R. v. Dhillon, 2010 ONCA 582

CITATION: R. v. Dhillon, 2010 ONCA 582

DATE: 20100909

DOCKET: C50629

COURT OF APPEAL FOR ONTARIO

Weiler, Goudge, and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Beant Dhillon

Appellant/appellant

Alan D. Gold, for the appellant

Michael Bernstein, for the respondent

Heard: April 6, 2010

On appeal from the convictions entered by Justice Joseph Fragomeni of the Superior Court of Justice on May 13, 2008.

Simmons J.A.:

I. Overview

[1] Following a trial before Fragomeni J., the appellant was convicted of possession of a loaded prohibited firearm, possession of a firearm without a licence, possession of counterfeit money, possession of stolen property having a value exceeding $5000 (stolen paint), and two counts of possession of stolen property having a value not exceeding $5000 (stolen mops, stolen Christmas trees).

[2] Police seized the items forming the subject matter of the charges while executing a search warrant authorizing a search of the appellant’s home.

[3] The only issues at trial were: i) the validity of the search warrant, and ii) if the search warrant was invalid, the admissibility under s. 24(2) of the Charter of evidence of the items seized when the search warrant was executed.

[4] The trial judge ruled that the search warrant was invalid and that the warrantless search of the appellant’s home was a breach of the appellant’s s. 8 Charter right to be free from unreasonable search and seizure. However, after applying the framework from R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, for assessing whether evidence should be excluded under s. 24(2) of the Charter, the trial judge declined to exclude the evidence of the items seized.

[5] Subsequent to the trial judge’s ruling, the Supreme Court of Canada released its decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, modifying the Collins analytical framework for exclusion of evidence under s. 24(2) of the Charter.

[6] The main issue on appeal is whether the trial judge erred in failing to exclude the evidence of the items seized during the execution of the search warrant.

[7] For the reasons that follow, I would allow the appeal.

II. Background

i) The Information to Obtain the Search Warrant

[8] On November 15, 2007, York Regional Police obtained a search warrant to search the appellant's residence at 12 Huntspoint Drive, Brampton based on an Information to Obtain sworn by Detective Constable Sean Jackson.

[9] The Information to Obtain was based primarily on information provided by a confidential informant on October 11, 2007 and October 19, 2007, and on surveillance evidence obtained by the police between October 11, 2007 and October 25, 2007.

a) The information provided by the confidential informant

[10] The information provided by the confidential informant related to four handguns alleged to be in the appellant's residence and to the theft of a tractor trailer load of Behr base paint. However, because of concerns about the identity of the confidential informant, for the purposes of the appellant’s application to quash the search warrant, Crown counsel at trial redacted, as he was required to do, significant portions of the information provided by the confidential informant from the Information to Obtain. Following the redactions, the utility of the confidential informant's information was quite limited.

[11] What remained were the following allegations:

• on October 11, 2007 Detective Constable Frank Doto provided Detective Constable Jackson with information from a confidential informant about a man identified as Sukhninder Dhillon (the information the informant supplied about Sukhninder Dhillon was redacted);

• on October 19, 2007, Detective Constable Doto told Detective Constable Jackson that the informant had identified the appellant, his wife and child as the residents of 12 Huntspoint Road and asserted that “the four previous described handguns are still in the residence” (any prior references to the four handguns were redacted);

• the confidential informant also indicated that the appellant “drives a burgundy van with ‘DHILLON RENOVATIONS’ written on it”;

• Detective Constable Jackson contacted Peel Regional Police as a result of information provided by the confidential informant (the nature of the information supplied was redacted) and obtained a report about a theft of a tractor trailer containing 3912 cans of untinted white Behr base paint packaged in 1 litre, 4 litre and 5 gallon containers;

• the police report indicated that the tractor trailer was stolen from 200 Advance Blvd, Brampton and that it was recovered inside a gated parking compound located at 2 Cadetta Road, Brampton;

• the confidential informant had provided “factual, [corroborated] information in previous investigations” and, in particular, had “consistently provided police with information regarding stolen property,” and

• the information provided by the confidential informant during the course of this investigation had been corroborated where possible and found to be accurate.

b) Detective Constable Jackson's Efforts to Corroborate the Confidential Informant's Information

