ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 5603

DATE: 20130215

BETWEEN:

Her Majesty The Queen

– and –

Kenneth Gobin

Defendant

Kevin Stewart, for the Crown

Harpreet Saini, for the Defendant

HEARD: January 15, 2013

ruling

EDWARDS J.:

Overview

[1] The accused seeks an order excluding evidence obtained as a result of an alleged improper search and seizure.

[2] A warrant to search 71 Mount Bathum Road in the City of Vaughan was issued on the basis of an Information and affidavit (the “ITO”), sworn by the investigating police officer. The location where the warrant to search was issued was the residence where the accused lived. The items to be searched for included a black handgun, a black New York Yankees baseball cap, blue shorts, and a blue golf shirt.

[3] The background to the investigation involved a robbery at a location known as the Blue Eye Spa, located at 311 Bowes Road, Vaughan, Unit B6. A second ITO related to an investigation of an armed robbery at a jewellery store, which occurred on May 19, 2011. The jewellery store is located at the Pacific Mall in the Town of Markham. I will refer to each of these investigations as the Blue Eye Spa Investigation and the Jewellery Store Investigation. With respect to the Jewellery Store Investigation, the Crown has indicated that it is not proceeding to trial, with respect to the jewellery store robbery.

Position of the Accused

[4] Counsel for the accused takes the position that certain paragraphs of the ITO were completely false, while other paragraphs of the ITO were not relevant as the information disclosed is propensity evidence and, as such, not admissible.

[5] Part of the focus of the ITO related to the suggestion that the accused had been involved in an earlier unrelated investigation in which the accused had committed armed robberies, including the Blue Eye Spa. At paragraphs 27 and 28 of the ITO, the investigating police officer stated:

Kenneth Gobin was charged by York Regional Police with seven massage parlour robberies between June 2007 and September 2008 that occurred in York Region and Toronto. In each of the incidents, Gobin was armed with a firearm.

One incident which occurred on the 27th of June 2007 at the Maples Spa, located at 4801 Keele Street, Toronto has a very similar MO to that of the incident at “Blue Eye Spa” at 311 Bowes Road, Vaughan.

[6] The investigating officer and the ITO goes on at paragraphs 42 and 43 to state:

Gobin committed seven armed robberies of massage parlours between June 2007 and September 2008 in York Region and Toronto. The MO in one robbery in particular is identical to that of the robbery committed on the 16th of June 2011 at the “Blue Eye Spa”.

It is clear that Gobin is starting his criminal ways again after serving time for the robberies he was convicted of. [Emphasis added]

[7] The justice reviewing the ITO would clearly have been of the impression that the accused had been convicted of a robbery at the identical location, using an identical MO, between June 2007 and September 2008. It is conceded by the Crown, the 2007 to 2008 charges involving the accused did not result in a conviction. The Crown noted that those charges “did not result in acquittals” but rather the charges were stayed. Regardless of how one views the outcome of the charges in 2007 to 2008, the statements made by the investigating police officer in the ITO were inaccurate and misleading. The question that this court has to decide is whether or not the fact that this misleading information was contained in the ITO is sufficient to exclude the evidence obtained as a result of the execution of the search warrant.

[8] In addition to the misleading information contained in the ITO, counsel for the accused takes the position that the information concerning the identity of the accused as reflected in various eye witness accounts was inaccurate. Specifically, various eye witnesses reflected in the ITO refer to the accused skin colour as black. As counsel for the accused noted in describing the accused,” he is brown”.

[9] Counsel for the accused also takes the position that with respect to information contained at paragraphs 18 through 21; paragraph 26; and paragraphs 30 to 33 such information refers to either bad character evidence and/or propensity evidence.

Position of the Crown

[10] The Crown takes the position that the ITO need only provide reasonable grounds to believe that the evidence sought to be obtained pursuant to the search warrant, relating to the alleged offences, would be found in the search. The Crown further submits that in reviewing the issuance of a search warrant, the reviewing judge must not substitute his or her own view for that of the initial authorizing justice. The Crown submits that if this court concludes that the authorizing justice could have granted the warrant then this court should not interfere. It is submitted that the test for this court to apply is whether or not there was any basis before the issuing justice for the issuance for the authorization. See R. v. Garofoli 1990 52 (SCC), [1990] 2 S.C.R. 1421.

[11] The Crown takes the position that this court must review the warrant focusing on the totality of the information provided to the issuing justice as to whether or not the warrant that issued could be supported. In essence, it is submitted that this court should not focus on certain facts reflected in the ITO in isolation from overall context. See R. v. Saunders, 2003 NLCA 63, affirmed 2004 SCC 70.

[12] The Crown submits that there were legitimate reasons for including the portions of the ITO that the accused takes issue with, specifically: (a) race; (b) reference to a tattoo; and (c) the accused’s criminal record and incidents not leading to charges or convictions.

[13] The Crown, without conceding that certain parts of the ITO should be excised, nonetheless argues that, even if those offending portions of the ITO were omitted, the remaining information in the ITO supported the issuance of a search warrant, specifically by reference to: (a) a blue Nissan Maxima caught on video at the massage parlour robbery; (b) the fact that the accused was charged with previous offences at the same address as the massage parlour (albeit not convicted); (c) witnesses to both robberies stated that the suspect had a gun; (d) the description of the suspect by witnesses was supplemented by video surveillance of the suspect in both robberies; (e) in both robberies the description of the suspect, while not identical, were similar (black, brown, Indian, South Asian).This, the Crown argues, was made especially so when compared to the observations of the accused made by police officers while he was under surveillance; and (f) various witnesses whose information is contained in the ITO were able to describe clothing worn by the suspect in both robberies which included the fact that the suspect wore a black baseball cap.

