ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-AND-
DWIGHT WISDOM AND JULIETA GONZALES-SANTONJA
Before Justice T. Lipson
Reasons released on February 3, 2012
Ms. B. Olesko for the Crown
Mr. R. Posner for the applicant Dwight Wisdom
Ms. J. Goldenberg for the applicant Julieta Gonzales- Santonja
Lipson J.:
RULING ON CHARTER APPLICATION
1The applicants, Dwight Wisdom and Julieta Gonzales-Santonja, pleaded not guilty to charges of unauthorized possession of a firearm, possession of a restricted firearm with ammunition, careless storage of a firearm, possession of a firearm obtained by the commission of an offence, careless storage of ammunition, unauthorized possession of a prohibited device, possession of proceeds of crime, possession for the purpose of trafficking cocaine and marijuana and three counts of trafficking cocaine.
2Police officers searched the applicants’ residence at apartment 303, 37 Durnford Road, Scarborough. The search warrant authorized a search of “a dwelling unit located at 37 Durnford Road” but did not specify any apartment number. Inside the apartment, the officers seized a loaded firearm, ammunition, crack cocaine and marijuana. Mr. Wisdom and Ms. Gonzales seek an order directing a stay of proceedings pursuant to section 24(1) of the Charter on the basis that their rights guaranteed by sections 7 and 8 were violated. In the alternative, they submit that the evidence obtained as a result of the search of their apartment should be excluded pursuant to section 24(2) of the Charter.
Overview of the evidence on the application
3On Tuesday, February 8, 2011, members of the Toronto Police Services East Drug Squad commenced surveillance of Dwight Wisdom. The impetus for this operation was information from a confidential source that Wisdom was trafficking in cocaine. The surveillance continued for three days until Wisdom and his girlfriend Ms. Gonzales were arrested on February 10, 2011. The court heard evidence that during the surveillance period, Wisdom conducted four “hand to hand” drug transactions. He used a black Chevrolet Impala for three of the transactions and was on foot for the other. Immediately prior to every transaction Wisdom was seen leaving the apartment building at 37 Durnford Road. None of the officers conducting the surveillance saw any drugs being exchanged nor did they obtain confirmatory evidence that these were, in fact, drug transactions.
4The last observed hand to hand transaction took place around 2:15 p.m. on February 10, 2011. Ms. Gonzales was driving the Impala and Wisdom occupied the front passenger seat. The Impala parked near a low-rise apartment complex on Ling Road in Toronto. A man approached the front passenger side of the car and put his hand through the open passenger window, handing something to Wisdom who then handed something to the man. The man then walked back to the complex. Police continued to follow Gonzales and Wisdom for the next thirty six minutes. During that time the Impala was driving in an increasingly erratic manner. It travelled on both quiet residential streets and busy roadways. It made some u-turns and went through two gas station parking lots without stopping. D.C. Spencer, the “road boss” in charge of the investigation, determined that the applicants were engaging in “counter-surveillance” and that his team’s cover had been compromised. He ordered a takedown of the Impala. At 2:56 p.m. the applicants were apprehended by the police as their car was waiting at a red light to exit the off-ramp of the 401 Highway at Meadowvale Road and arrested for trafficking in cocaine. D.C. Wallace observed what he thought to be a small unpackaged piece of crack cocaine on the front passenger seat. The piece weighed 0.01 grams but would later test negative for cocaine. There were also two cell phones located beside the front passenger seat.
5At approximately 3:07 p.m. police obtained a key from Ms. Gonzales for apartment 303 at 37 Durnford Road. D.C. Spencer determined that there existed exigent circumstances which necessitated the police to freeze and secure the premises pending the issuance of a search warrant. D.C. Spencer, Detective Sergeant Shanks and D.C. Douglas left the arrest scene in order to secure the apartment. They entered at 3:22 p.m. They remained in the apartment for eight minutes before leaving to await the arrival of a search warrant.
6D.C. Spencer testified that during this warrantless entry he observed in plain view on the kitchen table a bullet and in the kitchen some cooking utensils with what appeared to be cocaine residue and a digital scale.
