Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Michel Gallinger and Michael Parks

Before: Justice Heather Perkins-McVey

Reasons for Judgment released on: August 13, 2012

Counsel:

• Ms. Marie Dufort for the Crown
• Mr. Robert Meagher for the accused Michel Gallinger
• Ms. Diane Condo for the accused Michael Parks

PERKINS-MCVEY J.:

Introduction

[1] Mr. Gallinger and Mr. Parks are charged with offences under s.86(3), s.88(2) and s.91(3) of the Criminal Code.

[2] The trial in this matter commenced with an application challenging the search warrant obtained by the Ottawa Police on February 4, 2011 to search the residence located at 24 Robinson Avenue, Ottawa, Ontario. The application brought on behalf of Mr. Parks alleges that the warrant was obtained without reasonable and probable grounds, that the affidavit sworn by Cst. Benard contained misleading statements and that there was a lack of full, fair and frank disclosure in the affidavit submitted to the issuing Justice. The applicant further argues that one or more of the necessary statutory pre-conditions to obtain the telewarrant did not exist and as such the warrant issued was invalid and the search was a warrantless search. The applicant argues that having established on balance of probabilities that the search was an unreasonable search and seizure pursuant to s.8 of the Canadian Charter of Rights and Freedoms that the physical evidence seized from the residence should be excluded pursuant to s.24(2) of the Charter.

[3] Specifically, they seek the exclusion of a Beretta handgun, six rounds of .22 calibre ammunition, a Taser gun, 2x12 gauge shotgun shells, and a quantity of Oxycocet pills. The onus of demonstrating that a breach has occurred rests with the party alleging the breach. They must show on a balance of probability that the breach has occurred. The same standard applies when considering the exclusion of the evidence obtained as a result of the breach.

[4] The Crown opposes this application arguing that the search warrant was valid, that there was no misleading evidence provided to the Justice of the Peace and that the necessary pre-conditions to obtaining the telewarrant existed. The Crown further argues that even if there was an unreasonable search that the evidence should not be excluded as any breach was a technical breach and that society's interest in an adjudication of the case on the merits weighs in favour of the evidence not being excluded.

[5] The only witness called on the application was the evidence of the affiant of the information to obtain the warrant, Cst. Nicholas Benard. It was agreed that both parties would have an opportunity to cross-examine the officer.

General Principles Regarding the Law of Search Warrants

[6] An issued search warrant is presumptively valid thus the accused bears the onus of demonstrating its invalidity R. v. Feldman (1995), 93 CCC (3d) 575 (SCC). This burden includes the obligation of establishing on balance the factual basis for the alleged breach.

[7] A constitutionally valid search must be based on reasonable and probable grounds. The reasonable and probable grounds standard does not required a finding that the relevant conclusions are more probable than not. The RPG or Reasonable Probable Grounds standard lies between suspicion and proof beyond a reasonable doubt. (R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 para. 37 (ONCA)).

[8] In Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 it was explained that "reasonable and probable grounds" arise when "credibly-based probability replaces suspicion." The reference to "credibly-based" probability reflects that the reasonable and probable grounds standard requires more than that the quantum of evidence is adequate to move from suspicion to a reasonable probability. Part of the assessment is whether there are adequate objective indicators contained in the "Information to Obtain" affidavit to conclude that the information offered is credible enough to be relied upon to support the conclusions: R. v. Debot (1989), 52 CCC (3d) 193 at p.215.

[9] In R. v. Floyd [2012] OCJ Justice Paciocco states at paragraph 9 "In sum, the "reasonable and probable grounds" or "credibly-based probability" concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the "sufficiency inquiry"), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the "credibility inquiry")."

[10] To determine whether there are reasonable and probable grounds the officer must on a subjective basis honestly believe that they have reasonable grounds to believe that an offence is occurring and that what is being sought is evidence that will be found at the place to be searched. If the affiant does not actually believe that the search warrant is invalid. This first inquiry is the "subjective" component of the reasonable and probable grounds standard (R. v. Storrey, [1990] 1 SCR 241 at 250). The second part of the inquiry is the "objective" component which requires that the affiant's belief that they have reasonable probable grounds must be supported by enough information to enable a reasonable person to come to the same conclusion.

[11] Not only must there be "reasonable and probable grounds" as described before a warrant can issue, those grounds must also be demonstrated to the issuing Justice.

[12] During a review of the validity of a warrant that has been issued, the reasonable and probable grounds standards are to be evaluated by the reviewing Judge with deference. This is because the legal responsibility for issuing the warrant belongs, in law, to the judicial officer who has been called upon to issue that warrant. As such, the standard on review is not whether the reviewing Judge would have found the relevant "RPG" on the basis of the information before the issuing Justice. The ultimate issue is whether the issuing Justice could reasonably find the grounds to be sufficient.

[13] The law does provide however for an amendment of the record by the removal of information or the amplification of that record with additional information (R. v. Araujo 2000 SCC 65, [2000] S.C.J. 65 at paragraphs 51-53 (S.C.C.)).

[14] The relevant principles set out by Court are as follows:

1. Bald, unsupported conclusions and erroneous or false facts should be notionally excised from the affidavit for the Information to Obtain (R. v. Araujo, paragraph 54).

2. Facts that should have been disclosed that weaken the significance or credibility of the grounds should also be taken into account as it is expected that during exparte warrant applications the affiant will make full and frank disclosure of the actual state of affairs. Where this has not occurred such facts can be considered by the reviewing Judge (R. v. Araujo, paragraph 57).

