Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230414 DOCKET: C68696

Feldman, Roberts and Paciocco JJ.A.

BETWEEN

His Majesty the King Respondent

and

Michael St. Clair Appellant

Counsel: Nate Jackson, for the appellant Matthew Asma, for the respondent

Heard: April 21, 2022

On appeal from the conviction entered by Justice Jane E. Kelly of the Superior Court of Justice on January 22, 2020, and from the order of Justice Robert F. Goldstein of the Superior Court of Justice, dated January 10, 2020, with reasons reported at 2020 ONSC 2251.

L.B. Roberts J.A.:

Overview

[1] Following an unsuccessful application to exclude seized evidence under the Canadian Charter of Rights and Freedoms, the appellant did not contest the Crown’s case and was convicted of possession and careless storage of a prohibited firearm and ammunition that the police had seized from his apartment during the execution of a search warrant. The trial judge accepted the joint position offered on sentence and imposed a custodial sentence of two years less a day. The appellant appeals his conviction but not the sentence imposed.

[2] The appellant submits the application judge erred in upholding the search warrant and dismissing his s. 8 Charter application. He maintains that on the Garofoli review, the application judge should have excised all references to a lost video from the information to obtain (“ITO”) on which the search warrant’s issuance depended and held the warrant to be invalid. He argues that the seized evidence should then have been excluded from his trial. He requests that the convictions be set aside, and acquittals entered.

[3] For the reasons that follow, I would dismiss the appeal.

Background

[4] DC Steven Sgroi was the police affiant who prepared and swore the ITO that supported the two applications for warrants to search the appellant’s vehicle and his apartment at 1605-30 Falstaff Avenue in Toronto. The first application submitted on February 15, 2018 was rejected. The second application, which included additional information, was successful and the search warrants were granted by a justice of the peace on February 16, 2018.

[5] Included in the ITO was information obtained by DC Sgroi on January 5, 2018 from a confidential informant (“CI”) about a shooting involving the appellant and others that had taken place behind a building on Clearview Heights in Toronto on December 15, 2017. The CI described that the shooting incident arose as a result of an argument between the appellant and others and that some of the men there, including the appellant, had firearms. The CI provided other information including that the appellant drove a black Dodge Ram pickup truck, did not reside at Clearview but was always there, and worked in construction.

[6] On January 6, 2018, DC Sgroi reviewed video surveillance from 79 and 81 Clearview Heights. In the ITO, DC Sgroi stated that the video corroborated many aspects of the CI’s tip. These included the appellant’s presence at the alleged incident, as well as the chain of events leading up to and following the discharge of a firearm by another person, including the appellant opening the driver-side door of a Dodge pickup. From his observations of the video, DC Sgroi stated that during this chain of events, the appellant “was exhibiting the characteristics of an armed person”, although he made no observation that the appellant held or fired a visible firearm.

[7] DC Sgroi captured about 70 screenshots from the video and used 62 of them to form a timeline of the events that he observed on the video. He included a number of these screenshots in the ITO, including several screenshots that showed the presence of the appellant at the scene of the alleged shooting, his movements to and from the Dodge pickup truck during the chain of events described by DC Sgroi, and a screenshot of another individual who was racking a firearm in his hand. All of the screenshots were subsequently disclosed to the appellant and referenced by the parties and the court on the Garofoli application.

[8] Subsequently, in January and February 2018, the police commenced an investigation of the appellant for illegal possession of a firearm. Police surveillance and database research corroborated other aspects of the CI’s tip, including that the appellant drove a black pickup truck and resided at 1605-30 Falstaff Avenue in Toronto.

[9] On February 15, 2018, DC Sgroi applied for search warrants for the appellant’s vehicle and residence claiming that he had reasonable grounds to believe that the appellant was in possession of a firearm. The justice of the peace rejected the application partly because she could not independently assess the reasonableness of DC Sgroi’s belief that the appellant was in possession of a firearm, as DC Sgroi’s assertion that the appellant was “exhibiting the characteristics of an armed person” in the video did not amount to sufficient grounds to issue the warrant.

