Court of Appeal for Ontario
Date: July 31, 2017 Docket: C59800
Justices: Watt, Benotto and Roberts JJ.A.
Between
Her Majesty the Queen Respondent
and
Frank Strauss Appellant
Counsel
- James Lockyer and Richard Posner, for the appellant
- Kevin Rawluk, for the respondent the Attorney General of Ontario
- Bradley Reitz, for the respondent the Attorney General of Canada
Heard: June 28, 2017
On appeal from: The convictions entered on November 25, 2014 by Justice Gerald E. Taylor of the Superior Court of Justice, sitting without a jury.
Benotto J.A.:
A. Introduction
[1] The police broke into a barn on private property and searched it without a warrant. They seized a cache of firearms and ammunition. After the search, they received information that there were more firearms in the barn hidden behind a false wall. They applied for and obtained a search warrant. They searched again and found firearms, ammunition, cash, and drugs. The appellant was charged with multiple firearm and drug offences.
[2] The trial judge found the first search violated s. 8 of the Canadian Charter of Rights and Freedoms and therefore excluded the firearms seized in that search from evidence. With respect to the second search, the trial judge upheld the search warrant as valid. He then determined that because the results of the second search were obtained in a manner that infringed the Charter, he was required to conduct a s. 24(2) analysis to determine the admissibility of the evidence. He did so and concluded the evidence seized in the second search was admissible.
[3] For the reasons that follow, I would allow the appeal on the basis that the trial judge erred in law with respect to the s. 24(2) analysis and his conclusion was unreasonable.
B. Facts
(1) Background
[4] On February 16, 2012, there was a break-in at a residence in Cambridge, Ontario. Twenty-nine firearms and large quantities of ammunition were stolen. The Waterloo Regional Police Service started an investigation. Detective Sergeant Harrington was the senior investigating officer.
[5] The police investigation led to the arrest of Jordan Thomas on February 19, 2012. After his arrest, Thomas told investigators that he brokered the sale of the firearms and ammunition to the appellant in exchange for cocaine and marijuana. The appellant was known to police as a member of the Hells Angels.
[6] Thomas told police the details of the sale. He said he and the appellant loaded the firearms and ammunition into his car and drove in separate vehicles to a rural location west of Kitchener, Ontario. They switched vehicles so the appellant could drive the guns and ammunition to a "safe house". Thomas then drove to the appellant's home at a nearby farm, where the appellant arrived 45 minutes later after having dropped off the guns. Thomas took the police to the location of the vehicle exchange, but he did not know where the safe house was located.
[7] The police were determined to find the firearms. On February 24, 2012, the police embarked on what Harrington described as "a needle in a haystack" search. This involved Harrington and two other officers conducting a free-ranging search of properties within a 15 to 20-minute radius of the drop-off point Thomas had identified. The police basically travelled the region, going onto properties and looking for the safe house. They did not find it.
(2) February 29, 2012 search and seizure
[8] On February 29, 2012, the police learned about two properties in the vicinity of the vehicle exchange that were connected to the appellant. One was a farmhouse the appellant's parents owned, which the police put under surveillance. The second was a rural property on Erbs Road, which was five kilometres away from the location of the vehicle switch. Roughly six months earlier, police had seen a vehicle with the appellant's licence plate on this property while conducting unrelated surveillance. Harrington directed another officer to set up surveillance on the Erbs Road property.
[9] In the evening of February 29, 2012, Harrington and two other experienced officers from the Waterloo Regional Police Service drove to the Erbs Road property. The property has a long driveway leading to a barn and then continuing on to a house. The police drove to the barn. They did not attempt to locate any dwelling house and did not attempt to identify the owner of the property or seek permission to enter. Instead, they stopped at the barn and looked through its windows with flashlights. Harrington then picked the lock on the door to the back of the barn and entered the building. He discovered two bundles wrapped in blankets on a couch. He opened one and found it contained a long gun. Further searching revealed 16 long guns, one handgun, and 4,500 rounds of ammunition, along with drug trafficking paraphernalia.
[10] The officers called the Ontario Provincial Police ("OPP") to the site. At least one OPP officer arrived and took photographs. Although there was some discussion about an ex post facto search warrant, the decision was made not to seek one.
[11] The Waterloo officers admitted at the preliminary inquiry and at the trial they knew there was no lawful authority for this search and they did not have reasonable grounds to obtain a warrant. Harrington testified he was aware that any evidence seized may be excluded. Although a senior prosecutor was involved in the case, Harrington did not contact her, seek her advice, or tell her about the search. He testified that when he decided to head out to the Erbs Road property on February 29, 2012, it was understood and agreed to by the officers with him that they were going to enter the property knowing they had no legal authority to do so. He knew he was taking a "gamble" and "understood the repercussions".
