DATE: 20030929 DOCKET: C35693
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
(Respondent)
- and -
TESSIE LYNN BROOKS
(Appellant)
Michael Davies for the appellant
Bradley Reitz for the respondent
Heard: July 17, 2003
On appeal from the conviction by Justice James A. Fontana of the Ontario Court of Justice on May 23, 2000.
MOLDAVER J.A.:
[1] On May 23, 2000, following her trial before Justice Fontana of the Ontario Court of Justice, the appellant was convicted of possession of cocaine for the purpose of trafficking, possession of marijuana and possession of a restricted weapon. She received a twenty-month conditional sentence and probation. She appeals against conviction only.
[2] The primary issue in this appeal is whether the trial judge erred in admitting into evidence items from the appellant's residence seized by the police in the execution of a general warrant issued under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46. In particular, the appellant submits that the impugned evidence was obtained in a manner that violated her privacy rights under s. 8 of the Canadian Charter of Rights and Freedoms and that it should have been excluded under s. 24(2) of the Charter. The secondary issue is whether the verdicts are unreasonable. Specifically, the appellant submits that on this record, the evidence does not support a finding that she was in possession of the drugs and restricted weapon discovered in her residence.
[3] For reasons that follow, although I agree that the evidence seized from the appellant's residence was obtained in a manner that violated her rights under s. 8 of the Charter, I am satisfied that it was properly admissible under s. 24(2) of the Charter. I am further of the view that it was open to the trial judge to find that the appellant was in possession of the drugs and restricted weapon located in her residence. Accordingly, I would dismiss the appeal.
Overview
[4] On April 30, 1999, the Ottawa police obtained a general warrant under s. 487.01 of the Criminal Code. The target of the warrant was the appellant, Tessie Brooks. The warrant permitted the police to conduct surveillance on Ms. Brooks and, upon certain pre-conditions being met, it authorized them to enter her residence at 1113 Burgundy Lane and search for cocaine and drug-related items. The grounds for obtaining the warrant consisted of current information provided by several unidentified police informants and information gathered by the police from their surveillance of the appellant over a six-week period commencing in mid-March 1999.
[5] In a nutshell, the police had reason to believe that Ms. Brooks was trafficking in crack cocaine. According to the confidential informants, Ms. Brooks had a particular method of doing business. Using various automobiles to make her deliveries, she would contact customers on her cell phone and arrange to meet them at specified times and places. At any given time, she would only keep a small quantity of cocaine on her person. Once her supply dwindled, she would return to her residence and retrieve more drugs. She would then return to the streets and continue her phone calls and deliveries.
[6] On April 29, 1999, one of the confidential informants advised the police that Ms. Brooks was going to be "very active" on April 30. With that information, as well as other information the police had collected, Sgt. Ansari of the Ottawa Police Service prepared an Information to Obtain a General Warrant under s. 487.01 of the Code. He was assisted in that regard by two local Crown Attorneys. On April 30, Sgt. Ansari met with a justice of the Ontario Court of Justice and he obtained the general warrant.
[7] As indicated, the warrant authorized the police to conduct surveillance of Ms. Brooks and, if certain pre-conditions were met, it permitted the police to enter and search her residence for drugs and drug-related items. Appendix C to the warrant contained the pre-conditions. It provided as follows:
(3) APPENDIX "C" (Terms and Conditions)
(i) This warrant to search and seize may only be executed at the address [1113 Burgundy Lane] if
(a) the said Tessie Brooks has, within the three (3) hours immediately prior to entry into the said premises, been
(A) followed or surveilled by police officer(s) while she is either the operator of, or a passenger in, a motor vehicle, and
(B) observed by police officer(s) to be engaged in behaviour that gives rise to reasonable and probable grounds, in all the circumstances, to believe that she is making deliveries of controlled substances, and
(b) subsequent to the events mentioned in (i)(a) above, Tessie Brooks is arrested and searched, and found to be
(A) the operator of, or a passenger in, a vehicle in which cocaine (including crack) or a substance reasonably believed by the police to be cocaine (or crack) is found, including any cocaine (or crack), or similar-looking substance, found on or about the said operator or passenger, or
(B) the operator of, or a passenger in, a vehicle from which a substance referred to in sub-paragraph (A) above, has been ejected.
[8] On a voir dire held to determine the legality of the search of the appellant's residence, Sgt. Ansari explained why the police had applied for a general warrant as opposed to one of the more conventional warrants available under s. 487 of the Criminal Code or s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c.19 ("CDSA"):
Q. O.K. so the purpose of obtaining this general warrant was to arrest -- was to conduct a search of the residence of Ms. Brooks following her arrest.