3. Amplification can occur where additional information that was available to the affiant at the time the "Information to Obtain" affidavit was sworn is inserted to correct errors or inaccuracies in the affidavit that have been made in good faith (R. v. Araujo, paragraph 57). This can involve the correction of misstated information. The sufficiency of the affidavit should thus be evaluated with this correction in mind. It should be noted however that amplification should generally only be used to add information omitted by error or oversight. (R. v. Araujo, paragraph 59).

[15] In Quebec v. Laroche (2002) 2002 SCC 72, 169 CCC (3d) 97 (S.C.C.) Justice Lebel again cautioned that amplification should not be used to cure defects that are fundamentally flawed.

[16] Once the record for review is settled, the function of the reviewing Judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant upon which the Justice could be satisfied that the warrant should issue (R. v. Araujo, paragraph 57). The reviewing Judge must examine the totality of the Information to Obtain affidavit. What the reviewing Judge must ultimately determine is whether on the affidavit as a whole given the quality of the information consulted, the Justice could properly have been satisfied that the warrant should issue.

Summary of the Evidence of Cst. Nicholas Benard

[17] Cst. Benard testified that he had been a patrol officer with the Ottawa Police from 2005 until sometime mid-January 2011 when he was transferred to the Guns and Gangs Unit.

[18] The warrant Cst. Benard prepared in this matter was his first warrant as the affiant and this was the first investigation where he was assigned as the lead investigator. He indicated that he prepared the telewarrant and the information to obtain the search warrant (hereinafter the ITO) himself with the assistance of a senior officer. He said that to prepare the warrant he had been given a couple of examples of warrants and that he used those to assist him in creating the warrant. He said he did have his Sergeant as well as a few other colleagues review the warrant prior to submitting it to the Justice.

[19] Cst. Benard said that he started gathering information for the warrant on January 25, 2011. He said that previously on September 1, 2010 Det. McKillop and Cst. Cleroux had received information from a confidential informant (CI #1) that a male by the name of Michael Parks was identified as being in possession of a handgun in his residence and was selling large quantities of crack cocaine. The CI #1 placed the accused Parks as residing in the area of Nicholas Street and Lees Avenue. At the time, neither Det. McKillop nor Cst. Cleroux were unable to prove or disprove the information, nor were any investigative steps taken to further corroborate the information they had received.

[20] Specifically CI #1 told police September 1, 2010:

• Michael Sparks, a white male
• 5'11" approximately 150 lbs
• Lives off Nicholas Street/Lees Avenue down by the city yard
• Parks is moving a large quantity of crack cocaine and is considered to be a back end supplier to street dealers
• "Parks is currently in possession of a handgun in his residence"

[21] In cross-examination the officer stated that he did not know if CI #1 had receive firsthand knowledge of this information or whether it came from a secondary source. The informant did not provide any description of the type of gun it was or what it looked like despite the fact that Cst. Benard stated in Section C of the ITO that CI #1 was very knowledgeable about guns. Cst. Benard agreed that on the information alone from CI #1 was not sufficient information to proceed with a warrant. Cst. Benard indicated that to his knowledge, from September 1, 2010 when the information was obtained until January 25, 2011 when Cst. Benard took over the file no other investigation of this information was conducted. When Cst. Benard took over the file on January 25, 2011 he conducted in house searches of databases to confirm Mr. Parks' address and found that he was living at 24 Robinson. He also reviewed past police occurrence reports involving Mr. Parks. He also verified that Mr. Parks did not possess a valid licence to possess a firearm.

[22] On January 27, 2011 Cst. Benard said, Cst. Cleroux spoke to a second confidential informant (CI #2) who advised Cst. Cleroux:

• Parks is 5'10" to 5'11", 150 to 160 lbs
• Parks lives on Robinson Avenue in Ottawa
• Parks is considered to be a "back end" supplier to street dealers
• Parks is currently in possession of a handgun in his residence observed within the last 3 weeks

This information was subsequently conveyed to Cst. Benard.

[23] The CI #2 did not provide any other details of how he came to know this information, whether it was firsthand information or any details or description of the gun.

[24] Cst. Benard said that there was no other investigation between January 27 and February 4, 2011 when the warrant was submitted. The officer said he started working on the ITO on January 27, 2011 but that he was too busy with other investigations to finish it until February 4, 2011. Cst. Benard stated that prior to drafting the ITO, he had no formal education about warrants and was not aware any of the case law surrounding warrants. Cst. Benard stated that although he had never done a search warrant course, he believed he had a basic understanding of what was required in a warrant.

[25] Regarding his subjective belief, Cst. Benard stated at p.27 of the transcript of his evidence "they submitted the information, which I believed to be true." "I thought that was sufficient for RPG." The officer said that the reasonable and probable grounds to issue the warrant came from the information from both the confidential informants as well as his in house searches of databases. There was no other investigation to confirm the information received from CI #1 and CI #2.

