Court File and Parties

COURT FILE NO.: CR-15-10000288-0000 DATE: 20160527 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ALEX JAMES Applicant

Counsel: Emile Carrington, for the Crown David Burke and Lilit Izakelian, for the Applicant

HEARD at Toronto: 11 May 2016

Reasons for Decision

mew j.

[1] Alex James seeks an order excluding from trial all evidence seized at 4001 Steeles Avenue West, Apt. 106, Toronto because the search of those premises violated the applicant’s rights pursuant to sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

[2] Mr. James is charged with firearms offences and possession of heroin, cocaine and cannabis for the purposes of trafficking. The firearms in question, as well as the drugs were all seized at or near the Steeles Avenue apartment.

[3] After hearing the submissions of counsel on this application, I reserved my decision. On 13 May 2016, I informed the parties that, for reasons to follow, the application was dismissed. These are my reasons.

The Evidence

[4] The evidentiary record relied on by the applicant consists of the Information to Obtain (“ITO”) and related search warrant application materials, the transcript of the Preliminary Inquiry in relation to the charges against Messrs. James and Dawson, a Community Inquiry Report dated 9 July 2013 and extracts from the notes of D.C. Marcelo Rossi and Detective Paul Dominey.

[5] Mr. James lives at the subject premises with his mother and sister.

[6] In March 2013, the Toronto Police became interested in the premises in connection with an investigation into a shooting that had occurred at York University on 6 March.

[7] Kemon Edwards became a person of interest as the police investigation into the shooting progressed.

[8] The police knew that, pursuant to the terms of a recognisance, Mr. Edwards was required to reside at 4001 Steeles Avenue West, Apt. 106, the address of his surety, the applicant, Alex James. However, the police investigation had also revealed, based upon known phone call and taxi orders, that Mr. Edwards spent a majority, if not all, of his time at his mother’s residence, located in an apartment on the 12th floor of a building at 345 Driftwood Avenue, Toronto.

[9] It was also known that Mr. Edwards’ social assistance benefits were associated with the Driftwood Avenue address.

[10] On Wednesday, 12 March 2014, members of the 31 Division Major Crime Unit of the Toronto Police Service attended 345 Driftwood Avenue in order to conduct surveillance in an effort to locate and arrest Kemon Edwards. Believing Mr. Edwards to be armed, the police requested, and were granted, an emergency GPS location ping on a cell phone number believed to be used by Mr. Edwards. This ping was traced to a location at the intersection of Jane Street and Hullmar Drive.

[11] 4001 Steeles Avenue West is one of two apartment buildings which, as well as a shopping plaza, are bounded by Steeles Avenue West to the north, Jane Street to the east and Hullmar Drive to the south.

[12] As a result of the “GPS ping” which placed Mr. Edwards’ phone within 100 metres of 4001 Steeles Avenue West, the police also undertook surveillance of those premises.

[13] Surveillance was initially undertaken on the evening of 12 March. An ITO sworn by Det. Constable Rich Luczyk on 13 March 2014 for the purposes of obtaining a search warrant at the premises attests to the belief of the police that Mr. Edwards was inside the apartment at 4001 Steeles Avenue West, Apt. 106 until at least 11:50 p.m., when surveillance for the day was discontinued.

[14] While the principal location of interest in respect of Mr. Edwards continued to be 345 Driftwood Avenue, the investigation team concluded that there might also be evidence at the Steeles Avenue apartment which would assist the investigation into the York University shooting. Accordingly, on 13 March 2014, D.C. Luczyk was tasked with preparing search warrant applications for both the Driftwood Avenue and Steeles Avenue West locations.

