ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-40000 183-0000
DATE: 20120306
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
OMAR LAWSON
Applicant
J. Andres Hannah-Suarez, for the Respondent
Paul Aubin, for the Applicant
HEARD: February 13 and 14, 2012
DUNNET J.:
RULING ON APPLICATION TO EXCLUDE EVIDENCE
Overview
[ 1 ] The applicant has been charged with possession of a restricted firearm with ammunition and unauthorized possession of a firearm. He brings an application for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude all incriminating evidence discovered as a result of the execution of a search warrant in apartment 208 at 11 Catford Road, Toronto.
Section 8 of the Charter
[ 2 ] The applicant submits that the search warrant was obtained based on information from a confidential informant that is neither compelling nor corroborated in a material way.
[ 3 ] It is asserted that the information does not disclose reasonable and probable grounds to believe that an offence has been committed or that evidence of the alleged offence would be found at the location to be searched.
[ 4 ] No viva voce evidence was called on the application and both parties were content to have the reasonableness of the search determined on the basis of the contents of the redacted information.
[ 5 ] In the information, the affiant states that on December 3, 2009, he spoke with a paid confidential informant who wanted to provide information regarding a known drug dealer in possession of a handgun. The informant had provided information before to police officer Paul Dominey and the information led to the arrest and prosecution of the individual. The informant has a criminal record consisting of six convictions, none of which are for public mischief or obstructing justice.
[ 6 ] The informant advised the affiant that the subject of the investigation was known to him/her and described the subject as black, 28 years old, 5'10," 375 pounds with short black hair. He drove a black four-door BMW which was parked underground at 11 Catford Road.
[ 7 ] The affiant sought corroboration of the information provided by the informant. On December 3, 2009, police officer Michael West went to 11 Catford Road and observed a black four-door BMW parked underground. While standing in the second floor hallway, he observed a black male, 5'10" with short black hair and a chubby round face who opened the door to apartment 208 and looked down the hall towards a man with a dog who entered the same apartment.
[ 8 ] Officer West spoke with the property manager of 11 Catford Road who advised him that apartment 208 was leased to Trudy Ann Francis and Joan Morgan. “Omar” was listed as a reference on the rental application and a black BMW was registered to the apartment. Officer West identified the man he observed in the second floor hallway in a photograph of Omar Lawson in the police electronic database of persons charged with offences.
[ 9 ] Further investigation conducted by the affiant on December 3, 2009 revealed that the BMW that was observed by Officer West had been stopped by police on November 14, 2009. At the time, it was being operated by a man who identified himself as Omar Lawson of 11 Catford Road, apartment 519 with a birth date of January 11, 1975. The Canadian Police Information Centre contained information for an individual with the same name and birth date. Other police records contained information for an individual with the same name living at 3400 Keele Street, apartment 812.
[ 10 ] In the redacted information, the affiant states that he believes on reasonable grounds that a revolver and ammunition are located in apartment 208 because the apartment is used by the applicant as his residence; on December 3, 2009, Officer West observed him at apartment 208; and the BMW that he was driving on November 14, 2009 was listed on the lease agreement for apartment 208. The affiant also states that in his experience, firearms are held close to the person who is in possession of them in order to have easy access at all times and to have constant control over them, especially at locations where they deal drugs. Thus, he believes on reasonable grounds that the firearm would provide valuable evidence to support the charge of possession of an unauthorized firearm.
[ 11 ] The position of the applicant is that the information contains bald assertions and any information that the police were able to corroborate did little to enhance the credibility and reliability of the informant’s information. Thus, there are no reasonable and probable grounds to conclude that the applicant would be in possession of a firearm at that address.
[ 12 ] The respondent does not dispute that the assertions in the information lack detail, or that the information is deficient with respect to the officer’s generalized statement about the drug subculture. The position of the respondent is that the informant had a proven, albeit somewhat limited, track record with the police and police sources yielded biographical information that would not be available to anyone familiar with the subject.
