Court Information

Information No.: 12-11, 12-12

Ontario Court of Justice

Her Majesty the Queen

v.

William Hunt

Ruling on Voir Dire

Before the Honourable Justice P. Kowalyshyn

on August 6, 2013, at Chatham, Ontario

Appearances

• F. Creed – Counsel for the Crown
• G. Elliott – Counsel for William Hunt

Ruling

KOWALYSHYN, J. (Orally):

I am going to be using some subheadings as it relates to my ruling to assist me in keeping track of my comments, and it may also assist defence counsel and Crown.

Introduction

This is a ruling on a voir dire relating to an application brought by one of the accused, William Hunt, to exclude evidence obtained as a result of an alleged improper search and seizure.

The applicant seeks the following relief:

1. An order quashing the search warrant issued November 19, 2011;
2. A declaration that the applicant's rights pursuant to Section 8 of the Charter have been infringed;
3. An order excluding all evidence obtained as a result of the infringement of the applicant's rights pursuant to Section 24(2) of the Charter.

Background

The background of this application is as follows. On November 19, 2011, Justice of the Peace Malcolm Rogers issued a telewarrant pursuant to Section 158.1 of the Provincial Offences Act. The telewarrant allowed for the search of 27 Degge Street in Chatham, Ontario. This is the clubhouse for the Red Devils Motorcycle Club. The organization is said to be a "one percent" outlaw motorcycle gang or "OMG." Such OMGs have been recognized by Canadian courts as being involved in organized crime: See Brown v. Durham Regional Police, [1996] O.J. No. 1271 (OCJ).

The telewarrant was based upon the application sworn by Officer Eddie on November 19, 2011. The telewarrant was exercised by Officer Eddie and approximately eleven other police officers at 11:00 p.m. on November 19, 2011. A quantity of alcohol and money was seized. Charges were laid pursuant to Section 5(1) of the Liquor Licence Act against the following persons: William Robert Hunt, William Lee Roy Tennant, Richard Lalumiere, Richard Martin Glover, and Kenneth Boyle. The offence relates to keeping or offering liquor for sale and/or selling liquor without a licence or permit.

Position of the Accused

The application to exclude the evidence asserts a violation of Section 8 of the Charter of Rights and Freedoms; namely, an unreasonable search and seizure. Specifically, it is claimed that the telewarrant should not have been issued for a number of reasons:

1. The provisions of Section 158.1 of the Provincial Offences Act were not satisfied in that Constable Eddie did not demonstrate that it would have been impracticable for him to attend personally before a justice to make application for the warrant;
2. Constable Eddie failed to make "full and frank" disclosure of all material facts in his application for a telewarrant;
3. Constable Eddie made false or misleading statements in his application;
4. There was insufficient information in the application upon which a telewarrant could be issued;
5. The application for a telewarrant was not properly sworn.

The application to exclude evidence under Section 8 is also being advanced on the basis of the manner of the search in that there was an inordinately large number of police officers involved, and that excessive force was used.

Position of the Crown

The Crown takes the position that all of the requirements of Section 158.1 of the Provincial Offences Act had been met when Justice Rogers issued the telewarrant. It disputes the grounds put forward by the defence as reasons to quash the warrant. It argues that the telewarrant was properly issued. The Crown acknowledges that as many as 12 officers were involved in executing the warrant at 27 Degge Street, but states that under the circumstances, the force used was not excessive. It also disputes the allegation of there not being any prior warning given by the police at the time of entry. The Crown disputes that there was any Section 8 Charter breach. In the event that there was any such breach, it argues that the evidence should not be excluded under Section 24(2).

Standing: Reasonable Expectation of Privacy

A claim for relief under Section 24(2) of the Charter can only be advanced by the person whose Charter rights have been infringed. Section 8 protects an individual's reasonable expectation of privacy. It would, therefore, ordinarily be up to the accused person to establish that he had a privacy interest in the Degge Street clubhouse.

Although Crown counsel acknowledges that the subject premises is not a dwelling house, the right to be able to advance the claim was not objected to in the Crown's Form 2 response to the defence application or in its submissions. The Crown did, however, take the position that — I'm quoting here — "The expectation of privacy is somewhat reduced." This fact was also acknowledged by Mr. Elliott in his concluding comments.

Based on the evidence of Constable Eddie and the information contained in the Information to Obtain, as well as the submissions of counsel, I find that the defendant has standing to seek relief under the Charter. I say this having regard to the dicta contained in R. v. Edwards, [1996] 1 S.C.R. 128.