[15] On the afternoon of 13 March 2014, surveillance at 4001 Steeles Avenue West recommenced shortly after 1:45 p.m. Det. Constable Nitin Sehdev had placed his car in front of the building in order to watch the front door. He was in communication with officers conducting surveillance at 345 Driftwood Avenue. He was asked by the officers at Driftwood Avenue to also look out for a Mazda vehicle (records indicated that Mr. James was the owner of a Mazda). D.C. Sehdev responded that since he had been parked at 4001 Steeles Avenue, he had already observed a Mazda 3 vehicle which had pulled up to the entrance and then left.

[16] The same day, 13 March, further surveillance was also being conducted at 345 Driftwood Avenue. The Mazda that had been seen by D.C. Sehdev at Steeles Avenue was then seen pulling up at 345 Driftwood Avenue. An occupant of the vehicle got out and walked into the lobby of 345 Driftwood Avenue. It was known that the individual had gone up to the 12th floor (although no observations were made on the 12th floor so it cannot be said, conclusively, that the individual attended the Edwards apartment).

[17] After 10-15 minutes the same individual came back to the Mazda and at 3:18 p.m., the Mazda vehicle returned to the Steeles Avenue building. The occupants exited the vehicle and went into the building.

[18] There are contradictory accounts of how many occupants there were in the Mazda vehicle. D.C. Sehdev had observed two individuals in the vehicle, who he identified as Jesse Dawson (passenger) and Dominic Bernard (driver). By contrast, the ITO makes reference to one occupant of the Mazda having been observed, and identifying that individual as Mr. James.

[19] At 3:30 p.m., Kemon Edwards was seen leaving 345 Driftwood Avenue. He got into a taxi. The taxi was then followed from 345 Driftwood Avenue to the plaza located at 360 Hullmar Drive.

[20] Mr. Edwards entered a pizza restaurant at the plaza at which point he was arrested by members of the Toronto Police Service. Immediately following that arrest, officers executed a search warrant which, by that time, had been obtained, with respect to the apartment at 345 Driftwood Avenue.

[21] Following the arrest of Kemon Edwards, officers were told to remain at 4001 Steeles Avenue and were to “hold” Apartment 106 pending the authorisation and execution of a search warrant for those premises. A number of officers took up positions inside and outside the building. A key for the apartment was obtained from the superintendent for use as and when the warrant was authorised. In the meantime, officers were ordered to detain anyone exiting the unit to prevent any evidence being destroyed or removed.

[22] Word came back from the search being undertaken at 345 Driftwood Avenue that while, in addition to what appeared to be cocaine and heroin which had been on Mr. Edwards’ person at the time of his arrest, and 15 rounds of .357 calibre ammunition, found at the apartment, no handgun had been recovered as a result of the search. In light of this, the ITO states:

Given that:

• EDWARDS was believed to be at 4001 Steeles Avenue West, #106 the previous night – his current Recognizance requiring to still reside at 4001 Steeles Avenue West #106
• The male believed to be Alex JAMES travelling from 4001 Steeles Avenue West to 345 Driftwood Avenue and attending the 12th floor
• Kemon EDWARDS subsequently leaving 345 Driftwood Avenue and travelling to 4001 Steeles Avenue West immediately prior to being taken into custody
• The handgun had not been recovered

It was decided that surveillance of 4001 Steeles Avenue West #106, Toronto, ON would continue pending application of a Criminal Code Search Warrant.

[23] By 5:00 p.m. on 13 March there were seven officers (six in plainclothes and one in uniform) positioned in the common areas of 4001 Steeles Avenue West observing the front door of Unit 106 as well as a seventh officer, uniformed and in a patrol car, parked outside with a view of the rear of the apartment (which was a ground floor unit). The officers were aware that a search warrant was being prepared but, in the meantime, they were, as indicated, to detain anyone exiting the unit in case of any evidence being destroyed or removed from the unit. They were aware also that another search was being executed by Det. Dominey at another address in relation to the same investigation. Some if not all of the officers also had information about a possible firearm from a shooting being located inside the apartment.

