Court Information

Ontario Court of Justice

Date: December 14, 2017

Court File No.: (Niagara Region) 4560-99-16-6354 & 4560-99-16-6355

Parties

Between:

Her Majesty the Queen

___ AND ___

Deborah Sawdon & Sonja Sawdon

Judicial Officer and Counsel

Before: Justice of the Peace S. Lancaster

Heard on: October 13, 2017 at Niagara Falls

Reasons for Judgement released: December 14, 2017

Crown Prosecutor: K. Kim

Defence Agent: J. Johnson-Kelly, Blackadder Leon Marion & Fazari LLP

Issues

Charter s.8 – Security Against Unreasonable Search or Seizure and Application to Exclude Evidence pursuant to S.24(2) of the Charter

Ontario Society for Prevention of Cruelty to Animals Act (SPCA)

Reasons for Judgement

LANCASTER JP:

Background and Charges

[1] Deborah and Sonja Sawdon are before this court charged with 6 counts each under the Ontario Society for the Prevention of Cruelty to Animals Act, the Act, with offence dates of September 19 and October 4 and 19, 2016. The charges relate to the failure to provide the necessary animal care and adequate medical attention, food and water, along with permitting the animals to be in distress, obstruct an SPCA agent and fail to comply with SPCA orders. The Act defines 'Distress' as "the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect". They were arraigned and pleas of not guilty were entered by their agent.

Charter Application

[2] Before trial commencement the defence filed a Notice of Application to exclude the prosecution's evidence pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms (the Charter). The Applicants' submit that the execution of two search warrants was a violation of their right to be secure against unreasonable search or seizure pursuant to s.8 of the Charter. The Applicant submits that the information to obtain (ITO) "did not disclose the requisite reasonable grounds to justify the issuance of the search warrant dated September 19, 2016". The court received a 'certified true copy' of the two ITOs along with the two warrants as the Application contained draft copies.

Legal Framework

[3] Per R. v. Kutynec (pg 6), "Where an accused applies for an order to exclude evidence on the ground that there has been a breach of s.8 of the Charter, the onus is on him to assert and establish:

1. That the evidence was obtained in a manner which infringed or denied his right to be secure against unreasonable search or seizure;

2. That having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute …"

[4] Search warrants are issued or not issued by judges and justices of the peace upon reviewing an ITO. In this case, two ITOs were reviewed by two different justices of the peace who determined that the grounds supported the search warrants. The warrants were issued sequentially for the Applicants' Port Colborne "property and outlet buildings" with search dates of September 19, 2016 and October 4, 2016 with the latter warrant including their house. The Applicant's attack relates to the first ITO/warrant, although argues that both ITOs/warrants are deficient.

[5] This court recognizes that the Charter is supreme law in Canada and the protection it affords citizens not to be subjected to unreasonable search and seizure and particularly where privacy rights are at their highest, for example a dwelling house. As a reviewing justice, I recognize that "A judicially authorized search warrant is presumptively valid and the accused have the onus of demonstrating there was no basis for its issuance" on a balance of probabilities. (R. v. Latif, par.6)

[6] The Supreme Court noted in R. v. Garofoli (par.56), in reviewing the sufficiency of the ITO I am not to substitute my view for that of the issuing justice. Where "… the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere". In R. v. Latif, "An ITO is sufficient to support a search warrant if, in the totality of circumstances, it reveals reasonable grounds for the affiant to believe that the suspect committed an offence, and evidence related to that offence will be found at the target location". (par.8)

[7] R. v. Boussoulas notes that the reviewing court must appreciate that the justice issued their decision "based on the content of the ITO as a whole" noting "information disclosed within its four corners …" and assessing "… the ITO in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from the contents of the ITO" (par.9&7)

ITO-1 – September 19, 2016 Warrant

[8] ITO-1 notes that the SPCA received an anonymous tip and that Ms Deborah Sawdon has a history of avoiding SPCA contact, of not responding to SPCA horn honking at her gated property, of not responding to posted SPCA notices requesting call backs, that she self-identified as a "landowners association" member, and that she "struggles with mental illness and depression". Based on the tip and prior contact history, the affiant submits she has reasonable grounds to believe that animals are in distress at the subject property. The justice of the peace accepted these grounds and the warrant was issued.

