This week’s top three summaries: R v Sheepway, 2025 YKCA 1: #parole & pre-trial custody, R v Khamvongsa, 2025 ABCA 43: #inconsistencies and R v Wendt and Ferri, 2025 ONSC 812: s.8 home #safety search
R v Sheepway, 2025 YKCA 1
[February 11, 2025] Harsh Pre-Trial Conditions and Parole Eligibility on Second Degree Murder [Reasons by Griffin J.A. with Butler J.A concurring and Charlesworth J.A. dissenting]
AUTHOR’S NOTE: A second-degree murder conviction requires a life sentence, but the sentencing judge has discretion to set parole eligibility between 10 and 25 years. This decision, following Ontario appellate rulings, confirms that especially harsh pre-trial detention conditions can justify a reduction in parole ineligibility, similar to how R v Duncan allows enhanced credit beyond the usual 1.5-to-1 ratio for pre-trial custody. The ruling highlights that prolonged segregation, isolation, or violence against the offender are recognized grounds for such credit. While the judge retains discretion, this case provides a strong basis for reducing parole ineligibility in second-degree murder sentencing.
Introduction
[1] After arranging to meet Christopher Brisson at a remote location to purchase crack cocaine from him, Mr. Sheepway killed him. He first sought to rob Mr. Brisson by loaded shotgun, which he had sitting in his lap in his truck. When Mr. Brisson resisted, a struggle ensued and an accidental shot discharged through Mr. Bisson’s passenger window. As Mr. Brisson attempted to drive away, Mr. Sheepway shot at Mr. Brisson twice more through the rear of Mr. Brisson’s truck and a bullet entered Mr. Brisson’s back. Mr. Brisson crashed the truck. He died from loss of blood caused by the shotgun wound.
[5] The narrow issue before us is whether the sentencing judge erred in determining that Mr. Sheepway should be ineligible for parole for a period of 13 years, as explained in reasons for sentencing indexed at 2018 YKSC 26 (“RFS”).
[6] I have had the privilege of reading a draft of my colleague’s reasons.
[7] Where we differ is in our view of whether, as a matter of principle, a judge determining the appropriate period of parole ineligibility for an offender convicted of second degree murder, above the mandatory minimum of 10 years’ parole ineligibility, may take into account particularly harsh conditions of pre-sentencing custody experienced by the offender.
[8] Whereas my colleague has concluded that the sentencing judge was correct in concluding that the harshness of pre-sentencing conditions of custody is not a relevant factor, I agree with the appellant that this is a factor that may be properly taken into account when determining the period of parole ineligibility, and therefore the judge erred. I note that the judge’s sentencing decision in 2018 occurred prior to significant recent developments in the case law.
[9] In this regard, I am in agreement with the approach of the Ontario Court of Appeal in R. v. Lamba, 2024 ONCA 778, which held that all relevant sentencing principles may be considered when determining whether the period of parole ineligibility should be increased from the 10-year mandatory minimum, including the impact of particularly harsh conditions of pre-sentencing custody.
[10] For the reasons that follow, I would set aside the judge’s sentence, and impose a 12-year term of parole ineligibility.
[12] The judge carefully reviewed Mr. Sheepway’s background, including his family life, employment and criminal history. Mr. Sheepway was 40 years old at the time of sentencing. His employment history included working at the Whitehorse Correctional Centre (“WCC”) from 2007 to 2012. The judge considered Mr. Sheepway’s descent into crack cocaine addiction at the time of the offence.
Issue on Appeal
[24] The issue on appeal is whether the sentencing judge erred in concluding that harsh conditions of custody endured by an offender prior to sentencing are not a relevant factor when determining whether the period of parole ineligibility for a person convicted of second degree murder should exceed 10 years.
Relevant Principles for Determining Parole Ineligibility for a Life Sentence
[30] A person convicted of second degree murder also is subject to life imprisonment, but there is discretion on the sentencing judge to impose a lesser degree of parole ineligibility, from a minimum of 10 years to the maximum of 25 years.
[31] In this regard, ss. 745(c) and 745.4 of the Criminal Code provide:
745. Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be…
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4…
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
[Emphasis added.]
[32] Since this case did not involve a jury, there was no jury recommendation. However, if there were a jury, the judge would be required to instruct it pursuant to s. 745.2 to consider whether it wishes to make a recommendation of any period of parole eligibility greater than 10 years.
[33] It is clear from the express language of s. 745.4 that certain factors are relevant to determining the period of parole ineligibility, namely: the character of the offender, the nature of the offence, and the circumstances surrounding its commission.
[34] In addition, the judge has discretion to impose a period of parole ineligibility “as the judge deems fit in the circumstances”.
[35] In Shropshire, the Supreme Court of Canada held that the determination of the duration of parole ineligibility is a sentencing process. Therefore, the Court held at para. 24:
The exercise of a judge’s discretion under s. 744 should not be more strictly circumscribed than the sentencing itself.
[36] Since Shropshire, it has become well-established that sentencing judges determining the duration of parole ineligibility may take into account all relevant sentencing principles including those found in ss. 718–718.2 of the Criminal Code: see for example R. v. Pelletier, 2004 BCCA 264; and R. v. McKnight (1999), 135 C.C.C. (3D) 41 (ON CA).
[37] These general principles are governed by the overarching purposes of sentencing, which includes contributing to “respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…”: s. 718.
[43] The s. 719(3) and (3.1) credit for time served does not apply to murder and second degree murder offences.
Do Harsh Conditions of Pre-Sentencing Custody Impact Other Sentencing Decisions?
[46] The limits on the amount of credit that can be given for pre-sentencing custody imposed by ss. 719(3) and (3.1) do not preclude sentencing judges from taking into account particularly harsh conditions of that custody more generally, as a factor in determining a fit sentence for crimes other than murder.
[47] The issue of accounting for particularly harsh pre-trial conditions in sentencing has received considerable judicial attention in Ontario, where it was at one time termed a “Duncan credit” based on the Ontario Court of Appeal’s decision in R. v. Duncan, 2016 ONCA 754. In Duncan, the Court held that particularly harsh treatment in pre-sentence custody and its adverse impact on the offender can warrant “additional mitigation” apart from and beyond the 1.5 credit provided for in s. 719(3.1) of the Criminal Code: at paras. 6–7. The onus is on the offender to establish this.
[49] The Ontario Court of Appeal has reaffirmed Duncan on multiple occasions, although it has clarified that the correct approach in accounting for the impact of particularly harsh pre-sentence conditions is to treat it as a mitigating factor at sentencing, and not as the calculation of a “credit” that is deducted from the appropriate sentence, over and above the clear statutory limit set in s. 719(3.1): R. v. Marshall, 2021 ONCA 344 at para. 52; R. v. Smith, 2023 ONCA 500 at para. 37.
[50] Other appellate courts have accepted that sentencing judges have discretion to reduce an offender’s sentence because of particularly harsh pre-sentence custody conditions that caused the offender hardship, quite apart from the credit provided for in s. 719(3.1): R. v. Biever, 2023 ABCA 138 at paras. 24–29; R. v. Chaisson, 2024 NSCA 11 at paras. 71–75; Waite v. R., 2023 PECA 5 at para. 31; R. v. Mosquito, 2023 SKCA 29 at paras. 90–93; R. v. Demeter, 2022 BCCA 115 at paras. 54–58; R. v. Morrison, 2023 BCCA 242 at para. 41; R. v. Joseph, 2024 BCCA 392 at paras. 30–31.
