Citation: R. v. Bampoe, 2013 ONCJ 355
COURT OF ONTARIO
ONTARIO COURT OF JUSTICE
(Toronto Region)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and-
DOUGLAS BAMPOE
Applicant
Before Justice M.A. Zuker
Heard January 29, 30, February 4, March 1, 13,
April 24, 25, 26, and May 10, 24, and
June 5, 26, 2013
Reasons for Judgment released June 26, 2013
A. Nisker ……………………………………………………………for the Crown
T. Revutsky …………………………………………………For Douglas Bampoe
The Applicant has brought an application for an Order declaring that the Applicant’s rights under the Canadian Charter of Rights and Freedoms have been violated and that all evidence obtained as a result of the breaches be excluded pursuant to s. 24(2) of the Charter.
The Applicant stands charged with:
a) Possession of a controlled substance, Cocaine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
b) Possession of Proceeds of Crime, money, contrary to s. 354(1) (a) of the Criminal Code of Canada.
THE FACTS:
As a result of information received from a confidential source, members of the Toronto Police Service began observations of a convenience store located literally between 190 and 200 Exbury Road in the city of Toronto. Detective Constable John Burrell observed Douglas Bampoe working at this store on March 5, 2012. Mr. Bampoe was seen unloading groceries from a silver Lexus on the day in question at this location.
Information provided to the police by a confidential source, was that someone was selling drugs from the Exbury convenience store location. On March 7, 2012, at approximately 11:15, the police observed two unidentified persons enter a building located 51 St. Regis Crescent. The door on the east side of the building had been accessed by two individuals who had entered the premises. Bampoe was believed to be trafficking from his “residence” at 51 Regis Crescent, second floor. He had been seen unloading items from the vehicle. Bampoe drove away from this location in a silver Lexus which was parked out front.
The address for the Applicant is listed on his record of arrest as 35 Fountainhead, #504, Toronto, Ontario, M3J 2V7. According to police notes, the Applicant was stopped at 11:30 a.m. on March 7, 2012, driving a vehicle not belonging to him. The police applied for a search warrant to search the address of 51 St. Regis Crescent, Toronto, Ontario. The warrant to search does not specify the vehicle to be searched but does specify the address of 51 St. Regis Crescent.
The vehicle driven by Mr. Bampoe was stopped by members of the Toronto Police Service a few minutes later. He was detained and his vehicle was searched. He was handcuffed in a locked marked police cruiser. The police “justified” the search of the silver Lexus either as a search incident to arrest, or by the information provided to them at a briefing held earlier that day. They believed they had reasonable and probable grounds to arrest Mr. Bampoe and search the vehicle he was driving. The police had no search warrant when the search of the vehicle took place.
During the search of the silver Lexus, the police located some 11 keys, four keys on a key ring with a yellow tag, two loose keys, a Volvo car key and two other key rings, one with three keys with a white tag, and another key ring with two other keys. It is submitted that the police appeared to focus only on the key ring with the four keys with the yellow tag. Mr. Bampoe’s driver’s license was located which indicated his home address as 35 Fountainhead Rd., Apt 504. The silver Lexus was returned later that day to its owner, Antoinet Mitchell.
A judicially authorized Warrant to Search the premises at 51 St. Regis Crescent in Toronto and a vehicle driven by the Applicant, was authorized by Justice of the Peace D. Robinson on March 7, 2012 to search and seize between 1:45 p.m. and 6:00 p.m. on March 7. As per disclosure provided by the Crown, on March 7, 2012 officers from TPS executed a Warrant to Search the residence located at 51 St. Regis Crescent, and searched a vehicle driven by the Applicant. The Applicant was subsequently arrested and charged in relation to offences flowing from the possession of controlled substance at that residence.
The applicant submitted that the affidavit of Detective Constable Sean Sutton failed to establish the grounds necessary for the issuance of the Search Warrant in that he relied on misleading statements and failed to establish whether a reasonable alternative source of obtaining the information may have been available.
A search warrant for the address of 51 St. Regis Crescent, 2nd floor, was ultimately Granted. The ITO of the warrant stated the most of the information was provided by an undisclosed confidential source. The warrant was executed by team of officers from approximately 2:05pm at one of the units of the second floor of 51 St. Regis Crescent.
This residence consists of two stories and has some four apartments on the second floor. In one of these four apartments the police located money and drugs. Access to apartment on the second floor at 51 St. Regis was gained by opening the door located on the first storey of the building, and then by opening two other doors located on the second floor.
As a result of the search of the unit in question, the police seized 65.64 grams of crack cocaine, money, and items which the police described as drug paraphernalia. The police also did not seize any items which personally identified occupant(s) of the unit. The unit was not marked with a unit number.
The Crown has acknowledged Douglas Bampoe’s s. 9 Charter rights were violated when he was arrested or detained driving the silver Lexus at 12:30 on March 7, 2012. The applicant submitted that the search incident to an unlawful arrest breached Mr. Bampoe’s s. 8 Charter right. As result these violations, the Court must engage in what has become known as the Grant analysis, to determine if the keys located in the silver Lexus and money on Mr. Bampoe’s person, obtained in violation of his s.9 Charter right, if admitted, would bring the administration of justice into disrepute.
If the keys which were found in the centre console area of the vehicle and the money which was found in his pocket are both excluded, the inferences the Crown asks the court to consider would be difficult to prove.
The applicant submits that police did not pursue other reasonable avenues to obtain information with respect to the controlled substance. The information to Obtain the Warrant to Search (hereinafter, the “ITO”, appended hereto as vetted by the Crown Attorney) states that reasonable grounds existed to believe that the following items would be located in the premises at 51 St. Regis Crescent, namely: Canadian Currency and Possession of Controlled Substance. The Affiant claims, that the reasonable ground are “based on and obtained through investigation, surveillance conducted by the investigative team …” followed by a redaction. The affiant does not indicate any factor which would demonstrate reliability of the received information. The source of information indicated that the Applicant might not be the person of interest to the police.
It is submitted that what was located in the silver Lexus be excluded by the Court. The defence submits there was an arbitrary detention or unlawful arrest of Douglas Bampoe at 12:30 p.m. on March 7th, 2012, as the police had no reasonable and probable grounds to arrest him or grounds to detain him and search the vehicle he was driving.
Should the Court rule to exclude the keys located in the vehicle based on a “Grant analysis”, the defence submits this ruling would end the trial, and Mr. Bampoe should be acquitted of the charges. Also, the money, some $400.00, should not be dealt with in isolation.
The Crown has conceded the search warrant as redacted for 51 St. Regis Crescent, 2nd floor, did not provide sufficient grounds to issue. As Mr. Bampoe asserted no privacy interest in the address of 51 St. Regis Crescent, 2nd floor, the defence declined to argue a violation of his s. 8 Charter right.