7In the meantime, D.C. Warrener was back at the police division preparing the information to obtain (ITO) a search warrant. In the ITO he included information that the police had received from the confidential informant, details about the surveillance team’s observations of the alleged hand to hand transactions, the discovery of the alleged crack cocaine on the car seat at the time of arrest and the observations made by D.C. Spencer during the warrantless entry of the cooking utensils with cocaine residue, the digital scales and the bullet in the apartment.
8At 6:20 p.m. on February 10, 2011 a justice of the peace issued a telewarrant to search “a dwelling unit located at 30 Durnford Road”. Officers located a loaded 45 calibre semi-automatic handgun in a bedroom closet as well as ammunition, a quantity of crack cocaine and marijuana as well as approximately $8000 in cash.
9Dwight Wisdom testified that following his arrest, officers searched the Impala. He recalled that D.C. Wallace said he located a speck of unpackaged crack cocaine on the front passenger seat. Wisdom testified that there was no crack cocaine on the seat. He admitted that he had stored a handgun in his bedroom closet as well as a bag of bullets in a dresser. Wisdom said that he didn’t know the gun was loaded. He had just received the gun the night before the search and was planning to sell it the next day. He asserted that there were no bullets on the kitchen table or in Ms. Gonzales’ gym bag as the police claimed and that there were no drugs in plain view. He said that he stored his supply of cocaine on top of the stove in a cupboard and that the marijuana was in a closet drawer. Wisdom took issue with the surveillance officers’ observations. He claimed that he never conducts his drug deals in plain sight. The first observed hand to hand transaction on February 8 was conducted inside the Impala and not through the driver’s side window. The first transaction on February 9 was not a drug deal but involved the purchase of some Pro-Line lottery tickets. The second transaction on February 9 took place inside the Impala and involved Wisdom buying some marijuana from a friend. The fourth alleged transaction which took place on February 10 involved a discussion with someone about the purchase of drugs but no money or drugs were ever exchanged.
The section 8 Charter application
Did the warrantless entry prior to the issuance of the search warrant constitute a breach of section 8?
10The Crown submits that the purpose of the warrantless entry of the applicants’ apartment by the police was to secure the premises and to prevent the destruction of evidence. Thirty six minutes elapsed between the last alleged hand to hand transaction and the arrest. During that time the Impala was travelling in a manner which caused the officers to suspect that Wisdom and Gonzalez realized they were being followed. The takedown took place on the off ramp of Highway 401 by Meadowvale Road. There were two cellular phones in the Impala. The Crown submits that because of the high volume of traffic at the arrest scene and the public visibility of Mr. Wisdom who, according to D.C. Spencer, was well known in the area, exigent circumstances existed to justify an unauthorized entry into the applicants’ apartment to freeze and secure the residence pending the issuance and receipt of the search warrant. The Crown relies on section 11(7) of the Controlled Drugs and Substances Act (CDSA) which permits a peace officer to search and seize evidence without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain one. The Crown submits that the officers acted lawfully pursuant to that authority.
11The applicants submit that the Crown has not demonstrated that exigent circumstances existed to justify the warrantless search. Further, it is submitted that the officers did more than simply “freeze’ the apartment as they claimed but also engaged in an unauthorized search of the apartment and this constituted a serious breach of the applicants’ section 8 Charter right. It is submitted that no artificial line should be drawn between the entry into the home of the applicants and the subsequent seizure of the gun, ammunition and drugs pursuant to a search warrant because the two actions were intertwined in time and in their nature.
12While the CDSA does not define "exigent circumstances", the Criminal Code does provide some reference as to what might be included as an exigent circumstance:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
13In R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 the Supreme Court of Canada examined when exigent circumstances might exist so as to authorize a search or seizure without warrant. The court noted at para 32 that "[e]xigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed." In R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, Cory J. for the majority agreed that the question as to whether exigent circumstances have been made out should be determined on a case-by-case basis.
14In R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260 (B.C.C.A.), police officers entered an accused's dwelling without a warrant, looked around to ensure no one was present and then waited outside until the warrant arrived. The accused had just been arrested in the underground parking lot of the building in which he was living and police believed that the accused's girlfriend had witnessed the arrest and was in a position to destroy evidence. The court held as follows, at para. 17:
There remains only one question to be answered in determining whether there was a breach of the appellant's s. 8 rights. Does this search fit within the allowance for warrantless searches under s. 11 of the Controlled Drug and Substances Act? To fall within the authorizing legislation, section 11(7) of the Controlled Drugs and Substances Act, two conditions must be satisfied, the conditions ordinarily required to obtain a search warrant must be present, and exigent circumstances must exist which make it impracticable to obtain a search warrant.