[24] At approximately 5:02 p.m. a male, now known to be Jesse Dawson, exited Apartment 106 and walked in the direction of a door to a stairwell, behind which four officers were observing. Mr. Dawson, apparently coincident with seeing one or more of the officers standing behind the stairwell door, then returned to the apartment.

[25] Officers then followed Mr. Dawson and, using the key obtained from the superintendent, opened the door to the apartment. Suffice it to say that, for the purposes of this application, shortly afterwards, five individuals, all of whom had been in the apartment, had been arrested. Two of the individuals had exited the apartment through a back window. They were apprehended, as were the three who remained, one of whom was Mr. James.

[26] Co-incident with the arrests, the police found a loaded semi-automatic handgun, a digital scale and a quantity of what appeared to be cocaine, lying on the snow not far from the window that had been used by the individuals who left the apartment.

[27] It is important to note that, at this juncture, a search warrant had still not been issued with respect to 4001 Steeles Avenue West.

[28] Additions were made to the material being drafted by D.C. Luczyk in support the warrant. D.C. Luczyk deposed as follows:

While I was preparing the Information to Obtain a Criminal Code Search Warrant for 4001 Steeles Avenue #106, Toronto, ON received the following information from Detective Little #89887 of the 31 Division Major Crime Unit by telephone:

• 5 males had attempted to flee 4001 Steeles Avenue West #106
• One male had exited the hallway door of the apartment, seen Officers in the hallway and immediately went back into the apartment
• Subsequently 2 males (one of which was the same male that had just exited into the hallway and then turned back into the apartment) run out of the patio doors of the apartment
• Those two males were taken into custody and a BLACK SEMI AUTOMATIC PISTOL, approximately 1 oz. of crack cocaine, and an electronic scale were found on the ground where those two males were arrested.

[29] A little later on, D.C. Luczyk adds:

Subsequent to affecting [sic.] the arrest of the male subjects that ran out of the apartment, D.C. David Caccia 9377 clearly observed a quantity of marijuana and cash on the floor of the apartment from the area that the subjects had just run from.

[30] This latter paragraph relates to the visual observations said to have been made by D.C. Caccia. He and the other involved officers had taken the five apprehended individuals back to the apartment where their information had been obtained and outdoor clothing retrieved pending their transportation to 31 Division. Details of the five individuals apprehended at the Steeles Avenue apartment and grounds for reasonable belief in their involvement in firearms and narcotics offences were added to the ITO.

Basis for Challenge

[31] Mr. James argues that the search warrant should never have been granted. The notion that the police had grounds to believe that Kemon Edwards had a presence at 4001 Steeles Avenue West was, he argues, virtually non-existent. Although the terms of Mr. Edwards’ recognisance required him to be living at the Steeles Avenue address, the police knew full well that he was not living there. His welfare cheques were delivered to the Driftwood Avenue address and all of the activities of Mr. Edwards which the police had been able to track pointed him to be living at Driftwood Avenue.

[32] Although the Steeles Avenue apartment had been placed under surveillance on 12 March, and D.C. Luczyk had stated in the ITO that the police “believed” that Mr. Edwards had been there on that day, the fact is that he had not been seen entering or leaving 4001 Steeles Avenue West. Indeed, when an officer conducted a walk past on the evening of 12 March (during the course of police surveillance) no activity was discerned inside the unit.

[33] Although Mr. James’ Mazda had been seen going from the Steeles Avenue West apartment building to the Driftwood Avenue apartment building, there was no evidence of nefarious behaviour. Furthermore, there was conflicting evidence as to who was in the car.

[34] Additionally, although a cell phone “ping” had placed Mr. Edwards near the intersection of Jane Street and Hullmar Drive, that intersection was located not just near 4001 Steeles Avenue West but, also, a commercial plaza (at which location Mr. Edwards was, ultimately, arrested).

[35] Mr. James goes on to argue that any and all evidence emerging from the warrantless entry of apartment 106 at 4001 Steeles Avenue West, including the gun, drugs and scale found in the snow near the back of the apartment, should be excised from the ITO.