[55] Trial courts in BC have applied Marshall and recognized that harsh conditions of pre-sentencing custody affecting the offender could be taken into account at sentencing as a mitigating factor, for example, R. v. Fulton, 2021 BCSC 2721 at paras. 73–74; R. v. Hughes, 2023 BCSC 688 at paras. 83–84, 112; R. v. Handule, 2023 BCSC 1031 at paras. 102, 124–126, 194–195; R. v. Khudhair, 2023 BCSC 1175 at para. 124; R. v. Clark, 2023 BCSC 853 at para. 11
[56] In Fulton at paras. 73–74, Skolrood J. (as he then was) treated the fact that the offender had spent a lengthy period of his pre-sentence custody in segregation, adversely impacting his ability to eat properly, sleep, exercise, and socialize, as a mitigating factor relevant to determining a fit sentence: at paras. 73–74. In that case, the periods of segregation that the offender experienced were mostly a result of protocols in response to the COVID-19 pandemic.
[57] In Hughes, the harsh custodial conditions considered by Winteringham J. (as she then was) were an unprovoked assault by another inmate and a resulting recovery in a medical unit, and then a period of 40 days in segregation, which the offender was placed in for his own protection: at paras. 83–83, 112. The sentencing judge adopted the approach in Marshall and considered these custodial conditions to be a mitigating factor in sentencing the offender for manslaughter using a firearm.
[60] I also do not consider it to be a new issue on appeal to alternatively describe this factor as a collateral consequence instead of a mitigating circumstance. The factual issues are the same: was there unusual hardship caused to the offender due to custodial conditions pending trial and sentence? The legal result is also the same: the discretion of the sentencing judge to take this into account when determining a fit sentence. This is not a new issue because it is not legally and factually distinct: see analogous discussion in Suter at para. 30.
[61] In conclusion, a sentencing judge has discretion to take into account the quality of pre-sentencing custody in determining what is a fit sentence, where for example, there is evidence that particularly harsh conditions had an adverse impact on an offender.
[62] The quantity of pre-sentencing custody remains a factor to base a credit against the sentence in sentencing for certain crimes, pursuant to s. 719(3) and (3.1). This credit is taken into account after determining a fit sentence, and does not apply to an offender such as Mr. Sheepway, convicted of second degree murder.
[64] Unfortunately, the judge did not fully appreciate that the appellate authorities he cited primarily turned on an analysis of the limitations of ss. 719(3) and (3.1), which do not apply to second degree murder convictions. The authorities were therefore making it clear that one cannot apply ss. 719(3) and (3.1) and reduce the period of parole ineligibility based on the quantity of pre-sentence custody, as a credit. Instead, the quantity of pre-sentence custody will be noted by custodial authorities when determining parole eligibility pursuant to s. 746.
[70] In my view, the appellate cases cited by the judge are authority for the proposition that the credit available for pre-sentence custody, pursuant to s. 719(3) and (3.1) of the Code, does not apply to the determination of parole ineligibility for second degree murder offenders.
[71] These authorities do not support a wider proposition, namely, that particularly harsh conditions of pre-sentencing custody cannot be considered as a mitigating factor or collateral consequence relevant to fixing the period of parole eligibility to a term between 10 years and 25 years. The sentencing judge erred in principle by considering himself constrained by these authorities and unable to take into account Mr. Sheepway’s pre-sentence custodial conditions.
The Approach in R. v. Lamba, 2024 ONCA 778
[72] Subsequent to the sentencing in the present case and the hearing of the within appeal, the Ontario Court of Appeal in Lamba overturned a sentencing judge’s determination of parole ineligibility on a second degree murder conviction. The Court held that the judge erred in concluding that he could not consider pre-sentence conditions of custody.
[73] In Lamba, the Court noted conflicting trial court decisions on the issue. The Court preferred the approach of Woollcombe J. in R. v. Morales, 2023 ONSC 1607. In that case, the sentencing judge gave reasons why harsh pre-sentencing custodial conditions could be considered when determining the appropriate term of parole ineligibility, namely:
a) the factors in s. 745.4 and all general sentencing principles apply to the determination of whether the appropriate term of parole ineligibility should be greater than 10 years; and
b) it is now well accepted that onerous pretrial conditions of custody may be a mitigating factor in sentencing.
[74] The Ontario Court of Appeal in Lamba endorsed the reasoning in Morales and held:
[24] I agree with the reasoning in Morales, especially to the effect that all sentencing principles are relevant in determining the appropriate period of parole ineligibility. The fact that s. 745.4 of the Criminal Code lists specific factors that must be considered when deciding whether to increase the period of parole ineligibility for second degree murder beyond the 10-year mandatory minimum does not mean that other factors normally relevant to sentencing, including mitigating factors, become irrelevant. Taking this approach would not accord with basic principles of statutory interpretation: see Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 37. Accordingly, there is no principled reason for sentencing judges not to consider pre-sentence conditions of incarceration when deciding on an appropriate period of parole ineligibility.
[25] …as this court directed in Marshall, pre-sentence conditions are one of many mitigating factors that may affect a fit sentence. There are no principled reasons why this mitigating factor should not also apply to determining the appropriate period of parole ineligibility, as long as the statutory mandatory minimum sentence is maintained and the sentencing court also considers the factors in s. 745.4 of the Criminal Code when determining an appropriate period of parole ineligibility.
[75] In the result, the Court in Lamba set aside the sentencing judge’s determination of a period of parole ineligibility of 12 years, and re-sentenced the offender to a period of parole ineligibility of 10 years.
[76] In my view, this approach also accords with the statutory language of s. 745.4 which provides that a judge may substitute a greater period of parole ineligibility as the judge deems fit “in the circumstances”…
…Sheepway on this appeal.
[77] In particular, it is my view that:
a) the guidance in s. 745.4 as well as general sentencing principles apply to the determination of whether the period of parole ineligibility for an offender convicted of second degree murder should be greater than 10 years (but not greater than the maximum 25 years);
b) as a general principle of sentencing, harsh conditions of pre-sentencing custody that have an impact on an accused may be taken into account in determining a fit sentence;
c) therefore, these harsh conditions of pre-sentencing custody may be taken into account in determining an appropriate term of parole ineligibility between 10 years and 25 years.
[78] The question might arise: what is the threshold of harsh conditions of pre-trial custody that warrant consideration at the time of sentencing? In my view it must be something beyond the mere distinction between custody on remand, and custody post-sentence… [PJM Emphasis]
[79] Beyond that observation, I do not see it as necessary to describe the parameters of what types of adverse pre-sentencing custodial conditions might be treated as a mitigating factor at the time of sentencing. Many of the cases where this factor is taken into account involved custodial conditions of lengthy segregation or isolation, or situations where violence was inflicted against the offender while in custody. The relevance of custodial conditions to sentencing will be determined by a sentencing judge based on the evidence on a case-by-case basis. [PJM Emphasis]
Determining the Period of Parole Ineligibility
[82] The judge heard evidence that Mr. Sheepway was held for approximately 18 months of time in conditions that were equivalent to segregated custody or in isolation from other inmates, when he was allowed very little time out of his cell. This was not due to any custodial misconduct by Mr. Sheepway, and after legal action was launched by his counsel, he testified that he was allowed unlocked contact with other inmates. As noted by the judge, the medical evidence supported the conclusion that these harsh conditions had a significant negative impact on his mental health.
[83] I am of the view that the sentencing judge accepted Mr. Sheepway’s evidence in this regard. Otherwise, there would be no need for the judge’s lengthy analysis as to whether he could take these conditions into account.
[84] The judge’s error in concluding that he could not take this factor into account must therefore have materially contributed to the term he imposed for parole ineligibility.
[85] It is therefore appropriate for this Court to determine afresh the appropriate term of ineligibility for parole.
