Court File and Parties

Court of Appeal for Ontario Date: 2022-09-28 Docket: C67813

Between: His Majesty the King, Respondent And: Mathew Pampena, Appellant

Before: Feldman, Tulloch and Miller JJ.A.

Counsel: Marcus Bornfreund, for the appellant David Morlog, for the respondent

Heard: March 4, 2022

On appeal from the convictions entered by Justice Irving W. André of the Superior Court of Justice, sitting with a jury, on September 28, 2018, and from the sentence imposed on January 8, 2019.

Feldman J.A.:

Endorsement

[1] The appellant was convicted by a jury of possession of cocaine for the purpose of trafficking, possession of marihuana, as well as possession of property obtained by crime. The evidence, consisting of the drugs and money, was obtained by police when they executed a search warrant at the appellant’s home. The search warrant contained the wrong address and was therefore invalid. However, the police went to the appellant’s home, the place where they had conducted surveillance on him, to execute the warrant, without noticing that the warrant contained the wrong address. They went at night and conducted a “dynamic entry” with a battering ram for officer safety, based on the possible presence of a firearm and to ensure that the evidence would be preserved.

[2] The trial judge ruled the evidence admissible under s. 24(2) of the Canadian Charter of Rights and Freedoms. He found the Charter breach was not serious, but minor, because the officer who prepared the Information to Obtain (“ITO”) made a typographical mistake and the police acted in good faith in executing the warrant without realizing the mistake. They had reasonable and probable grounds for obtaining the warrant, and there was no risk of entering the wrong house in this case, because the erroneous address on the warrant did not exist.

[3] In my view, the trial judge erred in his characterization of the first factor in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, by minimizing the seriousness of the Charter breach that involved an error in the address to be searched. However, the second and third Grant factors favoured inclusion of the evidence. I would therefore dismiss the appeal from conviction. I would also dismiss the appellant’s appeal of the sentence imposed of three and a half years.

Facts

[4] After receiving information from a confidential informant that the appellant was selling cocaine, Peel Regional Police began surveillance on his home at 1015 Galesway Boulevard, Unit 19, in the City of Mississauga, Ontario. They observed the appellant leave the residence and conduct drug transactions. After arresting a buyer and seizing approximately seven grams of crack cocaine, the officers formed the requisite grounds for a search warrant for the appellant’s home.

[5] While preparing the ITO, the affiant for the search warrant, Constable Leon Stewart, one of the surveillance officers, mistakenly typed the address incorrectly as 1105 Galesway Boulevard. He then cut and pasted the incorrect address into the document 26 times. He also made a second error regarding the identification of the home to be searched, by saying that the garage was on the left side of the home when it is actually on the right side.

[6] Constable Stewart reviewed the ITO on the screen before faxing it to the Justice of the Peace. However, in his review, he did not notice the errors. He did not show it to anyone else before faxing it. When he received the faxed warrant back, he reviewed the cover sheet but again failed to notice the incorrect address on the warrant. Sergeant Aaron Masnaghi reviewed the warrant before the search, but he also did not catch the error in the address.

[7] In the ITO, Constable Stewart had requested permission to execute the search warrant using a battering ram, a “dynamic entry”. In response, the Justice of the Peace wrote in hand “no authority to issue for a dynamic entry”.

[8] The warrant was executed at the appellant’s home at 11:52 p.m. on July 29, 2015 by a number of officers who were familiar with the appellant’s address from conducting the surveillance. They were instructed to use a battering ram with no prior announcement in order to preserve evidence because the drugs were disposable, and for safety concerns due to the possible presence of a firearm. Approximately 255 grams of cocaine, 400 grams of marihuana and $4,705 were seized from the residence. [1]

[9] The error in the address in the search warrant was discovered after the search by another officer who was drafting the occurrence report. She advised Sergeant Masnaghi, who confirmed the address error and directed Constable Stewart to determine whether the address on the warrant actually existed and to immediately contact the Crown for advice. He did so the next morning. It turned out that the incorrect address did not actually exist.

