Information and Court Details

Information No.: 14-8798 Court: London Court Ontario Court of Justice

Parties

Her Majesty the Queen v. Michael Sladek

Ruling on Voir Dire

By the Honourable Justice Glenn

Date: July 31, 2015 at Chatham, Ontario

Appearances

F. Creed – Counsel for the Crown

S. Foda – Agent for Scott Hutchison and Danielle Robitaille who are counsel for Michael Sladek

Table of Contents

• Ruling – Page 1
• Transcript Ordered: July 31, 2015
• Transcript Completed: August 13, 2015
• Ordering Party Notified: August 13, 2015

Ruling

GLENN, J. (Orally):

This decision relates to an application brought by the Accused under s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude all of the evidence obtained pursuant to the execution by the police of two search warrants on May 7, 2014 in regards to this case.

Charges Against the Accused

The Accused is charged that between the 18th day of March, 2014 and the 18th day of April, 2014 he did, by word of mouth, knowingly cause Karen Wilson to receive a threat to cause death to Robert Bali, contrary to s. 264.1(2) of the Criminal Code of Canada.

He is also charged that between the 18th day of March, 2014 and the 18th day of April in the year 2014 he did possess a weapon, namely a shotgun, for a purpose dangerous to the public peace, contrary to s. 88(2) of the Criminal Code of Canada.

He has pled not guilty to both of these charges.

After a search of this property was executed, he was also charged that on or about the 7th day of May in the year 2014, without lawful excuse, he possessed prohibited weapons without being the holder of a licence permitting such possession, contrary to s. 91(3) of the Criminal Code of Canada.

Basis for Decision

For this decision, I rely on the evidence heard during the voir dire, the submissions received in court at its conclusion, along with the further written submissions of the defence dated June 5, 2015 and the response of the Crown to those written submissions dated June 16, 2015.

Factual Context

For the sake of understanding the context, I also refer to the following evidence that has been introduced by the Crown in the ongoing trial. The threat that is referred to in the first charge was alleged to have been made by the Accused to his then girlfriend, Ms. Wilson. She claimed that the Accused told her, that if she were to tell him that she was going to be friends with Mr. Bali, and if Mr. Bali was still going to train at her studio, which Ms. Wilson operated, then he – the Accused, would go over and kill Mr. Bali and then he would blow his own brains out. She claimed that as he was stating this to her he was holding and racking a long barreled gun with a beam that flashed around the room and at her. On a later date, when she attempted to talk to the Accused about this gun, he told her that she needed to learn the difference between a shotgun and a paint ball gun.

Search Warrants Obtained

When these allegations came to the attention of the police, they applied for and obtained three search warrants; first, for the Accused's motor vehicle, secondly, for this home and thirdly for the outbuildings and a second motor vehicle located near these outbuildings. All warrants recited that the police were authorized to search these respective locations on May 7th, 2014 for the items that were set out in Appendix "B". Appendix "B" was identical for each of the three warrants and read as follows:

Items to be searched for:

1. Firearm or replica resembling a shotgun.
2. Paintball gun.

During the trial, the Accused brought a Charter application for an order under s. 24(2) of the Charter excluding all items or evidence seized by the police on May 7th, 2014. I would point out that nothing was seized pursuant to the third warrant relating to the outbuildings and the second motor vehicle located near these buildings.

Interpretation of Search Warrant

The plain reading of item "one" of appendix "B" authorizes a search for a firearm that resembles a shotgun or in the alternative, a replica firearm that resembles a shotgun. Item number two simply contains the words "paintball gun". It was the evidence of the two lead officers who conducted the search and who seized the evidence that is the subject of this application that the operating theory was that the paintball gun that they were looking for resembled a shotgun. Indeed the allegation of Ms. Wilson had been that the Accused had held a long gun when he was making a threat which he later insinuated was merely a paintball gun. There were two other officers who assisted in the search pursuant to the three warrants, but they did not actually seize any items.

What the Search Yielded

So what did the search that took place pursuant to these search warrants yield? Indeed, on searching the gun safe located in a small room under the stairs leading down to the basement of the Accused's home, they found a shotgun which was capable of being racked and which had a light beam that was capable of being flashed around the room as described by Ms. Wilson. No paintball gun was found anywhere at the authorized locations.

