ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Brian McCallion, for the Crown
- and -
ANTONIO CARANCI
Applicant
Anthony Robbins, for the Applicant
HEARD: March 8-9, 2012
REASONS FOR DECISION
LAUWERS J.
1The defence applies to exclude a loaded handgun from the evidence at trial under section 24(2) of the Canadian Charter of Rights and Freedoms based on breaches of the applicant’s rights under sections 8 and 10(b). I dismissed the application orally with reasons to follow, which are set out below.
Background facts
2The applicant was charged on November 8, 2009, with 18 counts divided between bawdy house charges and firearm charges. The bawdy house charges were withdrawn on April 18, 2011. The applicant now faces three firearm charges: careless storage of a firearm, contrary to section 86(3) of the Criminal Code; possession of a firearm while not being the holder of a licence permitting such possession, contrary to section 91(2) of the Code; and possession of a loaded firearm, contrary to section 95(2) of the Code. These charges arise from the execution of a search warrant at the applicant’s residence and the seizure of the firearm found in the door panel of a vehicle located in the garage at the residence. The firearm was a Bryco .38 caliber semi-automatic handgun loaded with five rounds of ammunition in the magazine.
3On November 7, 2009, the police obtained warrants from Justice of the Peace Frederiksen to search the applicant’s residence and the place of business alleged to be the bawdy house, known as the “Spa at Tiffany’s” located at 435 Bowes Road, Number 1A (the “Spa”).
The Application to Exclude Evidence
4The defence seeks the exclusion of the firearm as evidence and raises the following issues, which I consider in turn.
1. Should the search warrant have been issued at all?
5The defence submits that the search warrant for the residence should not have been authorized by the Justice since there were no grounds to believe that items associated with the alleged offences would be located there.
6On an application to determine whether a search warrant was issued properly, the standard is not whether the reviewing judge would have authorized the warrant, but whether the authorizing Justice, acting reasonably and judicially, could have issued the warrant on the basis of the information provided: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at paras. 55 and 56; R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.).
7The standard of proof is “reasonable probability,” not “proof beyond a reasonable doubt”: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.) at para. 47. As Hill J. observed in R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260, 20 O.R. (3d) 468, 93 C.C.C. (3d) 357 at paras. 28-29, (Gen. Div.), the standard is one of “credibly based probability,” so that “[m]ere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective.” He added at para. 30 that the affiant must “subjectively or personally believe in the accuracy and credibility of the grounds of belief,” but there must also be an objective basis for the belief: “In other words, would a reasonable person, standing in the shoes of the police officer, have believed that the facts probably existed as asserted and have drawn the inferences therefrom submitted by the affiant.”
8I also adopt the approach to the interpretation of the “Information To Obtain” the search warrant (the “ITO”) taken by Hill J. in R. v. N.N.M., 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 (S.C.J.) at paras. 322-23:
The existence of fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence, or the omission of facts material to the exercise of discretion to issue a warrant are all relevant to review of a warrant and relate to whether there continues to be any basis for the decision of the authorizing judge. Ordinarily, the reviewing court looks to the remaining grounds of belief in an ITO after redaction of the offensive text, or in the case of an omission with the addition of the relevant missing fact(s), in order to determine whether there is a basis upon which the court could have issued the warrant "In this way, the state is prevented from benefitting from the illegal acts of the police officers, without being forced to sacrifice search warrants which would have been issued in any event".
That said, a reviewing judge is not foreclosed, in appropriate circumstances, "from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves." (Internal citations removed)
9Detective Constable Matthew was the officer in charge of the investigation and was the affiant of the ITO. D.C. Matthew stated that in March 2009 Jessica Snow, another three employees, and Mr. Caranci were charged with bawdy house offences. The Affidavit noted that “all the charges against the inmates were withdrawn before trial on a Peace Bond and a charitable donation. The charges against Antonio Caranci were also withdrawn after he made a $5,000.00 charitable donation to the Salvation Army.”
10D.C. Matthew also stated that on August 6, 2009, he conducted a bylaw inspection at the Spa and there found two attendants working “who were dressed in lingerie and attire appealing to sexual appetites.” He added that:
Since the 6th of August 2009, seven (7) patrons exiting the Spa at Tiffany’s. Five (5) of the patrons indicated that sexual services had been received or offered from the attendants during their massage.
