COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mackey, 2020 ONCA 466

DATE: 20200720

DOCKET: C67301

Tulloch, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Sean Patrick Mackey

Respondent

Matthew Asma, for the appellant

Mark Halfyard, for the respondent

Heard: June 16, 2020 by video conference

On appeal from the acquittals entered by Justice Nyron Dwyer of the Ontario Court of Justice on July 15, 2019.

Thorburn J.A.:

A. OVERVIEW

[1] This is an appeal by the Crown against acquittals resulting from a Charter ruling.

[2] The respondent, Sean Patrick Mackey, was charged that from February to June in 2018 he committed twelve offences: five residential break and enters at different addresses in the Regional Municipality of York (counts 1-5); theft of a motor vehicle (count 6); prowling by night (count 8); possession of break and enter tools (count 9); wearing a mask with intent to commit theft (count 10); and possession of proceeds of crime (counts 7, 11, and 12). He elected to be tried in the Ontario Court of Justice.

[3] At trial, the respondent applied for an order to quash two search warrants and exclude evidence seized pursuant to those warrants. The two search warrants included one to search his residence (“the home warrant”) and the other to secure a DNA sample (“the DNA warrant”). The respondent claimed they were obtained in breach of his s. 8 rights under the Canadian Charter of Rights and Freedoms. He sought to exclude the evidence obtained pursuant to s. 24(2) of the Charter.

[4] The trial judge found that the Information to Obtain (“ITO”) the home warrant and the DNA warrant did not contain reliable evidence that could form the basis for issuing the warrants as there were no reasonable and probable grounds to believe the respondent was the person who committed the break and enters. He therefore found the warrants were unlawful, contrary to s. 8 of the Charter and should be quashed.

[5] The trial judge excluded the evidence obtained from the searches of the residence and the respondent’s person pursuant to s. 24(2) of the Charter. Applying the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, he concluded that although exclusion of the evidence would bring an end to the prosecution, the serious infringement on the respondent’s strong liberty and privacy interests warranted exclusion of the evidence.

[6] Thereafter, the Crown elected to call no evidence and invited a dismissal of the charges. The respondent was acquitted of all charges.

[7] The Crown appeals the decision to quash the DNA warrant and exclude the evidence obtained therefrom. The Crown seeks a new trial on four related charges where police recovered DNA that matched the respondent’s DNA.

[8] For reasons that follow, I would allow the appeal and order a new trial on counts one, four, five, and ten.

B. THE EVIDENCE

[9] In 2018, police investigated a series of residential break and enters, which yielded DNA and other important evidence.

The Break and Enter at 1068 Harden Trail

[10] On April 3, 2018, a man in a black toque and mask broke into a residence at 1068 Harden Trail in Newmarket. The man was interrupted by the resident while at the window on a ladder. He fled the scene.

[11] Police recovered a flashlight abandoned on the ground near the residence.

DNA from the Crime Scene and its Connection to the Respondent

[12] The batteries taken from the flashlight found at the site of the Harden Trail break-in yielded a DNA sample. The Centre of Forensic Sciences tested the DNA and linked the DNA sample to DNA from five other crime scenes (“the DNA sample”).

[13] Two of the matches were to blood left behind near broken windows at 795 Millard Street and 15 Green Spruce Road in the Town of Whitchurch-Stouffville. Both locations were the scene of break and enters that were reported on February 26, 2018. The perpetrator appears to have gained access to the homes by smashing a window near the door and unlocking it.

[14] The DNA sample also matched DNA found in a stolen Ford F-150 in 2013 (“the stolen truck DNA”).

[15] According to records, on December 11, 2013 the stolen truck was noticed driving at high speed. A short time later, police found it unoccupied. The driver had fled. Police found the stolen truck DNA on a cigarette butt in the truck.

[16] Two fingerprints were also found in the stolen truck, one of which the police identified as belonging to the respondent.

Surveillance Footage Linked to the Respondent

[17] On March 20, 2018, someone reported a suspicious car parked in their driveway at 3 Horn Street in the Town of Whitchurch-Stouffville at 1:32 a.m.

[18] Surveillance footage from March 20 showed a white man in his 30s wiping down the steering wheel and interior door handle of a white SUV then walking away from the vehicle and putting on a balaclava. A white Mercedes-Benz SUV had been reported stolen one month prior in the Town of Kleinburg. The man’s face and body are visible in the footage. The footage also shows the man checking vehicles in the neighbourhood then checking the front and back doors at 23 Horn Street. There was no break and enter at that address.

