Court File and Parties
Date: 2019-10-04 Location: St. Catharines Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Jamal Williams
Before: Justice Fergus O'Donnell
Reasons for judgment released on: 4 October, 2019
Counsel:
- Mr. P. Wenglowski for the Crown
- Mr. V. Singh for the defendant, Jamal Williams
O'Donnell, J.
Overview
[1] On 23 March, 2017 members of the Niagara Regional Police Service ("NRPS") executed a Controlled Drugs and Substances Act search warrant at a small, walk-up apartment at 75 St. Paul Street in downtown St. Catharines. They found Lyndsay MacDonald and Jamal Williams in the apartment. They arrested Mr. Williams based on their belief that he was "Andrew", a person identified to the police by four confidential informants as routinely using Ms. MacDonald's apartment as an outlet to sell controlled substances. The police had "bulked up" the information they had received from the informants with a relatively short period of surveillance, limited to the day the warrant was executed.
[2] Tragically, Ms. MacDonald died fairly soon after her arrest. Mr. Williams thus appears before me alone charged with possession of cocaine and fentanyl for the purpose of trafficking, simple possession of hydromorphone and possession of the proceeds of crime, namely four-hundred-and-fifty dollars in cash.
[3] I have heard from the officers involved as well as from Mr. Williams. The evidence before me also includes expert evidence with respect to communications extracted from mobile phones seized in the apartment and an expert opinion on the issue of whether or not the cocaine and fentanyl were possessed for the purpose of trafficking.
[4] In the course of the trial, various applications were advanced before me, including:
(a) an application by the Crown to admit an utterance allegedly made by Mr. Williams in which he agreed that his street name was "Andrew"
(b) applications to admit the expert opinion evidence referred to above in relation to the phones and drugs
(c) an application to exclude evidence seized as a result of alleged violations of Mr. Williams's rights under sections 8, 9 and 10(b) of the Charter of Rights. The defence assert that Mr. Williams's arrest was unlawful and that all subsequent searches, including a strip-search, were unlawful. The defence also say that Mr. Williams was the target of racial profiling and that he was denied his rights to counsel.
[5] The Crown asserts that Mr. Williams has no standing to challenge the search warrant issued for the apartment.
[6] If the evidence relied upon by the Crown consisted solely of items found in the apartment but not allegedly in the personal possession of Mr. Williams, I would normally deal with the standing issue first. However, I have chosen to address the issue of standing later in these reasons because the most damning evidence is alleged by the Crown to have been found during a personal search of Mr. Williams, in an inner pants pocket. That evidence is a golf-ball-sized bundle of controlled substances, as well as the four-hundred-and-fifty dollars in cash. I begin with a detailed examination of the grounds for issuance of the search warrant because those grounds are largely the same grounds that the Crown relies on for the search and seizure of the drugs and money on Mr. Williams's person and continue to be relevant even if Mr. Williams has no standing to challenge the search warrant issued for apartment four.
The Search Warrant
[7] Appendix D to the information-to-obtain the search warrant sets out the informant's grounds for belief. About one page in total of the grounds has been blacked out to protect informer privilege. Also, none of Appendix E has been disclosed to the defence or to me. Appendix E is the "tearaway", i.e. the part of the information-to-obtain that typically sets out, among other things, grounds for reliance on the confidential informants, of which there were four in this case. In a practice that seems routine in this jurisdiction, the federal Crown has not sought to rely on a judicial summary of Appendix E, although Appendix E was part of the grounds relied upon by the informant to obtain the search warrant from the justice of the peace on 23 March, 2017.