More details are provided later in the affidavit.
11The ITO refers to job posting on Facebook for massage attendants at the Spa, and the contact was to be Mr. Caranci.
12D.C. Matthew stated that: “On four (4) occasions, Antonio Caranci has been observed attending the business before it opened and on two occasions removing property from the business and placing it in his vehicle.” The vehicle is identified as a silver Bentley. More details are provided later in the affidavit.
13During surveillance on November 5 and 6, 2009, Mr. Caranci was seen meeting with a Vaughan licensing officer and an unknown male party at the Spa. D.C. Matthew learned that Mr. Caranci had found a buyer for the business, which “[was] set to be sold on Monday 9th November 2009.” This pending sale, D.C. Matthew testified, caused the investigation to be accelerated and the decision to be made to search both the residence and the Spa.
14The ITO specifically noted that D.C. Matthew received certified documents from the Vaughan Licensing Department indicating that Antonio Caranci was the president of Spa at Tiffany’s Inc. since June 16, 2008, and that the Spa had a valid body rub licence. Mr. Robbins submitted:
The issuing justice was not advised in the Information to obtain that the police were already in possession of documents from the city of Vaughan confirming that the Applicant owned and was president of the Tiffany Spa. Had the issuing justice been advised of this information there would have been no need for the police to search the Applicant’s residence for bank and business records nor landlord tenant agreements.
15D.C. Matthew acknowledged in cross-examination that he knew who owned the Spa and had had related documents since March 2009. Mr. Robbins argued that accordingly the police already had documentation confirming that the applicant was the owner of the Spa and did not need to search his home to prove his connection to the Spa.
16Further, the Justice was (inadvertently) given the wrong information about the date on which the Spa was sold. Mr. Robbins submits:
PC Matthew incorrectly advised the issuing justice that the Tiffany Spa was to be sold on November 9th. He was advised of this over the phone from Larry Glass, who worked for the licensing department of the city of Vaughan. {Preliminary 10th August 2011 at p.16}. In fact the closing date was November 6th 2009, a day before the warrant was executed. Had the issuing justice been advised that the Tiffany Spa was already sold it would have affected his decision as to permit the search for documents at the Applicant’s home.
17Mr. Robbins submits that the ITO does not allege that Mr. Caranci had knowledge of sex acts at the spa. This, in my view, is an overly scrupulous reading of the ITO. The affiant swears: “I further believe that Mr. Caranci is living wholly or in part on the avails of prostitution of other persons” who are then identified; the ITO lays out in detail circumstantial facts from which the inference could be made that he was directing the enterprise.
18Mr. Robbins submits that the Justice should have been told that the log sheets do not record sex acts. The description does not imply that sex acts are recorded; the ITO states that the log sheets “can record information of patrons that can include: the name of the patron, date, time, attendant and price.” In my view, quite frankly it seems unlikely that someone in the business would create such an express record in any event. Mr. Robbins complains that D.C. Matthew did not advise the Justice that he had copies of employment contracts between the Spa and attendants which specifically promised that they would not engage in sex acts with customers. The employment contracts are so exculpatory that they may be viewed as inculpatory.
19Overall, Mr. Robbins submits that the omissions make the ITO misleading. There ought to have been frank and full disclosure, and if there had been, the Justice of the Peace would not have issued the telewarrant.
20In Sanchez at para. 40, Hill noted that the ITO must recite facts sufficient to find a “factual nexus” between the evidence that could be found in the place to be searched and the accused, recognizing, as he said at para. 39 that: “It is common knowledge from our experience with warrants to search that evidence relating to an offence may be discovered at premises under the control of one suspected to be complicit in the crime or at a location occupied by an innocent third party custodian or possessor of the things to be searched for.”
21In my view, the ITO meets this test and Hill J.’s commonsense observation. Mr. Caranci owned the business thought to be operating as a bawdy house. The reasons for suspecting it to be a bawdy house are plain in the ITO. Mr. Caranci was observed to be present there from time to time. He appeared to be responsible for recruiting attendants. He removed things from the business and transported them in his car to his house. Regardless of the state of knowledge on the part of the police, acquiring more evidence tying Mr. Caranci to the business was a legitimate part of the investigation. This was evidence that would serve to tie Mr. Caranci more closely to the operation of the business. In my view the ITO provides a rational basis on which the Justice could conclude that Mr. Caranci was involved in the crimes alleged.
