknowledged that if the Firearms are excluded, Mr. French cannot be convicted of the offences with which he is charged, and Mr. French’s counsel acknowledged that if the Firearms are admitted, Mr. French will have no defence to the charges.

[13]         The dispute is primarily about whether, based on an assessment of the officers’ evidence and the overall circumstances, their actions were reasonable and lawfully justified.

The Facts

[14]         The VPD received a call from a male resident of the 16th floor of the Apartment Building reporting that there was an assault in progress (the “Caller”). The Caller reported that a number of people were banging on the door of suite 1606 attempting to bash it in. He also reported that the individuals eventually got into an altercation with the occupant of suite 1606, during which someone was punched in the face. A dispatch call was sent out at about 12:33 a.m., and six VPD officers responded to it. All arrived on the 16th floor at approximately 12:40 a.m. on May 19, 2014.

[15]         Four of the six responding officers testified in this voir dire. I heard evidence from Constables Jeremiah Birnbaum and Deidre Wong, who were partners and on duty in the early morning hours of May 19, 2014. They were in uniform and testified that they responded to the call to provide cover for the plain-clothes officers who also attended. Constable Wong also testified that she was carrying a Taser, a less lethal option for possible use at the scene.

[16]         I also heard evidence from plain-clothes Constables Joseph Loch and Oscar Alvarez de la Portilla, who were partners and on duty that morning.

[17]         Constables Blackadar and Belkin were the two other officers who responded to the dispatch call, but they did not testify.

[18]         The four constables who testified all agreed about the approximate time they received the dispatch call and generally with respect to its content. They understood that the Caller was not part of the altercation and was likely observing it from inside his own suite, either through the peephole or from his doorway. None of the officers ever spoke to the Caller.

[19]         Constables Loch and Alvarez de la Portilla were the primary responders. Constables Birnbaum and Wong provided backup, and testified that their uniforms clearly identified them as police officers. When they intervene in altercations, plain-clothes officers are often mistaken for civilians. The presence of uniformed officers ensures that there is no misunderstanding about the police being there.

[20]         Constables Loch and Alvarez de la Portilla were the first to arrive at the Apartment Building, followed shortly thereafter by Constables Birnbaum and Wong. All four constables estimated that they arrived at the Apartment Building, or on the 16th floor, at about 12:40 a.m.

[21]         By the time the officers arrived, there was no assault in progress on the 16th floor.

[22]         The officers testified that they observed what appeared to be fresh damage to the front door of suite 1606. The damage was consistent with an attempt to break down the door from the outside, as had been reported by the Caller.

[23]         Constable Alvarez de la Portilla testified that there were no sounds coming from suite 1606. Constables Birnbaum and Wong testified that they could hear someone inside suite 1606 but there were no sounds of an altercation.

[24]         There was a party underway in suite 1607. Constable Loch testified that he knocked on the door of that suite and when the partygoers realized that the police had arrived, several of them spilled out into the hallway. Constable Loch testified that, from the odour of liquor and the disjointed and slurred speech of the partygoers, he concluded that they were under the influence of alcohol. Constable Birnbaum confirmed in his evidence that at least some of the occupants of suite 1607 were intoxicated.

[25]         Constable Loch spoke to Krista Boseley, one of the partygoers. He testified that she was the “most collected” of those who came out of suite 1607 and she was able to answer his questions clearly. He agreed that in the notes he made that evening, he referred to all of the occupants of suite 1607 as being under the influence of alcohol and did not make a distinction with respect to Ms. Boseley.

[26]         Ms. Boseley told Constable Loch that she had known Mr. French, the sole resident of suite 1606, for about 15 years and that, “over the past couple of weeks”, she had become more and more concerned about him. She said that Mr. French had sent text messages to a mutual friend of theirs, which, when she heard about them, led her to believe that Mr. French might be emotionally distraught or suicidal.

[27]         Constable Loch testified that Ms. Boseley told him that Mr. French had made some suicidal or self-harming comments by text, but he could not recall what she said they were. Ms. Boseley told Constable Loch that, after learning of the texts, she reached out to Mr. French but he had not responded, which was strange and upsetting to her. The timeframe in which Mr. French sent the texts or when Ms. Boseley learned of them was not clear from Constable Loch’s evidence.

[28]         Although Constable Loch testified that he has a “vague recollection” that Ms. Boseley told him that Mr. French had also texted her directly, he did not include that in his notes or in the information he deposed to obtain a search warrant (“ITO”). As a result, I conclude that his recollection was in error.

[29]         Despite being asked, Ms. Boseley did not tell Constable Loch the name of the friend who had received the concerning texts from Mr. French, and she never showed him the texts.

[30]         Constable Wong testified that she understood that the occupant of suite 1606 was actively sending suicidal texts from inside the suite. It is not clear how she reached that conclusion as Constable Loch’s evidence was clear that any texts had been sent earlier.

[31]         Constable Loch testified that Ms. Boseley told him that, because she was concerned about Mr. French, she and a number of people from the party in suite 1607 went to the door of suite 1606. When Mr. French did not come to the door, they collectively decided to break it down to check on his wellbeing. They broke in and found Mr. French inside. An altercation occurred during which Mr. French punched one of the individuals in the head or face. Constable Loch testified that Ms. Boseley told him “once they realized [Mr. French] was alive, they backed off and that was it.” 

[32]         Ms. Boseley did not tell Constable Loch the name of the person Mr. French struck or where that person had gone. Constable Loch confirmed that he never learned the name or location of the person who was allegedly struck by Mr. French. In his evidence, Constable Loch agreed that Ms. Boseley had not been forthcoming with a lot of detail.

[33]         Constable Loch testified that, after speaking to Ms. Boseley, he radioed dispatch and asked to have Mr. French’s name run through the VPD information channel. He was told there was a “hit” for Mr. French who lived in suite 1606. He then asked the dispatcher to run Mr. French’s name against the mental health emergency services database and learned that there was a mental health record with respect to Mr. French, who had been diagnosed with depression and anxiety. Constable Loch did not testify that he was told the date on which Mr. French had been diagnosed or the date of any contact with emergency services.

[34]         While Constable Loch was speaking to Ms. Boseley, McKinley Doyle came out of suite 1603 and asked to speak to one of the officers. Constable Alvarez de la Portilla spoke to Ms. Doyle. She told him that, for about three months, she had known and socialized with Mr. French, the occupant of suite 1606. She expressed her concern that Mr. French was unwell and suffering from a mental illness, a mental breakdown, or some sort of emotional trauma.

[35]         Constables Birnbaum and Wong were not directly involved in talking to any of the civilians on the 16th floor. In addition to what they learned from the dispatch call, they relied on what the lead investigators, Constables Loch and Alvarez de la Portilla, told them.

[36]         After discussing the information Constables Loch and Alvarez de la Portilla received, all of the officers decided to approach suite 1606. Constable Birnbaum testified that the officers discussed the information about a potential suicide as a risk which they needed to assess and that he “took action to organize” the officers to go into the suite.

[37]         At approximately 1:00 a.m., some or all six of the officers “stacked up” against one side of the door, one behind the other in single file. The evidence was inconsistent about whether all six were involved in the stack.

[38]         The consensus of the evidence is that Constable Birnbaum, who was in uniform, was at the front of the stack with his gun drawn and that Constable Wong was directly behind him with her Taser drawn. The plain-clothes officers were behind them.

[39]         Constable Birnbaum knocked on the door to suite 1606 and identified himself as the police. He heard a yelled response. He knocked again and asked Mr. French to come to the door of his suite with nothing in his hands. All of the officers agreed that Mr. French complied with the request. Mr. French opened the door and came out of suite 1606, slowly and cautiously, presenting his hands to show that he had nothing in them.

[40]         Although all of the officers described Mr. French as being dressed only in athletic shorts and sweating profusely, their descriptions of his emotional presentation varied. Constable Birnbaum did not mention Mr. French being agitated. Constable Wong described him as being “really pale” and “kind of in an excited state either by drugs and/or alcohol.” Constable Alvarez de la Portilla described Mr. French as “a little bit agitated” as if he had just exerted himself physically. Constable Loch described Mr. French as acting “very jittery”, “jumpy”, and in an “emotionally erratic manner”. He testified that he was concerned that Mr. French was emotionally disturbed and distraught. He described Mr. French as appearing to be suffering from some sort of emotional distress.

[41]         Immediately after Mr. French came out of his suite, Constable Birnbaum and/or Wong placed him in handcuffs. Constable Birnbaum testified that they did so because they were investigating both an assault and a potentially suicidal person, and both scenarios presented threats to the officers and to Mr. French’s well-being. Constable Wong testified that they were unsure of the identity of the person who came out of the suite: whether he was the potentially suicidal person or the person who had committed the assault. She described the situation as “really unpredictable” and said that the person was handcuffed for officer safety. She did not recall learning the name of the occupant of suite 1606.

[42]         Constable Loch testified that Mr. French was handcuffed because they were investigating a violent altercation and a possible assault in which they believed Mr. French had been involved. He also testified that they were concerned that Mr. French was a danger to himself and that he was handcuffed for his own safety, so that he could not harm himself or escape their custody to attempt suicide.