[12] The appellant was suspected but not arrested. On March 3, 2012, he was arrested for violating an unrelated bail order. On March 6, 2012, the appellant happened to be in custody with Thomas while waiting for a court appearance. He told Thomas the police had missed finding additional contraband hidden behind a fake wall in the barn. Thomas relayed this information to the police.
(3) March 6, 2012 search and seizure
[13] On March 6, 2012, the police applied for and obtained a warrant. In the information to obtain ("ITO") for the general warrant, Detective Jason Bonikowski, set out the history of the investigation leading to the discovery of the Erbs Road property. With respect to the search carried out on February 29, 2012, Bonikowski stated he was advised by Harrington that:
As there was no house apparently attached to the property and no persons around a decision was made to enter the shed without a warrant to secure these weapons and ensure public safety.
[14] When the police executed the search warrant on March 6, 2012, they found the fake wall and the remainder of the firearms and ammunition along with a large quantity of drugs and cash.
(4) Procedural history
[15] The appellant was charged with seventeen counts of firearm, drug, and breach of recognizance offences. He pleaded not guilty and brought a pre-trial application under ss. 8 and 24(2) of the Charter to exclude the evidence seized from the Erbs Road property on both February 29 and March 6, 2012.
[16] The trial judge excluded the evidence from the February 29, 2012 search and admitted the evidence from the March 6, 2012 search. After these rulings, the appellant elected not to contest the trial and was found guilty on all counts. He was sentenced to 11 years' imprisonment.
C. Reasons below
(1) Ruling on the February 29, 2012 search and seizure
[17] The Crown conceded that the appellant had standing to challenge the search of February 29, 2012 and that it violated his rights under s. 8 of the Charter.
[18] The trial judge then analyzed whether the guns and ammunition seized should be excluded from evidence under s. 24(2) of the Charter. In doing so, he considered and applied the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: (1) the seriousness of the Charter-infringing state conduct; (2) the impact on the Charter-protected interests of the accused; and (3) society's interest in an adjudication on the merits.
[19] First, the trial judge noted that the s. 8 breach was serious, as senior police officers had entered private property without seeking consent, a warrant, or Crown advice. The officers conducted the search knowing there were no reasonable grounds to justify it. The trial judge found that exigent circumstances were not present. He found the officers were aware of the law and chose to ignore it.
[20] Second, the trial judge found the appellant used the Erbs Road property as "kind of a second home", although the barn did not have a kitchen or running water. He concluded the impact of the Charter breach on the appellant's interests was serious, but not as serious as if the search had been carried out at a full-time residence.
[21] Third, with respect to society's interest in the adjudication of the case on its merits, the trial judge found the charges were serious and the evidence in question was reliable.
[22] In weighing the factors, the trial judge concluded admitting the evidence would be more likely to bring the administration of justice into disrepute than excluding it, noting "the weighing exercise is not one of comparing the misdeeds of the police with the heinous nature of the offence charged." Accordingly, he ordered the 17 firearms, 4,500 rounds of ammunition and drug paraphernalia seized in the February 29, 2012 search excluded from evidence.
(2) Ruling on the March 6, 2012 search and seizure
[23] The police carried out the March 6, 2012 search pursuant to a warrant. As such, the trial judge first considered the validity of the warrant. He considered whether the warrant could have been issued even without the improperly obtained information arising from the illegal February 29, 2012 search.
[24] The trial judge excised the portions of Bonikowski's ITO summary (set out above) containing information obtained as a result of the February 29, 2012 warrantless search. He did not excise the appellant's statement to Thomas about the firearms behind the fake wall. He concluded the warrant could have issued even without the illegally obtained information. He therefore held the March 6, 2012 warrant was valid and complied with s. 8 of the Charter.
[25] Having found the warrant valid, the trial judge did not go on to consider the effect of the investigative conduct of the police in the pre-authorization process. This court has recognized a discretion to set aside a warrant – despite grounds for its issuance – when conduct leading up to its issuance has been subversive. In R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66, this court said: "a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search warrant." Such conduct includes omitting facts from an ITO in order to mislead the issuing judicial officer.
[26] The trial judge did, however, instruct himself with respect to R. v. Strachan, [1988] 2 S.C.R. 980, and R. v. Grant, [1993] 3 S.C.R. 223, to consider whether the evidence seized in the March 6, 2012 search was "obtained in a manner" that infringed the appellant's Charter rights. These cases provide that a s. 24(2) analysis is triggered when an infringement of s. 8 has occurred in the investigatory process, apart from a subsequent reasonable search pursuant to a valid warrant: see Strachan, at pp. 1005-6; and Grant (1993), at p. 254.
[27] Applying Strachan and Grant (1993), the trial judge found the February 29, 2012 and March 6, 2012 searches were two "separate transactions", but the first search was sufficiently connected to the second to require a s. 24(2) analysis in relation to the evidence seized on March 6, 2012. He then turned to the three factors set out in Grant (2009), referenced above.
