Court File and Parties

Date: 2018-10-29 Toronto Region Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Cory Crockatt and Justin Battle

Before: Justice L. Feldman

Reasons for Judgment released on: October 29, 2018

Counsel:

• R. Fried for the Crown
• M. Little for the accused Cory Crockatt
• J. Frost for the accused Justin Battle

FELDMAN J.:

Introduction

[1] Cory Crockatt and Justin Battle are charged with three counts of Break Enter and Theft and two of Possession of Property Obtained by Crime. In a pre-trial application, the defendants submit that the police lacked reasonable and probable grounds for requesting issuance of a warrant to search their home, violating their s. 8 rights. In addition, Mr. Crockatt says his s. 10(b) rights to counsel were infringed. They ask that in light of these purported Charter breaches, evidence seized from their residence be excluded under s. 24(2).

The Evidence

(a) The Search Warrant Application

[2] In an Information to Obtain (ITO), the police allege that on June 2 and 19, 2017, the two accused, together with a third unknown male, broke into three hair salons in Toronto and stole monies and property. As part of their modus operandi, it is alleged, as well, that they used recently stolen motor vehicles that they discarded nearby shortly after committing the offences.

[3] More specifically, in relation to the first break-in, it is alleged that in the early morning hours of June 2, three white males used a 2014 Audi Q7 SUV, stolen shortly before from 53 Muirbank Blvd., to drive to Ruffles Hair Design on Bathurst St and break into the salon by using a tool to shatter the glass of the front door. Video surveillance showed the perpetrators, whose faces were covered, carrying out, among other property, its cash register. The Audi was recovered on June 4 at 89 Grover Dr. It contained a large quantity of stolen property, including mail from Ruffles. Both addresses are within a short walking distance of 76 Calverley Trail, where the two accused lived in a basement apartment.

[4] The two other break-ins were committed, one after the other, in the early morning hours of June 19 at two hair salons that were a short distance from each other. At Images Salon, located at 6758 Kingston Rd., the men used a prying tool to break open the front door window. The men were seen on video surveillance, at 12:32 a.m., removing a cash register and other property. While police were responding, there was another break-in at Curly Q's, a short distance away at 30 Dean Park Rd. Property stolen included $30, a burgundy Michael Kors leather purse, a black leather Coach wallet and a black and gray Coach canvas purse.

[5] The vehicle used in committing these offences was a 2000 Nissan Maxima, stolen earlier from 37 Glenthorpe Dr. in Toronto. At 12:44 a.m., the Nissan was captured on video surveillance being driven southbound and parked at 692 Moorish Rd., where three men emerged from the car. They began walking in the direction of 76 Calverley Trail, a short distance away. Several stolen items from Images Salon and Curley Q's found both inside and outside the vehicle were later found by the police.

[6] Mr. Crockatt and Mr. Battle were seen on video surveillance entering the basement apartment at 1:15 a.m. The affiant told the court that the video was 22 minutes ahead of the actual time. On June 23, at approximately 5:33 p.m., police executed a search warrant at the basement apartment of 76 Calverley Trail and seized certain property. The accused were arrested on the above charges.

[7] The defendants submit that the police affiant relied on misleading information and conclusory statements to support his request for a search warrant, without which it could not have issued, violating their s. 8 rights in the process.

(b) s. 10(b) – Rights to Counsel

[8] In the course of the execution of the search warrant, P.C. Jeremy Hayes arrested Mr. Crockatt in his bedroom at 5:33 p.m. The officer "was sure" he would have read him his rights to counsel, but has neither notes nor memory of doing so, nor does he have a notation of anything the defendant might have said in response. In addition, he has no notes or memory of steps he took at the station to ensure his arrestee's s. 10(b) rights were implemented.

[9] P.C. Jay Corcoran was initially a support and transport officer when he was at 76 Calverley Trail. He provided Mr. Crockatt with his rights to counsel. At the time, the defendant indicated that he wished to speak to his lawyer.

[10] P.C. Corcoran testified that at the station Mr. Crockatt was subject to a strip search, after which he was moved to an interview room at 6:36 p.m., even before he was provided an opportunity to speak with counsel. His lawyer was not called until 7 p.m. This officer has neither note nor memory of leaving a message with counsel, although he recalls telling another officer that he attempted to contact the accused's lawyer. He can't say whom. The Crown concedes there is no evidence Mr. Crockatt ever spoke to his lawyer or to duty counsel. No statement was taken.

