COURT FILE NO.: CR12-10000480

DATE: 20130416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

NICOLE BROWNE

Applicant/Defendant

– and –

TROY ROBINSON

Applicant/Defendant

Counsel: Kerry Hughes, for the Crown Edward H. Royle, for the Applicant/ Defendant, Nicole Browne Joseph Di Luca and Erin Dann, for the Applicant/Defendant, Troy Robinson

HEARD: March 25, 26, and 27, 2013

J. Wilson J.

RULING

Section 8 Charter Application Challenging the Validity of the Search Warrant

[1] On May 26, 2011, a stash of ten guns, 4,746 rounds of live ammunition, and drugs, including over a kilo and a half of ecstasy pills, was fortuitously discovered by the employees of Yellow Self Storage. The storage facilities were being renovated and the discovery was made by the staff when they moved the contents of a rented storage locker leased to Nicole Browne. The discovery was reported to the police, and the police obtained a search warrant to search the locker. The validity of the search warrant granted by Justice Marshall on May 26, 2011 to search the storage locker is not challenged by the defence.

[2] Once the police located Ms. Browne’s new address, they sought a search warrant to search her apartment for evidence that would link her to the storage locker.

[3] Ms. Browne and Mr. Robinson challenge the validity of the search warrant granted by Justice Brownstone on June 1, 2011 at 9 p.m. to search apartment 610 at 135 Rose Avenue, leased to Nicole Browne.

[4] The grounds initially relied upon in the s. 8 Charter application initiated by Mr. Royle, on behalf of Ms. Browne, were that the information sworn to obtain the search warrant did not contain sufficient particulars on its face to justify the issuance of a warrant, and the affiant of the information to obtain did not provide full and frank disclosure to Justice Brownstone of all information relevant to the issuance of the warrant. Mr. Di Luca joined in Mr. Royle’s original application.

[5] After the completion of Mr. Royle’s argument, Mr. Di Luca, on behalf of Mr. Robinson, raised a new ground for the s. 8 Charter challenge. He noticed that the warrant granted by Justice Brownstone permitted a search to be conducted after 9 p.m. at night, without the request for a night search having been made and without the mandatory requirements of s. 488 of the Criminal Code having been complied with.

[6] The warrant was executed at 9:50 p.m., which falls within the definition of “night” in the Criminal Code. Nighttime begins at 9 p.m. Mr. Royle joined in Mr. Di Luca’s additional ground to challenge the validity of the search warrant.

[7] The Applicants argue that the police conducted an unlawful search of Ms. Browne’s apartment contrary to s. 8 of the Canadian Charter of Rights and Freedoms, and seek to exclude the evidence of the guns and drugs found at the apartment pursuant to s. 24(2) of the Charter.

[8] The Applicants are charged with numerous firearm and drug offences from the evidence discovered in the rented storage locker, as well as the evidence discovered during the execution of the warrant for apartment 610, 135 Rose Avenue.

The original s. 8 application

[9] Appendix A of the search warrant specified that the items to be searched for included a rental agreement between Ms. Browne and Yellow Self Storage, a locker key that would open the lock that was on unit #337, and documents pertaining to the ownership, sale or transfer of the firearms located in the locker.

[10] The list of items in Appendix A to be searched for in the apartment did not include further guns, ammunition, drugs or drug-related paraphernalia.

[11] The defence raises the following arguments with respect to the sufficiency and adequacy of the disclosure to Justice Brownstone:

• The police already had a copy of the rental agreement with Ms. Browne. That fact should have been disclosed in the materials before Justice Brownstone.
• The two accused were arrested shortly after the search warrant was signed and after the affiant left the judge’s home. When Mr. Robinson was arrested a key ring with many keys was located in his pants pocket. On this key ring was a Duralock key; Duralock was the manufacturer of the lock on the locker at Yellow Self Storage. The arresting officers recognized immediately that the Duralock key may have been a key to locker #337 at Yellow Self Storage. The lock had been cut off the locker and was in property storage with all of the other exhibits and was not accessible until morning. It is the position of the defence that the officers should have held off on executing the warrant and waited until the morning to try the lock that was stored in property storage to see if they already had a key.
• The defence challenges the bona fides of asking for documents with respect to the weapons located in the locker, as the allegation is that these are illegal weapons.

