Court File and Parties

Court File No.: City of Kenora 100161, 100212, 100216, 100217, 100227, 100228, 100229, 100247, 100248, 100250, 100261, 100275

Date: 2007-10-12 to 2009-10-22

Ontario Court of Justice

Between:

Her Majesty the Queen in Right of Ontario (Ministry of Natural Resources)

— AND —

Grant Gustafson

Before: Justice of the Peace P. Clysdale-Cornell

Heard on: February 29, 2012

Reasons for Judgment released on: March 26, 2012

Counsel:

Paul Gonsalves and Scott Dunsmuir ..................................................................... for the prosecution

Aaron Seib ................................................................................. for the defendant Grant Gustafson

JUSTICE OF THE PEACE CLYSDALE-CORNELL:

I. INTRODUCTION

[1] Grant Gustafson (the defendant) has been charged with 46 counts under the Fish and Wildlife Conservation Act.

[2] A Charter Application was filed on behalf of the defendant which asserted that the Ministry of Natural Resources conducting an investigation into complaints received about the defendant illegally hunting, applied for and obtained an authorization to search the residence of the defendant, and that the search and resulting seizure of all items from the defendant's property, and evidence derived from those items, were obtained in violation of the defendant's s. 8 Charter rights. As such, the defendant seeks an Order pursuant to s. 24(2) of the Charter excluding all illegally obtained evidence and any derivative evidence. A hearing was held on February 29, 2012 to address the defendant's motion.

[3] The defendant raised the issue that connecting the residence as his place of business and thus to the offences, was based on the conclusory narrative in the search warrant and not on sufficient, credible and reliable evidence to permit the reviewing Justice of the Peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place as set out in R. v. Morelli 2010 SCC 8 and that this resulted in a breach of s. 8 of the Charter. The defendant went on to argue that there was no evidence that the items to be searched for were indeed in the residence and thus the search was in fact a fishing expedition and as such, the items seized should be excluded.

II. RELEVANT FACTS

[4] The defendant, Grant Gustafson, is a resident of Fort Frances, Ontario who is known by the employees of the Ontario Ministry of Natural Resources (MNR) as a guide for deer hunters in Northwestern Ontario. Mr. Gustafson was the subject of a special investigation by the MNR for activities between January 1, 2007 and November 9, 2009. On November 20, 2009, Conservation Officer Scott McAughey applied for and was granted a search warrant for Mr. Gustafson's residence at 602 Sixth Street West, Fort Frances, Ontario. Prior to its presentation to the Justice of the Peace, the search warrant was reviewed and approved by a Provincial Enforcement Specialist with the MNR. The search warrant was granted by a local Justice of the Peace and was executed on November 26, 2009.

[5] As a result of the search a number of items were seized including computers, digital storage devices (CD's, digital cards, flash drives), photos, videotapes, notebooks with client contact information and a number of other items that aren't relevant to this application. All of the items seized were returned save for 2 flash drives containing hunter photos, 3 client lists and 3 unlicensed firearms.

[6] Approximately five to seven months after the search, these seizures, as well as the MNR hunter licensing information and driver license photos from the United States, were used to identify and locate a number of American individuals who had been guided by the defendant. MNR employees and their associates, contacted a number of these individuals, some of whom, provided statements implicating the defendant. As a result of the investigation, the defendant was charged with numerous offences under the Fish and Wildlife Conservation Act.

[7] Plea resolutions have been reached with 5 of these American individuals whereby all have agreed to plead guilty to one or more of the charges they face and to testify at the trial of the defendant.

III. ISSUES FOR DETERMINATION

[8] The evidence at the hearing raised two issues:

a. Did the information provided by Conservation Officer McAughey in obtaining the search warrant for Mr. Gustafson's residence meet the test for sufficiency set out in Morelli – specifically, was there sufficient, credible and reliable evidence to permit the reviewing Justice of the Peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at 602 Sixth Street West, Fort Frances, Ontario without breaching Mr. Gustafson's rights under s. 8 of the Charter?

b. If the s. 8 Charter rights of the Defendant were breached should the evidence which flowed from the breach, specifically the physical items seized and the testimony of the 5 Americans, be excluded pursuant to s. 24(2) of the Charter?