[8] The step six process in Garofoli can be complex and time-consuming, which affects trial efficiency and the use of limited court resources. Obviously, it should be entered into in each case with one eye to whether or not the other grounds in the body of the information-to-obtain are sufficiently robust to render step-six unnecessary from the Crown's point of view and with the other eye to whether or not the Crown's decision not to proceed to step six in the particular case effectively constitutes leading with its chin as it enters into a Charter fight. The pattern in this region hews very strongly to never, or at least almost never, pursuing step six, which seems peculiar. Peculiar as that may be, however, the way the Crown prosecutes its cases is the Crown's business, not the court's. Yet, if the Crown chooses to proceed without the tearaway or summary, it does so at its own peril and the Crown and the community must live with any negative consequences of that choice. Those consequences may vary from case to case, ranging from no consequence to the implosion of the Crown's case. Basic principles of search warrant drafting suggest that the tearaway is in the information-to-obtain ("ITO") because it enhances the informant's grounds for belief and provides the issuing justice with a basis upon which to conclude that the grounds obtained from confidential informers are trustworthy; the placement of those details in a tear-away does not generally reflect an expectation that nothing in the tearaway will be disclosed for trial, but rather that the inclusion of particularly sensitive details in the tearaway will ensure maximum caution at the time of disclosure and minimize the chance of inadvertent disclosure or of sloppy editing. Details about confidential informers are among the most sensitive information in an ITO. In choosing neither to rely on the tearaway nor to proffer a judicial summary of its contents, as the law clearly allows, the Crown necessarily dilutes its grounds for issuance of the warrant and increases the chance that a reviewing judge at trial will find those grounds to be wanting. That will not always be the case because it may be that the grounds left in the ITO, including the observations made by surveillance officers, for example, suffice to justify the warrant, by corroborating the confidential informers and/or providing independent grounds to believe offences are taking place. However, it seems inescapable that there will be some cases in which the Crown's choice not to disclose the tearaway or a judicial summary will so undermine the strength of the informant's grounds that the warrant will fail, thus inviting an application to exclude any evidence seized under s. 24(2) of the Charter. Ultimately, the legal standard I must apply is whether or not, without the tearaway and without the other redactions in the general body of the ITO the search warrant "could" have issued, i.e. whether without those items the ITO satisfied the standard of reasonable grounds for belief.
[9] The present ITO sets out a description of the location to be searched and clearly makes out reasonable grounds for belief that Ms. MacDonald was living there.[1] The ITO then discloses, in four separate but basically identical paragraphs, that the investigation relies on information provided by four confidential informers to three NRPS officers. The confidential informers have been providing information for six months to several years. Each is said to have, "provided information in the past which has proven (sic) to be reliable and has resulted in successful search warrants and the seizure of drugs and currency with criminal charges being laid." Each is described as, "a proven, registered informant...," whose, "information is believed to be highly accurate". Each paragraph says that, "full background details," about each confidential informer, including whether or not each has a criminal record are to be found in Appendix E.
[10] Beyond that terse outline of what is in Appendix E, I, as the judge reviewing the sufficiency of the grounds for the warrant, have no idea what may or may not be in Appendix E. As a result, with respect to the credibility, motivation and trustworthiness of each confidential informer I have nothing before me other than the unhelpfully vague information that each confidential informer has provided information on an unspecified number of occasions leading to the seizure of items. The brevity and vagueness of that information is such that, in the absence of Appendix E, the assertion that each informer's, "information is believed to be highly accurate," is really nothing more than a conclusory opinion by the author of the ITO. In the absence of objective detail, no independent third party could, in the absence of corroboration or perhaps the contents of Appendix E, conclude that any of the informants is reliable.
[11] It should go without saying, of course, that the assessment of information relied upon by the police in exercising a search or arrest power must be conducted from multiple points of view. That fact has been clear for at least thirty years since the decision of the Supreme Court of Canada in R. v. Debot. In that case, Wilson J., whose analysis on this point was adopted by the remainder of the Court, observed:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[12] Those words from Debot have been cited countless times in the three decades since they were written. What has been cited somewhat less, however, are the subsequent two paragraphs, which put flesh on the bones set out above, namely, Wilson J.'s delineation of what made out "compelling" information on the facts before her in that case:
With respect to the first aspect, the following data was relied on by the police in deciding to investigate the activities of the appellant: (1) Constable Gutteridge had received information predicting a drug transaction between Carpenter, List and the appellant at the Carpenter residence on the evening of February 26, 1985; (2) the informant claimed to have acquired this knowledge directly from one of the actors; (3) the appellant had a prior conviction for a drug offence, albeit a minor one; (4) the other two participants in the transaction had convictions for narcotics related offences; (5) all three were reputed to be drug users and traffickers.
I find that the information received by Constable Gutteridge was sufficiently specific to warrant the attention of the police. The informant identified the participants and the courier, named the location of the transaction, and specified the time of day when the event would take place. He also gave the basis for his assertions, namely a conversation with one of the participants. The information did not take the form of bald conclusory statements or "mere rumour or gossip" to use the words of Martin J.A. at p. 219.
[13] In the present case, the existence of four confidential informers seems superficially impressive. However, closer analysis does dilute the initial strength of numbers a bit. For example, the information from confidential informer number one does not disclose whether "his" information was based on first-hand knowledge or gossip. The information from confidential informers number two, three and four carries more weight because it is allegedly first-hand from their own purchases. However, the alleged basis for the specific information from confidential informer number three that "Andrew", "hides the drugs on his person" and that confidential informer number three "believes he keeps it in his boxers", is not set out in the body of the ITO. There is no basis on the material before me to determine if there is any connection among the four confidential informers.