If the story was as simple as this, there would be no cause to consider the question of whether the rights of the Accused were breached under s. 8 of the Charter or that this evidence should be excluded from evidence under s. 24(2) of the Charter.

Rather, this decision is about whether the police made errors or overstepped their authority in executing the warrants and if so, what the court should do in response. Counsel for the Accused argued that the inappropriate conduct of the police so coloured the entirety of the search that all evidence seized in the course of executing these searches should be excluded.

Additional Items Seized

During the course of their search, the police not only seized the shotgun as set out above but also multiple other items, including specifically a series of prohibited weapons which form the basis of the third charge and which they claimed to have seized pursuant to s. 489 of the Criminal Code.

Section 489 of the Criminal Code

Section 489(1) states as follows that:

Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

a) Has been obtained by the commission of an offence against this or any other Act of Parliament;

b) Has been used in the commission of an offence against this or any other Act of Parliament; or

c) Will afford evidence in respect of an offence against this or any other Act of Parliament.

Sub paragraph (2) broadens police powers by stating:

Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

a) Has been obtained by the commission of an offence against this or any other Act of Parliament;

b) Has been used in the commission of an offence against this or any other Act of Parliament; or

c) Will afford evidence in respect of an offence against this or any other Act of Parliament.

Legal Framework for Search Warrants

It is important to remember that a search warrant allows an intrusion of one's otherwise constitutionally guaranteed right to privacy. Before obtaining a search warrant, an officer must submit sworn evidence called an "information to obtain" to a justice which would justify the intrusion. The justice plays the very important role of scrutinizing the sworn information before determining if the intrusion is justified and may or may not issue the search warrant as requested. The form of the warrant should clearly set out the location where the officer can search, when the search can take place and what specifically can be searched for. A search warrant is a court order that provides special authority to the police to search for and seize specific things. It places limits on the extent of the State intrusion into the privacy rights of a person by placing limits on what can be searched for, where the search will take place and when the search can take place. It controls the scope of the intrusion.

However, in the course of carrying out a lawful s. 487 search, it is possible that other items that are described in s. 489 of the Criminal Code might be found which may then also be seized. As set out in R. v. Jones, 2011 ONCA 632, at para. 73:

"Implicit in the s. 489 power is the premise that the Police Officer has come across something in the course of a lawful search."

At paragraph 42 it was held that:

"The search must relate to the legitimate targets for which the police have established reasonable and probable grounds as articulated in the warrant."

As stated in R. v. Taylor, [1994] O.J. No. 1304, para. 26:

"An officer carrying out a s. 487 search is not entitled to rely on s. 489 as an authority to rummage through drawers for evidence of other crimes unless the search is directly related or incidental to the authorization set out in the warrant. For example, if the warrant authorizes a search and seizure of a TV set, you are not authorized to rummage drawers and cupboards where televisions aren't normally found."

And, as held in R. v. Bottineau and Kidman, 2011 ONCA 1994, para. 74, Section 489(2) does not authorize a search, but it does expand seizure powers.

Further, one must remember that the seizing of items that are listed in a search warrant has already been approved by a justice. However, if items are seized pursuant to s. 489 of the Criminal Code, their seizure has not been pre-approved by the justice and therefore the Report to a Justice that must by filed by the police officer after the search warrant has been executed takes on added importance because this becomes the mechanism by which judicial oversight can be applied after-the-fact to the intrusion of the State into the privacy interests of the person who is the subject of the search. This report must satisfy the justice that the seizure of items under s. 489 of the Code was lawful. Inherent in this scheme is the requirement that the report provides the justice with sufficient accurate information to be able to assess whether all of the requirements have been met to justify the seizure under s. 489.

Police Improprieties

With regards to the improper actions of the police in our case I would state the following:

As already stated, s. 489 of the Criminal Code does not authorize officers to search in places that are not directly related or incidental to the authorization set out in the warrant. In the case at Bar, during the course of the search, a shotgun was found to be located in the locked gun safe by one of the first two officers. Predictably, the shotgun was found to be 31 inches long by 6.5 inches at the handle end.

