DATE: 20120423

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Byron Sonne

BEFORE: Justice Spies

COUNSEL: Elizabeth Nadeau and Stephen Byrne, for the Crown Joseph Di Luca, Peter Copeland and Kevin Tilley, for Byron Sonne

HEARD: December 2, 2011

RULING ON DEFENCE GLOBAL SECTION 24(2) CHARTER APPLICATION

Introduction

[1] At the conclusion of the numerous applications heard over the first four weeks of this trial, the applicant submitted that this Court is required to conduct a global s. 24(2) Charter analysis with regard to all the evidence obtained during the course of the investigation, with the exception of the results from the open source internet searches, including evidence seized pursuant to the June 22 and 23, 2010 warrants to search Mr. Sonne’s home that I determined to be valid in my Garofoli ruling.[^1] In particular, the applicant submitted that there is a close temporal and causal connection between the various Charter violations that occurred during this investigation and that as a result, it is inappropriate to compartmentalize the distinct violations and that a global remedy of exclusion pursuant to s. 24(2) of the Charter to exclude all of the evidence should be granted.

[2] On December 12, 2011, I advised counsel and Mr. Sonne that I had decided to dismiss this application and that I would provide my reasons in writing. These are my reasons.

List of Charter Violations

[3] I have already given written reasons for my decisions with respect to the applications brought on behalf of Mr. Sonne alleging various violations of his Charter rights. Some of the Charter violations were conceded by the Crown and others result from my findings. A summary of the Charter violations is as follows:

a) I considered the initial detention and questioning of Mr. Sonne in the course of his interaction with the police in downtown Toronto during the early afternoon of June 15, 2010 in my ruling released November 11, 2011 (the “Detention ruling”).[^2] The Crown accepted that from the time the police used the jaywalking ruse, which resulted in Mr. Sonne providing his identification information to police, that he was detained. There was a dispute between counsel as to whether or not the police had a lawful basis to detain Mr. Sonne before the ruse. I was not satisfied that Mr. Sonne was detained at any time before the ruse and concluded that it was not necessary for me to determine whether or not his s. 9 Charter rights were breached. The admitted detention at the time of the jaywalking ruse triggered a right to counsel which was not offered; a breach of s. 10(b) and, as a result of the ruse, Mr. Sonne was not informed of the real reason for his detention; a breach of s. 10(a) of the Charter. He then became the subject of an unlawful search in that he provided identification information in breach of s. 8 of the Charter. Findings in support of all of these violations were made in my Detention ruling. For the purpose of this global s. 24(2) application, the Crown conceded that because Mr. Sonne was unlawfully detained there was also a s. 9 breach but submitted that the detention was not arbitrary in the ordinary sense of the word. The applicant now requests that a finding be made with respect to the s. 9 breach, which I deal with below.

b) On June 22, 2010, the day of Mr. Sonne’s arrest, the Crown conceded that there was a failure on the part of the police to discharge the implementational duties imposed by s. 10(b) of the Charter, namely the right to counsel, within a reasonable time. As set out in my ruling on the admissibility of statements given by Mr. Sonne to Detective Bui (the “Statements ruling”)[^3], Mr. Sonne was in police custody for approximately twelve hours before he had an opportunity to speak to his counsel.

c) On June 22, 2010, before Mr. Sonne had an opportunity to speak to his counsel, he was interviewed by Intelligence Officers Detectives Hill and Garrow, who had been assigned at the time to Project Onus which was dealing with issues related to the G8/G20 Summits. As set out in my Statements ruling, given the ultimate use made of some of the information obtained by Detectives Hill and Garrow from Mr. Sonne, I concluded that they either had a duty to hold off questioning Mr. Sonne until he had spoken to a lawyer or a duty not to pass on information they received from him to the investigating officers. I found that some of the information obtained from Mr. Sonne by Detectives Hill and Garrow before he had an opportunity to speak to a lawyer was shared with the investigators and that this resulted in a further breach of his s. 10(b) Charter rights. The Crown had not sought to rely on the statements provided by Mr. Sonne to Detectives Hill and Garrow in this trial. For reasons set out in my Statements ruling, I found that the first statement given by Mr. Sonne to Detective Bui on June 23, 2010 was not obtained in a manner that infringed his right to counsel nor was it involuntary because of any tainting by features that rendered the initial statement to Detectives Hill and Garrow involuntary. As such, I ruled that it is admissible as part of the Crown’s case.

d) As set out in my Statements ruling, the Crown conceded a s. 9 Charter breach as a result of the failure to bring Mr. Sonne before a justice within 24 hours of his arrest as required by s. 503(1)(a) of the Criminal Code.

e) As set out in my Statements ruling, I found that I was not satisfied beyond a reasonable doubt that a significant portion of the second statement given by Mr. Sonne to Detective Bui on June 26, 2010, was voluntary and that portion was ruled inadmissible in this trial.

f) The Crown conceded that the search warrant for the applicant’s cottage could not have issued but for the inclusion of information obtained by Detectives Hill and Garrow from Mr. Sonne. This information ought not to have been included in the Information to Obtain (“ITO”) given assurances given to Mr. Sonne by Detectives Hill and Garrow, that any information he provided to them would not be used against him. Accordingly, the search of the applicant’s cottage was warrantless and resulted in a violation of s. 8 of the Charter.

g) As set out in my ruling on the search of Mr. Sonne’s computers (the “Computer ruling”)[^4], there was a s. 8 Charter breach in relation to the geographic location of the search of the computers and the fact they were searched outside the timeframe specified in the warrants. However, I found the search itself was reasonable and in accordance with the law as set out in R. v. Jones.[^5] Following a s. 24(2) analysis, I concluded that the information seized from Mr. Sonne’s computer ought not to be excluded from evidence in the trial, subject to this global s. 24(2) ruling.

h) As set out in my ruling on the production order for Mr. Sonne’s Visa records (the “Visa Production Order ruling”)[^6], I found that the production order for Mr. Sonne’s Visa records ought not to have issued. This resulted in a further breach of s. 8 of the Charter, but following a s. 24(2) analysis I concluded that the Visa records ought not to be excluded from evidence in the trial subject to this global s. 24(2) ruling. I concluded that a ruling as to whether or not the production order for Mr. Sonne’s cell phone records ought to have issued was not necessary as the Crown did not seek to rely on those records at trial and even a finding in favour of the applicant on that issue would not have made a difference to the conclusion that I reached on this global s. 24(2) application.

i) While not a free-standing Charter violation, the applicant asked that I consider the nature and quality of D.C. French’s testimony before Justice Bassel at the preliminary inquiry as a relevant factor in assessing the impact of the violations listed above.

Relevant Findings of Fact

[4] For the purpose of this decision I intend only to summarize the important facts and my earlier findings that are germane to this final application, and make the further finding requested by Mr. Di Luca.

(a) June 15, 2010: Violations of Sections 8, 9, 10(a) and 10(b)

[5] Mr. Sonne came to the attention of the Toronto Police Service at around 1:00 p.m. on June 15, 2010, when he was observed photographing the security fencing that was being erected in advance of the G20 Economic Summit in the area of the Metro Convention Centre in downtown Toronto. He was questioned by police officers and repeatedly told the officers that he did not want to identify himself unless he was under arrest and that he knew his rights. He asked P.C. Wong if he was going to be arrested under a section of the Criminal Code on terrorism that P.C. Wong was not familiar with and P.C. Wong told him “no”. Mr. Sonne then produced a piece of paper with the actual wording typed on it. There was no dispute that before the jaywalking ruse Mr. Sonne was under no legal obligation to identify himself or answer the questions asked of him. In the Detention ruling, I found that he was not detained at this point. However, when P.C. Wong told Mr. Sonne that he was going to charge him with jaywalking and that he was required to identify himself, Mr. Sonne was clearly detained. He produced his driver’s licence and was then allowed to go on his way.

[6] I accept Mr. Di Luca’s submission that Mr. Sonne was arbitrarily detained in breach of s. 9 of the Charter from the time he was told he would be charged with jaywalking. This finding is based on the evidence of P.C. Wong that he told Mr. Sonne that he was going to charge him with jaywalking, a Highway Traffic Act offence and that he was required to identify himself, for the sole purpose of compelling disclosure of his identity. P.C. Wong admitted that he had no basis to charge Mr. Sonne with jaywalking. This was a ruse that had no legal basis, as neither P.C. Wong nor any other officer had observed Mr. Sonne jaywalking.