[14] The degree to which the confidential informer information is "compelling" is also undermined to some extent by the rather non-specific description of "Andrew". Depending on the source of the information, "Andrew" is, "a young black male", "a black male from Toronto", "a tall, thin and young black male in his 20's", or, "a black male, thin build, approximately 23 years old and has an attitude". I may as well deal here summarily with the defence allegation of racial profiling by saying that there is absolutely nothing in the record before me to suggest anything close to that on the part of the police. However, the willingness of various officers to conclude, based on this sparse description, that the person seen outside 75 St. Paul Street on 23 March, 2017 was necessarily "Andrew", suggests a leap to judgment based on vague information. The description, of course, is not entirely irrelevant; for example, it would presumably cause an observer to eliminate any short, middle-aged white men from their list of possible "Andrews".
[15] I note that it does not appear in the ITO but various police witnesses said that their confidential informer information described "Andrew" as having brown hair. Mr. Williams's hair was not brown at the time of trial and there was no evidence to suggest his hair colour had changed from arrest to trial.
[16] None of this is meant to suggest that it is essential that any particular piece of information be compelling, credible and corroborated. That is not the law. My point here is simply a selective contrast of the situation in Debot and the situation here. Ultimately the issue is whether on the totality of the evidence in the ITO, to the extent that it is before me now as the court reviewing the search warrant, reasonable grounds were made out. A weakness under any of the "three Cs" may certainly be compensated for by one or more of the others.
[17] One of the other "Cs" derived from Debot stands for "credible". I shall not dwell on this point. The absence of Exhibit E from the trial record leaves me with the vague, conclusory opinion of the ITO author that the four confidential informers have a track record and are thus reliable. There may be ample objective factual bases for those conclusions, but they are not before me as I have neither Appendix E nor a judicial summary, a tool the Supreme Court has consciously allowed for. That is a choice that the Crown has made and the Crown must live with the consequences of that choice. Other than the ITO author saying the informers have a positive track record, I know nothing about that record, for example about its frequency or its breadth. I do not know how often they have given information, how often they have been right or how often they have been wrong. I know nothing about the informers' backgrounds or their motivation. For one of them I do not know if the information is first-hand or gossip. I stress that this is not a reflection on the author of the ITO; for all I know the contents of Appendix E might address all of these concerns; that is what tearaways are for. Ultimately, it is the job of the ITO affiant to set out why he thinks his grounds are credible, it is the job of an independent judicial actor, both at the time of issuance of the warrant and at the time of any challenge, to decide whether or not the ITO author's conclusions are objectively supportable.
[18] The third "C" in Debot stands for corroborated. It seems to me that there are two forms of "corroboration" here. First, there is the corroboration of some of the basic facts, such as the fact that the late Ms. MacDonald lived in unit 4 at 75 St. Paul Street and the layout of the building.
[19] It was suggested by Mr. Singh that the preliminary police walk-through of the interior corridor of 75 St. Paul Street was itself a Charter violation.[2] In support of that application he relied on the decision of the Court of Appeal for Ontario in R. v. White, 2015 ONCA 508, which involved the expectation of privacy that a condominium resident has in the common areas of a condominium. It would not normally be apt for a trial judge to declare himself to be unconvinced by a judgment of the Court of Appeal, except that in the present case that court's judgment in White sits astride its own decision in R. v. Laurin (1997), 98 O.A.C. 50, which dealt with the expectation of privacy that an apartment resident has in an apartment building. The Court of Appeal panel in White specifically referred to the distinction between an apartment building and a condominium, which alone undermines Mr. Singh's argument here. However, on a broader basis, it seems to me that the only "material" difference between the circumstances in White and those in Laurin is that one was an apartment and the other a condominium and that the occupant of the apartment had no, "ownership interest in the common areas of the building" (at para. 37 of White). As a general rule, people who rent apartments, especially those with less secure ingress control, tend to be of a lower socio-economic status than those who own condominiums. It is a concerning proposition indeed that a person's rights to keep the state away from her castle, however modest, would vary based on whether she was rich or poor. It is particularly hard to understand when one considers the extent to which a modern condominium building will be occupied by owners, long-term renters and short-term renters from sites such as Airbnb. Does the owner-occupant of unit 810 have greater constitutional rights than the long-term, tenant-occupant of unit 811 across the corridor? Ultimately, these are issues that will have to be resolved either in the Supreme Court of Canada or by a five-judge panel of the Court of Appeal. Since the