Court File and Parties

COURT FILE NO.: CR-15-00008724 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANTONIO RICCIARDI Applicant

Counsel: Joanne McIntyre and Michelle Rumble, for the Crown Jessica Sickinger and Jeffrey Goldglass, for the Applicant

HEARD: February 14, 15, 16, 17, 20, 21 and 22, 2017

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

Ruling on S. 8 Application

DI LUCA J. :

[1] Mr. Ricciardi stands charged with 22 offences involving allegations of attempted sexual assault with a weapon, attempted sexual assault, attempted kidnapping, robbery, unlawful confinement, carrying a concealed weapon, wearing a mask with intent to commit an indictable offence, assault, obstruct police, criminal harassment and fail to comply with bail.

[2] Mr. Ricciardi brings this pre-trial application challenging the validity of six prior judicial authorizations that were used to obtain evidence in this matter. He alleges that the police violated his s. 8 Charter rights and seeks exclusion of certain items of evidence pursuant to s. 24(2) of the Charter. As will be set out below, I have concluded that only the first judicial authorization survives the Garofoli review. The remaining five judicial authorizations are invalid and are therefore quashed.

[3] In a separate pre-trial application heard following the Garofoli application, Mr. Ricciardi argues that, even if I find the police were operating under valid judicial authorizations, I should nevertheless find a breach of his s. 8 rights because the manner of search conducted on his computer was constitutionally infirm, in that it amounted to an “indiscriminate scouring” of his computer. In view of my conclusions on the Garofoli application, it is not necessary to decide whether the manner of search is unreasonable. As a result, I have not made specific findings in relation to the manner of the computer search, though I may make those findings in the context of the s. 24(2) Charter analysis that I will undertake once I hear further submissions from the parties.

Overview of the Alleged Offences

[4] On July 19, 2014, Ms. S. N., aged 55, was attacked at knifepoint as she entered her car which was parked at the Hillcrest Mall in Richmond Hill. The attacker threatened to kill her and told her he wanted to take her somewhere. Ms. S. N. was able to escape. Her attacker also fled the scene with her purse and keys, leaving behind a significant quantity of cash. Four days later, Mr. Ricciardi was arrested when he attended the lobby of Ms. S.N.’s apartment building, holding her key chain in his hand. He also had a knife strapped to his body. On July 24, 2014, police executed a search warrant on Mr. Ricciardi’s residence. They found Ms. S. N’s purse. The validity of this search has not been challenged.

[5] On January 26, 2015, C. V., aged 26, was working alone at F[…] boutique in Toronto. That afternoon, a man entered the store and indicated that his brother was getting married and that his fiancé wanted a gown. That same man returned to the store later that afternoon and approached Ms. C. V. who was at the back of the store. He punched Ms. C. V. in the face and held a knife to her as she screamed. He told her to lie down on her stomach and threatened to kill her. The attack was interrupted when someone else entered the store. The attacker escaped though his various movements were captured on a number of surveillance cameras. It is alleged that Mr. Ricciardi is the man seen on the cameras and is also the attacker.

[6] On February 11, 2015, Ms. G. E., aged 68, was attacked in her third floor apartment after returning from Hillcrest Mall. The man who attacked her is seen on surveillance video as he follows her in the lobby, then onto and out of the elevator. Ms. G. E. was able to fight off her attacker. The next day, the building superintendent observed a man he believed to be the attacker in the building. He later saw the man again outside the building. He and Ms. G. E. followed the man and took his picture. It is alleged that Mr. Ricciardi is both the attacker and the man in the picture.

[7] The Crown also alleges that between December 30, 2014 and February 12, 2015, Mr. Ricciardi posted a number of fictitious job ads on Craigslist. The jobs ads were mainly for jobs in the restaurant and modeling industries. Many women responded to the ads. Three women, V. C., T. F. and R. A., provided photos of themselves and agreed to meet for an interview. No meetings ever took place. It is alleged that Mr. Ricciardi is the person behind the fictitious job ads and scheduled meetings. The Crown alleges that the purpose of the ads was to attract potential victims for sexual offences.

The Evidence Sought to be Excluded

[8] The Applicant seeks to exclude items of evidence seized from his bedroom, including a pair of sunglasses, a pair of handcuffs, a book on forensic evidence, certain writings on notes, and a laptop computer in the bedroom. As well, he seeks to exclude data obtained following a forensic analysis of his laptop which was found to contain the following items of evidence:

a. Resumes and photographs relating to Craigslist ads; b. Craigslist artifacts; c. Evidence suggesting attempts to purchase firearms and handcuffs online; d. Online and email inquiries regarding firearms, tasers and pepper spray; e. Evidence of website visits relating to the purchase and sale of firearms; f. Evidence of internet searches and access to pornography using the search terms “rape videos” and “real rape videos”; and, g. Evidence of access to websites with the names “Russianrape.net”, “Todayrapevideos.com”, “Rapegalleries.net” and others.

[9] The Applicant also seeks to exclude evidence found on his cell phone and in his cell phone billing records. As I understand it, this evidence provides location evidence and evidence establishing contacts with various complainants and witnesses in the case.

The Search Warrants/Production Order Garofoli Application

[10] The Applicant brings a global Garofoli application challenging six prior judicial authorizations. At the outset of the application, the Applicant sought leave to cross-examine the main affiant, Officer Kinsman, in relation to one discrete aspect of the investigation. For oral reasons provided, I granted leave to cross-examine on the issue of the extent of the affiant’s knowledge of the scope of the police investigation into Mr. Ricciardi and the reasons why the true extent of the police investigation, assuming it was known to the affiant, was not provided to the issuing justice of the peace in accordance with the principle of full, fair and frank disclosure. The results of the cross-examination are discussed below.

[11] I was also provided with application records containing copies of the various warrants and informations to obtain (“ITO’s”), as well as preliminary inquiry transcripts of Officers Ju and Dority which formed the evidentiary basis for this application. The exhibits tendered before the preliminary inquiry in relation to these witnesses were also incorporated by reference. A highlighted copy of the exhibit list from the preliminary inquiry indicating which exhibits would apply to this voir dire was provided and marked as Exhibit F in these proceedings.

(a) The Guiding Legal Principles

[12] In this case, the challenge to the warrants and ITO’s is comprised of both facial and sub-facial components. A facial challenge examines whether the warrant is valid on its face and whether the ITO supporting the warrant provides an appropriate basis upon which the issuing justice could have issued the warrant. A sub-facial challenge goes behind the form of the ITO to attack or impeach the reliability of its content.

[13] Warrants are generally issued on the basis of “reasonable and probable grounds”. This standard requires “credibly based probability”; see R. v. Morris (1998), 134 C.C.C. (3d) 539 (NSCA) and R. v. Amare, 2014 ONSC 4119 at para. 83, (aff’d 2015 ONCA 673). The ITO must disclose reasonable grounds to believe that an offence has been committed and that evidence in relation to that offence will be found at the place to be searched; see R. v. Sadikov, 2014 ONCA 72 at para 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417 at para. 9:

In sum, the “reasonable and probable grounds” or “credibly-based probability” concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”).

[14] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable, see R. v. Storrey, [1990] 1 S.C.R. 241 at page 250. An officer is entitled to rely on training and experience in assessing grounds but must be careful to consider both evidence that supports grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 117 C.C.C. (3d) 193 (ONCA) at p. 203. An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465 at para. 48.

[15] An ITO must contain a reasonable degree of precision about the items being searched for, assessed within the context of the case; see R. v. Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (ONCA) at p. 509. The ITO must also establish a basis for the reasonable belief that those items will afford evidence in respect of an offence under investigation; see Canadian-Oxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at para. 15.

[16] The ITO should also precisely specify the location or place that is to be searched, including any computers or smartphones that may be found at the location; see R. v. Ting, 2016 ONCA 57, R. v. Vu, 2013 SCC 60 at para. 2 and R. v. Fearon, 2014 SCC 77. As well, the ITO must provide grounds supporting the belief that the listed offence or offences have been committed though exact precision is not required; see R. v. Morelli, 2010 SCC 8 at para. 50 and R. v. Ward, 2012 ONCA 660 at paras. 110-116.

