Court of Appeal for Ontario

Date: February 17, 2017 Docket: C59880

Justices: Sharpe, Rouleau and Benotto JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Haig Robert Garabet Applicant/Appellant

Counsel

Mark J. Sandler and Amanda Ross, for the appellant

Howard Piafsky, for the respondent

Hearing and Appeal

Heard: January 30, 2017

On appeal from: The conviction entered on June 26, 2014 by Justice D. Halikowski of the Ontario Court of Justice.

Decision

By the Court:

[1] Overview

The appellant, self-represented at trial, challenged the admissibility of evidence seized from his residence and his vehicle pursuant to search warrants. He was granted leave to cross-examine the police officer who swore the information to obtain ("ITO") in support of the search warrants. The cross-examination revealed that the central fact implicating the appellant in the ITO was false. However, the trial judge dismissed the appellant's s. 8 Charter application to set the warrants aside and, on the basis of the evidence found at the residence and in the vehicle, convicted the appellant of possession of controlled substances and possession of controlled substances for the purpose of trafficking.

[2] Grounds of Appeal

Before this court, the appellant submits that the trial judge erred in refusing to set aside the warrants and in failing to find a s. 8 breach. He further submits that in the circumstances of the case, evidence obtained as a result of the warrants should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

The ITO

[3] Investigation and False Information

In the course of an investigation into the activities of an alleged cocaine trafficker (not the appellant), the police learned that two officers, PC Tara Kramp and PC Basil Odei, were likely implicated in illicit drug dealing. The appellant's former business partner, Nelson DaSilva, also appeared to be implicated. The police intercepted a text message forwarded by Odei to Kramp that appeared to set up a drug transaction for controlled substances, specifically steroids and GHB, at one of the stores owned by the appellant. The ITO alleged that the appellant was the person who had initiated that text message. It was conceded by the Crown at trial that the appellant had not sent the text message, and that it had been sent instead by an employee who worked at one of his stores.

[4] Other Evidence in the ITO

The only other evidence in the ITO relating to the appellant was that two years earlier there had been a break-in at one of his stores. When the police investigated they found white powder believed to be cocaine on the surfaces of two digital scales, along with empty "dime bags" and a debt list. For reasons unexplained, they neither seized anything nor laid any charges as a result. The ITO also indicated that Tara Kramp had stated, based on a conversation she had had several months earlier, that she believed the appellant was engaged in cocaine trafficking.

Execution of the Search Warrants

[5] Dynamic Entry and Failure to Show Warrant

The appellant resided with his wife and child in the basement of the home owned by his in-laws. Knowing that the appellant was not present at the residence at the time, and having no information that he had firearms or other weapons at his home, the police executed a "dynamic" entry. A tactical squad of eleven officers wearing goggles, helmets and balaclavas used a battering ram to bash in the door. The appellant's father-in-law was handcuffed. He asked repeatedly to see the search warrant, and the trial judge accepted his evidence over that of the police officers in finding that he was never shown a copy of the warrant, contrary to s. 29(1) of the Criminal Code.

[6] Scope of Search

The search was not restricted to the appellant's basement apartment. The entire house was searched.

[7] Items Seized

The police found a quantity of cocaine at the appellant's residence, and then obtained a warrant to search his car, where they found a variety of controlled drugs, drug paraphernalia, and items associated with drug trafficking. Search warrants for the appellant's two stores were also obtained and executed. No drugs or related items were found at the stores.

Analysis

Validity of the Warrants

[8] Misapprehension of Evidence Regarding Text Message

In our view, the trial judge misapprehended the evidence in relation to the text message. He failed to appreciate that the text message formed the basis of the case made out in the ITO for a search warrant of the appellant's residence. The trial judge characterized the appellant's position as being that the police officer who swore the ITO had failed to specify clearly why he believed the third-party text message had originated from the appellant. With respect, that fails to recognize the significance of the error as to the originator of the text. The officer's mistaken belief that the appellant had sent the text message setting up a drug transaction was the central fact upon which he relied when he stated that there were reasonable grounds to believe that there was a quantity of controlled substance at the appellant's residence.

