Court of Appeal for Ontario
Date: 2022-05-24 Docket: C68559 & C68568
Before: Rouleau, Nordheimer and George JJ.A.
Docket: C68559 Between: Her Majesty the Queen, Appellant And: Kalenda Kalonji, Respondent
Docket: C68568 And Between: Her Majesty the Queen, Appellant And: Sam Donaldson, Respondent
Counsel: Molly Flanagan, for the appellant Jeff Marshman, for the respondent Kalenda Kalonji James Mencel, for the respondent Sam Donaldson
Heard: March 2, 2022 by video conference
On appeal from the acquittals entered on July 20, 2020 (C68559) and July 21, 2020 (C68568) by Justice Maureen Forestell of the Superior Court of Justice, sitting without a jury.
George J.A.:
Introduction
[1] The police received information that the respondent, Sam Donaldson (“Donaldson”), threatened a woman (“the complainant”) by telling her that he was going to attend at her place of employment and “shoot [her] in the head” and “shoot up” her house. The complainant told the police that Donaldson had firearms, and that he lived at two different addresses: 11 Brunel Court and 193 Beverley Street, both in Toronto. She also advised that Donaldson had a roommate at the Brunel Court residence, known to her as “Ninja”. There is no dispute that “Ninja” is the respondent, Kalenda Kalonji (“Kalonji”).
[2] On the strength of this information, the police applied for and obtained judicial authorization to search both places. Upon their search of the Brunel Court residence, police officers located, in a backpack in the second bedroom, a handgun with an overcapacity magazine and ammunition, and mail addressed to Donaldson. They also located and seized 3.27 grams of fentanyl in a ceiling vent in a hallway bathroom and $7,960 in a safe in the master bedroom.
[3] Donaldson and Kalonji were charged jointly with various offences, constituting counts one to five on the indictment, including possession of a loaded prohibited firearm; possession of a firearm while knowing its possession is unauthorized; possession of a prohibited device while knowing its possession is unauthorized; possession of property exceeding $5,000 obtained by crime; and possession of a controlled substance for the purpose of trafficking. Donaldson was charged with additional counts, which are not the subject of this appeal.
[4] The respondents challenged the Brunel Court warrant. The trial judge quashed the warrant, concluding that the Information to Obtain (“ITO”) did not disclose reasonable and probable grounds to believe that firearms would be in that location. The evidence was excluded, and both respondents were found not guilty.
[5] The Crown now appeals against the acquittals, advancing these two grounds:
i) The trial judge erred in her s. 8 Charter analysis by applying the wrong standard of review, and by failing to consider reasonable inferences that could be drawn from the ITO; and, alternatively,
ii) the trial judge erred by excluding the seized evidence pursuant to s. 24(2) of the Charter by misapplying the Grant factors.
Brunel Court Warrant
[6] Detective Constable Janna Senyk (“the affiant”) applied for telewarrants for two locations: Unit 210 of 11 Brunel Court, and 193 Beverley Street, both in Toronto. The affiant believed that Donaldson lived at both locations, and deposed that the items to be searched for were “Firearm, Ammunition, Magazine(s), Trigger lock, Secure container for storage of a firearm, Purchase invoice for firearm, Packing for a firearm, Booklet or manual for operation of a firearm”. The affiant relied on the information provided by the complainant, from one of the complainant’s friends, and from other officers.
[7] The complainant provided multiple statements to the police, including one that was video recorded. From the complainant, the affiant learned that:
i) While Donaldson presented himself as the complainant’s boyfriend, he actually “pimped” her out.
ii) Donaldson possessed several guns, including “a 44, an assault rifle (which he refers to as a cop killer)” and a “sawed off shot rifle”.
iii) The complainant had observed Donaldson’s guns in the middle console of his vehicle.
iv) Donaldson often rented a Chrysler 300 because of its hidden compartment behind the radio, which is where he would hide his firearm.
v) While the complainant abuses substances, she had been “clean” for the two days before her video recorded police interview.
vi) Donaldson lived at both the 11 Brunel Court and 193 Beverley Street residences. At Brunel, he had a roommate named “Ninja”. Donaldson’s apartment at 11 Brunel Court was a corner unit, facing the water, and was either unit number 209 or 211.