[17] The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established; see R. v. Harris (1987), 35 C.C.C. (3d) 1 (ONCA) at p. 13-16 and Church of Scientology, supra, at p. 500. That said, an issuing justice is permitted to draw reasonable inferences from stated facts; see R. v. Nero and Caputo, 2016 ONCA 160 at para. 71.

[18] On a review, the role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is 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; see R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, supra, at para. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[19] The review is conducted based on the whole of the ITO using a common sense approach to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant; see R. v. Morelli at para. 167, R. v. Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Nguyen, supra, at para. 58, R. v. Araujo, 2000 SCC 65 and R. v. Persaud, 2016 ONSC 6815 at para. 64.

[20] The excision exercise requires that any unlawfully obtained evidence be removed from consideration in assessing the sufficiency of grounds in an ITO, see R. v. Grant, [1993] 3 S.C.R. 223, R. v. Plant, [1993] 3 S.C.R. 281 and R. v. Wiley, [1993] 3 S.C.R. 262. While the continued validity of the automatic exclusion approach has been criticised, it remains the law; see R. v. Jasser, 2014 ONSC 6052 at paras. 26-34.

(b) The evidence of Officer Kinsman and the Sub-Facial Challenge

[21] The sub-facial challenge advanced in this case relies on a modestly amplified record which includes the viva voce testimony of Officer Kinsman as set out below as well as several exhibits. The thrust of the sub-facial attack is that Officer Kinsman did not provide full, fair and frank disclosure to the issuing justice. Had he done so, it would have been revealed that the true purpose of the various warrants in this case was not to collect evidence in support of the charges relating to G.E. and/or the fail to comply with recognizance charge, but rather the intent was to use the warrants as a “wedge” to permit searches in support of a much broader police investigation into the various activities of Mr. Ricciardi. The defence submits that while the police may have had sufficient grounds to investigate the offences listed on the face of the warrants, they did not have sufficient grounds to believe that Mr. Ricciardi was involved in other attacks on known and unknown victims, though they suspected as much.

[22] The main affiant, Officer Kinsman, was cross-examined on the state of police knowledge regarding the investigation into Mr. Ricciardi at the time the various warrants were issued. The relevant time is from February to March, 2015. At that time, the police were aware that Mr. Ricciardi had been arrested and released on bail in relation to the offences alleged to have occurred at Hillcrest Mall. They were also aware of the alleged offences regarding G.E. and the allegation of fail to comply bail, which were the offences in relation to which Mr. Ricciardi had just been arrested. The police also believed that there were more offences involving Mr. Ricciardi. Indeed, they believed, or at least suspected, that his offences were serial in nature and that he was preying on other victims.

[23] In this regard, Officer Kinsman confirmed that he was aware that the police had contacted the Special Victims Unit (SVU) to seek assistance. He also confirmed that the police had contacted the Serial Predator Unit operated by the Ontario Provincial Police. As well, the police sought funding for a project known as “Back in Black”. This project related to Mr. Ricciardi and was based in part on the content of certain notes found in Mr. Ricciardi’s bedroom, obtained during the second authorized search at that residence.

[24] The operation plan for project “Back in Black” dated February 17, 2015 noted among things the need to identify other victims, obtain information relating to Mr. Ricciardi’s mindset, collect information for Long Term Offender (LTO) and Dangerous Offender (DO) applications. The plan also expressed the belief that Mr. Ricciardi was a serial predator.

[25] Officer Kinsman agreed that he was aware of the operational plan as well as the contacts with the SVU and OPP when he authored the search warrant to examine the contents of Mr. Ricciardi’s computer, though he made no mention of the plan or the contacts in the related ITO’s. Officer Kinsman testified that he did not include references to these items in the ITO because at that stage the police did not have reasonable and probable grounds to believe that Mr. Ricciardi was involved in other offences. The focus of the warrants was on the offences for which the police had reasonable and probable grounds.

[26] Officer Kinsman was also cross-examined on his knowledge of various entries reflected in a written investigative chronology. These entries revealed the various steps in the investigation, as well as possible connections between Mr. Ricciardi and other offences under investigation. Officer Kinsman agreed that he reviewed the chronology on a continual basis and either knew of the information reflected therein on the date it was entered or within a few days. He was asked to explain why he included reference in the ITO’s to some, but not all of the matters revealed in the chronology, and he explained that his focus was only on the offences listed in the ITO’s. While the police believed that Mr. Ricciardi was responsible for other offences, they did not have sufficient grounds to pursue a warrant for those offences.

[27] Officer Kinsman’s attention was drawn to certain paragraphs of the ITO, wherein he makes reference to the fact that the police believed there were other offences and/or unknown victims. He was asked why he did not provide details to the issuing justice regarding these other offences and/or unknown victims and he replied that since he did not have reasonable and probable grounds, he did not think it was appropriate or necessary to include those details.

[28] When asked about the Ferre Sposa incident, Officer Kinsman indicated that while he became aware of the Toronto Police Service investigation during the course of preparing the various warrants, it was not referenced in the ITO’s as it was not an investigation that his police force was involved in. He explained that he was not looking for evidence in relation to the Ferre Sposa incident and indeed did not have reasonable and probable grounds in relation to that investigation.

[29] Ultimately, Officer Kinsman agreed that he could have put more information into the ITO’s and that in hindsight he perhaps should have. However, he maintained that he did not set out to intentionally mislead the issuing justice. He attempted to frame the searches in terms of the offences for which he had reasonable and probable grounds, and while he referenced the fact that the police were hoping to find evidence in relation to other victims, he did not think it was necessary to include details as he did not have reasonable and probable grounds to conduct a search in relation to those offences.

[30] In re-examination, the Crown took Officer Kinsman through the various ITO’s and highlighted numerous instances where he indicated that the police believed there were more victims and offences which might be revealed during the execution of the various search warrants. Officer Kinsman was clear in his evidence that while the police believed that evidence might be obtained in relation to new victims and offences, the purpose of the searches was seeking evidence in respect of the listed offences.

[31] The defence position is that when viewed against the backdrop of the entire police investigation, the ITO’s for the various warrants were misleading. The ITO’s did not contain full, fair and frank disclosure. While the ITO purported to support the issuance of warrants in relation to the listed offences, the real purpose behind the issuance of the warrants was much broader. The police were not simply investigating the incident involving G.E. Rather, they viewed Mr. Ricciardi as a serial predator and wanted to investigate him in relation a broader range of known and unknown offences.

[32] The Crown’s response is that the affiant not only set out the basis for the searches in relation to the offences for which he had reasonable and probable grounds, but also candidly advised the issuing justice that the police also believed or suspected there may be other offences and other victims. The Crown argues that the purpose of the search warrant was not hidden. The police were searching for evidence in relation to the offences involving G.E. and the fail to comply bail charge. The fact that they also hoped to find evidence in relation to other offences or victims was not hidden from the issuing justice. Moreover, the secondary purpose of the search did not detract from the existence of valid grounds to conduct the searches as framed. According to the Crown, this was not a case where the police used a warrant validly issued for one ostensible purpose to obtain evidence for another unstated purpose for which the police had no valid basis to conduct a search.

[33] In order to succeed on this argument, the Applicant would need to demonstrate that the police hid the true purpose of the search warrants from the issuing justice and that if the true purpose had been disclosed, no issuing justice could have issued the warrants. Alternatively, the Applicant would need to establish that even if a warrant could have issued on the basis of the ITO, the non-disclosure of the true purpose for the warrants was so serious that the Court should nonetheless quash the search warrants. This latter argument is, in effect, an argument that the warrant is vitiated by fraud/non-disclosure; see R. v. Morris, supra, at p. 553 and R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (ONCA) at para. 40.