court in White did not sit as a panel of five and since I cannot, even with diligent effort, reconcile the outcome in White with the antecedent outcome in the same court in Laurin, to the extent that they conflict I find the reasoning in Laurin more convincing and determine the issue of the corridor "intrusion" on the basis of the Laurin decision. Ultimately, while both rich and poor may live in either multi-unit buildings or single residences (albeit likely in different neighbourhoods), and while one's expectation of privacy will ultimately depend on all of the facts of a particular case, it seems inescapable that the simple realities of multi-unit living will almost always result in a diminished reasonableness of one's expectation of privacy when any of several, or dozens or hundreds of one's fellow residents (and countless of their guests) have the ability and right to stroll the corridors of one's building.[3]
[20] Having concluded that the walk-through has not been demonstrated to have constituted a Charter violation, I am free to take the observations from that walk-through into account as a form of corroboration of the confidential informers' information in the sense that the informant's observations are generally consistent with the descriptions of the physical layout given by some of the confidential informers. That being said, however, confirmation of both Ms. MacDonald's residency in the apartment and of the general layout of the corridor carries limited corroborative force. Of course, corroboration does not have to be of the precise criminality of the behaviour alleged (or else the police would have no need of the informer's information), but certain types of "corroboration" will be of fairly general knowledge that provides less assurance that the confidential informer necessarily knows whereof he speaks in relation to a crime being committed. This is the point made by Doherty J.A. for the Court of Appeal in R. v. Lewis.
[21] In cases of this nature, of which there are a great many in this court, the most relevant form of corroboration of information from a confidential informer about a suspect's drug activity comes in the form of police surveillance of the suspect or his or her residence. The value of those observations as corroboration will vary based on numerous considerations including the frequency and duration of the surveillance, the number of observations made, the extent to which those observations are suggestive of drug trafficking and not likely consistent with innocent activities, the identities of the people interacting with the suspect (e.g. are they known drug users, a detail that may tend to be more known among drug officers in a smaller jurisdiction than in a much larger city) and the nature of the location under surveillance. For example, a short visit may be consistent with drug trafficking, although it may mean many more things. At the far end of the scale, a few days of surveillance demonstrating a dozen short visits, largely by known drug users to a door that leads solely to the defendant's home, ideally when the defendant is known to be there, even more ideally involving face-to-face interaction, perhaps along with evidence of mobile trafficking would have tremendously more corroborative force. Indeed, the latter scenario may constitute such powerful corroboration that the absence of the tearaway setting out the confidential informers' history may not be fatal. On appropriate facts I have reached that very conclusion in the past. At a certain point the surveillance evidence may simply be overwhelming: if it looks like a duck, walks like a duck and quacks like a duck often enough, it's probably a duck.
[22] As I noted above, I have in the past found that the Crown's withholding of the confidential informer tearaway from the trial record is not fatal, i.e. when the corroborative force of the surveillance was particularly strong. The question is whether or not this is a similar case.
[23] The short answer is that it is not. The surveillance here was relatively short, about six hours on one day.[4] As I have said, a short attendance can be ambiguous. A short attendance at a multi-unit residence has even less corroborative force. When I look at the overall number of "corroborative" attendances either at the building or in-person, the inescapable reality is that the combined corroborative quality and quantity of those observations falls far short of providing the level of confirmation of the confidential informers that is required when the grounds for relying on them otherwise remain sealed within the tearaway. When the forces of the Crown seek to invade the citizen's tenement, ambiguous, vague and infrequent attendances are the Crown's Achilles heel.
[24] In conclusion, I find that the grounds revealed on the ITO were somewhat compelling in their content in the sense that they reflected mostly first-hand observations, that they lacked entirely in any foundation for me to determine that the sources were credible and benefited only from minimal corroboration in the sense that the police confirmed Ms. MacDonald's address and the building layout, but saw only a smattering of attendances that were entirely inadequate in their number and nature to corroborate the confidential informers' tips in any material way. To call what the police observed on that day to be strong enough to constitute a pattern of anything corroborative of anything would be to do violence to the word "pattern".
[25] Consequently, I am of the view that the ITO, as presented for the trial record, bereft of the tearaway, Appendix E, was entirely insufficient to satisfy the reasonable grounds for belief standard to authorize a search of Ms. MacDonald's apartment on 23 March, 2017.
