Court Information

Ontario Court of Justice

Date: August 8, 2018

Location: Toronto Region - Old City Hall

Court File No.: 18-15001868-02

Parties

Between:

Her Majesty the Queen

— AND —

Sharrieff Malik Muhammad

Judicial Officer and Counsel

Before: Justice H. Pringle

Counsel:

• Ron Krueger, for the Crown
• Barry Plant, for the accused Sharrieff Muhammad

Hearing Dates and Decision

Heard on: April 5, 6, 10, 2018; May 11 and 25, 2018; June 15, 2018; July 18, 2018

Reasons for Judgment released on: August 8, 2018

Decision

PRINGLE J.:

Overview

[1] The applicant successfully established a section 8 Charter breach in this case: see R. v. Muhammad, 2018 ONCJ 468. These supplementary reasons address the question of whether the evidence seized, pursuant to that warrant, should be admitted or excluded. As these reasons will explain, my analysis under section 24(2) of the Charter has led to the admission of the items seized into evidence at trial.

[2] On the section 8 application, the applicant established that the warrant could not have issued on the evidentiary record on review. This record included the excision of misleading statements from the ITO. At two junctures, the affiant D/C Chris Miller asserted that surveillance had been done when it had not been done. The affiant D/C Miller also referenced the applicant's "fairly lengthy criminal past" as mostly including "violent occurrences often while armed with a weapon", while omitting to explicitly state the applicant had no criminal record.

[3] Excising these misstatements led to my conclusion that corroboration of the Confidential Source (CS) information was quite weak, given that the corroborative impact of various database checks was slight. Weighing the Debot factors against the record before me, I found the issuing justice could not have issued the warrant on that basis and that section 8 was breached. The applicant, accordingly, sought exclusion of the evidence. The parties agreed that the written questions and answers of the affiant continued to form part of the evidentiary record on the issue of s. 24(2).

The Grant Test

[4] In making this decision, I am bound by R. v. Grant, 2009 SCC 32. The underlying purpose of this section is to protect, in the long-term, the "good repute of the administration of justice": see paragraph 67. The starting point must be that a Charter breach has already caused "damage …to the administration of justice": see paragraph 69. Admission of evidence obtained pursuant to that breach must not exacerbate the damage.

[5] The test is whether or not admission of evidence would bring the administration of justice into disrepute. Three categories inform this analysis:

• Seriousness of the Charter-infringing State Conduct
• Impact on the Charter-protected Interests of the Accused
• Society's Interest in an Adjudication on the Merits

[6] No single prong of the Grant test should overwhelm my overall analysis. Each must be weighed and balanced in full context with one another, before conclusions on admissibility or exclusion can be drawn.

Seriousness of the Breach

[7] I begin with the question of seriousness. In general terms, at paragraph 72 Grant defines this as asking:

…whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[8] More specifically, the conduct underlying the Charter breach must be placed on a continuum of seriousness, so that its impact on the long-term repute of the justice system can be properly understood. As Fish J. held in Grant at paragraph 74:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk brining the administration of justice into disrepute.

[9] Factors that may assist in placing the conduct on the 'seriousness spectrum' can include extenuating circumstances, good faith on the part of police, the presence of a pattern of Charter violations, ignorance of Charter standards, and wilful or flagrant disregard of established Charter standards: see Grant at paragraph 75.

[10] In assessing the seriousness of the Charter breach established in this case, it is relevant that the affiant sought judicial authorization to search the residence. I cannot leave aside the fact that a justice of the peace authorized this police search. In R. v. Rocha, 2012 ONCA 707, Rosenberg J.A. observed at paragraph 28:

Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence.

[11] I must, therefore, assess the import of the misstatements in this case and the intent behind those misstatements. As stated above, the applicant did not argue a bad faith foundation. Mr. Plant submitted, however, that the affiant was reckless in discharging his duty to be full, frank, and fair and that the ITO was "improvidently and carelessly drafted": Applicant's Supplemental Factum at para. 16. He relied upon the Supreme Court of Canada decision of R. v. Morelli, 2010 SCC 8, where despite the absence of any deliberate intent to deceive on the affiant's part, evidence seized pursuant to a misleading ITO was excluded.

[12] The ITO in Morelli was, in its essence and theme, a fiction. Read as a whole, it was materially misleading throughout. The ITO clearly communicated that a computer technician saw child pornography images on the appellant's computer. In reality, the computer technician had actually seen two bookmarked links, titled "Lolita Porn" and "Lolita XXX", and one legal adult pornography image. To make things worse, several misstatements and omissions created the unsupported inference that the accused was making actual child pornography videos in his home.

[13] While the trial judge had found the affiant had not deliberately intended to mislead, and the Supreme Court was bound by that finding, the breach still fell at the serious end of the spectrum. At paragraphs 100 through 103, Fish J. explained why:

The officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. At best, the ITO was improvidently and careless drafted. Not only did the ITO fail to specify the correct offence (accessing rather than possession of child pornography); it was also drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds. While the trial judge found no deliberate attempt to mislead, no attesting officer, acting reasonably, could have failed to appreciate that repeated references to "'Lolita Porn' on the screen" and to the deletion of "all the child porn off the computer" would cause most readers – and, more particularly, the issuing justice – to believe there was evidence that child pornography was actually viewed on-screen by the witness Hounjet.