[14] Counsel for the Crown argues that when the items listed in (a) through (f) in paragraph [13] above is compared to the property seized during the execution of both warrants at the accused’s home, there are remarkable similarities, specifically: (i) a blue 2003 Nissan Maxima licence plate BLSM691; (ii) a black New York Yankees baseball cap with a gold sticker on its brim; (iii) a black short-sleeved polo/golf shirt; (iv) a pellet gun; and (v) a black hooded sweat shirt with a Nike logo.

General Principles and The Law

[15] It is hard to argue with the proposition that affidavits which are filed in support of an ITO must provide full and frank disclosure. The affidavit should never attempt to trick or mislead the reader. The affidavit must set forth the facts truthfully, fully, and plainly. On the facts before this court, it cannot be said that the ITO provided truthful and full disclosure to the reviewing justice. Specifically, the reviewing justice would have been left with the impression that the accused had committed seven armed robberies of massage parlours between June 2007 and September 2008 that had resulted in the accused “serving time for the robberies he was convicted of”. While the accused may have been charged with those armed robberies, those charges were stayed. As such, paragraphs 42 and 43 of the ITO were clearly misleading. The fact that those paragraphs were misleading and should now effectively be excised from the ITO however, does not result in the remedy now sought by the accused. Rather the questions that this court must ask itself is whether there remains any basis for the decision of the authorizing justice and whether there was some additional evidence reflected in the ITO that might reasonably be believed on the basis of which the ITO could have been issued.

[16] As the Supreme Court of Canada in R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992, noted:

The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process.

While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a [page 1019] reviewing judge, 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. [Emphasis added.] (R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 553)

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.

[17] While I have noted that the reference in the ITO to the fact that the accused had been convicted of armed robberies in 2007-2008 was misleading and false I am not satisfied on the record before me that these errors were fraudulent. Even if I had come to the conclusion that the errors were fraudulent, as noted above, such errors do not automatically invalidate the warrant. I am of the view, however, that the misleading paragraphs relating to the accused involvement in earlier armed robberies resulting in a conviction and the fact that he served time should be excised from the ITO. Nonetheless, I am satisfied that there is sufficient evidence remaining in the ITO after disregarding the allegations found to be false that would allow this court to allow the search warrant to stand. I am satisfied that the validity of the warrant and the ITO used to obtain it is supported by links between the suspect descriptions provided by various sources to the items that were seized at the accused’s home. While there may have been differences of opinion amongst the various witnesses as to the suspect’s race, specifically whether he was black, brown, Indian, or South Asian, the fact still remains that the suspect was not white. Furthermore, even removing the offending portions of the ITO, the remaining facts support the issuance of a search warrant specifically by reference to the information contained at paragraph [13] and subparagraphs (a) through (f) thereof.

Section 24(2) Analysis

[18] If this court is in error with respect of its analysis of the ITO, the Crown submits that, nonetheless, if there was a breach of the accused’s Charter rights that on a section 24(2) analysis, the evidence should nonetheless be admitted. The Crown submits that any breach of the accused’s rights in the drafting and issuance of the warrant was minor in nature and in any case not made in bad faith. The Crown also argues that the impact on the accused’s Charter protected interests was minimal, given that most of the information set forth in paragraph [13] above existed independently of the police conduct. Finally the Crown argues that society has a heightened interest in adjudicating this case on its merits, specifically given that the allegations relate to two armed robberies where a gun was seen during each robbery and a gun was seized from the accused’s residence.

[19] Counsel for the accused argues that, on a section 24(2) analysis, there was a serious breach of conduct by the investigating police officer in providing misleading information in the ITO, specifically by reference to the suggestion that the accused had been convicted and served time with respect to the armed robberies in 2007. It is submitted that this breach was not inadvertent and that given that the affiant of the ITO was not in any rush to prepare the ITO, this court should come to the conclusion that the breach was deliberate. As to the impact of the accused’s Charter rights, it is submitted that the fact that the search took place at the accused’s residence, there was a significant invasion of the accused’s rights. As to the question of the adjudication of this matter on its merits, counsel for the accused acknowledges that this aspect of the Grant analysis leans in favour of the prosecution as the evidence is real evidence. Nonetheless, while acknowledging that the evidence is reliable, it is submitted on behalf of the accused that it is not determinative (i.e., the evidence is not distinctive).

[20] I have not come to the conclusion that the breach by the affiant in the ITO to the effect that the accused had been convicted of an armed robbery in 2007 was done intentionally. Clearly the information was misleading but I have nothing in the record before me to suggest that it was done with the intent to mislead and as such fraudulent. I do agree with counsel for the accused, however, that there was a significant breach of the accused’s Charter Rights in that the ITO was executed at his residence. On balance, in a situation where an accused is charged with armed robbery ; where a gun was seen at each of the robberies; and a gun was seized at the accused’s residence, however, the interest of society in having this matter adjudicated on its merits is such that this aspect of the Grant analysis favours inclusion of the evidence seized. Society has an interest in ensuring, particularly in this day in age where there is a marked increase in the use of handguns, that these cases are dealt with on their merits. Undoubtedly there will, one day, come before this court a situation where a handgun seized at an accused’s residence may be excluded because of false or misleading information contained in an ITO. This, however, is not that case given the additional information contained in the ITO, which when looked at in its entirety, provides this court with more than just some basis for the decision of the authorizing justice. The accused’s motion is therefore dismissed.

Justice M.L. Edwards

Released: February 15, 2013