[11] Mr. Little submits that his client's rights in this regard were violated. He says the defendant was not informed of his s. 10(b) rights without delay, nor did the police take steps to implement that right: see R. v. Suberu, 2009 SCC 33 at paras. 38, 42.

[12] Mr. Fried, for the prosecution, fairly concedes that the defendant's s. 10(b) rights were infringed. The lack of notes and memory on the part of the police regrettably indicate a degree of indifference on their part to their obligations under s. 10(b). Here, Mr. Crockatt was not advised of his rights without delay, nor does the evidence establish that he was provided a reasonable opportunity to speak to counsel: see R. v. Wu, 2017 ONSC 1003; R. v. Rover, 2018 ONCA 745.

Validity of the Search Warrant – the ITO

[13] A copy of the ITO is appended to this judgement. In my view, D.C. Michael Roth, the affiant, in providing sworn information in support of the issuing of a search warrant, resorted in part to embellishment and, as well, relied on conclusory statements that were without foundation. These are reflected in the following questionable assertions:

[14] In para. 4(e), D.C. Roth deposed that the Nissan Maxima stolen from 692 Moorish Rd. was the same vehicle seen in the surveillance video at Images Salon, with its license plate visible. In fact, there was no logo to be observed in the video, the year of the car was not apparent, nor could the license plate be seen. This effectively left the affiant to rely on the similarity of the front grill and rims and the general appearance of the car as the basis for this misleading assertion.

[15] In para. 5, the officer deposed that the three males seen breaking into Images Salon were the same three who left the Nissan parked on Moorish Rd, in substantial part because their clothing matched. (para. 7y).

In support of this claim, the affiant swore that Mr. Crockatt was wearing the same running shoes with a Nike logo on the side (para. 7s) and that the same male who got into the driver's seat at Images got out on Moorish Rd (para. 5a). In cross-examination, the officer admitted that the above assertions were inaccurate. He conceded that there was nothing distinct about the clothing of the three individuals, that his claim to have seen a Nike logo was surmise, that he could not see who was driving the car away from Images and that he had assumed the gender and ethnicity of the perpetrators.

The Crown also concedes that reference to 'Nike logo' in paras. 4 and 7(s) should be deleted, just not in relation to observations made at 76 Calverley Trail. He also agrees that the notion of matching clothes in para. 7(y) should be excised.

[16] In para. 18(d), the affiant deposed that the same three males who broke into the Images Salon were the ones seen on video returning to the basement apartment at 76 Calverley Trail, and that, at the time, Justin Battle was wearing the same black Nike running shoes with the black logo on the side that was captured on video surveillance at Images and Moorish Rd (para. 18(d)(iii)). In testimony, the officer agreed this was not true, but was unable to provide an explanation for these material misrepresentations.

[17] In para. 6, D.C. Roth wrote that the 3 break and enter occurrences in this case were of a similar modus operandi to that used by the two accused in previous offences in 2015 and 2016. He provided no information in support of this conclusory statement. I would not rely on this bald assertion.

[18] D.C. Roth denies deliberately misleading the issuing Justice in the ITO, nor does he admit doing a poor job of drafting. I view the inaccuracies and misrepresentations to which he deposed as significant to the degree that once excised, served to jeopardize the sufficiency of the warrant.

[19] I would not rely on the above disclosure in determining whether the remaining evidence supports a finding of reasonable and probable grounds justifying issuance of the search warrant.

The Authorities

[20] The defendants have challenged the reliability of the content of the ITO, submitting that it was insufficiently credible, and that because of that insufficiency the authorizing justice lacked reasonable and probable grounds to issue the warrant.

[21] Search warrants are generally issued on a standard of "credibly based probability". The ITO must disclose reasonable grounds to believe that an offense has been committed and that evidence in relation to the offence will be found at the place to be searched. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable. And while an officer may rely on training and experience in assessing grounds, he or she must consider evidence that supports the grounds as well as evidence that detracts from grounds. Importantly, the officer has an obligation to make full, fair and frank disclosure in an ITO: R. v. Ricciardi, 2017 ONSC 2788, per Di Luca J., at paras. 13-14.