Similarly, the officer should have known – if he in fact did not – that the immediate juxtaposition of these misleading statements and the incomplete description of the 'web-cam pointing towards toys' would be unjustifiably inflammatory.

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.

We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers.

[14] In Rocha, the ITO underlying a search warrant contained omissions and misstatements. A sub-affiant had deliberately, as his testimony proved, chosen not to disclose the informer's criminal record to the issuing justice. This was not an isolated incident, but the sub-affiant's systemic practice. The affiant had also drafted paragraphs to suggest that a sub-affiant independently corroborated numerous aspects of a CI tip, when this was simply not true. Finally, the affiant failed to swear his belief that drugs would be found at one of the target locations, which was "symptomatic of the lack of care" accorded preparation of this ITO.

[15] Given that the search was authorized by warrant, Rosenberg J.A. held, the breach could not be described as "egregious". However, he analogized the misstatements in the ITO to the misstatements in Morelli, and concluded "the ITO in this case in relation to the house is of such a quality as to put this case towards the serious end of the continuum in considering the first Grant inquiry."

[16] Morelli made clear that non-deliberate but misleading statements in an ITO can be still be "serious" in the Grant analysis. But the presence of misleading statements in an ITO does not automatically translate into a finding of bad faith or the intent to mislead: R. v. Sadikov, 2014 ONCA 72 at paragraph 87. Clearly, each case must turn on its unique facts. In my respectful view, assessing whether misstatements or omissions fall on the extreme end of the seriousness spectrum may include consideration of:

(i) the intent underlying the affiant's misstatements or omissions;

(ii) the affiant's adherence to his or her duty of fairness in an ex parte hearing, and;

(iii) the materiality of the misstatements/omissions to the ITO's thesis.

[17] When an affiant means to deliberately deceive the issuing justice, the mindset of that affiant makes the breach more serious: see, for example, R. v. Barton, 2013 ONSC 3366 at paragraphs 132 and 143. If the contents of an ITO palpably demonstrate a blatant disregard for the duty to be full, frank and fair like in Rocha, or establish a pattern of negligence when held against the trust our system vests in affiants, this constitutional inattention will make the breach more serious. Where, as in Morelli, the genesis of an affiant's misstatements are not born out of bad faith, but those misstatements go to the heart of the ITO's basis for asserting a crime has occurred, the breach is most serious.

[18] In the case at bar, following Rocha, supra at paragraph 28, I cannot call the breach "egregious" given the judicial authorization sought and given for the search. The applicant does not argue bad faith as the root of these misstatements, but that they evidence a reckless disregard for Charter standards. The Crown submitted these errors were the result of sloppy drafting and overenthusiastic language.

[19] Turning first to the affiant's incorrect assertion that surveillance had been done in this case, the evidentiary record is silent on why the affiant twice referenced surveillance as being part of his investigation. The affiant's questions and answers, which were tendered on consent of the parties, do not address this issue. Nowhere in the ITO did the affiant falsely assert any specific acts of surveillance took place, but in one of the references the affiant described the surveillance as corroborative.

[20] Looking at the structure of the ITO and where the use of the word "surveillance" occurred, I cannot rule out the possibility that the word was included twice because the affiant carelessly cut and paste the ITO's framework from a precedent. I do not necessarily accept it, either. But I lack sufficient evidence to characterize the affiant's incorrect use of the word "surveillance" as deliberate. In addition, the two references to "surveillance" in the context of this entire ITO pales in comparison to the misrepresentations in Morelli.

[21] The references to the applicant's "lengthy criminal past….(including) violent occurrences often while armed with a weapon" is a different matter entirely. The affiant described the results of a CPIC search of the applicant's name as revealing his name, date of birth, and address. The affiant detailed every occurrence, including prior arrests that resulted from other databank searches of the applicant's name. However, the CPIC search showed the applicant had no criminal record: see answer to question #9 in the questions and answers document. Knowing this, D/C Miller never explicitly said it, and omitted this fact from his description of the CPIC databank results.

[22] When looking at these factors in combination with each other, I can only conclude the affiant deliberately left out the fact that the applicant had no criminal record. In the questions and answers filed, D/C Miller claimed he was clear that the applicant had no criminal record. Respectfully, the affiant was not clear on this point whatsoever. An affiant must avoid misleading the issuing justice, both overtly but also by "strategic omissions": see R. v. Araujo, 2000 SCC 65 at paragraph 47.

[23] The language about the "lengthy criminal past" and "often while armed with a weapon" was obviously deliberate as well. The questions and answers attempted to justify using this language because the affiant believed that Mr. Muhammad was a "Project Originals" gang member. More simply put, this evidence showed D/C Miller used the language he did because he believed it to be true. However, the affiant had no real evidence to back up his assertion, and he omitted evidence that detracted from it.

