COURT FILE NO.: CR\19\10000496\0000 DATE: 20200731 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN John Pollard, for the Respondent Crown
- and -
SAM DONALDSON and KALENDA KALONJI Jordan Casey, for the Applicant Donaldson; Benjamin Goldman for the Applicant Kalonji
HEARD: July 7, 8, 10, 13, 14,15,16 and 17, 2020 Forestell J.
Ruling on Application to Exclude Evidence
Introduction
[1] The Applicants are charged with offences relating to their alleged possession of fentanyl, a firearm, an overcapacity magazine and ammunition — all of which was found in an apartment in Toronto in September of 2018. Mr. Donaldson is also charged with assault, threatening death and possessing a firearm while he was prohibited.
[2] The firearm and drug charges arise from the execution of a Criminal Code [1] search warrant on September 22, 2018 at 11 Brunel Court, Unit 210, in the City of Toronto where, it is alleged, both Applicants resided.
[3] The Applicants apply to have all the evidence excluded, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”), on the basis that their rights protected by s. 8 of the Charter have been violated. The Applicants argue that: (i) the Information to Obtain the Warrants (the “ITO”) does not contain sufficient grounds to conclude that evidence of the offences alleged would be found in the place to be searched; and (ii) the manner of search was unreasonable.
Evidence on the Application
[4] On September 22, 2018 two search warrants were issue and then executed. One warrant authorized the search of a residence at 193 Beverley Street and the second warrant authorized the search of a residence at 11 Brunel Court, Unit 210 — both in the City of Toronto. Both residences were said to the residences of Sam Donaldson.
[5] The items to be searched for were listed in Appendix A of the ITO as: “Firearm, ammunition, magazine(s), trigger lock, secure container for storage of a firearm, purchase invoice for firearm, packing for firearm, booklet or manual for operation of a firearm.”
[6] The ITO was sworn by Detective Constable Janna Senyk.
[7] In addition to the ITO and warrant, I have the evidence of police officers who testified concerning the manner of search on the blended voir dire and trial. The photographs of the unit before and after the search were also filed as exhibits.
The ITO
[8] The ITO in this case relies heavily on information provided to the police by the complainant in the charges of assault and threatening death.
[9] According to the ITO, the complainant reported to the police on September 18, 2018 that a person known to her as “Century” had threatened to shoot her that day. She knew Century to possess a gun. She had seen him with guns which he kept either in a hidden compartment of the car he rented or, concealed in the front of his pants. She knew him to possess many guns including a 44, an assault rifle and a sawed off shot rifle. She told the police that Century always had his gun “on him” or in the middle console of his car. The complainant also told the police that Century lived in two places: one was on Beverley Street with his mother, and the other was at 11 Brunel Court. The complainant identified a photograph of Sam Donaldson as the person she knew as Century. She also told the police about an incident in which she was arrested while in a car with Century.
[10] Also, on September 18, 2018, Anthony Garufi, a friend of the complainant’s, identified Sam Donaldson as Century. Mr. Garufi told police that Mr. Donaldson drove a dark coloured Chrysler 300.
[11] The police investigated and identified the car in the earlier incident described by the complainant. The car was a Chrysler 300 with Ontario marker CDXE 748. Further investigation revealed that the car had been rented by Mr. Donaldson’s mother. Her address was 193 Beverley Street. The house at 193 Beverley Street was also an address provided by Mr. Donaldson to police on earlier occasions. The car had been impounded on September 9, 2018. It was not being driven by Mr. Donaldson when it was impounded. There was no firearm in the car when it was impounded. The rental agency told the police that they had no vehicles rented to Sam Donaldson on the date of the inquiry (September 21, 2018).
[12] On September 21, 2018 the affiant contacted the complainant and received further information from her. The ITO states that on September 21, 2018, the complainant advised that Mr. Donaldson lived with his family in the basement of 193 Beverley Street. She told the affiant that while staying at the Beverley Street apartment, Mr. Donaldson parks his rental vehicle on the street. She also advised that he stays at 11 Brunel Court with his roommate, known to her as “Ninja”. The complainant said she believed the unit number to be either 209 or 211. She said it was a corner unit that faced the water.
[13] On September 21, 2018 the complainant also advised the affiant that Mr. Donaldson always rents a Chrysler 300 to make use of the hidden compartment behind the radio. She advised that she had seen Mr. Donaldson’s handgun multiple times. The ITO states that the last time the complainant saw the gun was on August 19, 2018.