If the Court’s ruling is not to exclude the keys and money located in the silver Lexus as a result of Mr. Bampoe’s s. 9 and s. 8 Charter violations, the defence submits he should nevertheless be acquitted of the charges before the Court. Mr. Bampoe submits the Court cannot be satisfied beyond a reasonable doubt that the unit searched where the cocaine and money was located has a compelling and persuasive connection to the accused. It further submits many doubts were raised regarding the veracity of the evidence presented, as to Mr. Bampoe’s culpability. He is therefore entitled to benefit from the doubt raised by the whole of the evidence, and should be found not guilty of the charges.
Officer Sutton was the affiant (Ex. 17) for the search warrant, surveillance officer & participated in the search warrant and execution. He was present for the search for some 30 minutes. He searched the kitchen area only. A video was taken before he arrived. As the affiant this officer swore to the following information:
• Information received in February, 2012, another officer, provided him with information from a confidential source with a criminal history, that a male in his 30’s, bald, short, medium build who drives a silver Lexus SUV, sells crack cocaine from a convenience store at the Exbury Road buildings;
• general information from “CPIC” searches is included in the officer’s affidavit regarding Mr. Bampoe;
• In front of the store, he made observations of Douglas Bampoe on March 5th, 2012 who appeared to be working at a 200 Exbury Road convenience store, unloading groceries from a Lexus; He bought Belmont cigarettes from the accused;
• at 11:15 am on March 7, 2012, officers observed the silver Lexus was parked in front of the building at 51 St. Regis Crescent; the police further observed two persons entered this building on the east side;
• he concluded narcotics would be located in the silver Lexus, which he believed was used to transport narcotics to the Exbury convenience store location from 51 St. Regis address;
• it was the same vehicle as that driven by Mr. Bampoe when he was arrested in 2008. He concluded Mr. Bampoe was the primary driver of the vehicle.
Officer Sutton gave evidence that a portion of the information contained in the ITO was shared by him and other officers who were present at a briefing on March 7th, 2012, at 10:30 in the morning. His information was the basis for other officers to either arrest or detain Mr. Bampoe on March 7. In the redacted version of the search warrant, it was submitted that there is no information as to where the confidential source believed the unit to be located on the second floor of 51 St. Regis Crescent, such as the south west corner, or north east corner of the building. Officer Sutton had never been to 51 St. Regis Crescent prior to March 7th, 2012. There was no buzzing system or address on the building itself.
Officer Sutton described the building as appearing industrial converted into lofts. The units appeared to him to be likely rented. No evidence was provided as to the owners or any leasing company. He agreed when shown Google maps of three addresses, 200 Exbury, 51 St. Regis Crescent & 35 Fountainhead Rd. that these locations were a fair distance from each other.
No search warrant was applied for the 35 Fountainhead Rd., Unit 504 address. This address was on the police system as Mr. Bampoe’s home address. No warrant was requested for the 190 – 200 Exbury Rd. address, the location where the confidential source had stated drug trafficking was taking place. When shown the photos and a diagram of the second floor of 51 St. Regis Crescent, he could not identify which unit was entered by the police and searched.
Officer Castell attended March 7th, 2012 briefing. Her duties were as the exhibit officer (drugs and cash exhibits), along with Officer Arminian. He was the searching officer in the initial entry, front closet and kitchen area. He made no observations of 51 St. Regis Crescent prior to entering the building. He stated the building was not large.
Officer Castell did not participate in the search of the vehicle driven by Mr. Bampoe. She saw him handcuffed in the back of a police cruiser. She searched the target vehicle for about ten minutes. The search warrant had not yet been granted. Keys as indicated were located in the target vehicle. She could not identify the unit she searched when shown a diagram and photos of the second floor of 51 St. Regis. She searched the kitchen area of the unit, the drawers, cupboards, stove, fridge with food in it. She located a Heinz Tomato Soup Can with an inner glass liner. She said this item had some residue powder which smelled consistent with cocaine; she recovered, weighed and catalogued all the drugs and property.
She also searched the front closet, saw some men’s clothing, outerwear, and jackets. She stated she saw bath products in the second bedroom of the unit searched. The unit had men’s clothing, and female clothing packaged in plastic. It also had hats and coats. She finished searching at 2:45 p.m. She processed the drugs with labels and weighed them. Her notes were based on those of the central note takers.
Officer Artinian attended the March 7, 2012 briefing and along with Officer Castell was an exhibit officer. He was the note taker for search warrant. He left the scene at about 12:50 p.m. He operated a video camera to capture the premises prior to search (Exh 16). He stated he believed Det. Shanks to be in charge on March 7, 2012, as he was the highest ranking officer, not Officer Birrell.
Officer Artinian did not participate in the arrest. He could not recall what apartment was entered on the second floor of 51 St. Regis. He believed they entered with a key. He confirmed that Officer Birrell searched the bedrooms of the unit. He stated when money was located in the mattress. He was asked to return to videotape the location of the money. The property in question was given to him at 31 Division at about 3:30 p.m. Various items placed into locker (see inter alia exhibits filed i.e. 7, 12, 13, 14, 15).
Officer Birrell was in charge of the execution of the search warrant. Officer Sutton instructed him as to the location of the target apartment. Officer Birrell corrected the private investigator’s sketch showing that behind one of the doors that Mr. O’Mara (the private investigator hired by Mr. Bampoe) called a bedroom was a hallway. Mr. O’Mara agreed with Officer Birrell’s correction of his diagram and that the picture of the door did not look like the one to enter a bedroom.
Officer Birrell viewed the east side door when he observed Mr. Bampoe go to the garbage area. He knew who Mr. Bampoe was from a picture of him. Officer Birrell found the keys on the yellow chain in the car. He described where and when he found the keys and the doors that those keys opened. The keys were entered as Exhibit 13. When entering the target apartment he tried the keys on the yellow chain first because those keys opened the outside door.
Officer Birrell also attended the briefing on March 7th, 2012 about 10:30 a.m. He was the team leader and searched the silver Lexus and unit at 51 St. Regis. He was aware Antoinet Mitchell was the registered owner of the vehicle the silver Lexus. He drove by 51 St. Regis Crescent and observed the silver Lexus parked in vicinity of this address. He stated he saw Mr. Bampoe at the exit of 51 St. Regis Crescent throw something in the dumpster at 51 St. Regis. He advised the team of officers to stop and detain the accused. Mr. Bampoe’s driver’s license was filed herein as Exh #21.