A. Yes, that's correct.
Q. O.K. And certainly, you'd also be aware that you'd have the right, as you often do, to arrest and then seek a search warrant after the arrest.
A. Yes, that's correct, and if I may elaborate on that …
Q. Yes.
A. … that was the reason why we obtained a general search warrant.
I was fully aware of the powers of the CDSA in that, once an arrest was made, we could've applied for a CDSA warrant.
Q. Right.
A. But time was of the essence in this case and in our - in my opinion or my belief as a drug officer, news does travel fast and I was afraid there may have been a possibility that, had we arrested the individual based on our observations and then gone back and obtained a CDSA search warrant, in that timeframe, perhaps other contact may have been made back to the original residence and evidence may be flushed.
Now, this is again all conjecture and -- and speculation …
Q. Right.
A. .. but based on -- on my experience, news does travel fast on the street.
[9] From this extract, it is apparent that Sgt. Ansari believed that in order to have reasonable grounds to search Ms. Brooks' residence, the police first had to catch her in the act of trafficking. Once that occurred, then based on the information received from the confidential informants, the police could reasonably expect to find a cache of drugs at her residence. In these circumstances, a general warrant was the warrant of choice. It enabled the police to move quickly on Ms. Brooks' residence following her arrest in an effort to prevent someone on the premises from destroying the drugs before the police could obtain a conventional warrant. In that regard, however, Sgt. Ansari readily conceded that apart from "conjecture and … speculation" and his general knowledge that "news … travel[s] fast on the street", he had no reason to believe that exigent circumstances existed in this case.
[10] The search of the appellant's residence at 1113 Burgundy Lane proved fruitful. In the kitchen, the police found a small amount of marijuana in a cupboard. It was wrapped in tinfoil. In another cupboard, they found a grey Wal-Mart bag containing two baggies and a loaded 380 calibre semi-automatic handgun wrapped in a handkerchief. One of the baggies contained fifty foil-wrapped rocks of crack cocaine. Also located in the kitchen was a cell phone with the number 613-724-8284 and a Bell Mobility bill relating to it. The bill was dated April 5, 1999, and showed a total amount owing of $1,114.96. It was addressed to the appellant.
[11] The police found other items of interest in the kitchen. These included two Avis car rental records, the first for a vehicle rented by the appellant on February 25 and returned on March 19, 1999, the second for a vehicle rented by her on March 19 and returned on April 19, 1999. The two bills totalled $1,358.38. A portion of another Bell Mobility bill was also found in the kitchen. It related to telephone number 613-290-5464 and showed a total of 2,210 calls between February 5 and March 3, 1999. That telephone number was the number of the cell phone dropped by the appellant at the scene of her arrest.
[12] The police also searched a green Pontiac Grand Am parked outside the appellant's residence. In the glove compartment, they found an Avis rental agreement showing that the car was rented to the appellant on April 25, 1999 and that it was due to be returned on May 25, 1999.
[13] In the master bedroom of the residence, the police found a lease showing "Lynn Brooks" as the lessee.[^1] Also found in the master bedroom were two Bell Mobility receipts reflecting payments by the appellant on November 20 and 30, 1998 in the total amount of $782. In addition, two Canada Trust transaction records were found, the first showing a cash deposit of $3,540 on November 16, 1998, the second showing a $1,200 cash payment on March 25, 1999 to the appellant's MasterCard account. The police also seized some Ontario Ministry of Community and Social Services documentation addressed to the appellant at 1113 Burgundy Lane. They showed that the appellant received monthly family benefits totalling $1,060.64. According to the evidence at trial, that was her only legitimate source of income. In view of this, the police determined that her monthly expenses exceeded her monthly income by over $2,000.
[14] Against that backdrop, I turn to the appellant's s. 8 Charter arguments.
The Section 8 Charter Issues
Trial Judge's Ruling
[15] The police entered and searched the appellant's residence pursuant to the general warrant issued under s. 487.01 of the Code. The relevant sections of that provision are reproduced below:
s. 487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
[16] As indicated, the warrant contained certain pre-conditions that had to be met before the police could lawfully enter and search the appellant's residence.
[17] At trial, defence counsel (not Mr. Davies) argued the case on the basis that the search of the appellant's residence was unreasonable and in contravention of her rights under s. 8 of the Charter because the police did not comply with the pre-conditions of the warrant before conducting the search. The trial judge did not address that argument in his reasons. Instead, he found that the pre-conditions in the warrant were "[n]either contemplated [n]or authorized by s. 487.01(3)." He provided two main reasons for that conclusion.