22I find that there were sufficient grounds for the Justice to issue the search warrants in respect of the residence and that any flaws in the ITO were insignificant. There is no reason to redact the ITO. I see no basis in Mr. Robbins’ submissions to find that the Justice should not have issued the warrant.
2. Was the search warrant valid despite the missing first page?
23The defence submits that the police did not have a valid search warrant when they entered the residence so that the search should be treated as a warrantless search for Charter purposes.
24The evidence establishes that the telewarrant which the police received from the issuing Justice was missing the first page of the standard telewarrant form. That page is entitled “Telewarrant to Search” and sets out the place to be searched and the things to be searched for. Instead of waiting for the missing page or the whole warrant to be re-faxed by the Justice, D.C. Matthew added the first page of the ITO that he had sent to the Justice, entitled “Information to Obtain Telewarrant to Search,” to the incomplete warrant received from the Justice.
25D.C. Matthew explained that he received back from the telewarrant office a complete endorsed warrant for the Spa. He also received the pages of the telewarrant relating to the residence except for the first page. Upon learning of the missing page, Detective Truong instructed D.C. Matthew to use his best efforts to get the missing page and he did so by calling and by faxing the telewarrant office.
26The execution of the search for both places was authorized to be done between 3:00 p.m. and 9:00 p.m. on November 7, 2009. Detective Truong felt there were time constraints given the small size of his team and his inability to get more officers to assist. Further, he was concerned about the preservation of evidence because Jessica Snow, the alleged keeper of the bawdy house, had been arrested at about noon by D.C. Aaron Sidenberg, who felt that she may have given a warning to the applicant.
27When it became clear that the replacement telewarrant would not be received before the scheduled execution, D.C. Matthew took the first page of the ITO package that he had sent to the Justice and attached it to the copy of the warrant that he took with him to the residence. D.C. Matthew did not explain why he inserted that page rather than the normal first page of the telewarrant that he had sent to the Justice.
28As is turned out, the warrant package that was re-sent by the Justice arrived at the district office shortly after until after execution of the search began, but D.C. Matthew did not discover that until later in the evening when he was back at the station.
29I accept the evidence of Detective Truong and D.C. Matthew that they discussed the validity of the telewarrant for the residence in the absence of the first page. Detective Truong formed the view that it was evident from the fax cover sheet and the balance of the telewarrant that the Justice had authorized it to be issued; the search of the residence was authorized since the issuing Justice had plainly turned his mind to the scope of the search of the residence in view of the specific exclusions he made that are noted above. The officers saw the missing page as merely a “technical issue.”
30Detective Truong and D.C. Matthew testified that the issue with the missing page in the search warrant and the limitations in the warrant on what the police could search for at the residence were discussed with the search team at a briefing at about 5:03 p.m. just before going to the residence. I accept their evidence that none of the involved officers expressed concern about either matter when invited to do so by Detective Truong. I find that the officers were working in good faith.
31Section 487.1 of the Criminal Code prescribes the method by which police can obtain a search warrant or “telewarrant” from a Justice electronically. For the purpose of this issue the relevant provisions of section 487.1 are set out below:
Formalities respecting warrant and facsimiles
(6) Where a justice issues a warrant by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,
(a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance;
(b) the peace officer, on the direction of the justice, shall complete, in duplicate, a facsimile of the warrant in Form 5.1, noting on its face the name of the issuing justice and the time, date and place of issuance; and
(c) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.
Issuance of warrant where telecommunication produces writing
(6.1) Where a justice issues a warrant by a means of telecommunication that produces a writing,
(a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance;
(b) the justice shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (6)(b);
(c) the peace officer shall procure another facsimile of the warrant; and
(d) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.
Providing facsimile
(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, before entering the place or premises to be searched or as soon as practicable thereafter, give a facsimile of the warrant to any person present and ostensibly in control of the place or premises.
32The defence submits that the language of section 487.1 is mandatory as indicated by the repeated use of the word “shall.” Further Mr. Robbins submits that the telewarrant brought to the residence by the police was not a “facsimile” because of the missing page; the substituted page was not an accurate duplicate or facsimile of the missing page, nor was the warrant.