This leads me to consideration of the legal arguments advanced by Mr. Hunt.

Reviewing the Search Warrant

General Principles

Counsel for the Crown has correctly pointed out that my role as the reviewing judge is different from that of the authorizing justice. As a reviewing justice, I am to examine the material that was before the issuing justice as amplified on review to determine whether there was any basis for the order: R. v. Garofoli, [1990] 2 S.C.R. 1421 and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. This is because a search warrant, like other court orders, is presumptively valid. The onus is on the applicant to demonstrate that the warrant was invalid: R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (CA), Aff'd 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 45.

The purpose of the search warrant review is not to second-guess the issuing judge. The Court of Appeal for Ontario, in R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757, at para. 11, has stated that:

The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether, in the reviewing judge's opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked.

First of all, I will address the relevant provisions of the legislation, specifically Section 158.1 of the Provincial Offences Act. Pursuant to Section 158.1(1) of the Provincial Offences Act, a provincial offences officer may apply for a warrant by telecommunications, "if it would be impracticable to appear personally before a justice."

Pursuant to Section 158.1(4)(a), the information submitted to obtain the warrant must include, "a statement of the circumstances," that make it impracticable to personally appear before a justice.

I note that Section 158.1(4) refers to an officer not being able to appear before "A justice," and not in just the jurisdiction where the officer is employed or carries out his duties.

In paragraph one of the Information to Obtain, Constable Eddie stated that it was impracticable to appear personally before a justice because: "The provincial courthouse at 425 Grand Avenue West, Chatham, is presently closed and the justices are unavailable." The application for a telewarrant was dated November 19, 2011. It was faxed from Chatham. November 19, 2011 was a Saturday. The aforenoted statement by Constable Eddie is therefore an accurate one.

Defence counsel, however, submits that because Constable Eddie testified that he was actually in London for most of that Saturday (he was called to London at 9:50 a.m. and returned to Chatham after 6:00 p.m. but before 7:00 p.m.) and because he didn't check to see if a justice was available in London that day, that the warrant should be quashed. As he put it, he should have at least made attempts. In support of this argument, Mr. Elliott relies on the British Columbia Court of Appeal decision of R. v. Ling, [2009] B.C.J. No. 267.

I cannot agree with the defence submission on this point. The Ling decision can be easily distinguished. In that case, the police officer who applied for the telewarrant submitted his application late in the afternoon of October 15, 2004. He submitted it at 4:50 p.m. This was a Friday and not a weekend as is the case here.

Also, there was no evidence placed before me (as there was in the Ling case) that indicated that a telewarrant practice directive was issued by the chief justice of that province which is relevant to telewarrant application procedures in that jurisdiction. Also, I received no evidence that a justice was available in London on Saturday, November 19, 2011, at 6:58 p.m., which appears to be the time that the application for a telewarrant was faxed by Constable Eddie.

I am not aware of any obligation on the part of a requesting officer to have to arrange his affairs in such a manner that he has to make his application for a warrant — "tele" or otherwise — only during regular business hours, or at a particular time of the day — as suggested by defence counsel — so that the officer would not necessarily have to use the telewarrant process.

Additionally, although Constable Eddie had the bulk of his information and his evidence in support of the warrant available and "collected" or "assembled" by the time he went to London that morning, he did not secure the final piece of evidence in support of his application until he returned to Chatham after 6:00 p.m. that day. This was when he made his further and final observations of members of the Red Devils OMG entering the clubhouse at 27 Degge Street.

Accordingly, I find that it is irrelevant that he did not make inquiries as to the availability of a justice in London. Therefore, I do find that it was impracticable for Constable Eddie to appear personally before a justice. The provisions of Section 158.1 of the Provincial Offences Act were satisfied and the application to quash the warrant on this ground fails.

I will now address another of the defence arguments relating to the application by Constable Eddie to obtain a warrant by way of the telewarrant process.

Was the Application Properly Sworn

Defence counsel has raised the issue as to whether or not the application in support of the Information to Obtain was properly sworn. This relates in part to the fact that paragraph 37 of Constable Eddie's application was changed at some point during the faxing between the telewarrant centre and Constable Eddie. Constable Eddie explained that although paragraph 37 of the initial copy of the application stated that surveillance was conducted by Constable Eddie on "October" 19, 2011, that the subsequent replacement page he faxed down was amended in paragraph 37 to read "November" 19, 2011.