[ 13 ] In R. v. Garofoli , 1990 52 (SCC) , [1990] 2 S.C.R. 1421 at para. 56 , the Supreme Court of Canada set out the standard of review with respect to the decision of the authorizing judge.
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[ 14 ] When information from a confidential informant is relied on to obtain an authorization, the reliability of the informant is to be assessed by recourse to the totality of the circumstances. It is necessary to look at the degree of detail of the tip, the informant’s source of knowledge and indicia of the informant’s reliability, such as past performance or confirmation from other investigative sources ( Garofoli at para. 68 .)
[ 15 ] In R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 at paras. 39-40 , the Supreme Court reiterated the law pertaining to the validity of a search warrant.
Under the Charter , before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” ( Hunter v. Southam Inc. , 1984 33 (SCC) , [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter , for authorizing search and seizure” (p. 168).
In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued ” ( R.v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[ 16 ] I find that the redacted information predicting the commission of a criminal offence is little more than a bald assertion. There is no disclosure of the source of the informant’s knowledge and thus, the credibility of the information provided cannot be assessed.
[ 17 ] The fact that the informant accurately provided an address and a description of the applicant and his motor vehicle does not make the informant credible with respect to information predicting criminal activity. Further, there is nothing contained in the corroboration information to suggest that the applicant is in possession of a handgun.
[ 18 ] The affiant’s general statement about the drug subculture lacks an evidentiary basis to enable the authorizing judge to determine that the generalization is sufficiently credible or reliable to form the basis for a finding of reasonable and probable grounds.
[ 19 ] As was stated in Morelli at para. 79 ,
To permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence.
[ 20 ] The issue on review is whether there is some evidence that might reasonably be believed to support the issuance of a warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity.
[ 21 ] In my view, this is not a case where the information provided by the informant is detailed and compelling. On the totality of the circumstances, I conclude that the redacted information is insufficient to raise a reasonable probability that the subject would be in possession of the suspected handgun in the location at the time of the search.
[ 22 ] Accordingly, the search was conducted in violation of the applicant's rights under section 8 of the Charter .
Was the gun abandoned?
[ 23 ] On December 4, 2009, the police arrived at apartment 208 to execute the warrant and conduct a search for a revolver and ammunition for the revolver. When they called for the applicant, he entered the hallway of the apartment from a bedroom. Trudy Ann Francis, her mother Joan Morgan and five children also entered the hallway.
[ 24 ] While the police were executing the search warrant, two police officers were standing outside the apartment building. They observed the applicant forcing a silver handgun through a screen on one of the apartment windows and saw him drop the gun to the grassy area below. The officers confirmed that the item dropped was a silver Taurus 9 mm handgun.
[ 25 ] During the search of the apartment, police located 77 rounds of 9 mm Luger ammunition on a dresser in the same bedroom as the damage to the window screen.
[ 26 ] It is the position of the applicant that, but for the execution of the search warrant, the gun would not have been discarded. Thus, there is a direct causal connection between the constitutional violation and the discovery of the gun.
[ 27 ] It is the position of the respondent that the applicant discarded the gun in order to dissociate himself from the weapon and avoid criminal liability. Thus, he abandoned any reasonable expectation of privacy in the item. The respondent submits that during the execution of a presumptively valid search warrant, the applicant could have chosen to retain the gun and argue later that the search violated his privacy rights. Instead, he chose to abandon any privacy interest he may have had by tossing the hazardous item into a public place in plain view. It is submitted that the applicant “cannot have it both ways.”
[ 28 ] In R. v. Patrick , 2009 SCC 17 , [2009] 1 S.C.R. 579 at para. 25 , the Supreme Court held:
Abandonment is therefore an issue of fact. The question is whether the claimant to s.8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.
[ 29 ] When the applicant threw the gun out of the window into public view, a reasonable and independent observer would conclude that his continued assertion of a privacy interest is unreasonable. The issue is whether, in the totality of the circumstances, his actions were causally connected to an intrusive evidence-gathering technique that was itself objectively unreasonable.