[9] ITOs are ex parte applications where the affiant is obliged to make full, fair and frank disclosure of all material facts. From the ITO, the issuing justice could reasonably have inferred that Ms. Sawdon's history involves animal 'welfare concerns' as noted in the SPCA log, although neither the log nor any specific concerns were noted. The Respondent submits that as the tip was conveyed through a named city counsellor, this adds validity to the tip. This argument, without more, lacks merit for this court, although could have persuaded the issuing justice; it is not known if the issuing justice turned his or her mind to this.

[10] The ITO provides nothing to assess the reliability of the tipster or his or her motive for coming forward, e.g., animal welfare or disgruntled party. R. v. Tharmarajah addresses a similar fact situation, albeit in a criminal code context, involving successive search warrants and an "informant's tip (that) was sketchy"… provided by a person where credibility and reliability could not be readily tested". In that case Justice Stone noted that "… Detective Caplan acquired more information … more for supplementing the initial sketchy or vague … tip, or for adding badges of trustworthiness and reliability to the tip itself so that its contents could be relied upon". "Police investigation may establish, in effect independently, that some aspects of the tip are true, and therefore that the reliability … has been raised above zero …". "Of course in the ideal case, there is some assurance of personal accurate observation by the informant, coupled with some police confirmatory investigation, and supported by other independent circumstances". "[T]he (issuing) justice of the peace made notes on the ITO referencing informant credibility concerns" and officer corroboration, showing that he turned his mind to the reliability concerns (pgs.6&8). In the case before this court no such notes were made.

[11] The tip proffered was limited in terms of content, specifically 'small dogs being kept in a shed with no windows, lights or proper ventilation'. It provided no date, no offending party or how the tipster acquired the information, i.e., observed first hand or via another source, nor was the subject property location identified, despite the Respondent's Statement of Fact to the contrary (par.4). The ITO provided grounds in 7 sentences noting the anonymous tip, contact history, the self-disclosed struggles with mental health and depression, and ties to the land owner's association. Linking these antecedents to a propensity to cause animal distress is speculation from which no reasonable inferences could be drawn.

[12] Exhibit 1, the Applicant's Google Earth photograph, shows the visual distance from the front gate to the house and barn that could support the Applicant's contention that the car horn might not have been heard from the house or beyond on previous occasions. The Applicant submits that the SPCA log conflicts with the ITO's reference to SPCA records showing numerous postings as the log shows only one "posting". This argument has no bearing on whether the warrant could have been issued.

[13] The property is rural with restricted access that would limit SPCA surveillance. Exhibit 1 shows property buildings, if not a 'shed' although this information was not covered in the ITOs. The value of the tip is limited to causing an SPCA investigation, an investigation that should have extended beyond mere reference to past contact and calls for speculation.

[14] I find the ITO-1 to be deficient and that the issuing justice could not have granted this warrant based on the ITO 'four corners' rule. The warrant is unlawful because:

• The issuing justice was unable to determine how the informant obtained his/her knowledge

• There was no evidence provided by which an assessment of credibility of informant can be made

• There is no nexus established between the informant's tip, the subject property to be searched and the accused

• There was an inadequate description of the place to be searched either by the tipster informant or the affiant that provides the nexus for the issuing justice to reasonably conclude that the correct address was being searched

• Corroborative SPCA investigation was lacking in detail

• No reasonable inferences could be drawn from the grounds to justify issuance.

While the tip provides some details, the SPCA's corroborative investigation failed to provide 'full, fair and frank disclosure of all material facts'.

ITO-2 – October 4, 2016 Warrant

[15] While the tip was not part of ITO-2, the affiant noted the "… a mound of feces built up at different stages of decomposition. There was no clean water available or dry bedding", along with unsanitary conditions, "… observed skeletons of different sizes and shapes" and dead carcasses observed during the first search. "Most of the adult dogs were seen with fur loss on the hind quarters and some type of skin condition … (with) raw areas and scabs on the hind areas". The Application (par.22&29) notes a cat with a kitten with saggy skin and sunken eyes that were surrendered to the SPCA for welfare concerns.

[16] Constable Farquhar, Niagara Regional Police Service, attended with the SPCA officer on September 19, 2016, when Deborah Sawdon allegedly delayed entry to her property. When entering the backyard he observed Sonja Sawdon "running from the barn to the house with a full arm of puppies", with ITO-2 noting both defendants moving puppies from the barn to the house. He concluded that Ms. Sawdon was hiding the puppies in the house knowing that the warrant did not include the house. When he asked to be permitted access to the house the defendant refused. As the number of dogs was undetermined, with dogs believed to be in the house, and given the alleged Compliance Order breach regarding dog relocation, the second search warrant was sought and obtained. The Applicant submits that Sonja Sawdon was not at the gate to know that the warrant did not include the house. While she may, or may not have known the warrant's substance, her actions raise concerns and relate to the obstruct charge.