[18] First, he held that the phrase "terms and conditions" in s. 487.01(3) does not refer "to obstacles which must be overcome before the warrant may be executed" but to "terms and conditions which must be complied with in the course of the search and seizure in order to protect the dignity and privacy of the individual insofar as possible." Second, he considered the conditions in Appendix C of the warrant to be offensive because they effectively "left [it] to the control officer to determine if and when certain conditions precedent had been satisfied" so as to justify entry into the appellant's residence. In the trial judge's view, Parliament could not have intended "a procedure whereby the decision to breathe life into a search warrant ... is delegated to the control officer."
[19] Having concluded that the pre-conditions in Appendix C were invalid, rather than striking down the warrant, the trial judge determined that the unauthorized pre-conditions were mere "surplusage" and that the failure to observe them was "not vital to the execution of the warrant itself." Accordingly, since the s. 8 argument raised by the defence hinged on the failure of the police to comply with the pre-conditions in Appendix C before entering and searching the appellant's residence, the trial judge ruled that the search was valid and the evidence obtained from it admissible.
Position of the Parties on Appeal
[20] On appeal, the appellant submits that the trial judge was correct in holding that the pre-conditions in the warrant were unauthorized. In view of this court's decision in R. v. Noseworthy (1997), 116 C.C.C. (3d) 376, the appellant accepts that s. 487.01 allows for anticipatory warrants (warrants that may only be executed upon the fulfillment of certain pre-conditions).[^2] In other words, she disavows, correctly in my view, the trial judge's holding that the phrase "terms and conditions" in s. 487.01(3) refers only to "terms and conditions which must be complied with in the course of the search and seizure in order to protect the dignity and privacy of the individual insofar as possible" (see para. 18, supra). Nonetheless, she maintains that the pre-conditions in Appendix C were offensive because they were not "clear, explicit and narrowly drawn" and they left it to the police to decide, in their unfettered discretion, if the conditions had been met. In other words, contrary to the dictates of Hunter v. Southam (1984), 14 C.C.C. (3d) 97 (S.C.C.), the pre-screening that should have been done by a judicial officer was improperly delegated to the police.
[21] In support of her argument, the appellant relies on United States v. Ricciardelli, 998 F.2d 8 (1st Cir. 1993), in which the United States Court of Appeals for the First Circuit considered the constitutionality of anticipatory warrants. For present purposes, the importance of the case lies in the court's conclusion that such warrants are constitutionally permissible so long as they contain sufficient safeguards to minimize the risks associated with them. Of the various safeguards outlined by the court in Ricciardelli, at p. 12, the appellant emphasizes the following three:
- The conditions in the anticipatory warrant must be explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.
- The triggering event must be ascertainable and preordained.
- The warrant should restrict the officers' discretion in detecting the occurrence of the event to almost ministerial proportions, similar to a search party's discretion in locating the place to be searched.
[22] The appellant urges us to adopt and apply those safeguards to anticipatory warrants issued under s. 487.01 of the Code. She further submits that, to the extent the trial judge applied them in his assessment of the general warrant at hand, he was correct in concluding that the pre-conditions did not adequately limit the discretion of the police and were therefore unacceptable. She maintains, however, that having come to that conclusion, the trial judge should have struck the warrant down rather than treat the pre-conditions as mere surplusage.
[23] Alternatively, the appellant attacks the validity of the warrant on the basis that it should not have issued because the requirement of s. 487.01(1)(c) was not met. Specifically, she submits that the police had available to them other provisions in the Criminal Code or the CDSA that they could have utilized to obtain a warrant to search the appellant's residence.
[24] Finally, the appellant submits that if the general warrant was valid, the police failed to comply with the pre-conditions contained in it. Accordingly, she argues that the ensuing search of her residence was unreasonable.
[25] With respect to s. 24(2) of the Charter, the appellant contends that the evidentiary record is insufficient for this court to make a proper determination. She therefore submits that the matter should be sent back to the trial court. Alternatively, she maintains that, on the existing record, we should refuse to admit the evidence under s. 24(2).
[26] The Crown takes the position that the pre-conditions in the warrant were valid. In particular, Crown counsel submits that they were explicit, clear and narrowly drawn and that the warrant did not leave it to the police to decide, in their unfettered discretion, if they had been met. Crown counsel further takes the view that the warrant itself was properly obtained and properly executed.
[27] With respect to s. 24(2), the Crown submits that if the appellant's s. 8 Charter rights were violated, this court is capable of making the s. 24(2) determination on the record as it exists. He further submits that when the principles governing the application of s. 24(2) are applied to the facts of this case, the evidence obtained from the appellant's residence should be ruled admissible.
