COURT FILE NO.: 11-50000-774
DATE: 20120717
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
FRANK OPOKU-MENSAH
Applicant
Tanya Kranjc, for the Respondent/Crown
Richard Posner, for the Applicant
HEARD: July 9, 10, 11, 12, 13 and 16 2012
Kelly j.
Ruling #2:
Was the search of the motor vehicle warrantless?
[1] On March 14, 2011 Mr. Opoku-Mensah was charged with 16 offences relating to two firearms and ammunition. The firearms and ammunition were seized following the execution of a search warrant on a vehicle in the parking garage of an apartment complex in Toronto.
[2] The defendant has brought an application alleging that his section 8 rights pursuant to the Charter have been violated. He seeks the exclusion of the two firearms and ammunition seized following the execution of the warrant. He raises a number of issues on this application but both Counsel agree that the first issue that must be addressed is this: was the search a warrantless one?
[3] Based upon the evidence and the submissions made, I have concluded that the search was warrantless. What follows are my reasons.
The Facts
[4] The warrant issued permitted a search on a “black Acura Motor Vehicle Ontario Licence Plate BKFA 339 at 44 Willowridge Road in the City of Toronto”. Crown Counsel does not concede that the warrant was executed on a dark coloured Honda Accord and submits that the warrant was a valid one. I disagree.
[5] The basis for my conclusion is largely factual and the relevant facts of March 14, 2011 may be summarized as follows:
Date/Time
Occurrence
Undisclosed but within the prior six months.
A Confidential Informant (the “CI”) provided information to the police and in particular, Detective Constable Steven MacNeil about the Applicant and the possibility that the Applicant possesses a firearm.
3:00 p.m.
There was a briefing with members of the Guns and Gangs task force in an undisclosed parking lot. They were provided with information about a person of interest (the Applicant) and a vehicle of interest. D.C. MacNeil testified that he told the officers that they were looking for an “older model dark Honda or Acura” with a license plate of BKFA 339. He denies that he described the vehicle as a “Honda Accord”. The following six officers attended the briefing.
Det. Long testified that he was advised that they were looking for an “older model Honda Accord, dark in colour”. D.C. MacNeil did not mention that they were looking for a second vehicle (ie. an Acura).
D.C. Scott Ross testified that D.C. MacNeil told them that the vehicle of interest was a “dark Honda” with license plate BKFA 339. He testified that he was never given information about an Acura.
D.C. Antonio Frederick testified that he was at the briefing (although he believes that the briefing occurred in a meeting room). He testified that he was told that the vehicle of interest was an older model Honda Accord, dark colour. In cross examination he said that it was possible that D.C. MacNeil mentioned an Acura but he has recorded the make of the car as a Honda. Generally, he relies on the details of his notes.
D.C. Liam Wauchope testified that D.C. MacNeil advised the team that the vehicle of interest was a “dark Honda” with license plate BKFA 339. He could not recall receiving information about another type of vehicle.
D.C. Jason Reynolds received information at the briefing that the vehicle of interest was a “dark colour Honda Accord”.
D.C. Rasih Palah said that D.C. MacNeil described the vehicle of interest as an “older dark coloured Honda Accord”.
3:25 p.m.
Following the briefing, all officers attended at 44 Willowridge Road in an attempt to locate the Applicant and the vehicle of interest.
3:25 – 4:30 p.m.
D.C. MacNeil left the briefing and returned to the police station. He began to prepare a telewarrant for both the apartment relating to the Applicant and the vehicle. He began his data base checks and obtained the following information: that on December 21, 2010 the defendant was involved with police in a traffic stop. At the time he was driving a 2000 4 door black Acura with license plate BKFA 339.
4:30 p.m.
D.C. Ross testified that D.C. Wauchope contacted him and told him that he had located “the vehicle” with the license plate and that it was parked in spot #124. He did not identify either the make or colour of the vehicle. This was confirmed by D.C. Wauchope in his evidence.
4:37 p.m.
D.C. MacNeil testified that he received a telephone call from D.C. Wauchope that he had located a “four door Acura” with license plate BKFA 339 in spot #124. During this conversation, he confirmed that it was black in colour.
D.C. Wauchope stated that he was not 100% sure if he spoke to D.C. MacNeil directly or whether he used the radio to advise the team that he located the “vehicle” with license plate BKFA 339. He does not recall describing the vehicle in any detail (ie. providing the make and model or colour.)
