Elvis Iniguez is a free man today because the Toronto Police Services violated his Charter rights. They searched his home without a warrant and without his informed consent.

The question we must ask is, “Did the judge make the correct decision?”

I believe Ontario Superior Court Justice Heather McArthur made the correct decision based on the facts presented to her.

Elvis Iniguez was a youth and child worker. He had no criminal record. Mr. Iniguez never states where the gun came from. Most likely, the gun came into his possession about ten years prior from someone he counseled in order to get the gun “off the street”.

My conclusions are based on reading all available news reports and the court decision, R. v. Iniguez, 2020 ONSC 677. It’s a fascinating read. I encourage you to take the time and review the judge’s decision for yourself.

And, if you read the overview below, I’d love to hear your thoughts about this case in the comment section at the bottom of the page.

For a more detailed overview, albeit a lengthy one, please read on.

On Sunday, September 10, 2017, Mr. Iniguez called 911 because his drunk girlfriend, Rachel Howard, chasing him around the house, smashing things.

Emergency Services dispatched Toronto Police Services Constables Ben Caunter and Scott Rogers to the scene.

Mr. Iniguez appeared calm and sober.  His girlfriend, however, appeared highly intoxicated.  She was yelling, swearing and calling Mr. Iniguez names.

Iniguez didn’t want to press charges against her, he merely wanted the woman removed from his house.

She said she wanted to grab a change of clothes before leaving. She was permitted to return inside, unescorted by police, to grab her things. Police drove her to her friend’s home.

Constables Ben Caunter and Scott Rogers thought that was the end of it.

Then the woman called police to report her boyfriend had an illegal gun hidden in the house. Neither the dispatcher nor the two constables thought she was telling the truth. They all thought she was drunk, angry and trying to get back at Mr. Iniguez.

“Mr. Iniguez initially called the police; why would he do that if he knew he had a gun in his home?” testified Constable Caunter.

Both officers admitted it wasn’t until later, after thinking about how specific she was, they reconsidered and thought it could be possible she may be telling the truth.

They consulted with detectives. Together, they agreed there wasn’t enough information for a search warrant.

[16]           …  Thus, at 6:51 a.m., the officers decided to go back to Mr. Iniguez’s home to investigate.  They were nine minutes away from when they were supposed to be off-shift.

Just in case Ms. Howard wasn’t lying, they testified.

However, with no grounds for a search warrant and no exigent circumstances, the only way they could search his home was if Mr. Iniguez consented.

[18]           The Toronto Police Service has a form that they often have people sign when they conduct a consent search. The form notes that the person who is consenting to the search can contact a lawyer and that they have the right to refuse the search.  The officers, however, did not take the Consent to Search form with them when they returned to Mr. Iniguez’s home to investigate whether he had a gun.

The Mr. Iniguez’ testimony about what happened next differs drastically from the testimony of the two officers.

Both officers testified Mr. Iniguez verbally consented to the search. Mr. Iniguez says he did not consent and police became violent, restrained him and searched his home illegally.

The search revealed a Norinco sub-machine gun (a Prohibited Firearm), seven magazines capable of holding more than 10 rounds of ammunition (Prohibited Devices) and a single round of ammunition. All items were located where Ms. Howard said they would be found.

Elvis Iniguez was arrested and the firearm, magazines and ammunition were seized as evidence. He was also charged with the following criminal offences:

• possession of a prohibited device (seven counts);
• possession of a prohibited firearm;
• careless storage of a firearm;
• careless storage of ammunition;

Elvis Iniguez did not have a Firearm Possession and Acquisition Licence. Even if he did, he was not old enough to qualify for the Prohibited Firearm designation. He did not possess the firearm legally, nor did he come into possession of it legally.

Notably, neither officer did not explain his rights to Mr. Iniguez.

[25]           The officers did not tell Mr. Iniguez that he could refuse the search.  Nor did they tell him he could speak to a lawyer, or the potential jeopardy he might be facing.  Officer Rogers testified that it did not cross his mind to tell Mr. Iniguez that he could refuse the search.  He said he did not think of it, as Mr. Iniguez was very cooperative, and his demeanor did not give him any reason to believe that Mr. Iniguez was “refusing” the search.