[43]         Once Mr. French was in handcuffs, Constables Birnbaum and Wong did not ask him any questions. Instead, they immediately passed him off to the other officers, turned their attention to suite 1606, and entered it.

[44]         There is no dispute that none of the officers sought Mr. French’s consent to enter his suite. Constables Birnbaum and Wong did not speak to Mr. French, and did not tell him why he was being detained and placed in cuffs.

[45]         In his evidence, Constable Alvarez de la Portilla testified that Constable Loch also went in to search the apartment. His evidence in that regard was at odds with the evidence of Constables Birnbaum, Wong and Loch, and I prefer their consistent evidence in that regard. In particular, as discussed below, Constable Birnbaum had a clear recollection of calling Constable Loch into suite 1606 to look at the rifle round that he and Constable Wong discovered at the end of their search.

[46]         Constable Loch testified that Constables Birnbaum and Wong went into suite 1606 to clear it. He said that he was concerned that the officers had not found the victim of the assault and that he might still be in the suite. He also testified that, where the police have a concern about a person’s mental health, they have a responsibility to ensure that there are no empty needles or drugs, to see if there are medications, and to determine, from the state of the suite, whether the person has let themselves go.

[47]         Constable Loch testified that, factors in assessing a person’s mental state under s. 28 of the Mental Health Act, R.S.B.C. 1996, c. 288 [MHA] is whether they are not eating properly or living in squalor and that, when Mr. French came out of the suite, he was able to see that it was in a state of disarray. Constable Alvarez de la Portillo testified that, as he was speaking with Mr. French in the hallway, he was able to see into suite 1606 and it was in an “incredible state of disarray” with holes in the walls as if someone had had a fight in the suite.  

[48]         Constables Birnbaum and Wong also testified about their reasons for entering the suite. Constable Birnbaum said that the officers were concerned about the potential of a person contemplating suicide being inside and, given that there had been an assault, there was also an officer safety concern. He said that the search was a safety search to ensure that no one else was in the suite, including the potentially suicidal person or the victim of the assault. In cross-examination, he contradicted his direct evidence about the potential of a victim being in the suite. He agreed that he understood that a fight had occurred between the occupant of suite 1606 and individuals who were no longer on the scene.

[49]         Constable Wong testified that she believed that an assault had happened in suite 1606 and that there were at least two people in the apartment. She was looking for an injured person or a suicidal person.

[50]         Constables Birnbaum and Wong testified about the damage they observed to the doorframe of the suite and the state of disarray which they found when they entered it. They described items piled up, a stench of garbage and cat urine, holes punched in the walls, doors off their hinges or broken, and a hole kicked in the side of the bathtub.

[51]         Constable Birnbaum said that it looked like the whole suite had been overturned and not cleaned up. Constable Wong described the condition of the suite as “explosive” with things everywhere and flipped over. She initially thought that there had been a break-in and the suite had been trashed, or that there had been a big brawl. Their evidence about the condition of the suite was confirmed by the photographs which were entered into evidence as Exhibit A on this voir dire.

[52]         Both officers testified that the degree of chaos and mess in the suite made it more difficult to search and clear for safety. Constable Wong said that, as she moved through the suite, she began to realize that the damage she observed was not fresh. For example, there was no broken drywall next to the holes in the walls, or pieces of the tub next to the hole in it.

[53]         Constable Birnbaum testified that he and Constable Wong had done a “safety search” to ensure that there was no one who was hurt in the suite. They were looking for things that were obvious and did not search drawers or closets. They estimated that their search took, at most, several minutes, and in any event, less than ten minutes.

[54]         As they were concluding their search, Constables Birnbaum and Wong met near the entrance of suite 1606, beside the kitchen, to debrief about what they had seen. Constable Birnbaum testified that he and Constable Wong agreed there was a need for a secondary search because the level of debris made it impossible to determine if someone else was in the suite. Constable Wong testified that, as far as she was concerned, her search of the suite was complete. During the debriefing, the officers saw a rifle round on the kitchen floor. Constable Birnbaum believed it was a live round, and he drew it to the attention of Constable Loch, who was called into the suite for the purpose of identifying it. The live round was identified as a .233 caliber rifle round (the “Live Round”).

[55]         Constable Loch eventually joined the search of suite 1606. He testified that he did so to assess, based on the condition of the suite, Mr. French’s mental state and to determine whether he had taken anything that could be harmful to him. He also wanted to determine whether the potential victim of the assault was in the suite. When he entered the suite, Constables Birnbaum and Wong told him that they had found medication bottles and a bucket containing vomit, and that Constable Birnbaum had found the Live Round, which Constable Loch examined.

[56]         Constable Loch testified that he immediately became concerned about the possibility that there was a gun in suite 1606. He was concerned about Mr. French’s mental health and that access to a firearm gave him a greater opportunity to inflict harm on himself or others. He asked Mr. French how he had obtained the Live Round. Mr. French responded that he had obtained it from DVC Ventures, a firing range in Port Coquitlam. Constable Loch was familiar with the range and knew that it was not equipped to handle the calibre of Live Round the officers had found.

[57]         Constable Loch challenged Mr. French on his answer, and Mr. French would not then tell him where he obtained the Live Round. Constable Loch testified that Mr. French’s failure to respond added to his concern that there could be a firearm in suite 1606 and that, given Mr. French’s emotional state and what Constable Loch had been told by Ms. Boseley, there was a need to confirm that there were no firearms in suite 1606 with which Mr. French could harm himself or others.

[58]         Constable Loch testified that he also saw, or someone pointed out to him, a spent casing from a .50 calibre handgun in suite 1606. The Live Round and the spent casing could not be used in the same firearm. He testified that he believed he was aware of the spent casing before he spoke to Mr. French about the Live Round, but his focus was on the Live Round because it could be used.

[59]         He said that he relied on s. 117.04(2) of the Code, which deals with exigent circumstances and allows an officer to find and seize a weapon where they have grounds for a warrant, but obtaining one is not practicable due to time constraints or other events. Constable Loch testified that no victim had come forward to say that they had been assaulted by Mr. French, so he could not be held on an assault charge.

[60]         In addition, Constable Loch testified that, although he was concerned about Mr. French’s mental health and could have apprehended him under s. 28 of the MHA, doing so would have required that Mr. French be immediately assessed by a doctor. Once Mr. French was presented to a doctor, the police would lose authority over him, and a doctor might release him quickly, allowing him to return to suite 1606. Constable Loch testified about his earlier experience with doctors at St. Paul’s Hospital quickly releasing individuals apprehended under the MHA, despite a strong police recommendation that the individual be certified. He implied that the quick releases were as a result of how busy the doctors at St. Paul’s Hospital were.

[61]         Constable Birnbaum testified that, after the discovery of the Live Round, there was a discussion about whether to lock down the suite and obtain a warrant to search it. Constable Birnbaum said that he and Constable Loch disagreed about what to do next. Constable Birnbaum said that Constable Loch believed that there were exigent circumstances to search the suite immediately. Constable Loch was concerned that, if the officers arrested or apprehended Mr. French under the MHA and took him to a doctor as they were required to do, he might be released right away and return to the suite. Constable Birnbaum was of the view that Mr. French was already outside the unit, and there was time to go and get a warrant. Both officers gave evidence about their prior experience with apprehensions under the MHA with individuals whom they thought should have been held for assessment being released almost immediately.

[62]         Constable Birnbaum testified that Constable Loch’s view won out, and the officers decided to conduct a further search. In her evidence, Constable Wong confirmed that there was a discussion about the need to get a warrant, but she recalled it as occurring after the discovery of the handgun. Her contribution to the discussion was that they should seek the advice of a sergeant.

[63]         Constable Loch agreed that he and Constable Birnbaum had a disagreement over whether a search warrant was required, but he said the discussion was after he discovered the handgun. Overall, I prefer Constable Birnbaum’s evidence about the timing of their discussion. In my view of the evidence, it is more likely that the discussion occurred at the end of the first search and on discovery of the Live Round. Constable Birnbaum was more certain in his recall of the timing and, as he was the officer who was eventually overruled, in my view, his recall is more likely to be stronger. Further, after discovery of the handgun, Mr. French was charged. It is less likely that the officers would have had a debate about next steps at that time.

[64]         Constable Birnbaum believed that all four of the officers who testified were involved in the secondary search. The other three officers, all of whom believed that Constable Alvarez de la Portilla remained in the hallway with Mr. French, did not confirm his evidence. In my view, it is unlikely that the officers would have left Mr. French unattended in the hallway while they searched the suite, and I find that Constable Alvarez de la Portilla remained with Mr. French in the hallway and that the other three officers were involved in the secondary search.

[65]         Constable Loch testified that he decided to go into suite 1606 and clear all the main living areas. He went to the bedroom and searched the bedroom closet. He described it as was difficult to search because of piled-up belongings and damage to the closet door. Within the closet, he found an unlocked black box, stamped with the name Sig Sauer. He recognized the name as a firearm manufacturer. Inside he found a pistol, two magazines loaded with ammunition, and a threaded suppressor, or silencer, which appeared to fit the threaded end of the pistol. The pistol was not rendered inoperable. In addition, the officers found a spent .50 caliber round on a fireplace mantle in Mr. French’s suite.

