COURT FILE NO.: CR-16-90000674-0000 DATE: 20180706
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – GAREY HARRIS
Counsel: Faiyaz Alibhai, for the Crown R. Pillay and D. Paradkar, for the Accused
HEARD: July 3-6, 2018
THORBURN J.
Ruling re Request to Exclude Evidence Pursuant to sections 8 and 24(2) Charter
OVERVIEW
[1] Garey Harris is charged with the following six offences:
a. possession of 5,180 grams of cocaine for the purpose of trafficking, b. possession of proceeds of crime, c. possession of a firearm without being a holder of a licence, d. possession of a loaded firearm without being the holder of a licence, e. possession of a firearm knowing the serial number had been removed, and f. careless storage of a firearm.
[2] Mr. Harris claims his right to protection from unreasonable search and seizure pursuant to section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11 was infringed. He therefore seeks to exclude evidence he says was obtained in contravention of his Charter rights.
[3] The first issue to be determined is whether Mr. Harris has standing to bring this Application. There are three questions to be addressed:
a. Does Mr. Harris have a reasonable expectation of privacy in respect of Unit 1412 of 33 Elm Drive? b. Does Mr. Harris have a reasonable expectation of privacy in respect of the common areas of the building and if so, what information can police obtain from the common areas? and c. Does Mr. Harris have a reasonable expectation of privacy in respect of the images of Mr. Sutherland, who was the target of the police investigation?
[4] If standing is granted, the following additional issues will need to be addressed:
- whether there were grounds to arrest Mr. Harris on March 5, 2014;
- whether police breached Mr. Harris’ right to be free from unreasonable search and seizure: i. by entering the unit after his arrest and before obtaining a search warrant; ii. by remaining in the unit for approximately seven hours after his arrest and prior to obtaining the warrant to search the unit;
- whether the issuing judge could have issued the warrant to search the condominium unit; and
- whether admission of the drugs, firearm, ammunition and other evidence would bring the administration of justice into disrepute.
BACKGROUND EVIDENCE ABOUT THE POLICE INVESTIGATION
[5] On February 14, 2014, a confidential source told police that Ewan Sutherland and Travis Richards were involved in a drug trafficking network selling cocaine by the kilogram, and that they received weekly calls from a third person. The confidential source also told police that Ewan Sutherland lived at 8 Rean Drive with an Asian female, and gave police Sutherland’s cellphone number and licence plate registration. They were also told that Sutherland stored cocaine in his vehicle.
[6] Much of that information was corroborated by police.
[7] On March 5, 2014 police were told that Ewan Sutherland was going to look at bricks (a reference to cocaine).
[8] That same day, police observed Ewan Sutherland leave Rean Drive and enter the underground parking garage at 33 Elm Drive in Mississauga. He entered the numbers 51742 on the security keypad to gain access to the building which numbers are associated to Unit 1412. Ewan Sutherland took the elevator to the 14th floor and turned right after leaving the elevator. He returned over 2 hours later to the 14th floor elevator holding a red bag. He returned to the parking garage and drove back to 8 Rean Drive and surveillance was discontinued.
[9] On March 5, 2015 police also conducted surveillance on Garey Harris. Police observed him on video footage recorded by the building. Harris was observed taking the elevator on the 14th floor to the lobby of 33 Elm Drive at 9:06 a.m. carrying a grey plastic bag. He entered the passenger seat of a blue Nissan truck, stopped outside the building and exited shortly thereafter with a grey duffle bag and without the grey plastic bag.
[10] At 11:50 a.m. police observed Garey Harris’ Acura BSWL0064 parked in spot 555 of the underground garage and at 12:35 p.m. police observed video of Harris taking the elevator from the 14th floor to the parking garage carrying a black bag and keys. The black Acura left.
[11] Police were advised by building security that parking spot 555 was assigned to Unit 1412 and that the parking spot and unit were assigned to Garey Harris.
[12] At 3:09 p.m. Garey Harris returned to 33 Elm Drive and parked his Acura BSWL0064 in the underground parking lot, took the elevator to the 14th floor and was arrested by officers at 3:25 p.m. as he approached Unit 1412 with his keys in his hands.
[13] He was given his rights to counsel and cautioned.