[12] The Crown acknowledges that the information to obtain prepared by DC Storey was sloppy, but submits that any oversights were due to inexperience and haste in preparing the materials. She makes the following arguments:

• With respect to the request to search for the contract, inadvertently two pages from the first search warrant request presented to Justice Marshall were omitted in the materials presented to Justice Brownstone. These pages contained references to the contract between Ms. Browne and Yellow Self Storage. Notwithstanding this inadvertent omission, the Crown argues that the existence of the leasing contract with Yellow Self Storage in the name of Ms. Browne, and the fact that the police had a copy of the contract, was still made clear in the material that was before Justice Brownstone.
• The key located on Mr. Robinson’s key ring may have been a key to open locker #337 linking Mr. Robinson to the locker, but there may have been other keys located in Ms. Browne’s apartment linking her to the possession of the items in the storage locker in question.
• Finally, although the likelihood of finding ownership or transfer documents for the firearms was slim, there was a possibility that there may be some supporting documentation available in Ms. Browne’s apartment that would link her to the storage locker or the firearms and ammunition. The section of the affidavit under the heading “grounds to believe that articles seized will afford evidence of the offences” refers not only to finding potential documents, but also to “any ammunition, accessories and documentation, as well as further firearms” as providing evidence in support of the offence of Unauthorized Possession of a Firearm (emphasis added).

Overview of the new s. 8 challenge

[13] After the conclusion of Mr. Royle’s s. 8 arguments, outlined above, Mr. Di Luca twigged to a new s. 8 argument. Until that moment, no one had turned their minds to this argument, including the police officers involved, apparently the two judges who signed the warrants dated May 26, 2011 and June 1, 2011, two previous counsel for each of the accused, and Mr. Royle and Mr. Di Luca, two experienced defence counsel.

[14] Section 488 provides:

A warrant issued under section 487 or 487.1 shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) the reasonable grounds are included in the information; and

(c) the warrant authorizes that it be executed by night.

[15] DC Storey was the affiant to obtain both of the warrants before Justice Marshall and Justice Brownstone.

[16] DC Storey attended at Justice Brownstone’s home shortly after 8 p.m. on June 1, 2011. Justice Brownstone was aware that officers were standing by to conduct the search of the apartment and granted the warrant at 9 p.m. on June 1, 2011 after he had read the materials. The search warrant was effective immediately for a period of 48 hours. Justice Brownstone filled in the times for the warrant to be executed without any discussions with the affiant. It appears that either Justice Brownstone may have been unaware of the requirements of s. 488 of the Criminal Code, or missed the omission in the affiant’s materials.

[17] Both accused were arrested at 9:07 p.m. on June 1, 2011.

[18] The search warrant was provided to Det. Balint by DC Storey at 9:35 p.m. The search warrant was executed by the police at apartment 610, 135 Rose Avenue from 9:50 p.m. to 10:30 p.m., while the two accused were in custody.

[19] When the warrant was executed, no one was in the apartment.

[20] The defence now argues that there are fundamental, systemic breaches being perpetuated by the police and the justice system when the police carelessly apply for, and judges grant, search warrants permitting entry into people’s homes at night. The defence submits that these breaches bring the justice system into disrepute. Defence counsel vigorously argue that this situation cries out for the exclusion of the evidence of the drugs and guns discovered in the apartment pursuant to s. 24(2) of the Charter.

[21] The Crown concedes that the affiant preparing the search warrant made errors, including not photocopying the complete documentation that had been before Justice Marshall, the judge hearing the first search warrant application, and not putting in materials in support of a request for a nighttime warrant before Justice Brownstone. However, there was no bad faith, and the requests to search Ms. Browne’s apartment to find evidence linking Ms. Browne to the locker were reasonable, and in fact conservative. Any oversight or error with respect to the execution of a nighttime warrant caused no actual prejudice to Ms. Browne, as no one was in the apartment when the warrant was executed.

Additional background facts

[22] By chance, the police were advised of the presence of a gun in storage locker #337 at Yellow Self Storage, located at 7 Copeland Street in the City of Toronto.

