ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50000-774
DATE: 20121214

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, 16, 17, 18, 19, 20, 2012, September 5, 2012, October 25, 2012, November 29, 2012 and December 5, 2012

Kelly j.

Ruling # 5:
Should the evidence be excluded pursuant to s. 24(2) of the Charter ?

[ 1 ] On March 14, 2011, the Applicant, Mr. Opoku-Mensah, was charged with 16 offences relating to two firearms and ammunition. In reasons dated July 17 and December 5, 2012, I ruled that the Applicant’s right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter had been violated for the following reasons: [1]

a. The search was a warrantless one. The warrant authorized the search of a black Acura. I found that the vehicle searched was a green Honda Accord.

b. The Information to Obtain was not sufficient. Firstly, parts of the ITO were significantly misleading. Secondly, the content of the ITO did not meet two of the Debot [2] criteria: the Confidential Informant was not credible and the information provided was not corroborated.

[ 2 ] For the reasons set out below, the evidence obtained during the search will be excluded pursuant to s. 24(2) of the Charter .

Analysis

[ 3 ] In R. v. Grant [3] , the Supreme Court of Canada held that on an application to exclude evidence under s. 24(2) of the Charter , 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; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits”.

(1) Seriousness of the Charter -Infringing Conduct

[ 4 ] The first line of inquiry in Grant , supra considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. As stated in R. v. Harrison [4] : “Did it involve misconduct from which the court should be concerned to dissociate itself?” If so, such disassociation is achieved by excluding the “evidentiary fruits of the state misconduct”. [5]

[ 5 ] I find that there was a serious departure from the rule of law that led to a violation of the Applicant’s s. 8 Charter rights. Although each of the violations, on its own, may not have led to the exclusion of evidence, when considered as a whole, the infringing conduct is on the more serious end of the continuum. [6]

a. The Misleading Information to Obtain

[ 6 ] The grounds set out in the ITO were based mainly on information provided by a CI and the police. The ITO was edited to protect the identity of the informer. Judicial summaries of the redacted information were provided to the Applicant.

[ 7 ] A review of the ITO and the summaries would lead the reader to believe that there were reasonable and probable grounds to believe that firearm(s) are likely to be found in the apartment or in a “black Acura” with license plate BKFA 339 that was located in the underground parking lot where the Applicant lived. This is misleading for the following reasons as amplified during the voir dire :

a. I accept that the CI told D.C. MacNeil that the Applicant was driving an “older model Acura or Honda with an Ontario license plate of BKFA 339”.

b. A police check conducted by D.C. MacNeil showed that the Applicant had been stopped driving a black Acura with license plates BKFA 339 in December 2010. However, what police checks did not disclose is that the Acura had been sold on month later and two months prior to the execution of the warrant. Ministry of Transportation documentation shows that the Acura was registered to Mr. Suhaib Mohammad as the owner on January 17, 2011. Mr. Mohammad confirmed that he registered the change of ownership on January 17, 2011 with the Ministry of Transportation.

c. D.C. MacNeil conceded that once he received information that the Applicant had been stopped driving an Acura with license plates BKFA 339 in December 2010, he believed that the “target vehicle” was an Acura (as opposed to a Honda). It was D.C. MacNeil’s view that the police check identifying the Applicant driving an Acura provided “significant corroboration” of the CI’s information which was an important consideration for the issuing justice. He made this decision despite a further police check that identified license plate BKFA 339 as unattached.

d. D.C. MacNeil conceded that if the CI told him that the firearm(s) were likely in a Honda Accord and the police checks identified an Acura, he would not have corroboration of the CI information regarding the make of the vehicle. D.C. MacNeil further conceded that he did not trust the CI regarding the description of the “make” of the vehicle. No further police checks were conducted.

e. The information regarding the sale of the Acura was documented with the Ministry of Transportation as of January 17, 2011. Had D.C. MacNeil known that the Acura had been sold on January 17, 2011 and would not have suggested to the issuing justice, in his conclusion, that there was credible and compelling evidence to suggest that the firearm(s) would be found in an Acura.

f. There was no Acura in the underground parking lot in spot #124 as represented in the ITO. This statement was attributed to D.C. Wauchope who testified that he never provided such information to D.C. MacNeil. As stated in my ruling of December 5, 2012, D.C. Wauchope located a Honda in the parking lot at 44 Willowridge Road. It was a Honda that was searched.

g. Again, had D.C. MacNeil correctly identified the vehicle under surveillance (a Honda) in the ITO he would not have suggested to the issuing justice that there was credible and compelling evidence to suggest that the firearm(s) would be found in an Acura.