[8] The complainant’s friend provided a police statement, from which the affiant learned (and included in the ITO) the following:
i) Donaldson called the friend on September 18, 2018 looking for the complainant.
ii) Donaldson told the friend that if he “stuck around” the complainant, he would “get hurt”.
iii) Whenever the complainant’s friend noticed that she had been “beat up”, it was always after she had spent time with Donaldson.
iv) The complainant worked in the sex trade.
v) Donaldson had taken money from the complainant.
vi) Donaldson drove a dark coloured Chrysler 300.
[9] The affiant also relied on information from a fellow officer, who attended at 11 Brunel Court on September 21, 2018 and observed a man he believed to be Donaldson enter the building. This officer advised that he had spoken to the concierge who told him that the man he had observed, who the officer believed was Donaldson, had used a key fob for unit 210. This officer also advised the affiant that a man who fit the complainant’s description of “Ninja” entered Brunel Court approximately an hour and a half after the man who fit the description of Donaldson did. The concierge confirmed that this second man, believed to be “Ninja”, was the main tenant of Unit 210. However, while he looked, the officer did not locate any vehicles in the visitor parking garage that fit the description of the vehicle that Donaldson typically drove.
[10] After summarizing the information upon which she relied, the affiant deposed that:
I believe, based on personal knowledge that firearms are routinely found in the place where the person resides and/or within the vehicles they drive. I believe that a firearm is a prized possession of the owner and that if the owner of the firearm is not carrying it, he/she will store it in a safe place, namely their dwelling unit or hidden within their vehicle.
Decision Below
[11] On July 20, 2020, the trial judge delivered a “bottom line” ruling concluding that the ITO did not disclose reasonable grounds to believe that firearms would be found at Brunel Court, and that, therefore, the warrant could not have issued. She excluded all of the seized evidence pursuant to s. 24(2). The trial judge promised that written reasons would follow, which she released to the parties on July 31, 2020.
Section 8 of the Charter
Facial validity
[12] In her written reasons, the trial judge provided a lengthy review of the information contained in the ITO, revealing a thorough understanding of the evidence. She proceeded to accurately recount the parties’ respective positions, and canvassed the relevant jurisprudence in respect of the review of a search warrant, describing both the subjective and objective components of the reasonable grounds threshold.
[13] The trial judge acknowledged that the issuing justice could draw reasonable inferences from the evidence in the ITO. However, while she found a link between Donaldson and the Brunel Court residence, she determined that “there [was] no case specific information linking the firearm to the Applicant’s residence at 11 Brunel Court”. On this point, she wrote:
The complainant reported seeing the gun on the person of Mr. Donaldson and in the cars that he rented. The information in the ITO supports the inference that the complainant had been inside both the addresses that she said were residences of Mr. Donaldson. She described how to enter the Beverley Street address and described staying there with Mr. Donaldson. With respect to the 11 Brunel Court address, the complainant described the location of the unit and told the police the name of the other occupant of the unit. She described the view from the balcony of the unit. The logical and reasonable inference is that she had been inside the unit. The complainant did not link the gun to the residences. She consistently linked the firearms to the car driven by Mr. Donaldson and to his person.
I therefore have concluded that the ITO did not contain information that could support reasonable grounds to believe that the evidence sought would be found at the named address. I find that there was a violation of the Applicants’ rights under s. 8 of the Charter.
Was the manner of search unreasonable?
[14] Given her finding on facial validity, there was no need for the trial judge to address the respondents’ complaint that the manner of the search was unreasonable. She addressed it nonetheless and rejected the argument.