[34] In assessing this issue, some features of the search warrant process bear repeating. First, a search warrant is an investigative evidence gathering tool often used in the early stages of an investigation before the final form of the investigation and the charges, if any, are known; see Canadian Oxy Chemicals v. Canada (Attorney General), supra, at para. 21-22. When obtaining a warrant in the early stages of an investigation, the police are not required to have uniform grounds of belief in relation to all aspects of the investigation. Depending on the state of an investigation, the police may have reasonable and probable grounds in relation to some offences and items of evidence but only suspicion in relation to others.

[35] Second, a search warrant authorizes a search for listed items which are believed to be evidence with respect to the commission of the listed offences. In this regard, the police must set out a basis, on reasonable and probable grounds, for believing that the listed offences have been committed and that evidence in respect of those offences will be found at the place to be searched; see R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.).

[36] The scope of the search power granted is determined by reference to the warrant that is issued. The police can only search for the items listed in the warrant. Where the items sought are broad or categorical in nature, the search is guided by reference to the listed offences. The evidence collected must be evidence “with respect to” the commission of the listed offences. The term “with respect to” is given a very broad meaning in the case law, and includes anything that is relevant or rationally connected to the incident under investigation, the parties involved and their potential culpability; see Canadian-Oxy Chemicals at para. 15-17 and R. v. Canadian Broadcasting Corp. (1992), 77 C.C.C. (3d) 341 (Ont. Ct. Gen. Div.). It does not need to be evidence that establishes an element of the Crown’s prima facie case. In this regard, I note the comments of Chief Justice McRuer in Re Bell Telephone Company of Canada (1947), 89 C.C.C. 196 (Ont. H.C.) at p.198:

As I view it, the object and purpose of these sections is to assist the administration of justice by enabling the constable or other properly designated person to go upon the premises indicated for the purpose of procuring things that will in some degree afford evidence of the crime, but it must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime.

[37] I also note the comments of Dickson J. in Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at p. 39:

The words “in respect of” are, in my opinion, words of widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The Phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters.

[38] Third, while the power to search is limited to the authority conveyed by the warrant, the power to seize items is not so limited. Indeed, when conducting a seizure, the police are not strictly bound by the terms of the search warrant. Both the common law “plain view” doctrine and the statutory provisions found in s. 489(1) and (2) of the Criminal Code, expand the police seizure power beyond the scope of a warrant where certain preconditions are met. While there are differences between the common law and statutory plain view seizure powers, both require that the police believe on reasonable and probable grounds that the item they want to seize will afford evidence in respect of an offence; see R. v. Spindloe, 2001 SKCA 58 and R. v. Jones, 2011 ONCA 632. Where the police operate under a valid warrant and operate within the confines of the plain view doctrine and/or s. 489 (1) and (2) of the Code, they are entitled to seize and use the “windfall” evidence discovered during the execution of the warrant even though it was not sought under the terms of the warrant; see R. v. Welsh (No. 6) (1977), 32 C.C.C. (2d) 363 (ONCA), which discusses the concept of windfall evidence albeit in the context of wiretap authorizations.

[39] Turning to the argument advanced here, I do not find that Officer Kinsman failed to make full, fair and frank disclosure to the issuing justice. While I agree that he could have provided more details of the various other offences the police suspected that Mr. Ricciardi was involved in, that failure is not fatal in this case for a number of reasons.

[40] First, I accept Officer Kinsman’s evidence that he legitimately and honestly sought the warrant to find the items listed as evidence in relation to the listed offences. I do not find that Officer Kinsman used the search warrant process to obtain a warrant to conduct a broad search for items of evidence or offences that he did not have grounds for. Put another way, I am not satisfied that the search warrants were obtained as a ruse or cover for a much broader search based on suspicion instead of reasonable and probable grounds.

[41] Officer Kinsman presented as a credible witness. He discussed the thought process he used in crafting the search warrant, and it is clear from his evidence that he felt it was important to seek the warrant only in relation to the evidence supporting the offences he had reasonable and probable grounds for. Despite his relative inexperience in drafting search warrants, he was aware of the nature of the process and seemed concerned about not misleading the issuing justice. He articulated reasons why he included some investigative references but not others. He agreed that in hindsight he could have put more in and accepted that if he was to re-draft these warrants he would have done a better job describing the extent of the police knowledge of the investigation.

[42] Second, I find that the issuing justice was nonetheless sufficiently apprised of the fact that the police believed Mr. Ricciardi was involved in further offences involving unknown victims. This secondary purpose to the warrants was not hidden from the issuing justice. There are repeated references to it throughout the various ITO’s. Moreover, there is nothing improper about the police using a legitimately obtained search warrant to obtain evidence of other offences. Both the common law “plain view” doctrine and s. 489(1) and (2) of the Code contemplate this very outcome. As well, in some cases, resort to these plain view seizure powers is unnecessary. Evidence of a new victim or a further offence may fall into the broad category of “evidence in respect of an offence” as that term has been defined. To provide but one example, where the police are investigating a sexual assault, evidence revealing a new victim which constitutes evidence of a separate offence, is also potentially evidence “in respect of” the original sexual assault under investigation as it might be reasonably viewed as similar act evidence. This is not always the case, and in fact, in this case the police were wise to go and get a second warrant permitting the search of the contents of the computer in relation to the suspected child pornography which was clearly unconnected to the original offences under investigation.

[43] Lastly, I find that the list of items sought in the various warrants, apart from the warrant used to search the contents of the computer, belie the existence of an ulterior purpose to the warrants. If Officer Kinsman’s purpose had been to obtain an authorization for a broad search beyond the available grounds, one would have expected the appendix listing the items to be searched for to contain broad categories of evidence, thus permitting the broadest possible search. While I comment below on the sufficiency of the grounds provided in the ITO’s, I find for the purpose of this argument that Officer Kinsman sought warrants only for items he believed he had sufficient grounds for and did not resort to broad categories of items in order to permit a search beyond that justified by the available grounds.

[44] That said, the warrant for the computer does cause me some concern. As set out below, the computer warrant is extremely broad and permits the police to engage in a free ranging search of the entire contents of the computer. While this creates some difficulties in terms of the validity of the warrant and potentially in relation to the manner of the search, I am not prepared to find that the warrant was structured this way for the purpose of permitting the police to search for evidence of offences not listed in the ITO. Rather, I find that the drafting of the warrant was likely a product of Officer Kinsman’s lack of experience. Indeed, comparing the ITO used to obtain the first computer search warrant with the ITO used to examine the computer after the alleged child pornography was discovered reveals a clear improvement in terms of the quality and completeness of the drafting.

[45] In summary then, I reject the argument that Officer Kinsman failed to make full, fair and frank disclosure and further reject the argument that Officer Kinsman used the narrow end of the warrant “wedge” to obtain access to Mr. Ricciardi’s property and permit the police to conduct a much broader search than permissible in the circumstances.

(c) The Telewarrant to Search 312-15 Baif Boulevard, Richmond Hill

[46] On February 12, 2015, the police obtained a telewarrant to search apartment 312 at 15 Baif Boulevard in Richmond Hill. This is the location where police believed Mr. Ricciardi to be residing at the time of his arrest, which was shortly after the alleged commission of the offences. The warrant was obtained to search for two items: a pair of dark, large framed sunglasses and a pair of black leather gloves. The warrant authorized a night entry pursuant to s. 488.1 of the Criminal Code.

[47] Upon execution of the warrant, police officers located a pair of dark, large framed sunglasses. Nestled in between the temples of the sunglasses, police found a pair of handcuffs. Police also observed a desk next to a bed in the room they believed was occupied by Mr. Ricciardi. On the desk they observed a number of items, including a laptop which was sitting with the screen flipped up but not illuminated, and a book on forensic evidence in Canada. The police also located a small amount of ammunition.