Of course, the level of intrusion into the privacy of an accused increases as the size of items searched for decreases. Unfortunately, the two lead officers who executed the search unilaterally took the position that since they knew a shotgun could be broken down into component parts, they could search for gun parts in places that would not otherwise be compatible with the limits dictated by the size of the shotgun.

In my view if these officers wanted to search for gun parts, they needed a search warrant that specifically authorized this, since it is the justice of the peace who must decide the extent of the intrusion on privacy interests.

In her evidence one of the lead officers who executed the warrant acknowledged that she went through every drawer, cupboard, receptacle and container in all the places that she searched. In explaining herself, she testified that she wanted to make sure that every piece of evidence was scooped up as she did not want to leave behind a gun. Likewise, the second lead officer looked for gun parts in virtually every container or space that he believed any gun part could be found including a box that was 3"x5"x7".

By reinterpreting the meaning of the items listed in the search warrant, in effect they gave themselves enhanced powers of search which also provided them enhanced opportunity to come across and seize items for which they could then claim justification under s. 489 of the Criminal Code.

Impropriety 1: Searching Small Containers

Specifically, one lead officer looked in a hard-sided make-up case having outside measurements of 8"x9"x13". The sides of this box were somewhat tapered inward such that it was not completely square and the inside space of the box would have been even smaller than the exterior measurements. In it she found a set of nunchaku sticks, six throw-stars and a switch blade knife. In addition the second officer searched a shoebox measuring 6.5"x 5"x13.5" where he found a butterfly knife. All of these items are prohibited weapons and form the basis of the third charge against the Accused. In spite of them seizing many more items, including gun paraphernalia and ammunition that were located in these and even smaller spaces, the only additional charges that were laid were in relation to the possession of the prohibited weapons and indeed it was simply one more charge, not multiple charges.

In my view, neither the make-up case nor the shoe box could possibly hold an item the size of a shotgun and when these officers searched these areas they were exceeding their authority as set out in the search warrant. Further, it was clear from their evidence that their reason for searching in these small containers was not because they were looking for a paint gun which arguably might have been a different size from a shotgun, though there was no evidence as to what that size would be, and in any case it was conceded by them that they were looking for a gun that would have been the size of a shot gun. Rather both of these officers testified that they were looking in these containers for gun parts. As such when they started looking in containers that could not hold a shotgun, I find that their searches became unreasonable and unlawful and in violation of the Accused's s. 8 Charter rights.

In doing so I note several aggravating facts.

Aggravating Factor 1: Third Officer's Warning

During the course of the search, two additional officers were dispatched to help the two lead officers who began their search at the Accused's home. Both of these additional officers were explicit in their evidence that they believed that they were constrained to search only in spaces that were commensurate with the size of a shotgun. Officer Mcguggan was one of these officers. He testified that he was asked by one of the lead officers to search for and seize ammunition that had been located in a bank of very small containers which typically hold miniature items such as screws, nuts and bolts and which was located in the basement workshop at the Accused's home. In this container he indeed found some ammunition, and while he followed instructions and bagged it for the purpose of seizure, he refused to seize it himself because he believed that this was not authorized by the warrant. He testified that he told one of the lead officers about these reservations and his refusal to make the seizure. While this lead officer did not confirm that he received this warning, there was no alteration to the manner in which the search was carried out and these items were indeed seized by that lead officer.

Aggravating Factor 2: Misleading Report to Justice

A Report to a Justice, form 8 was filed by the lead detective in the case who was not present for the search of the Accused's property. In that report, he listed 36 categories of items that were seized in the Accused's home pursuant to s. 489 of the Criminal Code. He testified that he prepared the report containing the justification for the seizure of these items under s. 489 after reading the statements of the officers who conducted the search. As such he was aware of the very small spaces where many of the items were found. Nevertheless, for each of these items, he simply stated in his report that:

"These items were found while looking for the shotgun and paintball gun as authorized for search by this warrant."

There was no indication to the justice that most of these items were found while the police officers were looking for gun parts in spaces that could never contain a shotgun or a paintball gun, thereby making the seizure of these items fall outside the scope of s. 489. This description of where these items and in particular the prohibited weapons were found was, to say the least, misleading and would have impeded meaningful judicial oversight and control over the intrusion into the privacy of the Accused as legislated in s. 489 of the Criminal Code.