[23] Locker number #337 was leased to the Applicant Nicole Browne beginning December 10, 2010. She had made regular payments for the storage locker each month. Yellow Self Storage was in the process of renovations, and advised Ms. Browne in writing in a letter sent to her address on the locker contract that the contents of her locker would be moved to facilitate the renovations. They also tried to get hold of Ms. Browne at the phone number noted on the contract, but the number was no longer in service. As Ms. Browne did not respond, the staff of Yellow Self Storage removed the door of locker #337 and on May 26, 2011 began moving the contents of locker #337 to locker #3264.

[24] During the move of the various suitcases, knapsacks and duffle bags, one of the two staff members conducting the move noticed a handgun and ammunition in a purse. He advised his boss. The proprietor of Yellow Self Storage notified the police. The police attended, and once the officer confirmed that the gun in the purse was in fact a real firearm, the officer continued his surveillance of the locker, pending obtaining a warrant to search the locker in question.

[25] Meanwhile, DC Storey was the person designated to prepare the information to obtain a search warrant for the storage locker.

[26] An officer was standing by the locker to secure it and to ensure no one had access to the locker while DC Storey obtained the search warrant.

[27] In his materials presented to Justice Marshall, DC Storey did not comply with the requirements of s. 488 of the Criminal Code, as he did not specifically seek a nighttime warrant, nor did he outline the grounds for why a nighttime warrant was necessary. A nighttime warrant was granted by Justice Marshall. The validity of this warrant is not challenged by the defence.

[28] DC Storey testified with respect to the nighttime search warrant issue.

[29] Although an experienced police officer, DC Storey was new to the Guns and Gangs Task Force, and had not been the affiant to obtain a warrant for three years. He acknowledged that he was rusty, and he did not ask a superior to review his draft, which now is his practice, before attending before Justice Marshall.

[30] Once he prepared the documentation he attended before Justice Marshall at her home after court hours to obtain a search warrant for the contents of what had been located in storage locker #337 (which had been moved to locker #3264). The warrant was signed by Justice Marshall on May 26, 2011 effective from 9 p.m. on May 26, 2011 to 1 a.m. on May 27, 2011.

[31] There was no discussion between Justice Marshall and the affiant about any deficiencies in the affiant’s materials by failing to ask for a nighttime warrant, or the failure to outline why nighttime search warrant was necessary.

[32] Although DC Storey did not ask for a nighttime warrant in the materials presented to Justice Marshall, defence counsel is not attacking the validity of the search warrant granted by Justice Marshall. Counsel concedes that any expectation of privacy in a rented storage locker is not equivalent to the sanctity of one’s apartment. It is not argued by the defence that there were no valid grounds to obtain a nighttime warrant for the locker.

[33] I find that there were compelling grounds to grant an immediate warrant to search the locker to ensure the continuity and integrity of the evidence, and for reasons of public and police safety. Who knows who else may have had access to this locker. Had a nighttime warrant been asked for, I am confident that it would have been granted.

[34] When the search warrant was executed on locker #3264 at 7 Copeland Street, ten firearms were found. They included:

1. A Ruger .44 calibre revolver
2. An AT-9 machine pistol
3. A Steyr AUG assault rifle
4. An AK-47 machine gun
5. A Remington 870 pump action sawed off shot gun
6. A Commando Mark III assault rifle
7. An M11 assault rifle
8. A Bryco Arms Jennings Nine 9 mm pistol
9. A Walther P99 pistol
10. A Bryco 48 pistol

[35] These firearms were inside various knapsacks, suitcases and duffle bags. With each firearm there was ammunition, loose, in cartons and in the magazines of the various firearms, totalling 4,746 rounds of live ammunition.

[36] Also located in the storage unit were more than 1,000 ecstasy pills weighing 1.592 kilos, as well as drug paraphernalia with cocaine residue on it.

[37] It’s fair to say this was a serious arsenal of guns and ammunition, and the Guns and Gangs Task Force took this discovery very seriously.

[38] The police immediately took steps to locate Ms. Browne, who had leased the locker.

[39] They set up surveillance on the address noted on the Yellow Self Storage locker contract over two days, and Ms. Browne did not appear. They made other inquiries and, on May 31, 2011, the police discovered that Ms. Browne had opened a new hydro account at apartment 610, 135 Rose Avenue on April 2, 2011. An officer attended and confirmed with the building manager using a photograph of Ms. Browne that she was currently residing at the premises of apartment 610, 135 Rose Avenue.