Section 24(2) of the Charter
[15] In her discussion about whether to exclude the evidence, the trial judge addressed each of the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and concluded that, while society had an interest in an adjudication of this case on its merits, the other two factors – the seriousness of the state’s Charter-infringing conduct, and the impact of the breach on the accused’s Charter protected interests – weighed in favour of exclusion. This is what the trial judge wrote, at paras. 42-43, of her reasons:
The final balancing of the Grant lines of inquiry is difficult in this case, where there was prior judicial authorization and there was no material omission or misleading of the issuing justice. The first line of inquiry weighs somewhat in favour of exclusion, while the second weighs clearly in favour of exclusion and the third weighs clearly in favour of admission. This is a very close call. However, I have concluded that the evidence must be excluded. As Fish J. wrote in Morelli, at para. 111, “The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term”.
I have concluded that the admission of the evidence in this case would bring the administration of justice into disrepute.
Analysis
A) Ground #1 – Did the trial judge err in her s. 8 Charter analysis by applying the wrong standard of review, and by failing to consider common sense inferences that could be drawn from the ITO?
[16] The appellant submits that the trial judge did not apply the correct legal standard when assessing whether there were sufficient grounds in the ITO, by 1) failing to consider common sense inferences that were available to the issuing justice, and by 2) elevating the reasonable grounds threshold to the higher standard of proof on a balance of probabilities.
[17] The respondents submit that the trial judge did consider the reasonable inferences available from the ITO, and did not apply the wrong standard of review.
[18] As indicated, the appellant frames this ground by raising two distinct questions. However, on my understanding of the Crown’s submissions, the alleged elevation of the standard of review arises primarily from the trial judge’s failure to consider reasonable inferences (and in her reliance on only direct evidence). Meaning, both questions can be addressed together.
[19] To begin, the principles that apply when reviewing a warrant are well settled. The question is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. The test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: Araujo, at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice 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: Morelli, at para. 40. An appellate court owes deference to the findings of a reviewing judge in their assessment of the record as amplified on the review, and to their disposition of a s. 8 application. An appellate court should decline to interfere with the reviewing judge’s decision, absent an error of law, a misapprehension of evidence or a failure to consider relevant evidence: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89.
[20] The trial judge, relying on this court’s decision in R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, found that the ITO did not contain information sufficient to establish a connection between the firearm and Brunel Court. She also relied on Di Luca J.’s decision in R. v. Coluccio, 2019 ONSC 4559, 440 C.R.R. (2d) 114, where a confidential informant told the police that they had seen the applicant in possession of firearms, and that the appellant was “crazy” and liked to show off his gun. In that case, as here, the informant did not say they had seen firearms in the applicant’s residence, and Di Luca J. held that there was little to no case specific support for the affiant’s assertion that people who possess firearms may take them from their car to their home. For that reason, among others, the warrant was quashed.
[21] In the end, I agree with the appellant that the trial judge misapplied Herta to the facts of this case. Of note, she appears to have ignored these crucial passages from Herta, in which Fairburn J.A. (as she then was) noted that the address searched was not the residence of Derek Callahan, the person said to possess a gun, and that if the address had been his residence it might have given rise to a reasonable inference that Callahan would keep his rifle there:
1670 Clover Avenue was not the “residence of Derek Callahan”. It was the residence of [Mr. Herta]. The correct wording could have been easily placed on the face of the warrant. This is not just about technicalities. If 1670 Clover Avenue had in fact been Callahan’s residence, it might have given rise to the reasonable inference that Callahan would secret his rifle at his own place. That inference falls away when the true state of facts is known.
The question is not whether there was an adequate description of the place to be searched. The question is whether the issuing justice might have been misled into thinking that Callahan lived there. She may have been and may have drawn the wrong inference that Callahan would keep his firearm at his own residence. That error may have contributed to the search warrant issuing in circumstances where it could not. [Emphasis added.]
