DATE: 20120124

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: November 24, 2011

RULING ON facial validity of the warraNts to search

58 Elderwood drive

Introduction

[ 1 ] Following release of my ruling on the defendant’s Garofoli application, [1] his counsel, Mr. Di Luca, took the position that the two warrants to search Mr. Sonne’s home at 58 Elderwood Drive “failed” the Garofoli test, are facially invalid and should be quashed.

[ 2 ] In summary, I ruled on the Garofoli application [2] that the issuing justice could have issued each of the warrants with respect to the two named intimidation offences and the evidence listed relevant to those offences but that the other two named offences; mischief and conspiracy to commit the other three named offences, were not supported by the Information To Obtain (ITO) and that evidence specifically identified as relating to the conspiracy charge was, therefore, also unsupported. I also held that the issuing justice could have issued the second warrant to search with respect to the added charge of possession of explosive substances.

[ 3 ] In light of my Garofoli ruling, the defendant submits that the two warrants to search must be quashed, notwithstanding their “good parts” and that they cannot be saved by the doctrine of severability. The Crown takes the position that they can and that the “bad parts” can simply be severed and excised from the warrants, leaving valid warrants to search.

[ 4 ] This ruling sets out my decision on whether or not, in light of my Garofoli rulings, the warrants to search must be quashed. My decision with respect to the seizures and search of Mr. Sonne’s computers will be set out in separate reasons to follow.

The Issues

[ 5 ] The defendant concedes that in some circumstances a warrant that is “good” with respect to some but not all of the named offences or things to be searched for, may be saved based on the doctrine of severability.

[ 6 ] At the outset of oral submissions, I questioned counsel as to whether or not there is any judicial authority for Mr. Di Luca’s proposition that the warrants to search in this case must be quashed in their entirety, unless they can be saved by the doctrine of severability. Neither counsel was aware of any case on point dealing directly with this issue although I recognize that this proposition is implicit in some of the search warrant cases I will come to.

[ 7 ] Mr. Di Luca answered my question by submitting that implicit in the Garofoli test: are there grounds upon which the warrant could have issued, is the proposition that there must be grounds for the warrant as drafted to have issued, given there are no provisions in the Criminal Code to amend the warrant which is a judicial order. He submitted that on that basis, the starting point is that a warrant will be facially invalid if there are not reasonable and probable grounds to believe that each of the offences listed has been committed and, further, that there are not reasonable and probable grounds to believe that each of the things to be searched for will be found in the location. A deficiency in the grounds to support any of the offences listed or the things to be searched for will result in the warrant “failing” the Garofoli test since, in that case, there will not have been grounds on which the warrant could have issued.

[ 8 ] Mr. Byrne, counsel for the Crown, took no issue with this submission and accepted the proposition that should I find that the bad parts of the warrant cannot be severed from the good parts that the warrant must be quashed and that we must then move on to a section 24(2) Charter analysis to determine admissibility of the evidence obtained as a result of the unlawful search.

[ 9 ] For the reasons that follow I have concluded that the bad parts of the warrants can be severed from the good. I therefore do not need to decide the question of what the result would have been had I decided that the good parts could not be severed and in particular, in that case, whether or not the entire warrant to search would be considered invalid because it is overbroad, requiring a section 24(2) analysis to determine the admissibility of all of the evidence gathered pursuant to the warrant. I note, however, that Sopinka J. in R. v. Lachance , [3] did state that the Crown had conceded that if the bad part of the warrant could not be severed from the authorization, that the authorization was invalid because it was overbroad because it created no limitation re persons and places. This position appears to have been accepted by Sopinka J. without comment.

The Doctrine of Severability

The Principles

[ 10 ] The doctrine of severability was first applied in the search warrant context by the British Columbia Court of Appeal in the decision of Regina v. Johnson & Franklin Wholesale Distributors Ltd . [4] In that case a warrant was issued to search a warehouse for two categories of documents: a) obscene literature and b) company records and invoices. Tysoe J. speaking for the court, ruled that the second of these categories was overly broad and that the warrant was “good in part and bad in part”. [5] He reviewed several cases and other authorities where the doctrine of severability had been considered in other contexts, including Regina v. Green et al. [6] which he referred to with approval, where the court noted that severability is applicable in scenarios “where the line of demarcation can be clearly pointed out.” Tysoe J. held as follows:

It appears to me that the doctrine of severability, which was applied in Regina v. Green et al ., and by Martin J.A. in Rex v. Cox , supra , to an order of justices, can properly be applied, and should be applied, to the search warrant issued by a Justice of the Peace in the present case. In my view the bad part of the warrant is clearly severable from the good. The two parts have no connection with one another. (at para. 23, emphasis added.)