[86] I would agree that Mr. Sheepway’s conditions of pre-sentencing custody were exceptionally harsh and affected his circumstances at the time of sentencing. They should be taken into account in mitigating the term of parole ineligibility to the extent it is otherwise greater than the mandatory 10 years.
Disposition
[89] I would allow the sentence appeal. I would set aside the trial judge’s imposition of a 13-year term of parole ineligibility and substitute a sentence of a 12-year term of parole ineligibility.
“The Honourable Justice Griffin”
I agree:
“The Honourable Mr. Justice Butler”
R v Stump, 2025 ABCA 43
[February 10, 2025] Appeals and Credibility: Requirement to Address Inconsistencies of a Complainant [Dawn Pentelechuk, William T. de Wit, April Gross JJ.A.]
AUTHOR’S NOTE: Judges cannot avoid making difficult decisions by ignoring key evidence in their reasoning. This case reinforces that they must address significant testimonial inconsistencies, especially when credibility is central to the verdict. Simply stating that a complainant is believed over the accused is insufficient if the complainant’s testimony contains major inconsistencies. Here, the complainant was uncertain whether the alleged incident actually occurred or was a dream, yet the trial judge failed to address this issue in their reasons. As a result, the Court of Appeal ordered a new trial.
Introduction
[1] The appellant appeals his conviction for sexual interference, contrary to s 151 of the Criminal Code, RSC 1985, c C-46. 1 He argues the trial judge misapplied the legal principles for assessing credibility set out in R v W(D), [1991] 1 SCR 742. More specifically, he argues the trial judge misapprehended evidence and applied improper standards of scrutiny when assessing the complainant’s and the appellant’s evidence.
[6] After the detective questioned the complainant on whether she was talking about something that actually happened or something she thought had happened and whether AD actually saw this happen, the complainant responded:
COMPLAINANT: I think —
DET. TIRRELL, #3444: Oh.
COMPLAINANT: — I think happened.
DET. TIRRELL, #3444: Okay. It — did AD actually see this happen? Or you think she saw this happen? Or something else?
COMPLAINANT: I kind of forgot what I said to my dad.
DET. TIRRELL, #3444: Mm-hmm.
COMPLAINANT: It’s like really confusing when I (inaudible).
DET. TIRRELL, #3444: So, today when we’re talking, we’re gonna only talk about things that actually happened.
COMPLAINANT: Yeah.
…
DET. TIRRELL, #3444: So, the first time, are we talking about something that actually happened, you think happened or something else?
COMPLAINANT: First time, it actually happened.
DET. TIRRELL, #3444: Okay.
COMPLAINANT: I don’t know if I was in a dream or something.
DET. TIRRELL, #3444: Okay.
COMPLAINANT: ‘Cause I actually saw that happen.
DET. TIRRELL, #3444: Mm-hmm.
COMPLAINANT: I know I was up at, like — I think it was like 3:00 a.m. or something. Like, the devil’s hour
DET. TIRRELL, #3444: Okay. So, you said that you woke up at 5:00, he came down. He asked you to come to the couch he was sitting on.
COMPLAINANT: Yeah.
DET. TIRRELL, #3444: And then all these things happened.
COMPLAINANT: Yeah.
DET. TIRRELL, #3444: Is there anything in that situation that didn’t happen?
COMPLAINANT: What didn’t happen is the, like, second time he came – –
DET. TIRRELL, #3444: Okay.
COMPLAINANT: — down.
DET. TIRRELL, #3444: Why did you tell me that it happened a second time?
COMPLAINANT: I thought it did.
DET. TIRRELL, #3444: Mm-hmm.
COMPLAINANT: I was like so confused if I was, like, in a dream or something. And I was, like — so weird in my dream.
DET. TIRRELL, #3444: Mm-hmm.
COMPLAINANT: I think it was a dream. I do not know.
DET. TIRRELL, #3444: Okay.
COMPLAINANT: But I know I was up in the middle of the night.
DET. TIRRELL, #3444: Mm-hmm.
COMPLAINANT: I know that.
DET. TIRRELL, #3444: And so, is this something that actually happened with Dan, you think happened or something else?
COMPLAINANT: It happened.
DET. TIRRELL, #3444: It happened. And then — but then from the first time, to the second time, those things didn’t happen? AD didn’t see this happen?
COMPLAINANT: No.
DET. TIRRELL, #3444: Okay. And Dan didn’t come down a second time and do this?
COMPLAINANT: No.
[7] At trial, the complainant admitted in cross-examination to “lying” to the detective when she reported multiple assaults, and that AD had witnessed one of them and told her to run.
Discussion
[9] The trial judge accepted the complainant’s evidence and did not believe the appellant. He addressed various inconsistencies in the complainant’s evidence but found they did not detract from her credibility and reliability as a witness,…
[10] Regarding the inconsistency central to this appeal, the trial judge did not accept that the complainant had lied, attributing the inconsistency to confusion:
…I accept the Child’s explanation that she was confused. I do so because she was subjected to many challenges at both the Preliminary Inquiry and during her time on the stand during this trial. Being a young child, it is easy for her to become confused. [Emphasis added.]
[12]…significant testimonial inconsistencies should be addressed so that the accused knows why the trial judge is left with no reasonable doubt: R v RA, 2017 ONCA 714 at para 45, affirmed 2018 SCC 13. Failing to appreciate a material inconsistency and explain how it has been addressed may constitute reversible error: R v MPJ, 2024 ABCA 35 at para 12; SLB at para 42. While a child’s evidence should not be assessed on the same standard as with an adult, a trial judge’s determination of a young complainant’s credibility and reliability still requires an assessment of the inconsistencies and contradictions in their evidence: SLB at paras 36-37 and 42.
[13] As the Crown fairly concedes, the complainant’s unprompted report of multiple assaults, one of which was witnessed by AD, and her immediate resiling from that assertion, was undoubtedly material to the assessment of the complainant’s credibility and reliability as a witness. It needed to be addressed.
[14] …It is conceivable that the complainant might have been confused in the course of those proceedings. But this cannot logically explain why the complainant was “confused” when giving her police statement within hours of the incident; she had not yet been through any court processes.
[15] The trial judge’s explanation for dismissing the inconsistency—his articulated “why”— was a misapprehension of the evidence. Any confusion that arose from the challenges the complainant experienced in the preliminary inquiry and trial could not logically explain why she said what she said, or how she was a credible and reliable witness notwithstanding this significant inconsistency. For example, the trial judge did not specifically address the complainant’s evidence that she gave inconsistent evidence to the police because she felt like she was in a dream. Because the trial judge’s stated rationale for dismissing the complainant’s inconsistency could only logically apply to the complainant’s in-court testimony, the trial judge failed to appreciate and address the material inconsistencies in the complainant’s statement to police. This is sufficient to warrant appellate intervention.
[16] Appellate courts have been cautioned against scrutinizing reasons in search of errors; the task is to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: R v GF, 2021 SCC 20 [GF] at para 69. But GF “does not direct appeal courts to overlook or disregard material reasoning errors”: R v CG, 2021 ONCA 809 at para 56; see also R v WDM, 2022 SKCA 64 at para 58, leave to appeal to SCC refused, 40345 (16 February 2023); R v RM, 2023 BCCA 455 at para 86, leave to appeal to SCC refused, 41095 (27 June 2024).
[17] A functional and contextual reading of the reasons for conviction indicates that the misapprehension permeated the trial judge’s reasoning leading to an unsafe conviction. The trial judge thoroughly addressed several inconsistencies in the complainant’s evidence. However, read as a whole, the reasons for conviction do not disclose how the trial judge resolved the central inconsistencies in the complainant’s statement to police and the explanations the complainant gave for those inconsistencies on the date of the incident.
Disposition
[19] The appeal is allowed. The remaining issue is remedy.