[22] Justice Di Luca noted, at para. 18, that the role of the reviewing judge was not to substitute his or her view for that of the reviewing justice, but rather "to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant."

[23] As well, even where there is fraud, non-disclosure or misleading evidence in the ITO, this does not automatically result in the authorization being set aside. Their sole impact is "to determine whether there continues to be any basis for the decision of the authorizing judge": R. v. Garofoli (1990), 60 C.C.C. (3d) 161 at p. 188.

[24] Mr. Fried, for the prosecution, submits that granting the excising of disclosure in the ITO, as set out above in para. 13, there remains a "core substance" of credible evidence that could permit a Justice to issue the warrant.

Could the Remaining Evidence Justify Issuance of the Warrant?

[25] Mr. Fried submits that once the offending material is excised, the following evidence that remains is sufficiently reliable and credible to permit inferences to be drawn circumstantially linking the two accused to the subject offences:

(1) Three individuals leave 76 Calverley Trail at 11:50 p.m. on June 18, 2017 (7c, k)

(2) Three individuals exit Images Salon at 12:33 a.m. on June 19 and enter a vehicle (4n)

(3) A cash drawer containing monies was stolen from Images Salon (2p)

(4) There was a break-in at Curly Q's Salon at 12:44 a.m. where purses and a cash register drawer were stolen (2i)

(5) At 12:44 a.m., three individuals exit a vehicle at 692 Morrish Rd. and walk in the direction of 76 Calverley Trail; one individual is removing clothing, another has a backpack (3d, i, o)

(6) A stolen Nissan Maxima was recovered at 692 Morrish Rd. (2u)

(7) 692 Morrish Dr. (Mazda recovery) and 37 Glenthorne Dr. (Mazda stolen) are both within a short walking distance of 76 Calverley Trail (6i)

(8) Police find gift cards from Images, 3 cash register drawers and a large brown purse in the stolen Mazda at 692 Morrish Rd. (2bb)

(9) At 12:52 a.m., three individuals return to 76 Calverley Trail – one has a backpack, the other two are no wearing shirts (7p, r, u, v)

[26] Mr. Fried submits that this evidence permits the reasonable inference that the Nissan Maxima was used in the break-ins at Images Salon and Curly Q's Salon and that two of the three individuals seen on the surveillance video at those locations and on Moorish Rd. were the defendants. It is trite that an issuing Justice is permitted to draw reasonable inferences from the stated facts: Ricciardi, at para. 17.

[27] A review of the remaining disclosure tends to support the Crown's submission. Three individuals are seen in a surveillance video ransacking Images Salon, one of whom is observed carrying out a cash register. They leave in a car that is abandoned by them 11 minutes later on Moorish Rd. That vehicle, a Nissan Maxima, stolen earlier from 37 Glenthorne Dr., was found by police to contain 3 cash register drawers, gift cards from Images and stolen property from Curly Q's. The men head out in the direction of 76 Calverley Trail, a short walking distance away, as is Glenthorne Dr. One of them had removed his shirt, one was in the process taking off his shirt and one had a backpack. Three men, similar in appearance, stature and clothing to the accused, arrive at 76 Calverley Trail 9 minutes later. One man is wearing a backpack, while two are without shirts. The two accused are later arrested in the basement apartment of that address.

[28] In my view, it was open to the Justice on this truncated evidence to draw a circumstantially-based inference that the two accused were linked by times, distance, recovered property, appearance and clothing to the two break-ins and to the stolen and discarded Nissan Maxima. There was, in my view, sufficient evidence, however weak, upon which a search warrant could have issued. In the circumstances, there is no s. 8 breach.

Rights to Counsel and Section 24(2)

[29] Recognizing that the police were operating in a dynamic situation of arrest and search, nonetheless, it is open to be inferred on the basis of their own testimony that those officers responsible for providing the defendant's rights to counsel failed in their duty to implement those rights. In failing to record material elements of their investigation involving their obligation to respect the defendant's Charter rights, they have made the fact-finding process more difficult by leaving their evidence in part subject to the whim of memory, and in this case, not to the advantage of the prosecution.