[14] On the evening of September 21, 2018, a police officer attended at 11 Brunel Court and observed a person he believed to be Sam Donaldson enter the building using a key fob. The concierge told the officer that the person entering the building lived in the building. The key fob records showed that the key fob was associated with Unit 210, a corner unit. The officer checked the parking garage and found no cars of interest.
[15] In the ITO, under the heading “Grounds to Believe that the Items are at the Location to be Searched” the affiant states: “I believe, based on personal knowledge that firearms are routinely found in the place where the person resides and/or within the vehicles that they drive. I believe that a firearm is a prized possession of the owner and that if the owner of the firearm is not carrying it he/she will store it in a safe place, namely their dwelling unit or hidden within their vehicle. Based on the foregoing paragraphs I believe that both unit 210-11 Brunel Court Toronto and B1-193 Beverley Street are locations that Donaldson would store his firearm(s).”
[16] In the residence the police located: 3.27 grams of fentanyl in a ceiling vent in the ensuite bathroom to the master bedroom, $7960.00 in a safe in the master bedroom and a handgun with an overcapacity magazine and ammunition in a backpack in the second bedroom. The backpack containing the gun, magazine and ammunition contained mail addressed to Sam Donaldson. Mail addressed to Sam Donaldson was also found in the second bedroom.
Positions of the Parties
[17] The Applicants’ position is that all the evidence obtained as a result of the search was obtained as a result of a breach of their s. 8 Charter rights and should be excluded under s. 24(2) of the Charter.
[18] The Applicants challenge the facial validity of the warrant and the manner of search. With respect to the facial validity of the warrant, the Applicants make two arguments: (i) that there were insufficient grounds to support a belief that the 11 Brunel Court, Unit 210 address was the residence of the Applicant, Mr. Donaldson; and (ii) that even if the ITO contains sufficient grounds for the belief that the address was the residence of Mr. Donaldson, the ITO does not contain reasonable grounds for the belief that the items sought would be found in that residence. With respect to the manner of search, the Applicants do not allege that the manner of entry was unreasonable. Nor do they assert that there was any damage to the residence. The allegation is that the police left the unit in disarray after the search. The police did not put things back where they found them.
[19] The position of the Respondent is that the ITO contains sufficient grounds to support the belief that the residence at 11 Brunel Court, Unit 210 was the residence of Mr. Donaldson and that the ITO, read as whole, contains sufficient grounds to support the belief that the items sought would be found in the unit. With respect to the manner of search, the Respondent argues that the search was conducted in a reasonable manner that produced no damage to the unit. Any search will involve the movement of personal items and the police are not required to ‘tidy up’ at the end of a search.
Legal Principles and Analysis
Facial Validity of the Warrant
[20] The relevant general principles governing the review of a search warrant are not contentious and may be summarized as follows:
- A search warrant is presumed to be valid and the onus is on the Applicant to show that there was not sufficient credible and reliable evidence to permit a justice of the peace to issue the warrant. [2]
- The standard of persuasion for the issuance of a warrant is reasonable grounds to believe. This standard is one of credibly-based probability and requires proof of reasonable probability or reasonable belief. It requires more than an experienced-based “hunch” or reasonable suspicion. [3]
- 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’). [4]
- The affiant must subjectively believe that there are reasonable grounds to believe that an offence is occurring, and that evidence will be found at the place to be searched. The affiant’s belief must be supported by enough information to enable a reasonable person to come to the same conclusion. [5]
- In a review of the validity of a warrant, the reviewing court must show deference to the issuing justice. The test to be applied is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.” [6] In applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO. [7]
[21] The issue in this case is whether the ITO was capable of supporting to the requisite standard, an inference that the items sought could be found at the address. As the Court of Appeal wrote in R. v. Prosser: [8] “To determine whether this precondition has been established, the issuing justice is to consider the ITO as a whole, not one piece at a time, because each piece of evidence colours other pieces of evidence revealing a fuller and truer picture only through a consideration of the evidence as a whole: Re Church of Scientology & The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 502; Le, at para. 36. The examination of the information as a whole is to be carried out in a practical, non-technical and common sense basis. The issuing justice is also permitted to draw inferences.”