While some of the items may have been legitimately seized, in my view the vast majority of them were not. Since there were no charges flowing from the seizure of any of these additional items other than the prohibited weapons, I will not go into extensive analysis of each and every one of them.

Aggravating Factor 3: Improper Seizure of Cell Phones

One of the lead officers executed the search warrant of the Accused's car. Under the driver's seat she found and seized a Samsung cell phone. Soon after, once she was in the Accused's home she also seized an Apple I-phone from the pantry of the kitchen as well as a Blackberry phone which was sitting on the kitchen table. She testified in chief during the voir dire that she was aware that the Accused had communicated by phone with his girlfriend and also with Mr. Bali, against whom he was alleged to have made threats. She claimed that she believed that the cell phones might afford evidence in respect of an offence and that she had therefore seized the cell phones pursuant to s. 489.

During her cross-examination it became apparent that she had not made any notes as to her rationale for seizing the phones at the time that the search had taken place which was 11 months previous. Only recently, just before the trial she prepared a statement justifying these seizures which was then disclosed to the defence. In this statement she claimed that the girlfriend had advised that she had received threatening communications from the Accused electronically over the phone and that she, the officer, believed that these cell phones would afford evidence of the offence. Hence she had seized them pursuant to s. 489.

However, on cross-examination, it became clear that this officer did not have any such evidence at the time she seized the phones. Even the search warrant itself recited that the Accused was charged with making a threat by word of mouth.

Later, in her cross-examination this lead officer tried to claim that she had chosen the words in her statement poorly and that what she meant was that the phones could merely contain evidence relating to the threats. Her error was worse than simply a poor choice of words. She had inaccurately attributed spoken words to the girlfriend. Further, she could not articulate why she would have believed that the phones would have any relevant evidence on them at the time of seizure, other than that in general the Accused would have communicated with his girlfriend and his friend who was the target of the threats by phone. It is bad enough that she did not make notes at the time as to her justification for the seizure of these items, and that she then came to court eleven months later with misleading evidence attempting to justify the seizure. But further, it was also clear that she did not have reasonable and probable grounds to believe that there was any evidence to be found on these phones as required by s. 489.

Aggravating Factor 4: Plain View Doctrine and Criminal Character

The provisions of s. 489 set out a legislative scheme that is similar, though admittedly not identical to the plain view doctrine. This doctrine operates when a police officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. The common law relating to the criminal nature of this additional evidence was discussed in R. v. Cook. In that case the criminal character of the thing to be seized was described as having to be readily apparent to the searcher on seeing the thing without investigative examination, testing or other manipulation. It must, on observation, be found to afford evidence of a crime.

I believe that even under s. 489, the criminal character of the evidence that is found should also be readily apparent without investigative examination, testing or other manipulation. In regards to our case, this officer could not have been able to tell from merely looking at any of these phones without further manipulation or investigation that they contained evidence of any value at the time that they were seized, and as such the officer could not have had the necessary reasonable and probable grounds to conclude that they could afford evidence in respect of an offence as required under s. 489. The fact that there was a vacuum of information in the mind of the officer as to what, if any information could have been contained on these phones in the first place further diminishes her claim that she had the necessary reasonable and probable grounds to underpin their seizure. As such, the seizure of these items is highly concerning and clearly unconstitutional.

Aggravating Factor 5: Misleading Report Regarding Cell Phones

I also have significant concerns regarding the Report to a Justice filed by the lead detective on May 14, 2014 which justified the seizure of these phones. The report included the following statement for the benefit of the justice:

"The victim of this offence has reported to the police that the accused has been intercepting her text messages in order to control and keep track of her whereabouts. Text messages and internet searches on this phone may provide evidence to an offence of criminal harassment which is under investigation. Further, a witness in this case has reported that this accused has sent him text messages warning him to stay away from the first victim. Such text messages would be expected to provide evidence to assist in the prosecution of this matter as it relates to corroborating statements made by the victim and the witness in this case."

