COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ting, 2016 ONCA 57

DATE: 20160120

DOCKET: C58999

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Suet Stacy Ting

Respondent

Chris de Sa, for the appellant

Philip Campbell and Eva Tache-Green, for the respondent

Heard: September 8, 2015

On appeal from the acquittals entered by Justice B.A. Allen of the Superior Court of Justice, on June 2, 2014.

Miller J.A.:

Overview

[1] An investigation into a large-scale drug network led police to a mixed commercial and residential plaza. The police obtained a warrant (the “First Warrant”) to search one of the rear apartments in the plaza, where they believed an Asian woman known as “Momo” sold drugs.

[2] Acting on incorrect information about the layout of the plaza, the police entered the respondent’s basement apartment, mistaking it for an entrance to a landing that would lead to the target apartment. At the same time, the police entered the target apartment through an entrance in the rear of the plaza. Though the police quickly realized that this basement apartment did not connect to the target apartment, they nevertheless searched the apartment.

[3] As a result of the search, the police concluded that the respondent, and not the occupant of the rear apartment, was in fact Momo. After an hour and forty minutes, the search was stopped so the police could obtain a second warrant (the “Second Warrant”) to continue the search of the basement apartment.

[4] On the second search, the police found methamphetamine and cocaine. As a result, the respondent was charged with two counts of possession of controlled substances for the purposes of trafficking.

[5] On a voir dire, the First Warrant was held to be invalid because it failed to describe the precise location to be searched. The respondent’s apartment was not the target apartment listed in the warrant.

[6] The Second Warrant was also held to be invalid, as the police were still present in the apartment at the time they received the Second Warrant. Alternatively, the application judge found that the Second Warrant was also insufficiently precise and was invalid on its face.

[7] After weighing the Grant factors, the application judge excluded the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. The respondent was subsequently acquitted of both charges.

[8] For the following reasons, I would dismiss the appeal and uphold the respondent’s acquittals.

Facts

(1) The Investigation

[9] In April 2011, police from Durham and York Region began “Project Gladiator”, an investigation into a large-scale drug network that they believed to be operating throughout the Greater Toronto Area.

[10] One of the individuals at the centre of the investigation was Alireza Kharizfar. Surveillance and intercepted communications from Kharizfar led to a woman known as “Momo”, who was believed to be one of his crystal methamphetamine suppliers.

[11] Following an intercepted conversation between Kharizfar and Momo on September 15, 2011, police followed Kharizfar to 4204 Dundas Street West, which is a mixed commercial and residential plaza. The police believed he was at that address for a drug transaction.

[12] The police observed Kharizfar entering and exiting one of the plaza’s front-facing doors. This door was labelled “4204B” (the “Target Door”). The police later observed Kharizfar going in and out of the Target Door on two other occasions, where an Asian woman was seen opening the door for him.

[13] Based on the information obtained through Project Gladiator, the police concluded that the woman observed at the Target Door was Momo.

[14] The police then searched the registrations of the vehicles in the parking lot. Two of these vehicles were registered to Valerie Pham. A check with Toronto Hydro showed that Tammy Pham, Valerie’s sister, was the hydro subscriber for the rear unit of 4204B Dundas Street West.

[15] After observing the Asian woman believed to be Momo at the Target Door on several occasions and comparing her to Valerie Pham’s driver’s licence photo, an investigating officer concluded that Valerie Pham was Momo.

[16] As discussed below, this identification was later found to be incorrect.

(2) The First Warrant

[17] Police obtained building layout information from Toronto Fire Services, which indicated that 4204B Dundas Street West was divided into two, two-storey residential units, one front and one rear. The information also showed that the address had one front and at least one rear door. On the ground floor there was also a commercial unit occupied by Domino’s Pizza.

[18] Based on this information, police believed that the rear apartment could be accessed through both the Target Door and one of the rear entrances.

[19] Having concluded that Valerie Pham was Momo, and that her sister was a tenant of the rear unit, police obtained the First Warrant to search “4204B (rear unit) Dundas Street, West” and Valerie Pham’s vehicles for evidence of drug transactions.