33The defence relies on R. v. Scoville, [2011] N.J. No. 268 per Gorman P.C.J. at paras. 44, 45:
44 It is important to understand the differences between a telewarrant and a search warrant obtained in person. In the latter case, the officer is given the original search warrant after it is issued by the justice. In contrast, when a telewarrant is issued the justice files the original with the Court's registry and sends a facsimile to the police officer. Thus, when a police officer executes a search warrant obtained in person he or she can show the occupant of the premises being searched the original document. When a telewarrant is issued a facsimile is the only document available to be shown to the occupant by the police. In such a situation a facsimile may not have the same gravitas to some.
45 Parliament requires a peace officer executing a telewarrant to "procure another facsimile of the warrant." This allows for compliance with section 487.1(7). Finally, Parliament has prescribed a specific form for telewarrants which contains specific advice to the occupant. This wording assures the occupant that a genuine court issued search warrant is being executed. Assuring the occupant of this reality is in everyone's interest.
34The purpose of section 487.1 is to ensure that the person whose premises are to be searched is aware of the authority for the search: R. v. Al-Fartossy, 2007 ABCA 427, [2007] A.J. No. 1446 (C.A.) at para 71. The search warrant was available for Mr. Caranci to inspect had he asked to be permitted to do so, but he did not. This is not a case like R. v. Bohn, [2000] B.C.J. No. 867 (C.A.), on which the defence relies, where the police did not bring the search warrant with them to the residence.
35There is no doubt that the search of the residence was judicially authorized.
36In my view there is no material difference between the telewarrant issued by the Justice and the one brought by the police to the residence and left there. (My decision could have been quite different if the missing page had been materially altered by the Justice, but it was not.) The substituted page had on it the substantive information that would have been on the missing page including the location to be searched, the grounds for the search and the things that could be searched for by reference to the schedules, in the same manner as the missing page from the telewarrant.
37I dismiss this ground of the application and find the telewarrant to have been valid despite the missing page in the copy left at the residence with Mr. Caranci’s spouse. The search was not a warrantless search for Charter purposes.
3. Was the manner in which the police gained entrance to the residence unreasonable?
38The defence submits that the police utilized a ram to gain entry without first seeking admission in the conventional way by knocking or ringing the doorbell, thereby using excessive force. The onus is on the applicant to establish the alleged Charter breach on a balance of probabilities.
39To be reasonable under s. 8 of the Charter, a search must be authorized by law, the law must be reasonable and the manner in which the search was conducted must be reasonable: R v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at page 278, para 23.
40The “knock notice” rule has long been a part of the common law. Its continuing significance was recognized in the Supreme Court’s decision in R. v. Cornell, [2010] 2 S.C.R. 142, 2010 SCC 31. Cromwell J. noted, at para 18, that the rule requires police officers to make an announcement before forcing entry into a dwelling house, except in exigent circumstances:
In the ordinary case, they should give: “(i) notice of presence by knocking or ringing the door bell, (ii) notice of authority by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.”
41Where the police depart from the knock notice rule, the onus shifts to them to explain why they thought it necessary to do so.
42Exhibit 13 is a disc containing surveillance video for the residence on four channels, which appear to be synchronized in timing. The disc was prepared by the York Regional Police Video Support Unit, according to the label. Channel 3 shows the driveway and channel 4 shows the front entrance area of the residence. The picture quality is generally good but both channels fog up considerably just before the time that the police arrive, to the point where it is not possible to identify the officers’ facial features, except those of Detective Truong who looked directly into the camera at the front door.
43The driveway video shows that the silver Bentley that Mr. Caranci drives arrived at about minute 14:55 and backed slowly into the garage. The five police vehicles arrived at minute 27:07. The police moved through the driveway area and to the front door and completed that movement at about 27:45.
44The front entrance area video is very foggy. The first entry of a figure into the picture at the front door is at minute 27:27. The ram, clearly marked “POLICE” by reflective lettering, enters the picture at 27:36. The figures are then in a waiting posture. Detective Truong looked directly into the camera at about 28.05. The first swing of the ram occurs at 28.33. There were four swings in all and evident entry at about 28:42, but it is not possible to determine from the video how many times the door was struck.
45There is a dispute on the evidence as to what happened at the residence. As noted, the search team arrived at about 5:27 p.m. D.C. Matthew testified that he shouted that the police were present and wanted to execute a search warrant, and that he both rang the door bell and used the large lion head knocker on the door “numerous times”. When there was no response, he was authorized by Detective Truong to use the ram and applied it to the door. Mr. Caranci the opened the door.