[22] The opinion of the affiant that persons who possess firearms will store it in their residence is relied upon to support this inference. In R. v. Morelli, [9] Fish J. for the majority, wrote:
[I]t is not the role of courts to establish by judicial fiat broad generalizations regarding the ‘proclivities’ of certain ‘types’ of people, including offenders. Matters of this sort are best left to be established by the Crown, according to the relevant standard — in this case, reasonable and probable grounds for belief. ... [M]oreover, courts must be particularly wary of endorsing such generalizations when, as in this case, the crime alleged is the subject of intense emotional responses and widespread condemnation, and the temptation to rely on stereotype rather that [sic] evidence is therefore especially dangerous and strong.
[23] In R. v. Herta, [10] our Court of Appeal considered the sufficiency of an ITO for a warrant where a person said to possess a gun was seen to enter. At paragraphs 44 to 51, Fairburn J.A. wrote as follows:
44 Although the trial judge was clearly alive to the need to consider whether the CI information was compelling, respectfully, I disagree with how that consideration was resolved. The trial judge focussed only on whether the information about the CI seeing Callahan with a gun the day before the search was compelling. Even if it was compelling, that information did not resolve the real question for resolution — whether the issuing justice could find that there was a credibly-based probability that Callahan took the purported 303 rifle into 1670 Clover Avenue the next day. The CI information supporting that proposition comes largely from the suggestion that Callahan was in a dispute and would "not be anywhere without the gun."
45 The appellant argues that the CI information about Callahan being in a dispute and carrying the gun with him at all times was conclusory in nature. He maintains that we should ignore that information.
46 The respondent submits that the information about the dispute and Callahan carrying the gun was not conclusory. Even if it was conclusory, though, the respondent relies upon R. v. Delchev, 2011 ONSC 1994, for the proposition that the CI's personal observation of Callahan with a gun the day before the search made the information sufficiently compelling that the issuing justice could satisfy herself that Callahan would take the gun into 1670 Clover Avenue the next day.
48 Relying upon Delchev, the respondent emphasizes that the fact that the CI said that he saw Callahan with the gun was enough, standing on its own, to pass the compelling threshold in Debot and justify the search. I agree with the sentiment expressed in Delchev, at paras. 73-75, that an inference can be drawn that "criminals who are illegally in possession of guns" may have them for long periods of time. I do not read Delchev as saying, though, that the fact that a CI has seen someone with a gun at some point in the past, means that a search warrant can necessarily issue for any place attended by that person in the future. To the contrary, the CI in Delchev actually saw the firearms at the locations that were ultimately searched. That is quite unlike this case.
49 In this case, although the CI said that he saw Callahan with a firearm, the CI did not connect the firearm to 1670 Clover Avenue. The redacted ITO does not enlighten the reader as to where the CI saw the gun, e.g. in a house, a car, a place of business, a park or any other location. The redacted ITO merely says that Callahan and the gun were seen in the east end of Windsor. The redacted ITO does not even address whether the appellant's home rests in that part of Windsor.
50 Furthermore, other than the affiant seeing Callahan walk toward the front door of 1670 Clover Avenue a few hours before the warrant issued, there is nothing in the redacted ITO that draws a connection between Callahan and that residence. There is no information about who owned, lived at or frequented that home. Nor is there any information about whether a firearm had ever been associated with that location, or whether the police had ever investigated anyone living there or attended at that place in the execution of their duties. Moreover, there is no suggestion that the affiant saw anything in Callahan's hands as he walked toward the residence.
51 Accordingly, the only information that could support the reasonable grounds to believe that Callahan took a rifle into 1670 Clover Avenue rested on the CI's statement that Callahan was in a dispute and would not go anywhere without the gun. If those statements were compelling enough to give rise to a credibly-based probability that Callahan took a rifle into the location searched, then they would be compelling enough for a search warrant for any location that Callahan attended. This would have turned Callahan into walking, ready-made grounds for belief. That is a sweeping proposition, particularly in light of the weak and conclusory nature of those statements in the ITO, the minimal information about credibility and the weak nature of the corroboration.
[24] In R. v. Coluccio, [11] Di Luca J. considered the sufficiency of an ITO in which a confidential informant (CI) told police that they had seen the applicant in possession of a handgun, that the applicant was crazy and liked to show off the gun and that they had seen a number of firearms in possession of the Applicant. The CI did not say that they had or had not seen a firearm in the residence of the Applicant in that case. The affiant in Coluccio asserted the following, at para. 19:
f. Based on my experience as an investigator involved in firearm investigations, I further believe that it is possible that Nicola COLUCCIO could also transfer the firearm from whatever vehicle he is operating to his residence of 86 Novaview Crescent, Woodbridge. Based on my experience, it is not uncommon for persons carrying firearms for their protection to transfer the weapon from their vehicle to this [sic] residence so that the firearm is always near their person, in case of an unexpected attack.