[48] The defence does not challenge this warrant on the basis of the sufficiency of grounds relating to the items sought or the sufficiency of grounds to believe that the listed offences had been committed. Rather, the defence submits that police failed to provide a sufficient basis supporting the use of the telewarrant process, and further that the police failed to provide a sufficient basis for a night entry. In terms of the execution of this warrant, the defence alleges that the seizure of the handcuffs and forensics book, neither of which were listed in the warrant, was not based on sufficient grounds. As well, the defence argues that the search of the contents of the forensic evidence textbook and the observations made of the laptop screen also fell outside the scope of the warrant, and both the common law plain view doctrine and the statutory plain view provisions of s. 489 of the Criminal Code. The defence submits that these aspects of the search and seizure are unlawful and must be excised from the subsequent search warrant ITO’s, in addition to being subjected to a separate s. 24(2) Charter admissibility analysis.

[49] In relation to the night entry and telewarrant issues, the ITO was sworn on February 12, 2015. Mr. Ricciardi was arrested at approximately 7:13 p.m. that day and was being held in custody while the warrant was prepared. Officers attended at 15 Baif Boulevard and secured access to the apartment unit pending the arrival of the warrant. Members of Mr. Ricciardi’s family were not permitted to access the apartment and were held in the lobby of the apartment.

[50] The cover page requesting the telewarrant noted that the request was urgent for the following reasons:

Night grounds requested. Possible destruction of evidence by family in dwelling. Officers stationed at residence since arrest. Holding for Search WARRANT. Family being held in lobby. One parent is elderly.

[51] The first page of the ITO lists the following explanation for why it is impracticable to appear before a justice of the peace in person:

[C]ourts are presently closed and the accused is in custody. Family of accused is being held from the residence.

[52] In the body of the ITO under the heading “Night Grounds” a similar notation appeared:

Officers from York Regional Police are currently at the residence of unit 312 at 15 Baif Boulevard in the Town of Richmond Hill pending the issuance of this warrant. Concerns exist that family of RICCIARDI (His brother Luciano RICCIARDI) if allowed to re-enter may destroy evidence. They are currently awaiting execution of this pending warrant in the lobby of the building. The mother, is elderly and we are making efforts to complete this ASAP. As such, an urgent telewarrant is being requested. I ask that this be granted to enter the residence at night.

[53] The ITO also noted that the plan was to conduct a “soft knock entry”.

[54] The ITO was faxed to the justice of the peace at approximately 11:48 p.m. on February 12, 2015. At approximately 12:02 a.m. on February 13, 2015, the warrant was signed and faxed back to the officers. The warrant was executed at 12:41 a.m. and the search was completed shortly thereafter.

[55] Section 487.1(1) of the Criminal Code permits an application for a warrant to be conducted electronically in cases where it is “impracticable” to appear personally before a justice of the peace to obtain the warrant in the ordinary course.

[56] Section 487.1(4) of the Criminal Code provides that an “information that is submitted by telephone or other means of telecommunication” seeking a telewarrant, “shall include” a number of different statements justifying the issuance of the requested telewarrant. One of these mandatory statements is “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice”.

[57] Section 487.1(5) of the Criminal Code provides that a justice may thereafter issue the requested telewarrant if he or she is satisfied that the information submitted by telephone or other means of telecommunication: (a) is in respect of an indictable offence and “conforms to the requirements” of s. 487.1(4); (b) “discloses reasonable grounds for dispensing with an information presented personally and in writing”; and (c) discloses the necessary “reasonable grounds” for the issuance of the warrant.

[58] The standard to be satisfied for resort to the telewarrant process is low. In R. v. Erickson, 2003 BCCA 693 at para. 33 and in R. v. Le, 2009 BCCA 14, [2009] B.C.J. No. 99 (C.A.) at paras. 32-34, the Courts held that the word “impracticable” in s. 487.1(1) “means something less than impossible and imports a large measure of practicality, what may be termed common sense”; and see also R. v. McKenzie, 2016 ONSC 245, R. v. Pavic, 2010 ONSC at paras. 18-19, and R. v. Rutledge, 2015 ONSC 1675.

[59] Simply stated, the affidavit must establish that it is not practical to resort to the ordinary warrant provisions. I find that the ITO and the search warrant fax cover pages establish an adequate basis upon which resort to the telewarrant provisions of the Criminal Code could be justified. It must be remembered that the justification needed for resort to the telewarrant provisions is not onerous. It merely requires a basis upon which it can be said that circumstances make it impractical to apply for a warrant in the normal course.

[60] In this case, the Applicant was arrested outside of regular Court hours. He was being held in custody and his family was being held outside the apartment to be searched pending arrival of the warrant. There was urgency in the sense that the police wanted to avoid the destruction of evidence and also wanted to minimize disruption to Mr. Ricciardi’s family, particularly his elderly mother. The urgency was noted on the cover of the telewarrant fax cover page.

[61] I find that the circumstances of this case demonstrate precisely the type of case where resort to a telewarrant is appropriate. I appreciate that the ITO and telewarrant cover page could have more thoroughly summarized the basis upon resort to the telewarrant provisions was premised. Nonetheless, I am satisfied that on the basis set out in relation to the night entry, as discussed below, in combination with the timing of the arrest and the timing of the preparation of the warrant materials, it was appropriate to resort to the telewarrant provisions in these circumstances. This is not a case like R. v. Daniels, 2015 ONSC 283, where the Court found that the ITO contained no basis upon which the issuing justice could assess grounds for resort to the telewarrant process.

[62] In relation to night time entry, s. 488 of the Criminal Code requires that where the police want to search a premise at night, grounds supporting the basis for a night time entry must be articulated and the search warrant must specifically provide for a night time search. The importance of this section was explained by the Court of Appeal in R. v. Sutherland, where Carthy J.A. noted:

In my view, a failure to satisfy s. 488 (b) is a strong indicator, if not conclusive, of an offence of s. 8 of the Charter. Nor do I agree that in this case an inference can be drawn from the information, as amended or in its original form, that there were reasonable grounds to believe the opportunity to seize stolen goods might have been lost if it had not been pursued before the next morning. This ring had been in the possession of the appellant for two months. Apparently, he had twice exhibited it for close enough inspection that an engraved name could be read. The obvious and only reasonable approach was for the officer to obtain the warrant and greet the appellant at his apartment door in the morning.

The provision for a night search of a home is meant to be invoked in exceptional circumstances and not, as here, to be used casually to justify invasion of a home whose occupants can be expected to be in bed asleep--all to find watches worth $3,000 and some commemorative rings which would in all likelihood have remained there until morning.

[63] In my view, the police provided the issuing justice with a sufficient basis upon which a night time entry could be authorized. At the time the police were applying for the warrant, the Applicant had been arrested and was in custody. The police had a legitimate concern regarding the destruction of evidence. They had secured the apartment and were holding his family members in the lobby area of the building pending the arrival of the warrant. The police wanted to conduct a quick search of the apartment and then allow the Applicant’s family re-entry into the apartment. There was no plan to conduct a dynamic entry or wake or startle occupants of the apartment. Indeed, the occupants were awake and waiting to get back into their home, presumably to go to bed in view of the time. In these circumstances, I find that conducting the night time entry actually struck a less intrusive balance than keeping the Applicant’s family out of the apartment until morning so that a warrant could be executed during daytime hours. The request was reasonable and appropriate in the circumstances and I am satisfied that the issuing justice could have made the order.

[64] Turning to the seizures beyond the scope of the warrant, I note that both the common law “plain view” doctrine and s. 489(1) of the Criminal Code provide a basis upon which officers can seize items outside the scope of warrant where those items are discovered during the course of executing the warrant. While there are notable differences between the common law and statutory provisions, both require that the seizing officer have reasonable and probable grounds to believe that the items observed are evidence in relation to an offence. As well, both the common law and statutory provisions are limited to seizures. They do not create an independent power to search; see R. v. Jones, supra, at para. 56-74 and R. v. Spindloe at para. 50.

[65] In relation to the handcuffs, Officer Ju testified that he seized them because “it’s not typical for a person to own a pair of handcuffs unless, um, they’re in some sort of law enforcement role. So, I found it suspicious in nature.”

[66] In relation to the forensics text book, Officer Ju testified that he flipped thought the pages of the book and observed highlighting on various passages. He said he found the highlighting “suspicious.” He thought that Mr. Ricciardi was either “studying law” or “possibly” trying to learn ways to beat the criminal justice system. On that basis, he decided to seize the book.

