Court Information

Ontario Court of Justice

Date: 2018-03-08

Court File No.: Brampton 16-934-01, Brampton 16-934-02

Parties

Between:

Her Majesty the Queen

— AND —

Antonio Mediati and Sultana Dineff

Judicial Officer and Counsel

Before: Justice A.R. Mackay

Heard on: November 9, 2016

Reasons for Judgment released on: March 8, 2018

Counsel:

• Victoria Rivers — counsel for the Crown
• Sonya Shikhman — Counsel for the defendant Antonio Mediati
• Norm Stanford — Counsel for the defendant Sultana Dineff

Decision

MACKAY J.:

The Inclusion of Information Obtained in Violation of the Charter in an Information to Obtain a Search Warrant

Preliminary Issue

[1] As a preliminary matter to the Garofoli application the applicants seek a ruling excising from the Information to Obtain, the search of a third party's car in which cocaine was found on the basis that the search was found to be unlawful by Justice Maresca in another proceeding (R. v. Altomare, unreported, Brampton, January 28, 2016).

[2] I gave my oral ruling with respect to this issue on November 10, 2016. The Garofoli application is scheduled to continue on March 28, 2018.

Applicants' Position

[3] The applicant argues that because the information police obtained was a result of an illegal search they should not be permitted to use such evidence in an ITO authorizing the search of the applicants' home.

Crown's Position

[4] The Crown opposes the excision of the details of the search, seizure and arrest of Mr. Altomare on the basis that the applicants do not have standing to challenge the lawfulness of a search of a third party and seek a remedy.

Standing to Challenge the Search Warrant

[5] There is no question that the applicants have standing to challenge the validity of the s. 11 Controlled Drugs and Substances Act S.C. 1996 c 19 (CDSA) warrant to search their home.

Supreme Court Principles on Excision of Evidence

[6] The Supreme Court makes it clear that all reference to evidence that was obtained in violation of an applicant's Charter rights are to be excised from an ITO. Once it is determined that evidence was obtained as a result of a Charter breach that information is to be excised and the court will then determine whether there is a basis upon which the issuing justice could have granted the authorization with the remaining information. This procedure prevents the state from benefiting from the illegal acts of police officers without sacrificing search warrants that would have been issued in any event. (R. v. Grant, [1993] S.C.J. No. 98, at para 64)

Applicants' Argument Regarding Third Party Breach

[7] The applicants submit that a failure to excise the events of January 3, 2015 would allow the state to benefit from the unlawful arrest and search of a third party, Mr. Altomare. The police gave evidence before Justice Maresca that they were waiting and watching for a suspected purchaser to attend at the applicants' address so they could affect an arrest and then use it to obtain a search warrant of the applicants' home.

R. v. Guindon Analysis

[8] This issue was determined in the case of R. v. Guindon, 2015 ONSC 4317, [2015] O.J. No. 7169. Although I am not bound by the decision as Justice Bird was sitting as a trial judge, I find her decision to be persuasive.[1]

[9] In Guindon, Justice Bird makes the point that in cases dealing with the excision of erroneous information, there is no suggestion that the applicant has to establish a personal interest in the information to have it excised. The law is well established that all erroneous material must be excised from the information.[2]

Distinguishing R. v. Chang

[10] Justice Bird distinguished the Court of Appeal's decision in R. v. Chang, [2003] O.J. No. 1076. In that case, wiretap authorizations were granted by a Quebec court. Those authorizations then led police to obtain two authorizations in Ontario which were challenged on the basis that the Quebec authorizations should not have been granted. The applicant was not a named party in the Quebec authorizations, nor were his communications intercepted. While the appellants had standing to challenge the Ontario authorizations the court had to determine if they had standing to challenge the Quebec authorizations. The trial judge was concerned about parties going back and second guessing previous judgments. The Court of Appeal agreed with the trial judge that there had to be a principled reason for taking the inquiry back a step and a logical basis for stopping at that point. Permitting the review of another court's decisions would offend the general rule that a court order is immune from collateral attack. (Chang, paras. 40 to 42)

[11] In Chang, the court was being asked to conduct a full Garofoli review of the Quebec Immigration Authorization. This is not the case here. There has already been a ruling that the impugned evidence was obtained in violation of the Charter.

[12] In Guindon, Her Honour found that the arrests and searches of a third party were illegal. In the case before me, the unlawful search of the third party was determined by another Justice.

[13] The applicants are not attempting a collateral attack on another jurist's decision in seeking to excise reference to the illegal search and seizure of a third party. If this was the case, I would dismiss the application.

[14] In the case before me there can be no concern about the "process extending into infinity". The applicants are not requesting permission to litigate the unlawfulness of a third party search rather they are submitting that police should not be permitted to use evidence which has been judicially determined to be unlawful to procure a search warrant.

[15] In Chang, Molloy J. did permit an inquiry into whether the Quebec Judge had jurisdiction to grant the authorization. Her Honour stated that the defendant had standing to raise those issues because they related directly to "the legality of the evidence" upon which the Ontario authorizations were based. The Court of Appeal agreed with this approach (Chang, para. 38).

Crown's Case Law Arguments

[16] The Crown has referred me to a number of cases which she argues support a finding that a Charter breach of a third party cannot be excised from an ITO.