[22] In our view, the appropriate remedy in this case is to order a new trial. The appellant did not argue, and we have not found, that a conviction cannot be supported by the evidence. The fact that the appellant has served his sentence is for the Attorney General to consider in exercising his prosecutorial powers in the public interest: Brouillard Also Known As Chatel v The Queen, [1985] 1 SCR 39 at para 32. Accordingly, the appeal is allowed and a new trial ordered.
R v Wendt and Ferri, 2025 ONSC 812
[February 5, 2025] Charter s.8: Clearing a Residence without a Warrant and Emergency Safety Searches [Justice A.K. Mitchell]
AUTHOR’S NOTE: When responding to a 911 call or call for help, police may enter a residence without a warrant. However, many police forces follow a policy allowing them to search the entire residence for additional people who may be in danger or pose a threat, based on the assumption that there is always one more person than they are aware of. This case applies R v Stairsto find that such a broad search violates s.8 of the Charter (the right to privacy). As a result, a large cache of drugs, firearms, and ammunition was excluded from evidence. The decision serves as a strong rebuttal to police claims that an emergency entry automatically grants them the right to search an entire residence.
INTRODUCTION
[2] The applicants, Donovan Wendt and Felice Ferri, stand charged under this eighteen (18) count indictment.1 The applicants are jointly charged with five (5) drug-related offences;
Mr. Wendt is charged with ten (10) firearm-related offences; and Mr. Ferri is charged with three (3) child exploitation offences.
[5] Claiming their s. 8 rights as guaranteed by the Charter of Rights and Freedoms (the “Charter”) were violated, the applicants challenge the validity of the warrantless search of a massive residence located at 467 Commissioners Road East in the City of London (the “residence”) conducted by police on April 4, 2023 (the “warrantless search”). The applicants further challenge the validity of three (3) search warrants (described below) issued in reliance upon the “fruits” of the initial warrantless search.
[6] As part of his Charter challenge, Mr. Ferri claims his s. 8 Charter rights were further violated when the police failed to abide by the Lavallee 2 guidelines when applying for and executing the search warrants with respect to the residence and, in particular, the Lavallee warrant.
BACKGROUND FACTS
[9] In April 2023, Mr. Wendt resided in the residence and Mr. Ferri was a tenant of the residence. In addition, Mr. Ferri maintained a law office in the residence.
[10] On April 4, 2023, police responded to a domestic disturbance at the residence. The complainant reported to police that she was barricaded in a bathroom and her boyfriend was attempting to get into the bathroom, and that he had access to weapons.
[11] Fearing for the complainant’s safety, police officers forced entry into the home. Within minutes of entering the residence, Mr. Wendt was located, unarmed, on the second level. He was detained, subjected to a pat down search and arrested. At the same time, the complainant was found uninjured in a bathroom located on the second level of the residence.
[12] Immediately after Mr. Wendt’s arrest, police began “clearing”‘ the residence (including the law office), looking for other persons. While clearing a room accessed through the garage of the residence, police came upon what they believed to be a drug lab.
[13] Minutes later while clearing a room on the second level of the residence believed to be Mr. Wendt’s bedroom (the “bedroom”), a loaded .308 semiautomatic rifle and ammunition were observed under the bed.
[14] Relying on their discovery of the drug lab and firearm, police obtained search warrants for the residence on April 5, 2023. These warrants expressly excluded the law office. The April 5th search warrants were executed on April 5 and 6, 2023 A search warrant relating to the law office was issued on April 11, 2023 and executed on April 13, 2023.
[15]…The focus of these applications is the reasonableness of the warrantless “clearing” search of the residence following Mr. Wendt’s arrest. Additionally, the applicants challenge the validity of the warrants and their manner of execution.
[16] On April 4, 2023 at 12:36 PM Police Constable Kyle Uebershlag (PC Uebershlag) of the London Police Service (“LPS”) community outreach and support team (“COAST”), and his partner, registered nurse, Erik Krysa, contacted Teresa An, to offer support for mental health issues arising from a domestic incident which had taken place the previous day involving Mr. Wendt.
[17] During the call, Ms. An was placed on speaker so that both PC Uebershlag and Mr. Krysa could hear the conversation. While speaking with Ms. An, PC Uebershlag could hear a male voice in the background screaming “who the fuck is that on the phone, who the fuck are you talking to?” Ms. An advised she was locked in a bathroom for safety. PC Uebershlag could hear pounding on the door. He asked Ms. An whether she was okay and she responded: “I can’t say anything, he can hear me”.
[18] Ms. An did not respond when asked if she wanted police to attend. PC Uebershlag could hear the male in the background and described him as “irate”. The male continued to pound on the door. PC Uebershlag became very concerned for Ms. An’s safety.
[19] PC Uebershlag described Ms. An as sounding “exceptionally” scared and determined it was necessary to dispatch police to conduct a welfare check on Ms. An. Her home address was given to dispatch. Upon hearing the address, Ms. An advised she was not at home rather was at the residence. PC Uebershlag re-directed officers to attend at the residence.
[20] PC Uebershlag could heard Ms. An and the male screaming at each other. Ms. An then said “he has guns in the home and may use them”. When asked to clarify what she meant, Ms. An stated: “he does not currently have a weapon that I know of but he has access to them”. She identified the male as Mr. Wendt. PC Uebershlag relayed to dispatch that the male “had access to firearms” and upgraded his request to a Code 1 “lights and sirens”.
2. Entry
[25]…The officers did not voice their presence, ring the doorbell or knock on the door. They attempted to gain entry through the north-facing door to the east of the three bay garage. However, the door was locked.
[26] As they began kicking the door lock, Sargent Gerber and PC Telfer were joined by Sargent John Dance of the Emergency Response Unit (“ERU”). The officers kicked and broke the lock on the door and entered into the mud room located on the main level of the residence. To the left of their point of entry was the kitchen and to the right was a closed door leading to the garage. Upon entering the residence, they observed a stairway leading to the second level just beyond the kitchen. None of the officers reported smelling cannabis or chemicals upon entering the residence.
[27] Immediately upon entering the residence, the three officers were met by an older woman. She was wearing blue cleaning gloves. Sargent Gerber asked the woman “where are the other people”. The woman did not respond. As the three officers made their way into the kitchen, the officers received information from PC Uebershlag that the female in distress was located on the second floor of the residence. With their firearms drawn, the three officers made their way past the woman to the stairway leading to second level of the residence. As they moved through the residence, they loudly and repeatedly yelled “police”. Multiple dogs were barking.
3. Detention and Arrest of Mr. Wendt
[31] Upon reaching the second level of the residence, the officers encountered Mr. Wendt at the top of the stairs. None of Sargent Gerber, PC Telfer or Sargent Dance observed the (bed)room from which Mr. Wendt came from. They did not observe Ms. An. Shortly after encountering Mr. Wendt, Sargent Gerber, PC Telfer and Sargent Dance were joined on the second level by PC Uebershlag.
[32] Police encountered Mr. Wendt wearing basketball-type shorts. He was not wearing a shirt or shoes. He was not carrying a weapon. Mr. Wendt identified himself to police. Sargent Dance grabbed his arm and a short struggle ensued. Mr. Wendt was forced to the ground by PC Telfer and handcuffed to the rear. PC Telfer advised Mr. Wendt that he was being detained for an ongoing assault and weapons investigation. A pat-down search of Mr. Wendt was conducted. No weapons were found.
4. Locating and Securing the Safety of the Complainant
[1] Upon arriving at the residence, PC Uebershlag observed officers Gerber, Telfer and Dance attempting to break the lock on the door. He advised Ms. An that he had arrived at the residence. He could hear Mr. Wendt continuing to yell at Ms. An. Ms. An stated: “he may be going to get a weapon” and PC Uebershlag relayed this information to the other officers.
