R. v. Golub (D.J.) (1997), 102 O.A.C. 176 (CA)
MLB headnote and full text
Temp. Cite: [1997] O.A.C. TBEd. AU.006
Her Majesty The Queen (appellant) v. David Joseph Golub (respondent)
(C22618)
Indexed As: R. v. Golub (D.J.)
Ontario Court of Appeal
Houlden, Osborne and Doherty, JJ.A.
July 24, 1997.
Summary:
The police received a report from a friend of the accused, that the accused had been drinking, was agitated and in possession of a gun. The police, without obtaining a search warrant, located the accused at his apartment and an Emergency Task Force (ETF) surrounded the premises and evacuated the neighbours. The accused came out of the apartment upon request and was arrested just outside his door. The police suspecting that someone else might be in the apartment obtained a key and had the ETF search the apartment. The ETF found a loaded .22 calibre sawed off semi-automatic rifle under the mattress. The accused was charged with offences involving possession of a rifle but was acquitted on the basis that his s. 8 Charter rights were violated requiring exclusion of the rifle from evidence pursuant to s. 24 of the Charter. The Crown appealed.
The Ontario Court of Appeal allowed the appeal, set aside the acquittals and directed a new trial. The court held that the arrest was lawful. The search of the accused’s home and the seizure of the rifle did not violate s. 8 of the Charter. Further, even if s. 8 rights were violated, the rifle should not have been excluded from evidence under s. 24(2) of the Charter.
Civil Rights – Topic 1262
Security of the person – Lawful arrest – What constitutes – [See first
Civil Rights – Topic 1556
].
Civil Rights – Topic 1524
Property – Personal property – Search and seizure by police – [See first
Civil Rights – Topic 1556
].
Civil Rights – Topic 1556
Property – Land – Search or seizure of private residence – The accused’s friend told police that the accused was drinking, was agitated and had a gun – The police and an Emergency Task Force (ETF), without a search warrant, surrounded the accused’s apartment and evacuated neighbours – The accused was arrested when he came out – The police, suspecting someone else’s presence, obtained a key – The ETF searched the apartment finding a loaded .22 calibre sawed off semi-automatic rifle under the mattress – The accused was subsequently acquitted of offences involving the rifle because his s. 8 Charter rights were violated – The Ontario Court of Appeal set aside the acquittals, holding that the arrest was lawful – Further, the search of the apartment and the seizure of the rifle did not violate s. 8, and even if s. 8 was violated, the rifle should not have been excluded under s. 24 – See paragraphs 1 to 64.
Civil Rights – Topic 1556
Property – Land – Search or seizure of private residence – The Ontario Court of Appeal stated that searches of a home as an incident of an arrest, like entries of a home to effect 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 – The court stated further that exceptional circumstances do not refer to circumstances which rarely arise, but rather to circumstances where a state interest is so compelling that it must override a person’s right to privacy within the home – In determining whether exceptional circumstances exist justifying a warrantless search, the nature of the state interest must be identified – The state interest in collecting evidence may not justify a warrantless search, but the interest in protecting the safety of those at the scene may justify that same search – See paragraphs 41 to 46.
Civil Rights – Topic 1559
Property – Land – Search and seizure by police – [See both
Civil Rights – Topic 1556
].
Civil Rights – Topic 1646
Property – Search and seizure – Unreasonable search and seizure defined – [See first
Civil Rights – Topic 1556
].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See first
Civil Rights – Topic 1556
].
Criminal Law – Topic 3212
Compelling appearance, detention and release – Arrest – Arrest without warrant – [See first
Civil Rights – Topic 1556
and
Police – Topic 3068
].
Police – Topic 3068
Powers – Arrest and detention – Arrest without warrant – General – The accused’s friend told police that the accused was drinking, was agitated and had a gun – The police and an Emergency Task Force (ETF) surrounded the accused’s apartment – The accused was arrested when he came out – A search of the apartment revealed a loaded .22 calibre sawed off semi-automatic rifle under the mattress – The accused’s counsel argued that the search was unlawful because the arrest was based on the information provided by the friend, a source outside of and unknown to police – The accused’s counsel, relying on search warrant cases, argued that since a search warrant cannot be issued on the unconfirmed information of an untested informant, an arrest could not be made on the same basis – The Ontario Court of Appeal rejected this argument – See paragraphs 16 to 18.
Police – Topic 3186
Powers – Search – Private property – [See both
Civil Rights – Topic 1556
].
Cases Noticed:
R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 1; 53 C.C.C.(3d) 316, refd to. [para. 20].
Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1; 48 C.C.C.(2d) 34, refd to. [para. 21].
R. v. Hall (R.) (1995), 79 O.A.C. 24; 39 C.R.(4th) 66 (C.A.), refd to. [para. 21].
R. v. Proulx (G.) (1993), 54 Q.A.C. 241; 81 C.C.C.(3d) 48 (C.A.), refd to. [para. 21].
R. v. Feeney (M.) (1997), 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1 (S.C.C.), refd to. [para. 25].
R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 5 C.R.(5th) 1, refd to. [para. 26].
Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 27].
R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 46 C.R.(3d) 193; 20 C.C.C.(3d) 97; 34 M.V.R. 1, refd to. [para. 29].
R. v. Landry, [1986] 1 S.C.R. 145; 65 N.R. 161; 14 O.A.C. 241; 25 C.C.C.(3d) 1, refd to. [para. 29].
Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259; 19 C.C.C.(2d) 129, refd to. [para. 29].
R. v. Wong et al. (1987), 19 O.A.C. 365; 34 C.C.C.(3d) 51 (C.A.), affd. [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460, refd to. [para. 30].
R. v. Morrison (1987), 20 O.A.C. 230; 35 C.C.C.(3d) 437 (C.A.), refd to. [para. 31].
R. v. Lim (B.) (1990), 1 C.R.R.(2d) 136 (Ont. H.C.), affd. (1993), 62 O.A.C. 57; 12 O.R.(3d) 538 (C.A.), refd to. [para. 31].
R. v. Miller (1987), 23 O.A.C. 32; 38 C.C.C.(3d) 252 (C.A.), refd to. [para. 31].
R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 31].
Maryland v. Buie (1990), 494 U.S. 325, refd to. [para. 51, footnote 4].
R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385, refd to. [para. 60].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24 [para. 1].
Criminal Code, R.S.C. 1985, c. C-46, sect. 495(1) [para. 14].
Counsel:
Scott Hutchison and Alex Alvaro, for the appellant;
David E. Harris, for the respondent.
This appeal was heard on April 16, 1997, before Houlden, Osborne and Doherty, JJ.A., of the Ontario Court of Appeal. On July 24, 1997, Doherty, J.A., released the following decision for the Court of Appeal.