[40] DC Storey came in early on June 1, 2011 at 1 p.m. to prepare the information to obtain the search warrant for the apartment, but was required to assist with another matter. After concluding the other matter, he prepared the search warrant material presented to Justice Brownstone.

[41] He provided evidence about the omissions in the warrant materials with respect requesting a nighttime warrant. He testified that he had not been an affiant for three years and in his words was “rusty”. On June 1, 2011, he knew about the nighttime warrant requirements, but had forgotten about the requirements of s. 488 of the Criminal Code. He did not specifically ask for a nighttime warrant or provide reasons for obtaining such a warrant in his information to obtain a search warrant.

[42] As the search warrant material was completed after usual court hours, he contacted various judges who make themselves available to grant search warrants after hours. He first contacted Justice Marshall, due to her familiarity with the file, and left a message for her. Justice Brownstone was the first judge who answered his or her phone, and was the third judge that the officer attempted to contact.

[43] DC Storey spoke to Justice Brownstone at approximately 7:50 p.m. on June 1, 2011 and drove immediately to his home, arriving shortly after 8 p.m. Justice Brownstone reviewed the materials. He was made aware that there were officers standing by ready to execute the warrant if granted. Justice Brownstone signed the search warrant at 9 p.m., authorizing the execution of the search warrant between June 1, 2011 at 9 p.m. and June 3, 2011 at 9 p.m. There was no request in the affidavit materials for a nighttime warrant, and no grounds outlining why a nighttime warrant was necessary.

[44] DC Storey immediately left Justice Brownstone and at 9:02 p.m. advised the supervising officer, Det. Balint, that the search warrant was signed. He went to make copies of the search warrant to take to where the officers were waiting.

[45] Meanwhile, at 9:02 p.m., Ms. Browne and Mr. Robinson were seen walking hand in hand along the walkway near the entrance of the Rose Avenue apartment building, heading towards the subway.

[46] Det. Balint made the decision to arrest both Ms. Browne and Mr. Robinson. There is a separate s. 9 Charter challenge advanced on behalf of Mr. Robinson as to legality of his arrest.

[47] After a kiss at the subway entrance, Ms. Browne and Mr. Robinson parted ways. Ms. Browne was arrested for unlawful possession of a firearm prior to embarking on the subway. Mr. Robinson was arrested for the same offence as he walked towards the officers.

[48] Ms. Browne and Mr. Robinson were arrested at 9:07 p.m. on June 1, 2011, which was shortly after the search warrant was granted but before the search warrant was received by the police executing the search warrant.

[49] When Mr. Robinson was arrested a large metal key ring with a Superman symbol on it was located in his pant pocket. The police immediately noticed one key in particular, the Duralock key, which the police immediately suspected may be a key that matched the Duralock that had been on locker #337 rented by Ms. Browne. It turned out their suspicion was well founded. Mr. Robinson also had a key for apartment 610, 135 Rose Avenue.

[50] When Ms. Browne was searched after her arrest, the police found a key ring with various keys, but none to the locker in question. There was a key for apartment 610 at 135 Rose Avenue. The arresting officers also found $1,350 in cash in her pocket and in her purse they found Ms. Browne’s copy of a lease agreement for another storage facility locker at 1001 Arrow Road, Scarborough.

[51] Dectective Balint received the search warrant at 9:35 p.m. on June 1, 2011 from DC Storey.

[52] After the discovery of the lease agreement in the name of Nicole Browne for 1001 Arrow Road, DC Storey was immediately dispatched from the scene by Det. Balint to begin writing a third warrant for that address. Nothing of interest was located at this storage facility. DC Storey was also given the Duralock key found on Mr. Robinson’s key ring to see if it matched the locker at 7 Copeland Street or the locker at 1001 Arrow Road.

[53] The search warrant was executed at 9:50 p.m. and was completed by 10:30 p.m. In the apartment the police found two loaded firearms and various drugs and drug paraphernalia, as well as men’s and women’s clothing.