[19] Surveillance footage also captured a lone man and a white SUV at the scene of the 1068 Harden Trail break and enter. The man’s face was visible in the footage but not clearly enough to ascertain anything other than his general facial features. The resident of 1068 Harden Trail reported that the perpetrator was wearing a mask when he appeared at the window.

[20] The remaining surveillance stills show a pattern of a man robbing locations in a balaclava.

The Home Warrant and the Search of the Respondent’s Home

[21] Detective Constable Greg West swore an ITO to search 831 Greenbriar Drive in Oshawa for evidence of the break and entry at 1068 Harden Trail in Newmarket.

[22] In his affidavit in support of the application, he advised as follows:

a) The resident at 1068 Harden Trail said the intruder wore a mask and used a ladder to reach her second-storey bedroom window;

b) The intruder left the ladder propped against the house and dropped a flashlight on the ground below;

c) Det. West watched the surveillance video of the burglar, compared it with a police mugshot photo of the respondent, and thought the burglar appeared to be the respondent;

d) A white SUV was observed in another suspicious occurrence where a man Det. West said bore a likeness to the respondent was caught on video prowling around a home at night; and

e) The DNA on the flashlight batteries matched the DNA found at five other crime scenes, including the truck theft in 2013. A fingerprint belonging to the respondent and a cigarette butt with a DNA sample on it were found in the stolen truck.

[23] A justice of the peace granted the home warrant.

[24] The police searched the home and found stolen jewellery, balaclavas, flathead screwdrivers, and other items. The respondent was arrested during the execution of the home warrant.

The DNA Warrant and Comparison of the Respondent’s DNA to the DNA Found at the Break and Enters

[25] After his arrest, police sought the DNA warrant to compare the respondent’s DNA with the crime scene DNA profiles.

[26] The affiant relied on the same grounds as those used to secure the home warrant and the fact that police had seized evidence of break and enters including stolen jewellery, balaclavas, flathead screwdrivers, and other evidence from the respondent’s residence at the time of his arrest.

[27] A provincial court judge granted the DNA warrant and a DNA sample was taken from the respondent.

[28] Comparison of the respondent’s DNA sample with crime scene samples provided crucial evidence incriminating the respondent.

[29] The Centre of Forensic Sciences’ analysis established that the respondent’s DNA was found at the break and enter crime scenes at 1068 Harden Trail in Newmarket, as well as at 795 Millard Street and 15 Green Spruce Road in the Town of Whitchurch-Stouffville.

C. THE PROCEEDINGS BELOW

[30] The respondent challenged the validity of both warrants at trial. The trial judge ruled on the validity of the home warrant first, followed by the DNA warrant.

[31] The trial judge found that the grounds for both ITOs were inadequate to issue the search warrants and excluded the evidence from both searches.

The Affiant’s Additional Evidence at Trial in Respect of the Warrants

[32] The affiant, Det. West, testified on the Charter voir dire.

[33] Det. West testified that he relied on the DNA profile hits that he believed linked the crimes to the respondent. He also reviewed the respondent’s police mugshot and based on the similarities he observed, he believed the respondent was the person in the surveillance images.

[34] Det. West also explained that while the DNA samples found at the crime scenes did not match any identifiable person, they showed that the same person was at all of the crime scenes. Moreover, the respondent’s fingerprint was found in the stolen truck. On cross-examination, defence counsel confirmed with Det. West that the DNA samples that matched one another did not match any identifiable person in the National DNA Data Bank.

[35] Defence counsel incorrectly asserted that the respondent had previously given a DNA sample to the Data Bank, which suggests the respondent’s DNA was not a match. Det. West replied that no offender profile for the respondent came up when he searched relevant police databases.

[36] Defence counsel went on to say that:

That DNA was never tested, it doesn’t compare to anybody…. [T]here’s no forensic evidence tying Mr. Mackey, short of that thumbprint in something that is not part of your investigation[.]

[37] The affiant did not adopt defence counsel’s suggestion that the DNA had not been tested.

[38] On re-examination, Det. West clarified that he believed the respondent was the burglar because, in part, the same DNA profile from the other crime scene samples was found in the stolen F-150 truck, along with the respondent’s fingerprint. The exchange reads as follows:

Q: Lastly, with respect to the DNA … part of your belief is that the unknown male DNA profile was associated with a thumbprint identification to Mr. Mackey?

A: Yes.

Q: And that was with respect to a 2013 vehicle theft in Halton?

