Her Majesty the Queen v. Sutherland [Indexed as: R. v. Sutherland]

52 O.R. (3d) 27

[2000] O.J. No. 4704

Docket No. C32762

Court of Appeal for Ontario

Carthy, Abella and Feldman JJ.A.

December 14, 2000

Charter of Rights and Freedoms--Search and seizure--Police officer obtaining tip from previously unknown informant that accused was in possession of stolen World Series ring--Officer engaging in careless police work--Officer inadvertently describing another person's more serious criminal record in information to obtain search warrant--Officer overstating informant's reliability --Warrant permitting execution in middle of night--Information not stating reasonable grounds for believing that warrant had to be executed at night--Warrant invalid--Search violating s. 8 of Charter--Evidence seized pursuant to warrant excluded--Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

A search warrant executed at the accused's apartment turned up a substantial quantity of cocaine, some other narcotics, handguns and a stolen World Series championship ring. The warrant was issued after a police officer received a tip from a confidential informant, previously unknown to him, that the accused was in possession of a stolen World Series ring belonging to a particular member of the Toronto Blue Jays. The officer checked records and found that the ring had been stolen. He did not investigate whether there had been publicity surrounding the theft. He discovered that the accused and another person with the same name and birth date had criminal records. By error, he included the other person's more serious criminal record in the information to obtain a search warrant. The information stated that the tip came from a "proven reliable informant". The search warrant which was issued authorized the search of the accused's dwelling house between the hours of 2:00 and 5:00 a.m. The warrant was executed at 2:30 a.m.

On a voir dire at trial, the trial judge excised the word "proven" from the phrase "proven reliable informant" in the information, but allowed "reliable" to stand. The trial judge ruled that the absence of any specific material in the information to support the execution of the search warrant by night, as required by s. 488(b) of the Criminal Code, R.S.C. 1985, c. C-46, did not constitute a breach of s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge discounted as insignificant the fact that the informant had a criminal record. There was no evidence as to the nature of that record. The warrant was found to be valid and the accused was convicted. The accused appealed.

Held, the appeal should be allowed.

The trial judge erred in retaining the word "reliable" in the information. Furthermore, the trial judge erred in discounting the fact that the informant had a criminal record. The fact that the record was treated as having no significance highlighted the pattern of laxity that pervaded the process leading to the issuance of the warrant.

A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected. Furthermore, the Criminal Code imposes special requirements where a search by night is contemplated. A failure to satisfy s. 488(b) of the Code is at least a strong indicator of a violation of s. 8 of the Charter. No inference could be drawn from the information in this case that there were reasonable grounds to believe that the opportunity to seize stolen goods might have been lost if it had not been pursued before the next morning. Even though the present s. 488 did not in fact apply to the warrant in this case, as it was enacted after the warrant was issued, the former s. 488 called for "execution by day" and therefore clearly implied that there had to be a reason for authorizing entry into a home at night. Thus, both before and after the amendment of s. 488, additional justification for a night search was required. That justification was lacking in this case. The provision for a night search of a home is meant to be invoked in exceptional circumstances and is not to be used casually, as in this case, to justify invasion of a home at night to find stolen property which would in all likelihood have remained there until morning.

The search warrant was invalid and the search of the accused's home violated s. 8 of the Charter.

The investigating officer in this case was flagrantly careless and showed no appreciation of the significance of an intrusion upon the privacy of a home. The fact that the intrusion took place at night, without need or justification, exaggerated the seriousness of the other defects. Standing by itself, this was the most serious of the violations. The administration of justice would be brought into disrepute by the admission of the evidence.

APPEAL from conviction.

R. v. Hosie (1996), 1996 450 (ON CA), 37 C.R.R. (2d) 97, 107 C.C.C. (3d) 385, 49 C.R. (4th) 1 (Ont. C.A.), consd Other cases referred to Gooding v. United States, [1974] 416 U.S. 430, 94 S.Ct. 780, 40 L.Ed.2d 250; R. v. Charlie, [1992] Y.J. No. 97 (Terr. Ct.); R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 37 O.A.C. 1, 102 N.R. 161, 45 C.R.R. 49, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129; R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, 43 O.A.C. 1, 116 N.R. 241, 50 C.R.R. 206, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317; R. v. Peddle, [1997] N.J. No. 287 (Nfld. S.C.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 488 [as am. S.O. 1997, c. 18, s. 47]

Richard Litkowski, for appellant. Graham Reynolds, Q.C., for respondent.