[12] In the Information to Obtain, Detective Constable Jackson indicated that, on October 19, 2007, he observed a red van with the words “DHILLON RENOVATIONS” written on its side parked in the driveway of 18 Huntspoint Road, Brampton, which was the residence of Sukhninder Dhillon and Balwant Dhillon. The red van moved from the driveway at 18 Huntspoint Road to the driveway at 12 Huntspoint Road, Brampton, and the driver of the van entered the home at 12 Huntspoint Road without knocking. A motor vehicle office search revealed that the appellant owned the red van. A Land Registry Office search revealed that the appellant owned the home at 12 Huntspoint Road, Brampton.

c) The Surveillance Evidence

[13] According to Detective Constable Jackson, the surveillance evidence indicated that on October 22, 2007, Sukhninder Dhillon travelled from his home at 18 Huntspoint Road, Brampton to a commercial plaza in Brampton in a white cube van. At the plaza, Sukhninder Dhillon turned the van over to two unknown males who went to a residence at 16 Borneo Cr., Brampton, where they unloaded a large number of 3.86 litre cans of paint from the rear of the cube van into the garage of the residence.

[14] The two unknown males then picked up Sukhninder Dhillon in the white cube van at another commercial plaza and the “van then briefly returned to [the appellant’s home at] 12 Huntspoint Road before then returning once again to 16 Borneo Cr. in Brampton”.

[15] Further, on October 24, 2007, police followed Sukhninder Dhillon to 2 Cadetta Road, Brampton, where the tractor trailer had been recovered. He was later observed travelling in and out of commercial parking lots housing unattended tractor trailers.

[16] Finally, on October 25, 2007, “surveillance officers discovered the garage door [at the appellant’s home at 12 Huntspoint Road, Brampton] wide open and were able to observe a large number of both 4 Litre and 5 gallon containers of paint stacked in the garage.” Surveillance officers later followed Sukhninder Dhillon to an address immediately beside 200 Advance Blvd., Brampton, where the original tractor-trailer theft occurred. After a short time, Sukhninder Dhillon was picked up by another vehicle, which was then followed “going into numerous trucking yards housing unattended tractor trailers.”

[17] In the conclusion section of the Information to Obtain, Detective Constable Jackson expressed the view that the surveillance evidence linked the appellant to the stolen paint. He said he “firmly believe[d]” that Sukhninder Dhillon, Balwant Dhillon and the appellant were in possession of stolen paint and that it was stored at the appellant’s residence. In addition, he said, “[o]bservations have established that Sukhninder DHILLON accesses this paint from the residence at 12 Huntspoint Road in Brampton and delivers it to buyers as evidenced when a quantity was taken from the garage at 12 Huntspoint Road and delivered to 16 Borneo Cr in Brampton.”

ii) The Search Warrant and the Search

[18] The police obtained the search warrant and executed it on November 15, 2007. Although the warrant authorized police to search for containers of stolen paint, for related bills of lading and shipping documents and for four black 9 mm handguns and ammunition, the only offence alleged in the search warrant was possession of stolen paint.

[19] The police seized the following items during the search of the appellant's home:

• Green and black bags containing approximately $371,670 of counterfeit Canadian currency;

• a grey plastic bag containing a loaded Smith & Wesson handgun;

• 18 rounds of ammunition and an extra magazine; and

• cargo from four separate tractor-trailers thefts in Brampton and Hamilton, including hundreds of containers of paint, two televisions, and Christmas trees and mops.

[20] The items seized were found in many locations throughout the appellant's home including: the garage, the basement, the family room, the laundry room and four bedrooms.

iii) The Evidence led by the Appellant on his Charter Applications

[21] In support of his Charter applications to quash the search warrant and to exclude the evidence obtained when the search warrant was executed, the appellant relied on the redacted Information to Obtain, transcripts of the preliminary inquiry and the oral evidence of Detective Constable Jackson led on the voir dire.

[22] Both at the preliminary inquiry and on the voir dire, Detective Constable Jackson acknowledged that his statement in the Information to Obtain to the effect that surveillance officers observed “a large number of both 4 Litre and 5 gallon containers of paint stacked in the garage” of the appellant's residence located at 12 Huntspoint Road, Brampton, contained errors. Detective Constable Jackson relied on e-mail summaries of the surveillance officers’ observations to prepare the Information to Obtain. He acknowledged that the e-mail summaries did not include references to either “a large number of” containers of paint or to “4 litre” containers of paint being in the garage. At the preliminary inquiry, he agreed that the e-mail summaries did not refer to any quantity of five gallon containers.