[67] In relation to the computer, Officer Ju indicated that he observed the laptop computer on a desk in the bedroom. The screen portion of the computer was flipped open but the computer itself was not illuminated. According to Officer Ju, “human curiosity” caused him to touch the computer mouse pad in order to see if the computer was operational. He agreed that at the time he did this, he had no reason to believe that the computer or its contents were of any particular interest to the investigation.

[68] When the screen lit up, Officer Ju observed an orange icon on the screen with the words “Firearm Licence A.N…” Officer Ju believed the icon possibly related to a firearms application or website though he was not sure. He did not “click” on the icon and took no further steps involving the computer. He noted the nature of the icon in his notes “due to the nature of the investigation” and he believed it was “important for public safety”.

[69] The handcuffs and the textbook were not items listed in the search warrant appendix as items sought. The warrant provided no lawful basis for the seizure of these items. As well, on the basis of items sought (sunglasses and gloves), there was no basis for the officer to open the cover of the text book and peruse its contents as there is no way the officer was searching for the sunglasses and gloves inside the book. Indeed, there was no lawful basis for the officer to search the contents of the book.

[70] The lawfulness of the seizure turns on the application of the plain view doctrine and/or s. 489(1) of the Criminal Code. In this regard, I find that the seizing officer did not subjectively believe, on a reasonable and probable grounds basis, that the seized items were evidence in relation to a criminal offence. At best, and by his own admission, the officer found the items suspicious. On this basis alone, the seizure of these two items is unlawful. Moreover, the perusal of the contents of the book, in the circumstances of this case where the perusal bore no possible connection to discovering the items listed in the search warrant, constitutes a search and therefore falls outside the scope of the plain view doctrine and s. 489(1) of the Criminal Code.

[71] In relation to the computer, there was no lawful basis for the officer to activate the laptop screen using the mouse pad. The police were not looking for the computer and the officer articulated no lawful basis apart from curiosity for undertaking this search. I find that the activation of the laptop screen and the observations made of the icons on the screen are a search and therefore are not captured by either the plain view doctrine or s. 489(1) of the Criminal Code.

[72] The admissibility of the items will be addressed following submissions on s. 24(2) of the Charter. However, for the purpose of the Garofoli analysis of the subsequent ITO’s, I note that while I am obligated to excise unlawfully obtained evidence, it is the unlawfully seized evidence that must be excluded, not lawful observations made by the police officers. As such, I find that content of the seized text book and the observations made of the activated screen of the laptop are to be excised. The police had no lawful basis upon which they could make these observations.

[73] However, the observations of the handcuffs and the text book in close proximity to the laptop will not be excised from the subsequent ITO’s. The police were in the lawful execution of their duties when they made these observations.

(d) The telewarrant to enter 15 Baif Boulevard to seize the laptop computer

[74] Following the execution of the first search warrant, the police decided that they should have seized computer that had been observed during the execution of the first warrant. As a result, they applied for a second warrant authorizing entry into 15 Baif Boulevard for this purpose. Using the same ITO, police also obtained a warrant authorizing a search of 17 Pembroke Street, Unit #33, which the police believed was another place of residence for Mr. Ricciardi. The warrant was issued at 2:25 a.m. on the morning of February 14, 2015, and it authorized a search between the hours of 2:30 a.m. and 6:00 a.m.

[75] Appendix “A” to the warrant lists a number of items the police were looking for including: a Toshiba laptop and “any documents such as diaries, personal notes or plans to commit criminal offences”.

[76] The warrant was obtained using the telewarrant process and the first page of the ITO notes:

Due to the desired hour of execution, and the need to expediate [sic] the time of entry; it is impracticable to attend court and apply for this Judicial Authorization in person.

[77] The warrant also permitted a night time entry, the grounds for which were set out in the body of ITO and the telewarrant fax cover page. The grounds for night entry were not provided on the first page of the ITO, which provides a check box indicating a night entry request and space for the grounds to be inserted.

[78] In essence, the basis for the night time entry was that on February 13, 2015 at 6:00 p.m., the police had issued a press release regarding Mr. Ricciardi’s arrest and as a result they believed that “his supporters”, including his brother, Luciano Ricciardi, and his surety, Steve Michalchuk, might undertake efforts to destroy or discard evidence.

[79] I find that the ITO provides a sufficient basis upon which an issuing justice could be satisfied that resort to the telewarrant procedure is appropriate. Again, the grounds provided are sparse, but the test is low as discussed above.

[80] I have more difficulty with the request for a night entry. The facts in relation to this warrant are significantly different than those in relation to the first warrant. In this instance, the police sought to justify the night entry on a stated concern about destruction of evidence by “supporters” of Mr. Ricciardi. The ITO contains a bald assertion stating this concern but no supporting grounds.

[81] The ITO seeks to link the need for a night entry to the issuance of the press release regarding Mr. Ricciardi’s arrest which was issued at 6:00 p.m. on February 13, 2015. The concern was that the press release would “tip-off” Mr. Ricciardi’s supporters, who would then rush out to destroy or dispose of evidence. The problem with this concern is that Mr. Ricciardi’s arrest was already known to his family and indeed, the 15 Baif Boulevard apartment had already been subject of a search on February 13, 2015. To the extent that a concern over the potential destruction of evidence was a live issue, it had been so since Mr. Ricciardi’s arrest two days prior. The issuance of the press release would not have changed matters.

[82] In these circumstances I find that there was no basis upon which the issuing justice could have authorized a second night entry of 15 Baif Boulevard, and as a result I find a violation of s. 488 of the Criminal Code and in turn a s. 8 violation.

[83] I turn next to assessing the grounds for the seizure of the computer. The ITO reveals that the laptop had been observed by police while they were executing the first warrant. I note that the observation made of the activated laptop screen and the contents of the forensics text book are to be excised from the ITO as they were unlawfully obtained during the execution of the first warrant. That said the photographs showing where the laptop was located, as well as the description of the cover of the forensic text book, are not to be excised as those observations were lawfully made.

[84] In terms of remaining grounds in relation to the seizure of the computer, the ITO states:

In retrospect, the laptop shall be seized and contents therein extracted and analyzed. It is plausible that the accused Antonio RICCIARDI has been surfing the World Wide Web and or downloading material that will assist and or educate Mr. Ricciardi in committing criminal acts. This will establish that Mr. Ricciardi has Mens Rea and the evidence found therein will afford evidence of the state of mind the accused was in. [Emphasis added]

[85] There are no further grounds articulated in relation to the seizure of the computer. That said, in the conclusion portion of the ITO, the affiant asserts “I believe that seizing the laptop from 15 Baif Boulevard unit 312 and extracting the information therein will afford further evidence”.

[86] The defence challenges the sufficiency of the grounds articulated for the seizure of the computer. The Crown submits that when the ITO is read as a whole, it reveals sufficient grounds for the seizure of the computer. In particular the Crown notes that the presence of the computer on a desk in close proximity to a forensic evidence textbook and handcuffs, set against the backdrop of the alleged offences, establishes reasonable and probable grounds to believe that the laptop will afford evidence. The Crown argues that an inference arises that Mr. Ricciardi was using the computer at a point in time proximate to the commission of the alleged offences against G.E., and that the proximity of the computer to the handcuffs, sunglasses and forensic evidence text book, supports the further inference that the use of the computer was in relation to the commission of the offences.

[87] The Crown’s position is not without merit. I am required to assess the grounds in the ITO as a whole and not in a piecemeal fashion. I am permitted to assess whether the suggested inferences are inferences that could be drawn by an issuing justice. The test is not whether I would have issued the warrant. Rather, it is whether an issuing justice could have issued the warrant on the basis articulated.

[88] That said, I am unable to agree that the excised ITO as a whole supports a finding of reasonable and probable grounds to believe that the laptop will afford evidence of the listed offences. In my view, the affiant does not articulate or provide sufficient evidence upon which one could infer that he had the belief, based on reasonable and probable grounds, that the computer would provide evidence in respect of the offences.