[14] He was then searched and police located a wallet with an Ontario driver’s licence and an OHIP card, bank cards in his name and cash. Police also found a black bag with $2,000 CAD, two blackberry phones and an iPhone.
[15] Police then opened the door to the unit at 3:25 p.m. There were no occupants in the unit. A search warrant was granted and thereafter, at 11:20 p.m., police officers searched the unit and found four cocaine bricks, two bags of cocaine and drug paraphernalia in the kitchen. Police found a handgun in a white bucket in a kitchen cupboard and removed the magazine from the handgun. There were three rounds of ammunition in the magazine and one round of ammunition in the chamber of the gun.
[16] Police also found cash and three cellphones, two passports in the name of Garey Harris, a knife, several watches and other jewelry. Police also found a photo of Garey Harris posing with a gun. Drug paraphernalia was found in the storage locker.
THE FIRST ISSUE: DOES MR. HARRIS HAVE STANDING TO BRING THIS APPLICATION?
[17] Mr. Harris claims he has a reasonable expectation of privacy in the unit and in the common areas of 33 Elm Drive, Unit 1412, Mississauga. This is disputed by the Crown.
THE LAW REGARDING A REASONABLE EXPECTATION OF PRIVACY
[18] Section 8 of the Charter provides that, “Everyone has the right to be secure against unreasonable search or seizure.” This Charter right only protects a reasonable expectation of privacy. [1]
[19] A person may have a reasonable expectation of privacy over a place, a thing seized, or both. [2]
[20] The onus is on the person asserting standing to demonstrate a reasonable expectation of privacy on a balance of probabilities. [3] An assessment must be made as to whether in a particular situation, the public’s interest in being left alone by government should give way to the government’s interest in intruding on the individual’s privacy in order to enforce the law. [4]
[21] In R. v. Edwards [5], the Supreme Court of Canada outlined the factors that may be considered in assessing whether a person has a reasonable expectation of privacy. These include:
(i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [6]
[22] The totality of the circumstances must be examined. [7]
[23] The Supreme Court has generally held that the nature of the activity conducted does not affect whether there is or is not a reasonable expectation of privacy in a place. The question is rather whether a person has a reasonable expectation that he or she will be left alone in that place.
[24] The Supreme Court in R. v. Jones [8] modified the requirement to prove standing by allowing an accused person to:
… ask the court to assume as true for section 8 purposes, any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant’s section 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges.
[25] In Edwards, the Supreme Court held that the Applicant had no reasonable expectation of privacy in an apartment rented by his girlfriend because he lacked the ability to regulate access to the premises. His girlfriend had given him a key and he had unrestricted access to the apartment and occasionally stayed there but maintained his own residence. He helped pay for a couch in the apartment but did not contribute to the rent. The Court held that he had no reasonable expectation of privacy as he was no more than a “privileged guest”.
ANALYSIS AND CONCLUSION
[26] In reviewing the seven factors articulated in Edwards, I note that Mr. Harris was present at the time of the search of the unit. Moreover, the Crown admits that Mr. Harris appeared to have control of the premises as evidenced by the fact that:
a. he entered and exited the premises in question a number of times on the day in question, b. he had keys to the premises that were in his possession at the time of his arrest, c. his driver’s licence was registered using the Elm Drive West address, d. his passports and photograph were found in the unit, and e. his name was given as the occupant of the unit by the building security person.
[27] There is also historical use of the property as Mr. Harris’s driver’s licence is registered to this address and some sensitive personal information was found in the unit. There is no evidence that he lived anywhere else.
[28] Although I recognize that possession or control of the property and historical use are but two of several factors to be considered and that the totality of the circumstances must be considered, this evidence leads me to conclude that Mr. Harris had some right to occupy the unit and the fact that his name was given as the occupant of the unit by the building security person leads to a reasonable assumption that Mr. Harris had some ability to regulate access to the unit by others.