15In examining the circumstances of the warrantless entry the court stated that the "existence of exigent circumstances involves the subjective belief of the police, and the objective basis for the belief." On the facts in McCormack, the court held that it was reasonable for the police to believe that evidence could be destroyed. See also R. v. Castro, 2001 BCCA 507, 157 C.C.C. (3d) 255, application for leave to appeal dismissed [2001] S.C.C.A. No. 533, where the Court found on the facts that there was a "real risk" that the accused could have been tipped off by an acquaintance (para. 49). See especially R. v. Damianakos (1997), 1997 4334 (MB CA), 121 C.C.C. (3d) 293 (Man. C.A.) where the fact that a highly visible public "take down" of two individuals who had just left the accused's premises and police concerns that the accused might be "tipped off" did not constitute exigent circumstances so as to justify a warrantless entry into the dwelling.
16In the recent decision of R. v. Kelsy 2011 ONCA 605 (Ont. C.A.), the court considered the exigent circumstance doctrine. Rosenberg J.A. observed at para. 35 that it is the nature of the exigent circumstances that make some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are “extraordinary and should be invoked to justify violation of a person’s privacy only where necessary”.
17Assuming that the police had reasonable grounds to obtain a warrant, I am of the view that the Crown has not established that exigent circumstances existed to justify the warrantless entry in this case. While there was a basis for the officers to suspect that their cover had been compromised in light of the evasive driving, there is no evidence that either Wisdom or Gonzales had done anything to alert others to remove or destroy any items in their residence. The police had no information that anyone was attempting to remove or destroy items at the residence. The mere presence of cell phones in the Impala is not evidence that the applicants called anyone to remove or destroy items at the residence. During the entire surveillance of the applicants, no one other than Wisdom and Gonzales was seen entering or leaving the building at 37 Durnford Road. The police had no information that others had access to the applicants’ apartment. The presence at the scene of the arrest of random motorists who happened to be stalled at the off ramp at the time due to the takedown did not create exigent circumstances to justify a warrantless entry. The Crown did not lead evidence of the proximity of the residence to the arrest scene except that it took the officers some fifteen minutes to drive from the scene of the arrest to 37 Durnford Road. Nor did the police attempt less intrusive measures to secure the residence such as simply guarding the apartment and building exits before deciding that it was necessary to make the entry pending receipt of the search warrant.
18Even if exigent circumstances did exist, it seems to me that they arose solely out of the manner in which the police chose to structure their operation. Further, I cannot dismiss the suggestion made by the applicants that the location and manner of the takedown was likely a tactic to lay the foundation for the warrantless entry.
19The case law in this area is summarized by Hill J. in R.v.N.M 2007 3157 as follows:
As a general rule, the existence of exigent circumstances cannot be justified on the basis of the police operationally causing an emergency. In other words, as observed in R. v. Burlingham 1993 6884 (BC CA), (1993), 85 C.C.C. (3d) 343 (S.C.C.) at 407, exigency cannot be justified where “the police created an artificial situation of urgency”. Similarly, in Silveira, at para. 69, 85, 91 and 94, La Forest J. (in dissent) noted that but for the way in which the police “chose to sequence their actions” leading to “police-created exigencies” the urgency would not have arisen and, in acting as they did, the officers “created their own exigent circumstances and should not be permitted to use them as a justification for circumventing the law”. Otherwise, observed La Forest J. at para. 84, this approach to exigent circumstances “would give the police little incentive to acquire a warrant in advance”. Other authorities too recognize that circumstances described as exigent, and therefore purportedly supportive of exceptional warrantless police activity, ought not to be contrived or unreasonably the product of police actions: R. v. Greffe 1990 143 (SCC), (1990), 55 C.C.C. (3d) 161 (S.C.C.) at 192 (no “immediate necessity” to conduct search to prevent loss of evidence); Caslake, at 108 citing Doherty J., as he then was, in R. v. Lim (No. 2) reflex, (1990), 1 C.R.R. (2d) 136 (Ont. H.C.) at 146 (re considering the “police motives” for the timing of the search); Bohn, at 332 (“The reason to hurry the search along was created by the decision of the police to go ahead that night, rather than wait until the next day”.); R. v. Damianakus 1997 4334 (MB CA), (1998), 121 C.C.C. (3d) 293 (Man. C.A.) at 304-5.