[24] In sum, the misstatements and the omission cannot be described as either egregious or as harmless. The surveillance references were possibly the result of inadvertence. They do not, however, pertain to the heart of the criminal allegation in the way that the misstatements in Morelli did. They were not the product of bad faith. The exaggeration about the applicant's violent weapons-related history and omitting the absence of any criminal record did not comply with an affiant's duty to be full, frank and fair, even though the applicant did not argue bad faith. However, it did not pertain directly to either the heart of the criminal allegation or the substance of the CS information.

[25] Having accord to Rosenberg J.A.'s ruling in Rocha that "[u]nless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally….tells in favour of admitting the evidence." I cannot say this warrant was obtained because the affiant deliberately misstated the applicant's proven criminal history or lack thereof. The applicant's situation is very unlike that of Morelli, where the warrant was obtained because the affiant falsely stated that child pornography was found on the applicant's computer.

[26] I placed no weight, respectfully, on the submission that the breach was more serious because the source was untested on this record. The lack of information about the CS's past performance made the credibility component weak. But I did not know, on this record, whether the omitted information would have bolstered CS credibility, detracted from CS credibility, or made no difference to it. The credibility weakness lent itself to my conclusion that section 8 was breached. But I fail to see its role in section 24(2). Affiants are allowed to use a weak confidential source, as long as they are honest with the issuing jurist about it.

[27] D/C Miller, in his ITO, chose to rely entirely on corroborative short cuts available in the police database system rather than have police officers investigate the source information. No officer was tasked to investigate any connection between the applicant and the lease to [vetted target address and unit number]. No surveillance was ever done to ascertain whether the applicant was seen coming and going from that building. Instead, to corroborate this point the affiant chose to rely on the results of a databank search, and more particularly upon a dated and unexplained connection between the applicant and the apartment in question: see R. v. Muhammad, supra at paragraphs 18 and 57.

[28] His choice to do so significantly weakened corroboration of the CS information, and lent itself to the section 8 breach. Simply put, this was sloppy police work and there was no good reason offered, such as urgency, to justify it. Indeed, the affiant asserted that people in possession of firearms tend not to dispose of them. But akin to the comparable situation in R. v. Silva, 2017 ONCA 788 at paragraphs 6 and 11, the failure to do so "did not arise from an intention to mislead or deceive". While there was no evidence of bad faith, the choice to rely on stale database searches instead of current police work has still contributed to the seriousness of this breach.

[29] I have found the placement of this breach, on the seriousness continuum, a difficult and close call. The facts certainly do not rise anywhere close to the level of seriousness established in Morelli. They are closer in nature, but slightly less serious, than what Rosenberg J.A. was analyzing in Rocha. The applicant did not argue bad faith in the case at bar. This, to me, appears correct. There was no pattern of misstatements or behaviour from which I could draw a conclusion of bad faith.

[30] Balancing the misstatements and omission in the context of the ITO as a whole, the lengthy ITO was otherwise unobjectionable in content. Police could and should have done a much better job of corroborating the CS information, but I cannot call their reliance on database checks instead of actual investigative work the product of bad faith. In the end, I placed the seriousness of the breach closer to the lesser end of the spectrum. It did not, however, miss the mark the applicant sought to hit by much.

Impact of the Breach

[31] In oral argument, Mr. Krueger conceded that the impact of the breach weighed in favour of exclusion. I agree. There are few more invasive state actions than the execution of a search warrant into one's home. Sir Edward Coke, in Semayne's Case, (1604), 77 E.R. 194 asserted that "the house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose". Search warrants permit the state to kick those castle doors in.

[32] People are entitled to feel safe in their own home. People deserve privacy within the walls of their own home. It is where people are at their most vulnerable and their most intimate. Executing a search warrant robs everyone inside of that sense of sanctuary. As Mr. Plant correctly pointed out, the execution of a search warrant, particularly in the middle of the night, terrorizes everyone inside that residence, not just the target. Family, friends, and children become collateral damage, so to speak, when the state intrudes into a home. The impact of the breach strongly weighs in favour of exclusion.

Society's Interest in Adjudication

[33] Finally, society's interest in adjudication of this case on the merits weighs strongly in favour of admission. I appreciate, as per paragraph 84 of Grant, that the seriousness of these charges is a factor that cuts both ways. But the evidence seized is necessary for the Crown to try its case. Both the drugs and the firearm are reliable forms of evidence. In R. v. Blake, 2010 ONCA 1, Doherty J.A. held at para. 31 that "[s]ociety's interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded". Similarly, the Supreme Court in Grant stated at para. 81 that the "[e]xclusion 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". This aspect of the Grant analysis, applied to the facts of this case, supports admission of the evidence.

Balancing the Grant Factors

[34] Weighing the three Grant factors in combination with one another leads me to the conclusion that the applicant has not established, to a balance of probabilities, that the admission of the firearm and drugs would bring the administration of justice into disrepute. Admission will not send the message that this court condones state deviation from the rule of law, in the circumstances of this case. Accordingly, the evidence seized must be admitted at trial.

Released: August 8, 2018

Signed: Justice Heather Pringle