IV. DISCUSSION

A. Section 8 of the Charter

[9] Section 8 of the Charter provides that "Everyone has a right to be secure against unreasonable search or seizure". Mr. Gustafson raises a number of issues to support his assertion that the search warrant should not have been issued and this infringes on his Charter right.

[10] The first issue involves the location to be searched. Mr. Gustafson argues that there is no direct evidence in the Information to Obtain supporting that his residence is also his place of business. The only evidence is found in a conclusary statement in appendix B, paragraph 5, "Gustafson… does not have a place of business other than his dwelling house." R. v. Silveira supports the view that the right to privacy in ones' home is one of a fundamental nature. This supports the view that particular care must be taken by the state during the search and seizure process if the location to be searched involves a business that is operated out of a home.

[11] The final issue raised by the defendant is the linkages between the items to be search for, to both the offences and their location in Mr. Gustafson's home. The defendant asserts that many of the photographs that the MNR are relying on as part of their prosecution were already in their possession from a camera seized on October 27, 2009. As well, the defendant maintains that there is no evidence that client lists were indeed situated in Mr. Gustafson's home. They are only listed as part of the assumptions in paragraph 31 in the Information to Obtain. Since the seized client lists were used to identify potential witnesses for the prosecution, the defendant maintains that there are striking similarities as in the case of R. v Church of Scientology of Toronto, particularly in paragraph 79:

"…two of the seized documents…were used by the police in the investigation and questioning of the Crown witnesses and must have assisted the police in obtaining the cooperation…all of the ex-Scientologists were concerned that they might be arrested as a result of the evidence that would be discovered in the seized documents and this was an important factor in inducing them to co-operate with the authorities…"

[12] The prosecution maintains that there are countless references throughout Appendix B of the Information to Obtain that support the laying of charges involving Mr. Gustafson under the Fish and Wildlife Conservation Act. Some of the references are supplied by undercover officers and some supplied by employees of Mr. Gustafson.

[13] The prosecution relies on R. v. Sanchez [1994] O.J. No. 2260 paragraph 20 as the guidelines to be used when reviewing a search warrant. These include:

a. Quality of Drafting: …a peace office prepares the search warrant and information without the benefit of legal advice. The specificity and legal precision of drafting expected of pleadings at the trial stage is not a measure of quality required in a search warrant information.

b. Review of the whole document: The appropriate approach for judicial review … is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph…

c. Drawing reasonable inferences: … an issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious…In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and made deductions which might well elude an untrained person….Probable cause does not arise however from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of the investigation.

[14] Applying the analysis laid out in Sanchez, the prosecution stresses that the Information to Obtain needs to reviewed in its entirety. The MNR had undertaken a two year investigation involving the activities of Mr. Gustafson. Besides their personal knowledge of his business operation, they had also undertaken an undercover operation to solidify their suspicions and gather further evidence. Taken as a whole, the prosecution believes that the issuance of the search warrant did not breach Mr. Gustafson's s. 8 Charter rights.

A (i) Conclusion – Section 8 of the Charter

[15] The role of the Trial Justice is to determine whether the search warrant could have been issued based on four components:

a. is there credible, reliable evidence that the offence has been committed

b. do the items to be seized provide evidence of an offence

c. will the items to be searched for be found at the place to be searched

d. is the place to be searched at the location indicated.

[16] The burden of proving a Charter breach rests with the Defendant. As is the case with most s. 8 Charter applications, the Information to Obtain is often dissected until each word or phrase suggests a double meaning depending on one's point of view – defence or prosecution.

[17] In the matter before the Court, the Court is satisfied that two of the components required for issuance of the search warrant were contained within the four corners of the Information to Obtain.

a. There was credible and reliable evidence from both the undercover officers and the employees of Mr. Gustafson that possible offences had been committed.

b. There was credible and reliable evidence that Mr. Gustafson ran an outfitting business and as such would have business records that if seized could provide evidence of an offence. It is clear to the Court that these would include photographs of his activities and client lists – from both paper and digital sources.