20The police followed the Impala for over half an hour as it travelled in a seemingly aimless manner. D.C. Spencer, the “road boss” of the police team, testified that Ms. Gonzales was driving on several different streets, making u-turns, changing directions, and driving through gas station lots without stopping. Well before ordering the take down, Spencer suspected that the applicants were engaged in counter surveillance. As he and his team followed the Impala, he determined that “they might possibly be getting ‘hinky’, you know suspicious or perhaps notice that we were following…. Rather than lose the target due to the driving, I made the executive decision to arrest both parties.” D.C. Spencer acknowledged that he could have ordered the takedown sooner and on other roadways with far less volume than the off-ramp of the 401 at Meadowvale. When asked about his decision to freeze the applicants’ apartment until the search warrant was prepared, D.C. Spencer explained that there was a high volume of traffic at the takedown location and Mr. Wisdom was “well-known” in the area. He testified “You never know in regards to the circumstances when taking down an individual whether, (a) because it takes a couple of seconds, whether he is on the phone. I don’t recall him being on the phone but, (b) he could press dial at the time we were coming up –making our way to the car and just giving a heads up, so to say, and due to the high velocity of traffic and the circumstances we just wanted to ensure no destruction of evidence at the residence.” In my view, this type of speculation about the possible destruction of evidence falls well short of what is required to establish exigent circumstances for a warrantless search.
21D.C. Spencer, D. C. Douglas and Detective Sergeant Shank participated in the warrantless entry. The officers testified that their purpose in doing so was to “freeze” the apartment. In the ITO at para. 53, the affiant asserted that the “surveillance team has secured the address at 37 Durnford Road and had not searched pending this search warrant information.” However, the evidence in this application tends to establish that the officers probably conducted a search.
22The three officers were in the applicants’ small two bedroom apartment for eight minutes from 3:22 p.m. to 3:30 p.m. In cross examination, D.C. Spencer agreed that it took very little time, perhaps a minute or less, for the officers to determine that no one was in the apartment. Instead of leaving the apartment to await the warrant, all three officers remained inside for at least six minutes. In cross examination D.C. Spencer claimed that during this period of time he was making phone calls to other officers at the arrest scene and at the police division. The Crown and defence then obtained D.C. Spencer’s cell phone records which show that no phone calls were made during the time he and the other officers were in the apartment. When recalled to the witness stand, Spencer suggested that his watch must have been running several minutes fast. That explanation is implausible, given that this experienced drug squad officer was not only in charge of the team but also responsible for recording times during this part of the investigation. There is no issue that the officers spent a significant period of time in the apartment and I am driven to conclude that they took the opportunity to have a good look about the place to determine if there were was evidence to seize once the warrant arrived.
23There is another troubling aspect relating to D.C. Spencer’s account of the warrantless entry. He testified that he observed “in plain view” a bullet on the kitchen table as well as cooking utensils with what appeared to be cocaine residue on them as well as a digital scale. Strangely, D.C. Douglas and Detective Sergeant Shank neither observed nor heard about these very significant findings nor did they make any note of what Spencer said he observed. The information about the cooking utensils with cocaine residue and the digital scale was conveyed by Spencer to D.C. Warrener at the station for inclusion in the ITO. The difficulty with Spencer’s evidence is that it was D.C. Douglas who seized those items after the search warrant was issued. And those items, according to Douglas, were not in plain view but stored in a kitchen cupboard above the stove in a “Superman” bag along with some zip lock bags of marijuana. I accept the evidence of Douglas that he seized the scale and utensils from the cupboard. I am driven to conclude that Spencer must have come across these items because he was conducting a search of the kitchen cupboards during the warrantless entry, contrary to the assertion in the ITO that no search was conducted during the warrantless entry.