[29] A similar conclusion was reached by B. O’Marra J. in R. v. Madbouli, 2017 ONSC 2890 where he held that,
The applicant was found in possession of a key to the apartment. Inside the apartment the police recovered sensitive personal identification and personal items such as a social insurance card, mail, business cards and an airline ticket. The mail indicated a different address. The cumulative effect of that evidence is that he had access and a degree of control over the premises and an objectively reasonable expectation of privacy. On this blended proceeding the Crown relies on these same factors to establish possession of the drugs, firearms and proceeds of crime. The applicant is not required to show that he had exclusive access and control of the premises: R. v. Pugliese, [1992] O.J. No. 450 (C.A.) at para. 14; R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45; and R. v. Jordan, 2002 BCSC 1322, [2002] B.C.J. No. 2077 (BCCA) at para. 22. I am satisfied that he had standing to challenge the legality of the search and seizure.
[30] The Crown theory is that he was legally in possession of the unit.
[31] For these reasons, I find that Mr. Harris has standing to advance a breach of his reasonable expectation of privacy in the unit.
[32] However, Mr. Harris has adduced no evidence of an ownership interest in the condominium. On the contrary, there is evidence that the mortgage is being paid by another person.
[33] Ownership in a condominium includes not just ownership of the unit but shared ownership in the common areas. Without any evidence of ownership of the condominium, there is no ownership of the common areas, no ability to control access by others to the common areas of the building nor any reasonable expectation of privacy as there would be if Mr. Harris were a condominium owner.
[34] Mr. Harris relies on the case of R. v. White [9] to suggest that he has a reasonable expectation of privacy in the common areas of this condominium notwithstanding that he concedes there is no evidence that he owns the condominium. However, the facts in White are distinctly different from the facts in this case.
[35] Mr. White owned the condominium in a small ten unit condominium complex. Police entered the building slipping through locked doors several times without consent and sat in the stairwell to listen in on conversations. Those actions were surreptitious. In White, Huscroft J.A. distinguished two earlier cases that found there was no reasonable expectation of privacy in common hallways as,
- Both Laurin and Thomsen involved single entries into the common hallways of apartment buildings in order to walk to a resident’s door in the course of investigating complaints. The police conduct involved in these cases was much less intrusive than in this case. And in neither Laurin nor Thomsen did the resident own the unit. These were the circumstances in which it was concluded that the residents in Laurin and Thomsen had no reasonable expectation of privacy in the common hallways in their buildings.
[36] Unlike the situation in White, this case involves:
a. No ownership of the condominium (including an ownership share in the common areas); b. A large complex with a lesser privacy interest than a small condominium; and c. No significant infringement on privacy rights such as secretly passing through locked doors and surreptitiously listening in on private conversations while hidden in the stairwell.
[37] Rather, this case is akin to R. v. Barton, 2016 ONSC 8003 [10], where the accused was a tenant not an owner, and as such, had no control of the hallway nor could he regulate access or prevent others from inviting guests into common areas. As such, the court held that he did not have standing to challenge the seizure of items outside the unit in the hallway.
[38] It is also akin to R. v. Brewster, 2016 ONSC 4133 [11], where officers entered common areas of multi-unit buildings including parking garages and hallways. They followed a target who was under surveillance into the common areas of a condominium building. The sole purpose was to determine whether the person was a resident of the building. In that case, the court held that police were acting lawfully as they conducted only limited physical surveillance in the common areas in pursuit of a bona fide criminal investigation.
[39] In the second Brewster decision [12] Code J. noted that surveillance cameras are commonplace in the lobby of apartment buildings, the garage and other public areas and that the occupants’ knowledge and acceptance of the fact that cameras are there and they are being watched means there is a reduced privacy interest in those common areas.
[40] Mr. Harris did not have a reasonable expectation of privacy in the information provided by the property security person to the police as there was no evidence that his whereabouts would not be recorded or observed by others. [13]
[41] The information obtained by police in this case was only the unit number within the building that was visited by Sutherland and which was therefore of interest to their investigation.
[42] As in Laurin [14] and Thomsen [15], there was no ownership interest such that there would be a shared ownership interest in the common areas. Nor was there surreptitious conduct on the part of the police to set up hidden cameras to do their own recording in hallways or to listen in on conversations.
[43] For this reason, I do not accept Mr. Harris’ argument that there is a reasonable expectation of privacy in common areas of the condominium property.
[44] Lastly, Mr. Harris argues that he has a privacy interest in images of Mr. Sutherland that were on the building’s security cameras and that were viewed by police with the consent of building security personnel and in the context of a criminal investigation. Even if he had a privacy interest in the common areas, Mr. Harris’ counsel adduced no legal authority to support his position that he can assert a privacy interest in the image of another and not himself.