[3] He described the second level as not having “a conventional layout” and having “lots of doors”. He eventually located Ms. An in a bathroom. She was crying and shaking uncontrollably and had difficulty answering basic questions. She confirmed that Mr. Wendt was her boyfriend and the person being taken into custody. After speaking with Ms. An for approximately five minutes, PC Uebershlag formed grounds for arresting Mr. Wendt for assault of Ms. An.
[6] Both Ms. An and Gloria Ferri were arrested. However, both women were later released and not charged.
5. Clearing of the Residence – discovery of the drug laboratory
[8] Acting in a managerial role, Sargent Gerber decided it was necessary to clear the entire residence. He enlisted the help of PC Prince, Sargent Dance and police Constable, David Klassen who had just arrived on scene. He explained that clearing the entire structure was necessary because there may be other persons in the residence who might have access to firearms and use them “to defend the male suspect”.
[9] Sargent Gerber further explained that clearing was necessary, stating:
I wanted to ensure that we cleared the structure for any other threats – certainly to us or another other persons – vulnerable people, children. I went down to the main level and found another ERU officer and advised that we are going to identify what the structure is and clear it for persons.
[10] When asked why he did not focus on clearing just the second level of the residence where Mr. Wendt was arrested and Ms. An had been located, Sargent Gerber stated:
The entire structure poses a threat. Could hear barking dogs. Perhaps these dogs could also pose a threat to us – a lot of unknowns in this situation. It is my responsibility to ensure the safety of those inside the structure – my police officers and the civilians we are dealing with.
[12] Sargent Gerber was of the view that where there is a report of firearms, the situation is not “deemed safe” until the entire structure is cleared for persons and “no one has access to guns”. He qualified the scope of the search to clearing only for persons, not weapons unless in plain sight. His intention was to “clear the structure, without searching the structure”…
[13]…Sargent Gerber opened the unlocked door to the garage and moved through the door into the 3-bay garage.
[14] While clearing the garage, Sargent Gerber and PC Prince walked through a doorway off the garage into a large room housing various equipment. A sign was posted on the door cautioning persons to wear gloves and masks. Large machinery was located within the garage covered in sheets. Large barrels of chemicals and empty cartons of baking soda were observed. The chemicals included hydrochloric acid, isopropyl alcohol and butane. The laboratory consisted of extensive machinery, large glass vat-like containers, electrical systems, ventilation, computers, tools, cameras and a shower/decontamination station.
[15] Sargent Gerber recognized the equipment as consistent with a synthetic drug lab operation. Due to his previous experience, Sargent Gerber believed the drug lab was highly volatile and created an enormous safety risk to both police and the public. At 1 p.m. Sargent Gerber advised all other officers by radio that a drug lab had been located within the residence and ordered the residence evacuated. Sargent Gerber donned “personal protective equipment” (“PPE”) and then proceeded to “clear” the lab area. He says he did so without searching, changing or disrupting any aspect of the environment within the lab. Photographs were taken. During cross-examination, Sargent Gerber admitted that at no time while in the residence did he smell cannabis or other chemicals.
6. Clearing of the Bedroom – discovery of the firearms
[21] On April 4, 2023, PC Klassen was a police constable with the ERU…
…While in the residence, he was made aware (through another officer or over the radio) that a 7 year old child was in the house although the whereabouts of the child were unknown. He understood the source of the information was the elderly woman.
[22] PC Klassen recalls clearing the residence with Sargent Gerber. PC Klassen stated that the purpose for clearing the residence was to locate the child and potentially other vulnerable people. Notwithstanding this stated purpose, he did not ask the elderly woman any questions about the child including where the child might be found in the large house.
[23] At approximately 1 PM, he recalls entering the garage area with Sargent Gerber and observing tanks and equipment. Sargent Gerber advised him that the equipment was commonly used in drug labs.
[24] At approximately 1:09 p.m. and after discovery of the lab, PC Klassen says he was asked to returned to the bedroom (believed to be Mr. Wendt’s bedroom) to clear the room for persons. He said that he was unaware the room had been previously cleared by Sargent Dance. Upon entering the bedroom, he observed no people, or weapons in plain view and heard no sounds. He observed two large dogs crated in the closet.
[25] PC Klassen testified that he got down on his hands and knees and looked under the bed for any persons who might be hiding under the bed. He described being “able to see underneath the bed”. PC Klassen testified that while looking underneath the bed (on the long side of the bed), he observed a firearm and loaded magazine. He proceeded to pick up the bed and move the bed to expose a loaded semi-automatic .308 calibre rifle with a loaded magazine next to it. [PJM Emphasis]
[26] During cross-examination, PC Klassen’s evidence was directly contradicted by the photo evidence. Defence counsel showed PC Klassen a photograph of the bedroom. The photo showed a bed having a solid wood base resting on the floor with the frame extending beyond the base by approximately 12 inches on all sides. After reviewing the photo, PC Klassen identified the room as the one he searched and the bed as the one he searched under. He confirmed the bed was the one under which he observed the rifle and ammunition.
[27] Under cross-examination, PC Klassen admitted that he could not have observed the rifle and ammunition by kneeling down and looking under the bed as he described in his examination in chief and as he recorded in his notes because the bed had a solid wood frame that rested on all sides on the floor. He admitted that he had been “mistaken” and his earlier evidence had been “incorrect”. He agreed with defence counsel’s suggestion that to observe the rifle and ammunition he would have had to move the bed. [PJM Emphasis]
[28] He explained that he would have moved the bed solely for the purpose of locating a person or child. This explanation was not recorded by PC Klassen in his notes. PC Klassen denied he moved the bed in search of weapons.
9. The Law Office
[44] Mr. Ferri had installed closed-circuit TV cameras in some parts of the residence, including the kitchen, however, not the law office. Mr. Ferri was able to access the video recordings remotely.
[45] On April 4, 2023, Mr. Ferri had seven (7) active legal files for clients charged with a variety of offences, including human trafficking, sexual assault, drug trafficking, escape lawful custody, dangerous operation of a motor vehicle, driving while impaired, kidnapping, and assault. He maintained hardcopies of his client files and estimated that on April 4, 2023, he had approximately 2000 pages of printed materials relating to his client files located in the office as well as elsewhere in the residence.
[46]…He recalls that on April 5, 2023, a handwritten statement from his client relating to a bail review application was located within a stack of papers in the kitchen. Mr. Ferri testified that, by accessing the kitchen’s cameras remotely, he was able to observe police looking through a client file left on the kitchen table.
[48] Following the initial warrantless search on April 4, 2023, three (3) search warrants were issued…
[63] The April 11th Lavallee warrant was executed on April 13th. DC Hay accompanied Ms. Bhamra to the residence and was physically present in the law office during the search. DC Hay described how Ms. Bhamra would hand him evidence seized from the law office which she believed was potentially relevant and he would seal the evidence in an envelope. He did not review or read any item seized by Ms. Bhamra. DC Hay said that he relied entirely on Ms. Bhamra to determine whether a document was potentially subject to solicitor-client privilege.
[65] DC Vanderidder testified that all items seized from the law office together with two items seized from an area outside the law office were locked in a vault at the courthouse (the “privileged items”).
[66] The following items were seized during the search of the residence:
(a) from the bedroom (believed to be occupied by Mr. Wendt):
a Norins M305 semiautomatic .308 WIN long rifle;
a loaded ROHM 38 calibre black revolver handgun;
14 rounds of .38 calibre ammunition;
two loaded magazines each with 4×.308 rounds of ammunition;
a metal box containing 256 ×.308 rounds of ammunition,
(collectively, the “firearms evidence”).