[54] The police did not knock at the door of apartment 610, 135 Rose Ave. One officer thought he heard voices emanating from inside the apartment, and the police therefore chose to do a dynamic entry. No one was present in the apartment.

[55] Two loaded guns – a Walther PK .380 calibre semi-automatic handgun and a Springfield Armoury 40 calibre semi-automatic handgun – were found in the apartment, in a linen closet just inside the door of the bedroom.

[56] In the kitchen of the apartment the police located crack cocaine and paraphernalia for cooking, cutting, weighing and distributing drugs. There was a very small amount of food and few dishes.

The defence arguments on the initial s. 8 application

[57] Appendix A attached to the information to obtain a search warrant sought to search the apartment to search for three items:

1. a rental agreement between herself [Nicole Browne] and Yellow Self Storage Ltd located at 7 Copeland Street, Toronto
2. a locker key that will open the lock that was on unit # 337 which held the firearms, ammunition and Narcotics
3. Documents pertaining to the ownership, sale and/or transfer of firearm(s)

[58] Mr. Royle, on behalf of Ms. Browne, argues that the information to obtain in support of the search warrant was inadequate, that it did not contain sufficient particulars on its face to justify the issuance of a warrant, and that the affiant of the warrant did not provide full and frank disclosure of all information relevant to the issuance of the warrant.

Statutory pre-conditions for issuing a search warrant pursuant to s. 487

[59] In order to grant a warrant to search a place pursuant to s. 487 of the Code, the issuing justice must be satisfied that there are reasonable grounds to believe that the police will find in that place certain things that relate to or will provide evidence of the commission of an offence: see R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 253.

[60] There are only two statutory pre-conditions for a search warrant for a place. The issuing judge must be satisfied, first, that there are reasonable and probable grounds to believe that an offence has been or is being committed, and second, that the order sought will afford evidence of that offence: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1444; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 45.

[61] Judges reviewing a presumptively valid court order have a very narrow scope of operation. The reviewing judge only queries whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory pre-conditions existed: R v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 30 and 41; Grant, supra, at p. 251.

Item 1: “a rental agreement between herself and Yellow Self Storage Ltd located at 7 Copeland Street, Toronto”

[62] The police had been provided with a copy of a rental agreement between Yellow Self Storage and Nicole Browne dated December 15, 2010, prior to applying for the search warrant for 135 Rose Avenue. Ms. Browne had continued to make regular monthly payments on the locker since that date. The rental agreement was attached in the materials before Justice Marshall, but not before Justice Brownstone.

[63] When DC Storey prepared the materials for the search warrant that is the subject matter of this application, he did not append the complete documentation that had been before Justice Marshall. Two pages had been left out, and the copy of the lease agreement was not included.

[64] I find that that it was entirely reasonable for the police to be looking for Ms. Browne’s copy of the locker rental agreement in her apartment to link her to the locker and its contents, notwithstanding that they already had a copy of the document given to them by Yellow Self Storage. I find that the only reasonable inference available is that there was no attempt to mislead Justice Brownstone, and that through inadvertence DC Storey, in a rush, messed up in photocopying the materials to present to Justice Brownstone.

[65] There was no attempt, as suggested by the defence, to hide the fact that the police already had the copy of the document provided to them by Yellow Self Storage. On page 20 of the materials before Justice Brownstone Ms. Browne is referred to as the “owner” and “lessee” of locker unit #337, and the affiant says that she “leased a locker unit at Yellow Self Storage on the 15th of December 2010”. At page 21 it states, at paragraph 3.07, that “[a] copy of the contract will be attached as appendix ‘D’”. Although it was clear to me that there was a page missing (in fact, two pages), probably Justice Brownstone missed this fact, as he was reading the affiant’s material in a context of some urgency, at night.

[66] I find that there is no merit to the argument that there was non-disclosure to Justice Brownstone of the fact that the police had the rental agreement and that they were seeking her copy, notwithstanding the missing documentation.

Item 2: “a locker key that will open the lock that was on unit # 337 which held the firearms, ammunition and Narcotics”

[67] The defence concedes that it is reasonable to search the apartment for a key that would open the lock to locker #337. When the affiant was before Justice Brownstone, no key had been located. However, at 9:07 p.m., the defendants were arrested and searched incident to arrest. On Mr. Robinson’s Superman key ring was a Duralock key which matched the type of lock that had secured locker #337. That lock had been cut off the door by the police and was located in property storage, along with the other evidence.