The problem with this justification of the seizure of the phones is that the lead detective who completed the report acknowledged in cross-examination that this information only came to light after the phones were seized and that both he and the officer who seized the phones had no reason to believe that these phones had any significance when they were seized on May 7, 2014. It should have been quite clear to the detective that it was wrong to rely on this information to justify the seizure of the phones under s. 489 of the Criminal Code. By doing so he would have frustrated the oversight of the justice of the peace.

Aggravating Factor 6: Seizure of Other Items

In the course of the search, many other gun related items that were not referred to in the search warrant were seized such as ammunition, a pellet gun, hand gun, rifle and various gun paraphernalia. As already stated, the seizure of many of these items was improperly justified by the two lead officers on the basis of s. 489. However, they also used as an excuse, the fact that they were somehow acting proactively since they anticipated that if the Accused were to be released on bail, he would be subject to a weapons prohibition. They further seized his building pass to the London Police Service where he was employed as a fellow officer on the basis that they believed that he would be suspended now that he was charged with a criminal offence. The warrant clearly didn't authorize these seizures and these actions breached the Accused's s. 8 Charter rights.

Aggravating Factor 7: Seizure of Medical Information

During the course of one of the lead officer's search of the kitchen cupboards, while she was looking for gun parts, she found prescription medication. She read and recorded the information on the labels, formed the opinion that it was a medication commonly used for mental health problems, and noted that it had a recent issuing date. She seized this medication claiming that she wanted to take it to the Accused, who was at that moment in custody, because he might need it, even though neither he nor his lawyer had requested it. There are several troubling things about this. First of all, one would not expect to find a shotgun in the kitchen cupboard that was being searched and she should not have been there looking in the first place. Further, she had no right to read and record the medical information as she did. The seizure of the medication and the information cannot be justified under s. 489 of the Criminal Code and was a breach of the Accused's s. 8 Charter rights.

In addition, on cross-examination, it became apparent that this police officer was not entirely as well intentioned as she had originally claimed since she acknowledged that she had been told that the Accused had mental health issues and that she believed that the medical information on the pill bottles might be a relevant factor in the offence that they were investigating.

Grant Analysis

With regards to the Grant analysis: Having determined these improprieties on the part of the police which have resulted in multiple infringements of the Accused's s. 8 rights, I now turn to the Grant analysis under s. 24(2) of the Charter to determine whether the evidence obtained by the search should be excluded.

Preliminary Matter: Tainted Evidence

As a preliminary matter, Counsel for the Accused argued that all items seized by the police during the execution of the search warrants should be excluded from evidence, including not only those items that did not provide relevant evidence but also the highly relevant evidence relating to the shotgun and the prohibited weapons. While I have found that the improper actions of the officers lead directly to the evidence related to the prohibited weapons, this was not the case in regards to the shotgun. There was no causal connection between the inappropriate actions of the police and their finding of the shotgun since they found it in the gun safe. On the other hand there was a causal connection between their inappropriate actions when they searched containers that were far too small to hold a shot gun and they then found the prohibited weapons.

The rationale for the defence request for the exclusion of all items related to the overarching misconduct of the police, which they claimed tainted the whole of the search and seizure process. It was argued that the court should not reward the police in these circumstances by sorting through their activities in an effort to rescue the good evidence and exclude the bad. It was suggested that if police could rely on the courts to do this, it would simply invite more unconstitutional conduct.

Indeed there is considerable case law that aligns with this defence argument. In R. v. Wittwer, 2008 SCC 33, at para. 21 it held in regards to a statement of an accused that:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at page 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of all three". R. v. Plaha, 189 O.A.C. 376, at para. 45. A connection that is merely remote or tenuous will not suffice: R. v. Goldhart, [1996] 2 S.C.R., 463 at para. 40.

In R. v. Kokesch, [1990] 3 S.C.R. 3 at p. 19 the court held:

"In my view, the nexus between the warrantless and unconstitutional search of the perimeter of the dwelling-house, and the subsequent discovery of the evidence, is sufficiently close that it can be concluded that the evidence was 'obtained in a manner that infringed or denied' s. 8 of the Charter."

In the same case, the court went on to state:

"Observations made by police officers during an unconstitutional search formed the foundation for a search warrant obtained the following day to search the observed premises. The temporal link was not broken by any intervening events and it follows that the evidence was obtained in a manner that violated the constitutional rights of the appellant. Consequently, it is necessary to engage in an inquiry, pursuant to s. 24(2) of the Charter, to determine the admissibility of evidence obtained during the subsequent search."