A: That’s right, it recovered, yeah. Yes.

Q: And from those other or in total six locations where that unknown male DNA profile was found, I take it that that inference that you drew that the DNA could belong to Mr. Mackey, it stems from the fingerprint identification?

A: That’s right.

The Trial Judge’s Ruling on the Home Warrant

[39] In quashing the home warrant, the trial judge believed there was little connection between the respondent and the DNA left at the various crime scenes.

[40] The trial judge found it “difficult to understand” why the DNA evidence seized at the crime scenes was not compared against the respondent’s DNA profile and how Det. West could have missed the respondent’s profile. The trial judge held that:

DNA was found on batteries from a flashlight apparently abandoned by the person who committed the April 3, 2018 break and enter. There was a sample suitable for comparison that was linked to 5 other incidents in York Region…. The difficulty here is that it is not tied to Mr. Mackey.

On December 11, 2013, Mr. Mackey’s print was found in a stolen car in York Region. There was also DNA suitable for comparison found in the car. This DNA has not been analyzed. There is a conclusion that the DNA will be linked to Mr. Mackey and further that it will be linked to other DNA found.

A link to Mr. Mackey is hoped for but not established. There is no identification and no testing of the DNA. A link by DNA or by identification would tie the investigation together.

[41] The trial judge’s understanding was incorrect.

[42] Counsel subsequently corrected this misapprehension by informing the trial judge that while the respondent had provided a DNA sample to the National DNA Data Bank, the sample was never included in the Data Bank because he was not required to provide a sample. Counsel also clarified that the fingerprint in the stolen truck was positively identified as the respondent’s and that DNA from the stolen truck, where the respondent’s fingerprint was found, had been tested and matched to the DNA found at the various crime scenes.

The Trial Judge’s Ruling on the DNA Warrant

[43] Before ruling on the DNA warrant, the trial judge acknowledged the clarifications but maintained that the affiant had failed to establish reasonable grounds to believe the respondent was the burglar. He held that:

The clarification of these points does not change my analysis in the search warrant motion. The presence of the applicant’s print in the car was important at the time but did not lead anywhere. He was not charged with any offence related to the car. Without more context it is not possible to conclude when the prints were left or if that should raise suspicion. We have no idea about the presence of others in the car at the time, or some other time, that could have been the source of the DNA found on the cigarette butt. Again, without context it is also difficult to determine whether the DNA found from that time was left proximate in time to the print. In the end there was no analyzed DNA evidence that linked the applicant to any of the incidents. This was conceded by the affiant on cross-examination.

[44] In his ruling on the home warrant, the trial judge had previously rejected the surveillance footage as he found that the videos were “without detail sufficient to identify any individual or vehicle” or the stolen Mercedes-Benz.

[45] The trial judge quashed both the home and DNA warrants and excluded the evidence obtained therefrom.

D. THE ISSUE

[46] The only issue on this appeal is whether the trial judge erred in quashing the DNA warrant and excluding the evidence obtained as a result of the execution of the warrant. The Crown does not dispute that the home warrant was properly quashed but for different reasons than those given by the trial judge, which are not relevant to this appeal. The Crown seeks a new trial on the counts affected by the exclusion of the DNA evidence, counts one, four, five, and ten, and does not contest the acquittals on the other counts.

E. THE POSITIONS OF THE PARTIES

[47] The Crown argues that the trial judge wrongly quashed the DNA warrant and the evidence obtained pursuant thereto.

[48] The main focus of the Crown’s submissions[^1] is that the trial judge failed to apply the correct standard of review. The Crown submits the trial judge looked at the evidence in a piecemeal fashion and substituted his own view of whether the affiant demonstrated reasonable grounds for the DNA warrant, instead of following the correct procedure which is to assess whether the issuing judge could reasonably have decided there were reasonable grounds to issue the warrant.

[49] In the alternative, the Crown submits that the trial judge misapplied the law under s. 24(2) of the Charter, leading him to conclude that the evidence obtained from the DNA warrant should be excluded.