He stated Mr. Bampoe was detained for possession of cocaine for the purpose. He was aware that no search warrant had been granted for 51 St. Regis Crescent or for the silver Lexus when Mr. Bampoe was detained. He searched the silver Lexus. He stated that some eleven keys were located in plain view in the console of the Lexus. He took all the keys to the 51 St. Regis Crescent address. After Mr. Bampoe’s detention, he returned to 51 St. Regis Crescent. He gave evidence that he opened the locked east side door at 51 St. Regis with a key from the key ring with a yellow tag about fifteen minutes after he arrived.
Officer Birrell gave evidence that he climbed scaffolding to look into the second floor unit window to ensure no one was inside. There was nothing in his notes relating to this. Counsel for Mr. Bampoe submits that in cross examination that Officer Birrell suggested he knew the location of the unit on the second floor that would be the subject of the search because of information provided by the confidential source. He stated he became aware that the second floor of the building had three if not four units. He acknowledged there appeared to units in the front of the building as well.
Officer Birrell waited outside the door of the unit to be searched to ensure no evidence was destroyed. He testified he recalled the handle on the door to the unit was on backwards, but did not recall whether there were two locks or one, on the unit door. He did not recall which of the four keys on the key ring with the yellow tag, opened which doors at 51 St. Regis Crescent. He seized items on a computer desk in the second bedroom; He did not recall where all the items he seized were located. Some may have been in the desk drawers. He located a vest (Exh 15) on a hanger which contained drugs in one pocket and three folds of $1,000 each in the other pocket. He secured the unit he searched by locking the unit door after the search; does not recall what key or keys he used. He stated there were three or four other units on the second floor in the front of the building, with a conference room in the centre.
Officer Birrell spoke to a young woman who resided in one of the units in the building on the second floor. He did not obtain her name nor investigated who the owner of the building at 51 St. Regis Crescent was or whether there was a company that leased the units. He stated fingerprinting is rarely done in these kinds of investigations. No photos were taken either of the contents of the Lexus or the outside or inside of 51 St. Regis.
Officer Manserra attended the briefing March 7, 2012. He stopped Mr. Bampoe’s vehicle on March 7, 2012 based on information received at the briefing. They were parked behind the Lexus. He placed Bampoe under arrest for possession for the purposes (see Exh #6). He handcuffed Mr. Bampoe, and placed him in a marked police cruiser. He read him his rights to counsel and transported him to 31 Division. Two separate bundles of money totaling $405.50 were found on him. He did not count the money. He agreed that it might well be the amount reflected in Mr. Bampoe’s record of arrest.
Officer Brammall was qualified as a drug expert. It was admitted by the defence the quantity of crack cocaine makes out possession of cocaine for the purpose of trafficking. Depending on what amount of cocaine was sold, the value of the cocaine was between $2,700.00 to $13,000.00. It was explained to the officer what was found, i.e. crack in a vest in the bedroom with the clothing, bundles of cash in the other vest pocket, money found in a box spring mattress, items (Exh #14), baggies, scales, spoon and knife in plain view on a computer desk.
As indicated, Bert O’Mara is a private investigator, a retired police officer, hired by the defence. Mr. O’Mara analyzed the documents pertaining to the history of 51 St. Regis Crescent since 1985. There were no variances requested for renovations or rezoning. There were no numbers of any doors. There were no mailboxes associated with any apartment. Based on his investigation he did not believe that these were legal apartments or had valid addresses.
He took photos of 51 St. Regis Crescent and 190 and 200 Exbury Road during January 2013. He provided a Google photo taken January 2012 which depicted the building located at 51 St. Regis Crescent at the time. His will say as to his observations and dimensions of 51 St. Regis Crescent in January 2013 was admitted on consent. He drew a diagram admitted on consent of the second floor he had access to in January 2013 of 51 St. Regis Crescent.
It was submitted that at the briefing, and as disclosed by the ITO, there was no reason to believe that narcotics for the purpose of trafficking relating to Mr. Bampoe, would be located at 51 St. Regis Crescent or in the silver Lexus.
Counsel for the accused submits that the information provided by the confidential source was insufficiently corroborated by the police. Mr. Bampoe is seen working at the convenience store located on Exbury Rd. The affiant stated the suspect had a “distinct face” but the tip that was provided to the police was arguably devoid of such detail. The tip was also missing details regarding the suspect’s skin colour, an identifying feature that would be essential, to the description of any suspect. Mr. Bampoe, at the convenience store is not observed to engage in any illegal activity. He was observed unloading groceries. He was engaged in lawful activity. Officer Sutton had purchased a pack of cigarettes at the convenience store from him. The observations of the suspect/Mr. Bampoe, at the convenience store was made on one occasion.
The police did not re-attend the Exbury convenience store to investigate if other persons were working at this location at different times. The police did not follow the silver Lexus from the Exbury Road convenience store location to the next location. The silver Lexus is not registered to Mr. Bampoe although he had access to it. On March 7, 2012, the same vehicle as the one observed two days earlier at the Exbury convenience store, is seen parked at the 51 St. Regis Crescent address. Officers observe two persons entered the east side entrance of 51 St. Regis Crescent. The ITO did not reflect the comings and goings related to drug trafficking at 51 St. Regis Crescent. The ITO is silent on the length of visits. There was no evidence as to when these two persons left 51 St. Regis Crescent. Counsel submits that the observations made of the two persons entering 51 St. Regis Crescent is therefore of limited probative value given that the building has several floors and units. Again, police and government records show Mr. Bampoe’s address is 35 Fountain Head Road, Apt 504.
Counsel for Mr. Bampoe submits that it is conjecture to assume Mr. Bampoe would store evidence at 51 St. Regis Crescent or in the silver Lexus, rather than where he worked at. The affiant’s reasonable and probable grounds regarding the location of the evidence is therefore, arguably based on a hunch, informed by suppositions and stereotype about drug trafficking. There is no connection of the suspect by the confidential source to the 51 St. Regis Crescent Address.
Based on the observations of Mr. Bampoe at the convenience store, it is submitted, no inference can be drawn that he was involved in illegal activity.
It is further submitted that the police had unsubstantiated information from a confidential source with a criminal past about drug activity at a convenience store by an individual using a particular vehicle. The legality of the search of the vehicle is derived from the legality of the arrest. The s.9 violation led to the s. 8 violation.
Is it speculation by the police to link Mr. Bampoe to drug trafficking based only on the observations made of him on March 5, 2012 at the convenience store and the fact that two days later the vehicle he had access to was parked outside of 51 St. Regis Crescent?
Officer Manserra in arresting Douglas Bampoe, said he believed Douglas Bampoe to be “arrestable”, but did not articulate the reasons for the arrest.
Is Mr. Bampoe’s previous history in operating the silver Lexus reasonable and probable grounds to arrest or detain Mr. Bampoe? The first branch of the Grant inquiry the defence argues, strongly supports exclusion of the keys and money.