Analysis
[28] For reasons that will become apparent, the facts of this case do not lend themselves to a comprehensive discussion of the nature and type of pre-conditions contemplated by s. 487.01(3). Suffice it to say that in order to avoid the risks associated with anticipatory warrants, I think there is much to be said for insisting on pre-conditions that are explicit, clear and narrowly drawn. Furthermore, without finally deciding the matter, I am inclined to the view that the pre-conditions in the instant warrant were acceptable. The pre-conditions contained in clause 3(i)(a)(A) and (B) of Appendix C were straightforward and explicit. In essence, they required the police to have reasonable grounds to arrest the appellant for trafficking in drugs. As for the second set of pre-conditions contained in clause 3(i)(b)(A) and (B), although they could have been drafted with greater precision, they too, in my opinion, were quite explicit.
[29] As indicated, however, a full discussion of the nature and type of conditions contemplated by s. 487.01(3) is best left for another day. In this case, having regard to Sgt. Ansari's evidence, the existence of exigent circumstances was the only possible basis for seeking a general warrant instead of one of the more conventional warrants. However, the Information to obtain the warrant made no mention of exigent circumstances and Sgt. Ansari's testimony did not fill that gap. On the contrary, he readily conceded that apart from conjecture, there was no reason to believe that the circumstances of this case differed from other cases of its kind. In other words, leaving aside mere possibilities, the police had no reason to believe that the appellant's arrest would trigger the destruction of drugs or other evidence at her residence before the police could obtain a conventional warrant to search it.
[30] It follows, in my view, that the impugned warrant was invalid because it failed to comply with the statutory pre-condition set out in s. 487.01(1)(c). That pre-condition states, in part, that a general warrant can only be issued where "there is no other provision… that would provide for a warrant … permitting … the thing to be done." For reasons already stated, that is not this case. It follows that the general warrant was invalid and the search of the appellant's residence must therefore be treated as a warrantless search. As such, it amounted to a contravention of the appellant's privacy rights under s. 8 of the Charter.
[31] In view of my conclusion that the warrant itself was invalid, I need not consider the appellant's further argument that the search was unreasonable because the police failed to comply with the second set of pre-conditions contained in clause 3(i)(b)(A) and (B) of the warrant. That issue, however, is one that must be addressed in the s. 24(2) analysis.
Section 24(2)
[32] In my view, the s. 24(2) analysis can be done on the existing record. Section 24(2) was a live issue at trial and the parties led evidence in relation to it. The record is complete and credibility findings do not pose a problem because there are no material facts in dispute.
[33] Turning to the principles that govern the application of s. 24(2), the parties acknowledge that the evidence obtained from the appellant's residence was non-conscriptive. I agree. Accordingly, trial fairness considerations do not arise.
[34] In her bid to exclude the evidence, the appellant relies primarily on the seriousness of the violation. She submits that a warrantless search of a residence is always serious. She further submits that the police wilfully or recklessly failed to comply with the pre-conditions found in clause 3(i)(b)(A) and (B) of the general warrant that had to be met before they could gain lawful entry into her residence. For convenience, the clause in question is reproduced below:
(3)(i) This warrant to search and seize may only be executed at the address [the appellant's residence] if …
(b) subsequent to the events mentioned in (i)(a) above [surveillance of the appellant while she is in a motor vehicle and reasonable and probable grounds to believe that she is making deliveries of a controlled substance], Tessie Brooks is arrested and searched, and found to be
(A) the operator of, or a passenger in, a vehicle in which cocaine (including crack) or a substance reasonably believed by the police to be cocaine (or crack) is found, including any cocaine (or crack), or similar-looking substance, found on or about the said operator or passenger, or
(B) the operator of, or a passenger in, a vehicle from which a substance referred to in sub-paragraph (A) above, has been ejected.
[Emphasis added].
[35] The facts underlying the appellant's submission are straightforward. The police observed Ms. Brooks and an unknown male leave a restaurant and walk to her car. Ms. Brooks entered the car and sat in the driver's seat. The male then leaned through the open window. Before doing so, he reached into his right-hand pocket.
[36] Acting on the belief that Ms. Brooks was engaged in a drug transaction, the police moved in just as the male stepped back from the window. Upon seeing the police, he brought his hand to his mouth. He was then tackled to the ground, at which point he spit out two pieces of tinfoil. Each contained crack cocaine. Upon her arrest, the appellant dropped a cell phone onto the pavement. Although a search of her car revealed no drugs, the police found $177 concealed in her brassiere.