In reviewing the documentation in the defence application record it is apparent from the time/date stamp at the top of the pages that the initial application (19 pages in total) was faxed from Chatham at 18:58 p.m. on November 19, 2011. Constable Eddie confirmed this in his cross-examination. At 19:53 p.m., the telewarrant centre sent a one-page fax to Constable Eddie pointing out that paragraph 37 states a date of October 19, 2011, when in fact they were communicating on November 19, 2011, not October 19, 2011. Constable Eddie was asked if the October 19 date was correct. He responded that the correct date should be November 19th, and he wrote, "Sorry about that." He then only appeared to resubmit a revised or amended page two. According to the date stamp at the top of this page, this is sent at 19:45 p.m. The amended page is page two of two.

Accordingly, I can be left with no other conclusion than the application in its entirety was not re-sent. At the very least, I have some doubt that it was. If I have a doubt that the entire revised application was not resubmitted to the telewarrant office with the corrected date, it could logically follow that I might have a concern that the entire document was not re-sworn before it was reviewed by Justice of the Peace Rogers. If I make these findings the defence submits that Justice Rogers then would not have had any proper information before him about an event happening on the evening of November 19. Alternatively or additionally, the defence submits that Justice Rogers only had information (in paragraph 37) of an event taking place on October 19, 2011.

On another day and under other circumstances, I might have found some favour with these submissions; however, on this day, I do not. Firstly, Section 158.1(1) is permissive. It states that a provincial offences officer may submit an information on oath. Section 158.1(3), however, states that as an alternative to submitting an information on oath, a peace officer, "May, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief..."

That is what Constable Eddie did here. He made a statement. He was mistaken with the date. The date was corrected and re-sent to the justice of the peace. There is no obligation for the information to be re-sworn because it wasn't sworn to begin with. The information was sent in with Constable Eddie stating on the face of it that the contents of the application were true according to his knowledge or belief.

When contacted by Justice Rogers as to whether or not the date of October 19, 2011, as set out in paragraph 37, was correct, Constable Eddie replied that it wasn't, and he included a revised page with the correct date of November 19, 2011. That does not mean that when he initially completed the application, that he didn't believe it to be true. It was an error. An error that he corrected. Accordingly, I find the documentation submitted to be in compliance with Section 158.1(1) and (3).

The entire document did not need to be resubmitted when it was sent back to Justice Rogers.

I appreciate that the defence has also submitted that Constable Eddie identified the bundle of materials which includes the Information to Obtain showing an October 19, 2011 date in paragraph 37 as being a copy of the Information to Obtain which he sent to Newmarket in support of the warrant which was issued and marked as Exhibit Number 1. He argues that if this was the document that was before Justice Rogers, then Justice Rogers had no evidence before him about anything occurring on November 19, only on October 19, 2011.

Again, for reasons just stated, I cannot accept that. The warrant is presumed to be valid. Constable Eddie testified that he did send a new page with the correct date. He said — and I'm quoting from page 75 of the transcript:

Answer: So, after that occurs, after I send it, then there's communication back and forth. I believe, in this case, there was a date that was probably typed in wrong that was fixed and re-sent back to the justice of the peace. So, there was a number of communication back and forth.

The new date was November 19th, and the warrant was issued authorizing a search of the Degge Street property commencing that day.

For all of these reasons I find that Justice Rogers did have information about an event and the surveillance of the subject property on November 19, 2011 as set out in paragraph 37 of the application. I will have further comments about the contents of paragraph 37 of the application later in my analysis.

The Manner of the Search

Little attention was given to this issue by counsel in their submissions, and I believe rightly so. In short, Mr. Elliott points out the following: In the present instance, the warrant was obtained regarding a relatively minor offence. Approximately 12 police officers were involved. Most were wearing full assault team equipment. Upon arrival at the subject property, Officer Eddie observed approximately 15 people in the rear yard standing around a fire pit. They were drinking beer and it was fairly quiet, "other than the sounds of the crackling of the fire." Constable Eddie jumped the fence and ran to the back door of the clubhouse, and the police proceeded to gain entry to the backyard by using a chainsaw to cut through a section of the fence.

Mr. Elliott stated in his submissions that, "Either the aforementioned circumstances strike you as excessive, or they don't."

They don't.

In this case, the premises were well fortified; no windows and steel doors. The evidence was that in November 2010 the police had obtained a search warrant for the same property. A full squad of police including members of the CIRT team attended. Police also brought and used battering rams to punch a hole in a cement block wall. It was only after the battering ram was used that the police were granted entry through a door by one of the members inside.