The Standing Issue
[26] That being said, however, the Crown argues that Mr. Williams has no standing to challenge the search warrant at Ms. MacDonald's apartment because he was nothing more than a privileged guest. It is self-evident that before a defendant can challenge a search, he must establish on a balance of probabilities that he has a personal expectation of privacy in the place searched.[5]
[27] Mr. Williams testified. He said that there was a person named Andrew who lived in the building, but that was not his own nick-name and he never told the police that it was. He denied being involved in drugs, although he said he had been a user before. The only drug he continued to use was marijuana and he had even gone to a dispensary to get some that day, an event seen by the surveillance officers. Otherwise, Mr. Williams said he was clean and was trying to help Ms. MacDonald get clean because her family life was messed up. She was a heavy user of drugs. He denied that the golf-ball-sized bundle of torn plastic and drugs that the police said they found in his pocket was his. It wasn't even in his pocket, he said. It was only after the searching officer had searched him twice and had reported doing that to his colleagues that Mr. Williams heard another officer in a separate room tell the searching officer to, "search again", after which the searching officer "found" the bundle of drugs in Mr. Williams's pants pocket.
[28] In the course of his testimony, Mr. Williams testified about his relationship to the apartment. He said that Ms. MacDonald was his girlfriend and that he split his time between that apartment, which she had only recently moved into, and his mother's home in Brampton. He commuted into a construction job in Toronto by bus except at those times when he was staying with his mother. He was asked in cross-examination to identify what items in the apartment were his and his answers made sense. He identified various male toiletries that had been omitted from the police testimony about any indicia of male residency. He also pointed to certain items that had a ring of truth to them in relation to what a twenty-three year-old male might not leave home without, such as his television and his PlayStation and his DVDs. Mr. Williams was very forthright in describing his history with Ms. MacDonald and in describing her and his connection to that apartment in particular. I had no sense that he was exaggerating and his descriptions of what was where and what was whose were entirely believable.
[29] That being said, without going through the process item by item in relation to Mr. Williams's testimony, if one were doing a check-list of indicia for standing as set out in the Supreme Court of Canada decision in R. v. Edwards, Mr. Williams's testimony would barely register on the scale for establishing standing to challenge the search warrant. The non-exhaustive list of considerations set out at paragraph 45 of the Supreme Court's decision in Edwards is as follows:
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
[30] The only one of those considerations that Mr. Williams satisfies is the first, i.e. his presence at the time of the search.
[31] Accordingly, Mr. Williams has failed to demonstrate that he has standing to challenge the search warrant issued for apartment 4 at 75 St. Paul Street.
The Search of Mr. Williams
[32] As I have said, the principal items relied upon by the Crown were allegedly seized from Mr. Williams's person, not from the apartment itself. Those items are the large bundle of torn up plastic bag fragments containing controlled substances and the cash. A bag of suspected heroin found in the bathroom tested as caffeine. There was also a mobile phone seized from the couch in the vicinity of where Mr. Williams was seated that had on it a series of communications that, even without the opinion evidence provided by the drug expert, which I accept, realistically bear no reasonable interpretation other than that they are the communications of an active drug trafficker.[6] That phone was one of three phones seized from the same area. The content of the messages, which include reference to "'drew" would make it inescapable that "'drew", a fairly obvious short form for "Andrew", was an active dealer in controlled substances. Of course, the evidentiary relevance of that conclusion would depend on whether or not the Crown had proved that the particular mobile phone was Mr. Williams's, either by it being in his possession (it was certainly in his vicinity) and/or by satisfying the trier of fact that Mr. Williams's nickname was "Andrew".
[33] Of course, Mr. Williams has a different version of what happened on his personal search. He says that the searching officer searched him twice and found nothing, which the searching officer then reported to his colleagues in another room. After that a voice from the other room told the searching officer to search Mr. Williams again, whereupon the bundle of drugs was "found". Mr. Williams denied that those drugs were on his person. His testimony could be interpreted in a variety of ways, for example that he had no drugs on his person, or alternatively that he had no knowledge and control of any drugs in the apartment at all. Among the available conclusions, if Mr. Williams's evidence is true, is that the police simply "planted" drugs on him or alternatively that they took drugs they had found elsewhere in the apartment and then "found" them in his pants, which would necessarily make the case for possession much stronger than it would be if the baggy "found" in Mr. Williams's pants had been found on the bathroom shelf adjacent to the similar baggy of caffeine that was initially suspected to be heroin. I do not have to make a final determination on that issue and am disinclined to make an actual finding when it is not necessary to do so as either interpretation involves a very serious allegation of misconduct. If I did have to make a final determination on that issue, however, one of the challenges I would face would involve assessing the significant level of detail in Mr. Williams's description of the supposed triple search of his pants, including his assertion that the searching officer paid virtually no attention to his torso.