In 1985 the Supreme Court of Canada in R. v. Therens, [1985] 1 S.C.R. 613, at p. 649 held that it was sufficient to exclude evidence under s. 24(2) of the Charter if the infringement of the Charter right had preceded or occurred in the course of obtaining the evidence. It was not necessary to establish that the evidence would not have been obtained but for the violation of the Charter.

The Ontario Court of Appeal in R. v. Flintoff excluded the breathalyser results taken after an unconstitutional strip search of the accused even though the evidence could have been obtained without the violation of the Charter. Similarly, in R. v. Deveau, 2014 ONSC 3756, breath test results were excluded after the female accused was videotaped using the toilet at the police station. In neither case was the evidence obtained as a result of the Charter breach.

In 2014, the Supreme Court of Canada reiterated this theme in R. v. Mian, 2014 SCC 54, at paragraph 83 as follows:

"The Crown further submits that the breach was not serious because there was a lack of causal connection between the breach and the discovery of the evidence. However, a causal connection or lack thereof is not determinative. This Court has confirmed that a causal connection is not necessary in order to engage s. 24(2) of the Charter (Strachan, at pp. 1000-1002). Moreover, the first line of inquiry in the Grant analysis is concerned with the police conduct, and is not focused on the connection or lack thereof between the police conduct and the evidence."

So the question in our case therefore is, of all the evidence seized by the police as a result of their search of the Accused's motor vehicle and home, what is at jeopardy of being excluded pursuant to a Grant analysis? In my view, any evidence that was produced as a result of the improper activities of the police would be at jeopardy of being excluded. This would of course include the very relevant evidence relating to the prohibited weapons. In addition, many other irrelevant items were also illegally seized. However, the search and seizure of the shotgun was not in and of itself illegal.

I am, however, swayed by the context created by the series of missteps taken by the police. This includes their lack of respect for both the limits imposed by the search warrant and the provisions contained in s. 489 of the Criminal Code as well as their misreporting of the results of the search to the justice of the peace following their searches.

These improprieties carried through from the search of the motor vehicle and the house, to the misreporting to the justice after the execution of the warrants. All of the evidence produced as a result of these actions is part of the same transaction and course of conduct. As such, I am persuaded that as we proceed with the Grant analysis, the question is whether all or none of the evidence that resulted from these searches should be excluded.

The Grant Test

In applying the test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. p. 353, I remind myself that I must focus on two aspects of s. 24(2). That is, I must first have regard to all of the circumstances and then consider if they would bring the administration of justice into disrepute. The administration of justice is often meant to indicate the legal process of investigation, charge and trial. More broadly, it embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. It must be understood in the long-term sense of maintaining the integrity of, and public confidence in the justice system. It does not focus on immediate reaction to the individual case. The inquiry is objective and focuses on what a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude. The focus is societal. It is not aimed at punishing the police or providing compensation to the accused. Rather it is aimed at systemic concerns.

To this end, there is a three part test that must be applied to the facts in this case.

Step 1: Seriousness of the Charter-Infringing Conduct

How serious was the Charter-infringing conduct? In this case the police acted with little or no attention to the parameters dictated by the subject matter as set out in the search warrant. By unilaterally deciding that the warrant, which authorized the search for a shotgun-sized object, also somehow allowed them to search for pieces thereof, they circumvented the protection afforded to the Accused by the warrant. Instead of being confined to looking in spaces commensurate with the size of a shot gun, they attempted to justify looking in the smallest most private places of the Accused's home. Surely the officers would have known that by taking this stance they were circumventing the limits of the search warrant such that they could undertake a massive fishing expedition. Carried to its logical conclusion, their logic would allow them to look for a shot gun in a pill bottle. While they either had a significant misunderstanding of their authority or a lack of respect for the limits of the warrant, their course of action did not change even when a third officer refused to seize items that were found in a cabinet that normally contained miniature items and warned one of them that they were exceeding their authority.

To aggravate matters further, this unconstitutional behaviour carried through to the Report to a Justice in that they failed to identify the flawed judgments of the searching officers and the circumstances under which key evidence was seized. This misinformation would have prevented the justice from properly assessing the compliance with the warrant and also the seizures under s. 489 of the Criminal Code.