I appreciate that on other occasions a phone call had the same effect, however, this occurrence took place just a year prior. Also, the inhabitants were — as far as the officers were concerned — members of a one percent outlaw motorcycle gang, meaning, in part, that the ordinary rules of society didn't apply to them. In short, and as Mr. Creed put it, they were, "outside the law."

The presence of guns or weapons in the clubhouse was not an unreasonable concern based on past police experience with this clubhouse. My view is that regardless of the nature of the alleged offence, the police were concerned of (a Liquor Licence Act matter) they took the precautions they believed necessary and used the amount of force they believed was necessary to execute the warrant. The police knew that they were not going to be dealing with members of the Vienna Boys Choir and they armed themselves and attended accordingly. I do not find that their heightened concerns were unfounded.

While I can agree that they may have come in a little heavy-handed on a Liquor Licence Act search, I do not find that the amount of force used was excessive. The Supreme Court of Canada decision in R. v. Genest, [1989] 1 S.C.R. 59, therefore, does not assist the accused in relation to his application. The ground of this application also fails.

Was Full and Frank Disclosure of all Facts Made in the Application; Were Misleading Statements Made; Was There Sufficient Evidence to Support the Issuance of a Warrant

In presenting an Information to Obtain, or an application, an affiant, or the preparer of that document, has the duty to make full and frank disclosure to the issuing justice. In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58, the Supreme Court of Canada said:

When seeking an ex parte authorization such as search warrant, a police officer — indeed, any informant — must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

In discharging the duty to be full and frank, the affiant must avoid stating conclusions and opinions not supported by reported facts and sources:

Any factual assertion by the applicant within the four corners of the affidavit must be sourced to some investigative resource. Otherwise, the applicant breaches what is sometimes referred to as the rule against narrative. It is insufficient for an applicant to simply state conclusions, opinions and facts without providing the court the source or origin for such conclusions, opinions or facts. The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves.

Reference there is Criminal Code (Re), [1997] O.J. Number 4393 (Gen. Div.) at para. 8.

Therefore the question to be answered is whether Justice Rogers, as the authorizing justice, was presented with sufficient, credible and reliable evidence to permit him to find reasonable and probable grounds to believe that an offence had been committed, and that evidence of that offence would be found at the specified time and place. In this regard, it will be necessary to consider if Constable Eddie discharged his duty to provide full and frank disclosure in the application. In answering this question I am simply determining if there is a proper basis for the decision to issue the warrant.

Defence counsel submits that because Constable Eddie failed to state in his application whether or not the Red Devil OMG members listed in paragraph 10 had criminal records, that this amounted to an absence of complete disclosure, and the type of picking and choosing of facts the British Columbia Court of Appeal warned against in R. v. Ling at paragraph 38. I disagree. While it may have proved interesting to the issuing justice, and would have provided additional information, I do not find the omission of same to be "material" when considered in a contextual setting.

Mr. Elliott also submits that Constable Eddie not only failed to state a material fact, but rather that he misstated a material fact. In that regard he points to paragraph four of the application where Constable Eddie stated that informant number two was a proven accurate informant who, "Provided information in the past and was motivated by a sense of civic duty." Constable Eddie testified, however, that it was in the past that informant number two had provided information out of a sense of civic duty. In this instance he was a paid informant. Constable Eddie testified that he forgot to include this information. He testified it was not deliberate.

The Crown therefore submits that this amounts to no more than a mistake and at most, an oversight made in good faith. The Crown does not see this as being significant when looked at along with everything else.

I agree. I do not find it misleading or inaccurate, as stated in the application. At most, it is incomplete and only possibly misleading. It was an error made in good faith. I do not find it to be fraudulent.

As the Supreme Court of Canada in R. v. Araujo noted:

The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process.

While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves. [Emphasis added.] (R. v. Morris, 1998 NSCA 229, 134 C.C.C (3d) 539, at p. 553)

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.

Having regard to these passages from Araujo, I see no reason to invalidate or quash the warrant based on the evidence before me. I just want to clarify: I'm talking about the evidence that I have reviewed thus far.

The defence has raised concerns about the contents of paragraphs 13 and 39 under the heading of "Full and Frank Disclosure." The concerns could also be raised under the heading Misleading Statements.