The judgment of the court was delivered by

[1] CARTHY J.A.:--The issue on this appeal is the validity of a search warrant exercised on December 17, 1996 at 2:30 a.m. to search the appellant's apartment. The search turned up a substantial quantity of cocaine, some marihuana, hashish, L.S.D., Psilocybin, three handguns with ammunition and a World Series Championship ring bearing the name Paul Beeston.

[2] The validity of the search warrant was challenged at trial on a voir dire. The warrant was found to be valid and on an agreed statement of facts a conviction was entered on several counts. A sentence of 38 months was ordered and has now been served.

[3] The only evidence at the voir dire was the testimony of Police Constable Tillsley. He stated that about two months before the warrant was issued, a confidential informant told him that a Michael Sutherland was seen wearing a World Series baseball ring bearing the name of Toronto Blue Jays player Paul Beeston and that the ring had been stolen from Mr. Beeston's house in August of 1996. He was also informed that Sutherland had been involved in gambling and bookmaking and lived in Scarborough. The officer had no previous dealings with the informant.

[4] P.C. Tillsley checked records and found there had been a break-in and theft of Mr. Beeston's ring in August, but he did not investigate whether there had been publicity surrounding the event. He found there was a Michael Sutherland who resided on Midland Avenue in Scarborough. He checked the computer for Sutherland's birth date, and then searched for a criminal record. He found two Michael Sutherlands with the same birth date, each with criminal records, and by error he included the wrong one in the information. Neither record included bookmaking, which had been reported by the informant, and it will be noted later that there is no reference to the bookmaking allegation in the information. It was not until the time of the preliminary hearing that it was discovered that P.C. Tillsley had used the wrong criminal record, the more serious one, in the information leading to the search.

[5] P.C. Tillsley met face-to-face with the informant about a month before the warrant was issued but learned nothing new on that occasion. On December 16, 1996, at 11:25 p.m., the informant telephoned the officer and indicated that that evening he or she had been at the home of Michael Sutherland and had seen a 1992 World Series ring on an entertainment unit in the residence. P.C. Tillsley thereupon drew up the appropriate information and attended upon a justice of the peace to obtain a warrant, which he executed at 2:30 a.m. on December 17.

[6] The information to obtain the search warrant read as follows:

1. I John Tillsley am a member of the Metropolitan Toronto Police Service and have been so employed since September 1987. I presently am employed in a uniform capacity.

2. On Monday the 16th of December 1996, I was working the evening shift attached to the uniform branch at 41 Division in the City of Scarborough.

3. At approximately 11:25 p.m. I had a telephone conversation with a proven reliable informant.

4. This informant has previously provided myself with accurate information on criminal activity including information on the original break and enter in question in this matter.

5. The informant [has] therefore been proven reliable. As a result of the information provided during our conversation, I have reasonable grounds to believe and do believe the following:

6. During [blacked out] December 1996, the informant attended the suspect(s) address of 746 Midland Avenue, Apartment 410 in the City of Scarborough which is in the municipality of Metropolitan Toronto.

7. Once inside the premise the informant was able to observe a very distinctive men's gold ring--an All Star Series ring with the name Paul Beeston inscribed on the side.

8. Based upon previous conversations with the suspect(s) the informant was aware that the ring had been obtained through a break and enter at the owner's residence in August 1996. The ring in question was displayed in plain view on an entertainment unit.

9. The above information was also confirmed by a police occurrence information which stated a break and enter had occurred at the residence of Mr. Paul Beeston on Saturday the 31st of August 1996.

10. The male described by the informant as the tenant of the apartment is a party by the name of Michael Sutherland, with a date of birth 65 05 24. This party has an extensive criminal record that includes a conviction for possession of property obtained by crime and numerous other weapons, drugs and violent offences.