[66]         Constable Loch drew the gun case and its contents to the attention of Constables Birnbaum and Wong, and they decided to lock down the apartment to obtain a search warrant, and have Constable Alvarez de la Portilla charge Mr. French, and give him a Charter warning.

[67]         Up to this point, Mr. French had not been charged with any offence and had not been informed of his Charter rights.

[68]         Constable Loch testified that he advised Constable Alvarez de la Portilla to arrest Mr. French for unsafe storage of a firearm. He placed the Sig Sauer box, and its contents, on the bed, sealed suite1606, and started writing the ITO.

[69]         At 1:00 a.m. on May 19, Constable Alvarez de la Portilla charged Mr. French with unsafe storage of a firearm. He advised Mr. French of his right to speak to counsel, and Mr. French said that he wished to do so. Constable Alvarez de la Portilla testified that he expected Mr. French to be at the police station within 30 minutes. Mr. French was not immediately provided with a cell phone to make a call to counsel. Instead, he was first able to call counsel after he was examined by Emergency Medical Services at the Apartment Building, transported to the station, and placed in the VPD cells.

[70]         Constable Loch then completed the ITO. A warrant was signed by a Justice of the Peace which permitted a search of suite 1606 and its associated storage locker. The other firearms were located after the search.

Admissions of Fact

[71]         Pursuant to s. 655 of the Code, counsel for Mr. French admitted the following facts for the purpose of dispensing with the proof thereof at trial:

Search of 1606-1199 Seymour Street

1.     On May 19, 2014 members of the Vancouver Police Department attended to suite 1606-1199 Seymour Street in Vancouver, British Columbia (the "Apartment") at approximately 10:25 p.m. and executed a search warrant (the "Search").

2.     The Ruger target pistol, referred to in Count 1 and Count 3 of the indictment (the "Ruger Pistol"), was located during the Search contained within a gun case (the "Gun Case") in the master bedroom of the Apartment.

3.     The Ruger Pistol is a restricted firearm within the meaning of s.84, s.86, s.92 and s.95 of the Code.

4.     The silencer referred to in Count 4 of the indictment (the "Silencer") was located within the Gun Case during the Search.

5.     The Silencer is a prohibited device within the meaning of s. 92(2) of the Code.

6.     In addition to the Silencer, the Gun Case contained two cartridge magazines (the "Pistol Magazines") containing five and seven .22 cartridges respectively, as well as a box containing 50 .22 cartridges (in their entirety the "Pistol Cartridges").

7.     The Pistol Cartridges are ammunition within the meaning of s. 84 of the Code.

8.     The Pistol Cartridges are capable of being discharged in the Ruger Pistol.

9.     True and accurate pictures of the Gun Case, the Ruger Pistol, the Silencer, the Pistol Magazines, and the Pistol Cartridges are contained at Tab 1 of a book of materials entitled “Search Photographs” marked as an exhibit E in this trial.

10.  The Kalashnikov AK-47 assault rifle, referred to in Count 2 and 3 of the indictment (the "AK-47 Rifle") was located during the Search contained within a zippered bag (the "Zippered Bag") in the master bedroom closet of the Apartment.

11.  The AK-47 Rifle is a prohibited firearm within the meaning of s.84, s.86, s.92 and s.95 of the Code.

12.  Three of the oversized ammunition magazines referred to in count 5 of the indictment were 30 capacity magazines designed for a Kalashnikov, all of which were located during the Search, two within the outside pockets of the Zippered Bag and one within the Zippered Bag (the "AK-47 Magazines")

13.  The Zippered Bag contained four boxes of American Eagle 7.62 x 39 Cartridges (the "AK-47 Cartridges").

14.  The AK-47 Cartridges are ammunition within the meaning of s. 84 of the Code.

15.  The AK-47 Cartridges are capable of being discharged in the AK-47 Rifle.

16.  The Ruger mini-14 carbine, referred to in Count 3 of the indictment (the "Ruger Mini-14") was located during the Search contained within the Zippered Bag.

17.  The Ruger Mini-14 is a firearm within the meaning of s.84, s. 86, and s.92 of the Code.

18.  Two of the oversized ammunition magazines referred to in Count 5 of the indictment were 30 capacity magazines designed for a Ruger Mini-14 rifle (the "Ruger Mini-14 Magazines") and were located during the Search contained within the outside pockets of the Zippered Bag.

19.  The Ruger Mini-14 Magazines were loaded with eight cartridges and 14 cartridges respectively (the "Ruger Mini-14 Cartridges").

20.  The Ruger Mini-14 Cartridges are ammunition within the meaning of s. 84 of the Code.

21.  The Ruger Mini-14 Cartridges are capable of being discharged in the Ruger Mini-14.

22.  True and accurate pictures of the Zippered Bag, the AK-47, the Ruger Mini- 14, the AK-47 Magazines, the AK-47 Cartridges, the Ruger Mini-14 Magazines, and the Ruger Mini-14 Cartridges are contained at Tab 2 of exhibit E in this trial.

23.  A 6th oversized magazine referred to in Count 5 of the indictment was a 40- cartridge capacity magazine for a Ruger Mini-14 and was located during the Search within a plastic bag in the pantry of the Apartment (the "Pantry Magazine").

24.  True and Accurate photographs of the Pantry Magazine are contained at Tab 3 of exhibit E in this trial.

25.  The AK-47 Magazines, the Ruger Mini-14 Magazines and the Pantry Magazine are all prohibited devices within the meaning of s. 92(2) of the Code.

26.  The Ruger Pistol, the AK-47 Rifle, and the Ruger Mini-14 were stored in a manner contrary to s. 117(h) of the Firearms Act when they were located in the Search.

27.  The Apartment was kept secure from the time of the Accused's arrest on May 19, 2014 until the Search.

Michael John French

28.  Michael John French is the Michael John French in indictment 27023-2 (the “Accused”).

29.  On May 19, 2014 the Accused was the only resident of the Apartment.

30.  The Accused was not on May 19, 2014, and has never been, the holder of a licence or authorization under which he could possess any firearm or prohibited device, or a registration certificate for any firearm, or prohibited device.

31.  At 2:00 a.m. on May 19, 2014, the Accused was cleared by ambulance attendants at 1199 Seymour. At that point, he was transported to Vancouver Police Department cells, arriving at 2:17 am where he was booked into custody and then given access to a phone to call his lawyer.

32.  The continuity of all exhibits is admitted.

Credibility of the Officers’ Evidence

[72]         There were differences in the officers’ recollections of what occurred on May 19, 2014, but, for the most part, I did not find these differences surprising or remarkable because almost four years had passed since the events in question. Frankly, I would have been more concerned if their evidence had been closely similar.

[73]         It was, however, apparent from the officers’ testimony that they were operating on different understandings of the situation. All heard the same dispatch call but, after arriving at the Apartment Building, Constables Birnbaum and Wong were operating only on information conveyed to them by Constables Loch and Alvarez de la Portilla. They did no investigation of their own, viewing their role as backup only. None of the officers spoke to the Caller. Constables Loch and Alvarez de la Portilla learned different information from their respective conversations with Ms. Boseley and Ms. Doyle.

[74]         In his discussions with Ms. Boseley, Constable Loch learned about Mr. French’s possible threats of suicide by text to another unknown individual. The timing of any such threats was not apparent from his discussions with Ms. Boseley, and he never saw the texts. Constable Loch knew that Ms. Boseley and her friends had been drinking. However, he learned that at least Ms. Boseley had been sufficiently concerned about Mr. French that she and a number of others broke into his suite to check on his well-being.

[75]         Constable Alvarez de la Portilla spoke to Ms. Doyle and learned that Mr. French might be mentally unwell, but not that he was immediately suicidal.

[76]         Constable Wong believed that the occupant of suite 1606 was actively sending text messages suggesting he was suicidal, but it was not clear why she believed that.

[77]         It was also clear from the officers’ evidence that they were making decisions based on their understanding that an assault had occurred in suite 1606, but had different information about whether Mr. French had come out of his suite and assaulted someone or had assaulted someone who had broken into his suite. There was no victim of an assault on the 16th floor of the Apartment Building, and none of the officers observed anyone from the party in suite 1607, or otherwise, who appeared injured. None of the officers had any direct information to suggest that a victim of an assault remained in suite 1606 or that there was someone in the suite who was vulnerable. Constable Loch testified that he was more concerned about the potential for suicide than the possibility that there was a victim of an assault in the suite.

[78]         In addition to a concern about the different facts known to each officer, there are reasons to treat Constable Loch’s and Constable Alvarez de la Portilla’s evidence with caution.

[79]         First, Constable Loch completed the ITO for the search warrant. Inexplicably and strikingly, a reader of the ITO would not know that Constables Birnbaum and Wong, and to a lesser extent Constable Alvarez de la Portilla, were involved in the events at the Apartment Building that evening. Constable Loch uses the first person throughout the ITO. Constable Alvarez de la Portilla is mentioned only with respect to his role in charging Mr. French.

[80]         In particular, and for example, Constable Loch swore that: he was dispatched to the Apartment Building; he attended the scene and knocked on the door of suite 1607; he walked to suite 1606 and called out to Mr. French through the door; he was concerned about Mr. French’s mental health; he entered suite 1606 to ensure that there was no one else in distress; and he located both spent and live cartridges in the suite.