[7] As already stated, the Crown accepted that there were violations of Mr. Sonne’s ss. 8, 10(a), and 10(b) Charter rights following the ruse. In making my Detention ruling it was not necessary to do a s. 24(2) analysis as the Crown had conceded that this evidence would not be relied upon at trial and that for the purpose of the applicant’s Garofoli applications that the identification information provided by Mr. Sonne to the officers and his utterances after the jaywalking ruse should be excised from the ITOs sworn in support of the warrants to search prepared by D.C. French. These ITOs resulted in search warrants being issued to search Mr. Sonne’s home and two family cottages. The ITO prepared by P.C. Waruk in support of the two production orders included the same information. In addition, Mr. Byrne conceded that information in the ITOs, resulting from a surveillance team that watched Mr. Sonne in the days following his detention on June 15th, was only obtained as a result of Mr. Sonne’s detention and was also not admissible at trial and should also be excised from all of the ITOs. Much of this evidence was quite innocuous in any event but the ITOs did make certain allegations arising from Mr. Sonne’s attendance at a plastic supply store that D.C. French found concerning.

(b) June 22, 2010: Violation of Section 10(b)

[8] On June 22, 2010, Detective Maadanian, an officer seconded to the G20 Intelligence Unit, instructed Sergeant Penton from 13 Division to arrest Mr. Sonne. The officers from 13 Division were not to be involved in the investigation of Mr. Sonne as this case was to be a G20 investigation. Mr. Sonne was arrested around noon while travelling on a TTC bus. He was told that he was arrested for two counts of mischief under and he was given his right to counsel and the primary caution. Mr. Sonne advised Sergeant Penton that he wanted to speak to a lawyer.

[9] Detective Maadanian had instructed Sergeant Penton that Mr. Sonne should not be given access to a phone for the purpose of speaking to a lawyer or otherwise, until further notice or receiving instructions from an officer in charge; the “No Call” order. I heard some evidence about why such an order might be necessary for a short period of time, while the premises to be searched were secured, but no evidence to explain why in this case Mr. Sonne did not speak to his lawyer until some twelve hours after his arrest, at 11:56 p.m. When the warrant was first executed the police did not expect to find chemicals.

[10] I found that the failure to permit Mr. Sonne to speak to a lawyer for twelve hours was a serious breach of his section 10(b) Charter rights. However, this had always been conceded by the Crown. I heard no evidence why the No Call order remained in place for as long as it did but for the reasons stated in my Statements ruling I held that the Crown was not obliged to call all of the officers who were involved in this decision. I rejected the Defence submission that Mr. Sonne had been arrested as a pretext and that Mr. Sonne had not been permitted to speak to a lawyer so that Detectives Hill and Garrow, who spoke to Mr. Sonne before he spoke to counsel, could get information from him, under a ruse of confidentiality and pass that information on to the investigators.

(c) June 22, 2010: Further Violation of Section 10(b)

[11] Detectives Hill and Garrow interviewed Mr. Sonne at 5:00 p.m. on the day of his arrest, before Detective Bui was assigned as the officer in charge and before Mr. Sonne spoke with his counsel. They gave evidence which explained why they did not re-caution Mr. Sonne as to his right to counsel or inquire as to whether or not he had spoken to counsel prior to the interview. I accepted their evidence that their intent was not to investigate Mr. Sonne on the charges he was facing, but rather to see whether he might be a confidential source for information about G8/G20 protests. I found that they told Mr. Sonne that they were not investigating him, that anything he told the officers would not be used against him and that it would be kept confidential in the sense of not passed on to the officers investigating his charges.

[12] Detectives Hill and Garrow had a general conversation with Mr. Sonne about his background including his hobbies and his work. Mr. Sonne mentioned some of his projects – including a potato gun and a microwave panel and his association with different social groups. Although this information was all relevant to the charges he was facing, I found it likely that this information was in large part volunteered by Mr. Sonne following general questions about his background, not as a result of questions directed to the charges or that these detectives intended to interrogate Mr. Sonne about the charges or that they employed a police trick utilizing the purported cloak of informer privilege to obtain information from him.

[13] At about 6:40 p.m., Detective Hill was informed by Detective Sukumaran that some chemicals and equipment had been found in Mr. Sonne’s home which were of concern. Detective Hill went in by himself to talk to Mr. Sonne about the chemicals. Mr. Sonne co-operated with Detective Hill and this information, which Detective Hill described as being very helpful to the officers on scene, was passed on to those officers. This interview lasted a few minutes. Detective Hill testified that officer and public safety were his only motivation in speaking to Mr. Sonne at this time. I accepted his testimony and found that there was no improper motive when he went in to speak to Mr. Sonne about the chemicals or when he shared that information.

[14] Although the evidence was not clear how it happened, information given by Mr. Sonne to Detectives Hill and Garrow beyond that given to Detective Hill at 6:40 p.m. was communicated to officers involved in the investigation of Mr. Sonne’s charges including Detective Bui. Apart from the results of the 6:40 p.m. interview, I was not able to determine the reason that investigating officers were given information that Detectives Hill and Garrow testified they would have considered confidential; they were not asked about this in cross-examination. Regardless of how it happened, however, there was no evidence that any information was passed on to the investigating officers until after the discovery of the chemicals and the 6:40 p.m. interview of Mr. Sonne by Detective Hill.

[15] I found that when Detectives Hill and Garrow interviewed Mr. Sonne at 5:00 p.m. their intention was only to obtain information about protests related to the G8/G20 Summits, not information related to his charges, and that they intended to keep that information confidential and not pass it on to the investigating officers. I also found that their belief that the cautions are only necessary when there is an intention to elicit potentially incriminating information seems consistent with R. v. Suberu[^7] and that their evidence and views in this regard were not unreasonable. Because of my ultimate finding however, I did not find it necessary to determine whether or not Detectives Hill and Garrow had a duty to ensure Mr. Sonne had spoken to a lawyer before they interviewed him. Although I accepted that they did not intend to elicit incriminating information or disclose that information to the investigators, incriminating information obtained from Mr. Sonne was disclosed to the investigating officers. This constituted a further breach of Mr. Sonne’s s. 10(b) right, since he had not yet been given an opportunity to speak with his lawyer.

[16] As a result of the s. 10(b) violations on June 22, 2010, the Crown did not seek to rely on the statements provided by Mr. Sonne to Detectives Hill and Garrow or the fruits of those searches at this trial; namely what was seized from the cottages. As such a s. 24(2) analysis was not done.

(d) June 23, 2010: Violation of Section 9

[17] Detective Bui was appointed as the lead investigator in Mr. Sonne’s case when he arrived at 13 Division at 10:30 p.m. on June 22, 2010. He spoke with Mr. Sonne for the first time at about 11:50 p.m. on that date. During a meeting that lasted about six minutes, Detective Bui advised Mr. Sonne that he was being charged with two counts of intimidation of a justice participant, mischief, attempted mischief, possession of an explosive substance and weapons dangerous. He then provided both the right to counsel and the primary and secondary cautions. When asked whether he would like to contact a lawyer, Mr. Sonne indicated that he would. Shortly after this meeting, at 11:56 p.m., Mr. Sonne spoke with counsel for the first time. Mr. Sonne was lodged in the cells for the night at about 2:15 a.m.

[18] Detective Bui arranged to speak to Mr. Sonne the next day on June 23, 2010, at 12:20 p.m. Mr. Sonne had been detained since 12:10 p.m. the day before. The Crown acknowledged that Mr. Sonne was unlawfully detained in breach of s. 9 of the Charter at the time of this interview because he had not been brought before a justice of the peace within 24 hours pursuant to s. 503(1)(a) of the Criminal Code. I found the s. 9 breach had no impact on the admissibility of the statement.

(e) June 23, 2010 Statement to Detective Bui

[19] At the outset of the interview on June 23, 2010, Mr. Sonne confirmed that he had an opportunity to speak with counsel. Detective Bui did not re-caution Mr. Sonne. Detective Bui asked Mr. Sonne about photographs taken by the Forensic Investigation Service prior to the execution of the search warrant, his Flickr page, the potato gun, Mr. Sonne’s photographs of the G20 security fences, the potential use of the wave guide found in Mr. Sonne’s home, and whether the chemicals found in his home could be used to create an explosive device. Mr. Sonne provided exculpatory information to all of the questions posed, and gave strong indications that he understood his right to remain silent. At no time did Detective Bui refer to Mr. Sonne’s interviews with Detectives Hill and Garrow, either directly or indirectly. Furthermore, there is nothing in the statement that suggests Detective Bui used information they provided to him to put specific questions to Mr. Sonne. At no time did Mr. Sonne say anything that suggested that anything he had told Detectives Hill and Garrow was to be kept confidential. I found that there was no use by Detective Bui of any information he may have received from Detectives Hill and Garrow when he questioned Mr. Sonne. For the reasons set out in my Statements ruling, I held that this first statement was admissible in the trial.