46Mr. Caranci denies that the police shouted, rang or knocked before applying the ram. He testified that the door bell, which works through the phone system, is loud but he did not hear it rung. He did not hear the door knocker being used and from where he was in relation to the door he would have heard it. In chief he testified that he was in the kitchen when he heard the ram hit the door twice. In cross-examination he testified that he was walking back to the kitchen from the powder room close to the front door blowing his nose when he heard the ram hit the door. It “shook the house”. He immediately went to the door to open it.
47I accept the evidence of D.C. Matthew that he rang the door bell and used the door knocker, and reject the contrary evidence of Mr. Caranci. There is a waiting period of about one minute evident on the video before the ram swings into action. There is no reason for such a delay if the police were not waiting for the door to be answered and were instead intent on breaking in without warning using the ram. While this is not the two minutes wait that Detective Truong estimated, it was not a particularly short wait and was certainly long enough for Mr. Caranci to have answered the door in response to a bell or a knock.
48I find that there is no basis for the defence’s assertion that the police breached Mr. Caranci’s section 8 right by the manner in which they gained entrance to the residence.
4. Did the police respect the applicant’s right to counsel under section 10(b) of the Charter?
49The defence submits that the police breached the applicant’s right under section 10(b) of the Charter to contact counsel before being questioned. The applicant was arrested at about 5:30 p.m. on November 7, 2009 but was not permitted to contact counsel until about 10:00 p.m. that evening.
50The relevant legal principles were set out by Lamer C.J.C. in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289 at paras. 16 and 17:
16 The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.
17 This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. (Internal citations omitted.)
51R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, Lamer J. noted at para. 21 that: “Where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.”
52The evidence is that when the team entered the house D.C. Matthew pushed Mr. Caranci against the wall, handcuffed his hands behind his back and read him his rights. D.C. Matthew admits that Mr. Caranci immediately asked to be permitted to call a lawyer, but he did not permit Mr. Caranci to do so, thinking that this right could not be exercised in the middle of a search.
53Counsel agreed that the evidence of Officer Finley could be admitted without the need to call him as a witness. His notes record that at 17:45 p.m. Officer Finley read Mr. Caranci his rights again while he was in the police vehicle being transported to the station. Officer Finley’s notes state that D.C. Matthew had instructed him not to allow Mr. Caranci to contact a lawyer until after the second search warrant on the Spa had been executed. D.C. Matthew does not recall giving that instruction but does not deny doing so. I find that D.C. Matthew did so instruct Officer Finley. The evidence shows that Mr. Caranci was permitted to contact counsel only at 9:52 p.m. and at 10:22 p.m., some 4.5 hours after his arrest.
54In my view there is no justification for the clear failure to afford Mr. Caranci his right to contact counsel immediately; there were no urgent or dangerous circumstances. The Crown rightly concedes that the police breached the applicant’s Charter right to counsel.
55Mr. Robbins submits that had Mr. Caranci been able to contact counsel immediately on his arrest two things would have happened. First, counsel might have been able to check into the validity of the search which counsel would no doubt have directed Mr. Caranci to review with him; this could have surfaced the irregularity of the missing page in the search warrant. In my view, however, the result would have been a rapid retrieval of the second copy of the telewarrant from the District office, where it arrived shortly after the execution of the telewarrant began. All that would have happened would have been a delay in the execution of the warrant.
56Mr. Robbins submits secondly that Mr. Caranci would have known from counsel’s advice not to tell D.C. Matthew where the money was kept or where the surveillance system was housed since both items were expressly excluded from search by the telewarrant. Both items would have turned up in the ordinary execution of the search. I observe that the proper execution of the search warrant would still have located the firearm.
5. Did the police breach the search warrant by seizing items specifically excluded by it?
57The telewarrant fax cover sheet signed by the Justice contained the following notation: “NB approved/sealed under strict conditions of items to search for.” Those conditions were set out in Appendix “A”, which described the items to be searched for, and manually crossed out “money,” “cash boxes,” “video surveillance” and “condoms.” The items that were permitted to be searched for were customer log sheets, bank records and business records, and landlord tenant agreements, all expressly limited to be “with respect to Spa at Tiffany’s 435 Bowes Road, Unit 1A.”