[81]         During his evidence, Constable Loch acknowledged that the ITO did not describe the other officers’ involvement. In that respect, the ITO is misleading. His failure to refer to the other officers remained unexplained. Although misleading, the ITO accurately recounts the events on May 19, 2014.

[82]         Second, there was an inconsistency between Constable Loch’s and Constable Alvarez de la Portilla’s evidence about what Mr. French was told after he came out of his suite and was handcuffed.

[83]         Constable Loch testified that, after Mr. French was handcuffed, he told Mr. French why the police were there. He said that the officers were investigating a possible assault arising from a call about a fight in progress and, as a result, Mr. French was being detained. He also told Mr. French that he was concerned about his wellness and mental health, and asked Mr. French if he had suicidal thoughts or had attempted to harm himself. He asked Mr. French whether he had taken anything that was causing him to act jittery. Constable Loch also said that he believed he asked Mr. French if he had a mental health history and if he was taking his medication.

[84]         In contrast, Constable Alvarez de la Portilla testified that he did not recall anyone telling Mr. French why he had been handcuffed, detained, or arrested. He said he asked Mr. French his name, his date of birth, and whether he had taken drugs or narcotics. Mr. French identified himself. He also asked Mr. French questions about his mental health and whether he was suicidal, and Mr. French said that he was not. He asked Mr. French if he had any weapons in his suite, and he said no. In addition, he asked Mr. French about the alleged assault and recalled that Mr. French answered that he had unwelcome guests. He recalled that Mr. French said that he was an alcoholic and suffering from depression.

[85]         As Constables Birnbaum and Wong went in to search the apartment, that left Constables Loch and Alvarez de la Portilla in the hallway with Mr. French. There was no evidence that Constable Loch was alone with Mr. French. If Constable Loch told Mr. French why the officers were there, Constable Alvarez de la Portilla would have heard him.

[86]         In light of this directly contradictory evidence, I find that Mr. French was never told why he was being detained or why the officers were entering his apartment.

[87]         There is also an inconsistency between the evidence of Constable Loch and Constable Alvarez de la Portilla as to which of them asked dispatch to check on Mr. French’s mental health history. Both claimed to have done so: Constable Loch after his discussion with Ms. Boseley, and Constable Alvarez de la Portilla after Mr. French had been handed over to him in the hallway.

[88]          Finally, during his direct evidence, Constable Alvarez de la Portilla described Ms. Doyle as a man but acknowledged during cross-examination, after being shown a copy of her passport, that Ms. Doyle was a woman. The error in itself is not concerning as, due to the passage of time and Ms. Doyle’s gender-neutral first name, I conclude that he just made an error. What was more concerning was the evidence he gave describing Ms. Doyle as Caucasian, male, with brown hair and a slim build, and between the ages of 25 and 35. Although he said he would be guessing, Constable Alvarez de la Portilla’s description demonstrated a willingness on his part to fill in gaps in his memory.

[89]         As a result of these difficulties with the evidence of the two lead investigators, I have treated their evidence with caution.

The Legal Principles for Assessing a Breach under s. 8 of the Charter

[90]         Section 8 of the Charter provides: 

Everyone has a right to be secure against unreasonable search or seizure. 

[91]         As the Supreme Court of Canada said in R. v. A.M., 2008 SCC 19 at para. 8, a search in the context of s. 8 of the Charter “may be defined as the state invasion of a reasonable expectation of privacy”.

[92]         In determining whether there has been a breach of an accused’s Charter rights under s. 8, courts engage in two lines of inquiry:

a)    Was there a reasonable expectation of privacy? and

b)    Was the search an unreasonable intrusion on that expectation?

[93]         The law is clear that, without consent, a warrantless search is prima facie unreasonable and therefore breaches s. 8 of the Charter: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145. Where police conduct a warrantless search of a person’s residence, the onus is on the Crown to show that the search was lawful: R. v. Larson, 2011 BCCA 454 at para. 18.

[94]         In this case, the Crown acknowledges that Mr. French had a reasonable expectation of privacy over suite 1606, but submits that the warrantless search of the suite was not an unreasonable intrusion on that expectation, and was therefore lawful.

[95]         The now well-accepted test for determining whether a warrantless search is lawful was first explained in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) and then followed by the Supreme Court of Canada in a number of cases, most particularly, as it relates to the issues in this case, in R. v. Godoy, [1999] 1 S.C.R. 311.

[96]         Godoy involved an investigation of a 911 call that was disconnected before the caller was able to speak. Officers were dispatched to investigate the call and, when they arrived at the apartment from which the call had been made, Mr. Godoy answered the door. When asked if everything was all right inside the apartment, Mr. Godoy responded that it was. The officers asked whether they could enter the apartment to check, and Mr. Godoy attempted to close the door. The officers prevented him from doing so and entered the apartment without his consent. They found his injured spouse crying in the bedroom. Mr. Godoy was charged with assaulting her.

[97]         Mr. Godoy challenged the lawfulness of the entry into his apartment. For the first time, the Supreme Court of Canada considered the scope of police powers in responding to emergency 911 calls. In particular, the Court considered the extent to which the common law powers of the police supported the lawfulness of the entry into the apartment.

[98]         Chief Justice Lamer explained that the test required consideration of two questions:

[12] … first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.

[99]         In Godoy, the Court described a 911 call as a “distress call – a cry for help”, and highlighted that it was not a prerequisite for police assistance that the 911 call be precipitated by criminal events. The Court accepted that the police have a common law duty to respond to 911 calls and said:

[16] … The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call. In the context of a disconnected 911 call, the nature of the distress is unknown. However, in my view, it is reasonable, indeed imperative, that the police assume that the caller is in some distress and requires immediate assistance. To act otherwise would seriously impair the effectiveness of the system and undermine its very purpose. The police duty to protect life is therefore engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined.

[100]     At para. 18 of Godoy, the Court adopted the considerations which had been suggested by Justice Doherty of the Ontario Court of Appeal in R. v. Simpson, [1993] O.J. No. 308, 79 CCC (3d) 482 at 499 for assessing the justifiability of an officer’s conduct. Those included the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty being interfered with, and the nature and extent of the interference.

[101]     The Court concluded that the warrantless entry was justifiable:

[18] … it was necessary for the police to enter the appellant's apartment in order to determine the nature of the distress call. There was no other reasonable alternative to ensure that the disconnected caller received the necessary assistance in a timely manner. While the appellant suggested that the police could knock on the neighbours' doors and question them, or wait in the apartment corridor for further signs of distress, in my view these suggestions are not only impractical but dangerous. If a 911 caller is in serious danger and is unable either to communicate with the 911 dispatcher or answer the door upon police arrival, the caller's only hope is that the police physically locate him or her within the apartment and come to his or her aid.

[102]     However, the Court emphasized the limits on the common law power to enter a home on a warrantless search:

[22] ... [T]he importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy or property. In [Dedman v. The Queen, [1985] 2 S.C.R. 2] at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances.

[103]     Godoy has subsequently been considered in a number of cases in British Columbia.

[104]     In Larson, officers responded to a dispatch call that a distraught man had gone into Shuswap Lake after discharging pepper spray in a vehicle. When the police arrived, Mr. Larson, who was known to them, was swimming in an unsafe area, appeared agitated, and said that he believed that he was being pursued by people who were shooting at him and out to get him. The police suspected that Mr. Larson was in a state of drug-induced paranoia, and he was apprehended under s. 28 of the MHA and taken to hospital.

[105]     On the way to the hospital, Mr. Larson told the officers that he had been the victim of a home invasion, and another officer was asked to attend at Mr. Larson’s home to ensure that there were no intruders. A search of his home discovered a marihuana grow operation.

[106]     The Court of Appeal determined that the Crown had met the first part of the Waterfield test in that the police conduct fell within the general scope of their common law duty to investigate the possibility that Mr. Larson had been the victim of a home invasion as he reported. The real question was whether, in all the circumstances, it was appropriate for the police to conduct a search of Mr. Larson’s home, which could only be justified on the basis that it was conducted to protect life and safety. A search conducted for the purpose of investigating crime required a warrant.

[107]     At paras. 26-34, the court referred to a number of its earlier cases which supported what was described as the “fairly relaxed” standard applied by the courts in determining whether life or safety is at risk. In matters involving the protection of life and physical safety, the police err on the side of caution. Those cases involved a number of contextual circumstances which established a concern for the protection of life and physical safety.

[108]     In R. v. Jamieson, 2002 BCCA 411, the police entered a dwelling from which a person emerged suffering from acid burns. They entered on the belief that the dwelling contained an active drug lab. At trial, the entry was determined to be legally justified because, without entering, the police had no practical way to determine whether there was an active drug lab inside or whether others in the dwelling were injured. The police pursued a duty to protect others. The purpose of the first entry was to look for bodies and was of limited duration. The Court of Appeal agreed that the trial judge had been correct in concluding that there had been a permissible entry so long as the entry was no more extensive than required to ensure safety.

[109]     In R. v. Brown, 2003 BCCA 141, the police received a report of a man being stabbed in one of two possible hotel rooms and another man being in the room with a gun. The police attended at the room, which the hotel had recorded as occupied, and arrested the man who answered the door. They entered the room. The defence argued that the entry was a violation of the occupant’s s. 8 rights as it was conducted for the purpose of investigating crime rather than protecting life or safety.