[45] For these reasons, I find that Mr. Harris has a privacy interest in the condominium unit, but no reasonable expectation of privacy in the common areas or in video images of another person who was a target of the police investigation.
[46] The Application for standing to allow Mr. Harris to assert a section 8 Charter right to be secure from unreasonable search and seizure is granted but only in respect of the unit.
THE SECOND ISSUE: WERE THERE GROUNDS TO ARREST MR. HARRIS?
[47] Mr. Harris claims there were no reasonable grounds to arrest him as there was no evidence that a drug transaction had taken place, no evidence Mr. Harris was in possession of drugs, and no surveillance that showed him and Mr. Sutherland together.
[48] He notes that he was not a target of the investigation and was not known to police.
[49] The Crown claims there were reasonable grounds for his arrest.
[50] Police may arrest any person whom a police officer believes has committed or is about to commit an indictable offence provided that belief is reasonable. Police are not required to establish a prima facie case before making an arrest. In deciding whether there were reasonable grounds to arrest, the court will look at the totality of the circumstances. [16]
[51] A trained officer is entitled to draw inferences and deduce things which the court must take into account. [17]
[52] In this case, a confidential informant who had proven to be trustworthy, gave police information about the main targets of the investigation. Police were told that one of those targets, Ewan Sutherland, was trafficking cocaine, that he kept the cocaine hidden in bags or boxes, and stored it in his vehicle. Much of the information provided by the confidential informant about Ewan Sutherland was corroborated through police surveillance and investigation. In addition, police searched Mr. Sutherland’s residence on February 24, 2014 and found a 12 ton cocaine press in his bedroom.
[53] By March 5, 2014 there was further evidence from the confidential informant that Mr. Sutherland was going to look at bricks of cocaine.
[54] On March 5 at 9:37 a.m. Mr. Sutherland drove from his home to the underground parking garage of the address at 33 Elm Drive and into the parking lot associated with Mr. Harris. Mr. Sutherland punched in the keypad for Unit 1412 (also associated only with Mr. Harris). He took the elevator to the 14th floor and turned right toward Unit 1412. He was observed two hours leaving the 14th floor and returning to the garage carrying a weighted red reusable bag.
[55] That same morning, Mr. Harris took the elevator to the 14th floor of the same building carrying a grey plastic bag. He entered the passenger seat of a truck, left the grey bag and took a black duffle bag and returned to the 14th floor.
[56] At 12:35 p.m. that day, Mr. Harris went from the 14th floor to the parking garage carrying a black bag and keys. When police went to the parking spot associated with Mr. Harris, he and the vehicle were gone.
[57] When Mr. Harris returned to the building, parked his vehicle, and went back up to the 14th floor with keys in his hand, he was arrested about 15 feet from the door of Unit 1412.
[58] The cumulative effect of:
a. evidence from the confidential informant (that Mr. Sutherland was trafficking drugs, transported drugs in bags and in his vehicle, and was looking for bricks of cocaine); b. the reasonable belief the confidential informant was trustworthy; c. Mr. Sutherland came to the parking spot associated with Mr. Harris and punched in the code for Unit 1412 (associated with Mr Harris); d. Mr. Sutherland went to the 14th floor and turned right toward Unit 1412; e. Mr. Sutherland returned with a bag in his hand; and f. Mr. Harris and Mr. Sutherland were seen on the day of Mr. Harris’ arrest with concealed items in bags that were transported into and out of their respective vehicles
taken together, leads to a reasonable inference that Mr. Sutherland went into Mr. Harris’ unit to pick up drugs. There were therefore reasonable grounds to arrest Mr. Harris. It follows therefore that the search incident to arrest was also lawful.
THE THIRD ISSUE: WERE THERE EXIGENT CIRCUMSTANCES JUSTIFYING ENTRY INTO THE UNIT BEFORE THE WARRANT WAS OBTAINED
Entry to Secure the Unit
[59] Mr. Harris claims there were no reasonable grounds to enter Unit 1412 without a warrant or to remain in the unit pending the issuance of the search warrant.