(b) From common areas of the residence: 672 marijuana gummies;
143 marijuana lollipops;
551 g of psilocybin;
231 g of suspected MDMA;
8999 g of marijuana bud,
(c) from the laboratory:
approximately 140 kg of marijuana;
approximately 324 L of suspected marijuana resin;
approximately 26 L of suspected marijuana butter;
approximately 1340 g of suspected marijuana shatter;
various unknown liquids;
an elaborate closed-loop cannabis extraction system;
freezers and multiple roto-evaporators and various laboratory extraction equipment,
(collectively, (b) and (c) are referred to as the “drug-related evidence”).
ANALYSIS
1. Did the warrantless search of the residence violate the applicants’ s. 8 Charter rights?
Section 8 Charter
[80] I am unable to conclude the residence was a multi-unit residential structure. 10 I find that the whole of the residence was home to Mr. Wendt in April 2023 and, thus, he had a reasonable expectation of privacy in the entire structure including the garage and the area of the drug lab.11…
[85] Both Mr. Wendt and Mr. Ferri had a reasonable expectation of privacy in the residence including the garage and the area of the drug lab and, therefore, have standing to challenge the reasonableness of the warrantless clearing of the residence on April 4, 2023.
Search Incident to Arrest
[87] In their oral submissions, Crown counsel objected to the clearing of the residence following Mr. Wendt’s arrest being characterized as a “search incident to arrest”, or any other manner of search. For this reason, the Crown objects to the applicability of the principles laid down by the Supreme Court of Canada in R. v. Stairs. 17 Instead, the Crown urged me to consider a combination of principles taken from the decisions in R. v. Golub18 and R. v. Godoy19 for purposes of my analysis. A review of the factual scenarios in each of Golub, Godoy and Stairs is a useful starting point.
[95] At paragraphs 11 and 12, Chief Justice Lamer writing for the court stated:
11 In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case.
12 If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions: 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.
[96] Similar to Godoy, the forcible entry by police into the residence in the circumstances of this case constitutes a prima facie interference with the liberty and property of the applicants. Quite rightly, the applicants concede that, such interference with their constitutionally-protected rights to be free from unlawful entry by police was justified to ensure the safety of Ms. An. In the circumstances, police reasonably believed there was an imminent risk of serious bodily harm or death to Ms. An.
[97] However, Godoy does not deal with the reasonableness of a search of a private residence following an arrest, as is the case here. By comparison, the facts in Golub are more closely aligned with the facts of this case. Golub involved the search of the accused’s apartment incident to his arrest in the hallway outside the apartment. At paras. 41 and 42, the Supreme Court considered the principles governing a search of a home incident to arrest, writing:
41 In my opinion, searches of a home as an incident of an arrest, like entries of a home to affect an arrest, are now generally prohibited subject to exceptional circumstances where the law-enforcement interest is so compelling that it overrides the individual’s right to privacy within the home. After Feeney, the general principles governing the scope of searches as an incident of arrest set down in Cloutier do not control where the place to be searched is a residence. Those principles are still helpful in that they identify relevant considerations. However, those considerations must be looked to, not to balance competing interests, but to determine whether the circumstances are sufficiently exceptional to justify overriding the general prohibition against warrantless searches of the home.
42 What will amount to exceptional circumstances justifying a warrantless search of a residence as an incident of an arrest? I will not attempt an exhaustive answer. Exceptional circumstances do not, however, refer to circumstances which rarely arise, but rather to circumstances where the state interest is so compelling that it must override a person’s right to privacy within the home.
[98] Golub and, subsequently, Stairs involved a search of a private residence incident to an arrest. The facts in Stairs are closely aligned to the facts of this case. In both cases, the accused was arrested in his home with a clearing search conducted immediately thereafter. No interpretation of the manner of search, other than one incident to arrest, may be inferred from the facts of this case.
[99] The Supreme Court in Stairs expands on the legal principles in Golub and articulates the test governing the scope of a search of an accused’s home incident to his arrest. Stairs is the most recent authority on the subject and I am bound to apply its principles.
[100] Turning now to those principles. The Crown must rebut the unreasonableness presumption by showing that the clearing search of the residence following Mr. Wendt’s arrest was a valid search incident to arrest. To do so, the Crown must establish that:
(i) Mr. Wendt was lawfully arrested;
(ii) the search was truly incidental to the arrest in the sense that it was conducted for a valid law enforcement purpose connected to Mr. Wendt’s arrest; and
(iii) the search was conducted reasonably.20
[101] The case law has identified three valid law enforcement purposes: (i) police and public safety, (ii) preventing the destruction of evidence, and (iii) the discovery of evidence that may be used at trial. 21
[102] Moreover, the police law enforcement purpose must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable. 22
[103] For a search incident to arrest to be lawful, police need not have reasonable and probable grounds. However, they “must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable”. 23 The important consideration is the link between the location and purpose of the search and the grounds for the arrest.24
[104] A search incident to arrest extends to the surrounding area of an arrest. In Stairs the Supreme Court modified the common law standard for search incident to arrest as it applies to the search of a person’s home as follows:
(i) the police must have reason to suspect that there is a safety risk to the police, the accused or the public which would be addressed by a search; and
(ii) the search must be conducted in a reasonable manner, tailored to the heightened privacy interests in a home.25
[105] The Supreme Court distinguished between two subcategories within the surrounding area of an arrest. These areas are:(i) the area within the physical control of the person arrested at the time of arrest; and(ii) areas outside the physical control of that person, but which are part of the surrounding area because they are sufficiently proximate to the arrest. The task of determining whether a particular area is part of the surrounding area of the arrest is a contextual and case-specific inquiry that falls to the trial judge. 26
[106] When police have entered a home without a warrant (as was the case in Stairs and is the case here), police must meet a higher standard of suspicion to search the area outside the arrestee’s physical control. Under the existing common law standard, when police make an arrest they may conduct a pat-down search and examine the area within the physical control of the person arrested. But when the police go outside the zone of physical control, the standard must be raised to recognize that the police have entered a home without a warrant. In these circumstances, it is not enough to satisfy the existing common law standard, which requires some reasonable basis for the search. Rather, the police must meet a higher standard: they must have reason to suspect that the search will address a valid safety purpose. 27
[107] In summary, a search of a home incident to arrest for safety purposes will comply with s. 8 of the Charter provided the following requirements are met:
(i) the arrest was lawful;
(ii) the search was incident to the arrest. The search will be incident to arrest when the following considerations are met:
(a) where the area searched is within the arrested person’s physical control at the time of the arrest, the common law standard must be satisfied;
(b) where the area searched is outside the arrested person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the accused;
(c) where the area searched is outside the arrested person’s physical control at the time of the arrest but the area is sufficiently proximate to the arrest — the nature and the extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home.28
Application of the Stairs Principles
[108] The applicants do not challenge the lawfulness of the initial entry into the residence. Furthermore, Mr. Wendt does not challenge the lawfulness of his detention and arrest or the validity of the initial pat-down search and the scan of the bedroom by Sargent Dance in an attempt to locate Ms. An.
[109] The issues for determination with respect to each of (i) the clearing of the residence beyond the second level; and (ii) the second “clearing” of the bedroom by PC Klassen, are:
1. Whether the police had a reason to suspect that there were safety risks which justified the search of the residence beyond the second level of the residence and/or the second search of the bedroom; and
2. Whether in each case, the search was conducted in a reasonable manner.
A. Reasonable Suspicion
[110] Dealing first with the search of the residence. The search must meet the standard for reasonable suspicion, both in terms of its subjective and objective components.