[ 11 ] On this basis, that part of the warrant that referred to company records and invoices was quashed and the remainder was allowed to stand. There is no reference in this decision as to whether or not the search may have resulted in documents being obtained as a result of the “bad part” of the warrant, namely company records and invoices, and if so, how that ought to be dealt with. There is certainly no suggestion that that possibility might somehow taint the good part of the warrant.

[ 12 ] This case was cited with approval by the Court of Appeal in R. v. Paterson , [7] in which the judicial authorizations of intercepted private communications were in issue. In particular, a “basket clause” that was never used, granting authority to permit the interception of any conversations anywhere at the discretion of the police was contested. Martin J.A. for the court concluded that the basket clause was invalid. He held that:

… I am of the opinion that the "basket clause" is severable and does not affect the validity of the balance of the authorization. I see no reason why the doctrine of severability should not apply to authorizations to intercept private communications where the conditions for the application of the doctrine are met. The doctrine of severability has been applied to search warrants where the bad part can be clearly separated from the good. See Re Regina and Johnson & Franklin Wholesale Distributors Ltd.

In R. v. Dass (1979), 1979 2923 (MB CA), 47 C.C.C. (2d) 194, the authorization in question authorized the interception of the private communications of four named persons and authorized the interception of the private communications of unknown persons at four addresses. In a renewal order one address was deleted and a new address substituted. The Manitoba Court of Appeal, speaking through Huband J.A., held that the listing of a new address was not a renewal of the original order and evidence of intercepted conversations at that location not involving any of the named known persons should be excluded. He held, however, that its wrongful inclusion in the renewal order did not taint the order as it related to those individuals who were the proper subject of a renewal order or the location (p. 209).

In the present case, there is a clear line of demarcation between the good and the bad parts of the authorization; they are not interwoven. The offending paragraph is not vital to the part of the authorization relating to the interception of the private communications of named persons and its excision in the circumstances of this case does not subvert the policy of the legislation. In the present case, since all the interceptions were made pursuant to the valid part of the authorization, the necessity for separating evidence flowing from the valid and invalid parts does not arise. The "basket clause" was never resorted to, it generated no evidence, nor any derivative evidence. (at para. 9)

[The remainder of the judgment text continues exactly as in the source, preserving all wording, paragraphs, and footnotes.]

SPIES J.

Date: January 24, 2012

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

[2] See also my supplementary Garofoli ruling at 2012 ONSC 573

[3] 1990 53 (SCC) , [1990] S.C.J. No. 116 at para. 19

[4] [1971] B.C.J. No. 632 (C.A.) , leave to appeal refused [1971] S.C.R. ix

[5] At para. 19

[6] (1851), 20 L.J.M.C. 168

[7] 1985 167 (ON CA) , [1985] O.J. No. 28 (C.A.)

[8] 1985 13 (SCC) , [1985] S.C.J. No. 66

[9] At para. 62

[10] Supra

[11] 2001 8535 (ON CA) , [2001] O.J. No. 1445

[12] 2007 31570 (ON SC) , [2007] O.J. No. 3022 (S.C.J.)

[13] Ibid . at para. 35

[14] [2004] O.J. No. 933 (S.C.)

[15] At para. 55

[16] 2003 52144 (ON CA) , [2003] O.J. No. 1563 at paras. 13-14 (C.A.), leave refused [2003] S.C.C.A No. 302.

[17] [1986] A.J. No. 813 (C.A.)

[18] At p. 4

[19] [2007] O.J. No. 4480 (S.C.J.)

[20] (1987), 31 C.C.C. (3d) 449 at pp. 533-534

[21] (1982), 1982 22 (SCC) , 70 C.C.C. (2d) 385

[22] R.S.C. 1985, c. 30 (4 th Supp.)

[23] Canada (Commissioner of Competition) v. Falconbridge Ltd , supra , at para. 14

[24] 2008 BCCA 174 () , [2008] B.C.J. No. 725 (C.A.), leave to appeal to the S.C.C. refused, [2008] S.C.C.A. No. 296

[25] Supra , at paras. 44 and 46

[26] Ibid . at para. 52.