[23] Detective Constable Jackson testified that the erroneous references were “mistakes” on his part, and that he had no intention of misleading the Justice of the Peace who issued the warrant.

[24] Although the appellant initially suggested during the voir dire that he would be relying on a Special Services Report (a typed summary of the surveillance officers’ observations) to amplify the record before the reviewing judge, he abandoned this request when the trial Crown suggested that the reviewing judge would have to consider the whole of the Special Services Report to put any inaccuracies revealed by that report into their proper context.

[25] Both the e-mail summaries of the surveillance officers’ observations that Detective Constable Jackson used to prepare the search warrant and the Special Services Report indicated that Sukhninder Dhillon was present in the white cube van at the appellant's residence at 12 Huntspoint Road, Brampton, on October 22, 2007 before travelling to his home at 18 Huntspoint Road, Brampton and then to the commercial plaza where he turned the white cube van over to two unknown males.

[26] However, although this source material was before the trial judge, and although the trial Crown initially relied on the source material in his submissions, ultimately, the appellant did not rely on the source material to amplify the record before the trial judge. Further, the trial Crown acknowledged that if the appellant was not relying on the source material, he was not entitled to do so either, because doing so would amount to “do[ing] an end run around the prior judicial authorization requirement”.

iv) The Trial Judge’s Reasons for Quashing the Search Warrant

a) The confidential informant’s information

[27] The trial judge observed that the information provided by the confidential informant relating to the four handguns was not detailed and that the detail that was provided was not compelling. In this regard, he said, “information about where someone resides, and what type of car they drive … is not compelling.”

[28] Further, the trial judge noted that there was no indication of when the handguns were observed, of the source of the confidential informant's information or of the basis of the confidential informant’s belief that the handguns were still in the appellant’s home. In addition, there was “insufficient information about the reliability of the confidential informant, and the basis for any reliability.”

[29] Finally, in the light of the three weeks that elapsed between the date on which the police obtained the confidential informant’s information and the date on which they obtained the search warrant, the trial judge said, “it is difficult to accept the officer’s conclusion that the items … would be located in the premises.”

[30] The trial judge concluded, “I am not satisfied that the information provided by the confidential informant had sufficient reliability or credibility to assist the authorizing Justice.”

b) The surveillance evidence

[31] As for the surveillance evidence allegedly linking the appellant to the stolen paint, the trial judge held that Detective Constable Jackson's drafting “contained sufficient error that it could have misled the Justice of the Peace.” In particular, Detective Constable Jackson’s erroneous references to “a large number” of paint containers and to “4 litre” paint containers could both have been important for the purposes of tying the paint observed in the appellant's garage to the stolen paint.

[32] Further, the trial judge noted that there was a significant gap between the date of the last surveillance observations and the date on which the search warrant was obtained. In the end, the trial judge concluded that the search warrant had to be quashed and that the appellant had established a breach of his s. 8 Charter right to be free from unreasonable search and seizure.

v) The Trial Judge's Reasons for declining to exclude the evidence of the items seized under s. 24(2) of the Charter

[33] As I have said, the trial judge's ruling on the appellant's s. 24(2) Charter application preceded the Supreme Court of Canada's decision in Grant.

[34] Accordingly, the trial judge proceeded with his analysis using the analytical framework set out in Collins:

1. the effect of admission of the evidence on the fairness of the trial;

2. the seriousness of the Charter breach; and

3. the effect the exclusion of the evidence would have on the repute of the administration of justice.

1.) trial fairness

[35] Because the items seized constituted non-conscriptive evidence, the trial judge concluded that admission of that evidence would not affect trial fairness.

2.) seriousness of the breach

[36] In addressing the seriousness of the breach, the trial judge said, “the police conduct relates to a flawed ITO.”

[37] Although the trial judge found that the contents of the Information to Obtain were misleading, that the s. 8 Charter breach was not trivial or technical in nature, and that more investigation should have been done, he accepted Detective Constable Jackson's evidence that he did not intend to mislead the Justice of the Peace.