[ 30 ] The police were in the process of executing the search warrant in the belief that the warrant had been legally authorized. There is no allegation of bad faith on the part of the police. They called for the applicant to enter the hallway from a bedroom. There is no suggestion that any of the officers forced their way into the bedroom. The executing officers inside the apartment were unaware that the applicant had thrown away the gun. The discovery of the gun was made by officers who were not involved in the execution of the search warrant inside the apartment. In my view, any causal connection between the constitutional violation and the discovery of the gun is tenuous, at best.
Did the applicant have an expectation of privacy in the ammunition seized the next day?
[ 31 ] On December 5, 2009, Police Officer Che Draper went to apartment 208 in response to a telephone call from Ms. Francis. She told him that police had searched her apartment the previous day but they had missed some ammunition. She led the officer to her bedroom and pointed to a suitcase that she said belonged to “the guy, Omar.”
[ 32 ] Ms. Francis told the officer that there were bullets in the zippered pocket on the outside of the suitcase. Inside the pocket, the officer found one loose 9 mm Luger round and a 9 mm magazine with sixteen 9 mm Luger rounds. When the officer asked Ms. Francis if Omar lived at that address, she said that he just stays there sometimes.
[ 33 ] The applicant, relying on R. v. Buhay , 2003 SCC 30 , [2003] 1 S.C.R. 631, submits that he had a reasonable expectation of privacy in the suitcase and its contents and in the absence of a warrant or exigent circumstances, the seizure of the ammunition was in violation of his s. 8 rights.
[ 34 ] The respondent asserts that the applicant was not a tenant of the apartment and he was not listed on the tenancy agreement as a resident. He was nothing more than a temporary occupant at the pleasure of Ms. Francis. She regulated access and consented to the search of the suitcase in her bedroom. The circumstances were exigent because of safety issues for her children.
[ 35 ] Reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances, including the presence of the applicant at the time of the search, possession or control of the property or place searched, ownership of the place or property, historical use of the property or item, ability to regulate access, existence of a subjective expectation of privacy and the objective reasonableness of the expectation ( Buhay at para. 18 .)
[ 36 ] Although Officer Draper was relying on the consent of Ms. Francis to search her bedroom, he was aware that this was “Omar’s” suitcase, Omar was not present and the magazine and ammunition were inside a zippered compartment. There is nothing in the evidence to suggest that the obtaining of a warrant was not practicable or that exigent circumstances existed. I am of the opinion that the totality of the circumstances demonstrates that the applicant had a reasonable expectation of privacy in the contents of his suitcase and the search violated his s. 8 Charter rights.
Section 24(2) of the Charter
[ 37 ] The applicant submits that the affiant should have known that there was a complete absence of reasonable and probable grounds when targeting his residence and the subsequent search of his home was a serious invasion of his privacy.
[ 38 ] The applicant places significant reliance on the case of R. v. Castillo, 2011 ONSC 3257 where the police obtained a search warrant on the basis of a tip from a confidential informant that Mr. Castillo had a firearm in his home. The informant was unable to advise where the firearm was stored or provide a time frame or any factual underpinnings to his allegations.
[ 39 ] The police executed the search warrant and obtained a loaded 22-calibre weapon. The court found that the informant had never provided information before and his reliability was unproven. He had a criminal record and he was told that no consideration would be given with respect to his current charges unless the information he provided yielded results.
[ 40 ] In her reasons, Allen J. found that the information contained bald and conclusory statements amounting to gossip and subsequent police investigations did little to corroborate the credibility and reliability of the informant’s information that Mr. Castillo possessed a firearm. She excluded the evidence, stating at para. 37:
I have no difficulty finding the breach in relation to intruding into Mr. Castillo’s residence was on the profoundly intrusive end of a spectrum of seriousness. There is no question that the breach in the nature of a violation of the accused's right to be secure in his home would have a serious impact on his protected right to privacy, which in this case is compounded by the fact that the police had little information going in. This is a serious breach from which I find the court ought to dissociate itself.
[ 41 ] It is the position of the applicant that while the charges against him are serious, this factor must not take on disproportionate significance. He submits that, like Castillo , in the absence of a genuine showing of probable cause, admission of the evidence would undermine public confidence in the administration of justice.