7:11 p.m.
D.C. MacNeil received the signed telewarrants including one for “a Black Acura Motor Vehicle Ontario License plate of BKFA 339 at 44 Willowridge Road in the City of Toronto”.
Approximately 9:00 p.m.
The search warrant was executed on the vehicle.
[6] Five police officers observed the vehicle in the parking garage at 44 Willowridge Road on March 14, 2011. No photos were taken or produced of the vehicle by the police. They testified about their observations as follows:
D.C. Ross: Upon arrest, he observed the vehicle but did not observe a logo of any type. The vehicle was dark in colour and he could not recall if there were two doors or four doors on it. He then said something like: “To me it looked to be a Honda product but it was not a Civic based on the body shape”.
D.C. Wauchope: He observed the vehicle in the underground for two hours, fifteen minutes. He described the vehicle as a four door Sedan dark in colour. He does not recall observing anything specific to identify the vehicle as a Honda. However, his notebook describes the vehicle as a “Honda Civic”, four door.
D.C. Reynolds: He participated in the surveillance and search of the vehicle. He said that he “could see that it was a Honda” and recognized it immediately as a Honda. There was Honda “badging” on the vehicle (being the letter “H”) which he believes was on the rear of the Honda. He is familiar with the styling of a Honda Accord because it is a popular vehicle. The vehicle he observed and searched was a Honda Accord.
D.C. Palah: He testified that he observed and searched the vehicle and used a Honda key to gain entry to it. He says that the vehicle that he searched was “possibly” a Honda and “possibly” an Acura.
D.C. MacNeil: He testified that it is possible that the vehicle was a green Honda that was searched but he does not recall, with certainty, the type of vehicle because there was no logo on it.
[7] Certain items were seized from the vehicle in question:
a. A Honda car key (which was in the possession of the Applicant upon his detention and used by D.C. Palah to enter the vehicle);
b. A receipt from Avtar Auto Collision for repairs done to a 1998 Accord on February 8, 2011 noting the Applicant’s name;
c. A handwritten receipt for a 1998 Honda Accord rear bumper dated December 16, 2011 (this of course, would post date the search on March 14, 2011).
d. A handwritten receipt for a head light for an Acura dated January 10, 2011.
[8] Also filed as exhibits during this application were documents from the Ministry of Transportation. The first document indicates that the Applicant was the owner of a 1998 green Honda Accord. A second document from the Ministry of Transportation shows that a 2000 black Acura was sold to Mr. Suhaib Asrar Mohammad by Ms. Juliana Mensah (purportedly the mother of the Applicant) on January 17, 2011.
[9] Mr. Mohammad testified during this proceeding. He said that he did purchase the 2000 black Acura and that he negotiated such purchase with the Applicant. He had the vehicle in his possession as of January 17, 2011 and he did not loan it to the Applicant thereafter.
[10] Lastly, a friend of the defendant, Mr. Jason Owusu testified that he saw the Honda Accord in the parking lot of the apartment building at 44 Willowridge weeks before the search warrant was executed. He produced pictures of it and indicated that the only changes that he made to its appearance were the replacement of a front and rear bumper. He did not change or cause to be changed, three of the hubcaps that had an “H” logo for Honda on them or the Honda logo on the front grill.
Analysis
[11] Based upon the facts set out above, it is my view that the vehicle that was searched was a Honda Accord and not an Acura for the following reasons:
a. All 6 officers at the 3:00 p.m. briefing said that D.C. MacNeil told them that the vehicle of interest was a Honda so that is the vehicle they were looking for at the time. I accept that no officer who observed the vehicle in the lot before search warrant was executed suggested to others that it was anything but a Honda.
b. D.C. Wauchope conducted the initial surveillance and said that he observed a dark Honda in the lot. This was consistent with the vehicle he was told to look for during surveillance. He did not give particulars of any conversation with D.C. MacNeil wherein he described the vehicle as an Acura before the vehicle was searched.
c. D.C. Reynolds testified that he observed the vehicle and clearly identified it as a Honda Accord. In fact was surprised when he saw the warrant authorized a search of an Acura. He, too, did not think to clarify the make and model of the vehicle when conducting surveillance as he believed that he had located the vehicle of interest as described at the briefing.
d. D.C. Palah testified that the car was “possibly” a Honda that was searched which is consistent with the evidence of D.C. Reynolds.
e. The key used to enter the vehicle was a Honda key with an identifiable “H” on it.
f. There was official paperwork to show that the Applicant was in possession of a green older model Honda Accord and not an Acura as of the date of the search. The Acura was sold approximately three months before this search warrant was executed.
g. There are two other documents found in the vehicle which identify the vehicle as a Honda. One of them shows the owner as the Applicant.
