Court Information

Ontario Court of Justice

Date: 2020-09-22

Location: Newmarket

Between:

Her Majesty the Queen

— and —

Merrick Barham

Garofoli Ruling

Submissions Heard: 21 September, 2020

Delivered: 22 September, 2020

Counsel:

• Mr. Martin Dionne, counsel for the Crown
• Ms. Eleanor Shaw, counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] After a stabbing at a local bar, the owner pushed the persons involved out the front entrance. He followed them and provided a 911 operator with their descriptions as well as the make, colour and license plate number of the car in which they left. That vehicle was later stopped by police and the occupants were arrested. A search incident to arrest revealed a safe in the trunk. The safe had what appeared to be mounting holes. When officers shone a light into those holes, they could see a handgun, bundles of cash in $20's, $50's and $100's and loose pills. The police obtained a search warrant for the safe and that search led to five of the charges before the court.

[2] The defendant was not in the car at the time it was stopped, and he does not admit possession of the safe at any time. Nevertheless, in a previous application the defendant was granted standing to challenge the search of the safe as a potential breach of his s 8 Charter rights based on the Crown's allegation that the safe and the items in it were his. See: R v Jones, 2017 SCC 60. The defendant/applicant submits that the search warrant should not have issued, and an unlawful search resulted. In the event that the safe is found to have been in the possession of the accused, the defence applies to exclude the evidence obtained as a remedy for the s 8 violation. Both parties were content with a discrete ruling on this issue prior to the completion of the Crown's case.

Garofoli Application

[3] This form of review is called a Garofoli application based on the case that established the procedure – R v Garofoli, [1990] SCJ No 115. In a Garofoli review, the court must determine whether there is credible evidence upon which the authorization could have been granted. "The existence of fraud, non-disclosure, misleading evidence … are all relevant, but rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing justice" – R v Garofoli at para 56. The reviewing court must determine whether the authorization could reasonably have issued, not whether the application would have been granted by the reviewing judge – R v Araujo, 2000 SCC 65 at para 54.

[4] The Information to Obtain (ITO) that sets out the basis for the warrant request must contain a full and frank disclosure of the relevant material facts. Any information that is misleading or inaccurate must be excised – R v Morelli, 2010 SCC 8 at para 41. If the ITO reveals unconstitutional conduct on the part of the police, that information is excised and no balancing occurs – R v Grant, [1993] SCJ No 98 at para 50, R v Wu, 2015 ONCA 667 at para 38.

[5] A search warrant is presumptively valid. The burden is on the applicant to show the ITO was insufficient on the balance of probabilities – R v Campbell, 2011 SCC 32 at para 14.

[6] To authorize the s 487/487.1 warrant in this case, the justice must have been satisfied that the affiant had reasonable grounds to believe that in that safe there was:

• Anything in respect of which any offence against the Criminal Code or any other act of Parliament is suspected to have been committed,
• Anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence,
• Anything that there are reasonable grounds to believe is intended to be used for committing any offence against the person for which a person may be arrested without warrant, or
• Any offence-related property.

[7] The applicant submits that important information provided in the ITO was not accurate and should be excised. The warrantless search of the safe at the roadside exceeded the scope of search incident to arrest and that information must be excised. The remaining information is not sufficient to support the warrant.

[8] This application was stated to be a review on the face of the ITO alone, in the sense that the defence was not seeking to cross-examine the affiant. However, at trial the officer who conducted the search of the vehicle was called as a witness. He was not the ITO affiant, but his evidence was referred to during submissions on this application, so I treat his evidence as having been concurrently part of this voir dire.

Was the Search of the Safe Incident to Arrest?

[9] The defence challenged the flashlight inspection of the safe as being warrantless and beyond the proper scope of a vehicle search incidental to arrest. The defence submits that the improper search cannot be used to provide grounds for a subsequent warrant. The breach is plain on the face of the ITO and the information obtained from the inspection of the safe should have been excised.

[10] The ITO shows that the police had ample grounds to stop the vehicle, to arrest the occupants and to search the vehicle incident to arrest. A vehicle search after arrest must be truly incidental to that arrest and for a valid purpose – R v Fearon, 2014 SCC 77. In this case the search to discover and preserve evidence related to the recent stabbing was necessary and objectively reasonable.