(1) Subjective Component
[111] Sargent Gerber was in charge of the scene and the investigation. Immediately following Mr. Wendt’s arrest and after being notified that Ms. An had been located unharmed in a bathroom on the second level, he determined it was necessary in the interests of police and public safety to clear the residence.
[112] Sargent Gerber believed there was a safety risk to other possible persons in the residence that would be addressed by clearing the “entire structure”. In his view he was justified in clearing the residence beyond the second level where both Ms. An and Mr. Wendt were located by police. He testified as follows:
…I don’t know if there’s more people inside this residence; if this person has access to firearms; is it possible that there are other occupants who have the same access to firearms who may try to take defence for this subject male I am dealing with now? There’s a lot of unknowns. And to protect the safety of certainly myself and the other officers and the safety of these two individuals I am dealing with.
[114] I find Sargent Gerber’s subjective belief that there was a safety risk to officers on scene and possible other occupants of the residence due to the possible presence of firearms, and that clearing the residence of all persons addressed that risk, was a valid law enforcement purpose.
[115] Sargent Gerber’s suspicion was, therefore, subjectively reasonable.
(2) Objective Component
The Dynamic of the Arrest
[117] These exigent circumstances justified a warrantless forced entry into the residence. Upon breaching the door lock and entering the residence, police encounter Gloria Ferri who appears surprised by their presence. Still on the phone with police, the complainant immediately directs police to the second level where they encounter Mr. Wendt in the hallway at the top of the stairs. Mr. Wendt is detained at 12:52 PM. He identifies himself. He is unarmed. He is not combative. He does not try to escape police custody. No weapons are found nearby in the hallway. Mr. Wendt is arrested at 12:57 PM – 10 minutes had elapsed since police first arrived on scene.
[118] Moments after Mr. Wendt is detained, police find Ms. An in a bathroom on the second level of the residence. She is not injured or otherwise harmed. She is taken to the kitchen of the residence where her statement is taken. After discovery of the drug lab, police arrest Ms. An. Ms. Ferri is similarly arrested.
[119] The volatility of the situation immediately de-escalated upon Mr. Wendt’s detention five minutes after police arrived on scene. Fortunately, the fears of police did not materialize. Mr. Wendt had no history of violence. His prior single conviction was drug-related. Ms. An made two references to firearms during her telephone conversation with PC Ueberschlag – the first was that Mr. Wendt had access to weapons. The second was that she thought he had gone to get a gun.
[120] It would have been apparent to police when detaining Mr. Wendt that he had not, in fact, “gone to get a weapon” as Ms. An feared he might. Any concerns for Ms. An’s safety were allayed after the pat down search was conducted and no weapons were found on Mr. Wendt or nearby.
The Nature of the Offence
[121] Mr. Wendt was arrested for assaulting Ms. An, his domestic partner. At para. 90 of Stairs the court quoted with approval para. 21 of Godoy:
One of the hallmarks of [domestic violence] is its private nature. Familial abuse occurs within the supposed sanctity of the home. While there is no question that one’s privacy at home is a value to be preserved and promoted, privacy cannot trump the safety of all members of the household. If our society is to provide an effective means of dealing with domestic violence, it must have a form of crisis response. (Emphasis added)
[122] All persons reported on the distress call were accounted for and there was no reason to believe other persons were involved in the domestic incident. Ms. A made no mention of persons other than herself and Mr. Wendt. More importantly, she made no mention of any person, other than herself, who might be at risk of harm. [PJM Emphasis]
[123] All police officers arriving on the scene following Mr. Wendt’s arrest joined in the clearing search which was underway without questioning their authority to do so. None of the officers considered the option of securing the residence and obtaining a search warrant. None of the officers made inquiries of Ms. An or Ms. Ferri as to the identity and whereabouts of other occupants. Inexplicably, officers did not immediately take Ms. An and Ms. Ferri to a place of safety outside of the residence notwithstanding their fear that other persons might be hiding in the residence with access to weapons.
[125] All police officers called as witnesses on the applications testified that it was LPS policy with respect to calls reporting domestic violence involving a firearm, to clear the entire residence without a warrant. The evidence of the officers makes it clear, that they acted based solely on a blanket policy with regards to domestic violence calls involving weapons without regard to the particular circumstances of the case. [PJM Emphasis]
[126] With respect to additional safety risk associated with the possibility that a child was in the residence; I note that Sargent Gerber was unaware there had been mention of a child. Thus, the possible presence of a child could not have been the catalyst for his decision to clear the residence. I note that until a few weeks before these applications were argued and his supplemental statement disclosed to defence counsel, PC Ueberschlag was of the view that the mention of a child by Ms. Ferri was “unimportant”.
[127] The court noted at paragraph 94 in Stairs, that “police often respond to domestic violence calls with limited information. For example, they may not know if other family members, including children, are involved. This is further exacerbated when victims at the scene of the arrest are uncooperative, a common phenomenon in the domestic violence context.” This was not the situation facing police in this case. Ms. An requested the involvement of police. She was cooperative. She maintained constant communication with police throughout the incident. There was no reason to conclude that Ms. An could not be depended on for reliable information about the presence of other people or other hazards in the residence.
[128] By deciding to clear the residence beyond the second level, without first making inquiries of Ms. An, and/or reviewing information contained in police searches on hand, police acted on a generalized suspicion that was not objectively reasonable in the circumstances. On the facts of this case, the applicants’ privacy interests in the residence should prevail over society’s interest in effective law enforcement. [PJM Emphasis]
Nature of the Search
[129] On the facts of this case, both the search of the residence and the second search of the bedroom by PC Klassen were not conducted in a reasonable manner.
[130] With respect to the clearing search of the residence, the scope of the search beyond the second level of the residence far exceeded the area which could reasonably be construed as “sufficiently proximate to the [area of] arrest”. When asked why he started with the garage, Sargent Gerber replied that he “remembered a door closed to the right when he made entry and wondered if the [door] was associated with the unit”. The area of the garage was no where near the area of arrest. His explanation makes no sense and does not suggest he was concerned that other persons may be hiding out in the garage.
[131] I find that the scope of the search was inappropriate and, therefore, unreasonable.
[132] I note the comment in Stairs at para. 99: “Had [police] searched the upper floors of the home or other rooms, the search would have been unreasonable. But they did not do so. They only cleared the basement living room area immediately adjacent to where Mr. Stairs had been arrested – the very area from which he and the victim had emerged just moments earlier.” (Emphasis added)
[133] In this case, police did not make any efforts to limit the scope of their search to the second level of the residence. Their stated objective was to search for persons in “every nook and cranny” of “every room” of this “extensive structure”. [PJM Emphasis]
B. Did the warrantless search of the bedroom violate Mr. Wendt’s s. 8 Charter rights?
[134] With respect to the bedroom, the initial clearing search by Sargent Dance was appropriate in scope. Notwithstanding that none of the officers had observed Mr. Wendt coming out of the bedroom, the search of the room was sufficiently proximate to the time of arrest and to the area of arrest. At the time Sargent Dance entered the bedroom Ms. An had not yet been located. Accordingly, his suspicion that Ms. An may be located in the bedroom was both subjectively and objectively reasonable in the circumstances.
[136] Turning now to consider the reasonableness of the second clearing search of the bedroom conducted by PC Klassen. PC Klassen testified that he was asked to conduct a clearing search of the bedroom although he could not recall who made the request of him. PC Klassen claims that the intended purpose of his search was only to clear the bedroom of persons, possibly a child. He said he was not searching for firearms or other weapons.
[137] I do not accept this evidence. At the time of his search, the drug lab had been found, the firearms had not. PC Klassen intentionally misled the Court with respect to the manner of his search. He could not have and did not observe firearms when he got down on his hands and knees and looked under the bed because the solid wood bed frame prevented him from doing so. I find his evidence in this regard was fabricated and was intended to support the lawfulness of his warrantless search of the bedroom after the fact.