The defence submits there should be no dispute the second line of the Grant inquiry should favour the exclusion of the evidence, namely the keys and money.
How reliable is the evidence in light of the nature of Charter breach? The keys and money are “real evidence”. If Officer Birrell’s evidence is to be believed, they were discoverable as they were in plain view. Is the truth seeking function of the criminal trial process better served by admission of the evidence or by its exclusion? The defence submits this line of the Grant inquiry could have supported the reception of these items, but for the reasons which led to their seizure.
Would the admission of the evidence obtained by Charter breach, bring the administration of justice into disrepute?
Douglas Bampoe’s only connection, it is submitted, to the 51 St. Regis address are the keys located in his vehicle and the fact that he was seen exiting the building on one occasion at this address. The vehicle driven by him which contained the keys, does not belong to him. The other keys located were not explained by police. No drugs were located in the Lexus.
It is submitted that the police witnesses were less than forthcoming as to how they gained access to the unit where drugs and money were located. The defence submits, inter alia, given how many keys were seized resembling house keys could lead to an inference the keys belonged to other premises at other locations. Is the presence of the other keys equally consistent that one or more of them could be used by Mr. Bampoe, as it is inferred that the keys on the ring with the yellow tag were connected to him?
The defence submits portions of Officer Birrell’s evidence are unreliable, as his evidence is not corroborated by the testimony of other officers. There is no evidence who occupied the unit as both male and female clothes were located. Further no documents identifying who the unit belonged to were found, nor was there evidence identifying the occupant(s).
Two bundles of money were located on Mr. Bampoe; an elastic band held together one of the bundles about $405.00, not usual, it is submitted, for someone who is employed. The use of elastics, Mr. Bampoe argues, is not sufficiently distinct for the Court to place any significance or weight on this piece of evidence as being corroborative of Mr. Bampoe being in possession of proceeds of crime. Further police and government documents list Mr. Bampoe’s address as 35 Fountainhead Rd., Unit 504, not 51 St. Regis Crescent.
The Crown, counsel submits, has therefore failed to establish beyond a reasonable doubt that Mr. Bampoe had knowledge and control over the actual unit which was searched. The Court therefore cannot be satisfied beyond a reasonable doubt that Douglas Bampoe was in possession of cocaine and proceeds of crime on March 7, 2013. The defence submits a reasonable doubt is raised on the totality of the evidence and Mr. Bampoe should be acquitted of the charges.
The Crown
The evidence supports a finding of guilt beyond a reasonable doubt against Mr. Bampoe. The Crown submits that it has established the possession necessary for the Crown to prove the dual elements of knowledge and control.
The case against Mr. Bampoe is largely circumstantial. A series of reasonable inferences drawn from underlying facts in evidence must lead to only one reasonable and rational conclusion that Mr. Bampoe had knowledge and control of the drugs in the target address at 51 St. Regis Cres. The evidential foundation supports a conviction. The Crown is not required to negate every possible conjecture or alternative not based in fact, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. There is no evidence to support the competing inferences urged by Mr. Bampoe. Mr. Bampoe can only be convicted if the only reasonable and rational inference, based on the totality of the evidence, is that he has knowledge and control of the drugs.
The Crown submits that Mr. Bampoe raises many “alternative” inferences that he says should lead to his acquittal. There is no evidence that anyone else ever lived in or had been present in the apartment. There is no documentation to demonstrate that someone else rented the apartment in question. There were no documents in the apartment to point to any other individual being associated with the apartment. While the Crown bears the onus of proof, if the only rational inference that flows from the evidence is one of guilt, a conviction must follow.
Drug paraphernalia, including a spoon with cocaine residue on it, was in plain view on the desk in the bedroom (the only room in the apartment that one could sit down on something other than the toilet or the floor). There is no evidence that anyone else had access to the apartment. There is no evidence of an innocent explanation for the presence of the scales.
The circumstantial evidence against Mr. Bampoe leads to just one reasonable inference. He was in possession of the narcotics in the target apartment. The relevant evidence against Mr. Bampoe is summarized on behalf of the Crown with reasonable inferences that should be drawn from those facts:
- Douglas Bampoe was observed exiting the side entrance of 51 St. Regis Cres. After 1 hour and 25 minutes of police observations.
a. It can be inferred that he was in the building for that length of time.
Mr. Bampoe exited the east side of the apartment located at the base of the stairs to the target address.
The total value of the seized drugs and cash found in the apartment is between $7,000 and $20,000 depending on how the drugs are sold. This is a large amount of money that can be held in one’s hand and can easily be removed from the premises. Common sense should guide us as to who has unsupervised access to a place with such goods.
Keys to the target apartment and the locked external entrance were affixed to a yellow keychain sitting in plain view in the console/cupholder area of the Lexus. It should be inferred that Mr. Bampoe used these keys to access the locked door of the building and the target apartment within. Common sense dictates that only a small number of people (if not solely Mr. Bampoe) would possess a key to such a small apartment where valuable and illicit items were stored in an easily discoverable manner. The risks associated with the storage of such items should therefore be obvious. If discovered the drugs could be stolen, consumed, destroyed, or reported to the police. Similar risks attend the insecure storage of cash. In light of these risks, access to the apartment was likely quite limited.
It can be inferred that whoever possessed the keys to the apartment (and spent 1.5 hours inside) was aware of its contents. Given the risks described, it is simply unreasonable to conclude that some hypothetical owner of the drugs and cash would allow Mr. Bampoe such unfettered access.
There was men’s clothing in the bedroom and front closet of the target apartment. It can be inferred that the apartment’s lone occupant was a male.
The Lexus driven by Mr. Bampoe was not registered to the target address, nor was it registered to any other apartment at that address. It was registered to a different location altogether. It can be inferred that Mr. Bampoe’s attendance at 51 St. Regis was to attend the target address.
The Lexus was also driven by Mr. Bampoe when he was observed at the variety store at 190 Exbury and, or when Detective Constable Sutton bought a pack of cigarettes from him. Mr. Bampoe was arrested in the same Lexus as he was in 2008. It can be inferred that this is the car that Mr. Bampoe drives on a regular basis. It is not borrowed for a brief errand. He thus has knowledge and control of its contents.
Further, Mr. Bampoe had more than $400 on his person. The cash was in two bundles each wrapped in an elastic band. The money located in the apartment (6 out of the 7 bundles) was in the same form, folded in half and wrapped in a bundle using elastic. An analysis of Exhibit 8 demonstrates the similarities of the bundles. The evidence makes it difficult to determine which bundles were found where (within the apartment), but what is clear is that the bundles on Mr. Bampoe’s person looked just like the bundles found in the vest alongside the drugs.