Therefore the investigating officers would be searching for:

1: a quantity of wrist watches valued at approximately $3000.00

2: several World Series baseball rings

3: an All Star ring in the name of Paul Beeston.

(Emphasis added)

[7] The underlined portions of the information to obtain the warrant were subsequently excised by the trial judge after the voir dire. He quite properly approached his function as reviewing judge in accordance with the direction in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1452, 60 C.C.C. (3d) 161 at p. 188:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non- disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[8] Accordingly, the reviewing judge deleted the mistaken reference to an "All Star" ring and the criminal record items which were not on the record of the appellant. He correctly found that the words "proven reliable" would connote to a justice of the peace that the informant had been of assistance in prior criminal cases and deleted the word "proven" in paragraphs three and five and the words "on criminal activity including information" in paragraph four. In retaining the word "reliable" in paragraphs three and five, the trial judge found justification in the officer's evidence that all he meant to convey was that, by reason of the information the informant had provided earlier, which the officer had confirmed, the informant was shown to be reliable on December 16.

[9] The trial judge made several errors. First, the repetition of information says nothing as to the informant's reliability. While confirmation of detail may make the information more compelling, it does not necessarily speak to the issue of reliability. Wilson J. put it this way in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at p. 1168, 52 C.C.C. (3d) 193 at p. 215:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[10] Because this was an untested informant, the trial judge should have deleted the word "reliable" in paragraph three and the entirety of paragraph five. This would leave the non- conclusive statement in paragraph four that the informant had previously provided accurate information as to the break and enter. He could have then proceeded to evaluate the balance of the information to determine whether, in the totality of the circumstances, a compelling case had been made out for issuance of a warrant.

[11] In the course of amplifying the record that had been before the justice of the peace, the trial judge erred further in discounting, as having no significance, the fact that the informant had a criminal record. Officer Tillsley recalled that the informer had a record but could not recall its content. He said he did not consider it relevant. That might have been a satisfactory response if it was a short driving record, but in the absence of evidence as to the nature of the informant's record, the court is entitled to assume it would likely have been a negative factor in terms of credibility.

[12] Arguably, as long as no assumption is made regarding the informant's reliability, the presence of a criminal record is less significant. However, the fact that the record was treated as having no significance does highlight the pattern of laxity that pervaded the process leading to the issue of this warrant. The trial judge made no finding of lack of bona fides and, based on the printed record, neither would I. Rather, I would characterize the deficiencies in this case as a syndrome of lassitude: the product of a casual attitude towards a search warrant and a failure to be attentive to the public responsibility associated with ex parte permission to enter a dwelling, particularly, as will be referred to below, at 2:30 a.m. The familiar words "proven reliable informant" were probably inserted because they were jargon--words that a justice of the peace is accustomed to seeing. When this is combined with the lack of notes as to the criminal record of the informer, the mistakes concer ning both the ring and the two Michael Sutherlands and their differing records, and the failure to investigate whether the informer may have learned of the break and enter from the newspapers, the overall appearance is that truly important police work lay elsewhere. The suggestion is that warrants can be obtained by going through the motions with the thought that if nothing is found there will be no scrutiny of the process and if evidence is found, it will be non-conscriptive and will be admitted under s. 24(2) of the Canadian Charter of Rights and Freedoms.

[13] The appellant relies upon the judgment of this court in R. v. Hosie (1996), 1996 450 (ON CA), 37 C.R.R. (2d) 97, 107 C.C.C. (3d) 385 (Ont. C.A.), both in respect of the validity of the warrant and in consideration of s. 24(2) of the Charter. That case involved a home search for a hydroponic marihuana-growing operation. The police provided information that was misleading as to the reliability of the informers. After deleting the offending language, Rosenberg J.A. was left with an unproven source. He examined the remaining detail to see if its strength outweighed its weakness. He stated at p. 392 C.C.C.:

Thus, what remains of para. 5 is information from an unproven source. Mr. O'Connell asked us to place substantial weight on the detail supplied in para. 5, namely, that the appellant had recently moved to Everts Ave. and that he had established a "very hightech hydroponic Marihuana growing operation". In my view, the information supplied is far from detailed and could not be described as compelling, in the sense referred to by Wilson J. in Debot. There is no indication as to the informer's source of knowledge or how current the information is. There is no way to know whether the informer has obtained this information through personal observation as opposed to rumour or second or third-hand information. The use of the phrase "very hightech" does not advance the case in any real sense. Had the informer provided information as to the type of equipment and similar details then the justice might have been able to infer that the informer had obtained the information first-hand. That kind of detail, howe ver, is lacking.