[9] Insufficient Remaining Evidence

We do not agree with the respondent's position that even if the incorrect information regarding the text message is removed from the ITO there remains sufficient evidence to justify the warrants.

[10] Dated and Inconclusive Evidence

The evidence relating to the appellant's alleged cocaine trafficking was dated, imprecise and inconclusive, and insufficient to sustain the warrant.

[11] Lack of Basis for Residence Search

The search of the appellant's two stores was justified by the ITO, as the text message indicated that a drug transaction was planned to take place at one of the stores. However, in our view, the ITO failed to provide a basis to justify a search of his residence. There is no suggestion in the ITO that the appellant kept drugs in his residence. No surveillance was conducted of the residence. The suggestion advanced in oral argument on this appeal that the burglary two years earlier at one of the appellant's stores might have prompted him to keep drugs at his residence is entirely speculative, and was not advanced in the ITO or at trial. The statement in the ITO that drug dealers often use "stash houses" to store their drugs was made in relation to Nelson DaSilva and not the appellant.

[12] Overbroad Warrant

We also agree with the appellant's submission that the search warrant was overbroad. It authorized the search and seizure of a long list of items, including: banking and financial documents; telephone records; photographs; documents relating to the occupancy or ownership of the place; and any data stored in electronic devices such as computers, mobile phones, blackberry devices, or any other devices with memory capable of storing data. Justification for the search of the appellant's car was based entirely on the fruits of the unlawful search of his residence.

Section 24(2)

[13] Grant Framework

Since the trial judge concluded that the searches of the appellant's residence and vehicle did not violate s. 8 of the Charter, he did not consider s. 24(2). This court is in a position to conduct the analysis under R. v. Grant, [1993] 3 S.C.R. 223. The court is to determine whether admitting the evidence would bring the administration of justice into disrepute, taking into account: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the appellant; and (iii) society's interest in an adjudication on the merits.

[14] Seriousness of State Conduct

There are several factors in this case that impact the seriousness of the Charter-infringing state conduct. The search of the appellant's home was based on an ITO which the Crown admitted "was not well put together." The offence being investigated was conspiracy to traffic, yet the wiretaps demonstrated that the appellant was not communicating with the alleged co-conspirators. There was no evidence that there would be drugs at the appellant's home. The suggestion that it was a "stash house" was speculation. The officer who swore the ITO testified that the police did not "have to have information" that drugs were in the appellant's home. As stated by Juriansz J. in R. v. Jones, 46 C.R. (5th) 318, at para. 31: "The Charter violation is exceedingly serious in that it involves the search of a person's home […] on the basis of speculation."

[15] Manner of Execution

Further, the way the warrant for the residence was executed aggravated the seriousness of the state conduct. The dynamic entry, while not illegal, was unnecessary, as the appellant had been arrested and was in custody at the time of the search. The police knew that the appellant lived with his wife, child and in-laws. There was no suggestion that they were part of any illegal activity. Although the trial judge found that the warrant was present during the search, it seems clear that it was never shown to the appellant's father-in-law, who was handcuffed by the police and initially told he was under arrest. The warrant itself was overbroad. It included the entire home, cellphones, data, photographs and financial documents.

[16] Impact on Charter-Protected Interests

The breach had a significant impact on the Charter-protected interests of the appellant in that it involved entry into his private residence.

[17] Society's Interest in Adjudication on the Merits

While society has an interest in having the matter adjudicated on the merits, the court must also consider the impact of admitting the evidence on the administration of justice. As stated in Jones, at para. 32: "the regular admission of evidence obtained from people's homes, where there is not a proper basis for a search" would bring the administration of justice into disrepute.

[18] Conclusion on Section 24(2)

A combination of all of these factors leads us to conclude that s. 24(2) of the Charter must be applied to exclude the evidence.

Disposition

[19] Final Order

Without the evidence seized pursuant to the search warrants, there is no basis for these convictions. Accordingly, the appeal is allowed, the convictions are set aside, and acquittals are entered.

Released: February 17, 2017

Robert J. Sharpe J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.