[110]     The Court of Appeal disagreed, concluding that, in the circumstances, the officers had not completed the execution of their general duty to protect life until satisfied that there was not a potentially dangerous assailant, or an injured victim, in either hotel room. As a result, the officers’ actions were determined to be legally authorized.

[111]     In R. v. Hill, 2006 BCCA 530, neighbours reported gunshots coming from the accused’s home. The police attended and heard what they believed to be gunshots. Despite other attempts to reach the accused, he did not respond until the police used a loud hailer in conjunction with a siren.

[112]     The accused suggested that the shots might have come from a neighbouring property or from a plastic container containing firecrackers. The police did not accept those explanations and entered the dwelling. Although they did not find the source of the gunshots, they found a substantial amount of marihuana.

[113]     The Court of Appeal upheld the trial judge’s conclusion that the purpose for entering the residence was to secure the life and safety of anyone who might have been in harm’s way, and not for the ulterior motive of investigating a crime.

[114]     In R. v. Wu, 2008 BCCA 7, the police responded to an anonymous call from a pay phone reporting an injured person in the accused’s home. When they knocked at the front door of the home, one officer thought that he heard someone exiting from the back. At the rear, the police found the accused at the bottom of a set of stairs. He was asked several times whether there was anyone injured in the house and eventually answered that there was.

[115]     Police entered the house and found a marihuana grow operation. The Court of Appeal upheld the trial judge’s finding that the entry was justified based on the officers’ bona fide belief that there might be an injured person inside based on the 911 call and the accused’s response to questions asked by the police.

[116]     In Larson, Justice Groberman said that in these earlier cases, it was easy to identify the threat to life or public safety that the police were concerned about:

[34] … In Jamieson, there was a suspicion that an injured person was in the house, as well as a suspicion that an active drug lab posed an immediate threat to the surrounding community. In Brown, the police were investigating a report that a stabbing had occurred in a hotel room, and the whereabouts of the victim had not been established - there was a real possibility that the victim remained in the room. In Hill, there were unexplained gunshots heard in a house. Investigation was required in order to ensure that no shooting victim remained in the residence. In Wu, there was a report of an injured person in a house.

[117]     However, in Larson, the court concluded that the trial judge had erred in concluding that the search was justified by public safety concerns or concerns about the safety of Mr. Larson. With respect to the evidence of the police that they needed to enter Mr. Larson’s home to determine whether anyone who had been involved in the home invasion might still be in the premises, the court said:

[44] It is difficult to understand how the search could have been based on such considerations. There does not appear to be any objective basis for their belief that people might remain in the premises. Some two hours had passed between the latest possible time for the home invasion and the moment the police entered the house. Mr. Larson had not suggested that the home invaders had expressed an intent to become an occupying force in his home. Rather, he claimed that they were after him personally.

[45] The police did have a suspicion that Mr. Larson had a marihuana grow operation at his home, and this might have been a plausible motive for people to invade his home. It is entirely unlikely, however, that any invaders would have remained in the home for two hours, particularly given that Mr. Larson would have had knowledge of their entry into the premises, and would have had escaped them.

[46] The unlikelihood of the invaders remaining in the home was heightened by the fact that the police did not detect any movement, noise, or disturbance in the home when they waited outside, when they peered in the windows, and when they first entered through an unlocked door. The possibility that there were people in the home at that point was very remote. No basis for the suspicion that people were holed up inside was put forward, other than the fact that Mr. Larson had said that he did not know whether the invaders had remained at his premises or not.

[47] It is also difficult to articulate what "public safety concerns" or "concerns that related to the safety of Mr. Larson" were present. Even if there was some remote possibility that invaders were in the house, the police did not, in their testimony, suggest any mechanism by which the purported home invaders endangered life or personal safety. Mr. Larson had, by the time police entered his home, been admitted to hospital, some considerable distance away. There was no possibility that he would be returning home imminently, so there was no immediate risk to his personal security. Police had attended at the house, and could easily observe the absence of any immediate threat to persons outside of the home.

[49] … It is, perhaps, conceivable that if the purported home invaders had really been "out to get" Mr. Larson, they might have remained in his house, or might have set traps for him. Given the strong reasons to discount Mr. Larson's account, however, and the lack of any urgency to enter the building, it is hard to countenance such concerns as justifying entry into the dwelling. It would have been a straightforward matter to interview Mr. Larson once his paranoid symptoms had subsided, to determine whether his allegation of a home invasion continued to be of concern. Equally, the police could have sought his consent to entry. Neither of these courses of action was adopted.

[118]     The court concluded that there was no objective support for the officers’ subjective belief that it was necessary to enter the home to protect either Mr. Larson or the general public, and even if there had been a concern about Mr. Larson facing danger when he returned to his residence, the police had options short of the warrantless search. The court ultimately excluded the evidence after conducting the inquiry under s. 24(2) of the Charter.

[119]     Determining whether the use of police powers is justifiable in a given case requires weighing the factors set out in Simpson. The police power to enter a home to protect life and safety is limited and is only justified if it is reasonably necessary in light of all the circumstances.

[120]     The Crown’s burden is to establish that the safety search in this case was necessary and reasonable. As Justice LeBel, writing on behalf of the majority, explained in R. v. MacDonald, 2014 SCC 3:

[29] The framework for scrutinizing warrantless searches for Charter compliance was summarized by this Court in Mann [2004 SCC 52]:

[Warrantless] searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32. [para. 36]

The Application of the Legal Principles in This Case

[121]     In this case, there is no dispute that the conduct of the officers in investigating the dispatch call about the assault in progress was within the general scope of their common law duty to protect life and safety.

[122]     The controversy is about whether their conduct, albeit within the general scope of that duty, involved an unjustifiable use of their associated powers and, in particular, whether their initial search of Mr. French’s suite was justified. As explained in Mann at paras. 26 and 35, police powers and duties are not necessarily correlative. The power to search is not unlimited. It is constrained by a requirement of objectively verifiable necessity. In the context of pat-down searches, Justice Iacobucci wrote in Mann that there was a need for a general police power to conduct such searches, but only in appropriate circumstances. He observed at para. 40 that “[s]uch a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk.”

[123]     Safety searches will typically be warrantless, as the police will not usually have sufficient time to obtain prior authorization for them. In MacDonald at para. 32, Justice LeBel accepted that safety searches are driven by exigent circumstances but said that even if such circumstances exist, they must be authorized by law. He continued at para. 41:

But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45).The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).

[Emphasis added.]

Conclusion

[124]     I have concluded that the officers in this case did not have an objectively reasonable basis to enter Mr. French’s suite for the initial search. I reach that conclusion for the following reasons.

[125]     On the evidence, I accept that the officers had an objectively reasonable basis to believe that an assault had taken place on the 16th floor of the Apartment Building. Although none of the officers who testified had spoken to the Caller who reported the Assault, they had no reason to disbelieve him. The damage to the outside of the door of suite 1606 confirmed the Caller’s account of an attempt to break into the suite. In her discussion with Constable Loch, Ms. Boseley confirmed that there had been a break-in, during which she said Mr. French assaulted one of the intruders.

[126]     During their evidence, the officers variously relied on three different bases for their warrantless entry into the suite:

(a)  their investigation of the alleged assault and the possibility that the assault was ongoing or that a victim remained in the suite;

(b)  their general concern about a risk to their own, and the public’s safety, from an individual, other than Mr. French, who might be concealed in the suite; and

(c)   their mental health concerns about Mr. French.

Investigation of Alleged Assault

[127]     Specifically, with respect to the investigation of the alleged assault, the officers expressed a concern that suite 1606 needed to be cleared to ensure that the altercation was not continuing within the suite, and to ensure that there were no injured parties in need of help in the suite.

[128]     However, when Constables Birnbaum and Wong first entered suite 1606, there was no objective evidence on which the officers could conclude that there was a victim of the alleged assault in Mr. French’s suite. The Caller did not suggest that the victim of the assault remained in the suite. In fact, for him to have seen the assault from his doorway or through his peephole, the assault must have happened at the doorway to suite 1606 or in the hallway of the 16th floor.  Ms. Boseley did not tell Constable Loch that one of her friends remained in the suite after they had broken in and been repelled by Mr. French. In fact, when asked, she was not forthcoming with respect to the name of the victim of the assault. The officers did not talk to anyone else on the 16th floor who suggested that an assault victim remained in the suite.

[129]     The objective evidence was consistent with an altercation in which Mr. French used force to repel individuals who had unlawfully broken into his suite. The observable damage to the door of suite 1606 was entirely consistent with the Caller’s observation of the fact that individuals were attempting to break into Mr. French’s suite from the hallway.

[130]     Constable Birnbaum testified that he believed that the victim of any assault had left the scene.

[131]     After Constables Birnbaum and Wong handcuffed Mr. French and handed him off to Constables Loch and Alvarez de la Portilla, neither asked him whether there was anyone else inside his suite. Although Constable Loch said that he told Mr. French that he was being detained due to an assault investigation, I did not find that evidence credible.