[26] On Friday February 4, 2011 Cst. Benard said he completed the ITO and attended at the Ottawa Courthouse to submit it as a regular Criminal Code warrant under s.487 of the Criminal Code. He said he brought the warrant to Justice of the Peace Souliere at the Courthouse. He said he was advised that there was a backlog at that point such that she wouldn't be able to review the warrant that day. At that point, Cst. Benard said he returned to the police station, met with his team as well as his Sergeant and the decisions was made to go ahead and seek a telewarrant. Cst. Benard said the he attended the Courthouse on Friday at 2:00pm. Cst. Bemard said he didn't tell the Justice of the Peace that the matter was urgent. He stated at p.79 of the transcripts in answer to his question "I don't believe so, I don't recall." Nor could he say whether or not he advised the J.P. that the warrant was for a firearm. His response at p.79 of the transcript "I think I mentioned it was for a firearm, but I'm not sure, I can't say for sure."

[27] Further when asked if he was aware that Judges could also sign warrants, he stated "to be honest, I wasn't really familiar with who at the time could sign it" (p.79 of transcript). Cst. Benard was asked at p.80 Didn't you ask your supervisor or other officers "Is there any other Justice of the Peace or is there anyone else who can sign it?" His response was that even today I wouldn't... "I inquired about it and I wouldn't have known to have gone anywhere else."

[28] Cst. Benard then decided to send the warrant to the Telewarrant Centre. The warrant was sought pursuant to s.487.1.

[29] On the telewarrant Fax Contact Form Cst. Benard advised that he is seeking a s.487.1 Criminal Code warrant for firearms. He stated the application was urgent. He specifies the reason for seeking a telewarrant as "This search warrant is for firearms. As such, I feel that there is a substantial risk to public safety and that matter should be dealt with as soon as possible."

[30] It is important to note he did not advise the Justice of the Peace of the urgency of that it was a gun and he believed there was a substantial risk to public safety.

[31] Further in Section "A" of the Executive Summary of the ITO, the officer swears:

"On February 4, 2011, Cst. Benard attended the Ontario Provincial Courthouse located at 161 Elgin Street in the City of Ottawa. Upon presenting the said CC487 search warrant to the Honourable Justice Souliere, Constable Benard was advised that due to a backlog of warrants on this date, the sitting Justice would not have time to read the warrant application."

[32] On February 4, 2011, the telewarrant was faxed at approximately 4:43pm to the Telewarrant Centre and returned signed by the Justice of the Peace Gerry Solursh at 5:15pm. The Justice of the Peace limited the search to February 4, 2011 between the hours of 5:00pm to 8:59pm. The Justice of the Peace authorized search for a handgun and ammunition. He deleted the request for authorization for documents.

[33] A briefing was held regarding the proposed search at 6:45pm. The Tactical Unit attended at the residence with an armoured car and took over the residence at 8:16pm.

[34] During the course of the search on February 4, 2011 it is indicated that police seized:

a) a Beretta handgun b) six rounds of .22 calibre ammunition c) a Taser gun d) 2x12 gauge shotgun shells e) A quantity of Oxycocet pills f) miscellaneous documents

[35] Mr. Parks and Mr. Gallinger were in the residence and were charged with the offences before the Court arising from the seized items located in Mr. Parks' residence.

Issues to be Determined

1. Whether the necessary statutory pre-conditions existed for the issuing of a telewarrant.

2. Whether police violated the time period set out by the warrant.

3. That even if the Court was relying on the unredacted ITO, given the failure to properly investigate the credibility of the CI's, on the basis of the evidence of Cst. Benard that the CI's information is not sufficiently reliable and the search warrant should not have issued.

4. Whether there was a lack of reasonable grounds or sufficiency of grounds to the warrant to be issued.

Grounds to Believe an Offence Has Been Committed

[36] The grounds as provided by section "G" of the warrant entitled "Grounds to Believe an Offence Against this Act has Been Committed" are:

1. That Cst. Benard conducted a computerized search of the Canadian Firearms Registry database in a CPIC and determined that Michael Parks is not a currently licensed firearm owner, doesn't have any firearms registered to him, no any registered to his known address, 24 Robinson.

2. Canada411 search of the address 24 Robinson Avenue, Ottawa, says this is the address of Michael Parks.

3. On September 1, 2010, CI #1 identified Michael Parks as being in possession of a handgun in his residence and further that he is moving a large amount of crack cocaine as a back end supplier for street dealers.

4. On January 27, 2011, CI #2 indentified Michael Parks as residing on Robinson Avenue in the City of Ottawa. CI #2 further stated Michael Parks is considered a back end supplier to street dealers and is in possession of a handgun which he has observed within the last 3 weeks.

[37] Essentially the grounds to issue the warrant comes from the two confidential informants as the only other investigation conducted by the investigator was the search of in-house police computer databases to confirm biographical information and to confirm he was not licensed to own a firearm. There was no surveillance of Mr. Parks or any other investigation to corroborate the information obtained from the confidential informants. The biographical information obtained does nothing to provide grounds to believe an offence has occurred. As such we are left with the assertions made by the CI's.

[38] There is very little known about what information either confidential informant gave to his or her handler. As indicated by Cst. Benard, it is unknown whether CI #1 had primary or secondary source information. Nor were there many details of their information which may have helped to buttress the veracity of the information provided.

Reliability of the Confidential Informants

[39] In the ITO, Cst. Benard states that CI #1 had previously provided information on known drug dealers, gang members which another officer had been able to corroborate as truthful using the in-house system. He also says this CI has previously provided information which resulted in the commencement of 2 separate firearms investigations in which a semiautomatic handgun was seized.

[40] Further, CI has also assisted with 2 ongoing firearms investigations and CI has also provided information in relation to three search warrants under the CDSA resulting in seizures and the arrest of accused persons.