(f) June 26, 2010 Statement to Detective Bui: Violation of Section 7

[20] On June 26, 2010, Detective Bui engaged in another interview with Mr. Sonne in a room at the courthouse. This followed the arrest of Mr. Sonne’s wife, Kristen Peterson, on June 23, 2010.

[21] In my Statements ruling, I concluded that I was not satisfied beyond a reasonable doubt that part of the statement given by Mr. Sonne on June 26th was voluntary. I found that Detective Bui offered a quid pro quo to Mr. Sonne in the form of helping to secure a release for Mr. Sonne’s wife in exchange for a “reasonable explanation” from Mr. Sonne for the chemicals found in his home. In addition, Detective Bui’s repeated suggestion that the National Security branch of the RCMP was involved caused Mr. Sonne to believe that his rights would be suspended under their investigation and created circumstances of oppression or constituted an implicit threat.

[22] While I did not find a breach of Mr. Sonne’s right to silence protected under s. 7 of the Charter in the Statements ruling, for the reasons given in that decision I am satisfied on a balance of probabilities that his right to silence was violated by Detective Bui’s questioning in the portion of the statement that I ruled was not admissible. As the Supreme Court of Canada noted in R. v. Singh,[^8] “[T]he confessions rule effectively subsumes the constitutional right to silence in circumstances where an obvious person in authority is interrogating a person who is in detention because, in such circumstances, the two tests are functionally equivalent.” [Emphasis added.]

(g) Search of the applicant’s cottage: June 23, 2010: Violation of Section 8

[23] Two search warrants to search two family cottages were issued on June 23, 2010 and both were searched that day. Neither cottage was occupied at the time of the search. Mr. Sonne only had an expectation of privacy in one; I understand the other was owned by Mr. Sonne’s in-laws. These warrants were based on unlawfully obtained information provided to Detectives Hill and Garrow on June 22, 2010 by Mr. Sonne about the existence and location of these cottages and the fact he had potato guns located there. The Crown acknowledged that the searches of the cottages were warrantless and violated Mr. Sonne’s s. 8 Charter right. The Crown did not seek to introduce the potato gun into evidence at this trial and conceded that references to the seizure of a potato gun be excluded from the ITOs when I made my Garofoli ruling. As such a s. 24(2) analysis was not done.

(h) Search of the applicant’s computers: Violation of Section 8

[24] Two search warrants, dated June 22 and 23, 2010, authorized a search of computers at Mr. Sonne’s residence for records relevant to a conspiracy charge. The June 23, 2010 warrant contained additional charges including possession of an explosive substance. That warrant permitted a search for and seizure of the following: “records relating to the production of explosives that [are] retained through files, books, reports, notes, copies, memoranda, correspondence, applications, agreements, information, which can be stored electronically (computers, phones), or on paper.” The searches were to be completed by 9:00 p.m. on June 27, 2010.

[25] On June 24, 2010, police seized Mr. Sonne’s computers. They were brought to the RCMP’s Technical Crimes Unit on June 29, 2010. From June 30, 2010 – July 7, 2010, hard drives from the computers were removed and copies made for further analysis. A search of the contents of the hard drives began on July 16, 2010 and continued thereafter.

[26] The Crown conceded that the warrants did not authorize the seizure of the computers and their removal from Mr. Sonne’s home. Moreover, I found that their seizure was not authorized by either s. 489(1) of the Criminal Code or the plain view doctrine. On this basis, and in addition to the failure to confine the search within the prescribed timeframe, Mr. Sonne’s s. 8 Charter right was breached.

[27] In light of my conclusion I proceeded to a s. 24(2) analysis. I concluded by finding that, despite the breach of Mr. Sonne’s s. 8 right, the admission of the evidence would not bring the administration of justice into disrepute under s. 24(2). I found that the officers did not deliberately intend to violate the terms of the warrants. Detective Maadanian genuinely and reasonably believed that he needed to move the computers off-site so that evidence would not be lost and they could be properly searched. The warrants he had permitted a search of the computers. I found no evidence of any systemic failure. I also concluded that the conduct of the officers in searching the computers beyond the time limits set out in the warrants was careless but there was no suggestion from the evidence that they were reluctant to seek an extension because they feared they would not obtain one. I also had regard for the fact that the search of the computers in this case occurred approximately a year before Jones was released, a time in which, as Jones acknowledges, there was considerable uncertainty as to the precise powers of the police with respect to computer searches.

[28] As for the impact on Mr. Sonne, the location of the search did not impact on any privacy interest per se. In fact, a search of the computers in the residence would have caused a significant invasion of privacy over a prolonged period of time. As such, I found that the impact of this breach on Mr. Sonne’s Charter-protected interests was not serious. I also found the evidence seized to be real and reliable, and important to the Crown’s case, notwithstanding its circumstantial nature.

(i) Visa Production Order dated July 20, 2010: Violation of Section 8

[29] On July 20, 2010, the police obtained two production orders. One was directed to Rogers Communications for Mr. Sonne’s telephone records associated with his mobile phone, and the other was directed to TD Canada Trust for records of transactions on his Visa credit card. Both applications for production orders were supported by an ITO sworn by P.C. Waruk, which relied on the same grounds as the ITOs sworn in support of the search warrants authorizing a search of Mr. Sonne’s residence.

[30] With respect to the Visa production order, as a result of my Garofoli ruling, certain excisions and amplifications had to be made to this ITO. I concluded that, based on the resulting ITO, an issuing justice could not have issued the production order for the Visa records. As such, the seizure of those records violated Mr. Sonne’s s. 8 right. As set out in my Production Order ruling, I found it unnecessary to determine whether the production order for the telephone records could have been issued, as the Crown did not intend to rely on them. Even a finding in favour of Mr. Sonne on that issue would not make a difference to the conclusion that I reached on this global s. 24(2) application.

[31] I declined to exclude the Visa records under s. 24(2). Defence counsel conceded that P.C Waruk personally did nothing wrong. The reason I found the production order for the Visa records could not have issued was essentially because I excised the information gathered from the June 15, 2010 stop, the surveillance evidence and the reference to Mr. Sonne using his TD Visa to purchase the chemicals, which came from the portion of his second statement to Detective Bui that I found to be inadmissible. There was no new and freestanding violation of the Charter apart from the further s. 8 breach. I found that the Charter-infringing state conduct was not serious in that P.C. Waruk relied in good faith on information from the ITOs prepared by D.C. French and the statement obtained from Mr. Sonne by Detective Bui. On the second factor, I found that the impact on Mr. Sonne’s privacy interests and in particular his informational privacy interests, was more than minimal but less than severe. Lastly, though the records were not critical to the Crown’s case, it was difficult to assess the impact of the exclusion of this evidence, which the Crown relied upon to establish that it was Mr. Sonne who purchased certain chemicals and when he did so, as this is a circumstantial case. I found that the evidence was reliable, and that the truth-seeking function of the trial would be better served by its admission. Balancing all of the Grant factors I concluded that I would not exercise my discretion to exclude Mr. Sonne’s Visa records.

(j) January 28 and 31, 2011: D.C. French’s Testimony at the Preliminary Inquiry

[32] On consent I received the transcripts of D.C. French’s testimony from the preliminary hearing conducted before Justice Bassel on January 28 and 31, 2011. He was not called as a witness at trial but for reasons set out in my Garofoli ruling, I accepted Defence counsel’s submission that based on the transcripts, D.C. French was not forthright with Justice Bassel on occasion. I identified two areas of concern including the fact that he refused to acknowledge that he had used a precedent from a drug investigation in the preparation of the ITOs in this case. Mr. Byrne admitted that this fact was “blindingly obvious” to everyone else. In addition, D.C. French appeared to be evasive when questioned about whether any of the photos of police officers referred to in the ITO were of officers at their “divisions”.

[33] Despite these concerns, I found that the rest of D.C. French’s evidence was truthful. I also made certain findings with respect to D.C. French’s intentions as I proceeded to determine the excisions from the ITOs and to what extent they could be amplified. As I set out in my Garofoli ruling, the ITOs were far from perfect and could have been better drafted. There were errors and omissions and I made certain excisions and amplifications in the course of deciding the Garofoli application. However, I did not find that at any time D.C. French intentionally attempted to mislead the issuing justice or that he exhibited a reckless disregard for the truth or that there was any evidence that he acted in bad faith. I found that he gave a reasonably complete and not misleading account of the evidence that he had in support of his belief which essentially was that Mr. Sonne was planning some sort of attack at the G20. I considered the submission that if a number of errors are made and they all favour the Crown, that at some point an inference can be drawn that the errors are due to a deliberate intent to mislead. I rejected that submission however, because in this case, for the most part, the information left out of the ITO would have been very favourable to the Crown and harmful to Mr. Sonne.