[22] The inference that Donaldson kept his firearm at his own residence was available to the issuing justice, and the trial judge erred by finding otherwise. In this case, unlike in Herta, there was more than mere attendance at an address. In Herta, the ITO did not even disclose whether the affiant knew who lived at the residence or who owned it. In this case, there was information that Donaldson resided at the target address.
[23] The appellant argues, and I agree, that this error was compounded by the trial judge’s decision to, in effect, hold that direct evidence was required to show a connection between the firearm and 11 Brunel Court. On this point, the trial judge wrote:
I am satisfied that there is case specific information linking Mr. Donaldson to the 11 Brunel Court address. The information provided by the complainant and the investigation by the police makes this link.
However, in this case, as in Coluccio, there is no case specific information linking the firearm to the Applicant’s residence at Brunel Court.
The complainant reported seeing the gun on the person of Mr. Donaldson and in the cars that he rented. The information in the ITO supports the inference that the complainant had been inside both the addresses that she said were residences of Mr. Donaldson. She described how to enter the Beverly Street address and described staying there with Mr. Donaldson. With respect to the 11 Brunel Court address, the complainant described the location of the unit and told the police the name of the other occupant of the unit. She described the view from the balcony of the unit. The logical and reasonable inference is that she had been inside the unit. The complainant did not link the gun to the residences. She consistently linked the firearms to the car driven by Mr. Donaldson and to his person.
[24] In my view, the trial judge erred by failing to find that the evidence was capable of supporting a reasonable inference that firearms would be found at Brunel Court. In other words, while the trial judge acknowledged that reasonable inferences could be drawn from the information contained in an ITO, she failed to apply that and consider whether, and what, inferences were available to the issuing justice in the case before her.
[25] The Supreme Court has made it clear that reasonable inferences can be relied upon in the absence of direct evidence. For instance, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, the Supreme Court held that the ITO set out sufficient facts to ground a reasonable inference that records and documents relating to the ownership and occupancy of a property would be found at that property, and that the warrant to search the property was properly issued. Cromwell J. wrote that:
On the voir dire at trial, Cst. Carter agreed that the ITO contained no statement concerning his grounds to believe that documents evidencing ownership or occupation would be found in the residence. The trial judge found that “[t]he ITO does not contain a statement by its author that there are reasonable grounds to believe that documents evidencing ownership or occupation will be found in the Residence. Nor does the ITO contain any facts to support such a belief by Cst. Carter who drafted the ITO”.… She concluded therefore that the ITO could not support a search warrant for documents evidencing ownership or occupation.
The question for the reviewing judge is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge”. In applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious.
The ITO set out facts sufficient to allow the authorizing justice to reasonably draw the inference that there were reasonable grounds to believe that documents evidencing ownership or occupation would be found in the residence.… In particular, the ITO referred to the premises to be searched as a “residence” and as a “two (2) story house” (p. 111). It also indicated that the appellant owned the property, and that electricity was being consumed there (pp. 110-11). In my view, it is a reasonable inference that a residence would be the place to look for documents evidencing ownership or occupation. Where else would one expect to find such documents if not in the residence itself? Moreover, I think that the authorizing justice could reasonably infer that a place was being occupied as a residence from the fact that electricity was being consumed at that place and that it had an owner. [Emphasis added; citations omitted.]
[26] Similarly, this court’s decision in R. v. Baskaran, 2020 ONCA 25, 149 O.R. (3d) 409, leave to appeal refused, [2020] S.C.C.A. No. 71, supports the reliance on common sense inferences:
The trial judge gave detailed reasons for her conclusions. The appellants have failed to establish any error in those reasons. The appellants contend that the police had nothing more than speculation that cell phones were being used by the perpetrators in their efforts to follow the truck and that speculation was insufficient to provide a proper foundation for the granting of the June production order. In contrast, the trial judge found that it was “an available common sense inference” arising from the facts that cell phones were likely being used so that the perpetrators could keep in contact with each other. That common sense inference provided the necessary foundation, along with other evidence, for the June production order to be issued.