The similarity in the bundles of cash ties Mr. Bampoe directly to the cash and drugs in the apartment. The inference is therefore strong that Mr. Bampoe has either picked up money from the apartment or dropped some off. In fact this inference is consistent with the explanation of how drug dealers store their money.
The cash in the apartment was bundled in several different amounts. There was a bundle of cash of $350 between the mattress and the box spring as well as three $1,000 bundles and one $500 bundle in the vest in this closet. This is consistent with how Detective Brammall explained the way a drug dealer stores his or her money. It is not kept all in one place in an attempt to lower the risk of loss upon discovery. There were no documents of any type found in the apartment. Not a single piece of mail, not a receipt or a bill. There is no evidence that any one other that Mr. Bampoe was ever in the apartment.
There was a variety of drug paraphernalia either in plain view or readily accessible to anyone in the apartment. There was a sifter, a butter knife, a calculator, a tomato soup can with a false bottom and a spoon with what was believed to be cocaine residue in plain view on the computer desk in the bedroom – not in the room where cutlery is normally found – and the residue was still apparent on the spoon in court. The expert Det. Brammall explained how these items are used to cook or ‘step on’ cocaine.
The only reasonable inference with respect to these items is that the person in control of the apartment at that time would have knowledge of these items and their illicit purpose. Given Mr. Bampoe’s connection to the apartment (through his presence and the keys) it can be inferred that he was aware of the drug paraphernalia.
Mr. Bampoe was observed exiting the building and putting something into the garbage bin. Detective Constable Birrell testified that it looked like garbage – a white or grey plastic bag tied at the top. The Crown submits further that:
a. Visitors do not take out the trash. Residents do.
b. It can be inferred from this observation that Mr. Bampoe had a strong connection to the target address. His behavior was that of an occupant, not a guest. He obviously cared for the state of apartment, and was responsible for ensuring its cleanliness.
a. Common sense tells us that someone who engages in this sort of function is not likely someone who has a transitory relationship to the premise, but that he cares about its upkeep, and that he is responsible for its upkeep and care.
There is only one reasonable and rational conclusion based on the evidence in this trial. There is no doubt that the drugs, money and drug paraphernalia seized from 51 St. Regis Cres. belonged to Mr. Bampoe. Mr. Bampoe had a strong connection to the residence, indeed he is the only one connected to the residence and on the date of his arrest he was there for an hour and a half. Not only is he there for a significant period of time on the day the drugs were found, but when he left the apartment he acted like he lived there, he threw out a plastic bag into a dumpster. This action is not consistent with that of a guest but with someone who is in control of the premises. The apartment is tiny, two bedrooms with no living room. There was drug paraphernalia both usable rooms (bedroom and kitchen), in plain view and/or readily accessible.
The drugs and money were not in plain view but minimal to no effort was made to conceal these items. Also, the value of the drugs and money is substantial. A drug dealer would not leave something of such value, that carries such significant penal consequences, in a place so accessible to anyone else with access to the apartment. It defies common sense that an unknowing third party would be present, alone, for such a significant period of time unchaperoned with the stakes so high.
Only the kitchen and one bedroom looked lived in. There appeared to be nothing to do anywhere else in the apartment. Indeed the only place to sit down was in the bedroom, as there were no chairs in the kitchen, or anywhere else. There was a TV, but it was neither set up nor plugged in. It can be inferred that anyone who spent 1.5 hours in this apartment in these circumstances made use of the bedroom area. The bedroom contained a significant amount of drugs and money, and had drug paraphernalia in plain view.
The apartment was not as yet a registered unit. The private investigator testified that based on his analysis of the documents there were no variances sought for the second floor of this building since 1985. The apartment was illegal. Further, there was no mailing address registered to the apartment. The Crown submits that those involved in the drug trade takes steps to conceal their conduct. The target apartment was off the grid. It makes sense to set up a drug operation in such location. It is somewhere that is not registered to the dealer so it won’t show up in a police check. The information on his driver’s license and record of arrest is hearsay, but supports the theory that Mr. Bampoe was attempting to operate under the police radar.
There were no documents in the apartment. There is no evidence that anyone other than Mr. Bampoe was ever in the apartment let alone living there. Any such conclusion is speculation. The Lexus was not registered to Mr. Bampoe. While there is no evidence that anyone else drove the car, as with a “stash-house”, it is submitted by the Crown that your car is not registered to you in order to avoid police detection. This is the same car that Mr. Bampoe was arrested in 5 years before. See Exhibit 20.
The vest containing the drugs and cash was hanging in the closet like any other piece of clothing, apparently “hiding” in plain view. The drugs were not hidden in any sophisticated way, despite being in one of the two rooms where anyone who accessed the apartment would likely spend their time, especially if they wanted to sit down.
The circumstantial evidence against the Mr. Bampoe is therefore straightforward and compelling. When viewed in its totality, in accordance with logic and human experience, the only logical inference it is submitted is that Mr. Bampoe had knowledge and control of the drugs and he should therefore be found guilty.
S. 24(2) Charter Argument
When the information to obtain the search warrant was disclosed to the defence, the law of the informer privilege prevented the Crown from disclosing the grounds in the search warrant. The principles animating informer privilege ultimately rendered their search warrantless. Therefore, by operation of law there was a section 9 Charter breach, a technical unlawful detention of Mr. Bampoe and a technical illegal search incident to arrest, in the ex-post facto analysis.
In the circumstances of this case, the Crown submits, the test for whether the “illegally” obtained evidence should be excluded under s. 24(2) of the Charter weighs greatly in favour of the inclusion of the evidence followed by a trial on the merits of the case.
The breach is a product of the operation of law. The police conducted a drug investigation based on information from a confidential informer. Based on their investigation the police knew they needed a warrant to conduct the arrest and search and they obtained one, exactly required by law.
The information in this case does not fall short of the reasonable grounds threshold but has been redacted to protect the identity of the confidential informant. The actions of the police, particularly the evidence of Officers Sutton and Birrell demonstrate their respect for the rule of law and its processes.
In this case, the information in the Information to Obtain was redacted in order to protect the confidential informer, a purpose central to, and a sacred protection afforded by the criminal justice system.
This was not an intrusive or demeaning search. It was not a search of a sensitive area of Mr. Bampoe. It was very brief. Nonetheless, the search was a result of an unlawful detention and affected Mr. Bampoe’s liberty. The search of the car, it is submitted must be analyzed differently.
Further the Crown submits that Mr. Bampoe had a very low expectation of privacy in the Lexus.