Issues

[34] The applicant relied primarily on two decisions of the Supreme Court of Canada; R. v. Grant (1993)[^9] and the recent decision of R. v. Côté,[^10] to support his submission that all of the evidence including the evidence seized pursuant to the warrants to search Mr. Sonne’s home, should be considered under s. 24(2) of the Charter. Mr. Di Luca submitted that in both of those cases, the Supreme Court undertook a s. 24(2) analysis of evidence obtained that was tainted – but not causally – by Charter-infringing state conduct. He submitted that the approach to determining which evidence was “obtained in a manner” that violated the Charter so as to invoke section 24(2) requires a contextual analysis that is not focused on a simple but-for causal relationship.

[35] Mr. Byrne agreed that in light of Grant (1993), the exclusionary analysis under s. 24(2) of the Charter should be done with respect to the evidence obtained from Mr. Sonne’s home under the search warrant, which I have found to be valid, and so the issue of whether or not that evidence was “obtained in a manner” that violated the Charter was not the subject of oral submissions. Nevertheless I considered that as the first issue to be determined on this application as without such a finding that evidence would not be subject to a s. 24(2) analysis. For the reasons that follow I concluded that the validly seized evidence, namely the chemicals and related equipment, was “obtained in a manner” that violated the Charter and that as a result, a s. 24(2) analysis was required with respect to that evidence.

[36] The other evidence that had not been subjected to a s. 24(2) analysis were the statements Mr. Sonne gave to Detective Bui to the extent they were ruled admissible. No discrete submissions were made as to whether or not this evidence should be considered “obtained in a manner” that violated the Charter in the event I ruled the statements admissible. I concluded that it was not necessary to determine this issue given my ultimate finding that the global s. 24(2) application should be dismissed.

[37] Having found that the evidence seized from Mr. Sonne’s home was obtained in a manner that violated Mr. Sonne’s Charter rights, I proceeded to consider whether, under a global assessment of all of the Charter breaches, all of the evidence should be excluded under s. 24(2) of the Charter. Initially Mr. Byrne submitted that if following a s. 24(2) analysis the evidence that was seized pursuant to the warrant, namely the chemicals and related equipment, was not excluded, that a global s. 24(2) analysis under Côté should not undo that. However, he acknowledged that the Court should also step back and look at the conduct of all of the officers involved in this investigation to the extent that it informed the Court on findings such as whether or not the officers were acting in good faith, whether or not there was a pattern of institutional disregard for Mr. Sonne’s Charter rights or overwhelming negligence such that all the evidence should be excluded under s. 24(2) notwithstanding rulings on individual items of evidence. Implicit in this concession was an acknowledgement that all of the investigative steps in obtaining the evidence the Crown sought to rely upon at this trial were interwoven and that a global assessment of all of the Charter violations ought to be done.

[38] Accordingly, I considered all of the Charter violations that I found, as set out in my earlier rulings, as part of a global s. 24(2) analysis. For the reasons that follow I concluded that no evidence should be excluded, including the evidence seized pursuant to the warrants to search Mr. Sonne’s home, namely the chemicals and related equipment.

Analysis

Whether the evidence seized from the home pursuant to the search warrants was obtained in a manner that infringed or denied Mr. Sonne’s Charter rights

[39] The first issue to be decided was whether the evidence obtained from Mr. Sonne’s home under the search warrants – which I have found to be valid – was obtained in a manner that infringed or denied Mr. Sonne’s Charter rights and should, therefore, be subject to the exclusionary analysis under s. 24(2) of the Charter.

[40] In R. v. Grant (1993), the Supreme Court of Canada addressed the scope of s. 24(2) in a case where evidence was seized pursuant to a valid search warrant which had been issued in part based on an unlawful perimeter search. The investigation in Grant arose following a routine roadblock check where a truck driven by the accused was found to contain items relating to the production of marijuana. The police also received a tip from a known and reliable informant indicating that the accused was on his way to set up a grow operation. The police subsequently conducted two warrantless perimeter searches of a residence used by the accused and obtained information from Hydro authorities suggesting that consumption rates were consistent with marijuana production. The police used all of this information to obtain a search warrant for the house and the accused was subsequently arrested after a large number of marijuana plants were discovered.

[41] The Court held that s.10 of the Narcotic Control Act, (“NCA”) which authorized the warrantless perimeter searches, would violate s. 8 of the Charter in the absence of exigent circumstances which render obtaining a warrant impracticable. The Court found that no exigent circumstances were present, and concluded that the warrantless perimeter searches violated the accused’s s. 8 rights.

[42] The Court went on to consider whether the search warrant could have been issued apart from the evidence gleaned from the warrantless perimeter searches. It found that, based on the lawfully obtained evidence, the authorizing judge could have granted the authorization for the warrant under the test in R. v. Garofoli.[^11]

[43] Lastly, and most relevant to the case at bar, the Court considered whether the evidence obtained under the lawfully issued search warrant should be subject to the exclusionary analysis under s. 24(2) of the Charter. The Court found that s. 24(2) was “triggered by the initial s. 8 violation in the perimeter searches.”[^12] The Court established the connection between the unreasonable perimeter searches and the evidence legally obtained under the search warrant by applying the Court’s interpretation of the phrase “obtained in a manner”, taken from the wording of s. 24(2) of the Charter, in R. v. Strachan[^13]:

Accordingly, the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter. [Emphasis added.]

[44] Elsewhere, at p. 1002, the Court in Strachan described the pitfalls that follow the use of a strict causation test to trigger s. 24(2):

A causation requirement also leads to a narrow view of the relationship between a Charter violation and the discovery of evidence. Requiring a causal link will tend to distort the analysis of the conduct that led to the discovery of evidence. The inquiry will tend to focus narrowly on the actions most directly responsible for the discovery of evidence rather than on the entire course of events leading to its discovery. This will almost inevitably lead to an intellectual endeavour essentially amounting to "splitting hairs" between conduct that violated the Charter and that which did not.

[45] The Court in Grant (1993) affirmed this interpretation of “obtained in a manner” by accepting that s. 24(2) applied to the evidence despite the lack of a causal connection between the Charter breach and the finding of the evidence. In arriving at this conclusion, the Court focused on the temporal link between the breach and the evidence to conclude that the evidence in question was “obtained in a manner” that infringed the Charter. Speaking for the Court, Sopinka J. held:

In the case at bar, there is a sufficient temporal connection between the warrantless perimeter searches and the evidence ultimately offered at trial by the Crown to require a determination as to whether the evidence should be excluded. The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question. It is unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence. Furthermore, to find otherwise would be to ignore the possible tainting effect which a Charter violation might have on the otherwise legitimate components of searches by state authorities. The temporal and tactical connections between the warrantless perimeter searches and the evidence finally offered at trial were sufficient to warrant the conclusion that the evidence was obtained in a manner that violated the constitutional rights of the respondent so as to attract the protection of s.24(2) of the Charter.[^14] [Emphasis added]

[46] Having decided that resort to s. 24(2) was appropriate, the Court in Grant (1993) then undertook the old R. v. Collins[^15] analysis and ultimately determined that the evidence should not have been excluded.

[47] This same approach was adopted recently by the Supreme Court of Canada in R. v. Côté. In that case, a series of Charter breaches during the course of a murder investigation resulted in the exclusion of all the evidence obtained from the crime scene, which also happened to be the accused’s home. During the investigation, the police obtained warrants to search and seize items from inside the house. The trial judge ruled that those warrants were invalid because, once the unconstitutionally obtained grounds were excised, insufficient grounds remained on which the warrants could have issued.

[48] On appeal, the Crown argued that this finding was in error since sufficient other grounds existed on which the warrants could have issued. Justice Cromwell, writing for an eight-member majority of the Supreme Court, concluded that the question of whether the warrants were valid or not had “little or no impact on the [s. 24(2)] analysis”.[^16] He explained at paragraphs 78-79:

However, even if the warrants were valid, this could have little if any effect on the trial judge’s decision to exclude the physical evidence. The trial judge relied on the fact that the totality of the search process was tainted by the unconstitutional searches that preceded the issuance of the warrants.