[132]     In any event, Constable Loch did not say that he explained to Mr. French that the officers were concerned about the possibility of an injured person being inside the suite and, as a result, were going to search it. If the officers were truly concerned about there being a possible victim of an assault, I would have expected their search to continue into the interior of suite 1607 and other suites on the 16th Floor, and elsewhere in the Apartment Building. Apart from searching Mr. French’s suite, the officers made no other effort to locate a victim of the assault.

[133]     The officers also had no objectively reasonable basis to conclude that an altercation was ongoing in suite 1606. All of them testified that they heard no sounds to suggest an ongoing altercation. Ms. Boseley told Constable Loch that once the partygoers had broken in and found Mr. French inside the suite, they “left it at that”.

[134]     It would have been clear to the officers that, when Mr. French came out of his suite, there was no ongoing altercation in it.

Concern for Officer or Public Safety

[135]     To the extent that the officers testified that there was a cause for a concern about their own, or the public’s safety, arising from a violent assailant who had hidden inside the suite, that concern was not based on any of the objective information available to them before they first entered the suite.

[136]     Twenty minutes had passed between the time the officers arrived on the 16th floor of the Apartment Building and them stacking up outside the door of Mr. French’s suite and entering it. There was no ongoing altercation when they arrived, and nothing occurred in the meantime. The officers had no information on which they could form an objective belief that someone was in imminent danger in suite 1606 or that the officers were in imminent danger from an unknown potential assailant within the suite.

Mental Health Concern

[137]     To the extent that the officers were entering the suite to protect Mr. French, who they believed to be potentially suicidal, the objective evidence they relied on was the unattributed hearsay that Constable Loch learned from Ms. Boseley, whom he knew to have been drinking.

[138]     The officers had no idea of the timeframe in which the purportedly suicidal threats had been made, they may have been weeks old, and Ms. Boseley was not “forthcoming” with the name of the person who had received the texts, nor did she show them to Constable Loch.

[139]     Although some of the partygoers in suite 1607 were concerned enough about Mr. French to break into his suite, they were intoxicated. In any event, the partygoers’ concerns were apparently allayed as, when they found Mr. French in the suite, they left him alone.

[140]     The evidence about whether the officers knew about Mr. French’s history of depression and anxiety before entering his suite was unclear. If Constable Loch is to be believed, he requested a search of the Emergency Medical Services records after his discussion with Ms. Boseley, and before Constables Birnbaum and Wong entered the suite.

[141]     If Constable Alvarez de la Portilla is to be believed, he requested the records search after Mr. French was out in the hallway and Constables Birnbaum and Wong had entered the suite.

[142]     If Constable Loch learned of Mr. French’s mental health history after his discussion with Ms. Boseley and before the suite was entered, he did not convey that information to either Constable Birnbaum or Wong as neither testified that they were aware of it before or after entering the suite. He also did not convey that information to Constable Alvarez de la Portilla as, had he done so, Constable Alvarez de la Portilla would not have made a second request for a search of the records.

[143]     Constable Birnbaum testified that he heard no specific details about what led to the impression that Mr. French was suicidal. In his direct evidence, he could not recall how he learned that there might be a suicidal person in the suite. In cross-examination, he said that he must have heard it from another officer or officers but could not recall any of the details. His notes do not mention concerns under s. 28 of the MHA.

[144]     Constable Wong testified that she learned that the occupant of suite 1606 was potentially suicidal either by overhearing a discussion about it or from another officer. As I have said, she was the only officer who believed that Mr. French was actively texting about suicide. She made no notes about the incident.

[145]     In all of the circumstances, I cannot conclude that the officers were aware of Mr. French’s mental health history before they decided to enter his suite. As a result, that information cannot have formed part of the objective information on which the officers relied in support of their initial search of the suite.

[146]     Mr. French did not refuse to come out of his suite when the officers stacked against his door and asked him to do so. All of the officers described him as compliant with everything they asked of him. Constable Birnbaum described Mr. French as coming out of suite 1606 “cautiously” and with a “measured approach”. Mr. French identified himself and answered questions about his mental health. In response to questions from Constable Alvarez de la Portilla, he denied that he was suicidal. The officers did not testify that they had any information relating to any specific type of suicide threat by using drugs or firearms or jumping off the balcony.

[147]     The fact that Mr. French was sweaty, and that some of the officers described him as agitated or jittery, was some reason for concern, but in the circumstances, there was no reasonable basis to assume that he had ingested anything to bring about his death or was intending to use a weapon to commit suicide. There were other explanations for why Mr. French was sweaty. The officers had information that he had recently been the victim of a break-in which resulted in a physical altercation. His sweating may have been as a result of physical exertion, as Constable Alvarez de la Portilla described it, or it could have been as a result of the emotional stress of the situation in which he found himself: after midnight, with the police stacked at his door, demanding that he come out of his suite.

[148]     Alternatively, if the officers’ purpose was to ensure that Mr. French, who was potentially suicidal, was safely removed from the suite, then they had already achieved that purpose when they had him in handcuffs in the hallway. Their failure to call for immediate medical assistance to ensure that his profuse sweating was not the possible result of him ingesting something lethal suggests that they were not truly concerned about his risk of suicide. In any event, despite their stated concerns about his risk of suicide or mental illness, the officers never apprehended Mr. French under the MHA and he was not brought before a doctor or mental health professional.

[149]     Overall, the evidence is clear that Constables Birnbaum and Wong immediately entered Mr. French’s suite after he came out of the suite and was handcuffed. There was no discussion between them or the other officers before they did so and, as a result, a decision to enter the suite must have been made during the 20 minutes before the officers stacked against the door. Constables Birnbaum and Wong did not ask Mr. French any questions about an assault victim or a potential assailant being in the suite. Nor did they take steps to reach their own conclusions about the state of Mr. French’s mental health. As a result, their subjective opinions were based on the limited information they indirectly obtained from Ms. Boseley and Ms. Doyle, and their direct information from the Caller.

[150]     Finally, the officers did not consider reasonable alternatives to the warrantless entry into Mr. French’s suite. They had no objectively reasonable information on which to enter the suite in relation to the assault allegation, and they could have brought Mr. French to the hospital if they had a real concern about him being a suicidal risk. The fact that three of the officers testified about their negative experiences with the system for apprehensions under the MHA, and their anecdotal dissatisfaction with their experience of early release by physicians, did not justify a search of Mr. French’s suite for information related to his mental state. In my view, any immediate concern about Mr. French as a suicide risk should have been satisfied when Mr. French came out of his suite and interacted with the officers. They were then able to make their own assessment as to his mental health and, if they had concluded that there was a continuing concern, could have apprehended him under the MHA.

[151]     Although each case considering the justifiability of a warrantless search must be decided on its particular circumstances, in my view, the circumstances in this case are most similar to those in Larson and less like the circumstances in the cases relied on by the Crown.

[152]     In particular, in Godoy, the justification for entry was in relation to a 911 hang-up, the lack of an explanation for the hang-up, and the accused’s actions to prevent the police from entering the premises.

[153]     In Jamieson, the justification for entry was based on the apparent danger in the home rented by the accused. The acid burns on the occupant provided a reasonable and objective basis to suspect criminal activity and that danger to life and safety existed inside the home.

[154]     In Hill and in R. v. Borecky, 2011 BCSC 1573, the sound of a firearm being discharged, and in Borecky the sound of a woman screaming, provided a reasonable justification for the investigation of the unexplained threat.

[155]     In this case, the officers understood from the initial call to the police, and from Constable Loch’s interview of Ms. Boseley, what happened in relation to the assault and had no objective basis to believe that anyone other than Mr. French was in danger.

[156]     With respect to the possible danger Mr. French posed to himself, I have determined that it was addressed through his willingness to cooperate with the officers and present himself for their assessment of his mental health. If there was insufficient concern to apprehend him under the MHA, Mr. French should have been allowed to return to his suite regardless of the third hand information provided to Constable Loch by Ms. Boseley.

[157]     For all of these reasons, I conclude that the warrantless search of Mr. French’s home was unlawful as it was not objectively reasonable and went beyond what was necessary in the circumstances.

The Search Which Followed Discovery of the Live Round

[158]     The Crown relies on s. 117.04(2) of the Code to justify the search that followed after the police located the Live Round.

[159]     Section 117.04(2) provides:

Search and seizure without warrant

(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

[160]     At the time of the discovery of the Live Round, the only legitimate basis for the officers to continue searching was a concern that Mr. French might commit suicide in the immediate or near future and that the presence of live ammunition suggested that he might have access to a weapon.

[161]     After the initial clearing search conducted by Constables Birnbaum and Wong, there was no longer any concern that there was a victim of assault in the suite or that there was a potential assailant in the suite who posed a risk to the officers. As Constable Wong testified, as far as she was concerned, she had completed her search. Although Constable Birnbaum was concerned that there were areas of the suite which he believed they had not been able to clear, the officers debriefed in the suite. If Constable Birnbaum  was concerned about an assailant remaining in the suite, debriefing in it was inconsistent with that concern. They could easily have debriefed in the hallway.

[162]     Further, Constable Birnbaum and/or Constable Wong called Constables Loch and, possibly, Alvarez de la Portilla into the suite to look at the Live Round, and Constable Loch came out of the suite to ask Mr. French about it before going back in and conducting the secondary search. All of this behaviour was inconsistent with a stated concern about the presence of an assailant in the suite.