Is the truth-seeking function of the criminal trial process better served by admission of the evidence or by its exclusion? In this case, the Crown submits the keys on the yellow key chain and money bundled in elastics are non-bodily physical evidence (formerly real evidence). Therefore this evidence is highly reliable and as such weighs in favour of admission. Further the keys and the bundles money are also highly relevant as to whether the offences were committed. The keys on the yellow key chain open both the door to the building and the door to the target apartment. They demonstrate that Mr. Bampoe is in control of the apartment. Similarly, the money seized on Mr. Bampoe is bundled in precisely the manner with the same type of elastics as numerous bundles found in the apartment.
The right to privacy is not absolute, therefore the right extends to protection against unreasonable searches and seizures. A judicially authorized search is reasonable because stringent pre-conditions have been met to the satisfaction of a judicial officer. Short of an automatic exclusionary rule for warrantless searches of automobiles, none of the factors relevant to protecting the good repute of the justice system militate in favour of exclusion in this case. The Crown requests that the application be dismissed.
THE LAW
In this case the police conducted a drug investigation based on information from a confidential informant. Based on their investigation the police understood they needed a warrant to conduct the search and obtained one, as required by law. The police took steps to obtain a warrant based on information which may or may not have have fallen short of satisfying the rest of reasonable grounds.
In R. v. Blake, 2010 ONCA 1, the Ontario Court of Appeal confirmed that in cases where the police do exactly what they are supposed to do, there can be no bad faith or misconduct. The Court stated:
Not only do I agree with the trial judge’s finding of good faith on the part of the investigators, I can see no possible criticism of the police conduct on this trial record. Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so…Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police conduct in this case does not fit anywhere on the misconduct continuum described in Grant, at para. 74 (R. v. Blake 2010 ONCA 1, [2010] O.J. No. 48 at paragraph. 25 (ONCA).
Doherty J. in Blake describes the new s. 24(2) admissibility test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (SCC) as the taking of a “judicial wire brush to the 20 years of jurisprudential gloss that had built up around s. 24(2) and scrubbed down to the bare words of the section”. He states that:
Chief Justice McLaughlin and Justice Charron, writing for the majority, observed at para. 67 that “[t]he words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice”. They continued at para. 68:
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 admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
A finding of “good faith” obviously reduces the need for the court to disassociate itself from the state conduct that resulted in the Charter infringement, and supports the admissibility of the challenged evidence. However, according to Blake, supra at para. 33, “if there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests”. In this case, it did tip the scales.
Doherty JA concluded in Blake, supra, that “the powerfully-negative impact on the core of the appellant’s legitimate privacy interests creates the risk that the admission of the fruits of the search could bring the administration of justice into disrepute: Grant, supra at paras. 76-78.”
In this case, it is submitted that the information in the ITO was redacted in order to protect the confidential informer. The court must still review the state’s conduct in this case, both the process by which the police obtained the search warrant and the editing the ITO to protect the confidential informer. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy or that demeans his or her dignity, is more serious than one that does not.
The police believed they were acting under the authority of a valid search warrant when they found the cocaine, cash and drug paraphernalia. Informer privilege ultimately rendered the search warrantless.
A warrantless search of a residence is a serious breach. Does it make it less intrusive if no one was home at the time of the search, or that the premises were opened with a key or keys? There was no damage caused in execution of the warrant or the search of the premises. Does this mean anything?
The Crown submits that the drugs, drug paraphernalia and money seized are all real and reliable evidence. The goal is always determining the truth of the matter.
The charges before the court are very serious. Possession for the purpose of trafficking cocaine is a straight indictable offence with a maximum sentence of life in prison. Trafficking crack cocaine for commercial gain has caused and will always cause horror by its use and abuse.
It is submitted in this case that the search warrant was not undermined through any fault or misdeed or “conduct” of the state. The breach occurred because the state and the court protected the identity of the confidential informer.
Unconstitutionally obtained evidence may well be excluded under s. 24(2) if, considering all the circumstances, its admission would bring the administration of justice into disrepute. This determination requires a balancing assessment involving (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits (Grant, supra at para. 71).
In the context of a s. 8 breach the focus is arguably the magnitude of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity (R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at para. 40; Grant, at para. 78). In a s. 24(2) analysis, should the court consider the diminished nature of any reasonable expectation of privacy?
The third Grant inquiry relates to interest in an adjudication on the merits. The question is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, at para 79).
The considerations under this inquiry must never overwhelm the s. 24(2) analysis. See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 40). They are nonetheless entitled to appropriate weight.
Is the breach in this case so high on the scale of seriousness that its impact was attenuated by any diminished privacy interest and the discoverability of the evidence? Would the exclusion have a marked negative impact on the truth-seeking function of the criminal trial process?
Section 11(7) of the Controlled Drugs and Substances Act (CDSA) permits a peace officer to search and seize evidence without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain one. It is submitted that the officers engaged in a now warrantless search of the premises created a serious breach of the applicants’ section 8 Charter rights? It is submitted that no artificial line should be drawn between the entry into the vehicle, the unit in question, and the subsequent seizures pursuant to a search warrant because the two actions were intertwined in time and in their nature.
In Grant the Supreme Court examined when exigent circumstances might exist so as to authorize a search or seizure without warrant. The court noted at para 32 that “[e]xigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or sidappearance of the evidence if the search or seizure is delayed.” In R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, Cory J. for the majority agreed that the question as to whether exigent circumstances have been made out should be determined on a case-by-case basis. Is this the case here?
The Crown has conceded that there was a serious defect on the face of the warrant. This is therefore an invalid warrant. See also Queen v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at 278 and Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 at 512.
The charges are very serious. The evidence is reliable and probative. The seized items are central to proof of the charges against the applicant. All of these factors militate in favour of admitting the evidence. As the majority in Grant however, points out at para. 84:
…it is the long-term repute of the justice system that is s. 24(2)’s focus… The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly were the penal staked for the accused are high.
As the court found in R. v. Dhillon, 2010 ONCA 582, [2010] O.J. 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”. The court must assess the seriousness of the violation in terms of the “gravity of the offending conduct by state authorities”. There is a continuum where on the one end the evidence obtained through inadvertence or minor violations and at the other end evidence is obtained through willful or reckless disregard for Charter rights.
As noted in 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.
As further noted by Code J. in R. v. Learning 2010 ONSC 3816, [2010] O.J. No. 3092 (SCJ), Charter violations of this nature are only “a product of the operation of the law” (the law that requires police, Crown counsel and judges to protect informer privilege). In assessing the seriousness of the state conduct, the Court must assess whether the affiant was careless, reckless or intentionally misleading in preparing the unredacted portions of the ITO.
Is this case similar to R. v. Dhillon, supra, in that the affiant was extremely careless in drafting the ITO to such an extent that it became misleading? As again noted by the Ontario Court of Appeal at paragraph 51 in Dhillon, supra, “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”.