This finding is consistent with well-established case law. Grant 1993 provides a good example of how illegal warrantless searches can taint a subsequent search that is otherwise lawful. In that case, the information obtained through the warrantless perimeter search was used to support the police’s application for search warrants. This Court held that once the illegally obtained information was excised from the affidavits presented to the issuing justice, the information that remained was sufficient to issue the warrants. While this Court held that the warrants were valid, it found that the illegal searches “were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question.” It was thus “unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence” (p.255). Similarly, in the case at bar, given the trial judge’s findings of fact that the police misconduct was continual and systematic from the outset of the investigation, the question of exclusion must not be approached in a compartmentalized fashion. [Emphasis added.]

[49] There is no doubt that evidence may be subject to s. 24(2) so long as there is a connection between that evidence and a Charter violation. That connection may be temporal, contextual, causal, or a combination of all three.[^17] This connection cannot be too remote or “tenuous”.[^18]

[50] In this case, the only Charter breaches that took place before the discovery of the chemicals and related equipment in Mr. Sonne’s home were those that occurred during the June 15, 2010 jaywalking ruse, the failure to implement Mr. Sonne’s right to counsel on June 22, 2010 and possibly the sharing of information obtained by Detectives Hill and Garrow with the investigators since I found there is no evidence that any information was passed on to the investigating officers until after the discovery of the chemicals and the 6:40 p.m. interview of Mr. Sonne by Detective Hill. These are the only breaches relevant to whether the chemicals and related equipment seized from Mr. Sonne’s home were obtained in a manner that infringed or denied Mr. Sonne’s Charter rights. Charter breaches that took place after the discovery of this evidence are not relevant to this inquiry. The Supreme Court authorities have consistently held that the pertinent timeframe is “the entire course of events leading to [the evidence’s] discovery.”[^19] [Emphasis added.] The question is whether the Charter breaches constituted “an integral component in a series of investigative tactics which led to the unearthing of the evidence in question.”[^20] [Emphasis added.]

[51] I am satisfied that a temporal connection existed between the evidence seized from Mr. Sonne’s home and the violation of his s. 10(b) right on June 22, 2010. The violation occurred contemporaneously with the execution of the search warrant. Indeed, the reason provided by Detective Maadanian for the suspension of Mr. Sonne’s s. 10(b) right was the need to execute the search warrant first in order to protect officer and public safety as well as the preservation of evidence. Regardless of when information was shared, there is no evidence that any information obtained by Detectives Hill and Garrow from Mr. Sonne was relayed to the officers involved in the search or that it helped guide them in their search of the house. The chemicals were found independent of any information provided to the investigators by these officers. The information Mr. Sonne gave to Detective Hill about the chemicals was after they had been discovered and was of assistance for officer safety reasons.

[52] The evidence from the June 15th stop and the surveillance that followed was relied upon by D.C. French in the ITOs he prepared in support of the search warrants granted to search Mr. Sonne’s home. This connection is not a temporal one, as the June 15th stop occurred seven days before the execution of the search warrants. It is also not a causal connection, since I found that the search warrants could have issued after the evidence from the June 15th stop and the ensuing surveillance was excised from the ITOs.

[53] Nevertheless, I agree that there is a connection between the Charter breaches on June 15th and the evidence discovered in Mr. Sonne’s home on June 22nd. This connection is established by the attempt to include evidence gleaned from Mr. Sonne from the June 15th stop and resulting surveillance in the ITOs. This is a “tactical connection”, to use the language of Sopinka J. in Grant (1993).[^21] The June 15th ruse was one of the investigative tactics employed by the police to gather information about Mr. Sonne, and it led to the further tactic of putting Mr. Sonne under surveillance. These were links in the chain of the police investigation of Mr. Sonne. This connection is not as strong as it could have been, as the June 15th stop of Mr. Sonne did not cause the parallel investigation by G20 Intelligence Officers, using open source internet searches of Twitter and Flickr websites containing posts and photos of concern that were suspected to be accounts belonging to Mr. Sonne. The two investigations were operating independently of one another until D.C. French connected the two when he prepared the first ITO in support of the warrant to search Mr. Sonne’s home issued June 22, 2010.

[54] Therefore, for these reasons, I find that the evidence that was discovered in Mr. Sonne’s house on June 22, 2010; namely the chemicals and related equipment, was obtained in a manner that infringed his constitutional rights so as to attract the protections of s. 24(2) of the Charter.

Global analysis under s. 24(2)

[55] I considered whether or not I should first conduct a s. 24(2) analysis considering only the chemicals and related equipment in Mr. Sonne’s home and the relevant Charter breaches that occurred before their discovery. Counsel, however, focused on the global analysis considering all of the Charter breaches and I concluded that since I was not prepared to grant the application having done a global s. 24(2) analysis, conducting an independent s. 24(2) analysis for the evidence seized from the home would not change that outcome. Accordingly my reasons in concluding that on a global s. 24(2) analysis none of the evidence ought to be excluded, are as follows.

[56] In considering the global s. 24(2) analysis it is important to note at the outset that various remedies have already been given to Mr. Sonne, or conceded by the Crown, because of the various breaches of his Charter rights:

(a) All of the evidence following Mr. Sonne’s detention on June 15, 2010 and the ensuing surveillance was excised from the ITOs in support of the various search warrants and the Visa records production order and was excluded from evidence at the trial;

(b) All of the information from Mr. Sonne’s interviews with Detectives Hill and Garrow on June 22, 2010 about the existence of the cottages and the potato gun was excised from the ITOs in support of the various search warrants and the Visa records production order and was excluded from evidence at the trial;

(c) The portion of Mr. Sonne’s statement to Detective Bui on June 26, 2010 that was not found to be voluntary beyond a reasonable doubt was excluded from evidence at the trial; and

(d) The evidence seized from Mr. Sonne’s cottage, namely the potato gun, was excluded from evidence at the trial.

[57] I have also found that certain evidence obtained in a manner that infringed or denied Mr. Sonne of his Charter rights should not be excluded under s. 24(2). This included the documents seized from Mr. Sonne’s computers and the Visa records obtained as a result of the production order for Mr. Sonne’s Visa records.

[58] The issue to be decided here is whether, in view of all of the Charter breaches, all of the evidence, with the exception of the results from the open source internet searches, but including the evidence seized pursuant to the warrants to search Mr. Sonne’s home that I determined to be valid, should be excluded under s. 24(2).

[59] The need for this “global” analysis is largely predicated on the decision in Côté. In that case, the trial judge excluded all the evidence in an attempted murder investigation (later a murder investigation when the victim died) because of continual, systematic and deliberate violations of the accused’s rights, as well as the less than candid testimony of the police in order to minimize the extent of their misconduct.[^22]

[60] The trial judge in Côté found the following Charter violations:

• He found that the initial entry into the accused’s house by the police violated her s. 8 right. The police informed the accused that they were there to find out what happened earlier that evening and to make sure that the premises were safe. The trial judge found that they were actually there for the purposes of a criminal investigation into the shooting of the accused’s husband, and that they deliberately did not tell the accused that they knew that her husband was shot in order to recover possible evidence from the accused’s home.

• He found that the search of a gazebo in the accused’s backyard constituted a second s. 8 violation. The door of the gazebo was broken, there appeared to be blood inside the gazebo, and holes were found in the gazebo’s mosquito screen.

• He found that the accused was detained around 12:20 AM when the holes were found in the gazebo. She was not given her rights to counsel and the reason for her detention until 5:23 AM. Moreover, she was only told that she was an “important witness”, notwithstanding that the ITO signed at 5:15 AM stated that they had reasonable and probable grounds to believe that attempted murder had been committed. The trial judge found that the police constantly minimized her actual legal situation and kept her ignorant of the information essential to the exercise of her constitutional rights and that they deliberately failed to caution her correctly and that this behaviour was illustrative of a constant and systemic attitude evident throughout their interactions with the accused. As such, her ss. 10(a) and 10(b) rights were violated. She was arrested for attempted murder at 5:56 AM.

• He found that a warrantless perimeter search violated the accused’s s. 8 right. The subsequent enlargement of the security perimeter also violated her s. 8 right.

• He found that the accused’s right to silence had been systematically violated. She had been wakened in the middle of the night in the absence of any urgency, the police deliberately put off warning her appropriately, and she was exhausted, claustrophobic and had exercised her right to silence on numerous occasions.

• He found that the Telewarrants were invalid after excising the unconstitutionally obtained information. As such, the search of the accused’s home after the Telewarrants were issued constituted another violation of her s. 8 right. In addition, the trial judge found that the officer who drafted the ITO failed to disclose relevant information and included deliberately misleading information suggesting that certain observations during the warrantless search were made inadvertently. He found that the police sought the warrants to remedy unconstitutional conduct.