24The defence suggested that the three officers took the opportunity to search the apartment during the warrantless entry to bolster their grounds for obtaining a warrant or even to determine whether it was worth their effort to apply for a search warrant. Neither suggestion can, in my view, be dismissed. In any event, I am satisfied that the entry was made not simply to secure the residence but also for the purpose of finding evidence to confirm that Wisdom was involved in trafficking cocaine.
25This warrantless entry and search was not authorized by law and infringed the applicants’ section 8 rights.
Could a search warrant have properly issued?
26In a section 8 Charter application, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issued the warrant. The governing principles were summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99:
A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley 1993 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.
27The existence of fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence or the omission of facts material to the exercise of discretion to issue a warrant are all relevant to the review of a warrant and relate to whether there continues to be any basis for the decision of the authorizing judge.
28In determining the sufficiency of the warrant, I propose to first address the offending portions of the ITO which should be excised for the purpose of this review.
29The first portion of the ITO which must be excised relates to the information obtained from the confidential informant
30The ITO states that in 2011, the confidential source purchased crack cocaine from Wisdom. This information provided the impetus for the drug squad officers to conduct surveillance on the applicant between February 8 -10. The confidential source also provided information that Wisdom was dealing “large quantities of crack cocaine”. All of the information in the ITO that may have related to the reliability of the informant was redacted by the Crown and cannot be considered by this court. The only reference to the informant’s alleged reliability is found at page 20 of the ITO which states, “The confidential source has been proven reliable in this instance to the affiant as several items of information have been corroborated throughout the investigation.” The redacted ITO does not disclose those items of corroborated information. Crown counsel did not ask the court to consider the unredacted version. Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent to the reviewing court to assess in light of the totality of all the circumstances: Garafoli at pp 1456-1457. The redacted version of the ITO does not contain any indicia of reliability about the confidential informant or the information offered. Therefore the assertions that the accused sold the informant crack cocaine and dealt in large quantities cannot be considered as support for the issuance of the warrant.
31Another problematic portion relates to the alleged “quantity of unpackaged crack cocaine” found on the front seat of the Impala. This item did not test for crack cocaine and must be excised from the ITO.
32Then there is the reference in the ITO to the bullet, the cooking utensils with cocaine residue and the digital scales all said to have been observed by D.C. Spencer during the warrantless entry. The alleged cocaine residue on the utensils did not test for cocaine. Second, as found earlier in these reasons, all of this information was obtained in the course of an unconstitutional search and cannot be used to uphold the issuance of the warrant.
33After excising the incorrect, misleading and unconstitutionally obtained information, what properly remains in the ITO for consideration is Wisdom’s criminal record and the information concerning the alleged hand to hand transactions.
34Mr. Wisdom has a lengthy criminal record for drug trafficking and firearm offences. He has also been convicted of the commission of an offence for a criminal organization. His most recent conviction was in February 2010 for trafficking in cocaine. Evidence of an investigative target’s criminal past is often relevant and can be included to show his propensity to commit the sort of crime being investigated. This can assist in demonstrating reasonable grounds to believe that the offence under investigation has been committed and the target is involved: R. v. Debot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.) at pp. 220-221 affirmed (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.); R. v. Storrey (1990), 1990 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) at pp. 319, 324.
35The evidence of the unconfirmed hand to hand transactions also supports the position of the Crown that there were reasonable grounds to believe that Wisdom was engaging in drug trafficking. The quantity and nature of the drug involved in these apparent hand to hand transactions are not known. In the ITO, the affiant pointed to Wisdom’s behaviour of repeatedly going under the driver’s seat and the use of the Impala for the purpose of conducting the hand to hand transactions. He wrote; “It is common ground for drug traffickers to hide narcotics inside their vehicle in natural voids or specially prepared hidden compartments. The affiant has been involved in investigations where this occurred.” I am satisfied that the ITO established reasonable grounds to search the Impala, quite apart from any search incidental to arrest.
36The real issue is whether there were reasonable grounds to believe that drugs and/or other evidence of drug trafficking were in the applicants’ apartment. In the ITO, the affiant based his belief upon the plain-view observations of D.C. Spencer during the warrantless entry and, specifically, at paragraph 55(d) “that during the securing of 37 Durnford Road, revealed evidence in plain evidence (sic) of the preparation of powder cocaine to crack cocaine. This would indicate that Wisdom received bulk quantities of powder cocaine and makes his own crack cocaine to maximize profit”. Had this important evidence been constitutionally obtained and not excised from the ITO, I am of the view that there would have been reasonable grounds to search the apartment. However, for the reasons given earlier, that evidence cannot be used to uphold the warrant.