[ 42 ] In R. v. Blake, 2010 ONCA 1 , 257 O.A.C. 346 at paras. 21-22 , Doherty J.A. explained that in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada took a judicial wire brush to the 20 years of jurisprudential gloss that had built up around s. 24(2) and scrubbed down to the bare words of the section. He reviewed the observations of McLachlin C.J. and Charron J., writing for the majority, at para. 68.
The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[ 43 ] Doherty J.A. reiterated the three lines of inquiry identified by the majority in Grant that are relevant to the identification and balancing of the interests at play when s. 24(2) is invoked. The trial court must examine the seriousness of the Charter -infringing state conduct, the impact of the Charter violation on the Charter -protected interest of the accused and society's interest in the adjudication of the case on its merits.
[ 44 ] On the first branch of the test, while I have found that there was a lack of information to support the issuance of a warrant, I do not find that there was serious state misconduct or a reckless or deliberate disregard for the applicant’s Charter rights. The affiant’s statement about the drug subculture was included in the information at a point in time before the case of Morelli was released where Fish J. held that such generalizations provide an insufficient evidentiary basis for a finding of reasonable and probable grounds.
[ 45 ] While there are similarities to Castillo in the factual underpinnings leading to the issuance of the search warrant, I do not agree that the nature of the violation in this case was wilful or egregious, causing it to be placed at the extreme end of the spectrum. It is noteworthy, but not determinative, that the applicant is not alleging bad faith. Unlike the findings in Morelli , there is no suggestion that the police did not act with diligence or integrity or with statements likely to mislead the issuing judge.
[ 46 ] On the second branch of the test, I find that unlike Castillo , the applicant has a diminished expectation of privacy in apartment 208. According to the lessor Ms. Francis, he was a “sometime” resident.
[ 47 ] In Castillo , the fact that the police went into Mr. Castillo’s home when he was not there and seized a firearm tipped the inquiry in favour of exclusion. The court found at para. 44 that “the intrusive violation of Mr. Castillo’s expectation of privacy in his home is a violation on the most serious end of the spectrum and cannot be accepted by the court.”
[ 48 ] With respect to the tossing of the gun, when the warrant was being executed, the police believed that they were acting pursuant to a legally authorized search. There is no evidence that the executing officers inside the apartment were aware that the applicant threw the gun out the window before he entered the hallway of the apartment in response to their request. I do not find the police actions to be serious or in deliberate disregard for the applicant’s rights.
[ 49 ] To the extent that there was a breach of his right to be free from unreasonable search and seizure of the contents of his suitcase, it was of an inadvertent nature, not a wilful or egregious act. The ammunition and magazine would likely have been discovered through the search warrant process in the absence of consent from Ms. Francis.
[ 50 ] On the third branch of the inquiry, the gun offences are serious. As was stated by Low J. in R. v. Sahid , 2011 ONSC 979 , 230 C.R.R. (2d) 239 at para.123:
Canadian society appears to be at a juncture at which the founding fundamental values of peace and order are being threatened and eroded by an infiltration of a gun culture. Innocents are killed in the crossfire along with gun bearing protagonists.
[ 51 ] The applicant was a temporary inhabitant in a residence with five children where there was a gun, a magazine and 94 rounds of ammunition. In the absence of this crucial and reliable evidence, the prosecution will fail. Balancing the three avenues of inquiry mandated by Grant, I am of the opinion that a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would not conclude that admission of the evidence would bring the administration of justice into disrepute.
Disposition
[ 52 ] The application is dismissed. The firearm located outside 11 Catford Road, the ammunition seized on December 4, 2009 from apartment 208, 11 Catford Road and the magazine and ammunition seized on December 5, 2009 from the same apartment will be admitted into evidence.
DUNNET J.
Released: March 6, 2012
COURT FILE NO.: CR-11-40000 183-0000
DATE: 20120306
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – OMAR LAWSON Applicant
RULING ON APPLICATION TO EXCLUDE EVIDENCE
DUNNET J.
Released: March 6, 2012