[ 8 ] In my ruling of December 5, 2012 I have described D.C. MacNeil’s errors in the ITO as “misleading”, “reckless”, “negligent” and “improper”. I find that such errors are at the serious end of the continuum. Obtaining a search warrant is an ex parte process. It relies on the party seeking the warrant to provide full, fair and frank disclosure to the issuing justice of material information that would be relevant as to whether a warrant should issue. Reckless, misleading and improper assertions in an ITO strike at the very heart of the issuing process and represent an abuse of the ex parte nature of the process. This case is a striking example.

[ 9 ] But for the misrepresentations, a warrant could not have issued in this case as it did. As excised and amplified, such information could not possibly be described as compelling information to obtain a warrant to search an Acura.

b. Sufficiency of the ITO

[ 10 ] The test for sufficiency of an ITO that is based on information primarily from a CI is dependent upon whether the information is compelling, whether the informant is credible and whether the information has been confirmed by independent police investigation as set out in R. v. Debot , supra . Weaknesses in one area may be compensated by strengths in the other two. I found that the information was compelling but that the CI was not credible (because he/she was untested) and because the information was not corroborated.

[ 11 ] The officers testified that it was next to impossible to corroborate the criminality of the information provided by the CI: that the Applicant was known to traffick crack cocaine in the 44 Willowridge Road area. They suggested that their identities as undercover police officers would likely be revealed. I rejected such a submission.

[ 12 ] Various police officers were able to conduct surveillance in both the underground parking lot where the vehicle was located and around the apartment complex where the Applicant resided. They were able to observe the Applicant leave and re-enter both the apartment complex and the vehicle of interest. They also observed the Applicant in the yard of the complex.

[ 13 ] It is my view that because the CI was not credible, greater effort should have been made to corroborate the criminality of the information provided by the CI. There was ample opportunity to do so before the warrant was obtained. While I appreciate that there may be, in some instances, times when corroboration is not possible, this was not one of them. The officers had conducted surveillance for approximately five hours and continued to do so up until the warrants were executed. In these circumstances, I find their failure to corroborate the information provided by the untested CI to be on the more serious end of the continuum as well.

c. The Warrant Authorized the Search of an Acura

[ 14 ] I found that the vehicle searched was a green Honda Accord and not a black Acura as described in the warrant. There was no authorization to search a Honda Accord. As such, I found that the Applicant’s s. 8 Charter rights were violated because a warrantless search was conducted.

[ 15 ] Crown Counsel submits that both officers Palah and Reynolds, who conducted the search, were acting in good faith when they did so. They believed that they were conducting the search pursuant to a valid warrant.

[ 16 ] Neither Officers Palah nor Reynolds confirmed what type of vehicle they were authorized to search prior to the warrant being executed. That might be understandable because at the briefing hours earlier, both officers believed that they were looking for a Honda Accord with license plates BKFA 339. That is what they found in spot #124 and that is what they observed for hours in the underground parking lot while conducting surveillance. Therefore, when they heard that the warrant was granted to search the vehicle with license plates BKFA 339, they had good reason to believe that they were authorized to search the Honda Accord. Although it would have been more prudent to do so, they cannot be criticized for their failure to identify the vehicle they were permitted to search before they did. The same cannot be said for D.C. MacNeil.

[ 17 ] There was an onus on D.C. MacNeil to advise that the warrant authorized the search of an Acura as opposed to a Honda. The CI told D.C. MacNeil that the Applicant was driving a Honda or an Acura. It was D.C. MacNeil’s evidence that he told the officers that they were looking for a Honda or an Acura at the briefing. Clearly, both the CI and D.C. MacNeil believed that there was a difference between the two types of vehicles, otherwise why would they mention both? Both distinguished between the two models because both clearly thought there was a difference.

[ 18 ] D.C. MacNeil should have advised that the officers that they were authorized to search an Acura. If such information had been communicated, one of the officers who conducted the search would have done so in any event, the other would not.

[ 19 ] D.C. Palah testified that it was irrelevant that the warrant was for an Acura but a Honda Accord was searched. He testified that it was the license plate number that was of utmost importance. This, he says, is the information that matters when conducting a search of a vehicle. He testified that he would have searched the vehicle even if it was a “red Porsche Cayenne” but had license plate BKFA 339. D.C. Palah testified that “Hondas and Acuras are from the same family” and that the vehicle searched could have been an Acura. The evidence of D.C. Palah is troubling and must be juxtaposed against that of D.C. Reynolds.