In paragraph 13 of Constable Eddie's application, Constable Eddie states that he has received a number of complaints over the past eight years regarding the property — the clubhouse — being used as an "After Hours Bar." In paragraph 39, Constable Eddie states that the Chatham-Kent Police have investigated a steady and continuous series of complaints in relation to same. Reading these paragraphs, the natural conclusion to draw is that members of the public have been contacting Constable Eddie and the Chatham-Kent Police about this after hours bar.

Constable Eddie amplified his evidence about these reports during cross-examination. He said, at page 67 beginning at line 17:

Question: So, these complaints have been coming in for the past eight years and there has been a steady stream of them, correct?

Answer: Yes.

Question: Okay. These — these — these are complaints by police officers or complaints by members of the public?

Answer: I have received information from either members of the public who wanted to remain anonymous or from officers advising that they investigated complaints or just officers reporting that events were going on that were loud in nature.

Constable Eddie was then asked if there would be an occurrence report each time somebody called or every time an officer investigated. He replied, at page 68, line 3:

Answer: There would most likely be an incident generated.

Question: Okay.

Answer: But, not necessarily. Sometimes officers will just forward information to the Intelligence Office and — and it's documented in a, basically, an intelligence file that more information was obtained.

Constable Eddie then confirmed to Mr. Elliott that if the only occurrence reports he received for the subject property totalled eight in number and that he (Mr. Elliott) obtained these reports from Constable Eddie through Mr. Creed, then that's all there were. I therefore share the defence concern with Constable Eddie's use of the phrase that the Chatham-Kent Police, "Have investigated a steady and continuous series of complaints regarding the operation of an after hours bar at 27 Degge Street, Chatham."

The occurrence reports are dated as follows (most recent to oldest): July 14, 2011; April 2, 2011; March 26, 2011; March 11, 2011; February 19, 2011; February 12, 2011; February 5, 2011; January 29, 2011. These reports only cover a period of six months. I find it very difficult to accept that if investigations began in 1986 into 27 Degge Street being used as an after hours bar, that there wouldn't be a single occurrence report until January 29, 2011. This is even accepting Constable Eddie's evidence that most likely but not necessarily, an incident report or occurrence summary would be generated. In fact, I find it incomprehensible.

And in relation to these eight occurrence reports, a review of them confirms that the complainant was only identified in six of them; of the six, five were police officers; of the five, Constable Eddie was the identified complainant in three of them; and, of the eight reports, alcohol was only mentioned in two of them, both of which were authored by Constable Eddie. And in relation to these two, the February 19, 2011 occurrence report reads in part as follows:

2/19/2011 23:35:40 ...

Non-reportable Event comments: Received reports of several people out front of the club house, drinking, making a lot of noise. Closing comments: Area check with neg results. Parties GOA.

The March 11, 2011 occurrence report reads as follows, in part, in its summary section:

3/12/2011 02:21:46 – Reportable Event comments: Booze can just opened. Extra Patrols for Liquor infractions Cst Eddie/McNear 10-7 broadcasted to D4 7222 – Acknowledged Cst Eddie doing enforcement in the area.

These are the only two reports which make reference to alcohol. Only the March 11, 2011 report can remotely be argued as relating to an after hours bar, and that is quite a stretch. The other occurrence reports were identified with the header "Gang" (three of them) or, "Police Information." Nowhere was it contained or alleged in these other reports that there were concerns relating to the carrying on of an after hours bar.

I therefore conclude on this ground that there was not full and frank disclosure of all facts. Furthermore, the information contained in paragraphs 13 and 39 is, at the very least, extremely misleading and inaccurate.

These are not the only portions of the Information to Obtain or the application, which the defence has alleged is misleading or not factually correct. Paragraph 37 is a paragraph which is worthy of close scrutiny. That paragraph reads:

On Saturday, 19th November 2011 the writer conducted surveillance on the Red Devils Clubhouse at 27 Degge St, Chatham as information had been received that an event was being hosted by the Chatham chapter. Members of the Red Devils OMG (Chatham and Hamilton) were observed entering the clubhouse throughout the day. It became apparent, by the attendance, that the Red Devils were hosting another event on this date.

The first critical passage in that paragraph which I want to address is Constable Eddie's use of the term "throughout the day." The defence argues that this offending sentence is extremely misleading and is not necessarily true because Constable Eddie testified that he only made the observation once in the morning around 9:50 a.m., and once when he returned to Chatham after 6:00 p.m. and before 7:00 p.m., after having been in London for most of the day. Hence, the defence submits, it was not "throughout" the day, but only twice. The Crown submits that it moving from twice in a day to "throughout" the day is, "Not that great a leap." I strongly disagree.