[34] When it comes to the issue of standing, there can be no argument that Mr. Williams has a reasonable expectation of privacy in the clothing he was wearing on his body on 23 March, 2017. His argument for standing on that search is as strong as his argument for standing on the search warrant was weak. That search was incident to his arrest for possession of controlled substances for the purpose of trafficking. For that arrest to be valid, it must have been based on reasonable grounds for belief that he was in possession of controlled substances. Reasonable grounds for belief is the same standard for the issuance of a search warrant. Determination of whether or not those grounds existed must be made based on the record as it exists before this court, i.e. once again without the benefit of the absent tearaway, Appendix E.
[35] I shall not repeat my search warrant analysis here. While it may be that the police, knowing whatever is in Appendix E, did have reasonable grounds to arrest Mr. Williams (i.e. that the confidential informers were credible and that the "Three C" test set out in Debot was satisfied), I as the reviewing judge have no basis upon which to assess or to share that belief because the Crown has chosen to proceed without reliance on Appendix E or to resort to a judicial summary of it. Accordingly, on the record before me the arrest of Mr. Williams was not based on reasonable grounds for belief and was thus unlawful.
[36] There is a separate legal justification for searching Mr. Williams that is set out in s. 11(5) of the Controlled Drugs and Substances Act. That section provides for the search of "found-ins" when a drug warrant is executed. However, built into s. 11(5) is a requirement for reasonable belief that the person to be searched is in possession of a controlled substance or precursor. I am satisfied that on the evidence before me there were insufficient grounds for the Crown to satisfy s. 11(5).
[37] The arrest and search of Mr. Williams was unlawful, which means that any search of him purporting to be incident to that arrest was unlawful. Mr. Williams has made out a violation of his personal rights under s. 8 of the Charter.
[38] I note that I have taken into account the fact that the application of the reasonable grounds standard in the context of arrest and in the context of search warrants is not necessarily the same. The law accepts this long-recognized distinction because of the very different dynamics that may apply in a dynamic arrest decision where the officer very often lacks the luxury of long reflection on whether to arrest or not to arrest. That distinction, however, really does not come into play in a case such as this where the officers had been compiling information on Ms. MacDonald's apartment and on "Andrew's" activities from January to late March, 2017, including several hours of surveillance on the terminal date. There was no absence of time for reflection in this case, just inadequate reflection or grounds that have not been shared with the trial court.
Section 24(2) of the Charter of Rights
[39] The finding of a Charter violation is not the end of the inquiry. Where a violation has been found, the applicant must satisfy the court that the admission of the impugned evidence would bring the administration of justice into disrepute. The decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 is the foundation stone for analysis of s. 24(2) of the Charter of Rights. Grant sets out a three-part test whereby I must consider and balance: (a) the seriousness of the violation; (b) the impact of the violation on Mr. Williams's Charter-protected rights; and (c) the public interest in a determination on the merits.
[40] With respect to the seriousness of the violation, I cannot make any allowance for the possibility that the redacted portions of the ITO including the tearaway might cast the decisions of the police in a more flattering light. The Crown has made its bed and must lie in it. On the record before me, the violation is at least middling-serious insofar as the police decided to arrest a person on information for which there was no credibly-based justification. The seriousness of the violation is exacerbated by the clear view of the police that their very limited and ambiguous observations over a short period of time clearly demonstrated that Mr. Williams must have been "Andrew". This is not malicious, but it does reflect tunnel vision and an insufficiently critical assessment of the evidentiary weight of their observations on the part of the investigators. The seriousness of the violation leans at least somewhat in favour of exclusion.
[41] With respect to the seriousness of a personal search based on an unlawful antecedent arrest, the planting allegation is actually irrelevant and I make no finding on that allegation. Obviously, if I were convinced on a balance of probabilities that the drugs were planted on Mr. Williams (in either of the senses articulated above), other Charter issues would arise as well as serious credibility issues and serious issues about whether or not possession had been proved.