The Trial Judge’s Section 24(2) Ruling

[10] The Crown conceded at trial that the error in the search warrant made it an invalid warrant, and therefore the search was a warrantless search. The trial judge found the warrant to be facially invalid and that a warrantless search is prima facie unreasonable: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161. He referred to case law holding that a search warrant 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), 21 C.C.C. (3d) 503 (Ont. C.A.).

[11] He then turned to applying the three Grant factors to determine whether the evidence obtained should be admitted into evidence under s. 24(2) of the Charter.

[12] The first Grant factor is the seriousness of the Charter-infringing conduct: Grant, at para. 73. The trial judge found that because the appellant had a heightened expectation of privacy in his home, the warrantless search of his house was very serious. He however, discounted that seriousness and characterized the breach as “minor” based on the following factors: the address error was the result of an honest mistake and not a cavalier or intentional disregard for the appellant’s constitutional rights; the erroneous address was a non-existent address and therefore did not, in this case, create a danger to an innocent person at the address; and the house that was searched was the real target of the investigation about which there were reasonable and probable grounds to believe that drug dealing was involved.

[13] While appellant’s counsel also referred to multiple alleged breaches by the police while executing the warrant as adding to the seriousness of the breach, the trial judge rejected that submission. The trial judge also distinguished this court’s decision in R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, relied on by appellant’s counsel. In that case there were no grounds to obtain a warrant, no basis to find good faith, and there was evidence of a systemic practice of warrantless searches.

[14] The second Grant factor is the impact of the breach on the Charter-protected rights of the accused: Grant, at paras. 76-77. The trial judge’s assessment was that while it was arguable that the impact of the breach on the appellant was significant, given that the police had entered his home without a warrant, searched it and arrested the appellant, the second factor nonetheless favoured admission of the evidence recovered because there was no strip search, no gratuitous violence and no coercion.

[15] The third Grant factor is society’s interest in the adjudication of the case on its merits: Grant, at para. 79. Given the nature and quantity of the drugs seized, this factor favoured admission of the evidence.

[16] Balancing the three factors, the trial judge concluded that the evidence should be admitted. He found that the mistake in the address was “a minor one”; it posed no threat that another residence would be searched; the police acted in good faith; there was no egregious conduct by the officers during the search; and upon learning of the error, Sergeant Masnaghi instructed Constable Stewart to advise the Crown immediately. The fact that he waited until the next day did not undermine the innocence of his error.

The Sentence Ruling and Reasons

[17] After the s. 24(2) ruling, the trial proceeded before a jury, resulting in convictions for possession of cocaine for the purpose of trafficking (255 grams), possession of marihuana (400 grams), and possession of property obtained by crime ($4,705.00). [2] The Crown sought a sentence of 4-5 years, while the defence submitted that the range should be between 18 months and 2 years less a day.

[18] The trial judge identified three aggravating factors: (1) the dangerousness of cocaine; (2) the quantity of the drugs together with the surveillance activity indicating a commercial enterprise; and (3) the significant quantity of marihuana.

[19] The trial judge also found five mitigating factors: (1) the appellant was 29 years old with no criminal record; (2) he was gainfully employed as a forklift operator; (3) he was in a stable four-year relationship; (4) he was remorseful and had his father’s support; and (5) he had been on restrictive bail for two and a half years with no reoffending.

[20] The trial judge found that for the quantity of cocaine recovered, four to five years was the appropriate range, but that the mitigating factors would reduce the sentence imposed. He rejected a sentence in the upper reformatory range as insufficient to reflect the seriousness of the offences and the circumstances. Taking into account the mitigating factors, he imposed a sentence of four years less six months credit for the time on restrictive bail. The sentence components were three years for trafficking, six months consecutive for possession of property obtained by crime, and three months concurrent for the marihuana possession.

Issues

[21] With respect to the appellant’s appeal from his conviction, did the trial judge err in law: (1) by finding that the police acted in good faith when conducting a warrantless search of the appellant’s residence; (2) by failing to find the late-night dynamic entry, which was refused by the Justice of the Peace, to be an aggravating factor or a separate breach; or (3) in balancing the Grant factors, by admitting the evidence?

[22] With respect to the appellant’s appeal from his sentence, did the trial judge err by imposing a sentence on a youthful first offender that was not the lowest possible sentence?