[10] DC Sgroi obtained more information from the CI through the CI’s handler. The CI advised that the appellant was in possession of “a real working firearm” of which the CI gave a detailed description. The CI also described the appellant’s reason for having the firearm, the recency of the CI’s observation, and whether or not the CI’s knowledge was firsthand. DC Sgroi submitted a second application that included the additional information obtained from the CI and the requested search warrants were granted on February 16, 2018.

[11] On February 16, 2018, the police executed the search warrant at 30 Falstaff Avenue and found a sawed-off shotgun and five rounds of shotgun ammunition in a shoebox in the front hall closet of the apartment. [1] The appellant was charged with offences in relation to the seized firearm and ammunition.

[12] Some 18 months later, the appellant filed a notice of application, dated August 15, 2019, to exclude the seized firearm and ammunition from the evidence at his trial under s. 24(2) of the Charter, alleging his rights under s. 8 of the Charter had been breached by the search and challenging the validity of the warrant (“the Garofoli application”). The Crown applied to conduct a “Step Six” application because the ITO contained information provided by a CI. Crown counsel prepared and provided a redacted ITO to the appellant’s trial counsel, who was satisfied that he had sufficient material to challenge the warrant.

[13] The Crown and the appellant subsequently learned that the surveillance video was inexplicably lost. As a result, the Garofoli application was adjourned and the appellant filed a supplementary notice of application, dated December 4, 2019. He further challenged the validity of the warrant on the basis that his s. 7 Charter rights to make full answer and defence on the Garofoli application had been breached because of the loss of the surveillance video referenced in the ITO. He sought relief under s. 24(1) of the Charter, and submitted alternative possible remedies, one of which was the excision of all references to the lost video from the ITO.

[14] The Garofoli application was heard in January 2020. The Crown conceded that the appellant’s s. 7 Charter rights to make full answer and defence had been infringed as a result of the police inexplicably losing the surveillance video that was referenced in the ITO. However, the Crown argued that whatever limited prejudice was caused by the lost video could be remedied by permitting cross-examination of DC Sgroi on the redacted ITO.

[15] The application judge found that the loss of the surveillance video by the police arose because of “negligence” that was “unacceptable” though not the product of malice or bad faith. He recognized that the video was perceived as important at the time the ITO was sworn and was relevant to whether the police had grounds to obtain a search warrant for the appellant’s residence, without which the Crown’s case would have collapsed. He concluded that the resultant breach of the appellant’s s. 7 Charter rights warranted a remedy beyond DC Sgroi’s cross-examination, which he had permitted.

[16] The application judge found that the infringement caused a minimal level of prejudice and was limited to the appellant’s inability to test DC Sgroi’s observations in the ITO that the appellant was exhibiting the characteristics of an armed person in the video. As a result, the application judge deleted all references in the ITO to “the characteristics of an armed person”. But he did not excise all references to the video from the ITO. He concluded that the appellant was able to test the other relevant aspects of the video through the screenshot timeline.

[17] The application judge determined that the editing of the references to “the characteristics of an armed person” was of no practical effect to the sufficiency of the ITO because there was sufficient material remaining in the ITO to enable the issuing justice to find that the affiant had reasonable grounds to believe that the appellant was in possession of a gun and to issue the warrant. He concluded that as the search warrant was validly issued, there was no breach of the appellant’s s. 8 Charter rights and dismissed his application. Given his conclusion that there was no s. 8 Charter breach, the application judge did not carry out the s. 24(2) analysis under R. v. Grant, [1993] 3 S.C.R. 223 to determine if the seized evidence should be excluded from the appellant’s trial.

Issues

[18] The appellant’s appeal focusses on the application judge’s decision not to excise all references to the lost video from the ITO. He argues that the admitted breach of his s. 7 Charter rights should have resulted in the automatic excision of all references to the lost video in the ITO. According to the appellant, the information attested to by the affiant was wholly founded on the affiant’s observations of the lost video, which, in turn, bolstered the weak credibility of the CI, and formed the basis for the affiant’s opinion that there were reasonable and probable grounds to believe that the appellant was in possession of a firearm. Without the unexcised references to the lost video, the ITO could not support the issuance of the search warrant. As a result, the trial judge erred in failing to exclude the seized evidence from his trial. Without the seized evidence, the appellant would have been acquitted of all charges.