86 Novaview Crescent, Woodbridge, is the residence of Nicola COLUCCIO as indicated on his driver's licence and as demonstrated through surveillance. Although the confidential source had not seen the firearm at this residence, based on my previous experience conducting firearm investigations I know that persons who are illegally in possession of firearms do transfer the firearms from their vehicle to their residence in an effort to ensure that the firearm is accessible to them. Additionally, I believe that along with the firearm Nicola COLUCCIO will be in possession of ammunition for the firearm as well as magazines for the weapon. If Nicola COLUCCIO is arrested in his vehicle while in possession of a firearm, I believe that ammunition is likely to be found in his residence, as well as paraphernalia, documents indicating ownership and/or possession of firearms.
d) There may be documents found that assist in proving ownership of the firearms.
e) Additionally, it is not uncommon for someone in possession of a firearm to possess a cleaning kit and related manuals.
As I have indicated in the preceding paragraphs, although no firearm was seen in the residence of Nicola COLUCCIO, it is my belief, based on my experience that it is not uncommon for an illegal firearm to be moved between an individual's vehicle and residence. In addition, officers will be seeking related paraphernalia such as ammunition and magazines. [Emphasis omitted]
[25] In deciding whether there were grounds to support the issuance of the warrant, Di Luca J. wrote, at para. 61:
When this portion of the ITO is placed in its proper context, there is little to no case specific support for the affiant's assertion that people who possess firearms may take them from their car into their home so that the weapon is at the ready in case of an attack. As such, the officer's assertion that some people do that is simply an unsubstantiated assertion about how some people act in certain circumstances. On the facts of this case, the officer's assertion in this regard adds little to the reasonable grounds analysis; see R. v. Morelli, 2010 SCC 8 at paras. 70-73 and R. v. Aboukhamis, 2015 ONSC 2860 at paras. 35-38.
[26] Di Luca J. considered the judgment of the Court of Appeal in Herta and concluded, at para. 79: “I am not prepared to find that because grounds exist demonstrating that an accused drives around in a car with a handgun, a warrant could also issue for a search of the accused's home. This comes perilously close to the "roving grounds to believe" scenario discussed in Herta.”
[27] I am satisfied that there is case specific information linking Mr. Donaldson to the 11 Brunel Court address. The information provided by the complainant and the investigation by the police makes this link.
[28] However, in this case, as in Coluccio, there is no case specific information linking the firearm to the Applicant’s residence at 11 Brunel Court.
[29] The complainant reported seeing the gun on the person of Mr. Donaldson and in the cars that he rented. The information in the ITO supports the inference that the complainant had been inside both the addresses that she said were residences of Mr. Donaldson. She described how to enter the Beverley Street address and described staying there with Mr. Donaldson. With respect to the 11 Brunel Court address, the complainant described the location of the unit and told the police the name of the other occupant of the unit. She described the view from the balcony of the unit. The logical and reasonable inference is that she had been inside the unit. The complainant did not link the gun to the residences. She consistently linked the firearms to the car driven by Mr. Donaldson and to his person.
[30] The police attempted to identify the car rented by Mr. Donaldson. The investigation disclosed that a car rented by his mother and driven by him in August of 2018 had been impounded by September 9, 2018. The rental agency told the police that no other car had been rented by them to Mr. Donaldson. The police checked the parking garage of 11 Brunel Court on September 21, 2018 and did not locate a Chrysler 300 that was a rental vehicle. The ITO does not say that any inquiries were made of other rental agencies or that inquiries were made with respect to Mr. Donaldson’s mother renting a car. The Respondent argues that the investigation of the car, in combination with the general belief of the affiant concerning the conduct of persons who possess firearms, is capable of supporting the inference that Mr. Donaldson, no longer having a car, took his gun or guns into one of his residences.
[31] There are two problems with this reasoning. First, the information does not support the inference that Mr. Donaldson had no car. It merely supports the inference that he no longer had the same car that he had one month earlier. Secondly, even if the information could be said to support the inference that Mr. Donaldson had no car, this does not support the inference that he had the gun or guns in one of his residences. The only support for that inference is the generalization that persons in possession of guns take their guns into their dwellings. This statement in the ITO falls directly into the category of “broad generalizations regarding the ‘proclivities’ of certain ‘types’ of people”, as described in Morelli, and it cannot meet the standard of reasonable and probable grounds for belief. If it could, in every case where there were reasonable and probable grounds to believe that a person was in possession of a gun, any residence associated with that person could be searched at any time.