[26]           Officer Caunter also said it did not cross his mind to tell Mr. Iniguez that he could say no to the search as he thought that Ms. Howard was not being truthful.  When asked if he thought it was necessary to tell Mr. Iniguez about his rights and any jeopardy he may face, Officer Caunter responded, no, based on the fact that he did not believe that there would be any jeopardy to Mr. Iniguez. Officer Caunter testified that he thought they would simply “check” and then he would be “going home.”

During his trial, Mr. Iniguez challenged the constitutionality of the search.

Crown prosecutor Jim Cruess did what Crown prosecutors almost always do. He argued the search was fully compliant with the Charter and, even if it wasn’t, the illegality of the search was irrelevant because the officers were acting in good faith.

In other words, the officers’ intentions outranked Mr. Iniguez’ Charter right to be safe from unreasonable searches and seizures.

Justice McArthur didn’t bite. Charter rights are more important than a police officer’s intentions.

[3]               I find that the evidence must be excluded.  The officers searched Mr. Iniguez’s home without his informed consent and failed to advise him of his right to counsel immediately upon detention.  The officers did not breach Mr. Iniguez’s rights because they thought he was guilty and were over-zealous in their pursuit of evidence.  Rather, they did not believe that they would find any evidence and they were anxious to end their night-shift and go home.  As a result, they took a shortcut with Mr. Iniguez’s constitutional rights as a matter of convenience. But for the fact that the officers found evidence, the violation of Mr. Iniguez’s Charter rights would have gone unidentified and unredressed.  In my view, the long-term interests of the administration of justice would be significantly undermined if the evidence was admitted.

Key Passages From the Decision

[69]           The Crown bears the onus.  The police failed to tell Mr. Iniguez that he could say no to the search.  The police repeatedly asked Mr. Iniguez about the gun. They did not take his no for an answer.  They told him it was a serious matter, a matter of public safety and that it was in everyone’s interest that they “take a look.”  Given the entire context, even if Mr. Iniguez was not detained, in my view this is one of the “many cases” where the police failure to inform that the search could be refused, means that the Crown cannot establish its onus.  The Crown has failed to establish on a balance of probabilities that Mr. Iniguez knew he could refuse to allow the officers to search for the gun.

[70]           Thus, the Crown has failed to establish that the police had a lawful basis to search Mr. Iniguez’s home.  As a result, the search was unreasonable and violated Mr. Iniguez’s Charter s. 8 right.

[79]           If the officers’ initial belief that no gun would be found had been correct, this would have been one of the situations adverted to in Grant:  no one would have ever learned that the officers violated Mr. Iniguez’s rights.  In my view, that is what the officers were counting on.  They did not think they had to tell Mr. Iniguez about his rights because they did not believe that Mr. Iniguez would actually face any jeopardy.  In my view, this places the actions of the police at the more serious end of the spectrum.

[80]           This factor strongly favours exclusion.

[82]           The police then searched Mr. Iniguez’s home without his informed consent.  The impact of this breach on Mr. Iniguez’s Charter-protected interests was significant, as Mr. Iniguez had a high expectation of privacy in his home.

[83]           This factor strongly favours exclusion.

[96]           In my view, looking at all of the circumstances, a proper balancing of the Grant factors leads to the conclusion that admission of the evidence would bring the administration of justice into disrepute.  Exclusion of the evidence is required in order to adequately disassociate the justice system from the police misconduct in this case and to reinforce the importance of the rule of law and individual rights.

[97]           The police violated Mr. Iniguez’s rights pursuant to ss. 8 and 10(b) of the Charter.  The officers did not believe that they would uncover any evidence, and they wanted to end their night-shift and go home. As result, they took a shortcut with Mr. Iniguez’s constitutional rights. But for the fact that the officers found evidence, the Charter violations in this case would likely never have been discovered.

[98]           The admission of the evidence in these circumstances would bring the administration of justice into disrepute.  As a result, the evidence is excluded pursuant to s. 24(2) of the Charter.

Justice Heather McArthur

Date: January 31, 2020