[ 20 ] When D.C. Reynolds was confronted in cross-examination that the warrant authorized the search of a black Acura and not a Honda Accord his reaction appeared to be one of shock. This was clearly the first time he had heard that the warrant authorized the search of a black Acura. He would not have conducted a search in these circumstances.

[ 21 ] D.C. Reynolds testified that he recognized the vehicle under surveillance immediately. It was a Honda Accord. He is familiar with Honda Accords because they are popular. He could see the “badging”: “H” is the badging for a Honda and he believes there was an “H” on the rear trunk of the vehicle.

[ 22 ] D.C. Reynolds testified that license plates are transient and can be moved to other vehicles. Accordingly, the make and model of the item to be searched is relevant. Had he known the warrant had been granted for the search of an Acura, he would not have searched the vehicle because he knew that he was searching a Honda Accord. His understanding is the correct one.

[ 23 ] I am also concerned that some of the other officers who testified might agree that the make and model of the vehicle searched is not an issue. When asked about the identity of the vehicle searched, Officers MacNeil and Frederick gave the following evidence:

a. D.C. MacNeil: He does not know what kind of vehicle was searched. It is possible that it was a green Honda. He knows that it was not a black Acura that was searched but that a Honda and Acura are basically the same model of vehicle made by the same manufacturer.

b. D.C. Frederick: the only difference between a Honda and an Acura is the “monnicker”. He, too, believes the license plate of the vehicle to be searched is of utmost importance because “that cannot change”.

[ 24 ] It is my view that a number of officers downplayed the identity of the vehicle searched. They were aware that the warrant authorized the search of an Acura and a Honda Accord was searched. Essentially, they opined that there is little difference between a Honda and an Acura because they are both manufactured by the same company: one can be easily mistaken for the other. I do not agree. I believe that officers, who are trained to observe and work on the streets daily, could easily identify the difference between a Honda and an Acura.

[ 25 ] Based on the evidence of the officers in this voir dire , I am concerned that there is a systemic failure. The officers do not seem to regard the identity of the place to be searched as one of importance. That is not the state of the law.

[ 26 ] It was made clear in my prior ruling that the identity of the location of the search is critical to avoid the search of wrong locations. The requirement to specify the location to be searched avoids abuse and warrants that fail to do so will be deemed invalid. [7]

[ 27 ] As I have also said previously, 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 is solely the license plate then why bother referring to the make and/or model of the vehicle at all? Why not simply prepare a search warrant referring to the license plate alone? 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”. This is particularly relevant in this case because the police checks identified license plate BKFA 339 as being “unattached”.

[ 28 ] One of the purposes of setting out the particularity of the place to be searched is that so whoever conducts the search and whoever is subject to the search can, upon reading the warrant, know the location of the search. [8] For example, had the Opoku-Mensah family reviewed the warrant prior to its execution, they might have wondered why the police where at their apartment looking to search a black Acura because they had sold such a vehicle two months earlier. I find the police misconduct in searching the wrong vehicle to be on the more serious end of the continuum, particularly in light of their evidence regarding the necessity of searching the place identified in the warrant.

Conclusion Re: Seriousness of the Breach

[ 29 ] The officers who conducted the search did so believing they were acting under lawful authority and as such, they cannot be said to have willfully or even negligently breached the Charter . As such the physical search and seizure cannot be characterized as particularly egregious in that regard. [9] However, that is not the end of the issue.

[ 30 ] The warrant issuing process is not divisible from the warrant execution process for the purpose of assessing the seriousness of the state infringing conduct. If that were so, as long as the police use a “straw man” to carry out the execution of a warrant, there could never be a claim of bad faith. The issuance and execution of the warrant are interrelated for the purposes of characterizing the s.8 Charter violation.

[ 31 ] The officers in this case sought a warrant from an independent judicial officer. The officers were clearly aware of the need to obtain a warrant and they did so. However, I have found that there was false and misleading information put before the issuing justice. Like in R. v. Morelli [10] , the manner in which the warrant was obtained through the ITO resulted in an egregious s. 8 Charter violation. The officers did not corroborate the information of an untested CI. They executed the warrant on the wrong vehicle and tried to lead this Court to believe it did not matter.

[ 32 ] In my view, the conduct described above is so significant that it lies on the more serious end of the continuum. The cumulative effect of these errors is symptomatic of the lack of care demonstrated by the police conduct which is unacceptable.

[ 33 ] Fish J. in Morelli , supra addresses these types of concerns at para. 102: “The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct”. In light of all errors leading up to the search and the search itself, I do find there is a need for the Court to disassociate itself from the state conduct that resulted in the Charter infringement. Such a finding favours exclusion of the evidence.