58The defence submits that the police did not properly execute the warrant since they searched and seized items from the residence that the issuing Justice had specifically not permitted them to search for, namely money, video surveillance equipment, and corporate records other than records obviously pertaining to the Spa.
59The evidence on what happened with the warrant is disputed. D.C. Matthew says that he went over the warrant with Mr. Caranci. He did not give Mr. Caranci a copy of it but left it in the house with Mr. Caranci’s spouse. Mr. Caranci testified that D.C. Matthew brandished the warrant but denies that he showed him the text of the warrant or went over it with him.
60D.C. Matthew testified that he asked Mr. Caranci where the surveillance equipment was located, who directed him to a locked room in the basement that Mr. Caranci opened. The equipment was seized.
61D.C. Matthew testified that he asked Mr. Caranci where the log sheets for the Spa were to be found. Mr. Caranci directed him to a drawer in a dresser in the master bedroom and accompanied him there. In the drawer were found a number of log sheets consisting of cash envelopes, some of which contained money. All of the material was seized.
62In addition, D.C. Matthew testified that he found some money in a jewel box on the same dresser and, taking the view that it might be proceeds of crime, he seized the logs, the money and the loose cash. He also seized some “bulk jewellery” along with appraisals from the same location, again on the theory that these might well represent proceeds of crime. The appraisals, which the police did not apparently read at the time, establish that Mr. Caranci owned the jewellery before he acquired an interest in the Spa.
63Mr. Caranci’s evidence is somewhat different. In-chief Mr. Caranci testified that D.C. Matthew asked him where the money was, that is, he asked for “just money,” and where the surveillance system was located. Mr. Caranci then testified that D.C. Matthew “asked for some documents pertaining to the Spa at Tiffany’s.” Mr. Caranci told him that the Spa had been sold the day before and that the corporate records were in the hands of his lawyer; all he had was one folder. He insisted that D.C. Matthew simply asked “Where’s the money.”
64In cross-examination, Mr. Caranci testified that it was “pure coincidence” that there were three log sheets in the dresser drawer. D.C. Matthew was directed to the drawer because there was money there and he found the log sheets. Mr. Caranci said that they could have been for Thursday of that week before the business was sold. Mr. Caranci denies that D.C. Matthew specifically asked him for log sheets.
65I accept the evidence of D.C. Matthew that he specifically asked Mr. Caranci where the log sheets for the Spa were located and that Mr. Caranci directed him to the dresser in the master bedroom. I find it highly unlikely that D.C. Matthew would have asked Mr. Caranci a general question about money only, but would then have specifically requested corporate documents “pertaining to the Spa at Tiffany’s,” which accurately expresses the limitation in the telewarrant. It is, in my view, far more likely that, as D.C. Matthew testified, he asked specific questions relating to what was permitted by the search warrant, and then made decisions on the evidence that he found.
66All of the corporate records present were seized whether they pertained to the Spa or not. The defence asserts, fairly, in my view:
PC Matthew did not advise the other officers involved in executing the warrant the Ontario incorporation number of the Tiffany Spa, and was unsure if he even knew the number prior to the search. … PC Matthew knew that the Applicant had other legitimate businesses registered to him prior to executing the search warrant, but he made no inquiries to determine how much he earned from these other businesses that he owned and operated.
67D.C. Matthew and Detective Truong both testified that the surveillance equipment was not taken for the impermissible purpose of finding evidence linking Mr. Caranci to the Spa, but in order to protect the identities of Detective Truong and D.C. Sidenberg, who were undercover officers. The fact that the video fogs up just before the police arrive supports the defence assertion that they altered the video, but not to delete images, only to obscure them. As noted, I was able to discern the sequence of events.
68The applicable legal principles to be applied where a Justice specifically excludes certain items from a warrant were discussed by G.A. Campbell J. in R. v. Guo, 2009 ONCJ 184, 189 C.R.R. (2d) 355 at para. 54:
54 While the police must be afforded the opportunity to seize evidence associated with the commission of an offence, it seems to me that the parameters of s. 489(1) must be measured against the exercise of judicial discretion to order or refrain from ordering the seizure of certain items. To this end, in the absence of special circumstances, such as a situation where the public would be at risk or the opportunity to secure evidence would be lost or where the thing found is in and of itself clearly related to criminal activity, the direction given by the warrant must be followed and where necessary, the premises may be secured until further direction or authorization can be obtained to seize the items. To do otherwise would equate to transferring judicial discretion and serve to undermine the process.