[41] In section "C" of the ITO, Cst. Benard advises that CI #1 does have a criminal record and that he does not have convictions for perjury or treason. At paragraph 11 of section "C" of the ITO, it is said that CI #1 is entrenched in the criminal subculture and is familiar with what firearms look like and questioning by Det. McKillop of CI #1 confirms that he is knowledgeable with regards to the procurement, concealment, use and price range with regards to both drugs and firearms.

[42] I am concerned there is no indication in the ITO of how the circumstances under which CI #1 learned the information regarding Mr. Parks, or if the information given to police September 10, 2010 was first or second hand information. Further although we are told CI #1 has a criminal record, and none for perjury or treason, we are not told what his or her record does contain or whether he or she has any outstanding charges. We don't have any information which might affect why CI #1 is motivated to help police. We are not advised whether CI #1 is motivated to provide police information for consideration in relation to outstanding charges or whether payment was exchanged. Under cross-examination Cst. Benard indicated he knew nothing about CI #1 other than was in the ITO. Cst. Benard notes that CI #1 is very knowledgeable about guns yet he provides no description about the gun he says Mr. Parks has at his residence.

[43] It is of no value to be told CI #1 does not have convictions for treason given the rarity with which persons are ever charged or convicted of such an offence. There is a real paucity of information from CI #1, and there is such lack of detail that it is objectively difficult to evaluate on an objective basis how this information can support objectively the reasonable and probable grounds.

[44] CI #2 is said to have provided information on known drug dealers, and persons in possession of firearms, which Cst. Benard says he has been able to corroborate as being truthful using the in-house system as well as speaking to other investigators. A similar boiler plate phrase is used in paragraph #6 of section "C" of the ITO regarding CI #1. Similarly he makes the same comment regarding CI #2 as CI #1 that CI #2 does have a criminal record and does not have convictions for perjury or treason. Once again this information does not assist as few but Louis Riel have been tried for treason in Canada. Also we have no evidence from Cst. Benard from his vive voce evidence that he did any investigation of CI #2.

[45] In cross-examination the officer said he relied on the information given to him by Det. McKillop and Det. Cleroux. At p.23 of the transcript the officer says that after he received the information from Det. Cleroux there wasn't anything else to do. Cst. Benard said that he never met CI #1 or #2 and that all information came from the detectives.

[46] Cst. Benard could not give any further information about CI #2 yet in the ITO, he says at paragraph 13 section "C" that he was the one who did the checks of CI #2 to corroborate that the information was truthful. He also stated he did background checks including a criminal record check on CI #2. It is of concern that he swears to this in the ITO yet says at pages 23 and 27 of the transcript he says that he simply took the information from Det. McKillop and Det. Cleroux, and under questioning could not expand on that information. The statement at section "C" paragraph 15 is almost identical to what was stated at paragraph 10 regarding CI #1, and appears to simply be a boiler plate statement. We know nothing of the specifics of CI #2's criminal record. Given the rarity of convictions for treason, it is not surprising that neither CI #1 or #2 have convictions for treason. We do not know if "he" has a record for other offences of dishonesty, nor do we know if "he" has any outstanding charges or whether "he" was motivated to provide information to gain advantage in regards to outstanding matters. Nor do we know if "he" was paid in any way for the information given or if he was simply motivated as a concerned citizen.

[47] Knowing the details of the records of CI #1 and #2 is directly relevant to the determination of their credibility. Under the Canada Evidence Act s.12 any criminal conviction, including an offence of perjury or treason or any offence of dishonesty is considered to be directly relevant to the credibility of witnesses. It is particularly important that the issuing Justice have this information given that the information from CI #1 was 4½ months old and the source is unknown, and the information devoid of details. Also there is no corroboration of the information apart from confirmation of biographical information and that he didn't have a firearms license.

[48] Similarly the information of CI #2 is not detailed, and even that information was at least 3 weeks out of date when given January 27, 2011 and almost a month old when the issuing Justice was reviewing the ITO. Further CI #2 was a relatively untested informant.

[49] It should be noted that when an affiant receives information from another person or officer and relies upon it in a ITO affidavit, the issuing Justice is being presented with hearsay. It is appropriate for affiants to rely upon hearsay, including hearsay information provided by confidential informants, provided that in the totality of the circumstances, it is reasonable to rely upon those informants.

[50] Factors that should be considered in evaluating the reliability of confidential informants were described in R. v. Debot (1989) 52 CCC (3d) 197 at 215 (SCC):

"First, was the information ... compelling? Second, where that information was based on a "tip" originating from a source outside the police, was the source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?"

[51] The extent to which information is "compelling" turns on the details or precision of those details offered. The credibility of the source is based on what is known about the informant. Corroboration secured through observations by the affiant or other officers, can be information that reasonably enhances confidence that the information is true.