• He found that three officers in particular did not display the frankness and sincerity expected of police officers testifying at trial and he made strong, unfavourable findings about the credibility of the police officers’ testimony at trial. They came up with implausible excuses for the warrantless searches, refused to admit obvious facts, and offered improbable hypotheses to the court. He concluded that the three officers were deliberately testifying in order to avoid the conclusion that the accused was detained at the outset of the investigation and should have been cautioned.

[61] As Cromwell J. summarized:

The trial judge was troubled by the police conduct throughout the investigation; he found that it demonstrated a blatant disregard for the appellant’s Charter rights. He found that the breaches of the appellant’s rights with respect to search and seizure were extremely serious, “flagrant and systematic”…They were not, in his view, the product of isolated errors in judgment on the part of the police, but rather were part of a larger pattern of disregard of the rights guaranteed by the Charter. He found that the police had not acted in good faith.[^23] [Emphasis added.]

[62] Mr. Di Luca acknowledged that the nature of the collective Charter breaches in Côté is distinguishable from the present case. Nevertheless, he submitted that the conduct of the police in this case rises to the level of seriousness in Côté. He argued that the pattern of breaches in Mr. Sonne’s case, caused by officers from different ranks, departments and investigative units, demonstrated a pattern of disregard for the Charter implicating a broad cross-section of law enforcement agencies in the province. The Charter violations were committed by a random sampling of individual members of the policing community against an individual over a short period of time. In his submission, there had been an “institutional disregard for Charter values” which severely aggravated the seriousness of the Charter-infringing state conduct.

[63] Mr. Byrne submitted that Côté is not new law and is very much a product of its own facts. He took strong exception to how Mr. Di Luca submitted that the principles from Côté ought to apply to the case at bar. He argued that in Côté, there seemed to be an overall plan on the part of a small group of officers to deliberately circumvent the accused’s Charter rights in order to further the investigation. From the moment the first officer arrived at the accused’s door, there was a deliberate, concerted, sustained campaign of Charter violations. A key strategy of the police in that case was to trick the accused into thinking that she was a mere witness in order to discourage her from availing herself of her Charter rights. There were also flagrant misrepresentations on key points made to the Justice of the Peace who issued the search warrant and to the trial judge during testimony.

[64] In considering these submissions, my analysis under s. 24(2) of the Charter is guided by the three-part test established by the Supreme Court of Canada in R. v. Grant[^24]:

(a) the seriousness of the Charter-infringing state conduct,

(b) the impact of the breach on the Charter-protected interests of the accused, and

(c) society’s interest in the adjudication of the case on its merits.

[65] I will not restate the other relevant principles from Grant set out in my Computer ruling and the Visa Production Order ruling.

The seriousness of the Charter-infringing state conduct

(a) June 15, 2010: Violations of Sections 8, 9, 10(a) and 10(b)

[66] Mr. Di Luca submitted that the conduct of the police on June 15th was very serious and the use of the jaywalking ruse was a deliberate and flagrant breach of Mr. Sonne’s Charter rights. He argued that Mr. Sonne’s invocation of his constitutional right to remain silent was the reason that the jaywalking ruse was used to get his name. In his submission, not only did the police detain Mr. Sonne for no reason, they also used the ruse to deliberately circumvent his Charter-protected right to silence.

[67] During the lead up to the G20 there was heightened police attention to security and for obvious reasons. P.C. Wong testified that they needed to be alert and pay special attention in the area for people acting suspiciously, which included videotaping. Videotaping of course is not illegal but the concern for people videotaping in the area of the security fence during the G20 was understandable. The decision by the officers to stop Mr. Sonne and ask for an explanation for why he was videotaping was reasonable, in all of the circumstances, provided Mr. Sonne was not detained. One would hope the police would engage in that sort of proactive policing in these circumstances.

[68] All of the Charter breaches that occurred at the time Mr. Sonne was detained on June 15, 2010, arose from the ruse that P.C. Wong admitted that he used so that Mr. Sonne would identify himself. As Mr. Di Luca submitted, Mr. Sonne was not doing anything that was illegal and resort to his constitutional rights did not provide a lawful reason for his detention. The officers admitted during testimony that they did not have reasonable grounds to arrest him for any offence. The police grew suspicious of him because he had been seen videotaping in the area of the G20 security fencing, refused to provide his name and he referred to a section in the Criminal Code on terrorism.

[69] Although in my view the ruse amounted to a serious Charter violation and the use of such a trick must not be condoned by this Court, as Mr. Byrne submitted, this conduct must be considered in light of the motivation for it in order to assess the seriousness of the police conduct. First of all, the concern regarding the G20 as to why Mr. Sonne was videotaping the area of the security fence was understandable. When questioned about that, Mr. Sonne not only refused to identify himself, he referred to a terrorism offence in the Criminal Code. For an officer on the street in the days leading up to the G20, with a duty to identify threats leading up to the G20, it is understandable that this type of response would cause some concern that Mr. Sonne might pose some threat. This is not to suggest that Mr. Sonne’s Charter rights were suspended; rather that consideration of the motivation of P.C. Wong is important in assessing the seriousness of his conduct. The questioning of Mr. Sonne was directed to his identity and why he was videotaping in the area, because of the heightened security of the G20, not because P.C. Wong suspected he had committed a crime. In my Detention ruling I found that the officers would not have been expecting an incriminating answer to their questions and that Mr. Sonne was not the subject of a rigorous investigation. Although there is no doubt that Mr. Sonne was exercising his constitutional right not to identify himself and that P.C. Wong should not have used this trick to compel him to do so, it was not done for the purpose of eliciting incriminating information. Furthermore, there was no evidence of any improper purpose in stopping Mr. Sonne to speak to him such as a racial motivation.

[70] P.C. Wong was not asked if he understood that using this ruse was a breach of Mr. Sonne’s Charter rights. P.C. Wong testified that no one told him that this was how he could get a person to identify himself; as such there is no evidence of a systemic problem. Furthermore, P.C. Wong readily admitted that he used this ruse when he was examined in chief at the preliminary inquiry and did not try to minimize it when he was cross-examined at trial. In fact he volunteered that it was a ruse. Mr. Di Luca conceded that the officers involved in Mr. Sonne’s detention were “almost exceedingly honest” when they testified. Although P.C. Wong did not make a note of his conversation with Mr. Sonne he clearly did not keep it a secret. Similarly, D.C. French included the information about the ruse in the ITOs; there was no attempt to hide it from the issuing justice or this Court.

[71] Considering all of the circumstances, and the evidence of P.C. Wong, I find that his use of the ruse was a serious error in judgment, not a flagrant disregard of Mr. Sonne’s Charter rights, in light of his ultimate purpose and the reasonable concern for security at the G20 that an officer would have in those circumstances.

(b) June 22, 2010: Violation of Section 10(b)

[72] As submitted by Mr. Di Luca, the delay in implementing Mr. Sonne’s s. 10(b) rights was a serious Charter violation. Mr. Sonne was detained, had expressed a desire to contact a lawyer, and had a right to do so. The seriousness of this conduct was aggravated by the long delay before Mr. Sonne first spoke with a lawyer – about twelve hours. Mr. Sonne was only arrested for two counts of mischief when the search warrant was executed. The additional charge of possession of an explosive substance was laid after the chemicals from Mr. Sonne’s house were seized during the execution of the search warrant. There was no reason for the police to suspend Mr. Sonne’s right to call a lawyer pending the execution of the search warrant, since there were no officer or public safety concerns. Mr. Sonne should have been permitted to use a telephone shortly after he was taken to the police station. As I stated in my Statements ruling, even accepting that the police may have been justified in waiting for the officers executing the search of 58 Elderwood Drive to secure the premises, that would only account for a relatively short period of time. Furthermore, even though I found that Detectives Hill and Garrow were only questioning Mr. Sonne to gain potential G20 intelligence, that provides no excuse for this delay.

[73] It is not clear why steps were not taken once the home was secured to facilitate Mr. Sonne speaking to a lawyer. The failure to permit Mr. Sonne to speak to a lawyer for twelve hours had always been conceded by the Crown. I heard no evidence why the No Call order remained in place for as long as it did but, for the reasons stated in my Statements ruling, I held that the Crown was not obliged to call all of the officers who were involved in this decision. I rejected the Defence submission that Mr. Sonne had been arrested as a pretext and that Mr. Sonne had not been permitted to speak to a lawyer so that Detectives Hill and Garrow, who spoke to Mr. Sonne before he spoke to counsel, could get information from him, under a ruse of confidentiality, and pass that information on to the investigators.