After reviewing the evidence of the officers, seeing and hearing them testify in court, I do find that there appeared to be a lacking of real appreciation for what their obligations were with respect to Mr. Bampoe.
As stated by the Supreme Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 102:
The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
Here, unlike Blake, it is submitted that the conduct of the police in drafting the ITO tendered to secure the warrant discloses at least “a taint of impropriety” or, at a minimum, “inattention to constitutional standards” and, accordingly, exclusion should follow.
Misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO depending on the nature and severity of these faults may provide a basis for challenging the decision to grant the warrant. The focus is whether defects are such to call into questions the good faith of the police responsible for their occurrence. This assessment bears on the first branch of the Grant analysis, the seriousness of the Charter-infringing state conduct. Given the tension (as in Blake) between the second line of inquiry under Grant (the profound impact of the breach on the defendant’s Charter-protected interests) and the third (a strong societal interest in an adjudication on the merits), the determination of the first consideration will impact on the final balancing under s. 24(2).
The case of R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.) respecting search and seizure law, established the “totality of the circumstances” standard in the assessment of probably cause. It also addresses the question of what reliance, if any, may be placed on prior criminal misconduct by the proposed target of a search. Martin J.A.’s reasoning was largely affirmed by the Supreme Court on subsequent appeal: (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193. As stated by Wilson J., as she then was, at paras. 56-58:
The significance of the past record and reputation of the appellant…presents a more difficult problem. It is surely beyond question that reputation alone would never provide reasonable grounds for a search. The appellant, however, objects to any use of reputation as a relevant factor…
The Supreme Court’s analysis is limited to “the past record and reputation” of the target of a police search. In this case, no reputational evidence of reputation is tendered, nor any evidence of drug-related conduct resulting in an ultimate finding of guilt. The questionable information in the ITO instead refers to a single police investigation that, seemingly incidentally, resulted in the defendant apparently being charged with drug-related offence. The event occurred some five years before the sworn information at issue was tendered to a justice of the peace. As stated by Wilson J. in Debot, supra, “… if the reputation of the suspect is based on hearsay rather than police familiarity with the suspect, its veracity cannot be assumed”. Here, there is no basis to even assess the reliability of the posited nexus between the defendant and the residence in which the illegal drugs were found. Nor is there any other information in the ITO connecting the defendant to the seized drugs.
An application for a search warrant is fundamentally an ex parte request for judicial authorization to do what would otherwise amount to an unjustifiable infringement of a person’s constitutionally protected interests. See Sharpe J. (as he then was) in U.S.A. v. Friedland, [1996] O.J. No. 4399, at paras. 26-27.
As set out in R. v. Morelli, supra, at para. 59 was the ITO misleading, not whether it was intentionally misleading.” The Supreme Court, Morelli, supra, at para. 102 stated that we must “guard against making statements that are likely to mislead the justice of the peace”.
Referring again to Morelli, supra, at para. 58:
When seeking an ex parte authorization such as a search warrant, a police officer – indeed, any informant – must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not.
As in Blake, a judicial assessment of the first criterion is dispositive of the ultimate balancing. As said in Morelli, supra, at para. 103, “[T]he repute of the administration of justice would…be significantly eroded, particularly in the long term if such unacceptable police conduce were permitted to form the basis for so intrusive an invasion of privacy as the search of our home…”.
Cromwell J. in R. v. Cote 2011 SCC 56, [2011] S.C.J. No. 56 {S.C.C.) reiterated that once there has been a determination on the first and second Grant factors that the Charter violation or violations were serious, the factors of the seriousness of the offence, the reliability of the evidence and the importance of the evidence to the Crown’s case are not determinative and should not lead to admission. Very serious section 8 breaches and the impact on the applicants Charter protected interests, may not weigh in favour of admission or outweigh the significant harm to the long-term repute of the administration of justice if the seized items to be admitted. In the end, it is the Charter-infringing conduct by the police here from which the court should be most concerned about dissociating itself. The exclusion of the seized items is the only course open to the court in order to prevent the administration of justice from falling further into disrepute as a result of that conduct.
It is submitted that the occurrence report in this case is of limited probative value when it comes to assessing reasonable and probable grounds, the occurrence report being old, deficient of details that could otherwise be used to corroborate any “tips”, and commentary that an occurrence report is evidence of suspect’s propensity to traffic in drugs, is not appropriate in considering the establishment of reasonable and probable grounds.
Further, it is submitted the phone number at 51 St. Regis Crescent was not registered in the Applicant’s name, and the 1999 Lexus was not registered to the Applicant.
Therefore the Information to Obtain (the “ITO”) provided insufficient detail, in its redacted version, with respect to surveillance conducted by the Drug Enforcement Unit. As such, it is submitted, it does not disclose persuasive information that reasonable and probable grounds existed for the search warrant to be authorized.
CONJECTURE AND INFERENCE
A correct description of the nature of an inference can be found in Black's Law Dictionary (6th Ed.) (St. Paul, Minn.: West Publishing Co, 1990), at p. 778. It defines "inference" as follows:
"In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted. A logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exits from the established facts. ..."
What is the fundamental difference between conjecture and inference? The first is not a reliable fact finding tool for the simple reason that it does not rest upon a compelling evidentiary foundation. As such, it provides little in judicial decision-making. The second is the product of a time-honoured fact-finding process. This process involves the extraction of a logical conclusion from cogent evidence. It may thus be a reliable weapon in judicial fact finding.
Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202 (H.L.):
“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference”.
In R. v. Fuller (1971), 1 N.R. 112 at 114, Hall J.A. held that "[t]he tribunal of fact cannot resort to speculative and conjectural conclusions". Subsequently the Supreme Court of Canada agreed with his reasons. 1973 CanLII 196 (SCC), [1975] 2 S.C.R. 121 at 123.
The impact of a breach on the applicant’s Charter-protected interests, the second Grant factor, arguably weighs against admission of the seizures in this case. A person’s home is a highly protected zone of privacy. See R. v. Silveira 1995 CanLII 89 (SCC), (1995), 97 C.C.C. (3d) 450, at para. 140, where the Supreme Court commented that “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”, and the Supreme Court has consistently re-affirmed this fundamental proposition: see also R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 42; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 43; R. v. Tessling 2004 SCC 67, (2004), 189 C.C.C. (3d) 129 (S.C.C.), at paras. 19-22.