[60] The Crown submits there were exigent circumstances that required them to enter the unit. Police had seized several cellphones and large sums of cash sometimes associated with drug trafficking. This along with all this evidence created a reasonable belief that there was someone in the unit who could destroy evidence. The Crown further submits that there were concerns for officer safety in this Project investigation such that they remained inside but not outside the unit.
[61] Section 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) does not define exigent circumstances. Exigent circumstances are however defined in section 11(7) of the Criminal Code as follows:
a) the police have grounds to obtain a search warrant under s. 11 of the CDSA (the probable cause requirement); and b) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay (the urgency requirement). [18]
[62] In R. v. Silveira (1994), 16 O.R. (3d) 786 (ONCA) [19], the court accepted that there were exigent circumstances and officers were required to secure the premises that were the subject of a drug investigation. Members of a Toronto police drug squad commenced an investigation into the sale of cocaine. An undercover officer purchased cocaine several times at a community centre. On each occasion, the accused went to 486 Dufferin Street and returned with drugs. The accused was arrested along with other co-accused near the residence. The police were concerned that the public nature of those arrests would lead to instructions to destroy or remove evidence that might be on the premises. To prevent the destruction or removal of evidence between the time of the arrest and the arrival of the search warrant, officers attended at 486 Dufferin Street. They knocked on the door, identified themselves, and entered the premises without an invitation. They checked the premises for weapons and for the location of residents within the house. They then holstered their weapons and advised the occupants of the house to remain. They did not search the premises, but waited for the search warrant. The court held that exigent circumstances existed:
They included the nature of the crime, the public arrests near the dwelling‑house and the belief by the police that they needed to enter the house in order to preserve the evidence while they awaited the search warrant which they believed to be on the way.
[63] Similarly, in R. v. Watson, [2007] O.J. No. 5 (SCJ), Marrocco J. held that police entering an apartment to secure premises to prevent the destruction of evidence constituted exigent circumstances where:
…they believed his apartment was the drug base and the scene of a crime. While there was no reason to believe that there was someone at the apartment who could destroy the evidence, there was a possibility that someone was there. This is sufficient to constitute an exigent circumstance. The warrantless entry, however, was justified only as long as this exigent circumstance existed.
[64] In the case before me, the officers had a reasonable belief they would find drugs in the unit. Officer Miranda testified that, shortly after Mr. Harris’ arrest,
We can hear voices and they – something—and noises on the inside and I believe it was to ensure there’s no destruction of evidence….there was TV was on and then when you walk in, I believe right immediately to the right, there’s a dryer for your clothing, and that was spinning, like it was on.
[65] Police therefore used the key seized from Mr. Harris at the time of his arrest, and entered the unit without a warrant to secure the premises and ensure that there was no one in the unit who could destroy evidence. Upon entering the premises, police found the television on, the dryer running, and a candle lit on a table. There was no one in the unit.
[66] Police had a reasonable concern that someone in the unit could destroy evidence. They entered the unit for the sole purpose of searching the rooms to ensure that there was no one in the unit, they looked into the rooms without recording observations or touching anything in the rooms.
[67] These were exigent circumstances that warranted entry by police to ensure there was no one inside the unit to destroy evidence.
Remaining in the Unit Pending Issuance of the Search Warrant
[68] Thereafter, the officers “sat there and waited until the warrant got authorized”. The warrant was not issued until after 11 p.m. although no one knew exactly how long it would take to obtain the warrant.
[69] One officer testified that the officers remained because this investigation was part of a “Project” or large-scale drug investigation involving several targets. The office said there was a concern for officer safety if plain clothed officers remained conspicuously out in the hallway. Officer Miranda said that, “…one of my detectives in the past, for example, had a gun put to his head while he was awaiting for a warrant.”
[70] Officer Miranda testified that in addition, sitting outside the unit, “might be compromising the investigation….” as this investigation involved multiple people, and serious allegations of drug trafficking, that is often associated with violence.
[71] In Watson [20], Marrocco J. held that remaining in the unit pending issuance of a warrant was a breach of the accused’s Charter right to be free of unreasonable search and seizure. He held that,
…it would have taken only a few moments to secure the scene. Det. Const. Morrison did not want to be seen outside the defendant’s apartment for an extended period of time. He felt that this might compromise the plain-clothes work that he and Det. Const. Brons were doing in the neighbourhood. These concerns do not qualify as exigent circumstances. Once the defendants’ apartment was secured, uniformed police could have taken a position outside the premises until a warrant was obtained.