69In my view the observations made by Campbell J. at para. 56 apply here with necessary modifications:
56 The plain view doctrine and the provisions of s. 489(1) cannot be relied on as a mechanism to override a clear direction given by the Justice who issued the warrant. In the absence of appropriate circumstances, none of which were present here, the officers had a duty to comply with the terms prescribed in the warrant. The direction contained in the November 4, 2005 warrant was clear. In the circumstances, there was an absence of any real and pressing need to seize the items that fell within the category of items deleted by the Justice of the Peace. The police should not have taken possession of the property. Accordingly, the seizure of exhibits 3, 4, 5, 6, 8, and 9 and was unreasonable.
70The Crown therefore rightly concedes that by seizing money, jewellery, the surveillance equipment, and corporate records that did not pertain to the Spa, the police did not properly execute the warrant. The Crown submits, however, that where money was enclosed in the envelopes that were effectively the Spa’s “customer logs,” it was appropriate to seize that money as evidence. I agree, but this reasoning does not apply to the other items seized such as the loose money, the jewelry, the corporate records not pertaining to the Spa, and the surveillance equipment; the police overstepped.
71I am not able to conclude on the evidence, however, that the police acted in bad faith in seizing the items not included or inferentially excluded by the telewarrant. Subject to the applicant’s claim about the cumulative effect of the Charter breaches which I address below, at best, in terms of the direct remedy, the questionable evidence would be excluded as happened in Guo. But this does not help the applicant since the firearm plainly falls under section 489 of the Code: R. v. L.V.R., 2011 BCSC 1158 at para. 77.
6. Additional Charter Breaches
72In addition to the breaches of Mr. Caranci’s Charter rights discussed above, the defence refers to other breaches referred to below.
73The Supreme Court of Canada set the analytical framework for assessing the reasonableness of search and seizure under section 8 of the Charter in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579.
74The police searched the applicant’s cell phone for messages upon his arrest without a warrant. I infer that Mr. Caranci had a subjective expectation of privacy in his cell phone. In respect of the cell phone, I adopt the approach of Trafford J. in R. v. Polius (2009), 196 C.R.R. (2d) 288, [2009] O.J. No. 3074 (S.C.) as summarized by Sharpe J.A. in R. v. Manley, 2011 ONCA 128, [2011] O.J. No. 642 at para. 35:
35 The appellant submits that even if the police had grounds to believe that the cell phone had been stolen, they had no power to search the saved data in the cell phone without a warrant. In the leading Ontario case, R. v. Polius (2009), 196 C.R.R. (2d) 288 (Ont. S.C.), Trafford J. rejected the Crown's argument that the power to lawfully seize a cell phone incidental to arrest includes a warrantless power to examine its contents. He held that one has a reasonable expectation of privacy in the often deeply personal contents of one's cell phone and, at para. 57, that to protect the privacy interests implicated in a manner consistent with s. 8 jurisprudence, a search incident to arrest should be limited to "a power to seize it, where there is a reasonable basis to believe it may contain evidence of the crime, for the purpose of preserving its evidentiary value, pending a search of its content under a search warrant."
I note that at para. 39 Sharpe J.A. added that: “I am far from persuaded that Polius was wrongly decided or that it ought to be overruled.”
75I find that the search of the cell phone, which revealed the warning call to the applicant from Jessica Snow, was not “cursory”: R. v. Cater, 2012 NSPC 2, [2012] N.S.J. No. 22 at para. 52. The circumstances in this case did not, in my view, justify a search of Mr. Caranci’s cell phone, cursory or otherwise, without a new and specific warrant.
76I infer that Mr. Caranci’s parents had a subjective expectation of privacy in their mailbox. That search revealed that Mr. Caranci was using his parent’s home as a mailing address. What flows from this fact that might be relevant to this case eludes me. I find that the police violated the Charter rights of Mr. Caranci’s parents in searching the mailbox without a warrant.
77The police did not finish the search at the Spa until after 9 p.m. despite the time limitation in the warrant. I find the breach, if any, to be de minimis.
7. Do the Cumulative Breaches Invoke Section 24(b) of the Charter?
78Mr. Robbins submits that the cumulative effect of the various breaches is to invoke the court’s jurisdiction under section 24(2) of the Charter to exclude the firearm as evidence.