[38] The trial judge observed that Detective Constable Jackson “should have been more careful” and “in fact was careless in setting out the information and its connection to the [appellant].” However, he said, “I cannot conclude that the degree of carelessness in this case amounts to bad faith.”

[39] In the end, although he found that “[t]he process was significantly flawed”, the trial judge stated, “I cannot find it was flagrant, egregious conduct deliberately and wilfully designed to disregard the [appellant's] constitutional rights.”

3.) the effect of the exclusion of the evidence

[40] The trial judge observed that the charges were serious and that the items seized “point to a sophisticated and significant criminal enterprise.” He noted that the evidence was essential to the Crown's case and that it was “reliable and real” evidence with “high” probative value. He concluded, “[t]he exclusion of a loaded gun and ammunition, $371,670 in Canadian counterfeit currency, and a significant amount of stolen paint would ... bring the administration of justice into disrepute.”

III. Analysis

[41] In Grant, the Supreme Court of Canada modified the Collins analytical framework for the exclusion of evidence under s. 24(2) of the Charter:

When faced with an application for exclusion 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 a 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 assessment under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence: Grant at para. 71.

[42] Although the Supreme Court's decision in Grant was delivered subsequent to the trial judge's ruling, the appellant is entitled to rely on the Grant framework on appeal: see R. v. Blake 2010 ONCA 1 at para. 2. As was the case in Blake, the decision in Grant was under reserve when the trial judge in this case made his ruling.

[43] Having regard to the Grant framework, the appellant contends that the trial judge erred in his s. 24(2) analysis by under-emphasizing the seriousness of the police conduct, by failing to consider the impact of the breach on the Charter-protected interests of the appellant and by overemphasizing the seriousness of the offences.

[44] On the facts of this case, I would accept the appellant's submissions.

1.) The Seriousness of the Breach

[45] In Grant, the majority explained at para. 72 that the first line of inquiry under the s. 24(2) analysis “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts ... effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that the unlawful conduct.”

[46] The majority went on to explain that on a s. 24(2) application, the court “must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute: Grant at paras. 73-74.

[47] Although the trial judge accepted Detective Constable Jackson's evidence that he did not intend to mislead the issuing Justice of the Peace, the trial judge concluded that the officer's carelessness had that effect. Absent the officer’s misleading statements, the Information to Obtain failed to establish a sufficient link between the appellant and the stolen paint to support the issuance of a search warrant.

[48] At least in its factum, the Crown argued that the trial judge erred in failing to find that the search warrant could have been issued. I disagree. The fact that surveillance officers saw the appellant’s truck in Sukhninder Dhillon’s driveway on one occasion, that they observed the white cube van at the appellant's residence briefly on another occasion and that they saw an unknown quantity of five gallon paint containers in the appellant's garage did not establish a sufficient link between the appellant and the stolen paint to support the issuance of a warrant to search the appellant's home. These observations did not support the conclusions Detective Constable Jackson expressed in the search warrant. The redacted Information to Obtain disclosed no other basis for issuing the search warrant.

[49] In his reasons for declining to exclude the evidence of the seized items, the trial judge appeared to diminish the seriousness of the Charter breach, at least to some extent, by emphasizing that the affiant officer's conduct was not flagrant, deliberate or egregious. However, while perhaps not flagrant, deliberate or egregious, the affiant officer’s erroneous statement that surveillance officers observed a large quantity of paint containers in the appellant's garage lacked any reasonable explanation.

[50] The affiant officer attributed his mistakes to the fact that he was rushing to complete the paperwork for the search warrant. His reference in the Information to Obtain to surveillance officers observing four litre containers of paint in the appellant's garage might reasonably have been the result of rushing, oversight and confusion. However, lack of time is hardly an excuse for inserting an important detail about quantity that had the effect of linking the appellant to the stolen paint when that detail did not form any part of the source material on which the officer was relying.

[51] In these circumstances, the level of police carelessness can only be characterized as significant. Although not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid search warrant must nonetheless be placed on the serious side of that spectrum.

2.) The Impact of the Breach on the Charter-Protected Interests of the Accused

[52] As for the second Grant factor, the trial judge failed to consider at all the impact of the breach on the Charter-protected interests of the appellant.

[53] Under the Collins framework, the impact of a breach was a matter that was often considered when assessing the seriousness of the state-infringing conduct.