My own view is that the common, ordinary and everyday meaning of the word "throughout" connotes a continuing or ongoing or "beginning to end" type of meaning. Support for this belief can found in the Second Edition of the Canadian Oxford Dictionary. The term "throughout" is defined as follows:

Through • out • preposition 1 through all of; in or to every part of; everywhere in ( was known throughout southwestern Ontario ). 2 during the whole time, extent, or length of; from beginning to end.

Its use as an adverb:

In every part or respect.

And also:

During the whole time.

That is the definition.

I recall that I was immediately surprised when I heard Constable Eddie give his evidence and testify that he only attended the subject premises once in the morning and once in the late afternoon/early evening. In my view, Justice Rogers would clearly have been under the impression that Constable Eddie had periodically and routinely attended at 27 Degge Street from the beginning of the day up until around the time that he submitted his application to the telewarrant centre close to 7:00 p.m. He would not have been under the impression that OMG members were observed only once in the morning and once between 6:00 and 7:00 p.m. Contrary to Constable Eddie's belief that he didn't believe that somebody would find his statement to be misleading, I strongly disagree.

Furthermore, Constable Eddie's statement in the first sentence of paragraph 37 also causes the court considerable concern. Constable Eddie stated, in paragraph 37, that he, "conducted surveillance on the Red Devils Clubhouse at 27 Degge Street, Chatham." He testified, however, that all he did was drive by the clubhouse on his way out to the 401 when he was making his way to London for the day. He did the same on his return. Reference there is page 76 of the transcript. Driving by on ones way into or out of town does not constitute surveillance — not even remotely.

Again, not relying on my own view or opinion as to what constitutes surveillance, I refer again to the Second Edition of the Canadian Oxford Dictionary for assistance. I'm not suggesting in any way that this is a binding legal authority, it just provides me with confirmation as to whether or not my understanding of the use of words or phrases is consistent with common, ordinary usage.

The word "surveillance" is defined, in part, as follows: "Noun — close observation or supervision."

Constable Eddie's "surveillance" was neither a close observation nor close supervision. It was a drive-by — a passing observation at best. Accordingly, Justice Rogers would clearly have been left with the distinct impression that it was something more than that. These two portions of paragraph 37 are factually incorrect. They are grossly misleading. They do not constitute full and frank disclosure of material facts.

Additionally, there is a serious problem with the first sentence of paragraph 37, which states in part, "as information had been received that an event was being hosted by the Chatham chapter." The defence submits that without further additional information, that this part of paragraph 37 is — to quote Mr. Elliott — "Completely and utterly useless," as far as providing grounds for obtaining a search warrant. His point is a valid one. The point relates to the sufficiency of the information provided in support of the application.

The starting point for this position is found in Section 158(1) of the Provincial Offences Act. It reads:

A justice may at any time issue a warrant under his or her hand if the justice is satisfied upon oath that there are reasonable grounds to believe that there is in any place, a) anything on or in respect of which an offence has been ... is suspected to have been committed; or b) anything that there are reasonable grounds to believe will afford evidence as to the commission of an offence.

The wording of the afore-referenced sentence in paragraph 37 does not identify the source of the information. That is problematic. Was it off of the Internet? Was it from an informant?

In relation to both these questions, I find assistance in the R. v. Garofoli decision, where at pages 1456 to 1457, Justice Sopinka summarized the law with respect to confidential informers. He said:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, if insufficient to establish reasonable and probably grounds; (ii) The reliability of the tip is to be assessed by recourse to 'the totality of the circumstances.' There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (a) the degree of detail of the 'tip'; (b) the informer's source of knowledge; (c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

Thirdly, Justice Sopinka says that:

The results of the search cannot, ex post facto, provide evidence of reliability of the information.

In relation to the sentence that I am commenting on, there is no detail to the information — just a brief generic statement. The source of the mystery informant's knowledge is not indicated. There is no indication as to whether or not the source of this information has proven to be reliable.

In R. v. Hosie, [1996] O.J. No. 2175, the Ontario Court of Appeal discussed whether or not a source's information could be described as compelling when there is no indication as to the informer's source of information and no way of knowing whether the information was through personal information as opposed to rumour or second or third hand information.

As I have already said, in this case there is no indication as to the informer's source of knowledge, or how the information was obtained. It could have been obtained first-hand, but it also could have been obtained through second- or third-hand information, through rumour, off the Internet, or as Mr. Elliott phrased it, "It could have been [from] Lord knows what."