For reasons already stated, the seizure of the cell phones was completely unjustified, and yet the lead officer filed a further misleading Report to a Justice claiming a justification for their seizure that was known to him not to exist at the time they were seized.

Further they collected items that could never be justified under the search warrant, for instance, the Accused's medical information and medication, his access card to his place of employment and gun related items that they speculated that the Accused might later be prohibited from possessing. Many of these items were found when they improperly searched in spaces where they should never have been looking in the Accused's home.

These violations were not minor, understandable or inadvertent in nature. Rather they were deliberate, and serious. One could not say that the police acted in good faith, since ignorance of these well-known Charter standards cannot be interpreted as acting in good faith. I conclude that these findings strongly favour the exclusion of the evidence found by the officers.

Step 2: Impact on the Accused's Charter-Protected Interests

What was the impact on the Accused's Charter-protected interests? As a result of the actions of the police, the Accused's Charter protected rights to privacy and human dignity were violated. While the violation in this case was not as invasive as, for instance, a human cavity search, there is a high expectation of privacy with regards to one's home. However, the lead police officers went through almost every space or container they came across. They seized many items wrongly and collected medical information at which they had no business looking. The violation was not merely technical. Rather it was significantly intrusive on the rights of the Accused. I conclude that these findings favour the exclusion of the evidence.

Step 3: Society's Interest in an Adjudication on the Merits

What is Society's interest in an adjudication of the case on its merits? I note that it is likely to be fatal to the third count of the Crown's case if the evidence of the seized prohibited weapons were to be excluded from the evidence. These weapons are prohibited because of the injury and mayhem they can cause and I believe that a reasonable person would be concerned with the knowledge that the Accused is alleged to have had them in his unlicensed possession. However, the possession of these items is not the most serious of offences. Further, they weren't found in the Accused's nightstand or on his person at the ready for use. Rather they were stored away in the remote reaches of his basement.

With regards to the seizure of the shotgun, it is real evidence and is highly reliable, but if it were excluded from the evidence of the Crown, it would not be fatal to the Crown's case since there is already evidence that he was in possession of a long gun that fit the description of what was found. However, there is no doubt that it would lend credence to the evidence provided by the Accused's former girlfriend.

I conclude that these findings favour the inclusion of the evidence at this trial.

Balancing the Grant Factors

In terms of balancing these various factors, these three factors, I would say the following:

The smaller the item searched for, the greater the intrusion into the privacy rights of citizens. Police must not unilaterally augment their powers of search by deciding that an article named in a search warrant can be deconstructed into smaller parts.

Further, fair and accurate reporting by the police following the execution of the warrant to the justice who issued the warrant forms a crucial part of the check and balance of the intervention of the state into the privacy interests of the individual. While search warrants issued by a justice under s. 487 give special authority to the state to search for and seize specific items located in specific places at specific times, their equally important function is to set limits on the extent of the State intrusion. Providing misleading reports to a justice undermines the justice's ability to assess compliance with the search warrant. Any one of these missteps has the potential of undermining the rights of the individual and in turn, eroding public confidence in the justice system and bringing the administration of justice into disrepute.

However, these were exactly the missteps that occurred in this case. I do not condone the actions of the officers in this case and I wish to distance the court from any suggestion of approval.

In spite of the considerations that would have favoured the inclusion of the evidence produced by the execution of the search warrants, given the concerns raised by the overarching unconstitutional action of the police, all evidence that was produced pursuant to the searches that took place on May 7, 2014 will be excluded.

Adjournment

...WHEREUPON THIS MATTER WAS ADJOURNED TO OCTOBER 5TH AND 6TH IN LONDON COURTROOM 5 AT 10:00 A.M.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Annette Duquette (Authorized Person), certify that this document is a true and accurate transcript of the recording of R. v. Michael Sladek in the Ontario Court of Justice held at 425 Grand Avenue West, Chatham, Ontario, taken from Recording CD#1611_CR101_20150731_093128__6_GLENNL.dcr, which has been certified in Form 1.

Date: August 14, 2015

Signature: Annette Duquette