[89] A link between the computer and the offences under investigation was required. In this regard, the affiant notes that it is “plausible” that Mr. Ricciardi has been surfing the internet and that in doing so he has been assisted and/or educated in committing criminal acts. The affiant then asserts that the contents of the computer will afford evidence of Mr. Ricciardi’s state of mind.

[90] Plausibility is not generally used as a legal standard for the issuance of a warrant. The difficulty with the term “plausible” is that it has a potentially wide range of meanings, including “probable” and “reasonable” but also including “possible,” “tenable” and “conceivable.” Read in the context of this ITO, “plausible” appears to connote a “possibility” rather than credibly-based probability. On that basis alone, the officer did not establish a link based on reasonable and probable grounds between the computer and the offences.

[91] Moreover, the ITO provides no facts upon which an inference of reasonable and probable grounds could be drawn. The claim that Mr. Ricciardi may have surfed the internet or material that assisted or educated him in the commission of the offences is, in my view, a claim based on suspicion, at best. Indeed, apart from this bald assertion, the affiant articulates no basis supporting his subjective belief, regardless of the standard he meant to convey by using the phrase “plausible.”

[92] If I were to accept that the basis provided in this ITO was a sufficient basis upon which an issuing justice could issue a warrant to seize a computer, it would effectively mean that anytime a computer is found in an accused’s bedroom or apartment at a point in time proximate to the commission of an offence, there would exist an objectively reasonable basis to believe that the accused used it to access the internet and further used the internet to assist and educate himself on the commission of the alleged criminal offences. In the absence of any specific grounds supporting this inference, this finding would be, in my view, speculative.

[93] I do not find the presence of the handcuffs and the forensic evidence text, both items the seizing officers found “suspicious,” changes this analysis. I accept that certain items which when considered alone may only be suspicious may, when viewed in the context of other items and facts, give rise to reasonable and probable grounds. However, I am not satisfied that the presence of these items renders the required inferences regarding the evidentiary value of the computer to be any more reasonable in the circumstances. In my view, even with the presence of these items, there nonetheless remains a gap between the computer and the commission of the offences. My answer on this issue might have been different if the police had established some reasonable link between the use of the computer and the commission of the offences.

[94] I note as well that this is not the type of scenario discussed in R. v. Vu, supra, at para. 49, where the Supreme Court noted that a police officer could seize a computer, though not search it, if the police came across the computer during the search of a place and had a reasonable basis to believe that it contained “the sorts of things” that the warrant authorized the police to seize. In this case, the scope of the initial warrant to search 15 Baif Boulevard provided no basis upon which the police could seize the computer. That warrant only authorized a search for sunglasses and gloves. As a result, the ITO for the second warrant had to establish a separate basis upon which the seizure of the computer would provide evidence. This was not done on the record before the issuing justice.

[95] In relation to the seizure of the notes, while the search warrant lists “documents” including “personal notes” as items the police are looking for, the ITO provides no basis whatsoever to believe that any such documents or notes exist and will be present at 15 Baif Boulevard. Indeed, the grounds relating to the proposed search of 15 Baif Boulevard relate only to the laptop computer. To the extent that any grounds implicitly address the seizure of documents and personal notes, they relate to the search of 17 Pembroke Street, Unit #33, an address that had not been initially searched by police. I note that I was not asked to rule on the validity of the search in relation to this address.

[96] The defence also argued that even if the warrant was valid, the seizure of the notes was improper as the seizing officer, Officer Dority, seized the notes on the basis of suspicion. as an aide, I do not find that Officer Dority did anything wrong in seizing the notes from 15 Baif Boulevard. The warrant he was operating under authorized the seizure of documents including diaries, personal notes or plans to commit criminal offences. The notes seized clearly fall within this category of items. Officer Dority did not seize these items under the plain view doctrine or using s. 489(1) or (2) of the Criminal Code. His personal belief that the notes were suspicious was not relevant as long as he believed that the notes he seized were items listed in the warrant. From my review of his evidence, it is clear that he believed the documents fell into the category of items listed in the search warrant appendix and that he was seizing them on that basis. In view of my finding on the validity of the warrant, this issue may only be relevant to the s. 24(2) analysis.

(e) The warrant to search the contents of the laptop

[97] While the ITO sworn in support of the warrant to seize the computer indicated that the police wanted to extract and analyze the contents of the computer, the issuing justice endorsed the warrant with the following handwritten notation: “2nd application required for content of device”. The police respected this direction and applied for a further warrant to actually search the contents of the computer. That warrant was obtained on February 24, 2015.

[98] On its face, the warrant is fatally flawed for a number of reasons. First, it authorizes a search of the Toshiba laptop held in the property locker at the police division located at 171 Major Mackenzie Drive, for the items listed in Appendix A. However, Appendix A to the warrant simply lists the Toshiba laptop as the one and only item to be searched for. Appendix A does not list, as one might expect, the various types of electronic files and data that the police were expecting might reasonably be found on the computer. As issued by the justice of the peace, the warrant authorizes the police to search the computer for the computer. This is either an exceedingly quick search satisfied the moment the officer lays eyes on the computer, or it is a very broad search authorizing in effect an entirely unfettered scouring of the computer not limited to any particular item of sought after evidence. Either way, the warrant is flawed. In this regard, the warrant cannot be saved by reference to the ITO. It is the warrant that authorizes the search, not the ITO; see R. v. Parent (1989), 47 C.C.C. (3d) 385 (YKCA) and Re Times Square Book Store and the Queen (1985), 21 C.C.C. (3d) 503 (ONCA). Moreover, as I set out below, I have concluded that the ITO did not articulate reasonable and probable grounds to support the search of the contents of the computer.

[99] Secondly, the Form 5 used for the warrant does not contain a check mark indicating whether the offences relating to the warrant are offences under the Criminal Code or another Act of Parliament. As well, the warrant, on its face, does not include any description of the offences in relation to which the warrant is sought. While the ITO has an Appendix B that lists the offences, that appendix is not referred to on the face of the warrant. Nor does it appear to have been included with the warrant. In this regard, I note that the copy of the warrant in the Crown’s Warrant Materials package (Exhibit B on the voir dire), contains a copy of the warrant which is endorsed in writing by the issuing justice of the peace as being two pages in length – the warrant itself and Appendix A – therefore not including an Appendix B listing the offences.

[100] Needless to say, this is very troubling. On its face, the search warrant is not restricted to evidence relating to any specific set of offences. Again, the ITO cannot salvage this error. It is the warrant that authorizes the search, not the ITO.

[101] Interestingly and as an aside, the warrant is explicitly endorsed for day time execution only. While the police did not specifically request a night time search, they did request a search warrant lasting 60 to 90 days which would presumably include nights. The issuing justice permitted a 60-day period of time for the search but restricted police to conducting their examination only during day time hours. The time restriction endorsement on the face of the warrant is baffling, given that the computer was being stored at the police station and there would be no need to prevent the police from conducting their examination during the evening. I understand from the evidence before me that the police were also baffled by the endorsement, but they nonetheless instructed the computer technicians to work on the computer only during day time hours.

[102] I will now address the sufficiency of the grounds supporting the examination of the computer. At the outset, I note that in view of my finding that the warrant authorizing the initial seizure of the computer and the notes contained insufficient grounds, the items seized pursuant to that warrant were unlawfully obtained and are the subject of excision when considering this warrant. As a result, I excise the fact that the computer was seized from 15 Baif Boulevard and taken to the police division where it was being stored pending a further warrant. I also excise the reference to the content of the notes seized and the fact that the laptop was seized. The fact that a laptop was at 15 Baif Boulevard is not excised as that observation was made lawfully during the execution of the first warrant. The observations made by Officer Ju of the firearms related icon on the laptop screen are excised, as those observations were made unlawfully.