[50] The respondent submits the trial judge correctly decided that the grounds in the ITO were not sufficient to justify issuance of the warrant. The respondent claims the affiant “objectively lacked reasonable and probable grounds to connect the respondent to the break-ins” for the following reasons:

a) The trial judge became aware that in 2013 (five years before these break-ins), a thumbprint and DNA that matched the respondent’s were found in the stolen truck. However, the respondent was never seen in this car. It was therefore open to the trial judge to find that the evidence was not sufficient to support a reasonable inference that the fingerprint and DNA on the cigarette donor belonged to the same person;

b) The trial judge rejected the other grounds put forward by the affiant including his belief that the respondent stole the Mercedes used in some of the break-ins, that the perpetrator of the break-ins used the same modus operandi, and that the respondent used the stolen Mercedes when committing the offences; and

c) The affiant failed to disclose information regarding alternate suspects in respect of two of the break-ins. Someone reported that a black male and white female broke into a home a few doors away from two of the other houses under investigation in the ITO.

F. ANALYSIS AND CONCLUSION

The Test for Reviewing a Warrant that has been Issued

[51] A judge issuing a warrant at first instance must decide whether there are reasonable grounds to believe the statutory preconditions for issuance of the warrant are met: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168.

[52] Section 487.05(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that, for a DNA warrant to be issued, there must be reasonable grounds to believe that:

a) A designated offence has been committed;

b) A bodily substance has been found or obtained at specified places, including at the place where the offence was committed, or at any place associated with the commission of the offence;

c) The person targeted by the warrant was a party to the offence; and

d) Forensic DNA analysis of a bodily substance from that person will provide evidence about whether the bodily substance referred to in (b) was from that person.

See also R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at para. 4.

[53] The judge must also be satisfied that it is in the best interests of the administration of justice to issue the warrant: Criminal Code, s. 487.05(1).

[54] By contrast, a reviewing judge is not to decide whether he or she would have issued the warrant but, rather, is to determine whether the ITO, as excised and amplified, provides sufficient credible and reliable evidence upon which the issuing judge could be satisfied that there were reasonable grounds to issue the warrant: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-41; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 21, leave to appeal refused, [2010] S.C.C.A. No. 84.

[55] The Crown’s appeal against acquittals is restricted to questions of law alone: Criminal Code, s. 676(1)(a). The trial judge’s application of the standard of review for reviewing a warrant is a question of law: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. The question is whether that application is correct: R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 23.

Analysis

[56] In my view, the trial judge erred by misapplying the test for reviewing a warrant. This error of law led him to conclude incorrectly that there was insufficient evidence to support the issuance of the DNA warrant.

[57] The only s. 487.05 criterion in issue is whether there were reasonable and probable grounds to believe that the respondent was a party to the offences in issue.

[58] It is agreed that initially, the trial judge mistakenly believed:

a) The respondent’s DNA was in the National DNA Data Bank; and

b) There was no link between the DNA found on the flashlight at the crime scene and the DNA on the cigarette in the stolen vehicle found five years before these crimes were committed.

[59] As I earlier noted, clarification was provided to the trial judge to explain the absence of the respondent’s DNA from the National DNA Data Bank and the link between the DNA on the cigarette in the stolen vehicle and the DNA found on the flashlight at the 1068 Harden Trail crime scene, as well as at other crime scenes. However, he remained of the view that the warrant could not have been issued.

[60] The trial judge noted that it was impossible to determine when and under what circumstances the fingerprint and cigarette butt were deposited. He concluded:

Given the shortcomings of the other grounds in the Information to Obtain, [the link between the print and the unknown DNA in the stolen truck] is not enough when combined with those grounds. There was no DNA linked to the applicant in any of the occurrence[s], only a print in 2013 that was presented without context and with some unknown DNA.

… in the end there was no analyzed DNA evidence that linked the applicant to any of the incidents.

[61] I do not agree. For the reasons that follow, I find that, when considered as a whole, there was sufficient credible and reliable evidence upon which the issuing judge could reasonably be satisfied that reasonable grounds existed and that the DNA warrant could therefore have properly issued.

[62] The respondent argues that the issuing judge could not have inferred that he was the perpetrator of the offences. He relies on this court’s decision in R. v. Phillips, 2020 ONCA 323.

[63] In my view, Phillips does not assist the respondent. In Phillips, this court held that the fingerprint and/or DNA evidence was not sufficient to constitute proof beyond a reasonable doubt of the commission of an offence. The appellant had been convicted of breaking and entering a home and stealing a truck based on DNA evidence placing him in the truck within a few days of the truck being stolen. Apart from that evidence, there was nothing to connect the appellant to the break-in.

[64] This court overturned the convictions. The basis for overturning the convictions was that “the evidence was equally consistent with an inference that the appellant became involved with the vehicle some time after the break-in”: Phillips, at para. 12 (emphasis added). This court reasoned that “[a]bsent a finding that the appellant was in possession of the truck, the further inference he was the person who broke into the … home and stole the … keys was not reasonably available”: Phillips, at para. 10.