The items found during the search are real if not reliable items of evidence, the exclusion of which may terminate the prosecution of the applicant. The third consideration of Grant again provides whether “the truth-seeking function of the criminal trial process could be better served by admission of the evidence or by its exclusion” – supports reception of this evidence: Grant, at para. 79-81. The gravity of the charges faced by the applicant as a result of the seizures is also a factor that must be considered but, as Grant commented, at para 84,
[W]hile the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. … [I]t is the long-term repute of the justice system that is s. 24(2)’s focus. … Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [Emphasis added.]
As said in Grant, at paras. 82 and 85:
The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”: *R. v. Mann*, 2004 SCC 52, at para. 57.
To review the three lines of inquiry identified, the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
In R. v. Blake, supra, at para. 33, the court stated that
… taint of impropriety, or … inattention to constitutional standards, in the police conduct … to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.]
In R. v. Burlingham 1995 CanLII 88 (SCC), (1995), 97 C.C.C. (3d) 385 at 408, the Supreme Court stated that, "the goals of preserving the integrity of the criminal justice system, as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2)."
In Morelli, supra, at paras. 102 and 108-112, Justice Fish in the summation paragraphs of his majority opinion states:
The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
The accused’s conduct in this case may raise suspicions but, as a matter of law, mere suspicion is no substitute for reasonable grounds.
The evidence obtained as a result of the illegal search should be excluded under s. 24(2) of the Charter. When the three relevant factors are balanced, admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute. I do not find any deliberate attempt to mislead and no deliberate misconduct on the part of the officer who swore the ITO, but the repute of the administration of justice would nonetheless be significantly eroded. The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.
When Mr. Bampoe was stopped and his vehicle searched, was he committing an apparent offence? If so, what is the evidence? See Queen v. Biron 1975 CanLII 13 (SCC), [1976] 2 SCR 56.
The concept of reasonableness in this context is different from the prevailing concept of reasonableness in the context of an arrest by warrant. A search warrant is, by definition, an anticipatory authorization. Police activity where judicial approval in advance of an arrest is jealously guarded. The same must apply here. The standard of reasonable and probable grounds must embody the best possible compromise for accommodating the often opposing interests in safeguarding citizens from rash and unreasonable interferences with privacy and our seeking to give fair leeway for enforcing our laws for the protection of the community.
The innocence of Mr. Bampoe’s appearance cannot be transformed into reasonable and probable grounds, thereby justifying his arrest on the basis of location.
We must not attempt to infer criminal activity from allegedly “furtive” behavior. The difficulty is that from the viewpoint of the observer, an innocent gesture can often be mistaken for a guilty movement. One must not only perceive the gesture accurately, one must also interpret it in accordance with the actor’s true intent. If words are not infrequently ambiguous, gestures are even more so.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
“Ideas,” William O. Douglas, the late Justice of the U.S. Supreme Court, once said, “have been the most dangerous forces in the history of mankind.” That being the case, Mr. Justice Douglas was a very dangerous man. He trafficked openly in ideas – some new and challenging, other imbedded in the Constitution but under attack. In hundreds of Supreme Court opinions he argued to his colleagues, and over their heads to the nation, that vagabonds have rights; that freedom of expression is America’s preferred value; that the Bill of Rights sanctifies liberty of conscience and the right to privacy.”
Privacy is a unique interest primarily for what it is not. Privacy is not an economic or even tangible interest. It is not among the necessities of life. It does not necessarily guarantee the sanctity of any place. It does not necessarily guarantee the right to engage in or refrain from any particular activity. Rather, privacy is a conceptual interest arising from an expectation of how we will be governed. Thus a denial of equality, while perhaps vesting no material or tangible harm, contravenes an individual’s expectation interest.
There is a very important rule of law which applies in every criminal case, and that is known as the presumption of innocence. It means that an accused person is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The presumption of innocence and the burden of proof in a criminal case are inseparable. The onus, or burden of proving the guilt of an accused person beyond a reasonable doubt rests with the Crown, and that burden never shifts. There is no burden on an accused person to prove his innocence. The Crown must prove each and every ingredient of the offence charged beyond a reasonable doubt.
In order to convict based on circumstantial evidence, it has to be beyond a reasonable doubt that the guilt of the accused is the only reasonable inference that can be drawn. An accused is entitled to an acquittal if there is an “equally rational inference” that does not point to guilt, if there is a second inference that is as reasonable on circumstantial evidence. Equally rational and as reasonable describe the quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence. Circumstantial evidence forms the core of the case against Bampoe. The court must be convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to draw from the facts it has chosen to rely upon. Inference in this case does not justify inclusion as contemplated by Grant.
The police, in enforcing the law, must avoid any temptation to resort to stereotypical, inflammatory, or misleading allegations. And where they yield to that temptation, courts must be particularly vigilant to issue process, or validate the issuance of such a process, only where reasonable and probable grounds for a search or an arrest are in fact made out. While the law must be relentlessly enforced, legal requirements must be respected and constitutional safeguards preserved.
Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as “a means of circumventing a prior authorization requirement” (R. v. Araujo, 2000 SCC 65, at para. 59). In all cases, the focus is on “the information available to the police at the time of the application” rather than information that the police acquired after the original application was made (para. 59).
The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence, those elements as to which the Crown has not advanced direct evidence, may reasonably be inferred from the circumstantial evidence.
Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, at pp. 641‑42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”).
Does the law treat direct evidence and circumstantial evidence equally? Neither is necessarily better or worse than the other. In each case, the court must decide what conclusions it will reach based upon the evidence as a whole, both direct and circumstantial. To make its decision, the court must use common sense and experience.
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established in the trial. It is a conclusion that may, not must, be drawn in the circumstances. It does not change the burden of proof or the standard of proof of any party to the proceedings.
An inference is a much stronger kind of belief than conjecture or speculation. If there are no proven facts from which an inference can be logically drawn, it is impossible to draw an inference; one would be speculating or guessing—and that is not good enough. An accused must not be convicted on a guess, no matter how shrewd that guess may be.
The court must ultimately bear in mind the long-term and prospective repute of the administration of justice, focussing less on a particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.
The repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private “place” in the home on the basis of misleading, inaccurate, and incomplete informations upon which a search warrant was issued.
Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable practice.
The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case would undermine that confidence in the long term.
I am again therefore persuaded for all of these reasons that admitting the evidence in this case would bring the administration of justice into disrepute.
I find that the impact of the Charter breach on the accused significant given that it involved an unauthorized search of the Lexus, if not a private residence. I appreciate that the evidence in question is highly reliable and that the Crown’s case fails if the evidence is excluded. I also appreciate that there is a heightened societal interest in prosecuting these cases. In my view, admission of the evidence would bring the administration of justice into disrepute. Therefore, the evidence of the items seized in the Lexus and going forward will be excluded pursuant to section 24(2) of the Charter.
Released June 26, 2013
Justice Marvin A. Zuker