Analysis

(1) Conviction appeal

[23] It is convenient to deal with the three issues raised on the conviction appeal in the context of an analysis of the three Grant factors.

(a) The first Grant factor: the seriousness of the s. 8 Charter breach

[24] To be valid, a search warrant must authorize a search of a specified place: A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, at p. 179. Accordingly, “if the warrant outlines the wrong address, the search and seizure are viewed as warrantless”: Scott C. Hutchinson et al., Search and Seizure Law in Canada, loose-leaf, (Toronto: Thomson Reuters Canada Ltd., 2022), at para. 16:18. An accurate description of the premises to be searched is necessary to “avoid search warrants becoming an instrument of abuse”: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 50.

[25] In this case, the warrant was issued for the wrong address. Therefore, as conceded at trial, when the police searched the appellant’s residence, they conducted a warrantless search of his home. This was a serious breach of the appellant’s s. 8 Charter right, because of the high expectation of privacy in the home. This was confirmed most recently in R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, where Moldaver and Jamal JJ., writing for the majority, stated at paras. 49-50:

This Court has emphasized time and again that a person’s home attracts a high expectation of privacy. A fundamental and longstanding principle of a free society is that a person’s home is their castle (Eccles v. Bourque, [1975] 2 S.C.R. 739, at pp. 742-43, per Dickson J. (as he then was), citing Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, at p. 195). The home is “where our most intimate and private activities are most likely to take place” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22). Moreover, this Court recognized in R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140, per Cory J., that “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”.

Given the privacy interests in the home, warrantless searches of the home are prima facie unreasonable. This was confirmed in R. v. Feeney, [1997] 2 S.C.R. 13, where the Court held that even if the police have an arrest warrant, they are not generally permitted to make an arrest in a home without a specific warrant permitting entry. Parliament later codified the principles in Feeney by introducing ss. 529 to 529.5 into the Criminal Code to govern when police may enter dwelling-houses to carry out arrests.

[26] The trial judge found that, while the appellant’s s. 8 Charter right was breached, there were factors which reduced the seriousness of the officers’ conduct in this case. By virtue of their ongoing surveillance of the appellant, the officers knew which residence to search prior to the issuance of the warrant. And because the erroneous address did not actually exist, there was no risk that the police would enter the home of an innocent person using the invalid warrant.

[27] However, in other circumstances, the results of an incorrect address in the warrant can be far more detrimental. For example, if because of the error, the warrant had contained the address of another, unrelated person, and the police had conducted a dynamic entry there, that person would have been subjected to a frightening, illegal entry and search by police: see Grant, at para. 75.

[28] It is incumbent on police officers obtaining and executing a search warrant to be vigilant about the accuracy of the address to be searched, because the consequences of an error can be far-reaching. As a general matter, because of the importance of the accuracy of the address to the validity of the warrant, an error in the address should not be characterized as minor.

[29] The officer who prepares the ITO bears the responsibility to ensure the accuracy of the information that will justify the issuance of a search warrant. The judicial officer who authorizes the warrant relies on the accuracy of the ITO. The warrant’s authority depends on the accuracy of the information that supports it.

[30] Therefore, it is essential that the officer who prepares the ITO take steps to ensure the accuracy of the address, and for the officers executing the warrant to ensure, before they enter, that the warrant authorizes entry of the address they are about to search. In this case, the officers took the step of reviewing the documents, but they did not catch the error. An additional step to ensure accuracy would be to specifically compare the address on the ITO and on the warrant with the actual address to be searched.

[31] The appellant also submits that the trial judge should have found that the use of the dynamic entry aggravated the seriousness of the breach and did not constitute good faith police conduct. I would not accept that submission. I accept the explanation provided by the Crown that the handwritten note by the Justice of the Peace who issued the warrant indicated that he did not have the authority to authorize a dynamic entry, not that he was specifically not authorizing it.