[20] The police executed the First Warrant on November 30, 2011.

[21] Two teams of officers entered 4204B at 6:00 a.m., one through the Target Door at the front of the plaza, where Kharizfar had been observed, and the other through one of the rear entrances. As planned, the team at the rear entrance entered and searched the rear unit, which was Pham’s residence.

[22] The team entering through the Target Door, however, was surprised to discover that it did not lead to Pham’s residence, either directly or via a common corridor. Instead, it led down a staircase directly into a basement apartment.

[23] Until the police entered the Target Door, they did not know that it opened into the basement apartment, or that the basement apartment even existed.

[24] On their descent down the staircase, the police encountered the respondent, Suet Stacy Ting.

[25] The police entered the basement apartment. It was immediately apparent that there was no access from the basement apartment to Pham’s apartment.

[26] The police detained Ting, at first believing her to be Pham.

[27] The police proceeded to search the basement apartment and one of Ting’s cell phones. They saw a quantity of what they believed to be crack cocaine in plain view. They also seized, among other things, $600 and six cell phones.

[28] At some point, suspicion about Momo’s identity shifted from Pham to Ting, and police decided to seek a new warrant for the basement apartment.

(3) The Second Warrant

[29] At 7:40 a.m., one hour and forty minutes after the search of the basement apartment began, a detective instructed the officers to discontinue the search until they obtained a new warrant. Ting was arrested and an officer remained in the basement apartment to secure it.

[30] Seven hours later, the police obtained the Second Warrant. The address on the warrant was specified as the “residence of 4204B Dundas Street, West, Toronto, Ontario”. It did not specify which of the three residential units at 4204B was to be searched.

[31] The amended Information to Obtain (“ITO”) in support of the Second Warrant included the following information:

a. Just after 6:00am, investigators entered the front door of 4204B Dundas Street West.

b. Upon entry, investigators learned there is only one apartment behind the door for 4204B. Investigators originally believed 4204B was separated into two units one in the front and one in the rear of the building. Investigators entered the apartment and located a female inside.

c. In plain view, investigators located a small quantity of crack cocaine and marihuana.

d. Investigators had difficulty identifying the lone female at the residence. The female appeared to be Valarie PHAM, however she identified herself as Suet (Stacey) TING (15-JAN-1965).

e. Investigators learned the rear unit can not be accessed through the front door. The front door (4204B) is the door KHARIZFAR attended each time to pick up or sell drugs. [Emphasis in original.]

[32] The second ITO also set out that “[i]nvestigators have determined the actual apartment unit for ‘Momo’ is 4204B and not 4204B (rear) as originally believed.”

[33] Armed with the Second Warrant, police returned to the basement apartment and resumed the search. They found 70 grams of methamphetamine and 6.6 grams of cocaine. Ting was charged with two counts of possession of controlled substances for the purposes of trafficking under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2).

The Voir Dire

(1) Validity of the Warrants

[34] On a voir dire, the application judge ruled that the First Warrant was invalid on its face, as it lacked an adequate description of the premises to be searched.

[35] She found that 4204 Dundas Street West had a “rather complicated structure” and the ITO “did not describe the property in such a manner as to allow the justice of the peace to appreciate where the door to be entered and the residence to be searched were situated in the building structure.” (at paras. 59, 62).

[36] The application judge went on to find the Second Warrant invalid, on the basis that the police were still present in the apartment at the time they received the Second Warrant.

[37] In any event, even if the information had been obtained through a valid warrant, the application judge held that the Second Warrant was invalid on its face. The Second Warrant simply identified the target as the “residence of 4204B”, and did not specify which of the three apartment units were to be searched. It did not rectify the imprecision in the First Warrant in any appreciable way.

[38] The application judge went on to find that there were insufficient reasonable and probable grounds to issue the warrants.

(2) Exclusion of the Evidence

[39] The application judge considered whether the evidence should be excluded under s. 24(2) of the Charter, which provides that where evidence is obtained in a manner that infringes a person’s Charter rights, it shall be excluded if its admission “would bring the administration of justice into disrepute.”