[28] The trial judge found the s. 8 breach was serious. He concluded, however, there were "other factors at play" which impacted the seriousness of the breach relating to the March 6, 2012 search and seizure. These other factors included: (i) that the police disclosed the February 29, 2012 illegal entry and seizure to the issuing justice and made no attempt to cover up the breach of the appellant's rights; (ii) that Harrington acknowledged the seriousness of his actions and accepted full responsibility; and (iii) that the appellant was not under arrest in relation to the firearms and ammunition when he voluntarily told Thomas about the false wall.
[29] With respect to the second and third Grant (2009) factors, the trial judge held the impact of the March 6, 2012 breach on the appellant's rights and society's interest in the adjudication of the case on its merits were the same as they were with respect to the February 29, 2012 search.
[30] The trial judge then weighed the three factors and concluded society's interest in an adjudication on the merits was the predominant factor. He therefore ordered the evidence obtained as a result of the March 6, 2012 search and seizure was admissible.
D. Issues
[31] The only issue on appeal is whether the trial judge erred in admitting the evidence seized on March 6, 2012.
E. Positions of the parties
[32] The appellant submits the trial judge erred – both with respect to s. 8 and s. 24(2) – in admitting the evidence from the March 6, 2012 search and seizure.
[33] First, the appellant submits the general warrant could not have been issued if the information in the ITO had been properly excised. The trial judge improperly accepted, without explanation, the Crown's redacted version of the ITO. In particular, the information from Thomas about the false wall should have been excised because it arose directly from the illegal February 29, 2012 search.
[34] With respect to s. 24(2), the appellant submits the trial judge considered irrelevant factors, including: that the seriousness of the breach was mitigated by the officers' acceptance of responsibility; the voluntariness of the appellant's statement to Thomas; and the temporal connection between the breach and the valid warrant search.
[35] The respondent Ontario submits the warrant could still have been issued without reliance on the earlier warrantless search. The appellant's assertion that Thomas would not have spoken to him but for the February 29, 2012 search is speculative. It is reasonable to assume the appellant was unaware the police had linked him to the property where the guns and ammunition had been found. With respect to the s. 24(2) analysis, the respondent Ontario submits the trial judge properly considered the Grant (2009) factors and his determination is entitled to deference.
[36] The respondent Canada adopts the submissions of the respondent Ontario and further submits, as determined by the trial judge, the searches were separate and not part of a single transaction. The respondent Canada also argues that society's interest in the adjudication of the case on its merits is informed by the fact that the Hells Angels gang is a criminal organization.
F. Discussion
[37] Although the appellant asserts the trial judge erred in upholding the validity of the March 6, 2012 warrant, I have concluded it is not necessary to determine this issue because the trial judge made reversible errors with respect to his s. 24(2) analysis.
[38] I agree with the trial judge that the warrantless entry on February 29, 2012 and the search and seizure on March 6, 2012 were sufficiently connected such that a s. 24(2) analysis was necessary. The standard of review with respect to the trial judge's analysis is not in dispute: a trial judge's finding with respect to s. 24(2) is entitled to deference absent an unreasonable finding or error of law: see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. I have concluded, however, that when the trial judge approached the s. 24(2) analysis, he failed to give effect to the very factors that triggered it in the first place. He also considered irrelevant and impermissible factors. This led to an unreasonable finding justifying appellate intervention.
[39] I begin with the investigative process that triggered s. 24(2) and then review the trial judge's analysis.
(1) Investigative process
[40] In concluding the February 29, 2012 search breached s. 8 of the Charter, the trial judge found the police officers – knowing they were not entitled to do so – conducted a perimeter search of the barn, peered into its windows with flashlights, and then picked a lock to get in. The officers knew they did not have grounds to obtain a warrant. They then searched the building. At no time did the officers contact the Crown prosecutor.
[41] Notwithstanding the s. 8 breaches with respect to the February 29, 2012 search, the trial judge found the warrant for the March 6, 2012 search was valid. The trial judge acknowledged, however, that the validity of the search warrant does not end the inquiry as to the admissibility of the evidence when a Charter infringement occurred during the investigatory process that led to the search and seizure at issue. As the Supreme Court said in Grant (1993), at p. 255:
The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question … to find otherwise would be to ignore the possible tainting effect which a Charter violation might have on the otherwise legitimate components of searches by state authorities.
[42] Likewise, in Côté, Cromwell J. said, at para. 81:
[B]y the time the warrants were obtained in this case, there had been multiple, serious and deliberate breaches of the appellant's rights … this evidence was tainted by the earlier Charter breaches that involved serious police misconduct.