[17] The second warrant involves the residence and as such attracts an increased expectation of privacy. ITO-2 notes the findings from the initial search and alleged offences. The observations during both searches led to SPCA orders with compliance dates which were subsequently amended as the SPCA's concerns continued beyond the compliance date. For the factors noted I find the October warrant to be lawful.

Section 24(2) Analysis – The Grant Test

[18] Having found the first warrant breached the Applicant's s.8 Charter rights, this court turns to s.24(2) and R. v. Grant and the 'Grant test' to determine if the evidence obtained by the impugned warrant should be admitted at trial. Specifically, the court must balance and assess the affect the admission of the evidence would have on society's confidence in the administration of justice, considering the following three factors:

a) The Seriousness of the Charter-Infringing State Conduct

[19] In assessing the risk of bringing the administration of justice into disrepute when admitting evidence, Grant places "inadvertent or minor Charter violations at the low-end of the spectrum and "willful or reckless disregard of the Charter rights" at the high-end. While ITO-1 was found to be deficient, there was no affiant effort to mislead the court, and no concerns that the SPCA acted in bad faith, and no willful blindness as to the standards necessary to ground the warrant. The affiant may have relied on the issuing justice drawing inferences that this reviewing court found unreasonable. The warrant was executed with the assistance of the Niagara Regional Police Service and there were no alleged misconduct that this court would need to disassociate itself from that could compromise the confidence in our justice system.

b) The Impact of the Breach on the Charter-Protected Interest of the Accused

[20] R. v. Grant (par.76) speaks to interests protected and search impact ranging "… from fleeting and technical to profoundly intrusive". As per R. v. Harrison (par.28), "Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact?". The Applicant's liberty rights were not affected nor was the search demeaning to the Applicant's dignity. I would characterize the intrusion on the Applicant's Charter-protected interests, as a result of the September search of the barn and property to be at the low end. The outside property and barn would attract a lower expectation of privacy. Given the high number of previous SPCA contacts (27 according to the SPCA log) the Applicant would likely have been aware of the SPCA's interest in animal treatment on the property, dating back to 2010.

c) Society's Interest in the Adjudication of the Case on Its Merits

[21] Most domesticated animals are vulnerable creatures that rely on humans to provide care and prevent distress. The allegations are serious, involving an undetermined number of dogs, unsanitary living conditions and physical ailments. The evidence obtained is relevant, probative and reliable, and as the Respondent submits is essential to the prosecution's case. The inclusion of unreliable evidence or exclusion of reliable evidence impacts the public's perception of our justice system. While the underpinnings of the first warrant have been challenged, the circumstances leading to the Applicant's obstruct charges, the alleged history of avoiding SPCA contact and the alleged failure to abide by the SPCA orders, calls for case adjudication on its merits.

[22] As noted in Grant, "the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public' perspective, thus bringing the administration of justice into disrepute" (par.81). The public is considered a reasonable, objective community member who is informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

Warrant Wording and Technical Issues

[23] For clarity purposes, the warrant wording should be specific as possible, e.g., types of buildings, rather than "premises" "building or place", while recognizing these latter terms are noted in s.11.5(1) of the SPCA. While warrants must follow from the ITO it is noteworthy that only the October warrant included the dwelling, yet both warrants are identical, i.e., no dwelling reference. This is a concern, especially for the person subject to the search; this lack of clarity does not, however, invalidate the warrants.

[24] I note the inconsistent reference to Pinecrest Road (ITO-1 & 2 & Forms 1 & 2) and Pinecrest Street (ITO-2 Appendix A) and the Respondent's Statement of Fact (par.4). While considered typos this inconsistency could have benefitting from clarification. In R. v. Boussoulas (par.2&15) referring to R. v. Sadikov (par.87) 'inaccuracies in an ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or intent to mislead', much less a basis on which to quash a search warrant". The warrant was executed at the correct address well known to the SPCA.

Findings

1. ITO-1 warrant unlawful, infringing the Defendants' s.8 Charter rights

2. ITO-2 warrant lawful

3. Evidence resulting from both warrants not excluded

The Applicant has not met its onus and the application is dismissed.

Stephen Lancaster, Justice of the Peace