[40] The application judge followed the three inquiries set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, to assess whether the admission of the evidence obtained in the searches would bring the administration of justice into disrepute. These inquiries assess:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the Charter-protected interests of the accused; and

3. society’s interest in the having the case adjudicated on its merits.

[41] With respect to the seriousness of the infringement, the application judge characterized the police conduct as being on the more serious end of the spectrum. In particular, she identified the following:

• the imprecision in the description of the residence was not a technical error, but the result of “a substandard investigation, a failure of due diligence [and] neglect to take the steps necessary to understand the layout of the building”;

• the police who entered the basement apartment quickly realized they were in the wrong apartment;

• the police accessed text messages from Ting’s cell phone, which was not part of the original investigation and which was done without a warrant; and

• the search continued for one hour and forty minutes before being halted. Even then, an officer remained in the apartment for seven hours under the invalid warrant before a new warrant was obtained.

[42] Although the application judge characterized the initial error as a result of a reckless and substandard investigation, she found that the subsequent conduct – remaining in the apartment and carrying on with the search despite knowledge that they were not where they were supposed to be – crossed the line into a flagrant disregard of Ms. Ting’s rights.

[43] With respect to the impact of the breach on Ting personally, the application judge characterized this as being on the more severe end of the spectrum (at paras. 90-91):

The police entered the apartment in the early morning hours and found Ms. Ting in her night wear. Over a half dozen officers were in her small apartment at one time. They proceeded to walk through her private living space, searching, videotaping and seizing items. They accessed texts on the Nokia cellphone without authority.

This was a flagrant invasion by the police of the private and personal spheres of Ms. Ting’s life and home. The court must dissociate itself from that conduct.

[44] With respect to society’s interest in having the case adjudicated on its merits, the application judge noted that “[d]rugs of the nature seized in the case before me have become a serious threat to the well-being and security of many communities.”

[45] Her overall conclusion was that the nature and the extent of the infringement of the Charter rights meant that the “long-term interest of the administration of justice would not be served by admitting the evidence in this case.” She therefore ordered the exclusion of the methamphetamine and cocaine.

[46] As a result, the respondent was acquitted of both charges.

Issues on Appeal

1. Did the application judge err in finding that the warrants were invalid?

2. Did the application judge err in excluding the evidence under s. 24(2) of the Charter?

Analysis

(1) Did the application judge err in finding that the warrants were invalid?

(a) Facial Validity of the Warrants

[47] Broadly defined, a search warrant is an order issued by a justice of the peace that authorizes the police to enter a specified place to search for and seize specific property: see A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at 179.

[48] An adequate description of the place to be searched is a fundamental component of a search warrant. Its importance cannot be overstated: see R. v. Le, 2011 MBCA 83, 270 Man.R. (2d) 82, at para. 77; James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 8th ed (Markham: LexisNexis Canada Inc., 2010) at 87-92.

[49] Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises.

[50] Accordingly, a warrant that does not adequately describe the place to be searched is invalid. As articulated in Re McAvoy, [1970] N.W.T.J. No. 5 (Terr. Ct.), at para. 50,:

To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant fails to adequately describe the offence, fails to accurately describe the premises to be searched, or fails to give an accurate description of the articles to be seized then it will be invalid.

[51] Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case. With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling. The Supreme Court of Canada articulated this point in R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 15:

[The accused’s] expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit. In drafting ITOs proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.

[52] In this case, although the First Warrant was specific about the premises to be searched, it specified an apartment other than Ting’s. The premises specified was “4204B (rear unit)”. This rear unit was where police believed drugs were sold by Pham, who was the target of the investigation at that time.

[53] On its face, therefore, the First Warrant did not authorize a search of Ting’s basement apartment. It targeted a different apartment and a different person. The application judge did not err in her conclusion to invalidate the First Warrant.