[52] In the case before this Court the degree to which the information is compelling would be compromised in the eyes of a reasonable Justice by a number of factors:

a) CI #1 is not said to have personally made the observations in question. Cst. Benard could not say whether it was primary or secondary source information. CI #1 could therefore be presenting double hearsay information if "he" obtained the information from others of questionable credibility. As indicated by R. v. Bassett at paragraph 21 "the credibility of an informant cannot be assessed if the origin of the information is unknown."

b) CI #1 was said to have alot of knowledge of firearms yet no description or details about the "firearm" are given. That would cause one to question whether this firearm was ever actually seen by him.

c) CI #1 does not provide precise details and doesn't even know the street where Mr. Parks lives. Further no details are given regarding the circumstances under which he learns the information. Therefore there is little foundation for believing that illicit activity is occurring.

d) There are no details about CI #1's criminal record other than that he has not been convicted of treason or perjury. We do not know if he has offences of dishonesty or other offences which may cloud "his" credibility. We are not advised whether "he" had outstanding charges or what motivation he may have had to provide the information.

e) The information from CI #1 is provided September 1, 2010 and as such given that no investigation was done to corroborate the information, it was very dated by February 2011. Also in reviewing the information given, it is unclear when CI #1 or another actually made or obtained the information he provided. The timing of the information and the currency of the information is always a factor in relying on such information.

f) CI #2 has been known to Cst. Cleroux since 2007 yet in those five years the information has only lead to 4 arrests. There is no information about the nature of those arrests or charges or if convictions were made. He has never provided information used in a search warrant.

g) There are few details given to provide the foundation for believing that illicit activity is occurring. He gives no details or description regarding the gun or the drug activity. In R. v. Jacobsen, [2006] O.J. No. 1527 at paragraph 16, the Court found a tip to be not compelling because there was nothing to indicate the informer's source of knowledge.

h) I am concerned that the officer says that he did the in-house checks to confirm the CI #2's information as being truthful and that he conducted the criminal record check on CI #2 yet under questioning could not answer anything about CI #2 and said everything he knew about CI #2 and #1 he obtained from Cst. McKillop and Cleroux. It is also noted that the affiant appeared to use identical wording in describing what was done to corroborate the information as being truthful and as well when describing the criminal record of CI #1 and CI #2.

i) There are no details provided regarding CI #2's criminal record or whether he has any outstanding charges. No information is provided about "his" motivation for coming forward or whether he was seeking payment or consideration for outstanding charges. Without information about the record the issuing Justice would have to bear in mind that there may well be indicia of unreliability present in the form of undisclosed criminal antecedents or motives. The same concern would apply to CI #1.

j) The information given by CI #2 on January 27, 2011 was already 3 weeks old, so would have been a month old when considered by the Justice. Given the ease with which a small item like a gun can be transferred this information is dated albeit less so than CI #1's.

k) There was no police investigation of CI #2's information which would have corroborated the information. The only corroboration was no more than a search of databases for biographical information regarding Mr. Parks.

Timing of the Warrant

[53] The defence argued that the police remained in the residence past 8:59pm the time set out by the telewarrant and that this continued presence was a violation of the warrant. I find that there was no violation as the police clearly entered the residence within the prescribed time frame. As set out in R. v. Woodall [1993] O.J. No. 4001 (OCA) the warrant authorized entry by that time. It did not require exit by that time. This principle was recently supported in the decision of R. v. Rafferty 2012 ONSC 703, [2012] O.J. No. 2132 at paragraph 28:

"The law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises."

[54] There is no factual basis to support these concerns and the applicant's argument on this issue cannot succeed.

Validity of the Telewarrant Under s.487.1

[55] Under s.487.1 a telewarrant may issue:

"Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication."

[56] All factors having to do with time exigencies availability of a Judge or Justice have to be assessed in relation to the urgency of resorting to the exceptional measure of a telewarrant.

[57] Courts have found that if there is no foundation for the issuance of a telewarrant the search conducted must be deemed warrantless and therefore unreasonable and in breach of s.8 of the Charter.

[58] In R. v. Bresseau [2003] O.J. No. 5894 Justice Merridew says at paragraph 11:

"To assess the impracticability of seeking a warrant without a sworn information, all the factors having to do with time exigencies and Justice of the Peace or Judge availability, have to be assessed in relation to the urgency of resorting to the exceptional measure of a telewarrant. The judicial officer must be able to assess that practicability and for that purpose must find the relevant facts in the information."

[59] In R. v. Erikson 2003 BCCA 693, [2003] B.C.J. No. 2982, the British Columbia Court of Appeal attempts to define the word "impracticable" in s.487.1. At paragraph 33, the Court says that "impracticable" means something less than impossible and imports a large measure of practicality, what may be termed common sense.

[60] In this case, the evidence regarding the circumstances surrounding the issuing of the telewarrant commences at page 77 to page 83 of the transcript evidence of Cst. Benard.

[61] Cst. Benard indicates that until he had information from CI #2 there were insufficient grounds to issue the warrant. On January 27, 2011 he received the information from CI #2 and says he then believed there were reasonable and possible grounds to issue the warrant. Cst. Benard said he was busy with other files so he didn't have the chance until February 4 to complete and submit the warrant for review. Cst. Benard in his vive voce evidence agreed that January 27, 2011 was a Thursday and that it took 8 days for the warrant to have been issued since he formed his grounds. This very passage of time over a weekend, January 28 and 29, must call into question the urgency of the situation. Also he had no information the gun was to be moved or used in any way. His evidence regarding the urgency that there was a weekend approaching and he feared the gun would be used or moved. Yet he didn't have the same concerns the previous weekend and had no information to support this belief.

[62] On page 77, he is asked "So for these eight days ... you don't find that the public safety is at risk enough to go have the warrant issued?" His response was that they were busy with other investigations. He said it was above his level of decision making to prioritize this warrant over other cases.