Analysis

[19] In my view, the appellant’s submissions do not raise a reversible error but essentially challenge the application judge’s findings of fact and determination of remedy, which are entitled to appellate deference. I see no error that warrants appellate interference.

(1) There was no error in the application judge’s analysis

[20] The appellant argues that the application judge’s approach to the question of remedy was in error because he failed to apply the long-standing automatic excision rule that requires the excision of unconstitutionally obtained information from the ITO, which stems from a trilogy of decisions from the Supreme Court of Canada: Grant; R. v. Plant, [1993] 3 S.C.R. 281; and R. v. Wiley, [1993] 3 S.C.R. 263. The automatic excision rule instructs, as Watt J.A. reiterated in R. v. Mahmood, 2011 ONCA 693, at para. 116, that: “[i]nformation obtained by unconstitutional means must be excised from the ITO on Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued.”

[21] The appellant argues that the automatic excision doctrine, developed in the context of s. 24(2) Charter applications to exclude unconstitutionally obtained evidence, requires the excision from an ITO of all references to evidence that has become lost contrary to s. 7 of the Charter. He maintains that the unacceptable police negligence in losing the video rendered the video’s use in the ITO unconstitutional and that the police should not be allowed to benefit from their unconstitutional conduct.

[22] I would not accede to these arguments.

[23] The application judge’s analytical approach was not flawed. He followed the well-established approach to remedy for lost evidence. As this court explained in R. v. Spackman, 2012 ONCA 905, at para. 112:

Breaches of the Crown’s disclosure obligations that amount to a constitutional infringement do not involve obtaining evidence in an unconstitutional way. As a result, remedies for these infringements fall within the compass of s. 24(1), not s. 24(2) [ [2] ]. Remedies under s. 24(1) are flexible and contextual. [Citations omitted.] [Emphasis in the original.]

See also: R. v. Harrer, [1995] 3 S.C.R. 562, at paras. 42-43.

[24] Before the application judge, the appellant sought his remedy for the infringement to his s. 7 Charter rights under s. 24(1) of the Charter. Where accused persons claim that their rights to make full answer and defence under s. 7 of the Charter have been breached due to loss or destruction of evidence, the court’s analytical approach is well-defined. The court must (1) determine whether the loss or destruction of evidence was due to unacceptable negligence and results in a breach of s. 7 of the Charter based on an interference with the accused’s right to make full answer and defence; and (2) if there is a s. 7 Charter breach, the court must determine the appropriate remedy under s. 24(1) of the Charter and in making that judgment, the actual prejudice caused to the defence is a significant consideration. See: R. v. Carosella, [1997] 1 S.C.R. 80, at paras. 37, 48; R. v. La, [1997] 2 S.C.R. 680, at paras. 20-23; R. v. Cloutier, 2011 ONCA 484, at para. 71; R. v. Hersi, 2019 ONCA 94, at paras. 25, 36.

[25] Automatic excision is not the sole mandatory or appropriate remedy in lost evidence cases. The range of remedies granted under s. 24(1) of the Charter, including for lost evidence, must remain very broad and flexible in response to the particular circumstances of a given case: R. v. Bjelland, [2009] 2 S.C.R. 651, at paras. 18-19; Ward v. Vancouver (City), [2010] 2 S.C.R. 28, at paras. 17-20. Imposing automatic excision as a mandatory remedy would be incompatible with the wide discretion conferred to trial judges under s. 24(1) of the Charter. As McIntyre J. stated for the Supreme Court in R. v. Mills, [1986] 1 S.C.R. 863, at pp. 965-66: “It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion.”