[42] In assessing the seriousness of the Charter violation, I have not taken into account the assertion of a concurrent s. 10(b) violation including whether or not that should factor into the mix under the decision of the Court of Appeal in R. v. Pino, 2016 ONCA 389. One thing that seems clear on the record is that Mr. Williams did not know the proper spelling of the name of the Toronto lawyer whom he wanted to contact. The police can hardly be faulted for being unable to locate counsel of choice when the client does not know the spelling of his name and where the police are thus required to rely on phonetic speculation. In general terms, keeping in mind that the onus on the s. 10(b) application lies on Mr. Williams, I am not satisfied on a balance of probabilities that the police fell short of what was required of them, either in relation to his counsel of choice or in relation to telling him of his access to duty counsel. What I did find somewhat disconcerting was the lack of consistency among the officers over whose responsibility it was to ensure that the s. 10(b) right was given effect, as among the arresting officer, the transporting officer (a uniformed officer not connected to the case) or the desk sergeant. If I recall correctly, I believe I heard three different versions at least of where that obligation lay. At the end of it all, the whole thing had a bit of a "Who's on First?" flavour to it, which is not optimal when one is dealing with ensuring a detainee's access to counsel.
[43] With respect to the impact of the violation on Mr. Williams's Charter-protected rights, I have concluded that the violation was serious insofar as it involved a search of Mr. Williams's person, obviously a privacy interest greater than a person's home, and that it ultimately led to a strip-search at the station. Obviously, a lawful search leading to the discovery of the bundle of drugs allegedly found in Mr. Williams's pants would almost certainly justify a strip search at the station, all the more so if there were a credible and well-sourced allegation that he was known to carry in his boxers as the ITO alleged. However, an unlawful arrest leading to a personal search leading to a strip search is a patently more serious impact than a search that did not lead to a strip search. The impact of the violation on Mr. Williams leans strongly in favour of exclusion.
[44] With respect to society's interest in an adjudication on the merits, the money and drugs are reliable, real evidence, without which the Crown's case cannot stand. As is almost always true in cases like this, the exclusion of this evidence will scupper the Crown's case and deny society a decision on the merits in relation to serious offences. This factor favours admission.
[45] Balancing all three factors, I have concluded that the admission into evidence of the drugs and money allegedly seized from Mr. Williams would bring the administration of justice into disrepute. Those items are excluded from this trial.
The Hydromorphone
[46] Mr. Williams also faces a charge of simple possession of hydromorphone. Those tablets were found in a pill bottle on the bed (which is where Ms. MacDonald was found when the police entered the apartment) and in a purse behind a bookshelf in the kitchen. In order to obtain a conviction on that count, the Crown has to demonstrate that Mr. Williams was in "possession", which necessarily denotes a sufficient element of knowledge of the drug's presence and of control. Given that the apartment was Ms. MacDonald's and not Mr. Williams's, although he was a frequent privileged guest by his own admission, and in the absence of any other evidence beyond Mr. Williams being found in the broad proximity of those two sets of pills, it would be unsafe for me to conclude that the Crown has proved possession beyond a reasonable doubt.
Other Issues
[47] Various other issues were argued before me. I shall deal with them summarily.
[48] First, it was alleged that Mr. Williams was denied his right to counsel in violation of s. 10(b) of the Charter of Rights. I have addressed that issue above.
[49] Second, it was alleged that Mr. Williams was subjected to an unlawful strip search at police headquarters. Realistically, the strength of justification for a strip search will start with the grounds that justified the search warrant and be augmented by anything discovered on the arrestee's person or in the search location at the time of the arrest. If the trial record showed that the confidential informers in this case had an objectively verifiable track record of reliability and if Mr. Williams was found in personal possession of the golf-ball-sized bundle of drugs, it would seem inescapable that a strip search would be justifiable.
[50] Third, it was the evidence of one of the drug officers that Mr. Williams had admitted that his street name was Andrew. Mr. Williams denied saying any such thing. This utterance was the object of a voir-dire. I do not propose to dwell on this issue. It seems clear to me that there is no basis on the evidence to suggest that any such utterance was the fruit of any inducement, promise of advantage or the like. There is no basis in the record before me for that conclusion. However, I am simply not satisfied to the requisite standard that the utterance was made. Mr. Williams has denied it and I do not have a firm basis to reject his denial, especially when the officer testifying to the utterance said he and his colleagues had a good laugh at how easily Mr. Williams gave that damning admission up, yet there is nothing in the evidence of any other officer about that utterance. That is not to say that the officer testifying to the utterance was dishonest, simply that a stronger evidentiary basis would be needed for me to reject Mr. Williams's denial and to accept that assertion as proved in a criminal trial.