[138] I find that PC Klassen conducted a search of the bedroom for firearms, not persons. By doing so, his search of the bedroom was unreasonable and a violation of Mr. Wendt’s s. 8 Charter right.
C. Are the April 5th search warrants invalid?
[143] I find that following excision, the ITO’s contain insufficient grounds upon which the April 5 th warrants could have issued. Accordingly, the April 5th warrants are invalid and the searches and seizure of evidence on April 6th 2023 were warrantless and, therefore, unreasonable and in violation of the applicants’ s. 8 Charter rights.
Did the April 5th warrants fail to comply with the Lavallee guidelines?
[147] Having found that the April 5th warrants are invalid, it is unnecessary to consider whether their terms adequately addressed the Lavallee guidelines (see below).
D. Was the April 11th Lavallee warrant issued and executed in violation of Mr. Ferri’s s. 8 Charter rights?
[149] For the same reasons rendering the April 5th warrants invalid, I find that the April 11th Lavallee warrant could not have issued once all references to observations of drug-related evidence are excised from the ITO. In addition, the ITO failed to properly address the Lavallee guidelines.
[151] Lavallee stands for the general proposition that, with respect to privileged information, unless consent of the privilege holder is first obtained, police are not entitled to such information. Police must adopt an approach to their review of information which restricts the chances of accessing privileged information to a reasonable minimum.32
[152] The Supreme Court of Canada deemed the review procedure provided under s. 488.1 unconstitutional. After arriving at their decision, the court considered the nature of solicitor and client privilege and the common law principles governing the legality of searches of law offices pending the enactment of new legislation. At para. 49 the court stated:
… 1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor client confidentiality.
4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.
5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the bar should be allowed to oversee the sealing and seizure of documents.
6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
7. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.
8. The Attorney General may make submissions on the issue of privilege but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.
9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.
[153] Before issuing the warrant, police had to satisfy the issuing justice that “there exists no other reasonable alternative to the search”. This requirement is mandatory. A search of a law office is an investigative tool of last resort.33
[154] DC Scott did not provide information upon which the issuing justice could conclude there was no other reasonable alternative and that the information sought could not be obtained from other sources. The ITO did not provide information about the nature and extent of investigative efforts to obtain the information sought from other reasonably available sources such as from items seized during searches already conducted.
[155] Furthermore, the ITO contained the same conclusory statements without evidentiary foundation as were contained in the ITO filed in support of the application for a search warrant of the privileged items, which application was denied. That is, there was no evidence to suggest that the items sought (for example, debt lists or purchase orders) would be found in the law office.
[156] I find that the April 11th Lavallee warrant is invalid. Having found the warrant invalid, the April 13th search was presumptively unreasonable and a breach of Mr. Ferri’s s. 8 Charter rights. As such, it is unnecessary to consider whether execution of the warrant on April 13th was also unreasonable having regard to the Lavallee principles.
E. Should the evidence seized by police pursuant to the authority provided under the warrants be excluded pursuant to s. 24(2) of the Charter?
Grant Analysis – Firearms Evidence
(i) Seriousness of the Charter-infringing state conduct
[165] To begin, Mr. Wendt’s Charter rights were violated when PC Klassen conducted a second search of the bedroom under the guise of a second clearing of the bedroom for persons. PC Klassen was searching for firearms which Ms. An reported were in the possession of Mr. Wendt. The bedroom had previously been screened or “cleared” by Sargent Dance for persons in an attempt to locate Ms. An immediately following Mr. Wendt’s detention. No firearms were observed by Sargent Dance in plain sight. PC Klassen did not intend to conduct a lawful clearing search incident to arrest. There was nothing “incidental” to the search. Rather, his intention was to conduct a warrantless firearms search which he knew or ought to have known was unlawful.
[166] I find that the seriousness of the violation of rights is exacerbated by the fact that PC Klassen deliberately misled the court when he testified that he located the rifle and ammunition when “he got down on all fours” (hands and knees) and looked under the bed. During cross-examination, PC Klassen admitted that it was not possible to observe the rifle and ammunition under the bed because the solid wood bed frame extended to the floor on all sides of the bed.
[168] All LPS officers dispatched to the residence on April 4th testified that the LPS policy required that a “clearing search” of any residence associated with a domestic violence call involving firearms, be conducted. In the view of the officers, the circumstances of the case did not need to be considered before clearing a residence, including, whether the structure was home to other persons having a significant privacy interest in the home. This blanket approach to clearing searches is not in accord with the law established in Stairs. An approach tailored to the circumstances of the arrest as well as the attributes of the home in question, must be undertaken by police before a clearing search incident to arrest is undertaken.
[169] A “one-size-fits-all” approach is not reasonable. As earlier noted, the law does not permit a carte blanche or wholesale search of a private residence following a warrantless entry. The LPS policy with respect to clearing searches for all domestic violence calls suggests a systemic disregard of Charter rights. As a result, I find that the first factor pulls strongly toward the exclusion of the firearms evidence.
(ii) The impact of the breach on the Charter– protected interests of the accused
[172] I find that Mr. Wendt had a heightened expectation of privacy in the bedroom and a moderate expectation of privacy in all other common areas of the residence, including the lab. In my view, the warrantless “clearing” search of the residence, and in particular the bedroom, had a significant impact on his s. 8 Charter rights.
[173] Based on the foregoing, I find that the impact of the breaches on Mr. Wendt’s Charter-protected interests weighs strongly towards exclusion of the firearms evidence.
[183] Based on my balancing of the Grant factors, my view of the totality of the circumstances of this case, it is one in which the court should dissociate itself from evidence obtained in this manner. In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the exclusion of the firearms evidence would not bring the long-term reputation of the administration of justice into disrepute.
Grant Analysis – Drug Lab and Drug-related Evidence
[185] For the reasons already provided, I do not accept the rationale for searching the garage given that the officers knew the individual they had arrested on the second level of the residence was Mr. Wendt; that the reported disturbance was one of domestic violence involving his girlfriend who was also found on the second level, uninjured. There was no discernable connection between the location of Mr. Wendt’s arrest and the location of the garage and drug lab. Notwithstanding the absence of proximity, Sargent Gerber, as officer in charge, decided it was necessary in the interests of public and police safety to clear the whole of the residence starting with the garage (the door to which was closed upon entry). This decision was then communicated to all officers on scene and arriving on scene. None of the officers arriving on scene following Mr. Wendt’s arrest questioned their authority to enter into and search the residence without a warrant.
[188] The actual conduct of the officers in this case suggests they were overzealous and not objectively concerned for their own or public safety. I have considered that the officers did not have their guns drawn during the clearing search and, furthermore, that Ms. An and Ms. Ferri were not taken to safety outside the residence during the clearing search. Instead, the two woman were questioned in the kitchen of the residence which had not been deemed safe.
[189] Good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards. The officers’ conduct in this case does not evidence bad faith. However, the absence of bad faith does not equate to evidence of good faith.
(iv) Balancing
[201] With respect to the drug-related evidence, the first and second factors weigh significantly in favour of exclusion of the evidence. The third factor weighs moderately in favour of inclusion.
CONCLUSION AND DISPOSITION
[203] On balance, I am satisfied that the repute of the administration of justice would suffer more from the admission of the firearms evidence and drug-related evidence than by its exclusion.
[205] With respect to the privileged items, they remain in storage at the courthouse. The application for a warrant authorizing a search of these items was denied. Accordingly, the continued possession of the privileged items is not lawful. The Crown shall forthwith return the privileged items to Mr. Ferri.