[74] The failure to permit Mr. Sonne to speak to a lawyer earlier was clearly deliberate, in the sense of it not being accidental, but I cannot attribute it to the decision of any particular officer or officers; it may have resulted from the delay in assigning Detective Bui as the officer in charge. I simply do not know. However, there is certainly no evidence that Detectives Hill and Garrow had anything to do with this decision. There is no basis in the evidence to find any connection between the No Call order and the conduct of Detectives Hill and Garrow. Furthermore, I have found that it was not part of any scheme to secure some advantage by trying to get Mr. Sonne to incriminate himself nor is there any evidence. There is no evidence of bad faith conduct on the part of any of the officers involved. All of these facts lessen the seriousness of the breach in this case.

(c) June 22, 2010: Further Violation of Section 10(b)

[75] As already stated I accepted the evidence of Detectives Hill and Garrow that they did not intend to elicit incriminating information from Mr. Sonne or disclose that information to the investigators. Nevertheless, incriminating information obtained from Mr. Sonne was disclosed to the investigating officers. I found that this constituted a further breach of Mr. Sonne’s s. 10(b) right, since he had not yet been given an opportunity to speak with his lawyer. However, as the evidence was not clear how and why information given by Mr. Sonne to Detectives Hill and Garrow, beyond that given to Detective Hill at 6:40 p.m., was communicated to officers involved in the investigation of Mr. Sonne’s charges including Detective Bui, I am not able to conclude that Detectives Hill and Garrow acted in bad faith. They had no improper motive when they interviewed Mr. Sonne and I have found that that their belief that the cautions are only necessary when there is an intention to elicit potentially incriminating information was not unreasonable. This lessens the seriousness of the breach.

(d) June 23, 2010: Violation of Section 9

[76] At the time Detective Bui interviewed Mr. Sonne it was only shortly past the 24 hour mark. As set out in my Statements ruling, Detective Bui did not prevent Mr. Sonne from appearing before a justice in order to extract a confession out of him. In fact, Detective Bui expected Mr. Sonne to have appeared before a justice at 10:00 a.m. He only realized that G20 bail matters had been put off until 2:00 p.m. when he arrived at court. This was not a serious violation of s. 9 in my view.

(e) June 26, 2010: Violation of Section 7

[77] When Detective Bui took the second statement from Mr. Sonne, I found that his strategy crossed the line and left me with a reasonable doubt as to whether a portion of Mr. Sonne’s statement was voluntary. However, based on this testimony, he believed his strategy was legitimate as part of a moral appeal. I have no reason not to accept that evidence. Certainly there is no evidence of any systematic breach of Mr. Sonne’s right to silence as the court found in Côté nor was his statement taken at a time when he was exhausted or otherwise unwell. Mr. Sonne did suggest that he was ill at one point, but there is no evidence that this was more than a real reaction to what Detective Bui had said or that this feeling persisted throughout the interview. This was a case of an officer crossing the line of what was permissible in a dynamic situation. There was no suggestion that Detective Bui set out to violate Mr. Sonne’s Charter rights or that he was not acting in good faith. All of these factors lessen the seriousness of the breach.

(f) Search of the applicant’s cottage: June 23, 2010: Violation of Section 8

[78] The s. 8 violation resulting from the search of Mr. Sonne’s cottage was a serious breach in that it resulted in a trespass on private property, but it was the result of the excision from the ITO in support of the search warrant of unlawfully obtained evidence from previous Charter breaches. D.C. French did nothing wrong when he relied on this information and the officers who conducted the search reasonably believed they were acting pursuant to a valid warrant. There was no independent deliberate violation of Mr. Sonne’s Charter rights at all. All of these factors lessen the seriousness of the breach.

(g) Search of the applicant’s computers: Violation of s. 8, Visa Production Order dated July 20, 2010: Violation of s. 8; D.C. French’s Testimony at the Preliminary Inquiry

[79] I have already summarized my s. 24(2) analysis with respect to the seizure and search of Mr. Sonne’s computers, the Visa production order and my views with respect to the evidence of D.C. French at the preliminary inquiry. With respect to the search of the computers, the only problem was Detective Maadanian mistakenly thought the warrants allowed him to seize the computers and the officers who searched the computers did not appear to appreciate the timeline. The search of the computer was reasonable which greatly diminishes the seriousness of the s. 8 breach. As for the production order for the Visa records, P.C. Waruk did not do anything more than rely on the earlier ITOs, the evidence from the June 15th stop and the surveillance evidence. As for my findings with respect to D.C. French, as the court noted in Côté, at para. 88, where misleading police testimony does not form part of the Charter breach itself, it is a relevant factor under the first branch of the s. 24(2) analysis as a court must dissociate itself from such behaviour. Although D.C. French was not truthful on a couple of occasions at the preliminary inquiry, which is clearly a serious matter, this must be considered in light of the fact that overall I accepted his evidence and I found he did not attempt to mislead the issuing justice. He made no effort to cover up any breach of the Charter.

(h) Conclusion on seriousness of the breaches

[80] It is important to consider the fact, that insofar as the chemicals and related equipment are concerned, they were seized pursuant to a warrant to search that I found was validly issued. No attempt was made to search without a warrant. The police in Côté did not even try to obtain a search warrant before performing a number of searches (initial search of the house, search of the gazebo, two perimeter searches). In Mr. Sonne’s case, the police obtained a legal search warrant for his home. Furthermore, although I found that the ITO did not support the charges of mischief and conspiracy, as set out in my Facial Validity ruling,[^25] I concluded that I was not persuaded that the searchers would have conducted themselves differently in any meaningful way had they been presented with only the parts of the warrants I found to be valid. There was no breach of s. 8 of the Charter in connection with the search of Mr. Sonne’s home. Without a doubt the chemicals and related equipment would have been discovered as they were in plain view in the workshop and garage.

[81] In considering the seriousness of the Charter violations as a whole, it is also important to remember, as Mr. Byrne submitted, that this is not a matter of mathematically counting up the breaches; not every Charter breach was a discrete one. For example, although there were four separate Charter breaches when Mr. Sonne was detained on June 15th, those breaches all resulted from the jaywalking ruse and the impact on Mr. Sonne was the same, regardless of the number or the nature of the breaches. Furthermore, although several officers were responsible for Charter breaches, there is no evidence they did so as part of any overall scheme or plan. In addition, not all of the officers involved in the investigation were the cause of any Charter breaches.

[82] For the reasons already stated, I have found serious breaches resulting from deliberate conduct but in all cases I have not found recklessness, bad faith or any flagrant or brazen disregard of Mr. Sonne’s Charter-protected rights. To the extent I have been able to determine the cause, the breaches resulted from individual lapses of judgment or simply careless errors and there was no attempt to hide any Charter breaches from the court. There is no evidence of any systemic failure or overriding scheme to disregard Mr. Sonne’s rights. The only officer for whom I made any adverse credibility findings was D.C. French, and that was in a relatively minor and discrete area. Although there were a number of individual officers involved and the breaches of Mr. Sonne’s Charter rights can be considered serious, which may favour exclusion of the evidence, particularly when viewed collectively, in the absence of any findings of bad faith or a systematic failure or disregard for his Charter rights, the seriousness of these breaches pales in comparison to the findings of the trial judge in Côté.

The impact of the breaches on the Charter-protected interests of the applicant

[83] On the second branch of the Grant analysis, Mr. Di Luca submitted that the impact of the Charter breaches on Mr. Sonne’s Charter-protected interests was grave. He was denied the right to be free of state interference on June 15th. He was denied his right to counsel and his purportedly confidential statements were forwarded to the investigating officers. Mr. Di Luca submitted that in addition, the illegal search of his cottage constituted an affront to his human dignity, and the seizure of his computers furthered that violation.

[84] In terms of the impact on Mr. Sonne from the breaches of his Charter protected rights on June 15th, although there were four Charter violations, the only one that had any substantial impact on Mr. Sonne was the s. 8 breach. I found no detention of Mr. Sonne before the ruse and there was no dispute that once he provided his identification information, he was allowed to go on his way. I found that Mr. Sonne appeared to be relaxed. The entire encounter with police lasted about eight minutes, but three minutes of that was to the point of the ruse. Once Mr. Sonne provided his name and driver’s licence, the rest of the time appeared to result from the police checking out his identification and filling in a contact card. There was never a physical detention and no charges were laid.

[85] As for the s. 8 breach, in my view it also had no serious impact on Mr. Sonne at the time. He divulged only his name. Although the incident did lead to him being put under surveillance, it was not submitted that the surveillance of Mr. Sonne following the June 15th detention was in and of itself a breach of his s. 8 Charter rights. All of the surveillance was done while he was out in the public and there is no evidence that he was even aware of it. All of the results of that surveillance were excised from the ITOs. Furthermore, Mr. Sonne had already drawn the attention of police as a result of his internet postings on Twitter and Flickr.