[54] The application judge then invalidated the Second Warrant on the basis that the police failed to leave Ms. Ting’s apartment when they realized, or ought to have realized, that the First Warrant was invalid, and were still present at the time the Second Warrant was obtained.

[55] The application judge did not err in this conclusion. Had the police promptly vacated the apartment, however, the initial entry would not have precluded obtaining a second warrant for the basement apartment on the information contained in the initial ITO plus the new information clearly identifying the premises to be searched as the basement apartment.

[56] However, the Second Warrant also failed on the basis of facial invalidity, that is, for inadequately describing the premises to be searched.

[57] The Second Warrant specified “the residence of 4204B” as the place to be searched. This description could have equally signified any of the three residential units in the building and the application judge did not err in finding that this made the Second Warrant facially invalid.

[58] That being said, the Crown submits that the second ITO made it clear that the warrant was intended for the basement residence. I agree that the application judge erred in finding the ITO to be ambiguous in that respect. There is only one residence in the basement of the building, and there is only one door that can be used to access it.

[59] It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen (1985), 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.

[60] A function of a warrant is to guide and limit the actions of the police officers. A warrant that is ambiguous cannot perform that function. Neither can the subject of the warrant know whether the police are authorized to search the premises.

[61] Had the warrant specified “the residence of 4204B, basement apartment”, it would have been sufficiently precise. But “the residence of 4204B” was impermissibly ambiguous. It is no answer that in this case the officers nonetheless executed the second warrant at the correct residence. In reality, they were not guided by the warrant, but by their personal knowledge of the premises to be searched: see R. v. St-Pierre (1998), 1998 CanLII 28776 (NB QB), 204 N.B.R. (2d) 172 (Q.B.), at para. 16.

[62] The application judge did not err in quashing the Second Warrant.

(b) The Use of Amplification Evidence

[63] The role of a judge reviewing a search warrant is not to ask whether she would have granted the warrant were she the issuing judge, but to determine whether the warrant could have been issued: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at 1452.

[64] In doing so, the application judge may be permitted to rely on “amplification evidence”, which is additional evidence presented at the voir dire. There are limitations to the use of amplification evidence, as set out in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43:

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.

Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors.

[65] In this case, the application judge did not use amplification evidence to validate the search warrants. She concluded that this was not some minor, technical error, but that the police had gone into the wrong unit (at paras. 62, 63). This was a finding of fact that the application judge was entitled to make, and it is entitled to deference on appeal.

[66] The Crown maintains that on the basis of the amplification evidence at the voir dire – particularly that the Target Door led to the basement apartment – the First Warrant was sufficient to authorize the search of the basement apartment. The Second Warrant was, according to the Crown, not strictly necessary, but was obtained to err on the side of caution.

[67] The Crown argues that the evidence on cross-examination set out how the investigation was always centered on whatever premises was behind the Target Door. The Crown submits that when the police entered Ting’s basement apartment, they entered the correct place – correct in the sense that it was the place where the transactions with Momo were believed to have occurred and correct in that Ting was Momo, not Pham.

[68] I do not agree with this submission. The police did not know of the basement apartment when swearing the ITO. They could not obtain a warrant for a residence whose existence was unknown to them.

[69] It was not enough that they believed that the Target Door was a gateway to some location where a drug transaction had likely taken place. They did not know where the Target Door led. As it happens, the Target Door in fact led to a single residence. But at the time they believed otherwise: that it may have opened to a landing that led to individual residences.

[70] Amplification cannot be used to provide evidence that was not known to the police at the time the ITO was sworn: see Morelli, at para. 43.

[71] Even on its face, the First Warrant did not authorize the police to enter the Target Door. Though they did not know this until they entered the basement apartment and realized that they were mistaken about it providing access to the rear unit, it was not merely a technical error that can be corrected on the basis of an amplified record.

[72] A premises that is not specified on a search warrant cannot become the “right” place simply because the police conclude that it ought to have been the original target, and would have been but for their mistaken chain of reasoning. It is the warrant that makes the premises the correct premises (in terms of authorization), not the plan of action in the minds of the investigating officers. This is the same conclusion reached in the factually similar case cited by the application judge: R. v. Silvestrone (1991), 1991 CanLII 5759 (BC CA), 66 C.C.C. (3d) 125 (B.C.C.A.), at 131.