37The Crown submits that there is a sufficient nexus between the apartment and the hand to hand transactions to establish reasonable grounds to believe that drugs would be found in Wisdom’s residence. Immediately prior to each transaction, Wisdom was seen leaving 37 Durnford. On one occasion he walked across the street to conduct a hand to hand transaction in a strip mall parking lot. On the remaining occasions, he left the building, got into the Impala and drove to a location to conduct what were believed to be hand to hand transactions. Since Wisdom had not stopped anywhere else along the way before these transactions, the Crown submits that it is reasonable to believe that he would have had the drugs on his person when he left the apartment.
38Support for the Crown’s position is found in R. v. Soto 2011 ONCA 828 (Ont. C.A.). In that case the police had reliable information that the accused was dealing cocaine. Officers also saw Soto leave his building, get into his car and engage in two apparent hand to hand transactions. In endorsing the trial judge’s decision to uphold the search warrant, MacPherson J.A. observed that this set of facts spoke to “an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows there is a good chance that there are drugs in his residence.”
39There are important features in this case which distinguish it from Soto. The most obvious is, of course, that in Soto, the officers did not engage in an unconstitutional search prior to the search warrant being issued. In Soto there was compelling and reliable information from a confidential informant that the accused was dealing “large amounts” of powder cocaine. The affiant also swore that, in his experience dealers, like the accused, need a “safe house’ to store their product and that Soto’s residence was that safe house. That kind of information provided strong support for a reasonable belief that drugs would be located in Soto’s residence but, by contrast, is not found in the ITO used in this case.
40It should also be noted that in Soto, the ITO contained reliable evidence that the accused actually resided at the location to be searched. Here the ITO does not establish a sufficient nexus between Wisdom and the apartment that was to be searched. There is some evidence that Wisdom and Gonzales were in a relationship. They worked out together at a gym. They were observed entering and leaving 37 Durnford together and rode in the same car. Mr. Wisdom had a key to the apartment building. The ITO states that the tenant directory lists Ms. Gonzales as residing in apartment 303. In fact, the tenant directory did not list Ms. Gonzales’ apartment number. Ms. Gonzales was once seen at the window of what officers thought was apartment 303 throwing down a plastic bag to Mr. Wisdom on February 9. From this observation, the officers believed that she resided in apartment 303. The only reliable evidence that Wisdom also lived in apartment 303 came when the officers conducted an unconstitutional search prior to the warrant being issued. The ITO did not contain information as to whether Wisdom lived with Ms. Gonzales or happened to be an occasional visitor.
41The general governing principle for this review was expressed by Blair J.A. in R. v. Nguyen 2011 ONCA 465 at para 57 as follows:
“...the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.
42After excising the offending portions of the ITO, I am of the view there is an insufficient basis upon which the justice could have issued the warrant. This is not the kind of case involving an ITO that is flawed by minor, careless or confusing statements not intended to mislead the issuing justice. The most compelling reason found in the ITO to believe that drugs were in the applicants’ apartment must have been the information from D.C. Spencer of the suspected cocaine residue, drug paraphernalia and the bullet during the course of an unconstitutional search on the part of the police prior to the issuance of the search warrant. The ITO was misleading in two crucial ways- that the warrantless entry was based on legitimate exigent circumstances and also that the officers did not engage in a search of the apartment while waiting for the warrant. Had the issuing justice known the facts as disclosed by the evidence in this application, the search warrant could not have properly issued.
43Even if it could be said that the ITO itself provided reasonable grounds for the warrant to issue, there can, in my view, be no artificial division drawn between the unlawful entry into the apartment by the police and the subsequent search pursuant to the warrant. As put by Cory J, in Silveira at para. 140:
The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them in order to claim that, although the initial entry was improper, the subsequent search was valid.
Does the failure to specify the applicants’ apartment in the search warrant invalidate the warrant?
44Exhibit 13 is the telewarrant used in this case. This warrant only authorized a search of “a dwelling unit located at 37 Durnford Road, City of Toronto, Province of Ontario”. The address at 37 Durnford Road is an apartment building. The warrant fails to specifically authorize a search of apartment 303 which is where the applicants resided.