R. v. Marakah

[17] In R. v. Marakah, 2016 ONCA 542, the main issue to determine was whether the appellant had standing to challenge the seizure of text messages seized from another party's phone. The appellant challenged the search warrant on his residence and the search and seizure of both his and a co-accused cellphone. With respect to text messages that were found on the co-accused phone, the court found that the appellant did not have standing to challenge this evidence as he did not have a reasonable expectation of privacy.

[18] Marakah can be distinguished from the case before me. The applicants are not challenging the lawfulness of a third party search, rather they are submitting that given the finding of another court with respect to the illegality of a third party search, the police ought not to be able to rely on the unlawful activity to procure a warrant.

R. v. Jones

[19] Similarly in the case of R. v. Jones, 2016 ONCA 543, the Court of Appeal found that the appellant did not have standing to challenge the production order to obtain text messages. The trial judge applied the analytic framework set out in R. v. Edwards, [1996] 1 S.C.R. 128, and concluded that the appellant did not have standing to challenge the production order under s. 8 of the Charter. She found that there was no evidence of any subjective expectation of privacy on the part of either applicant. She also found that there was nothing to suggest from an objective standpoint that the applicants structured their affairs to maintain privacy.

[20] Again Jones is distinguishable as the court was concerned with whether the appellants had standing to challenge the lawfulness of a production order. If the trial of Mr. Altomare had not occurred and the applicants were asking me to find that Mr. Altomare's Charter rights were breached, the Supreme Court's decision in Edwards would apply and I would have dismissed the application on the basis that they did not have standing to argue alleged Charter breaches of a third party.

R. v. Croft

[21] In R. v. Croft, 2013 ABQB 716, Burrows J. held that the accused did not have standing to seek the excision from an ITO of information obtained through the violation of the Charter rights of a third person. However the court did excise information obtained from cell phone messages because they were obtained illegally in that they were not seized pursuant to an authorization under section 186 of the Criminal Code. Burrows J. excised this information on the grounds that it would render the Garofoli process unfair and on the basis of the common law abuse of process principles (Croft, paras. 25 to 33).

R. v. Tran

[22] In R. v. Tran, 2016 BCPC 159, 2016 BCPC 0159, Lamperson J. found that the defendant did not have standing to argue that information obtained as a result of Charter breaches of third parties should be excised from the ITO. Again Tran can be distinguished from the one before me in that the third parties Charter rights had not been previously litigated.

R. v. Dhillon

[23] In R. v. Dhillon, 2014 ONSC 6287, at para. 131, Conlan J., in a case dealing with facts similar to Tran, wrote:

This case is not purely about standing in the Charter context. The request to excise what happened with C.N. is not based on a remedy under section 24(2). The accused is not trying to assert a constitutional right vicariously through a non-party. He is arguing, as he is permitted to do under the common law notion of trial fairness, that to allow the police to benefit from what happened with C.N. in assessing the grounds to arrest Mr. Dhillon would be wrong.

Analysis

[24] On a Garofoli review where a search and seizure has already been found to be unlawful and evidence has been excluded pursuant to s. 24(2) analysis, I believe that it is a principled and practical approach to not permit that information to be included in the ITO for the following reasons.

[25] The evidence seized from the arrest of Mr. Altomare was found to be obtained as a result of a serious breach of his s. 8 Charter rights by an Ontario Court Judge. A failure to excise references to this evidence would permit the state to benefit from the illegal conduct of the police. If the court was not to distance itself from such conduct, Charter breaches of third parties would become a routine method used to obtain search warrants. The ends have never justified the means in our justice system. Justice Maresca had found that the officer's eagerness to obtain evidence to support the application for a search warrant led them to make an arrest that was not based on "objectively reasonable grounds" (R. v. Altomare, transcript of January 28th, 2016, p. 78 lines 1-14).

[26] In R. v. Grant, [1993] S.C.J. No. 98, at para. 64, the Supreme Court considered its earlier judgment in R. v. Kokesch, [1990] 3 S.C.R. 3, and stated that it stood for the principle "that evidence obtained during a search under warrant had to be excluded under s. 24(2) of the Charter where the warrant was procured through an information which contained facts solely within the knowledge of police as a result of a Charter violation."

[27] While Grant did not hold that a breach of a third party's right should be excised from an ITO, I am of the view that the Supreme Court in keeping with the principles enunciated in that case, would not tolerate and encourage police to engage in Charter breaches of third parties to obtain search warrants.

Court's Ruling

[28] Therefore, all references to the stop of Mr. Altomare's vehicle, his arrest and the seizure of the cocaine from his car on January 3, 2015 are to be excised from the affidavit and ITO in support of the search warrant. However, I will not excise the evidence with respect to their surveillance of Mr. Altomare at Mr. Mediati's house on January 3.

[29] It was not argued before me but it may be that inclusion of the information illegally obtained would render the Garofoli process unfair on the basis of the common law abuse of process principles as was stated in R. v. Dhillon. In addition, not excising the illegally obtained evidence could be found to deprive the applicants of their right to life, liberty or security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and thereby breach their s.7 Charter right.

Released: March 8, 2018

Signed: Justice A.R. Mackay

Footnotes

[1] R. v. Letourneau, 2008 ABPC 192, paras. 24–41.

[2] R. v. Araujo, 2000 SCC 65, [2000] S.C.J No. 65, at para. 58.