[72] The Crown suggests that the evidence in Watson is distinguishable from the evidence in this case, as Watson was a standalone sexual assault case without multiple targets, and there was no allegation of organized drug activity often associated with violence.
[73] While I accept that the facts in this case are different than those in Watson, I am not satisfied that, on the evidence before me, there were exigent circumstances that warranted the officers remaining inside the unit after securing the unit. I also note that the evidence in this case is that there were very few people in the hallways and there is no evidence that there was any other criminal activity or any other targets of the investigation in the building or even nearby.
[74] For these reasons, I find that the officers had no right to remain in the unit after securing the premises to ensure that no evidence was being destroyed, and that in so doing, Mr. Harris’ Charter right to be free of unreasonable search was breached. There is no suggestion however that this was done in bad faith or that any evidence was obtained as a result of the breach.
THE FOURTH ISSUE: WAS THERE A VALID WARRANT TO SEARCH?
[75] Mr. Harris asserts that the issuing judge could not have issued the warrant to search Unit 1412 at 33 Elm Drive Mississauga, as the information provided to the issuing judge was materially misleading and inaccurate and that, had that information been provided, it would have lead the issuing judge to decide not to issue the warrant.
[76] The affiant failed to disclose to the judge that police entered the unit to secure it and stayed in the unit pending issuance of the warrant. The affidavit simply says that, “Investigating officers are currently on scene at 33 Elm Drive West, Unit 1412, Mississauga, Ontario, until the conclusion of this investigation.”
[77] In his written material, Mr. Harris alleged that there was an intention to mislead. However, after hearing the evidence of the affiant, counsel for Mr. Harris conceded that there was no deliberate intention to mislead but that the failure to do so was negligent and the information material. The Crown concedes that the information was material and ought to have been disclosed but the Crown takes the position that the failure to include this information does not invalidate the warrant.
[78] Mr. Harris further notes that the ITO contains one incorrect reference to the offence taking place on January 5, 2014 in Toronto, not March 5, 2014 in Mississauga, which was the day and place of the arrest and search. (There are several other references to the correct date of March 5, 2014 in Mississauga.)
[79] The ITO seeks an extended time to execute the telewarrant given that there were multiple unrelated investigations that were part of this Project case.
[80] Mr. Harris claims there was no basis to seek an extended time to search.
[81] An Information to Obtain a search warrant (“ITO”) must set out reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. This does not require proof on a balance of probabilities. The test is rather one of credibly-based probability. [21]
[82] There must be full, fair and frank disclosure of all material facts so that the issuing judge can make an assessment of whether there are the necessary grounds required for authorization. [22] The issuing judge should decide whether to issue a warrant by looking at the information as a whole from a common-sense and practical approach. The judge may draw reasonable inferences from the contents of the ITO. [23]
[83] Errors or omissions in the ITO even if they are material, are not dispositive. Their effect is only to determine whether there continues to be any basis for the decision for the authorizing judge to issue the warrant. [24]
[84] Police will rarely be able to confirm commission of an offence and that level of confirmation is not required. [25]
[85] An overbroad list of things to search for, does not invalidate a warrant, as the test for invalidation is “whether the warrant could have issued”. [26]
[86] The Court of Appeal in Sadikov, 2014 ONCA 72 [27] held that, “Warrant review begins from the premise of presumed validity… It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it.” [28] The reviewing judge is not to substitute his or her view for that of the issuing judge. The warrant should only be set aside if the whole of the material presented shows that there was no basis for issuing the warrant. [29]
[87] In this case, the confidential informant provided information to the police. He had been found to be trustworthy in the past. He provided detailed information about the targets of the investigation and one target’s criminal activities, a good deal of which was corroborated by police.