As Wilson J. said in Debot, supra, at p. 218, "the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater." Since in this case the credibility of the informants cannot be assessed and few details were supplied, a relatively higher level of verification was required.

[14] In the instant case, the simple statement, "he has a World Series ring in his possession with Paul Beeston's name on it" cannot be complained of for lack of detail in identifying a stolen object. Further, it was said to be current, firsthand information on both occasions. When viewed in isolation the story appears credible. However, the credibility flowing from the detail is seriously diminished by the officer's failure to investigate the very likely possibility that the robbery of the ring was widely publicized given the high profile of the owner. If the original tip that the appellant was wearing the stolen ring was viewed as credible by the officer, it would seem that the simplest thing would have been to approach the appellant to determine if he was wearing a large, familiar-looking gold ring. Another feature that diminished the credibility flowing from the detail in the informant's disclosure was the fact that the informer had a criminal record and may well have been acting vindictively in exposing the appellant to a police investigation.

[15] A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected. Further, the Criminal Code, R.S.C. 1985, c. C-46 imposes special requirements where a search by night is contemplated. The warrant in this case authorized a search of the dwelling house between 2:00 and 5:00 a.m.

[16] Section 488 of the Code now reads:

488. A warrant issued under section 487 or 487.1 shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) the reasonable grounds are included in the information; and

(c) the warrant authorizes that it be executed by night.

[17] It was this version of the section which was considered by the trial judge and in argument before this court. The trial judge's reasons concerning this issue read:

With these findings it is clear that there was no breach of the accused's Section 8 Charter rights. The absence of any specific written material to support the execution of the search warrant by night; that is, a failure to follow the requirements of Section 488(b) of the Criminal Code, does not per se constitute a breach of Section 8 of the Charter. In particular, in this case and on the facts of this case, there was available in the material which survived my editing a reasonable inference to be made from the written material [that] unless the search was done quickly the evidence could very well disappear. I note that the confidential informant's information was received by the affiant at 11:25 p.m., the warrant was obtained at 1:40 a.m. the next morning and was executed at 2:30 a.m. approximately.

[18] 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.

[19] Since the argument of this appeal I have discovered that clauses (a), (b) and (c) of s. 488 were first enacted on April 26, 1997 [S.C. 1997, c. 18, s. 47] and thus do not apply to a 1996 warrant. The former s. 488 read:

488. A warrant issued under section 487 or 487.1 shall be executed by day, unless the justice, by the warrant, authorizes execution of it by night.

[20] Even before it was amended, this section called for "execution by day" and therefore clearly implied that there be a reason for authorizing entry of a home at night. Thus, both before and after the amendment, additional justification for a night search was required and is wanting in the instant case.

[21] There is little jurisprudence under s. 488. In R. v. Peddle, [1997] N.J. No. 287, the Newfoundland Supreme Court upheld a warrant for execution at night. There, however, the search for cocaine was upheld on the ground that cocaine sales do not cease at nightfall, and that the seriousness of the offence justified immediate action.

[22] In R. v. Charlie, [1992] Y.J. No. 97, the Yukon Territorial Court dealt with a warrant for a night search for stolen goods in circumstances where tracks led from the place of the theft to the home of the accused. The court concluded that s. 488 in its unamended state required specific justification showing the necessity for execution of a warrant at night, and that no such justification was apparent despite the evidence of the tracks. The court relied on a dissent in the U.S. Supreme Court case of Gooding v. United States, [1974] 416 U.S. 430, 94 S.Ct. 780, 40 L.Ed.2d 250.