[86] The only impact on Mr. Sonne as a result of his delay in obtaining legal counsel was that during the intervening period Detectives Hill and Garrow spoke to him. I did not find that Detectives Hill and Garrow questioned him for any improper purpose or as a pretext to obtaining incriminating information. They did not obtain any information from Mr. Sonne that assisted the officers who were conducting the search of his home save for information provided by Mr. Sonne to Detective Hill following the 6 p.m. interview which was purely for officer safety reasons. The chemicals in the house were discovered during the search of Mr. Sonne’s house, not as a result of anything that he told Detectives Hill and Garrow. This diminishes the impact of these violations. Furthermore, I found that any information provided by Mr. Sonne to these officers was not used by Detective Bui in his questioning of Mr. Sonne. The only use made of information provided by Mr. Sonne to these officers was with respect to the existence and location of two cottages and the fact that potato guns could be found there. That information did find its way into an ITO which resulted in a warrant to search those cottages. Mr. Sonne only had a privacy interest in one of those cottages. I have no evidence as to how the cottages were searched save that a potato gun was seized from one of them. All of this evidence was excised from the ITO and excluded from this trial. That search was an invasion of his privacy interest with respect to that cottage although the officers who searched the cottage acted in good faith, relying on the warrant.

[87] In my Statements ruling, I found that the s. 9 breach when Mr. Sonne was not brought before a Justice of the Peace within 24 hours was a freestanding breach that resulted in no prejudice to him. As for the breach of s. 7, there was no impact on Mr. Sonne per se in that that portion of his statement was ruled inadmissible. He suffered no other prejudice from that portion of the interview. In my Computer ruling I did not find that the s. 8 breaches in connection with the computer search had any real impact on Mr. Sonne’s Charter protected rights. I did not find a serious impact in either case. As for my Visa Production Order ruling I found that the s. 8 breach had a severe impact on Mr. Sonne’s informational privacy interests that was more than minimal but did not impact on his dignity or his liberty.

[88] On balance, I would not say that the impact on Mr. Sonne of the Charter violations was grave as suggested by Mr. Di Luca, particularly when I consider the evidence that has already been excluded as a result of Crown concessions.

Society’s interest in the adjudication of the case on its merits

[89] The evidence seized from Mr. Sonne’s home was primarily the chemicals and related equipment, apart from the seizure of the computers which I had already considered under a s. 24(2) analysis. Mr. Di Luca submitted this evidence would certainly damage the Crown’s case but would not end it and that this is not a murder trial. The evidence from Twitter, said to support the charge of counselling the commission of an offence, would remain.

[90] There is no doubt that the exclusion of the chemicals and related equipment from evidence at the trial would put an end to the prosecution of the four counts of possession of an explosive substance. These are very serious charges and they are the focus of the Crown’s case against Mr. Sonne. They clearly could be as serious as a charge of murder given that in order to establish the charges the Crown must prove beyond a reasonable doubt that Mr. Sonne intended to combine any of the various chemicals found in his workshop and garage, to create any of the six explosive substances specified in the indictment.

[91] In Grant, the Court stated that the seriousness of the offence should not “overwhelm” the s. 24(2) analysis: at para. 48. As the Court noted in Côté:

Under this branch, relevant, reliable evidence that is crucial to the prosecution’s case will often point towards admission, though these considerations will have to be balanced against other relevant factors. The seriousness of the offence, however, has the potential to “cut both ways” and will not always weigh in favour of admission (Grant, at para. 84). While society has a greater interest in seeing a serious offence prosecuted, it has an equivalent interest in ensuring that the judicial system is above reproach, particularly when the stakes are high for the accused person.[^26] [Emphasis added.]

[92] The evidence of the chemicals and related equipment is real and its probative value is significant. The loss of this evidence would reduce the Crown’s case to the single count of counselling the indictable offence of mischief not committed. The Charter breaches did not undermine the reliability of this evidence as it existed independently. In fact, the chemicals would have been discovered in any event during any search for the other items listed in the search warrant. I came to the same conclusion with respect to the results of the search of Mr. Sonne’s computer and the production of the Visa records.

The balancing

[93] At this stage of the analysis I must weigh the various factors, understanding that there is no overarching rule governing how the balance should be struck: Grant at para. 86.

[94] The first of the Grant criteria works to some extent in favour of excluding the evidence obtained from Mr. Sonne’s home, in that there were numerous Charter breaches that were serious, but that is tempered by the fact that I did not find any bad faith on the part of the officers, nor was there any systemic failure nor any institutional pattern of abuse of Charter rights. Furthermore, the breaches were completely unrelated and not part of any deliberate plan or scheme to disregard his Charter protected rights. Overall the breaches did not have a significant impact on Mr. Sonne’s Charter protected interests and to a large extent any impact has been remedied by the Crown conceding that the evidence is not admissible in this trial. Although this must not overwhelm the analysis, without the evidence of the chemicals and related equipment the Crown’s case necessarily fails on the four serious charges of possession of explosive substances.

[95] Having summarized the key findings in Côté, the seriousness of the Charter breaches and their impact on the accused in that case, as compared to the case at bar, is readily apparent. In fact there is no comparison. In Côté, the court found a scheme from the outset that involved the police tricking the accused, lying to the accused, flagrantly ignoring her Charter rights, and at trial, three of the officers were found not to be truthful. In the case at bar there was no scheme or plan among the officers to ignore Mr. Sonne’s Charter rights. The only submission that might have approached Côté was the late breaking argument that Mr. Sonne’s arrest was a pretext in order to seize the wave guide or obtain incriminating information from him. I rejected that submission. The only trick that was used on Mr. Sonne was the ruse employed by P.C. Wong. It was something he alone employed and I found it was an error in judgment and the results of that ruse were excluded from the ITOs and the evidence in this case. Although I do not condone it, I found that it was less serious because P.C. Wong’s purpose was not to illicit incriminating information. Lastly, the evasiveness of D.C. French was not nearly as egregious as the conduct of the officers in Côté, and he is the only officer where any adverse credibility finding has been made. I have not found any bad faith on the part of any of the other officers who committed Charter breaches.

[96] In summary, in my view the conduct of the individual officers that led to Charter violations in this case resulted from a range of errors in judgment or simply careless errors on the part of certain officers involved in this investigation. Given my assessment of the conduct of the officers and the impact on Mr. Sonne, I concluded that the exclusion of the chemicals and the other evidence that I had ruled admissible, would extract too great a toll on the truth-seeking goal of this trial. In my view, the various breaches of Mr. Sonne’s Charter protected rights were adequately addressed by the concessions by the Crown as to evidence that ought to be excluded from the various ITOs and this trial. Balancing all of the factors, I determined that I would not in these circumstances exercise my discretion to exclude the evidence seized from Mr. Sonne’s home nor would I come to a different conclusion with respect to the evidence seized from his computer or the seizure of his Visa records. In my view, the admission of this evidence would not in all of the circumstances bring the administration of justice into disrepute.

Disposition

[97] For these reasons, I dismissed the global s. 24(2) application.

SPIES J.

Date: April 23, 2012

[^1]: R. v. Sonne, 2011 ONSC 6734 [^2]: R. v. Sonne, 2011 ONSC 6700 [^3]: R. v. Sonne, 2012 ONSC 1741 [^4]: R. v. Sonne, 2012 ONSC 1463 [^5]: 2011 ONCA 632 [^6]: R. v. Sonne, 2012 ONSC 140 [^7]: 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 38 and 39 [^8]: 2007 SCC 48 at para. 39 [^9]: 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 [^10]: 2011 SCC 46 [^11]: 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 [^12]: At para. 56 [^13]: 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 at pp. 1005-6 [^14]: At para. 57 [^15]: 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 [^16]: At para. 77 [^17]: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45 [^18]: R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463 at para. 40; R. v. Wittwer, 2008 SCC 33 at para. 21 [^19]: Strachan, at p. 1002 [^20]: Grant (1993), at para. 57 [^21]: Para. 57; See also R. v. Papadopoulos (2006), 2006 CanLII 49052 (ON SC), 152 C.R.R. (2d) 189 (Ont. S.C.) at para. 184 [^22]: Paras. 4 and 88 [^23]: At para. 33 [^24]: 2009 SCC 32, [2009] 2 S.C.R. 353 [^25]: R. v. Sonne, 2012 ONSC 584 [^26]: At para. 53