[88] The police therefore had reasonable and probable grounds to believe that Mr. Sutherland was involved in a drug trafficking network along with another, that he used bags to store the drugs, he stored cocaine in the trunk of his vehicle, and was going to look at bricks of cocaine. As a result of their own investigation, police also knew that Mr. Sutherland had come to the building, punched in the code for the unit associated with Mr. Harris, gone to the 14th floor, walked in the direction of Unit 1412, and returned from the 14th floor with a bag. Mr. Harris and Mr. Sutherland had both been in the garage earlier and put bags in and out of vehicles.
[89] The failure to include information that the officers had entered the unit and remained there also does not invalidate the warrant as, even if that information had been known to the issuing judge, the warrant could still have issued. [30] While the information was material and should have been included, there was no intention to mislead, no bad faith and no evidence obtained as a result of entry. The affiant did not know how long police would remain in the unit as he began work on the affidavit after 1 p.m., Mr. Harris was arrested at 3:25 p.m. and the warrant was completed at 6:57 p.m.
[90] Moreover, the one reference to the incorrect date and city does not render the warrant invalid as there are several other references in the warrant that clearly set out the correct date and location which is repeated in the ITO. There was no intention to mislead. The Crown correctly points out that date and location are not normally essential elements of an offence. For these reasons, these errors do not invalidate the warrant. [31]
[91] I find that even if the issuing judge had been made aware of these circumstances, the evidence as a whole is sufficient that the warrant could have issued.
THE FIFTH ISSUE: SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO SECTION 24(2) OF THE CHARTER
[92] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[93] The court must assess the effect of admitting the evidence on society’s confidence in the justice system having regard to:
a) the seriousness of the Charter-infringing state conduct; b) the 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. [32]
[94] There is no overarching rule to determine when the balance is tipped such that the evidence must be excluded.
[95] The first factor involves a determination as to whether the admission of evidence would send a message to the public that courts condone serious state misconduct. Inadvertent or minor violations may minimally undermine public confidence in the rule of law, while willful or reckless disregard of Charter rights or egregious conduct will “inevitably” have a negative effect and risk bringing the administration of justice into disrepute. “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct” by the exclusion of evidence linked to the conduct. [33]
[96] Extenuating circumstances, such as the need to prevent the disappearance of evidence or concerns regarding imminent harm, and good faith on the part of police, may serve to diminish the concern that the police conduct would bring the administration of justice into disrepute. On the other hand, evidence that the conduct was part of a pattern of abuse tends to support exclusion.
[97] Analysis of the second factor, the impact of the breach on the Charter-protected interests of the accused, requires an evaluation of the extent to which the breach undermined the protected rights of the accused. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights count for little, bringing the administration of justice into disrepute.
[98] In assessing the effect of the third factor, because society generally expects that a criminal allegation will be adjudicated on its merits, the judge must determine whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The question is whether “the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial.” [34] It is the long-term consequence of the administration of justice that must be considered. [35]
[99] In this case, there were reasonable and probable grounds to arrest Mr. Harris. There were exigent circumstances justifying entry to the unit to secure the premises, but there were no reasonable grounds to remain pending issuance of the warrant. No evidence was obtained as a result of the entry onto the premises before issuance of the warrant and there was no bad faith.
[100] Although the affiant of the ITO should have included information about entry and remaining in the premises pending issuance of the warrant, there is no allegation that he willfully and deliberately mislead the issuing judge. The Charter violation in remaining inside the unit was not egregious, and the decision to remain was motivated by officer’s belief that it was necessary for officer safety.
[101] Secondly, although Mr. Harris’ Charter right to be protected against unreasonable search was infringed, the police behaviour was neither egregious nor abusive. The police did not take any steps to record any observations, take any statements or seize any items from the premises before the warrant arrived. Mr. Harris was not subject to discriminatory police practices and there is no evidence that the officers acted in bad faith. The search itself was conducted reasonably, as was the original entry of the police into the home.
[102] Thirdly, the evidence seized is highly reliable: 5,180 grams of cocaine, significant sums of money, a loaded firearm and ammunition were seized. Upon issuance of the warrant the evidence would inevitably have been discovered.
[103] Drug trafficking and the possession of loaded firearms are very serious crimes and the evidence seized is vital to the proof of the case. I say this mindful that society also requires a legal system that is beyond reproach.
[104] I find that a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would not bring the administration of justice into disrepute.
[105] For these reasons, the Application to exclude the evidence obtained by police on March 5, 2014, is denied.