45The learned authors of The Law of Search and Seizure (8th ed.) point out at p.87 that “the search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself...Vagueness in the description of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises and remedial consequences under the Canadian Charter of Rights and Freedoms”. The authors cite Re McAvoy (1971), 1970 1132 (NWT TC), 12 C.R.N.S. 56 (N.W.T. Terr. Ct) where Morrow J. stated at p.65, “To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant...fails to accurately describe the premises to be searched...then it will be invalid.”
46In R. v. Parent (1989) Y.J. No. 15 (Y.T.C.A.) the face of the warrant did not contain the address to be searched. This warrant in question was held to be invalid due to this defect. As a warrantless search, the search was unreasonable within the meaning of section 8 of the Charter. Locke J.A. stated the following:
However, the learned trial judge excused the omission on the basis of the fact that the justice of the peace was not misled, that the search had been made at the dwelling described in the Information, that no one was present in the house, and that the whole amounted to a mere defect in form which had no impact and made no difference to the outcome. With respect, the validity of the warrant is not to be tested either by the results or manner of execution, but by the circumstances at the time of authorisation. It is true that the justice's mind was directed to the premises but the failure to express it on the face of the warrant, and thus to justify a blanket search surely cannot be placed in the same category as an inconsequential defect in form, or a misspelling or trivial error in the description of premises, which errors, (in the eyes of the Court of Criminal Appeal at least) would not necessarily invalidate a warrant. Regina v. Atkinson, [1976] Criminal Law Review 307.
The Crown conceded that there was a serious defect on the face of the warrant. I find without difficulty that this is an invalid warrant: it was in a form not authorised by law, offending in a major way against the law of the land. It is not a mere matter of a procedural defect, but so fundamental as to render the document of no legal effect. The Queen v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at 278, Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486 at 512. (And see also the discussion in the Supreme Court of Canada in Genest v. The Queen Jan. 26, 1989 unreported.)
47The Crown fairly concedes that the search warrant is invalid because it did not specifically authorize the police to search the applicants’ apartment. Because what took place amounted to a warrantless search, it was unreasonable within the meaning of section 8 of the Charter.
48In summary, I am persuaded that the section 8 right of the applicants to be secure against unreasonable search and seizure was violated in three ways:
The first entry and search prior to the issuance of the warrant lacked exigent circumstances and was not justified in law.
There was an absence of reasonable grounds to justify the issuance of a search warrant for the apartment.
The search warrant was facially invalid because it did not specifically authorize a search of the applicants’ residence.
The section 7 Charter application
49Before moving to the appropriate remedy for the section 8 breach in this case, I propose to address the section 7 Charter application. Counsel for the applicants applied for a stay of proceedings pursuant to section 24(1) of the Charter on the basis of an alleged section 7 breach. It was submitted that the police fabricated evidence in order to obtain a search warrant. This argument is based largely on Mr. Wisdom’s testimony on the application. He claimed that he never engaged in the hand to hand transactions in the manner described by the surveillance officers. Mr. Wisdom also claimed that D.C. Spencer fabricated evidence that there was a bullet and drug paraphernalia on the kitchen table or that there was a bullet in Ms. Gonzales’ gym bag. Mr. Wisdom denied that there was anything resembling crack cocaine on the front seat of the Impala at the time of the arrest.
50The court’s reasons for finding a section 8 breach are critical of important aspects of the police investigation and conduct in this case. This court doubts D.C. Spencer’s account of why he ordered the warrantless entry of 37 Durnford, as well as his testimony about what he saw and what he and his fellow officers did during that entry. However, there is no credible evidence to support an allegation that the officers engaged in inventing or planting the evidence that they seized in the car or the apartment. I am satisfied that D.C. Wallace did find something he believed to be crack cocaine on the front seat of the Impala. The information was communicated immediately to D.C. Warrener who was drafting the ITO. As well, the item was submitted for testing and it turned out not to be cocaine. Wisdom also admitted that there was a loaded firearm, ammunition and drugs in the apartment. As for the police observations of the “hand to hands”, Wisdom admitted that he was, in fact, selling, purchasing or discussing a drug deal in all but one of the incidents observed by the surveillance officers. Wisdom’s main dispute was only that he did not engage in any of these alleged transactions in plain view. While there is an obvious conflict between the evidence of the applicant and that of the officers on this point, there is no credible evidence that the police invented evidence that Wisdom was engaging in trafficking or that he had drugs and a gun in his apartment. By the applicant’s own admission, he was either selling or buying drugs in two of the alleged hand to hand transactions. Mr. Wisdom also admitted possession of the gun, ammunition and drugs.
