COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Lacelle, 2013 ONCA 390
DATE: 20130612
DOCKET: C54433
Blair, Hoy and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Lacelle
Appellant
Howard L. Krongold, for the appellant
Kevin Wilson, for the respondent
Heard: June 5, 2013
On appeal from the conviction entered on January 24, 2011 by Justice P. Adams of the Ontario Court of Justice.
ENDORSEMENT
[1] The convictions in this case derive from seizures of drugs and money made pursuant to a telewarrant. The appellant submits that the trial judge erred in failing to exclude the evidence found during the execution of the warrant. The appellant asserts that the sworn information to obtain (“ITO”) was insufficient and false, and the execution of it constituted unreasonable search and seizure, contrary to section 8 of the Canadian Charter of Rights and Freedoms.
[2] The ITO seeking the telewarrant was sworn by Constable Steve Whitehorne in the City of Cornwall, Ontario. He swore that: “There is no Justice of the Peace available at this time.” Officer Whitehorne candidly admitted that he did not take any steps to ascertain the truth of the statement, nor did he know it to be true at the time that he signed. The statement, however, turns out to have been true as a matter of fact.
[3] This was Constable Whitehorne’s first ITO. He had not received training in drafting it. He did not know the statutory requirements for an ITO or a telewarrant. He used a precedent. The draft ITO was reviewed by Constable Whitehorne’s supervisor, Assistant Sergeant Joseph, who proofread it for spelling and grammar only.
[4] The trial judge made the following comments in his reasons for judgment on the Charter motion:
Officer Joseph, an acting Sergeant at the time had experience in drug prosecutions and warrants, said, and I believe his evidence to be true, that on January 8 after 5:00 p.m., the courthouse in Cornwall and area was closed… He was told on cross-examination that the application was sent at 10:20 p.m. and returned at 10:24 p.m. and in those circumstances there was no use, he said, to search the courthouse for a J.P. as opposed to a telewarrant.
[5] The trial judge accepted Officer Joseph’s evidence that “it would make sense to carry out the warrant immediately since the two [accused] were in custody and there was no justice available until the next day.” The trial judge concluded that there had been no breach of the Charter and that the request for the telewarrant was reasonable.
When I reviewed the paper work, secondly, filed as exhibit 2, endorsed thereon is the faxed time print of the warrant at 21:51 and on page 2, 21:54 clearly these were hours that were later on in the evening and I am not persuaded that “the standard of impractability was not met” given the circumstances as outlined in British Columbia Court of Appeal in R. v. Nguyen, [2009] B.C.C.A. 89. And I find that the telewarrant was both compelling and detailed.
[6] The appellant urges the court to find that the telewarrant was inappropriately issued for two reasons. The first is that the simple line: “There is no Justice of the Peace available at this time,” is insufficiently particular to justify the issuance of a telewarrant, not only in this case, but in general. He submits that “something more” should be required, relying on the decision of the British Columbia Court of Appeal in R. v. Scott, [2012] B.C.J. No. 4 at para. 34. We note, however, the observation of Neilson J.A. in the concluding line of that paragraph: “I see nothing objectionable in the issuing Justice or, later, the reviewing Justice, taking judicial notice of concrete local circumstances in assessing the adequacy of the officer’s statement.” We find these words to be apt in the circumstances, and decline the appellant’s general invitation to go further.
[7] We agree with the appellant that Constable Whitehorne’s approach to his task was somewhat casual, and his lack of knowledge and training was troubling. That said, the context provided circumstantial guarantees that the statement that a JP was not available was true in fact. There was nothing in the context to suggest to the officer that the statement might not be true; for example, it is circumstantially unlikely that Officer Whitehorne would have been pursuing a telewarrant in the middle of the day when J.P.s are available in Cornwall, or that his supervising officer would have failed to question that statement. It was, however, during the evening. The receiving J.P. in Newmarket would also have been aware of the unavailability of J.P.s in Cornwall given the time of the night.
[8] Second, the appellant urges us to excise the offending statement, since Officer Whitehorne had no personal knowledge when he swore the information, making the statement false. He urges us to take an approach analogous to R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. He asserts that there would not be a reasonable ground to issue a telewarrant under subsection 487.1(1) and (4) of the Criminal Code if the offending statement were excised. This is what the trial judge should have done, he submits.
[9] Assuming without deciding that this submission has merit, then the appellant says that the evidence would have been excluded under s. 24(2) of the Charter, on the basis that it was obtained illegally. That exclusion would have led to an acquittal.
[10] The analytical framework for the application of s. 24(b) of the Charter was set by the Supreme Court’s decisions in R. v. Grant and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The Court framed the test for relief under s. 24(2) of the Charter at para. 71 of Grant. Since the trial judge did not carry out the Grant analysis we are obliged to do so.
[11] The first line of inquiry under Grant is into the seriousness of the Charter-infringing conduct. In R. v. Lao, 2013 ONCA 285, at para. 75, this court found that “the use of the telewarrant process without having adequately demonstrated that it was impractical to appear in person” did not amount to a serious Charter breach. See also R. v. Farewell, 2008 BCCA 9 at para. 43.
[12] In R. v. Farewell, 2006 BCSC 372, at para. 56, the trial judge, who was upheld on appeal, stated:
It would be difficult to explain to the community that the results of the search have been excluded because of the failure by the police officer to make a phone call in circumstances where it would almost inevitably have made no difference – either because a telewarrant was in fact the only option, or because an in-person appearance, if available, would have resulted in the warrant being issued anyway.
[13] The parallel is this: had Officer Whitehorne made the simple inquiry about the availability of a JP, he would have been assured that none was available, so that a telewarrant was in fact necessary. The search would have been inevitable.
[14] There is no hint here of defiance on the officer’s part; this was more an instance of ignorance and inadvertence.
[15] The second line of inquiry in Grant is into the impact of the breach on the Charter-protected interests of the accused. The interest here would be the freedom from unreasonable search and seizure.
[16] The bulk of the drugs were found in the stash house, in which the appellant’s expectation of privacy would not have been high.
[17] The third line of inquiry in Grant requires the court to take into account the prospect that the exclusion of the evidence might well prevent the prosecution of the offence. The evidence of drugs and money obtained as a result of the execution of the telewarrant is highly reliable; it would be difficult, as the justices observed in R. v. Farewell, to explain the exclusion of the evidence in the circumstances of this case, where the officer swore to a statement that he did not know to be true, but which was nonetheless true.
[18] Taking the three lines of the Grant inquiry together, we therefore find that there is no Charter reason to exclude the evidence obtained on the execution of the telewarrant, and dismiss the appeal.
“R.A. Blair J.A.”
“Alexandra Hoy J.A.”
“P. Lauwers J.A.”