[103] The grounds in relation to the proposed search of the contents of the computer are as follows, in their entirety:

24. I believe that the device, RICCIARDI’s personal black Toshiba A100 laptop device, will afford evidence in relation to the offences as proposed in Appendix B. I also believe that it will show activity regarding the offences concealed within the hard drive. Computers hold a range of information in a mass storage format of folders and files within. Computers also possess Cloud technology, where information is stored in a separate location from the computer, as well as on a traditional hard drive. Computers also hold access to the internet and store information relating to searches. Based on the behaviour of the accused, Antonio RICCIARDI, I believe that this device could hold a range of evidence to not only support the charges in Appendix B but also lead to new offences. a) Data on the device would support the charges by allowing police to document searches and links in relation to supporting the fact that, while on a current firearms prohibition, RICCIARDI was possibly seeking a firearm. This is due to the observations by Detective Constable JU, badge 1552 in Appendix E Paragraph17. b) Data on the device would also support the evidence in relation to the possible linkage of how RICCIARDI sought out the complainant in the matter G.E. [name redacted]. It is unknown why RICCIARDI choose E. or a female names [sic] Emily noted in the documents. Data could lead police to the “link.” [Emphasis added]

[104] The ITO concludes with the following two paragraphs:

33. The Behaviour of RICCIARDI is frightening. I along with my colleagues believe that he was stalking his victims. Every avenue needs to be taken to investigate the actions of RICCIARDI through all means, including through his computer.

34. Extracting the information from within the Toshiba A100 laptop device bearing serial number 17056213Q seized from unit 312-15 Baif Boulevard in the Town of Richmond Hill on February 14th, 2015 will afford further evidence in this case. Evidence seized to date, will assist in the prosecution of RICCIARDI however police believe that due to the patterns in RICCIARDI’s behaviour that further victims are present. I also believe that RICCIARDI was planning on breaching his conditions and trying to obtain a firearm. Having the aid of his laptop device, RICCIARDI could have used its access to the internet, to seek out victim information. There is no other way currently other than to obtain this authorization, to search the contents of the computer. I ask that this order sought, be approved. [Emphasis added]

[105] I note that paragraph 24(a), the portion of paragraph 24(b) that reads “or chose a female names [sic] Emily noted in the documents” and the sentence in paragraph 34 relating to obtaining the firearm are to be excised as they refer to items unlawfully obtained by police during the earlier searches.

[106] In assessing the sufficiency of these grounds, I remind myself that the test on review is whether an issuing justice could issue the warrant on the basis articulated, not whether I would have issued the warrant. As well, I am required to consider the ITO as a whole and not in a piecemeal fashion.

[107] In my view, the grounds as articulated do not support reasonable and probable grounds to believe that the laptop will contain evidence in respect of the listed offences. The affiant effectively asserts that Mr. Ricciardi could have used the computer to access the internet to seek out victim information. He further asserts that the data on the computer could provide the link between Mr. Ricciardi and one alleged victim, Ms. G.E. Apart from these conclusory statements, there is no articulation as to why the affiant believes, on a reasonable and probable grounds basis, that Mr. Ricciardi used the computer to further his offences and that a search of the computer will reveal evidence of the offences. In the absence of facts supporting these assertions, there is no basis for assessing whether the use of the word “could” amounts to anything more than an expression of possibility. That is not enough.

[108] Interestingly, the basis claimed in the earlier ITO, i.e. that it was plausible that Mr. Ricciardi accessed the internet to assist and educate himself in relation to the offences and that the computer would contain evidence demonstrating Mr. Ricciardi’s mental state is not advanced in this ITO, though the earlier ITO is included as an appendix to this ITO.

[109] Lastly, in reading the concluding portions of the ITO, it is clear that the police are rightly concerned that Mr. Ricciardi is a dangerous person who may be stalking victims. They are open and honest about their desire to get into Mr. Ricciardi’s computer for evidence in relation to the listed and other possible offences. Indeed, the police effectively plead a form of “investigative necessity.” That plea does not, however, lessen the grounds required to search an accused’s personal computer.

(f) The Second Warrant to Search the Contents of the Computer

[110] Following the issuance of the initial warrant authorizing the search of the contents of the computer, the police instituted a search protocol to be used by the investigators and technicians engaged in the search. As part of this search protocol, the officers were instructed that if they came across evidence of a separate or new offence they were to immediately stop the search and a new warrant would be obtained.

[111] On March 4, 2015, a second warrant was obtained authorizing the continued search of the contents of the computer. The deficiencies noted on the face of the first warrant for the content of the computer were corrected in this instance. The warrant authorizes a search of the computer for items listed in Appendix A, which included images and video in relation to child pornography and also “hard drive files, pictures, URL links, media, documents, videos, contacts web browser searches in relation to the offences involving G.E., as well as a breach of recognizance charges relating to acquisition of a firearm.” This warrant also makes specific reference to a list of Criminal Code offences contained in an attached Appendix B.

[112] Turning to the ITO, the excision exercise is necessarily more drastic in this instance as much of the information revealed in the ITO stems from the searches I have found to be unlawful. In this regard, at a minimum I excise the following portions of the ITO: the first four sentences of paragraph 21, the reference to the seizure of the handcuffs and a forensic book in paragraph 24 (though not the observation of these items), paragraph 26 and paragraphs 35 to 42. In the absence of those paragraphs and the conclusions those paragraphs support, the remaining content of ITO provides an insufficient basis for the issuance of the warrant.

(g) The Search of the Motorola Flip Phone

[113] On March 4, 2015, the police obtained a warrant to search a cell phone that had been seized from Mr. Ricciardi incident to arrest. The warrant authorized police to examine the phone to search for contacts, internet browser searches, images and video, call logs and text message logs.

[114] At paragraph 10 of the ITO, the affiant asserts, “It is the hopes of the investigators that the phone will assist in the charges listed in Appendix B and possibly lead to new victims”. [Emphasis added]. The ITO also provides the following under the heading “Grounds to Believe That the Things to Be Seized Will Afford Evidence to the Offence”:

28. I believe that the device, RICCIARDI’s personal Motorola cellular phone SJUG1805RB will afford evidence in relation to the offences as proposed in Appendix B. Cellular phones hold a range of information in a mass storage format of folders and files within. Cellular phones also hold access to the internet and store information relating to searches on browsers.

29. Based on the behaviour of the accused, Antonio RICCIARDI, I believe that this device could hold a range of evidence to not only support the charges in Appendix B but also lead to new offences and confirm known information. a) Data on the device would support the charges by allowing police to document searches and links in relation to the internet connectivity of the device. b) Data on the device would also support the evidence in relation to the possible linkage of how RICCIARDI sought out the complainant in this matter, G.E. [name redacted] and E.E. [name redacted]. It is unknown why RICCIARDI choose (sic) these females. Data on the device could lead police to the “link”. c) Data on the device could hold contacts. Contacts are stored to call persons and places of business. Contacts could be stored of further victims in this matter.

[115] The concluding paragraphs of the ITO state:

44. Extracting the information from within the Motorola Flip phone device bearing serial number SJUG1805RB seized from the accused Antonio RICCIARDI at 15 Baif Boulevard in the Town of Richmond Hill on February 12, 2015 will afford evidence in this case. Evidence seized to date, will assist in the prosecution of RICCIARDI however police believe that due to the patterns in RICCIARDI’s behaviour that further victims are present. Ricciardi could have used its access to the internet to conduct searches. Its telephone capabilities could hold contacts and or pictures of the victims in this case.

45. There is no other way currently, other than to obtain this authorization, to search the contents of the telephone device. I ask that this order sought, be approved.

[116] Prior to assessing the sufficiency of the grounds as articulated, I note that there are some excisions that need to be made to the ITO. In particular, I excise references to the unlawfully seized items discussed above including the notes described at paragraphs 14(a) and (b), as well as paragraph 20 and paragraph 42. In view of the comments below, these excisions are of no moment in terms of the sufficiency of the warrant.