(2) Impact on the Charter -Protected Interests of Mr. Opoku-Mensah

[ 34 ] The second line of inquiry involves a consideration of the extent to which the breach actually undermined the interests protected by the right infringed.

[ 35 ] A vehicle was searched in this case as well as the apartment. There was nothing of evidentiary value found in the apartment. Counsel for the Applicant submits that the two are intertwined because the vehicle was parked in the underground parking lot of the Applicant’s complex. As such, there is a greater expectation of privacy. I do not agree. There is a reduced expectation of privacy in a vehicle such as a car.

[ 36 ] The vehicle was parked in the public area of the apartment complex. It was accessible not only to those whose apartments are located there but to other members of the public. I do not find that the location of where the vehicle was parked increases the Applicant’s expectation of privacy. Accordingly, I find that there is a reduced expectation of privacy in the vehicle. Such a finding favours inclusion of the evidence.

(3) Society’s Interest on Adjudication on the Merits

[ 37 ] In the third line of inquiry as set out in R. v. Grant , supra, the court is to consider factors such as the reliability of the evidence and its importance to the Crown’s case.

[ 38 ] The evidence of the firearms and ammunition obtained as a consequence of the Charter breaches is highly reliable. The firearms and ammunition are critical evidence that is conclusive of guilt on the offences charged. Both firearms were loaded. One was restricted, the other was prohibited. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial.

[ 39 ] While the offences relating to firearms are serious, this cannot take on disproportionate significance in the circumstances of this trial. It is obvious that society has an interest in ensuring that “those who transgress the law are brought to trial and dealt with according to the law”. [11] However, the public also has an interest in a justice system that is beyond reproach, particularly when the penal stakes for the accused are high.

[ 40 ] In considering this third line of inquiry the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

(4) Balancing the Factors

[ 41 ] In balancing the factors I find that the seriousness of the violations favour exclusion. The impact on the Charter protected interests and society’s interest on adjudication on the merits favour inclusion. However, this part of the analysis is not similar to a mathematical equation that suggests because the result is 2 to 1 for inclusion, the evidence is admissible. [12]

[ 42 ] The good faith of the officers in resorting to the warrant process was undermined by the misleading and careless nature of the drafting of the ITO, the failure to corroborate the information provided by the CI and the fact that the officers searched a vehicle not authorized by the warrant. There was “sufficient inattention to constitutional standards to tip in favour of exclusion”. [13]

[ 43 ] Had there been one mistake, even two, I might not have placed the police conduct on the more serious end of the continuum referred to by Doherty J.A. in R. v. Blake , supra . It is the compilation of errors in this case that lead me to the conclusion that the evidence must be excluded. I also wish to make it clear, that my decision here is not meant to act as a “punishment” for Charter infringing conduct. Punishing the police at the risk of the repute of the administration of justice would not be consistent with the appropriate balancing that needs to be undertaken under s. 24(2) of the Charter .

[ 44 ] Nonetheless, having regard to all of the circumstances in this case, I have concluded that the admission of the evidence would bring the administration of justice into disrepute. In this case, there is a need to dissociate the justice system from the flagrant breach of the Applicant’s Charter rights.

Kelly J.

Released: December 14, 2012

COURT FILE NO.: 11-50000-774
DATE: 20121214

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – FRANK OPOKU-MENSAH Applicant

Ruling # 4: Should the evidence be excluded pursuant to s. 24(2) of the Charter ? Kelly J.

Released: December 14, 2012

[1] My reasons dated July 17, 2012 and December 17, 2012 should be read as they give greater detail regarding my reasons for finding that the Applicant’s s. 8 Charter rights have been breached. They are found at 2012 ONSC 7106 and ONSC 6905.

[2] R. v. Debot , 1989 , [1989] 2 SCR 1140

[3] 2009 SCC 32 , [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1 at para. 71

[4] 2009 SCC 34 , [2009] 2 S.C.R. 494 at para. 22

[5] See: R. v. Blake 2010 ONCA 1 at para. 23

[6] See: R. v. Rocha 2012 ONCA at para. 27

[7] See R. v. Wisdom (2012), ONCJ 54

[8] 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

[9] See: R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 at para. 99

[10] Ibid at para. 100

[11] See: R. v. Askov , 1990 , [1990] 2 S.C.R. 1199 at pp. 1219-1220

[12] See R. v. Harrison , supra at para.36

[13] R. v. Rocha 2012 ONCA 707