[30] The record is left unclear if the defendant was told immediately of his rights to counsel. And while Mr. Crockatt requested counsel at the scene, he was placed in an interview room at the police station well before an officer attempted to contact his counsel. That officer cannot recall if he left a message for counsel. In fact, there is no evidence that the defendant spoke to his lawyer or was offered access to duty counsel. On this evidence, I infer that the police negligently failed to effect the implementation component of s. 10(b). These were neither minor, nor technical breaches. The Crown properly concedes this to be the case.

[31] The analytical framework to determine admission or exclusion of impugned evidence following a breach is set out in R. v. Grant, [2009] S.C.R. 353, at paras. 70-71. The focus is on "the broad impact of admission of the evidence on the long-term repute of the justice system". Whether admission of the evidence would bring the administration of justice into disrepute engages three lines of inquiry, including: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; (3) society's interest in the adjudication of the case on its merits.

[32] The court's role is "to balance the assessments 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".

(1) The Seriousness of the Charter-infringing State Conduct

[33] The police's handling of their obligation to give effect to the defendant's rights to counsel was flawed. It gave the impression of indifference, as if it were of secondary importance. It put at risk Mr. Crockatt's fundamental rights in s. 10(b) that "protects the right to silence and the right against self-incrimination". It was a serious violation of those rights.

[34] In assessing this infringement and whether the evidence, that is, the allegedly stolen property seized, was "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter", it is open to this court to have regard to the entire "chain of events" and to consider whether the evidence and the breach are "part of the same transaction or course of conduct": R. v. Pino, 2016 ONCA 389, at para 72.

[35] In effect, the court may take into account Charter breaches that are linked to the same event, but occur after the discovery of the evidence. If so, the question becomes whether the administration of justice could be brought into disrepute if by admitting the evidence the courts appear to condone a serious Charter violation: see The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 397; Constitutional Remedies in Canada, 2nd ed. (Toronto: Canada Law Book), at para. 10.880.

[36] That is not this case. I am assisted in this regard by the reasoning of Rosenberg J.A. in R. v. LaChappelle (2007), 2007 ONCA 655, 226 C.C.C. (3d) 518 (Ont. C.A.). There, the accused was injured in a car accident. His blood was taken at the hospital on the orders of a doctor. He was subsequently arrested and charged with impaired driving. He asked to speak to duty counsel and was afforded that opportunity. Vials of his blood were later seized under warrant.

[37] The accused sought to exclude the results of the breath tests on the basis of a s. 10(b) breach. Justice Rosenberg held, at paras. 46-47, that assuming such a breach, he would not have excluded the evidence as none was obtained by that violation. He found "no factual or temporal connection between the alleged breach and the obtaining of the evidence". It had already been obtained prior to the alleged breach.

[38] In the case at bar, the violation, although serious, does not have a close connection to the evidence. It favours admission of the evidence.

(2) Impact on the Accused's Charter-protected Interests

[39] At this second stage, the court must assess the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the rights infringed, or was it merely transient and trivial in its impact: Grant, at para. 76.

[40] The impact of a s. 10(b) breach is significant. Rights to counsel is considered fundamental to the protection of a detainee's liberty and fair trial interests. In R. v. McGuffie (2016), 2016 ONCA 365, 336 C.C.C. (3d) 486 (Ont. C.A.), at para. 80, Doherty J.A. described access to legal advice while detained as "fundamental to individual liberty and personal autonomy in a society governed under the rule of law".

[41] In this case, there is no evidence that Mr. Crockatt provided an inculpatory statement to the police, nor is there linkage between the violation of his s. 10(b) rights and the seizing of the stolen property. At the same time, I am mindful that a court ought not to admit evidence where to do so would appear to condone a serious Charter violation.

[42] While I do not excuse the failure of the police to take the defendant's rights to counsel seriously, there was no evidence that the property was obtained as a result of the infringement. This line of inquiry slightly favours admission.

(3) Society's Interest in Adjudication on the Merits

[43] The impugned evidence is real and necessary for the prosecution of the case to go forward. The impact of excluding the evidence on society's interest in a trial on the merits favours admission.

Balancing of the Grant Factors

[44] In these circumstances, despite the violation, the long-term repute of the administration of justice would not be diminished by a trial on the merits in this case. A balancing of these factors favours admission of the evidence.

Released: October 29, 2018

Signed: "Justice L. Feldman"