[63] Cst. Benard said that once the warrant was completed on February 4, 2011, he went to the Courthouse to submit it as a regular warrant under s.487 at 2:00pm. He said he brought it to Justice of the Peace Souliere who he says advised that there was a backlog and that she wouldn't be able to review it. Det. Bernard said at that point he returned to the stationed after meetings with the team and his Sergeant it was decided to go ahead with a telewarrant.

[64] In evidence at page 78, Cst. Benard indicated that he didn't think he advised the Justice of the Peace that the warrant was urgent and could not say whether he said that it involved a gun. He was not aware that Judges could sign warrants. He indicated "To be honest, I wasn't really familiar with who at the time could sign it." When asked "Didn't you ask your supervisor or other officers" is there anyone else who can sign it? His reply in part was "So I mean, I don't really know. Even since then, I wouldn't. I've inquired about it and I wouldn't have known to have gone anywhere else."

[65] Despite taking 8 days to complete the warrant and despite having no information the weapon was going to be moved and despite not telling the Justice of the Peace it was urgent, Cst. Benard told the telewarrant Justice of the Peace it was urgent. I do question how the situation all of a sudden became urgent just hours after leaving the courthouse except that urgency is necessary to get a telewarrant.

[66] I find that the legislative provisions were not followed and no do the circumstances reflect that it was impracticable to appear personally before a Justice. Specifically the telewarrant should not have been granted, as the urgency and availability components of the test of practicability have not been met.

a) On January 27, 2011 the information from CI #2 is received and the officer says he was reasonable and probable grounds to submit the warrant. Yet for 8 days nothing is done. The officers say the fact of a coming weekend raised concern that they needed to get the gun off the street. Yet seemingly there should have been concern about the weekend of January 28, 29 and 30 yet there was not. The officer said at no time did he receive information that the gun was going to be used or more. Clearly no urgency or exigencies existed or the warrant would have been submitted earlier.

b) The ITO affidavit says in the telewarrant application that no Justice of the Peace was available. The officer didn't even tell Justice of the Peace it was urgent or identifying it was a warrant for a gun. He did not inquire if there was any other Justice available to sign the warrant.

c) The officer did not know that Judges can sign warrants or that other Justices of the Peace might have been available in urgent circumstances. It was the officer's responsibility to inquire and to advise of the urgency if it was urgent and to inquire if other Justices of the Peace or Judges were available.

[67] The evidence of Cst. Benard shows an ignorance of basic search warrant law and a casualness of approach regarding the legal requirements of warrants under s.487.1. The officer did not tell the Justice of the Peace at the Courthouse it was urgent yet indicates it is to the telewarrant Justice of the Peace some 2 hours later. He did not ask if there were other Justices of the Peace or Judges available. The facts of this case do not support the submission that there was any urgency or necessity involved in executing the warrant. It was not impractical for Cst. Benard to get a warrant.

[68] Given that the legislative standard for issuing the telewarrant was not met, the warrant issued was not a valid search warrant and the search of Mr. Parks' home was a warrantless search and a breach of s.8 of the Charter.

Other Issues Surrounding the Sufficiency of the Warrant

[69] Counsel on behalf of Mr. Parks argued that in addition to the issues surrounding the credibility of the two confidential informants and the paucity of detail in the information provided, that there are additional problems with the warrant in the background information provided to the issuing Justice. Counsel argued that this section of the ITO is either purposefully misleading or that the ITO is so carelessly drafted that it had the effect of misleading the issuing Justice. The test of course is not that it be strictly misleading but that there is a lack of full, fair disclosure of Cst. Benard.

[70] It is conceded in the vive voce evidence that he agreed he should have been more careful in his drafting of the ITO and warrant. He agreed that there were inconsistencies in his portrayal of the information he received. He also agreed when he was particularly cross-examined about section "F" of the ITO that in paragraphs 7 to 16 he should have provided the dates there events occurred rather than simply putting the Ottawa Police report number in small italics at the end of the paragraph. He agreed he could have been clearer.

[71] Further he agreed that some of the dates in the OPS report numbers were wrong and may have led to the Justice to believe that this event in paragraph 10 occurred in 2010 when in fact in occurred in November 2009. This paragraph is indeed somewhat misleading because it appears the threats involve Mr. Parks and that he may have been present. It takes careful review to determine that in fact Mr. Parks is not said to be present. That paragraph is indeed misleading and is highly prejudicial against the accused. We do not even know who did make these statements, and whether he had a connection to Mr. Parks. There is no way to objectively assess the reliability of these statements and given Mr. Parks was not directly involved should not have been included.

[72] Similarly in paragraph 7, the office should have indicated that no charge was laid. By not stating that it leaves the suggestion that a charge was laid. It should be noted no gun was located.

[73] In paragraph 9 of this section, the officer agrees that it was an oversight on his part that he put down the date of a later recognizance rather than the date of the offence. As a result of this oversight the information would have appeared more current than it actually was. The actual date of this arrest is June 15, 2010, not October 4, 2010 as shown in the ITO. The use of the later date may have misled the issuing Justice into believing this event occurred closer in time to the warrant than it was.

[74] The issue is whether this careless drafting by the officer reaches the level of carelessness spoken of by the Ontario Court of Appeal in R. v. Dhillon 2010 ONCA 582.