[37] On these facts, the appellant submits that the pre-conditions in subparagraphs (A) and (B) of clause 3(i)(b) were not met because no drugs were found in the car and no drugs were "ejected" from the car. On the latter point, the police conceded in cross-examination that they did not actually see Ms. Brooks hand drugs to the male in return for cash; nor could they be certain that the male was purchasing drugs as opposed to selling them. That being so, the appellant submits that the police knew or should have known that the pre-conditions in subparagraphs (A) and (B) had not been met and that in proceeding to enter and search Ms. Brooks' residence, they acted in flagrant disregard of the terms of the warrant.
[38] With respect, I disagree. Giving effect to that argument would allow form to triumph over substance. Apart from the fact that a strong argument can be made that drugs were found about Ms. Brooks following her arrest, thereby satisfying the requirements of subparagraph (A), I have no doubt that the police honestly believed, with good cause, that the pre-conditions in one or the other of the subparagraphs had been met. The circumstantial evidence supports their belief that the transaction which they observed involved Ms. Brooks selling crack cocaine to the unknown male. Whether the cocaine in question was found "about" Ms. Brooks when the male spat it out (in compliance with subparagraph (A)) or whether it was "ejected", in the sense of "removed" from her vehicle when she sold it to him (in compliance with subparagraph (B)), is of no consequence.
[39] In sum, I reject the submission that in relying upon the transaction at the car as a basis for proceeding further and searching the appellant's residence, the police were acting in flagrant disregard of the terms of the warrant. On the contrary, at most, they committed an honest error in judgment.
[40] Moreover, apart from that one aspect of their conduct, the police otherwise conducted themselves with the utmost of good faith. Manifestly, that diminishes the seriousness of the violation.
[41] Also, in my view, the seriousness of the violation is attenuated by the fact that the police had reasonable grounds to search the appellant's residence. Had they known that the general warrant was invalid, they could have sought and obtained a conventional warrant under either s. 487 of the Code or s. 11 of the CDSA. In other words, this is not a case in which the police were acting on mere suspicion. The fact that they were legitimately entitled to search the appellant's premises mitigates the seriousness of the violation. (R. v. Puskas (1998), 120 C.C.C. (3d) 548 at 554 (Ont. C.A.)).
[42] In sum, although I would not classify the breach as trivial, its seriousness is substantially diminished by the mitigating factors that I have mentioned.
[43] Given my assessment of the seriousness of the violation, I have little difficulty in holding that the administration of justice would suffer greater disrepute from the exclusion of the evidence seized from the appellant's residence than its admission. The crimes at issue (other than the marijuana offence) are very serious. The police found a substantial quantity of crack cocaine in the appellant's residence. It was packaged and ready for distribution. They also found a loaded handgun. By any measure, those items constitute a deadly combination.
[44] In these circumstances, where the guilt of the appellant for serious crimes is established by real evidence and the exclusion of that evidence would result in her acquittal, I am satisfied that, on balance, exclusion of the evidence would have a greater negative impact on the repute of justice than would its admission. (R. v. Puskas, supra at 556; R. v. Laurin (1997), 113 C.C.C. (3d) 519 at 537 (Ont. C.A.)).
[45] Accordingly, I am satisfied that the evidence seized from the appellant's residence was properly admissible under s. 24(2).
Unreasonable Verdict
[46] Earlier in these reasons, I outlined the items found by the police in the appellant's residence. I do not intend to repeat them. Suffice it to say that in combination, taking into account the cell phone records, the car rental agreements, the amount of legitimate income available to the appellant compared to her monthly expenses, the finding of the gun in the same bag as the crack cocaine and the activities of the appellant that resulted in her arrest, I am satisfied that it was open to the trial judge to find that she was in constructive possession of the items found. Accordingly, I would not give effect to this ground of appeal.
Conclusion
[47] The items seized from the appellant's residence, including the drugs and firearm, were properly admissible. On the whole of the evidence, it was open to the trial judge to find that the appellant was in constructive possession of those items. Accordingly, I would dismiss the appeal from the conviction.
Signed: "M.J. Moldaver J.A." "I agree John Laskin J.A." "I agree E.A. Cronk J.A."
RELEASED:September 29, 2003 "JL"
[^1]: The appellant's middle name is Lynn. Other documents located at the residence refer her to as Tessie Lynn Brooks or Tessie L. Brooks. [^2]: At issue in Noseworthy was the validity of a general warrant issued under s. 487.01 which authorized the police to re-seize items upon their return to Mr. Noseworthy’s counsel. The items in question had been seized initially under an invalid warrant.