[68] Defence counsel states that once the key that might have fit the lock was found, the police were obliged to hold off executing the search warrant and wait to see if the key they seized fit the lock, or were obliged to go back before Justice Brownstone to advise him of this new development, to see if this new evidence undermined the validity of the search warrant.

[69] I disagree with this argument. Clearly, when the affiant attended at Justice Brownstone’s, no key had been found. There may be more than one key that fits a lock, and more than one person may have access to the locker. Although Appendix A refers to “a locker key”, I note that paragraph 5 of the information to obtain states, “I believe that Nicole BROWNE will still have in her possession of the keys for the storage locker” (emphasis added).

[70] Finding the locker key on Mr. Robinson’s key ring ties him to the locker and its contents, but is not evidence tying Ms. Browne to the contents of the locker. It was entirely reasonable to search for other keys to the locker that may have been in the apartment.

[71] I conclude that there is no merit to this argument.

Item 3: “Documents pertaining to the ownership, sale and/or transfer of firearm(s)”

[72] The information to obtain confirms, based upon the police searches, that Nicole Browne “does not have authorization to possess any firearms”. Therefore, “[a]ny ammunition, accessories and documentation, as well as further firearms, will provide evidence to the offence of Unauthorized Possession of a Firearm”.

[73] I agree with defence counsel that the drafting of this portion of the affidavit is inadequate, and should have been amplified and clarified. Realistically, and practically speaking, the chances of finding ownership documents or transfer documents for a stash of what is believed to be unregistered weapons is slim to none. If the affiant thought, however, that there were reasonable grounds to believe that ownership documents or transfer documents would be found in the apartment, that assertion and the reasoning behind it should have been included in the body of the affidavit.

[74] I conclude that this inadequacy in the drafting of the affidavit is not in any way fatal. Appendix A was if anything under-inclusive, and does not undermine the validity of the warrant.

[75] There was no mention of possibly finding further drugs, guns or ammunition in Appendix A, although this belief is clearly referred to in the affidavit.

[76] I conclude, in light of the magnitude of what was found in the storage locker, that it is very surprising that a request to search for further firearms, ammunition, and drugs was not included in Appendix A, along with a clear statement by the affiant that he had reasonable grounds to believe that these items would be found in the apartment and that they would be evidence linking Ms. Browne to the possession of the stash of firearms, ammunition and drugs found in the storage locker.

[77] I made this observation during the argument for this motion, and record it here. This observation was made by me without reference to the evidence that was called by the Crown in the other Charter motion in response to the defence challenging the legality of the arrest of Mr. Robinson.

Conclusions with respect to the initial s. 8 arguments raised

[78] I find there was ample basis upon which the authorizing judge could be satisfied that the relevant statutory pre-conditions existed to search the apartment. I conclude that, considering the defects relied upon by the defence, both individually and cumulatively, do not undermine the validity of the search warrant.

The failure to comply with s. 488 of the Criminal Code

[79] The drafting of search warrants for private homes or apartments requires precision and accuracy, as well as full and fair disclosure of all of the relevant facts. As Rosenberg J.A. held in R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.), at p. 400:

The courts should not be seen as condoning the use of language in search warrants which masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the state's interest in detecting crime outweighs the individual's privacy interest in his or her own home.

[80] Section 488 is a mandatory provision which, as noted above, provides:

A warrant issued under section 487 or 487.1 shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) the reasonable grounds are included in the information; and

(c) the warrant authorizes that it be executed by night.

[81] “A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected”: R. v. Sutherland (2000), 2000 CanLII 17034 (ON CA), 52 O.R. (3d) 27 (C.A.), at para. 15. If the drafting of a search warrant for a dwelling is “flagrantly careless” and contains “misleading statements” evidencing a “pattern of laxity”, “syndrome of lassitude” and “casual attitude” towards obtaining a search warrant, then the fact that the intrusion took place at night when the occupants could be expected to be in bed asleep would serve to exaggerate the seriousness of the other defects: Sutherland, at paras. 12, 25, 29-30.