[65] The respondent asserts it is nothing more than speculation to suggest he was the one who left the cigarette butt in the stolen truck. There was no information about when the cigarette butt was left in the truck, where the cigarette butt was found in the truck, when his fingerprint was deposited in the truck, or how many other people had access to the truck. More information was needed to make this inference available to the issuing judge.

[66] I disagree. In my view, this inference was reasonably available to the issuing judge on the evidence as excised and amplified on review. It is important to remember that this appeal is not about whether or not the respondent is guilty of the offences as charged. It is about whether the DNA warrant could have issued.

[67] The affiant of the ITO was not required to provide proof beyond a reasonable doubt that the respondent was the perpetrator of the offences but simply that there were reasonable grounds to believe he was. The record provides an ample basis to conclude that there were reasonable grounds for the affiant’s belief.

[68] The respondent was one of two individuals confirmed to have been in the stolen truck. While the respondent himself was not found in the stolen truck, his fingerprint was. The fingerprint in the stolen truck proves the respondent was in the stolen vehicle at one time.

[69] Someone who had been in that truck was involved in the break and enters in issue. The DNA found in the stolen truck matched the DNA found at all three of these residential break-ins. It was found on the flashlight batteries that a witness said the perpetrator used in the 1068 Harden Trail break and enter, and it was also found in blood left behind near broken windows at the break and enters at 795 Millard Street and 15 Green Spruce Road.

[70] While this evidence is sufficient to justify the issuance of the DNA warrant, there was additional evidence that, together with the DNA and fingerprint evidence, provided sufficient credible and reliable evidence to support reasonable grounds to believe that the respondent was a party to the offences in issue.

[71] The person in the surveillance video at 3 Horn Street was a white male of approximately the same age, weight, and build as the respondent. Although that person was not seen committing an offence, they were seen donning a mask and casing the surrounding vehicles and houses. A man with a similar build and a white SUV was also captured in the footage at the 1068 Harden Trail break and enter. The resident of 1068 Harden Trail reported that the perpetrator was wearing a mask when he appeared at her window.

[72] The respondent submits that the evidence in the ITO suggesting he was the perpetrator of the offences was neither credible nor reliable because the affiant had failed to include a report from a neighbour that there were alternate suspects for the break and enter crimes committed at another address under investigation.

[73] I do not accept this submission.

[74] Det. West acknowledged on cross-examination that he ought to have included the report about the alternate suspects in the ITO. He explained that he did not think to do so because he did not believe they were the perpetrators (who were described as a black male and a white female) and the trial judge accepted that he did not intend to mislead the issuing judge. In any event, the impact of the omission was not significant given the number of incidents under investigation.

[75] As a result, I am of the view that there was sufficient credible and reliable evidence upon which the issuing judge could have been satisfied that there were reasonable grounds to believe the respondent committed the offences in question.

[76] I therefore conclude that the trial judge erred in quashing the DNA warrant and excluding the evidence obtained therefrom.

[77] In seeking to overturn an acquittal, the Crown need not show the verdict would necessarily have been different. The Crown must simply establish that the error of law “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. In my view, the Crown has met this onus.

[78] It is beyond dispute that the exclusion of the DNA evidence had a material bearing on the result. The respondent applied for exclusion of the evidence for the very purpose of excluding incriminating evidence critical to the case affecting the result. The Crown told the trial judge there could be no prosecution without the DNA evidence to identify the respondent as the burglar.

[79] In ruling to exclude the DNA evidence, the trial judge acknowledged that doing so would effectively end the prosecution.

[80] As a result of the trial judge’s error, there is no question, in my opinion, that the result of the trial may very well have been different. Accordingly, I would order a new trial on the four counts requested by the Crown.

G. Disposition

[81] For the above reasons, I would allow the appeal and order a new trial on counts one, four, five and ten.

[82] Given that I would allow the appeal and order a new trial, I find it unnecessary to address the s. 24(2) Charter grounds.

Released: July 20, 2020 (“M.T.”)

“J.A. Thorburn J.A.”

“I agree. M. Tulloch J.A.”

“I agree. L.B. Roberts J.A.”

[^1]: In its factum, the Crown submits that the trial judge had misapprehended the evidence received on the Charter application but in its oral submissions, the Crown advised it was prepared to assume for the purposes of the appeal that the trial judge correctly dealt with his misapprehension after it was corrected by counsel.