[36] He argues that residents of multi-unit dwellings have a reasonable expectation of privacy in the shared common areas of such buildings: R. v. White, 2015 ONCA 508.

Discussion

[37] As noted by the Court of Appeal in R. v. Sadikov, 2014 ONCA 72 at para. 82, the authorising Justice of the Peace makes his or her decision about whether to issue a warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice is entitled to draw reasonable inferences from the contents of the ITO. The standard for review of a warrant begins from a premise of presumed validity. In that regard, the Court of Appeal explains (at para. 84):

The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge [references omitted]. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search [reference omitted]. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.

[38] The reviewing court must, of course, first excise from the record which is considered for the purposes of review, information that is erroneous (R. v. Sadikov, at para. 86). But, as noted by the Supreme Court of Canada in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41, at the stage of obtaining a search warrant, a reasonable belief in the existence of the requisite statutory grounds for the granting of a search warrant will suffice. If, upon further investigation, the grounds which were relied upon in support of the authorisation prove to be false, that fact alone does not retroactively invalidate what was otherwise a valid authorisation.

[39] An ITO will typically not present a shining example of the legal draftsman’s art. The ITO in this case is no exception to that reality. ITOs are often replete with repetition and, in this technological day and age, no doubt suffer somewhat from the blight of “cut and paste”. The document must be scrutinised as a whole, rather than pulled apart line by line, clause by clause or even asserted fact by fact. Furthermore, deference should be paid to the ability of a trained peace officer to draw inferences and make deductions. See, generally, R. v. Sanchez, [1994] O.J. No. 2260 (Gen. Div.) at para. 20.

[40] There are errors and embellishments in the ITO. The evidence of D.C. Sehdev that Messrs. Bernard and Dawson were in the Mazda conflicts with the evidence in the ITO that Mr. James was the sole occupant of that vehicle. Similarly, the evidence concerning the point of egress of the two individuals who fled the apartment – whether through a window or a patio door – is not consistent. And references to “cash” being seen on the floor of the apartment then give rise to an assertion that the five males “were in possession of … a large quantity of cash”.

[41] Such inconsistencies do not, however, in my view amount to errors which would undermine the soundness of the ITO as a basis for the granting of the search warrant.

[42] It follows that I am not persuaded that any of the information contained in the ITO should be excised. Although there were discrepancies and inaccuracies, none of them, in my view, rise to the level of known falsehoods. There was, in any event, subject to the excision of evidence on Charter grounds, ample unimpeached evidence in the ITO to justify the decision of the Justice of the Peace.

[43] Having considered the applicable principles I find myself in agreement with the following statement in the Respondent’s Factum (at para. 53):

There ought not be any reasonable dispute that the police overwhelmingly possessed reasonable and probable grounds to obtain a search warrant for 4001 Steeles Avenue West, #106, when the completed ITO contained facts pertaining to evidence already found at the address over which the police were maintaining control. The Applicant’s only viable argument on the issue of probable cause depends on the excision of material from the ITO.

[44] I turn, then, to the question of whether what the Crown describes as “the evidence obtained by the exigency-based entry that is included in the ITO were to be eliminated upon a review of the warrant”.

[45] In R. v. White, 2015 ONCA 508, it was held that the police did not have unfettered access to multi-unit dwellings. The facts in R. v. White resulted in a determination that the owners/occupants of a small 10 unit condominium building had an expectation of privacy in the common areas of the building, such as the stairways, hallways and storage rooms. The police had taken advantage of security defects including problems with the lock on the outer door and a lack of proper insulation to enter the building and conduct surveillance. The Justice of the Peace issuing the search warrant had not been told that the police had entered the building without permission to obtain evidence. The Court of Appeal held that there had been a breach of the defendant’s rights under s. 8 of the Charter.