79The defence relies on the Supreme Court’s decisions in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 and R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34. The Court framed a new test for relief under section 24(2) of the Charter at paragraph 71 of Grant:
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
80Before addressing the three lines of inquiry, it would be helpful to summarize my findings. I found that: there were sufficient grounds for the Justice to issue the search warrant in respect of the residence and any flaws in the ITO were insignificant (para. 22); the telewarrant was valid despite the missing page in the copy left at the residence with Mr. Caranci’s spouse, so that the search was not warrantless for Charter purposes (para. 37).
81In terms of police misconduct, I found that: the police breached Mr. Caranci’s Charter right to contact counsel immediately (para. 54); the police did not properly execute the warrant because they seized money, jewellery, surveillance equipment, and corporate records that did not pertain to the Spa, which were specifically excluded by the warrant, although they did not act in bad faith (paras. 70-71); there was no justification for the police search of Mr. Caranci’s cell phone without a new and specific warrant (para. 75); and the police violated the Charter rights of Mr. Caranci’s parents in searching their mailbox without a warrant (para. 76).
1. The Seriousness of the Charter-infringing Conduct
82In Grant, the Supreme Court noted at paragraph 74 that the importance of the first line of inquiry, the "seriousness of the Charter-infringing state conduct," is "to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condones state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct."
2. The Impact of the Breach on the Charter-protected Interests of the Accused
83In Grant, the Supreme Court noted at paragraph 76 that the second line of inquiry "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed," citing especially, at paragraph 77, "the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 44."
84Taking these two lines of inquiry together, I find that the most serious breach of Mr. Caranci’s Charter rights was the denial of timely access to counsel. I note, however, that this breach did not lead to an improper confession or to the discovery of tainted evidence. The impact on Mr. Caranci’s right to silence was minimal. The second most serious breach was the seizure of things excluded by the warrant. I found that the police were not acting in bad faith. Further, the ordinary remedy for such a breach would be the exclusion of the evidence seized in contravention of the limits of the warrant. The gun was found in the ordinary search process and not in breach the terms of the warrant and would not be excluded on this basis. The search of the cell phone likewise did not lead to evidence of relevance to the specific gun prosecution. The search of Mr. Caranci’s parents’ mailbox violated their rights, and arguably Mr. Caranci’s also, but it was not a serious breach.
85I am not prepared to find, on the record before the Court, that there existed a pattern of conduct in the manner of the execution of the warrant that would suggest that the police were indifferent to the Charter-protected rights of the accused, or that they acted in a high-handed or cavalier fashion when it came to the observance of those rights. Mistakes were undoubtedly made, but, as I have found, they were made in an overall context of good faith on the part of the police.
86A consideration of the first two branches of the Grant analysis involves situating the seriousness of the breach and the significance of the impact on the accused along a continuum: R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48, per Doherty J.A. I find that, taken individually and together, both the seriousness of the established breaches and their impact on the Charter-protected rights of the accused were at the less serious end of the continuum. Specifically, the breaches did not significantly impair Mr. Caranci’s right to silence and did not produce tainted evidence on which the Crown relies. There is no causal connection between the breaches and the discovery of the firearm.
3. Society's interest in the adjudication of the case on its merits
87The third branch of the Grant analysis involves a consideration and weighting of society’s interest in the determination of the charges on their merits. It is concerned with promoting the central purpose of a trial – to seek out the truth. Consideration must be given to whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, para. 79). The court must consider factors that include, but are not limited to, the reliability of the evidence in question and the importance of the evidence to the prosecution’s case. The public interest would not, for instance, be served by admitting unreliable evidence, as could be the case where a Charter breach compels a person to talk. Conversely, the exclusion of highly reliable evidence may impact more negatively on the reputation of the justice system “where the remedy effectively guts the prosecution” (Grant, para. 83).
88Gun crimes are serious. Here, the gun is highly reliable evidence and it is of critical importance to the Crown’s case. Its discovery was not the direct or indirect result of any of the identified Charter breaches.
89Given my conclusions on the relative lack of seriousness of the police breaches, and their minimal impact on Mr. Caranci’s Charter-protected rights, I find that the balance swings in favour of adjudication of the case on its merits.
90For these reasons, I dismissed the application.
P.D. LAUWERS J.
RELEASED: June 14, 2012