[117] Turning to the grounds as articulated, I find that the officer’s grounds are bald and conclusory. More importantly, they amount to no more than an expression of the officer’s hopes in terms of what he could find on the cell phone. Nowhere in the ITO does the officer provide reasonable and probable grounds to believe that the items sought will be on the flip phone and that they will provide evidence in respect of the offence. Instead, it appears the search of the phone is premised on a possibility that the sought after items could be on the phone. This is a far cry from credibly-based probability that the items sought will be at the location searched and will afford evidence of the offences under investigation.

(h) The Production Order on Rogers Communications

[118] On March 3, 2015, the police obtained a production order compelling Rogers Communications to produce cell phone call and text records and cell tower data for the Motorola flip phone seized from Mr. Ricciardi incident to arrest. The time frame of the production order spans November 1, 2016 to February 12, 2015. I pause to note that the police officers relied on a production order under s. 487.012 which is issued on the basis of reasonable and probable grounds. At the time, s. 492.2(2) of the Criminal Code arguably provided an alternate means of obtaining telephone records sought in this case, albeit on the lesser “reasonable grounds to suspect” standard; see R. v. Mahmood, supra. This is a factor that will be considered further when addressing s. 24(2) of the Charter.

[119] Turning to the sufficiency of the grounds in the ITO, the grounds to believe that the items sought for production will afford evidence of the listed offences are articulated as follows:

22. I’m requesting the phone records and tower locations of Ricciardi’s cellular phone, being associated with 416-721-0662 on the Rogers Network. I’m requesting the records sought from November 1, 2014 until the arrest date of RICCIARDI being, February 12th, 2015. The records are being sought to attempt to; a) Tower locations are sought to specifically track the movements of RICCIARDI as he was not being properly supervised since November as stated by his surety statement provided in Paragraph 20a. This could lead to follow up activities by police to track down unknown offender incidents in not only York Region, but greater Toronto Area as the actions of RICCIARDI are “serial” in nature. Knowing locations will greatly assist in cross-referencing with location and offender descriptions. b) Investigate the activities of RICCIARDI through his calls and text messages. Call and text records could verify information sought by police. This is to see if RICCIARDI ever called any of the known victim’s phone numbers or phone numbers documented on writings possessed from RICCIARDI’s Baif Boulevard Address. Records could also lead to new information.

[120] I excise the reference to the notes seized from 15 Baif Boulevard and excise reference to the seizure of the handcuffs and forensic evidence text. In my view, the remaining grounds again fall short of reasonable and probable grounds. The grounds, as articulated, support the possibility that the cell phone records could assist in the investigation but go no further. That said, it appears to me that the officer could have satisfied the lower standard of reasonable grounds to suspect that the records would afford evidence in respect of the offences, though the articulation of the grounds even on this lower standard is less than ideal. Again, this is a factor to be considered in the s. 24(2) analysis.

[121] The defence also argued that the date range of records sought are impermissibly broad given the nature of the investigation. I do not agree. The date range was based on the interview of Mr. Ricciardi’s surety, who advised police that he had not been fully supervising Mr. Ricciardi in accordance with the terms of the bail order since November 2014. The offence of fail to comply bail was one of the offences listed in the production order, albeit with an alleged offence date of February 12, 2015. In the circumstances, I am prepared to find that there was a sufficient basis articulated supporting the date range of the production order, albeit on the lower standard of reasonable grounds to suspect.

(i) Summary of Findings

[122] To recap the findings I have made in this Ruling, I find that the affiant made full, fair and frank disclosure. I do not find that he obfuscated or hid the true purpose of the searches from the issuing justice.

[123] I find no violation of s. 8 in relation to use of the telewarrant process in relation to the warrant dated February 13, 2015, nor do I find a violation of s. 488 of the Criminal Code in relation to the night entry authorized by that warrant.

[124] I find a violation of the common law plain view doctrine and/or s.489(1) of the Criminal Code in relation to the activation of the laptop computer screen and review of the icons on the screen, the opening and review of the forensics book as well as the seizure of the book and the handcuffs.

[125] I find a violation of s. 488 of the Code in relation to the night time entry on the February 14, 2015 warrant. As well, I find that there were insufficient grounds articulated in the ITO for the seizure of the computer.

[126] I find that the warrant of February 24, 2015, purportedly authorizing a search of the laptop seized on February 14, 2015, is fatally flawed in terms of what the warrant authorizes on its face. I also find that the ITO fails to provide sufficient grounds to authorize the search of the contents of the computer.

[127] Once the appropriate excisions are made, I find that the ITO for the second warrant to search the contents of the computer dated March 13, 2015 also fails to provide a sufficient basis to authorize the proposed search.

[128] I find that the ITO in support of the warrant to search the contents of the Motorola flip phone seized incident to arrest fails on the basis of insufficient grounds.

[129] Lastly, I also find that the Production Order for the Rogers Communications records also fails on the basis of insufficient grounds set out in the supporting ITO, though I find that the ITO does establish reasonable grounds to suspect that items sought will afford evidence of the offences under investigation.

Justice J. Di Luca

Released: May 5, 2017

Ontario Superior Court of Justice

HER MAJESTY THE QUEEN – and – ANTONIO RICCIARDI Applicant REASONS FOR RULING ON S. 8 APPLICATION Justice J. Di Luca

Released: May 5, 2017

Cited Cases and Legislation

Legislation:

• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (ss. 8, 24(2))
• Criminal Code, R.S.C. 1985, c. C-46 (ss. 486.4, 487.1, 488, 488.1, 489(1), 489(2), 487.012, 492.2(2))

Case Law:

• Canadian-Oxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743
• Nowegijick v. The Queen, [1983] 1 S.C.R. 29
• R. v. Amare, 2014 ONSC 4119
• R. v. Amare, 2015 ONCA 673
• R. v. Araujo, 2000 SCC 65
• R. v. Canadian Broadcasting Corp. (1992), 77 C.C.C. (3d) 341 (Ont. Ct. Gen. Div.)
• R. v. Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (ONCA)
• R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (ONCA)
• R. v. Daniels, 2015 ONSC 283
• R. v. Ebanks, 2009 ONCA 851
• R. v. Erickson, 2003 BCCA 693
• R. v. Fearon, 2014 SCC 77
• R. v. Floyd, 2012 ONCJ 417
• R. v. Golub (1997), 117 C.C.C. (3d) 193 (ONCA)
• R. v. Grant, [1993] 3 S.C.R. 223
• R. v. Harris (1987), 35 C.C.C. (3d) 1 (ONCA)
• R. v. Jasser, 2014 ONSC 6052
• R. v. Jones, 2011 ONCA 632
• R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont. H.C.)
• R. v. Lao, 2013 ONCA 285
• R. v. Le, 2009 BCCA 14
• R. v. Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.)
• R. v. Mahmood, 2011 ONCA 693
• R. v. McKenzie, 2016 ONSC 245
• R. v. Morelli, 2010 SCC 8
• R. v. Morris (1998), 134 C.C.C. (3d) 539 (NSCA)
• R. v. Nero and Caputo, 2016 ONCA 160
• R. v. Nguyen, 2011 ONCA 465
• R. v. Pavic, 2010 ONSC
• R. v. Parent (1989), 47 C.C.C. (3d) 385 (YKCA)
• R. v. Persaud, 2016 ONSC 6815
• R. v. Plant, [1993] 3 S.C.R. 281
• R. v. Rutledge, 2015 ONSC 1675
• R. v. Sadikov, 2014 ONCA 72
• R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.)
• R. v. Spindloe, 2001 SKCA 58
• R. v. Storrey, [1990] 1 S.C.R. 241
• R. v. Sutherland
• R. v. Ting, 2016 ONCA 57
• R. v. Vu, 2013 SCC 60
• R. v. Ward, 2012 ONCA 660
• R. v. Welsh (No. 6) (1977), 32 C.C.C. (2d) 363 (ONCA)
• R. v. Wiley, [1993] 3 S.C.R. 262
• R. v. Wu, 2015 ONCA 667
• Re Bell Telephone Company of Canada (1947), 89 C.C.C. 196 (Ont. H.C.)
• Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.)
• Re Times Square Book Store and the Queen (1985), 21 C.C.C. (3d) 503 (ONCA)