SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20120124

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: November 24, 2011

SupplementaRy RULING ON DEFENCE SECTION 8 APPLICATION TO exclude evidence obtained from WarrantS to Search

[ 1 ] When I decided the defendant’s Garofoli application, [1] I reserved two issues for further submissions because I had Mr. Di Luca’s submissions in writing on these issues but did not have Mr. Byrne’s position. This ruling deals with those two outstanding matters and sets out my decision and reasons on these issues.

The Second Named Intimidation Offence

[ 2 ] I reserved the question of whether or not the second named intimidation offence of watching a justice system participant, set out in Appendix B to the first warrant to search 58 Elderwood Drive, dated June 22, 2010, was properly supported by the Information to Obtain (“ITO”). I have already found that the information in the ITO, which included pictures posted on Mr. Sonne’s Flickr account of police officers on duty, with derogatory comments such as “bacon on wheels,” was evidence of disrespect for the police and evidence that Mr. Sonne was “watching” the police. As these posts had been made in the relevant period of time and were continuing, the offence arguably was both completed and ongoing. As such I found there was no misalignment of the named offence and the ITO as Mr. Di Luca argued on the Garofoli application.

[ 3 ] However, in his written Reply, Mr. Di Luca submitted that this offence, as particularized, contained an inherent flaw as watching a justice system participant is not the sort of thing that could provoke a state of fear in the general public . This was the issue I reserved for further submissions so that Mr. Byrne could respond.

[ 4 ] Mr. Byrne responded that the warrants to search could have issued on the basis of the information in the ITO of Mr. Sonne publicly posting on his Twitter account that he was able to dismantle the security fence for the G20, along with apparently targeting the police by taking photos of them and posting those photos with derogatory comments on the Internet. He submitted that this could have been done with the intent to instill fear in members of the public in that there was some suggestion of a willingness to interfere with the security fencing and harm police officers.

[ 5 ] I found with respect to the first named intimidation offence in the warrant that given the heightened security around the G20, publically threatening to climb or pull down security fences that were intended to keep participants of the G20 safe, along with the police and members of the public who could be expected to be in the vicinity of the G20 Summit outside the secured area, by posts on Twitter, accessible to anyone with a computer, could have been intended by Mr. Sonne to provoke a state of fear in the general public.

[ 6 ] I accept Mr. Byrne’s submissions that this reasoning applies with the same force to the second intimidation offence. Given the public nature of the postings concerning the security fencing, coupled with photos of the police who would be expected to keep the G20 perimeter secure and the derogatory comments associated with those pictures of police officers, posted on the Internet, Mr. Sonne could have intended to provoke a state of fear in the general public. These posts were capable of suggesting an intention to scale or take down the security fencing, which could possibly result in harm to the police who would be responsible for security should this occur. As these measures were set up for the G20, this evidence, including the fact Mr. Sonne was watching the police, could instill fear in the general public.

[ 7 ] For these reasons, in my view, the first ITO as excised and amplified, provided sufficient credible and reliable evidence that could have permitted the issuing justice to find reasonable and probable grounds to believe that Mr. Sonne was culpable of the second named intimidation offence set out in Appendix B to the first warrant.

Search of the Computers

[ 8 ] The other issue I left open in my Garofoli ruling was the inclusion of computers as an item to be searched in the second warrant to search 58 Elderwood Drive, dated June 23, 2010. Mr. Di Luca submitted that all the ITO set out is a bald conclusory statement that “computers … are items that have been used in Byron SONNE’s operation of making chemicals, posting pictures and blogs …” He submitted that no grounds are advanced to indicate that records relating to the production of explosives would be found on the computers and that there was nothing found in the first day of the search to connect the computers to the chemicals found in the basement and nothing was specified in the ITO to that effect. Mr. Byrne responded that the basis for this assertion is apparent from the face of the ITO.

[ 9 ] I have considered these submissions in the context of the second ITO as excised and amplified. On this basis, the ITO provided evidence that Sergeant Roger Gibson of the Emergency Task Force located, in the workshop in the basement of Mr. Sonne’s home, chemicals which could be used in the making of explosive substances. Although he did not advise D.C. French or anyone else that any assembled explosive substances or devices were found, and in particular he did not indicate that HMTD was located, he did advise D.C. French that the necessary ingredients for HMTD were present. The ITO includes the fact that Mr. Sonne had laboratory equipment in his basement and “related books and documents”. There is also extrinsic evidence as to his extensive use of computers through the Twitter and Flickr accounts. By this time the police knew that there were computers in Mr. Sonne’s home.

[ 10 ] Mr. Byrne submitted that it would be unreasonable to say that Mr. Sonne would not have resorted to the Internet as a resource given that he had books and documents related to chemicals and given his known use of the computer. I agree. I have already found that D.C. French’s description of Mr. Sonne’s “operation of making chemicals” was reasonable given the evidence found and that given the fact chemical books and various documents were found along with laboratory equipment, that that was some evidence that these items might be used in connection with making the various chemicals listed in paragraph 5 of the second ITO and as such relevant evidence in support of the charge of possession of an explosive substance.

[ 11 ] In considering all of the information available in both the first and second ITO, I have concluded that an authorization could have issued for a search for “records relating to the production of explosives …which can be stored electronically (computers, phones)…” as set out in Appendix A of the second search warrant. In my view, the second ITO as excised and amplified provided sufficient credible and reliable evidence that could have permitted the issuing justice to find reasonable and probable grounds to believe that there would be records on the computers in Mr. Sonne’s home related to his “operation of making chemicals” which would afford evidence relevant to the charge of possession of an explosive substance.

SPIES J.

Date: January 24, 2012

[1] R. v. Sonne , 2011 ONSC 6734