[12] Crown Counsel submits that the search warrant identifies five factors that determine the item to be searched as follows:
i. A black Acura;
ii. Motor vehicle;
iii. License plate BKFA 339; and
iv. It is at 44 Willowbridge Road in the City of Toronto.
She submits that because the vehicle searched had three of these characteristics: that it is a “motor vehicle” bearing “license plate BKFA 339” at “44 Willowbridge Road”, there is no risk that the police would search the wrong vehicle and the description is satisfactory for purposes of the search. I disagree.
[13] A similar issue was considered by Lipson J. in R. v. Wisdom[^1] where a search warrant provided an address but not the specific apartment number. In that case, the Crown conceded that the search was invalid because it did not specifically authorize the police to search the particular apartment. The Court found the search was unreasonable. In conducting his analysis, Lipson J. considered the issue of the content of the warrant and said:
The learned authors[^2] of The Law of Search and Seizure (8th. ed.) point out at p. 87 that “the search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself … Vagueness in the description of premises invites, as a consequence, mistaken search of wrong places or premises or innocent premises and remedial consequences under the Canadian Charter of Rights and Freedoms”. The authors cite Re McAvoy (1971), 1970 1132 (NWT TC), 12 C.R.N.S. 56 (N.W.T. Terr. Ct) where Morrow J. stated at p. 65, “To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant … fails to accurately describe the premises to be searched … then it will be invalid.”
[14] The fact that the warrant was issued for a black Acura rather than a dark coloured Honda Accord is not simply a procedural defect. If what matters was solely the license plate as submitted by the officers and Crown Counsel in her submissions, then why bother referring to the make and model at all? Why not simply prepare a search warrant based on the license plate alone? In my view, the make and model of the vehicle is relevant because as D.C. Reynolds testified: “license plates are transient and can be moved to other vehicles”. There is every possibility that the police might search the wrong vehicle if the license plates were the sole identifier of the item to be searched.
[15] One of the purposes of setting out the particularity of the place to be searched is so that whoever conducts the search warrant and whoever is subject to the search can upon reading the warrant, know the location of the search.[^3] If the Opoku-Mensah’s had been shown the search warrant prior to its execution, they might wonder why the police were at their apartment looking to search a black Acura as they had sold such a vehicle three months earlier.
[16] Further, the significance of identifying the item to be searched was made by D.C. Reynolds in his testimony. Had he seen the warrant to search before executing it, he would not have done so because the vehicle they were about to search was a Honda Accord and not an Acura as identified in the warrant.
[17] This case may be distinguished from R. v. Charles, supra where the search warrant referred to the residence as “the basement flat at 491 Bourbonnais Street” rather than “491A Bourbonnais Street”. In that case, there were sufficient particulars such that the police were not going to search the incorrect premises. That is not the case here. As I have stated above, the license plates were easily transferrable between vehicles such that the wrong vehicle could have been searched.
Conclusion
[18] The vehicle searched was a dark green Honda bearing licence plate BKFA 339 and not a “black Acura” as specified in the search warrant. I conclude that the failure to search the vehicle specified in the search warrant is a substantive defect and not simply one of form. As such, the search was warrantless.
Kelly J.
Released: July 17, 2012
COURT FILE NO.: 11-50000-774
DATE: 20120717
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
FRANK OPOKU-MENSAH
Applicant
Ruling #2:
Was the search of the motor vehicle warrantless?
Kelly J.
Released: July 17, 2012
[^1]: (2012), ONCJ 54 [^2]: The authors are Mr. James A. Fontana and Mr. David Keeshan. Their publication was produced by LexisNexis Canada Inc. in December, 2010. [^3]: See: s. 487(1) of the Criminal Code and R. v. Charles 2010 QCCQ 9178, [2010] Q.J. No. 10824 at paras. 20 and 21