Summary
[51] The grounds for the search warrant for Ms. MacDonald's apartment as articulated before me (as opposed to whatever was before the issuing justice, i.e. in Appendix E) were insufficient for the warrant to issue. Mr. Williams, however, has no standing to challenge that warrant.
[52] Mr. Williams, however, was arrested and searched incident to that arrest. An arrest also requires reasonable grounds for belief. The Crown has failed to prove on the record before me (i.e. without articulating whatever grounds there may have been in Appendix E), that there were reasonable grounds to arrest Mr. Williams.
[53] The alternate ground for searching Mr. Williams that was articulated by the Crown was the statutory "found-in" search provision in s. 11(5) of the Controlled Drugs and Substances Act. That provision, however, is also triggered by the reasonable grounds for belief standard, specifically that the person to be searched during the search is in possession of a controlled substance, precursor, etc. Those reasonable grounds have not been made out.
[54] No other justification for the search of Mr. Williams was articulated before me.
[55] The arrest of Mr. Williams was unlawful and the search immediately after that arrest was in violation of s. 8 of the Charter of Rights.
[56] The admission of the cash seized from Mr. Williams and of the drugs the police say were seized from his person would bring the administration of justice into disrepute and that evidence is excluded from his trial. Without the drugs and cash in evidence, the remaining evidence on the possession for the purpose of trafficking charges and the proceeds of crime charge is insufficient to make out those allegations.
Released: 4 October, 2019
Footnotes
[1] I note that the ITO includes a photograph of the front of the address. The use of photographs and other drafting techniques in an ITO can be tremendously helpful. However, I also note that the photograph used in this ITO has two directional chevrons on it, strongly suggesting that it is not a police photograph but rather an image from a database such as Google Street View. Affiants would be well-advised to use such sources with caution since such databases are updated infrequently, while the actual world they portray can change daily. In this case, a comparison of the image at paragraph 15 of the ITO, for example, shows an entirely different locking system for the front entrance than the one in place on 23 March, 2017. Ultimately, nothing in this case turns on the discrepancy, but in another case it might.
[2] It was the evidence of the police officers that the front and rear street-level doors to 75 St. Paul Street were not secured, in particular that they were kept in the open position by some person unknown who had extended the dead-bolt while the door was open so that it would extend across the door-frame and thus keep the door open. It was Mr. Williams's evidence that the door was not kept closed in that fashion; the evidence is that he had personally used that front door at least a couple of times that afternoon. Mr. Williams pointed to damage to the door frame, which is visible in the police photographs. That damage consists of a shallow strip of the wooden door frame adjacent to the door that has come off for a length of perhaps eighteen inches or so above and below the strike plate. While I found Mr. Williams's evidence in general to be balanced, the onus on him on this issue would be to demonstrate on a balance of probabilities that the police had forced the front door open for the purpose of doing their walk-through. (If they had only pried the door open for the purpose of executing the search warrant, that would have been lawful in light of the broad language of s. 12(b) of the Controlled Drugs and Substances Act.) I simply do not have a basis to prefer Mr. Williams's version of events over the police version and since the onus lies on him in this issue, I cannot make a finding that the police did their walk-through by forcing a locked street-level door.
[3] Whoever comes to the ultimate task of reconciling the inescapable conflict between the outcomes in Laurin and White would be encouraged to erase the distinction drawn by the White court through reliance on an observation of William Pitt The Elder: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" It would be ironic indeed if a twenty-first century court were to accord greater legal protections to the wealthy over the less-advantaged whereas an eighteenth-century politician was not so-inclined.
[4] I do not fault the individual officers for that in this sense: one has to preside in this jurisdiction for perhaps a day to realize the length and breadth of the region's substance abuse issues. One of the tragic realities in this region is that the opioid death rate is dramatically higher than both the provincial average and big city averages such as Toronto. The drug squads in the region are small; they might have been aptly sized before opioids became the public peril that they have become, but, in the words of the Wizard of Oz, we are not in Kansas any more. I can well imagine that the pressure on the drug officers to get traffickers and drugs off the street is intense and that the list of potential objects of investigation is long and constantly refreshing itself. Indeed, that does not require any imagining; it is evident on the court's dockets every week.
[5] I note that the Supreme Court of Canada majority, in their recent decision in R. v. Le, 2019 SCC 34, studiously avoided the section 8 issue raised by the appellant in that case, thus leaving the antecedent jurisprudence on standing intact.
[6] For example, one text message was broadcast to nineteen phone numbers to announce that the sender had re-stocked and was open for business again.