(b) The second Grant factor: the impact of the breach on the Charter-protected interests of the accused

[32] The second Grant factor focuses on the effect of the breach on the accused person and whether admitting the evidence in the face of that impact would bring the administration of justice into disrepute. In Grant, the court explained at para. 76:

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[33] The trial judge first acknowledged that the impact on the appellant of the warrantless search of his home was significant, as the police entered without a valid warrant, searched, found contraband and arrested the appellant. However, this was not a case where the police entered without obtaining a warrant based on reasonable and probable grounds, as in Davidson. The warrant contained an error in the address, but the police went to the intended house, the appellant’s house that they had surveilled, and did so using a warrant obtained based on reasonable and probable grounds that the residence would contain evidence of an offence.

[34] I agree that the fact that the police had reasonable and probable grounds and that they sought and obtained a warrant that would have authorized them to conduct the search is a proper consideration that reduces the impact of the breach on the appellant: see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 72-74; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 63, at para. 65.

[35] However, the trial judge also relied on the fact that the police conducted no strip search and there was no gratuitous violence or coercion as a factor that minimized the impact of the Charter breach on the appellant. These should not have been treated as mitigating factors. While the presence of violence or a personal intrusive search would be an aggravating factor, had it occurred, the fact that it did not occur does not mitigate the seriousness of what did happen: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, aff’d 2021 SCC 38, 75 C.R. (7th) 313.

(c) The third Grant factor: society’s interest in an adjudication on the merits – the importance of the evidence to the Crown’s case

[36] The trial judge found that the evidence recovered was relevant, reliable and significant for the Crown’s case. The societal interest in an adjudication on the merits was enhanced by the nature and quantity of the cocaine and its deleterious effects on the community. I agree that the third factor favoured admission of the evidence.

(d) Balancing the factors

[37] To summarize, in my view the trial judge erred by minimizing the seriousness of an error in the address in the warrant under the first Grant factor. Nevertheless, in this case, as the mistaken address did not exist, and the police knew the residence intended to be searched, and in fact searched that residence, the seriousness of such an error was mitigated. The second and third factors favoured admission of the evidence.

[38] In the result, there was no error in admitting the evidence.

[39] I would therefore dismiss the conviction appeal.

(2) Sentence appeal

[40] The appellant appeals his total sentence of three and a half years. He submits that the trial judge erred by failing to impose a shorter sentence to reflect the fact that the appellant was a youthful first offender, he was gainfully employed and in a stable relationship, he was remorseful, and he had been on restrictive bail for two and a half years without any reoffence. He submits that the trial judge overemphasized deterrence and denunciation and failed to consider rehabilitation. He also submits that the sentence for proceeds of crime should have been concurrent rather than consecutive in accordance with the totality principle, relying on R. v. Hannora, 2020 ONCA 335, at paras. 6-14.

[41] Finally, the appellant says that it was grossly disproportional amounting to an error of law to impose a concurrent sentence of three months rather than an absolute discharge for possession of marihuana, given the change in the law with respect to that offence.

[42] Sentencing decisions of trial judges are to be accorded significant deference on appeal. The factors that the appellant submits should have resulted in a lower sentence were all presented to the trial judge and taken into account by him in imposing the sentence of three and a half years. Nor did he make the error of failing to give effect to the totality principle. In Hannora, the trial judge imposed consecutive sentences without then considering totality. Here the trial judge arrived at the appropriate sentence of three and a half years after taking into account the mitigating circumstances, then broke the sentence down into three years for trafficking and six months for proceeds of crime. There was no error in that approach.

[43] I also accept the submission of the Crown that there is no basis to find that the conviction and concurrent sentence of three months for possession of 400 grams of marihuana was demonstrably unfit or constituted an error of law.

[44] I would therefore dismiss the sentence appeal.

Result

[45] I would dismiss the appeals from conviction and sentence.

Released: September 28, 2022 “K.F.” “K. Feldman J.A.” “I agree. M. Tulloch J.A.” “I agree. B.W. Miller J.A.”

[1] The Reasons for Sentence dated January 8, 2019 state that the police recovered 255 grams of cocaine and 400 grams of marihuana. The parties’ Agreed Statement of Facts provides that “the substance seized in the total amount of 251.3 grams was cocaine” and the “substance seized in the total amount of 339.3 grams was cannabis (marihuana)”.

[2] See footnote 1.