[75] If one reviews this information to obtain in its entirety, and considers the careless and at times misleading drafting, as well as the problems with the confidential informants as previously set out including the issues with the telewarrant, clearly there was a lack of frank and full disclosure. In consideration of all these issues, I fund that there were not sufficient reasonable and probable grounds for the warrant to issue and that the search amounted to a warrantless search of Mr. Parks' residence in violation of his right under s.8 of the Charter. The lack of statutory grounds to obtain the telewarrant is the more flagrant breach of the accused's rights however.

Section 24(2)

[76] As there has been a finding that the accused's rights under s.8 have been violated, the only remaining issue is whether the evidence should be excluded.

[77] In R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2) in determining whether evidence should be excluded, all the circumstances must be considered to determine whether the admission of the evidence would bring the administration of justice into disrepute. The Court stated at paragraph 71:

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.

[78] The focus of the inquiry is the long term effect on the administration of justice by the admission of the evidence.

[79] As the Supreme Court of Canada stated, at paragraphs 68 to 69 in R. v. Grant:

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

[80] Finally, at paragraph 70 of R. v. Grant, the Supreme Court of Canada says:

"...s.24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s.24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system."

[81] First, I turn to the Seriousness of the Charter-Infringing State Conduct. When assessing the Seriousness of the Charter-Infringing State Conduct as it relates to the issue of whether to admit or exclude evidence, the underlying rationale is that courts should consider whether admitting evidence obtained in breach of the Charter would be seen as courts approving of Charter-infringing state conduct. The more serious the Charter-infringing conduct, the greater the need for the Court to distance itself from the conduct by excluding the evidence. Conversely, the less serious the misconduct, the less the need for a court to disassociate itself from that conduct by excluding the evidence.

[82] The inquiry is not an abstract one, but an assessment of what actually occurred in a given case. The range of potential conduct that may violate the Charter is wide, from deliberate or egregious at one end to technical acts committed in good faith at the other end. In this case, the Crown argues that the officer acted in good faith and this reduces the seriousness of the Charter-infringing conduct.

[83] Discussing the blameworthiness of the breach, the Court said at paragraph 75:

"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith... It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence and leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[84] In the case at bar, there is no real dispute between the parties in relation to the second and third prongs of the Grant test, the Crown properly concedes that the impact of the breach on the Charter protected interest of the accused is high and that this prong militates in favour of exclusion of the evidence. The police entered the accused's private residence with the Tactical unit who arrived with an armoured car which was parked in the accused's driveway.

[85] It is a well established fact that a dwelling house attracts a high expectation of privacy and that an illegal search of a person's residence constitutes a significant breach of the person's right to be free from unreasonable search and seizure: R. v. Silveira (1995), 97 C.C.C. (3d) 450 (S.C.C.) at paragraph 148. A dwelling house has a unique place in law and attracts a high level of expectation of privacy.

[86] Furthermore, at paragraph 78 of Grant, the majority stated "an unreasonable search that intrudes on an area in which the individual reasonable enjoys a high expectation of privacy ... is more serious than one that does not. In this case, the intrusive illegal search of the appellant's home is a factor that points strongly to exclusion of the evidence of the seized items.

[87] Looking at the third prong of the Grant test, counsel for Mr. Parks did not disagree that this strongly militates in favour of inclusion of the evidence. Mr. Parks is facing serious charges in relation to a firearm and ammunition found in his residence.

[88] The gun seized is reliable evidence and is clearly important and necessary for the Crown to prove its case. Moreover the offences are serious and as the Crown argues go to the very heart of public safety. There is a heightened public interest in trying firearms cases on their merits particularly given the increasing and very public gun problem in this province and in this region and the very real risk guns pose to public safety. On the basis of an analysis of the third criteria, there would be strong consideration for inclusion of the evidence.

The Seriousness of the Breach

[89] The main factor for consideration in this case is whether the evidence should be excluded on the basis of the seriousness of the Charter-infringing conduct.

[90] As was noted in R. v. Dhillon 2010 ONCA 582, 2010 OJ No. 3749 (C.A.), at paragraph 45, the first line of inquiry under the Grant test "requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts ... effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct."

[91] It is incumbent on trial Judges under this first prong to assess the seriousness of the violation in terms of the "gravity of the offending conduct by state authorities." The seriousness of the state-offending conduct lies along a continuum where on the one end the evidence is obtained through inadvertence or minor violations and at the other end evidence is obtained through wilful or reckless disregard for Charter rights. As was noted in R. v. Grant, supra, at paragraphs 73-74, state conduct falling on this latter side of the spectrum will "inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute."

[92] Crown counsel argued that the police conduct in the case of Mr. Parks was not serious. She argued that the officer made relatively minor drafting mistakes when he failed to make detailed inquiries about the credibility/reliability of the confidential informants and in his drafting of the ITO. She argued this is a technical breach that does not warrant a finding of negligence, careless disregard for Charter rights or bad faith. There was ample evidence, she argued, that officers acted in good faith:

a) The affiant accepted the information about the reliability of the informants from experienced officers

b) The affiant sought and obtained a warrant

c) The officer was inexperienced and by the drafting errors in the ITO did not intentionally mislead the issuing Justice and nor were they untruthful. She argues those drafting deficiencies wouldn't have caused the warrant not to be issued and that even with removing those paragraphs there remains sufficient information to issue the warrant.

d) The Crown argues if there is a breach it is a technical breach as there is no evidence of a specific omission. That the breach for not obtaining a telewarrant would not warrant the exclusion of the items seized.