[43] Clearly, the investigative process here was tainted by police misconduct. The trial judge recognized this and it grounded his decision to exclude the evidence from the February 29, 2012 search. He said, at para. 39:
Detective Sgt. Harrington, a senior police officer with supervisory responsibilities, knowingly entered on private property without seeking a warrant or the property owner's consent. He then entered a locked building for the purpose of conducting a search knowing that he did not have reasonable grounds to believe that evidence of the commission of an offence was located in the building … the breach in question was rendered relatively more serious by Detective Sgt. Harrington not seeking advice from a Crown Attorney.
[44] This police misconduct led the trial judge – pursuant to Grant (1993) – to conduct a s. 24(2) analysis and consider the admissibility of the evidence from the March 6, 2012 search, even though he found the warrant was valid.
[45] I agree with the trial judge that a s. 24(2) analysis was required. In approaching the s. 24(2) analysis, however, the trial judge erred by diminishing the significance of the serious Charter breaches at issue.
(2) Section 24(2) analysis for the March 6, 2012 search and seizure
[46] The trial judge began with the first Grant (2009) factor: the seriousness of the Charter breach. His approach is set out in his reasons, at para. 61:
I consider Detective Sgt. Harrington's breach of section 8 of the Charter to be serious. However, there are other factors at play with respect to the March 6, 2012 search which impact the seriousness of that breach. [Emphasis added.]
[47] The "other factors" the trial judge relied on are incapable of diminishing the seriousness of the breach. In relying on those "other factors", the trial judge erred in law and made unreasonable findings. He also erred in law by failing to consider the systemic nature of the breaches.
[48] At para. 62, the trial judge noted "The issuing judge was told about the illegal entry and seizure. In my view, this is significant". This statement is wrong in law. First, that the issuing judge was told about the illegal entry does not impact the seriousness of the breach. It is axiomatic that there be truthful disclosure in the ITO: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. Anything less would compound the police misconduct.
[49] Further, the trial judge's reasons do not mention that the disclosure in the ITO was not full and frank. Bonikowski stated: "As there was no house apparently attached to the property and no persons around a decision was made to enter the shed without a warrant to secure these weapons and ensure public safety." This was not true. First, there was a house on the property. Second, the police officers' evidence made it clear that the decision to enter the property was made when they set out from the station on February 29, 2012; it had nothing to do with the fact that there were "no persons around". Further, when the officers entered the barn, it was not "to secure these weapons" because – as they acknowledged – they did not have reasonable grounds to believe the weapons were at the Erbs Road property.
[50] In considering the seriousness of the s. 8 breach, the trial judge also noted the following about Harrington: he in no way attempted to minimize the seriousness of his actions; he thought he was acting in the public interest; he did not attempt to deflect blame on any of his fellow officers; he accepted full responsibility; and he had never previously conducted a warrantless entry and search. These comments do not minimize the seriousness of the breach. It is unreasonable to say otherwise. As stated in R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 29:
[T]he Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. [Emphasis in original.]
Similarly, to rely on an after-the-fact acknowledgement of wrongdoing as a way to diminish the seriousness of a breach, and thereby achieve admission of the evidence, would give the police a licence to engage in misconduct and render the Charter's protection meaningless.
[51] The trial judge went on to consider events that occurred after the police misconduct. In particular, the trial judge noted, at para. 63, the voluntariness of the appellant's statement to Thomas was an "important fact", as the appellant was not under arrest in relation to the firearms when he told Thomas about the false wall. This fact was irrelevant to the seriousness of the Charter breach.
[52] The trial judge also failed to take into account several factors, including: (i) that the officers knew what they were doing was illegal; (ii) that they did not speak to the prosecutor assigned to the case; (iii) that the February 29, 2012 search and seizure was a series of deliberate breaches involving a perimeter search, a forced entry, and the involvement of officers from two police forces; and (iv) the untold number of private properties the police searched before the Erbs Road property.
[53] More importantly, the trial judge failed to give effect to the systemic nature of the police misconduct. In Grant (2009), the court explained that the issue is not punishment of the police but rather preservation of public confidence in the rule of law and its processes. Minor or inadvertent breaches may only minimally undermine public confidence. Wilful and ongoing disregard of Charter rights will have a negative effect on public confidence. Here the breaches were deliberate and ongoing and "require that the court dissociate itself from such conduct" particularly when the conduct "was part of a pattern of abuse": Grant (2009), at para. 75.
(3) Conclusion
[54] The trial judge impermissibly diminished the seriousness of the Charter breach and, in doing so, erred in his analysis under s. 24(2). A senior investigating officer and his team made a conscious decision to "gamble" with the law and the courts. To admit the evidence under these circumstances would reward and ultimately permit this conduct.
G. Disposition
[55] For the reasons above, I would allow the appeal, quash the convictions and enter verdicts of acquittals on all counts.
Released: July 31, 2017
"M.L. Benotto J.A."
"I agree. David Watt J.A."
"I agree. L.B. Roberts J.A."