[18] What is troubling to the Court is the lack of supporting evidence that Mr. Gustafson's business is located in his home. All that supports this assumption is a statement within Appendix B, paragraph 5 of the Information to Obtain. The Courts have been very clear that a person's home falls into the upper end of the privacy continuum and great care must be taken when that privacy is to be breached. In the matter before the Court, there was no additional evidence to support that 602 Sixth Street Fort Frances, Ontario was more than the defendant's home – no business cards, letterhead, advertising, telephone numbers – nothing to indicate that there was a business operated out of that address. Even when the undercover officers visited Mr. Gustafson's home on October 18, 2009, as described in paragraph 26 of the Information to Obtain, this was portrayed as more of a social call (an invitation for dinner) than a business call.

[19] Even taking into account the direction from Sanchez about drawing reasonable inferences from stated facts, the Court can not overlook that fact that there is no clear evidence that 602 Sixth Street, Fort Frances, Ontario is the business address of Mr. Gustafson's outfitting business, and as such it is unclear that the items to be searched for, which were essentially related to his business practises, would be found in that location. Based on this analysis, the Court makes a finding that Mr. Gustafson's s. 8 Charter rights were violated.

B. Exclusion of Evidence – Section 24(2) of the Charter

[20] The breach of a Charter right does not automatically result in the exclusion of evidence. In R. v. Grant 2009 SCC 32, the Supreme Court of Canada gave direction with respect to the approach to be adopted when considering what relief, if any should be granted pursuant to s. 24(2) following a Charter breach.

[21] S. 24(2) of the Charter reads:

Where…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 the circumstances, the admission of it in the proceedings would bring the administration of justice into dispute.

The exclusionary paradigm is now controlled by the analysis mandated by paragraph 71 in Grant:

…When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute…

B (i) Conclusion – Exclusion of Evidence – Section 24(2) of the Charter

[22] In the matter before the Court, there is no evidence that Conservation Officer McAughey acted in bad faith. Once he prepared the Information to Obtain, he had it reviewed by a colleague - someone who had some expertise in intelligence and investigation within the MNR. There is no evidence of factually, inaccurate information in the Information to Obtain and there is no evidence that detailed information on Mr. Gustafson's business was intentionally excluded. It seems more like there was a belief by the MNR that it was common knowledge within the community that Mr. Gustafson's business was in his home.

[23] Although some of the items seized, particularly the client lists, could have a detrimental impact on the Defendant's defence, they were not personal in nature and thus have a lower threshold for exclusion. Although plea agreements have been reached with 5 of the American clients in return for their testimony, this cannot be categorized as conscriptive evidence. The testimony is not that of the defendant and the MNR would not be able to compel their attendance at a trial without their permission and personal choice.

[24] Finally, the charges Mr. Gustafson is facing are very serious. Although not in the same category perhaps as criminal code charges, the allegations are at the upper end of the spectrum under the Fish and Wildlife Conservation Act. In R. v Collins, the Court suggests that a judge on a s. 24(2) application should consider not just the impact of admission of the evidence but also the impact of failing to admit the evidence. The public interest in uncovering the truth is strong in the matter before the Court. In Northwestern Ontario, inappropriate use of the natural resources can have a strong impact on both the public and private use of the resource for both economic and non-economic reasons.

[25] The Court finds that although Mr. Gustafson's s. 8 Charter rights were violated, the violation was minimal in nature. The MNR did not deliberately violate the defendant's Charter rights. The seized items raising the most concern were the client lists which have led to the statements and future testimony of the 5 American clients specifically with regard to 21 of the charges. Since this is non-conscriptive evidence and the offer to testify is given voluntarily, it has a limited impact on the Charter-protected rights of the defendant. Finally society's interest in an adjudication of this case on its merits is strong. The evidence is reliable and a key component to the prosecution's case.

[26] When balanced against each other, the limited impact of the violation on the protected interests and the importance of the evidence for the purposes of the trial favour admitting the evidence, specifically the physical items seized and the testimony of the 5 American clients.

Released: March 26, 2012

Signed: "Justice of the Peace P. Clysdale-Cornell"