In R. v. Campbell, 2003 MBCA 76, [2003] M.J. No. 207, the Manitoba Court of Appeal opined that evidence to corroborate the information received from an anonymous informant should confirm both the credibility of the informant and the tip itself. In other words, the corroborative information must confirm the criminal or unlawful aspect of the informer's tip.

Paragraph 37 only refers to "an event being hosted." It does not say anything about any criminal activity including the buying or selling of liquor contrary to the provisions of the Liquor Licence Act. All it says is that members of the Red Devils OMG were observed entering the clubhouse throughout the day. This does not constitute information about any criminal activity occurring that day. I would expect that club members would, if they had a clubhouse, go into and out of it.

In summary then, and with respect to paragraph 37 of the application to obtain a search warrant, I find that each of the problems I have identified are sufficient both alone and together to warrant their exclusion. These problems are only compounded when considered alongside my concerns regarding the contents of paragraphs 13 and 39. And, as the Crown, Mr. Creed, properly conceded in his submissions at page 106: "Admittedly, without paragraph 37, there would be probably no grounds to get the warrant on that day."

That statement is significant and accurate.

I recognize and appreciate that there were other parts of Constable Eddie's application that made reference to other club events on other days where unlicensed liquor was sold. That, however, does not assist me in answering the critical question as to whether or not Justice Rogers, the authorizing justice, was presented with sufficient, credible and reliable evidence to permit him to find reasonable grounds to believe that on November 19, 2011 an offence had been committed or was even about to be committed, and that evidence of that offence would be found at 27 Degge Street in Chatham during the time authorized in the warrant. That is what Section 158 and 158.1 of the Provincial Offences Act requires.

Put in the form of a question, without paragraph 37, and for that matter 13 and 39 as well, does there remain any basis for the decision of the authorizing justice to issue the warrant. In other words, is there sufficient information remaining in the application that would allow this court to allow the search warrant to stand. I find that there is not. The only information about an offence being committed on November 19, 2011 is found in paragraph 37. Constable Eddie himself confirmed that the large bulk of his application was prepared in advance and from a precedent. He is certainly not being criticized for using a precedent. However, the fact that he did simply gives more support to the fact that the contents of paragraph 37 were critical to the issuing of the search warrant.

As the Supreme Court of Canada stated in R. v. Araujo, after removing any false or misleading information, a reviewing judge must determine whether there remains "at least some evidence that might reasonably be believed" that led to the authorization of the warrant. And as I have found, once paragraphs 13, 37 and 39 are removed, there is not. Once these paragraphs are removed from the application, the last date of any observation of the clubhouse or its members was on October 22, 2011 (that was paragraph 36).

Nothing on that date gives rise to an inference of criminal activity. It simply says someone appeared to be in the clubhouse at 3:00 a.m. and vehicles were parked out front. In fact, the last information that Constable Eddie had of an illegal activity being conducted on the property was several months prior on April 2, 2011, as set out in paragraph 32. He said, in reference to a large gathering taking place at the clubhouse: "Information from informant one confirmed that liquor was being sold at the clubhouse and that no one is allowed liquor for free."

There are a number of problems with this paragraph, as well. First and foremost, there is nothing contained in the application that would indicate that on November 19, 2011 the police had reasonable grounds to believe that anything or any evidence from April 2, 2011 (as set out in Section 158(1) of the POA) would be found if a search warrant was issued. Next, there is no indication that any other person provided information that liquor was being sold at the clubhouse on that day.

The first sentence of that paragraph reads: "On Saturday, 2nd April 2011, information was received that another large gathering was taking place at the Red Devils Clubhouse." The obvious questions are: From whom? How do they know? Has this person provided reliable information in the past? And lastly, so what if there is a large gathering? That, does not an illegal activity make.

In short, there are many problems with this paragraph, as well. It is just a further example of how there was not sufficient information before Justice Rogers to issue a search warrant in the first instance. The material that was before him has now been amplified by this court on review as contemplated in R. v. Garofoli. So to be clear, I find that once paragraphs 13, 32, 37 and 39 are removed that there is no evidence that might reasonably be believed that would have led to the authorization of a warrant on that day.

Section 24(2) Analysis

Given my findings, the next determination is whether or not the evidence seized should be nonetheless admitted. The evidence seized consists of money, alcohol, a flick knife, two glass donation jars, one wooden donation box and one cash drawer. I have surmised this to be a description of the items seized based on the document titled Property List, which is found at Tab 3 of Mr. Elliott's application record.