[26] The application judge carried out the correct analysis. Having determined that the loss of the surveillance video due to the police’s unacceptable negligence infringed the appellant’s s. 7 Charter rights, the application judge’s focus turned properly to the “remediation of prejudice” to the appellant and the “safeguarding of the integrity of the justice system”: Bjelland, at para. 26. He examined the prejudicial effect of the lost video to the defence and determined that the defence would not be able to properly challenge the observations made by the affiant of the ITO from watching the video that the appellant was “exhibiting the characteristics of an armed person”. As a result, the application judge excised all of the references to the “characteristics of an armed person” from the ITO.

(2) The application judge’s remedy was appropriate

[27] The appellant argues that even if the application of the automatic excision rule is not mandatory, the application judge should have excised all references to the lost video from the ITO. He says that the application judge failed to do so because he erred in his assessment of DC Sgroi’s evidence and the extent to which it was dependent on his observations from the lost video.

[28] In my view, the appellant’s submissions do not reach the stringent standard required to amount to a substantive misapprehension of the evidence: Cloutier, at para. 60. The application judge did not misconstrue the affiant’s evidence in any material way. The motion judge, correctly in my view, concluded that DC Sgroi’s belief that there were reasonable and probable grounds to believe that the appellant was in possession of a firearm was not entirely dependent on the lost video but was founded on information gleaned from and corroborated by police surveillance, database research and the screenshot photos.

[29] The motion judge also noted the minimal importance of the excised information given that DC Sgroi’s assertion about “exhibiting the characteristics of an armed person” was stale information based on a potentially subjective and ambiguous observation. Put otherwise, even if it was left to form part of the basis for the ITO, DC Sgroi’s opinion that the appellant exhibited the characteristics of an armed person would have added little to the reasonable grounds assessment.

[30] In keeping with his broad discretion under s. 24(1) of the Charter, the application judge was entitled to choose the remedy that he did apply to mitigate the prejudice in the circumstances of this case. As the application judge had the widest possible discretion to fashion an appropriate remedy under s. 24(1) of the Charter, deference is owed to his decision on remedy, unless he misdirected himself or rendered an unjust decision. See Bjelland, at para. 15; R. v. Bellusci, [2012] 2 S.C.R. 509, at paras. 18-19, 30; R. v. Nicholas, 2017 ONCA 646, at paras. 56-57. I see no error here.

[31] The application judge rightly focused on DC Sgroi’s observations in the ITO that the appellant could not directly or fully test without the video. As the application judge noted, the appellant could not directly test the affiant’s observations that he was “exhibiting the characteristics of an armed person”. As a result, he excised those portions of the ITO.

[32] The application judge properly instructed himself that his role when reviewing the ITO was to determine whether there was sufficient evidence upon which the justice of the peace could have issued the warrant, having regard to the redacted ITO and judicial summary. He appropriately balanced the three factors from R. v. Debot, [1989] 2 S.C.R. 1140, namely, that the CI’s tip was credible, compelling and corroborated, understanding that the strength of one or more of the factors could compensate for the weakness of others. In that respect, he noted that the CI’s credibility was the weakest of the three Debot criteria but determined that it was sufficient as the CI’s information was corroborated and the CI was a carded police informant who had previously provided true and reliable information to the police. His conclusion that there was sufficient evidence to support the issuance of the warrant was amply justified by the record he reviewed, including the detailed and compelling information provided by the CI, as corroborated by the still photos from the lost video, the database and other searches, and the police surveillance.

[33] There is no basis to interfere with the application judge’s conclusion that the justice of the peace could have issued the warrant, nor with his dismissal of the appellant’s application.

Disposition

[34] For these reasons, I would dismiss the appeal.

Released: April 14, 2023. “K.F.”

“L.B. Roberts J.A.”

“I agree. K. Feldman J.A.”

“I agree. David M. Paciocco J.A.”

Footnotes

[1] The police also executed a search warrant in relation to the appellant’s vehicle, but the Crown did not seek to adduce any evidence seized from this search. Therefore, only the search warrant for the appellant’s residence was in issue on the Garofoli application.

[2] Section 24(1) and (2) of the Charter provide as follows: (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.