[46] The facts in the present case are very different from those in White. The building in question was a large multi-unit dwelling. The superintendent of the building had been advised of the police plan to execute a search warrant and the circumstances were such that it was open to the justice issuing the warrant to infer that the police were using the common elements with consent.

[47] Furthermore, in R. v. White there were no exigent circumstances argued. By contrast, following the arrest of Kemon Edwards, officers were told to remain at 4001 Steeles Avenue West (and additional officers were sent) to prevent the destruction or removal of evidence from the unit pending the approval of a search warrant. Furthermore, there was a bona fide concern about safety – both the safety of the officers and the public – since one of the items that they were looking for was a firearm. Mr. Edwards, the suspect in a shooting, had been apprehended nearby and ammunition, but no gun, had been found in the apartment at Driftwood Avenue. There was every reason to be concerned about what might be in the apartment at Steeles Avenue.

[48] When Mr. Dawson emerged from Apartment 106, urgent action was required. The police had ample reason to be concerned that someone leaving the apartment or other persons in there would dispose of any drugs before the authorities could get inside and that there may be an attempt to get rid of any weapon. The warrantless entry of the officers into the apartment in the circumstances described was, in my view, wholly justified.

[49] Furthermore, even if all of the evidence obtained as a result of the warrantless entry to the premises was excluded, I would still find that a warrant was justified based upon:

(a) The connection that Mr. Edwards had with the premises (under the terms of a recognisance he was supposed to be living there); (b) The presence of Mr. Edwards in the complex, as confirmed by the cell phone ping the day before (regardless of whether, as the police believed, he was actually in the apartment the previous day or not); (c) The journey of the Mazda owned by Mr. James (Mr. Edwards’ surety) from Steeles Avenue West to Driftwood Avenue and back shortly before Mr. Edwards was arrested (even though there were contradictory accounts of who was in the car, all of the individuals identified as having been in the car were among the five people arrested at 4001 Steeles Avenue West on the afternoon of 13 March and the fact remains that the car belonged to Mr. James).

Remedy

[50] In my view, there was no infringement of Mr. James’ protected rights to be free from unlawful search and seizure (s. 8 of the Charter) or from arbitrary arrest and detention (s. 9). If, however, I am found to be in error in so concluding, and what occurred at 4001 Steeles Avenue West violated Mr. James’ Charter rights, I would hold that the evidence should nevertheless be admitted under s. 24(2) of the Charter, applying the principles set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and, in particular, having regard to the three branches of inquiry established in that case, namely:

(a) Seriousness of the breach; (b) Impact of the breach on the Charter-protected interests of the accused; and (c) Society’s interest in the adjudication of the case on its merits.

[51] In respect of the first limb of the Grant inquiry, any breach of the rights of the applicant was, in the circumstances, not serious. The officers acted in good faith and it was their well-established intention to obtain a search warrant and to wait at the premises, without entering the unit until a warrant was obtained. The situation changed, however, and became immediately urgent when Mr. Dawson stepped out of unit 106. The response of the police, under those circumstances, was reasonable.

[52] With respect to the second branch of inquiry, I would agree with the applicant that an initial unlawful search of his home followed by the execution of an improperly obtained warrant would amount to very serious intrusions of the applicant’s Charter rights.

[53] Having regard to the third element, the absence of the seized firearm and the drugs would result in the termination of the prosecution of Mr. James. The seriousness of the alleged offences, involving the possession of a loaded prohibited firearm and significant amounts of narcotics for the purposes of trafficking, are factors that strongly favour society’s interest in the adjudication of this case on its merits.

[54] The first and third of the Grant factors weigh in favour of the admission of the evidence. The second factor favours Mr. James but, in my view, does not come close to tipping the overall scale towards exclusion of the evidence.

[55] For all of the foregoing reasons I would, accordingly, dismiss the application.

Graeme Mew J. Released: 27 May 2016

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – ALEX JAMES Applicant REASONS FOR DECISION Mew J. Released: 27 May 2016