[32] I therefore have concluded that the ITO did not contain information that could support reasonable grounds to believe that the evidence sought would be found at the named address. I find that there was a violation of the Applicants’ rights under s. 8 of the Charter.
Manner of Search
[33] The Applicant also argued that the manner of search was unreasonable. I do not agree. There was no damage to any property. The police entered with a key. The unit was untidy at the end of the search with property piled on the beds and with one bed frame not replaced. I accept the evidence of the searching officers that they methodically searched the unit, overturning the beds first and then using the beds to pile property in order to show what had been searched.
[34] I have considered the decision of Code J. in R. v. Thompson. [12] In Thompson, Code J. held that “the deliberate and unnecessary property damage and the deliberate and unnecessary disorder and disarray in which the property was left, rendered the search unreasonable and in violation of s. 8 of the Charter”.
[35] In the case before me there is no evidence of any property damage. The apartment unit was in disarray at the end of the search, but the record before me establishes a reason for the method of search.
[36] I find that the manner of search was reasonable.
Should the evidence be excluded under s. 24(2)?
[37] In R v. Grant, [13] the Supreme Court set out, at para. 71, the approach to the exclusion of evidence under s. 24(2):
…[A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. …
[38] I have considered the three avenues of inquiry identified in R v. Grant.
[39] In assessing the seriousness of the state’s Charter-infringing conduct, I have taken into account that the police sought and obtained prior judicial authorization and that the police did not intentionally mislead the issuing justice. However, the reasons for the affiant’s belief that the gun would be in the residence was based on generalized assumptions. The requirement for case specific grounds to believe that evidence will be found in a place to be searched is not new. The principle, enunciated in Morelli, that “broad generalizations about loosely defined classes of people” will not reach the threshold of reasonable and probable grounds to believe, is not new. I find that the first line of inquiry weighs in favour of exclusion.
[40] With respect to the second line of inquiry, it is not disputed that the impact on the Applicants’ Charter-protected rights was significant. This was the search of a residence. The residence was occupied not only be the applicant Donaldson, the target of the search, but by a roommate, Mr. Kalonji. This factor weighs in favour of exclusion.
[41] There is also little dispute that society’s interest in the adjudication of this case on its merits weighs in favour of admission. The offences in this case are extremely serious and are of concern to the community. The Crown will be unable to prosecute the offences without the evidence seized in the search. As set out in R. v. Blake, [14] “Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.”
[42] The final balancing of the Grant lines of inquiry is difficult in this case, where there was prior judicial authorization and there was no material omission or misleading of the issuing justice. The first line of inquiry weighs somewhat in favour of exclusion, while the second weighs clearly in favour of exclusion and the third weighs clearly in favour of admission. This is a very close call. However, I have concluded that the evidence must be excluded. As Fish J. wrote in Morelli, at para. 111, “The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.”
[43] I have concluded that the admission of the evidence in this case would bring the administration of justice into disrepute.
[44] The Application is therefore allowed, and the evidence is excluded.
Forestell J. Released: July 31, 2020
COURT FILE NO.: CR\19\10000496\0000 DATE: 20200731 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - SAM DONALDSON and KALENDA KALONJI RULING ON APPLICATION TO EXCLUDE EVIDENCE Forestell J. Released: July 31, 2020
[1] R.S.C., 1985, c. C-46
[2] R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 30
[3] R. v. Sadikov, 2014 ONCA 72 at para. 81; R. v. Boussoulas, 2014 ONSC 5542, at paras. 21 and 22
[4] R. v. Floyd, [2012] O.J. No. 3133, at paras. 14-16
[5] R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250; R. v. Floyd, [2012] O.J. No. 3133, at paras. 14-16
[6] R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54
[7] R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16
[8] 2016 ONCA 467, at para. 16
[9] 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 81
[10] 2018 ONCA 927, [2018] O.J. No. 6429 (C.A.)
[11] 2019 ONSC 4559
[12] 2010 ONSC 2862, (2010), 255 C.C.C. (3d) 236 (S.C.J.)
[13] 2009 SCC 32, [2009] 2 S.C.R. 353
[14] 2010 ONCA 1 at para. 31