[23] In Gooding, Justice Marshall expressed himself in these terms, speaking in dissent at p. 9 [sic]:

Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The Fourth Amendment was intended to protect our reasonable expectations of privacy from unjustified governmental intrusion. Katz v. United States, 389 U.S. 347, 360-362 (1967) (Harlan, J., concurring). In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the home in the middle of the night--frequently, in narcotics cases, without knocking and announcing their purpose--rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a "police state" lacking in the respect for . . . the right of privacy dictated by the U.S. Constitution. S. Rep. No. 91-538, p. 12 (1969).

[24] I would adopt this excerpt as applicable to a consideration of the protection afforded to the public by s. 8 of the Charter.

[25] 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.

[26] In fairness to the police, it should be noted that counsel for the defence indicated that there were no complaints of disruptive conduct by the police during this particular search.

[27] Viewing the circumstances in totality there is no question in my mind that a home search by night was not justified on this information.

[28] I therefore find that the warrant was invalid and that there has been a violation of s. 8 of the Charter. Having found the warrant valid, the trial judge made only perfunctory reference to s. 24(2) of the Charter, and I must therefore make my own analysis of the admissibility of the evidence found on the search. I make that analysis in accordance with the three factors relevant to the application of s. 24(2) set forth in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1.

[29] The judgment of this court in R. v. Hosie, supra, turned on the misleading statements in the information to obtain the warrant as to the reliability of an informant. Justice Rosenberg wrote at length about both the seriousness of the offence and its effect upon the long-term administration of justice. His reasons were released on June 17, 1996. The warrant in the instant case was issued on December 16 of that year. Even if the language used in P.C. Tillsley's information is viewed as no more than ambiguous (an interpretation I consider generous to the officer), it was ambiguity in the face of a specific warning by this court that judicial officers must be able to treat the information at face value. If police officers are to be permitted to use expressions such as "proven reliable" in order to protect their sources, a justice of the peace must be able to assume with confidence that the expression bears its accepted meaning.

[30] The reasons in Hosie called for a renewed sense of responsibility by officers seeking search warrants. What we have here, beyond the reliability issue, is a less than complete investigation, a failure to disclose the informant's criminal record and several other errors referred to earlier. I do not go so far as to find bad faith on the part of the officer, but I do find that he was flagrantly careless and showed no appreciation for the significance of an intrusion upon the privacy of a home. The fact that the intrusion took place at night, without need or justification, simply exaggerates the seriousness of the other defects. Standing by itself, this is the most serious of the violations. As stated earlier, with a properly issued warrant, the officer could have stood at the door of the apartment in the morning and have been reasonably certain that the evidence would be found.

[31] Serious offences were revealed by the evidence seized on the search, involving sizeable quantities of drugs and weapons. Without that evidence there can be no convictions, and the public interest in conviction for crimes is therefore not served by its exclusion. Nor would including the evidence affect the fairness of the trial. In fact, it was conceded that the evidence seized was non-conscriptive and thus does not affect the fairness of the trial. Nonetheless, I am satisfied that the administration of justice would be brought into disrepute by the admission of the evidence.

[32] I echo, without reproducing, the reasons of Rosenberg J. in Hosie at pp. 398 to 400 C.C.C. as to the significance to the process of justice of misleading statements in an information. He found justification for exclusion on that ground alone. Of greater significance, and having a direct impact upon the public, is the need for protection against unnecessary and unjustified intrusions into the home at night. In my view, the Charter breach in this case was much more serious than in Hosie, and the factors favouring admission of the evidence much the same.

[33] To some extent, whenever a guilty person evades conviction because of a Charter breach, the administration of justice suffers. However, a balance must be found when Charter breaches are exposed in court to assure that innocent persons do not suffer by repetition of the breach. When the conduct of the police, who form an integral part of the administration of justice, falls below the expected standard, the protection of the public by the justice system suffers. The mere presence of police officers at one's home in the middle of the night, for whatever reason, is a frightening event. Parliament has recognized that only in exceptional circumstances can the police exercise this unusually intrusive procedure. Those circumstances did not exist in this case.

[34] In my view, on the totality of circumstances set out in these reasons, the evidence should be excluded.

[35] It is ironic that for some undisclosed reason but, no doubt, related to his misconduct, the appellant's bail pending this appeal was cancelled and he has served his sentence.

[36] The appeal against conviction should be allowed and an acquittal [should] be entered.

Appeal allowed.