[93] Counsel for Mr. Parks argued that the officer's conduct is serious and negligent, that it demonstrated a careless disregard or lack of knowledge of constitutional standards and that it had the effect of misleading the issuing Justice. The arguments raised are that Cst. Benard's failure to make complete and proper inquiries about the credibility of the confidential informants and the careless and imprecise wording in the ITO would have mislead the issuing Justice and further the level of recklessness and carelessness in the drafting shows a disregard for constitutional standards.

[94] In assessing the seriousness of the state conduct, the Court must consider all the reasons that there has been found to be a breach of the accused's rights. In this case, there has been found to be a careless and casual approach in adherence to Charter standards in the obtaining of the telewarrant. The reason that there are specific statutory requirements in order for an officer to be able to take the exceptional step to deviate from the requirement to attend before a Judge is that attending before a Justice is seen as a constitutional safeguard that should not be set aside lightly. While the evidence does not show that the officer set out to deliberately violate the accused's rights, it does establish that the officer was at least ignorant of the relevant law or casual or careless in his execution of this important function. I am concerned that an officer who took 8 days to draft the warrant, who didn't tell the Justice it was an urgent warrant, may not have ever said it was a search for a gun, all of a sudden was able to tell the telewarrant Justice it was an urgent warrant. It may have been necessary to say that but there was no evidence to support that claim given the staleness of the information and his own delay in getting the warrant to a Justice.

[95] Further concerns are in the lack of corroboration of the information from the confidential informants, as well as the lack of detail obtained from those informants makes the conduct more serious. In addition, although the Justice specifically removed authorization to search for documents, there is evidence that documents were seized. This also shows a casual disregard for the rights of the accused. At all times it must be born in mind that the officer was seeking to search the accused's house. As indicated in R. v. Sutherland 2001 SCC 2, 150 CCC (3d) 321 at paragraph 13, Justice Carty states "a search of a dwelling must be approached with a degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected."

[96] As indicated, although the officer may not have acted in bad faith, nor can it be said that he acted in good faith. As stated in Grant at paragraph 75 "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith." Cst. Benard's casual and careless approach to adherence to Charter standards are such that the Court must disassociate itself from such conduct. Hence I find it to be a serious violation of the accused's rights and one which favours exclusion of the evidence. As stated in Dhillon at paragraph 51 "in these circumstances, the level of police carelessness can only be characterized as significant. Although not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid search warrant must nonetheless be placed on the serious side of that spectrum." I find those words apply in Mr. Parks' case.

[97] Although unlike in the Dhillon matter, we don't have mistreatment of emails or surveillance. On listening to the affiant officer, I find he had no real appreciation for what his obligations were when relying on informant information and his obligations in law in obtaining a telewarrant.

Balancing the Three Factors

[98] The type of balancing required under section 24(2) of the Charter is qualitative not quantitative in nature. The balancing must consider the effect of admitting the evidence on the long term repute of the administration of justice (R. v. Harrisson, 2009 SCC 34, [2009] 2 S.C.R. 494).

[99] This is not just a case of a technical breach due to minor drafting mistakes. Nor is this a case, in my view, where the warrant missed the mark by very little. In my assessment of the evidence, the affiant was careless in so many ways in drafting the ITOs that his conduct amounts to recklessness.

[100] I am mindful that the officer did seek to obtain a warrant. However, the officer still had to make sure he was in possession of reliable information that the accused was in current possession of a firearm. In this case, the officer did not take the steps necessary to ensure compliance with constitutional standards or that there was reliable and credible information that Mr. Parks was in possession of a firearm.

[101] There are a number of cases where in circumstances such as ours where the evidence is excluded. Particularly the case of R. v. Campbell [2009] O.J. No. 4132 (S.C.J.). In that case, Marrocco J. refused to exclude guns and ammunition found in Mr. Campbell's residence despite the fact that the police obtained a warrant to search his residence without taking any steps to corroborate the tip of an untested informant. In my view, there are a number of significant differences between the case at bar and R. v. Campbell that allow me to distinguish that decision. Firstly, the trial Judge found that while the officers did not take sufficient care to ensure that there were reasonable grounds for the warrant, he still found that the officers acted in good faith. In the case at bar, I have found that the level of recklessness of Cst. Benard in preparing the ITO precludes the Crown from relying on the good faith of officers. Moreover, in Campbell, the offences were arguably more serious. The police seized three firearms, 241 rounds of ammunition for different calibre weapons, a knife, a substantial amount of money, crack cocaine, and almost 500 grams of marijuana. In the case at bar, the police found one firearm, ammunition and some Oxycocet. In my view these differences are significant to the overall balancing of the Grant factors.

[102] In the case at bar, I have found the conduct of the police was a serious breach and that the impact on the accused was significant given that it involved an unauthorized search of a private residence. In my view, this is the kind of conduct the Court should be disassociating itself from. I appreciate the evidence is highly reliable and that the Crown's case will likely fail without it. I am also acutely aware that there is a real societal interest in prosecuting gun cases. But in this case, the level of carelessness and casual disregard for Charter standards is such that in my view, admission of the evidence would bring the administration of justice into disrepute. Therefore the evidence found inside Mr. Parks' residence seized pursuant to the search will be excluded.

Released: August 13, 2012

The Honourable Justice H. Perkins-McVey