[11] When searching a vehicle incident to arrest, police may open compartments, bags and containers found inside the vehicle if doing so is also reasonably incidental to the arrest. Even an item which might contain highly confidential personal information such as a briefcase or in this case a safe, may be searched if that's done for a valid purpose incidental to the arrest – R v Mohamad, [2004] OJ No 279.

[12] The Crown has proved that the limited flashlight inspection through the holes in the safe was reasonable as incidental to the arrest. The police were searching for a weapon and for any evidence related to the offence such as blood-stained clothing. A safe can contain a weapon and this one did, but it was not the one the officer was expecting to find. Once the officer realized that the investigation had changed, he properly returned the safe to the trunk where it had been found and the police took further steps to obtain a warrant to search the safe. The visual inspection of the safe was a search, but it was for a lawful purpose reasonably connected to the arrest and it reasonable in the circumstances known to the officer at the time. The search itself was conducted in a reasonable manner and terminated when the investigation changed.

Assertions of Reasonable Belief or Speculation?

[13] The defence submits that some of the information provided by the affiant in the ITO was misleading or inflammatory. The ITO shows no basis for various beliefs asserted by the affiant. Other statements by the affiant are incorrect or misleading.

[14] The portions of the ITO identified as inflammatory or inaccurate by the applicant involve statements regarding the observations of a black semi-automatic handgun, the large quantity of Canadian currency in $20, $50 and $100 bills and a quantity of pills inside the safe. The defence submits that despite the stated experience of the two officers, neither could know whether the handgun they observed through the holes met the statutory definition of "firearm". It could have been a replica. Nevertheless, the handgun is referred to as a firearm and it's alleged that the search warrant is necessary to investigate two firearm offences as well as other alleged offences.

[15] The officers were not in a position to conduct any test of the pills seen in the safe. They did not know if the pills were obtained by lawful prescription or even if they were a drug. Still, it's stated in the ITO that the seizure of the pills will afford evidence of a controlled substance offence. The officers had no information about the source of the cash inside the safe, but they asserted it was obtained through criminal activity, "mainly the sale of controlled substances".

[16] It is not possible or necessary that an affiant refer to information that proves to a certainty that a semi-automatic handgun will ultimately test as a firearm or that loose pills in a safe with a gun and a large amount of cash will later be shown to be a controlled substance. Reasonable grounds to believe simply means that the officer's belief must be reasonably based on objective facts. A prima facie case is not required. See: R v Shepherd, 2009 SCC No 35. The fact that other possible explanations might apply does not detract from the officer's conclusion if it is otherwise reasonable – R v Shepherd at para 23.

[17] While the observation of cash in large denominations may not have been sufficient to provide reasonable grounds to believe the money was proceeds of crime, the issuing justice must look at all of the circumstances cumulatively, not in isolation – R v Nolet, 2010 SCC 24 at para 48. The combination of a semi-automatic handgun with large amounts of cash and loose pills in a safe in the trunk of a car that just fled from a stabbing considered together I find reasonably provides objective grounds for the affiant's stated belief that the contents of the safe will afford evidence of each of the offences he lists in the ITO.

[18] I agree with the defence that there may be a slight error in the use of the term "traffic stop" to describe the interception of the vehicle. The term traffic stop typically implies a stop related to driving. While this was a vehicle stop, the purpose of the stop was to investigate the recent stabbing. Nothing turns on this point as the investigation leading up to the stop and afterward is otherwise described in detail.

[19] There's no evidence of bad faith on the part of the affiant or any intention to mislead. There's no evidence of subversive conduct. I've reviewed each of the portions of the ITO highlighted by the applicant, but I find no evidence of any incorrect statement or omission that could have undermined the basis for the warrant either alone or in combination with other errors.

Conclusion

[20] The Information to Obtain sets out sufficient credible and reliable evidence to permit the justice of the peace to find reasonable grounds under ss 487 and 487.1 to issue the telewarrant. This review has not shown any basis to set aside the warrant. The application is dismissed.

Delivered: September 22, 2020

Justice Joseph F. Kenkel