There can be no realistic challenge to the trial judge’s conclusion on this point. Given that there were multiple persons keeping an eye on this truck in order to determine its route, so that they could subsequently confront the driver and steal the truck, the practical reality is that the perpetrators would need to keep in contact with each other. While the appellants suggest that they could have used two-way radios, even in 2009 it would be much more common for persons to have, and to use, cellphones for this purpose. I note, on that point, that in a case just two years later that, on its facts, is very similar to this one, this court referred to cell phone use as “ubiquitous”. [Emphasis added; citations omitted.]
[27] Given that the ITO set out sufficient grounds to establish that the appellant had committed an offence, and that Brunel Court was one of his residences, there were reasonable and probable grounds to believe that a search of that residence would afford evidence of the offence, namely the firearms: Herta, at para. 54; see also R. v. Meecham, 2018 ONSC 7033, at paras. 29-30.
[28] The affiant had information – which was included in the ITO – that Donaldson possessed multiple firearms, including a handgun, and that he resided at 11 Brunel Court. Again, the test is not whether the reviewing justice would have issued the warrant, but rather, whether the issuing justice reasonably could have issued it. And measured against that standard, the trial judge fell into error by not considering available reasonable inferences, which consequently led her to the wrong conclusion.
[29] I agree with the appellant that the net effect of this error was to raise the “reasonable grounds to believe” threshold to one of “on a balance of probabilities”. The standard for issuing a warrant is whether there are reasonable grounds to believe that there is evidence respecting the commission of an offence in the location to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167. This standard does not require proof on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. Put another way, an affiant is not required to satisfy an issuing justice that it is more likely than not that the things to be searched for are at the location to be searched, which is what the trial judge did by requiring direct evidence that guns were at Brunel Court.
[30] The ITO showed that Donaldson possessed several firearms, and that he resided at the Brunel Court residence. That being the case, and unlike in the authorities cited and relied upon by the respondents, Donaldson himself is the link between the guns observed by the complainant and the target residence: see R. v. Sanchez (1994), 20 O.R. (3d) 468, at p. 482; R. v. Smith, 2011 ONSC 6560, 247 C.R.R. (2d) 150, at paras. 25-29. This gives rise to a common sense inference that one or more firearms would be found at his home.
[31] Of course, for a Crown appeal to succeed, it must be shown that the error of law “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. However, the Crown is not required to persuade an appellate court that the verdict would necessarily have been different: Graveline, at para. 14. The trial judge’s error in this case resulted in the exclusion of the evidence, and thus meets the necessary threshold and warrants a new trial.
[32] For his part, Kalonji submits that any error made by the trial judge would not have had a material bearing on his acquittal, as the evidence shows that a reasonable trier of fact would inevitably have acquitted him. I would not give effect to this submission. There was evidence capable of establishing a reasonable inference that Kalonji jointly or constructively possessed the items in the residence. The residence was shared; the fentanyl was found in a ceiling vent in the hallway bathroom, which Kalonji had access to; and the money was found in Kalonji’s bedroom. Again, the Crown does not need to establish that the verdict would necessarily have been different had the evidence been admitted, just that its exclusion had a material bearing on the result. Here, it clearly did.
B) Ground #2 – Did the trial judge misapply the Grant factors and then err by excluding the seized evidence pursuant to s. 24(2)?
[33] Given my conclusion on the first ground, there is no need to address the trial judge’s decision in respect of s. 24(2).
Conclusion
[34] For the reasons set out above, I would allow the appeal, set aside the trial judge’s order excluding the evidence, and for both respondents set aside the acquittals and order a new trial on counts one through five on the indictment.
Released: May 24, 2022 “P.R.” “J. George J.A.” “I agree. Paul Rouleau J.A.” “I agree. I.V.B. Nordheimer J.A.”