51I am not persuaded that there was a section 7 Charter breach.
Should the evidence be excluded pursuant to section 24(2) of the Charter?
52The court has found that there were multiple breaches of the applicants’ section 8 Charter rights. Should the court exclude the evidence of the seized items pursuant to section 24(2)?
53The analytic framework for exclusion of evidence under s. 24(2) is set out in the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71 as follows:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.
The court's role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
1. The Seriousness of the Breach
54This first line of inquiry “requires the court to assess whether the admission of evidence would bring the administration of justice into disrepute by sending a message to the public that the courts…effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that the unlawful conduct”: Grant at para. 72. The majority in Grant explained that the court “must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute: Grant at paras. 73-74.
55The seriousness of the breaches is obvious. The officers engaged in a warrantless search of the applicants’ home not only to secure the residence but also, in my view, to find evidence in order to bolster their grounds for obtaining a search warrant. Their conduct was deliberate and demonstrated a wilful or reckless disregard of the applicants’ section 8 Charter rights. The breach is aggravated by what I have found to be misleading testimony from D.C. Spencer, the team’s road boss, that no search occurred prior to receipt of the warrant and that he observed the cooking utensils with cocaine residue and scales in plain view. As well, for the reasons given earlier, there were insufficient grounds to support the issuance of a search warrant for the applicants’ apartment. The issuance of an invalid search warrant must be placed on the serious end of that spectrum referred to in Grant. Finally, the search warrant itself, no doubt through inadvertence, did not authorize a search of the applicants’ apartment. This is, of course, a major defect on the face of the warrant. In executing an invalid search warrant which omits any mention of the apartment to be searched, the police acted in a highly careless manner which further aggravates the seriousness of the other section 8 breaches in this case.
2. The impact of the breach on the Charter-protected interests of the accused
56It is well established that a dwelling house attracts a high expectation of privacy and that an illegal search of a person’s home constitutes a significant breach of the person’s right to be free from unreasonable search and seizure: Silveira at para. 148. At para. 78 of Grant, the majority stated that an unreasonable search on an area “where the individual reasonably enjoys a high expectation of privacy…is more serious than one that does not.” The two illegal searches of the applicant’s home point strongly to exclusion of the evidence of the seized items.
3. Society’s interest in the adjudication of the case on its merits
57The police seized a loaded handgun and a sizeable quantity of cocaine. The charges are very serious. The evidence is reliable and probative. The seized items are central to proof of the charges against the applicants. All of these factors militate in favour of admitting the evidence. However, as the majority in Grant pointed out at para. 84:
…it is the long-term repute of the justice system that is s. 24(2)’s focus ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly were the penal stakes for the accused are high.
Balancing the Grant factors
58Cromwell J. recently pointed out in R. v. Cote 2011 SCC 46, [2011] S.C.J No. 46 (S.C.C.) that once there has been a determination on the first and second Grant factors that the Charter violation or violations were serious, the factors of the seriousness of the offence, the reliability of the evidence and the importance of the evidence to the Crown’s case are not determinative and should not lead to admission. Because of the very serious nature of the section 8 breaches and the impact on the applicants’ Charter protected interests, those factors in favour of admission do not, in my view, outweigh the significant harm to the long-term repute of the administration of justice were the seized items to be admitted. While the information to obtain targeted drugs, I appreciate that this is primarily a gun case and that Mr. Wisdom has a serious criminal record for drugs and firearms. But in the end, it is the Charter-infringing conduct by the police here from which the court should be most concerned about dissociating itself. The exclusion of the seized items is the only course open to the court in order to prevent the administration of justice from falling further into disrepute as a result of that conduct.
59For all of the above reasons the evidence of the items seized is excluded pursuant to section 24(2) of the Charter.
Released: February 3, 2012 Justice T. Lipson