[73] Neither can the Second Warrant be saved by amplification evidence. It did not specify which residential unit at 4204B was to be searched. This failure to precisely describe the premises to be searched is an error on the face of the warrant. This is a problem that cannot be cured on amplification of the record.

(2) Did the application judge err in excluding the evidence under s. 24(2) of the Charter?

[74] As outlined above, Grant sets the framework for assessing whether evidence should be excluded under s. 24(2) as a result of a Charter breach. This determination is owed considerable deference, unless the assessment of facts is unreasonable, or the judge made a palpable and overriding error in her analysis: see R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5.

[75] On the first Grant inquiry, the application judge’s conclusion was reasonable: the s. 8 infringement was at the more serious end of the spectrum.

[76] However, the application judge overstated the degree of fault of the police in obtaining the invalid First Warrant. The misidentification of Pham as Momo and the mistaken description of the premises in the warrant were errors, but they were not the result of substandard investigative practice or a failure to conduct due diligence.

[77] I agree with the Crown that the police acted reasonably in relying on the information about the building layout that was provided to them by Toronto Fire Services. They had been advised that there were two, two-storey residential units in the building. They had no reason to look beyond this information. It was reasonable in the circumstances to conclude that there were no other residential units, and that the Target Door must therefore lead the to the rear unit.

[78] Similarly, the initial entry into the basement apartment was not substandard practice. The police had reasonable grounds to seek a warrant to enter Pham’s apartment, and reasonably believed that the Target Door led to Pham’s apartment.

[79] What was problematic was the decision to search the basement apartment when it was, or should have been, immediately obvious that the police did not have the authority to be present there. The officers in the basement apartment knew that there was a second team of officers executing the warrant through a rear door. When the team that entered through the Target Door did not meet up in the same residence as the rear door team, they had to know that one of the teams was in the wrong place. At the very least, the police knew that they did not have a warrant to search two separate apartments.

[80] Knowing that they were in premises not authorized by the search warrant, and in the absence of exigent circumstances, the police ought to have left the premises immediately and sought a further warrant. Contrary to the Crown’s characterization of events, this is not what occurred; up to seven police officers continued to search a small apartment for one hour and forty minutes before discontinuing.

[81] As the application judge concluded, it is this continued action, rather than the initial and modest infringement, that renders the police conduct in the case serious.

[82] With respect to the second factor, the impact of the Charter infringement on the accused, it is unsurprising and entirely reasonable that the application judge found the impact on the accused to be of a high severity, similar to the breach of her Charter rights.

[83] Finally, regarding society’s interest in having this case adjudicated on its merits, the application judge appropriately noted the seriousness of the crime of drug trafficking, and the “threat to the well-being and security of many communities” posed by these kinds of drugs.

[84] The third inquiry is a matter of assessing the harms to individuals and groups in a society caused by the offence in question. The application judge correctly characterized the standard set by s. 24(2) of the Charter, through the interpretation given in Grant, as an objective one – of safeguarding society’s interests – rather than responding to public outcry or expression of public concern. Although we can reasonably expect that articulations of public concern will most often correspond to actual public interest, it is the latter that is the focus of the third branch of the Grant inquiry.

[85] As the application judge noted, Grant does not stipulate a mechanical balancing exercise. All an application judge can do is consciously bear in mind the three factors and determine as best she can whether the admission or the exclusion of the evidence better serves the interest of maintaining justice in a society ruled by law. The application judge did so, and her conclusions in this matter – that the Charter breaches in this case are sufficiently serious to exclude the evidence – are entitled to deference.

Disposition

[86] I would dismiss the appeal and uphold the respondent’s acquittals.

Released: “KF” JAN 20 2016

“B.W. Miller J.A.”

“I agree. K. Feldman J.A.”

“I agree. J.C. MacPherson J.A.”