[163]     Therefore, I have concluded that the preconditions for a weapons search without a warrant under s. 117.04(2) have not been met in the circumstances of this case, and that the secondary search was also unjustified.

Section 9 of the Charter

[164]     Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.

[165]     There is no dispute that Mr. French was detained after he exited suite 1606 and was placed in handcuffs.

[166]     The Crown submits that, while there continued to be an investigative detention in relation to the potential assault which was the subject of the dispatch call, the primary focus of Constables Loch and Alvarez de la Portilla in dealing with Mr. French was related to whether he was a danger to himself or others. In other words, their focus was on their duty under the MHA and not on the assault.

[167]     I accept that the police powers of protective apprehension under s. 28 of the MHA are analogous to the powers of detention and arrest under the Code, and that a brief detention under s. 28 of the MHA will allow a police officer to assess the necessity of an apprehension, which constitutes a much greater interference with liberty. A brief detention allowed Constables Loch and Alvarez de la Portilla to assess whether Mr. French was at risk of causing harm to himself or others.

[168]     As the Supreme Court of Canada said in Mann at para. 34, investigative detention is individualized. First, the detention must be viewed as reasonably necessary, on an objective view of the totality of the circumstances, for the purposes of, in the context of this case, assessing the necessity of a possible apprehension under the MHA. Second, the decision to detain must pass a test of “overall reasonableness” with respect to “all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of the interference”.

[169]     An officer’s authority to apprehend under the MHA is set out in s. 28 as follows:

Emergency procedures

28 (1) A police officer or constable may apprehend and immediately take a person to a physician for examination if satisfied from personal observations, or information received, that the person

(a) is acting in a manner likely to endanger that person's own safety or the safety of others, and

(b) is apparently a person with a mental disorder.

[170]     Under the definition section of the MHA, a person with a “mental disorder” is defined as:

… a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability

(a) to react appropriately to the person's environment, or

(b) to associate with others;

[171]     When a detention interferes with an individual’s liberty, the two questions from Waterfield must be considered. As set out above, they are whether the police conduct fell under the general scope of any duty imposed by statute or recognized at common law, and whether the conduct involved a justifiable use of powers associated with the duty imposed.

[172]     The Crown submits that Constable Loch had the authority to briefly detain Mr. French under his common law duty to “preserve the peace and protect life and property” and to carry out his statutory duties under s. 28 of the MHA to determine whether Mr. French was a danger to his own safety.

[173]     Based on the information the officers had from the dispatch call, from Ms. Boseley and Ms. Doyle, from their observations of Mr. French when he came to the door, and from what they could see of the state of his suite, the Crown submits that the detention of Mr. French was reasonably necessary in the circumstances.

[174]     Mr. French disagrees.

[175]     Constable Loch admitted in cross-examination that the investigation of the assault reported in the dispatch call did not provide a basis to arrest Mr. French. The officers had not located a victim of the assault. Mr. French was, by the Caller’s and Ms. Boseley’s account, a victim of a break-in. This was confirmed by the objective evidence of the damage to the outside of the door of his suite. The officers had no reasonable basis to investigate him for wrongdoing and, as a result, a detention based on the assault investigation was necessarily arbitrary.

[176]     With respect to the suicide concerns, I accept that the officers were justified in knocking on the door to Mr. French’s suite, asking him to come out, and speaking to him. Although the information provided to Constable Loch by Ms. Boseley was hearsay from an undisclosed source, when taken together with the information provided to Constable Alvarez de la Portilla by Ms. Doyle, it merited police follow-up. However, once Mr. French agreed to open his door and comply with the officers by engaging with them, and once they determined that he did not need medical assistance, their detention of him was no longer justifiable. They could not have had any ongoing suicide concerns, or they would have complied with their duty to present him to a physician under s. 28 of the MHA. Thereafter, their continued detention of him was arbitrary.

[177]     I conclude that Mr. French’s Charter right to be free from arbitrary detention was breached.

Sections 10(a) and (b) of the Charter

[178]     Sections 10(a) and (b) of the Charter provide that:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

[179]     In R. v. Evans, [1991] 1 S.C.R. 869 at para. 31, Justice McLachlin, as she then was, identified two purposes behind s. 10(a):

The right to be promptly advised of the reason for one's detention … is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-53, "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy". In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[180]     If an accused is not informed promptly of the reasons for their detention or arrest, they cannot meaningfully exercise their other Charter protections.

[181]     In R. v. Taylor, 2014 SCC 50 at para. 21, the Supreme Court confirmed that the purpose of the s. 10(b) right is:

… “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, [2010] 2 S.C.R. 310, at para. 25.

[182]     The Court also confirmed that the reason that the right to counsel must be facilitated “without delay” is that the person who is detained is in a position of disadvantage relative to the state. Their liberty has been deprived and they risk incriminating themselves, and are, thus, in immediate need of legal advice: Taylor at para. 22, citing R. v. Bartle, [1994] 3 S.C.R. 173 at 191.

[183]     The Court in Taylor at para. 23 reiterated the three corresponding duties which are imposed on police who arrest or detain an individual:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[Citations omitted.]

[184]     Thus, the duty to inform Mr. French of his right to counsel arose immediately upon his detention, and the duty to facilitate his access to counsel arose immediately upon his request to speak to counsel at the first reasonably available opportunity. The burden is on the Crown to show that, on the facts, any delay was reasonable in the circumstances: Taylor at para. 24, citing R. v. Luong, 2000 ABCA 301 at para. 12.

[185]     In this case, Constable Loch testified that he told Mr. French that there were two reasons for him being detained: the officers’ investigation of the assault and the reports regarding his mental health.

[186]     The Crown acknowledges that the requirements of s. 10(a)-(b) were not met to the extent that Mr. French was detained for the purpose of investigating the alleged assault.

[187]     In respect of what the Crown submits was also an investigative detention under the MHA, I was not directed to any authority which supports that Mr. French had a right to counsel in such circumstances. Rather, the obligation on the officers was to present Mr. French to a physician as soon as possible.

[188]     I accept that it is reasonable to require officers to interact with an individual who is alleged to have a mental health disorder before apprehending them to ensure that there is a reasonable basis to conclude that he was a danger to himself or others.

[189]     Mr. French was not formally told why he was being detained. Instead, Constable Loch told him that the police were there in relation to both the call they had received about an assault in progress and the stated concerns about his mental health. He was not advised of his Charter rights for the approximately 30 minutes during which his suite was searched.

[190]     As a result, he was not provided with a reason for his detention “promptly”, nor has the Crown satisfied their burden to establish that he was given an opportunity to exercise his right to instruct counsel without delay. There was no evidence or justification from the officers for why they did not advise Mr. French why he was being detained nor allow him to use a telephone from the hallway of the Apartment Building. In fact, after he was charged and said that he wished to speak to counsel, he was not provided with that opportunity until after his arrival at the VPD cells at 2:17 a.m., which was about one hour and 17 minutes after he was initially placed in handcuffs and detained.

[191]     As a result, I conclude that Mr. French’s Charter rights under s. 10(a) and (b) were breached.

[192]     Because I have concluded that Mr. French’s Charter rights were breached, it is necessary to consider whether, despite those breaches, the evidence obtained as a result should be admitted into evidence after consideration of s. 24(2) of the Charter.

Section 24(2) of the Charter

[193]     Sections 24(1)-(2) of the Charter provide:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[194]     In order to have evidence excluded under s. 24(2) of the Charter, Mr. French must show both that the evidence was “obtained in a manner” that infringed or denied his rights, and that the “admission of the evidence would bring the administration of justice into disrepute”.

[195]     Whether s. 24(2) is engaged is first addressed by a threshold question of whether the evidence sought to be excluded was obtained in a manner that infringed the Charter. Justice Prowse, writing for the Court of Appeal in R. v. Lauriente, 2010 BCCA 72, wrote:

[35]      The question of whether there is a requisite nexus between a Charter breach and the obtaining of evidence in relation to the breach is a threshold issue to be determined under s. 24(2). As stated by Mr. Justice Doherty, speaking for the court in R. v. Plaha (2004), 188 C.C.C. (3d) 289, 24 C.R. (6th) 360 (Ont. C.A.), at para. 44:

There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence ... must be obtained "in a manner that infringed" a right under the Charter. If the threshold is crossed, one then turns to the evaluative component of s. 24(2) - could the admission of the impugned evidence bring the administration of justice into disrepute?

[36] This threshold issue here, therefore, is whether the breaches of the respondents' Charter rights, or any of them, are sufficiently linked to the evidence sought to be excluded to trigger the application of the second stage of the s. 24(2) analysis.

[196]     Although I have concluded that a number of Mr. French’s Charter rights have been breached, in my view, it is primarily the breach of Mr. French’s s. 8 Charter right which triggers a consideration of whether the admission of the Firearms would “bring the administration of justice into disrepute”. The unjustified search of suite 1606 is directly linked to the Firearms. However, I also find that the breaches of Mr. French’s rights under ss. 9-10 of the Charter are inextricably linked to the s. 8 breach.