[54] As I have said, in this case, in addressing the seriousness of the breach, the trial judge described the police conduct as “relat[ing] to a flawed ITO.”

[55] Although the fact that the police made efforts comply with the Charter by applying for a search warrant was no doubt a relevant factor in assessing the seriousness of the breach, the trial judge erred by failing to turn his mind to the important fact that the invalid warrant authorized a search of a dwelling house.

[56] It is well-established that a dwelling house attracts a high expectation of privacy and that an illegal search of a person's home constitutes a significant breach of the person's right to be free from unreasonable search and seizure: R. v. Silveira (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.) at para. 148.

[57] Moreover, at para. 78 of Grant, the majority stated, “[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy... is more serious than one that does not”.

[58] In this case, the intrusive illegal search of the appellant's home is a factor that points strongly to exclusion of the evidence of the seized items.

3.) Society's Interest in the Adjudication of the Case on its Merits

[59] Turning to the third Grant factor, the trial judge concluded that the combination of the seriousness of the charges, the reliability and significant probative value of the seized items and their centrality in proving the Crown's case militated in favour of admitting the evidence of the seized items.

[60] However, at para. 84 of Grant, the majority expressed the view that the seriousness of the charge(s) is a matter has the potential to cut both ways and thus downplayed the importance of the seriousness of the offence as a relevant factor in the s. 24(2) analysis:

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly were the penal stakes for the accused are high.

[61] In this case, the police were able to obtain a warrant to conduct an intrusive search of the appellant’s home solely because of significant carelessness in preparing the Information to Obtain. This is conduct from which the court should be concerned about dissociating itself.

[62] Although I agree that the reliability and high probative value of the seized items and their centrality to the prosecution’s case are important factors pointing to admissibility, in my opinion, they do not outweigh the significant harm to the long-term repute of the administration of justice that would be occasioned by the admission of the evidence of the items seized in executing the search warrant.

[63] Moreover, in my opinion, the Crown is not entitled to rely on the fact that additional information contained in the source material might have supported the issuance of the warrant had Detective Constable Jackson made reference to it to attempt to attenuate the seriousness of the breach for the purpose of the s. 24(2) analysis. Crown counsel at trial agreed that if the appellant did not amplify the record on his application to quash the search warrant by making reference to the source material, the Crown was not entitled to do so, because permitting the Crown to do so would circumvent the judicial authorization process. I see no basis for holding that the Crown was entitled to amplify the record for the purposes of the s. 24(2) application. In any event, the trial Crown did not apply to amplify the record for the purposes of the s. 24(2) application.

[64] On appeal, the Crown argued that this was a gun case, not a paint case; and that if the Information to Obtain fell short in terms of justifying a warrant to search for guns, it did not fall short by much. In particular, the Crown claimed that the general reliability of the confidential informant was demonstrated by the accuracy of the information provided by the confidential informant linking Sukhninder Dhillon to the tractor trailer theft. In assessing whether the search warrant could have been issued, the trial judge failed to take account of this factor.

[65] Even accepting that the trial judge erred in the manner alleged, I would not accept this argument. Contrary to the Crown’s argument, the Information to Obtain was not targeted at firearms offences. Detective Constable Jackson said he believed a search would reveal evidence of the offence of possession of stolen property – he did not say he believed a search would reveal evidence of a firearms offence.

[66] In any event, as the trial judge noted, the Information to Obtain provided no particulars concerning the source of the confidential informant’s belief that there were guns in the appellant’s house; no particulars concerning when the guns were observed; and no particulars concerning the basis for the confidential informant’s belief that the guns were still in the house. Moreover, there was a three week gap between the date on which the confidential informant provided information about the guns to the police and the date on which the police applied for the search warrant.

[67] This is not a case like R. v. Hines, 2009 ONCA 703, in which this court said at para 2, “[a]ssuming, however, that the information to obtain the warrant was deficient, it missed the mark by very little.”

[68] In my opinion, the evidence of the seized items should have been excluded.

IV. Conclusion

[69] Based on the foregoing reasons, I would allow the appeal. As the Crown adduced no evidence at trial other than the evidence led on the voir dire and applied on the trial, I would set aside the convictions and substitute acquittals.

Signed: “Janet Simmons J.A.”

“I agree S. T. Goudge J.A.”

“I agree K. M. Weiler J.A.”

RELEASED: “KMW” September 9, 2010