The test for exclusion as set out in R. v. Grant, 2009 SCC 32, [2009] 245 C.C.C. (3d) 1 S.C.C. is as follows. The decision whether to exclude evidence involves three lines of inquiry:

1) Seriousness of the Charter infringing state conduct —

The more severe or more deliberate the state conduct, the greater need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in, and ensure state adherence to the rule of law.

2) Impact of the breach — To what extent did the breach actually undermine the interests of the accused protected by the infringed right?

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

3) Society's interest in the adjudication of the case on its merits — Will the truth seeking function of the criminal trial process be better served by admission or exclusion of the evidence? Reliability of the evidence and its importance to the Crown's case are relevant at this stage.

At this point, it is up to the judge to apply the results to determine:

Whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

No overarching rule governs how the balance is to be struck. Mathematical precision is not possible.

The decision of the Ontario Court of Justice in R. v. Odette, 2013 ONCJ 62, [2013] O.J. No. 703 was a case in which the court was considering the exclusion of evidence seized following the issuing of a search warrant. In that case, the defence was asserting a violation of Section 8 of the Charter, arguing in part that a search warrant should not have been issued because it did not disclose the requisite grounds tying the defendant into a criminal offence, and because the affiant made misleading statements in the Information to Obtain.

Although the court, in that case, came to a different conclusion than I have regarding the validity of the warrant, I find this passage by Justice De Filippis to be of assistance here. He said at paragraph 42:

In the case of search warrants, the first inquiry means the court cannot condone fraud or the issuance of warrants on little or no grounds. It also implies that the court must also not be unduly tolerant of carelessness.

The case of R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 is a Court of Appeal decision in which the court considered the wording of Informations to Obtain search warrants. Although the focus was primarily on the information obtained from a confidential informant, I find some of the passages from that case to also be of assistance here. At paragraphs 28 to 29, Justice Rosenberg said:

Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence.

He goes on to say:

I should not be taken as holding that whenever a search warrant has been granted, the first Grant inquiry favours admission of the evidence. But the approach is not, as held by the trial judge, to hold in favour of exclusion because obtaining a search warrant is a deliberate process. The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.

In the Supreme Court of Canada decision of R. v. Morelli, Justice Fish commented on an Information to Obtain which he found, in part, to be drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds — similar to what I have found here. He said, at page 102:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

All of these comments and case references are appropriate to the concerns I have outlined in relation to paragraphs 13, 37 and 39 of the application submitted by Constable Eddie in support of the telewarrant. They also apply, to a lesser extent, to my findings in relation to paragraphs 4 and 10 of the application. I therefore cannot condone the issuance of a warrant on little but really no grounds. The warrant was obtained in large part as a result of false and misleading information contained in the application. The wording used was deliberate and not merely careless. Therefore, the first Grant inquiry favours exclusion.

Looking now to the second Grant consideration, this warrant was not issued in relation to a private dwelling house, but rather a house used as a clubhouse and sometimes "flophouse" by the Red Devils OMG. The applicant is a member of this organization. It is conceded by both counsel that he has a diminished expectation of privacy in the Degge Street address. However, he has an expectation of privacy nonetheless.

Although this expectation of privacy would have been greater had the warrant been issued for a private dwelling house, I do not find the intrusion on his privacy at his club, while attending a club event, to be insignificant. At the very least it is neutral and accordingly, I find by the narrowest of margins that the second line of the Grant inquiry favours exclusion. Even if I am wrong on this aspect, my comments in relation to the third consideration and the need to balance my findings make this a moot point.

The third line of inquiry under Grant looks to the value of a trial on the merits. Obviously, admission of the evidence is critical to the Crown's case. At the same time, it would be a considerable stretch to argue that there is a significant public interest in a trial on the merits taking place. This is a relatively minor, low-level offence in which the likely penalty in the event of a conviction is a monetary fine.

Accordingly, based on my analysis, the third aspect of the Grant inquiry also demands exclusion. Therefore, my order is that the evidence obtained is excluded.

Certificate of Transcript

Form 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Cheryl Zimba (Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. William Hunt

in the

Ontario Court of Justice

(Name of Case)

(Name of Court)

held at

425 Grand Avenue West, Chatham ON N7M 6M8

(Court Address)

taken from Recording

1611_CR101_20130806_091000__6_KOWALYP

, which has been certified in Form 1.

September 9, 2013

(Date)

(Signature of Authorized Person(s))