[197]     In R. v. Grant, 2009 SCC 32 at para. 71, the Supreme Court of Canada set out three factors a court should consider and weigh in determining whether evidence obtained in a Charter-infringing manner should be excluded under s. 24(2). They are:

(1)           The seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones serious state misconduct);

(2)           The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and

(3)           Society’s interest in the adjudication of the case on its merits.

[198]     Section 24(2) starts from the proposition that damage has already been done to the public’s confidence in the administration of justice by the Charter violations that give rise to the s. 24 analysis. The Grant inquiry focusses on whether further damage will be done by admitting the impugned evidence: para. 69. The burden is on the applicant seeking exclusion of the evidence to persuade the court, on the balance of probabilities, that admission of the evidence would bring disrepute to the justice system: R. v. Collins, [1987] 1 S.C.R. 265 at 280.

[199]     As the Supreme Court of Canada explained in Grant at para. 68, the factors look to the public’s overall, long-term faith in the justice system: see also R. v. Harrison, 2009 SCC 34 at para. 36.

[200]     As explained in Grant at para. 140 and Harrison at para. 36, the three factors do not operate as a three-part test. There are no particular findings under each which mandate a particular result, and it is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The balancing mandated by s. 24(2) is qualitative in nature and, therefore, not capable of mathematical precision.

[201]     The balancing involved in reaching a conclusion regarding the Grant factors was described in Harrison at para. 36:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[202]     The court must weigh all three factors to determine whether, on balance and having regard to all the circumstances, admitting the impugned evidence would bring the administration of justice into disrepute, in the long-term, and from the perspective of a reasonable person: Grant at paras. 68 and 85-86; R. v. Côté, 2011 SCC 46 at para. 48. 

[203]     I will now turn to consider the three factors as they apply in the circumstances of this case.

The Seriousness of the Charter-Infringing State Conduct

[204]     This factor involves an assessment of the Charter-infringing police conduct which led to the discovery of the Firearms, to determine whether the court is required to dissociate itself from the fruits of the Charter breach. It is a fact-specific inquiry. The more severe or deliberate the police misconduct, the greater the need for exclusion: Grant at paras. 72 and 108. If the Charter violation is technical, inadvertent, minor, or a result of an understandable mistake, there will be less need for exclusion of the evidence obtained as a result: Grant at paras. 74 and 133.

[205]     Good faith on the part of the police will reduce the need for the court to dissociate itself from the Charter-infringing police conduct: Grant at para. 124.

[206]     In this case, the Crown submits that the police were acting in good faith with a view to ensuring Mr. French’s safety and the safety of others. All of the officers reached the subjective belief that entry into suite 1606 was necessary to carry out their common law duty to protect the public, and they all believed, perhaps particularly Constable Loch, that they were faced with a potentially suicidal individual and that the suite would provide information as to whether he was a risk to himself.

[207]     The Crown submits that the officers were responding to a call where time was of the essence and they needed to immediately determine whether there was anyone injured in the suite or anyone about to take their life. Waiting to determine whether the suicidal party was indeed the one who exited the suite would have unnecessarily put life at risk.

[208]     I do not accept with the Crown’s position. The officers had approximately 20 minutes from when they arrived on the 16th floor of the Apartment Building to the time they knocked on the door of suite 1606. There was no ongoing assault when they arrived. They had an opportunity to discuss their assessment of the situation and what steps to take prior to entering suite 1606.

[209]     There respective subjective understandings of what had transpired before they arrived were inconsistent. Although I do not conclude that any of the officers deliberately gave dishonest testimony, it appears that the Constables Loch and Alvarez de la Portilla failed to share important information with each other or the other officers prior to entering the suite. Constables Birnbaum and Wong were operating on a different understanding of the circumstances than Constables Loch and Alvarez de la Portilla. Constable Loch believed that Mr. French was potentially suicidal. Constable Alvarez de la Portilla was concerned that he might be mentally or emotionally ill but not that he was suicidal.

[210]     In any event, after Mr. French came out of his suite, and before the officers made any attempt to assess his mental state, Constables Birnbaum and Wong immediately turned their attention to the suite and entered it. As a result, they did not know that Mr. French had identified himself and provided his date of birth to Constable Alvarez de la Portilla.

[211]     There was no evidence that the officers discussed the time constraints or were proceeding with any urgency. Constable Loch testified that he did not believe that Mr. French was arrestable with respect to the assault charge. His personal concern about the fact that, if Mr. French was apprehended under the MHA, he could return before the officers could obtain a search warrant, cannot form a basis for breaching Mr. French’s s. 8 Charter right with respect to his residence, which is highly private.

[212]     The fact that the officers were operating on different understandings of the situation led to a misjudgment on their part of the extent of the possible danger that could lie behind the door of suite 1606. As I have said, there was no objective basis for a concern that there was a victim of an assault in the suite. There was also no objective basis to believe that there was a possible assailant in the suite who would present a risk to them.

[213]     I conclude that it is necessary, in the circumstances of this case, for the court to dissociate itself from the conduct of the officers.

The Impact of the Charter-Protected Interests of the Accused

[214]     This factor considers the infringement from the perspective of the accused. It focuses on the seriousness of the Charter breach on the accused’s Charter protected interests. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed: Grant at paras. 76 and 95.

[215]     The impact of a Charter breach may range from fleeting and technical to profoundly intrusive: Grant at para. 76.

[216]     The Crown submits that the cursory nature of the initial search of suite 1606, and the brevity of both the search and Mr. French’s detention at the door, are factors that make the impact on Mr. French’s rights less significant. The search was restricted to larger open areas that could conceal a suspect or victim. The search did not involve opening Mr. French’s cupboards or drawers. The discovery of the Live Round was because it was left on the kitchen floor in plain view of anyone who entered.

[217]     I conclude that the breach of Mr. French’s s. 8 Charter right had an extremely serious impact on Mr. French’s privacy rights. The extent of the impact relates primarily to the fact that the search of a private citizen’s home constitutes a very significant impact: Larson at para. 63.

[218]     Here, as in Larson, the search involved entry into all rooms in his home. This occurred while Mr. French was handcuffed and standing in the hallway on the 16th floor wearing only the athletic shorts he had been wearing when he came out of the suite. While he was in the hallway, he was asked questions by both Constables Loch and Alvarez de la Portilla, without being given an opportunity to contact counsel for legal advice.

[219]     Although the search was relatively brief and focused, I conclude that the impact of the breach on Mr. French’s rights was very significant. I note that, as a person who had suffered from depression and anxiety, the impact on his rights was particularly significant.

Society’s Interest in an Adjudication on the Merits

[220]     As highlighted in Grant, society generally expects that a criminal allegation will be adjudicated on its merits. The determination of society’s interests should reflect society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: Grant at para. 79.

[221]     The public interest in “truth finding” remains a relevant consideration under the s. 24(2) analysis. In Grant, the Supreme Court highlighted the difference between “unreliable” (the compelled statement) and “reliable” evidence, and said that the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute: para. 81. The Court highlighted that the exclusion of “highly reliable” evidence may “impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution": para. 83.

[222]     The third Grant factor asks whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. The impact of failing to admit the evidence must be considered. The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial": Grant at para. 82.

[223]     In Grant, the Supreme Court of Canada accepted that the seriousness of the alleged offence “may be a valid consideration”, but cautioned that the seriousness of the offence “has the potential to cut both ways”, since the stakes are high for the public as well as for the accused: para. 84.

[224]     Weighing in favour of inclusion of the Firearms is the fact that the Ruger pistol, the AK 47, the Ruger rifle, the silencer, and the six oversized magazines are real and reliable pieces of evidence. Also weighing in favour of inclusion is the fact that the Firearms are fundamental to the Crown’s case. The Crown has acknowledged that, without them, there is no evidentiary basis on which Mr. French could be convicted of the offences with which he is charged. As a result, they submit that the exclusion of the Firearms would exact too great a toll on the truth-seeking goal of the justice system.

[225]     The firearms offences with which Mr. French has been charged are serious offences, and I am satisfied that there is a substantial public interest in this case in having them adjudicated on their merits. This is particularly so because Mr. French had the Firearms in a residential building in the heart of downtown Vancouver.

Balancing the Grant Factors

[226]     Taking into account and balancing all three of the Grant considerations, I have concluded that this is a case in which the evidence ought to be excluded. In the long term, the repute of the administration of justice would be adversely affected by admitting the Firearms.

[227]     The seriousness of the breach of Mr. French’s s. 8 Charter right, the additional breaches of his ss. 9-10 rights, and the impact of the breaches on Mr. French’s rights are such that the administration of justice would be brought into disrepute if the evidence were admitted in this case. The public interest in having this case adjudicated on its merits is outweighed by the other Grant considerations.

Conclusion

[228]     I have concluded that the warrantless search of Mr. French’s residence was unlawful and unreasonable. The initial search violated his rights under s. 8 of the Charter. The subsequent warrantless search and the search under warrant were also unlawful, as the grounds for them were undermined by the illegality of the first search. If the first search had not occurred, the Live Round would not have been discovered, and without those parts of the ITO, no search warrant would have been granted. Further, I have concluded that Mr. French’s s. 9 and ss. 10(a)-(b) rights were violated. Finally, I have determined that the Firearms should be excluded under s. 24(2) of the Charter.

“MacNaughton J.”