[82] When nighttime entry is authorized and carried out, even in the small hours of the night, lack of evidence of the entry actually frightening anyone mitigates the intrusiveness of the search and contributes to a finding that the nighttime search was not unreasonable: R. v. MacDonald, 2012 ONCA 244, 290 O.A.C. 21, at para. 30.

[83] Clearly, DC Storey forgot about the mandatory provisions of s. 488 of the Criminal Code. The justice who signed the search warrant did not notice the omission.

[84] The defence take the position that a nighttime warrant would not have been granted had the specific request been made and the issue properly canvassed, as they were looking for just “paper”. It is not clear to me whether a search warrant permitting a nighttime search would have been granted had DC Storey remembered the requirements of s. 488 and articulated his grounds for why a nighttime search was necessary as he had not included a request to search for guns, drugs and other contraband. On the one hand, DC Storey testified that he did not believe that he had reasonable and probable grounds to believe that guns would be found in the apartment. On the other hand, given the quantity and nature of the stash of guns and drugs found in the storage locker, if reasons of urgency had been clearly articulated, for the items outlined in Appendix A, a nighttime search warrant may well have been granted.

[85] For the purpose of this analysis, as DC Storey did not amplify in his evidence why a nighttime warrant was necessary in the circumstances of this case, I find that the warrant was presumptively invalid due to this flaw, and will turn to consider the s. 24(2) Charter analysis.

Section 24(2) analysis

[86] The Supreme Court revised the principles and framework for excluding evidence under s. 24(2) of the Charter in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. This new framework, consisting of a three part test, emphasizes the need to consider the broad social implications of admitting or excluding evidence obtained by way of Charter breach on the administration of justice and clarifies what factors should be taken into consideration when doing so. The Supreme Court described the test at para. 71:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

1. The Seriousness of the Charter-Infringing State Conduct

[87] The objective of the first factor in Grant is to preserve public confidence in and ensure state adherence to the rule of law. At para. 72 of Grant, the court considers whether the police conduct is “severe or deliberate”, which is relevant to whether “courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.”

[88] I note that in para. 75, the court found that “[e]xtenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach”.

[89] There is no evidence of bad faith by DC Storey in the preparation of the information to obtain. Matters were rushed, and he was called upon to help with another investigation on June 1, 2011. He was inexperienced, and was not adequately supervised.

[90] Mr. Di Luca, counsel for Mr. Robinson, relies upon the evidence of DC Storey in the other Charter motion challenging the arrest, and submitted that the evidence of DC Storey was fair, credible and objective. The warrant was executed after 9 p.m., but only shortly thereafter, at 9:50 p.m. The police finished their search promptly by 10:30 p.m.

[91] I agree with the Crown that the infringement was due to inadvertence and, though not to be condoned, in the circumstances of this case any breach is more of a technical one and not substantive.

2. The Impact of the Breach of the Charter-Protected Interests of the Accused

[92] It is important to determine not only how the right was breached, but what impact the violation had on the Charter-protected interests of the accused. This is explained at para. 76 of Grant:

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[93] Both Ms. Browne and Mr. Robinson had been arrested at 9:07 p.m. on June 1, 2011 and were in the police station at 51 Division when the search warrant was executed. Whether the search warrant was executed at 9:50 p.m. or whether the police had waited until day time hours made absolutely no difference to the Applicants.

[94] This was not a case of a terrifying invasion by police in the middle of the night when people were fast asleep. The Emergency Task Force was not involved in the execution of the warrant, as Ms. Browne and Mr. Robinson were already under arrest. The officers involved in the execution of the search warrant were in plain clothes.

[95] I conclude that although there was a breach of s. 8 due to a failure to comply with the requirements of s. 488 of the Criminal Code, it was a technical breach that had no practical effect whatsoever on the Charter rights of Ms. Browne or Mr. Robinson.

3. Society’s Interest in the Adjudication of the Case on its Merits

[96] The third question this court must assess and balance is whether the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits.

[97] As the Supreme Court observed in Grant, at para. 81, the “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.”

[98] Many cases confirm the important public interest in pursuing weapons-related offences: see, for example, R. v. Campbell, 2012 ONCA 394, [2012] O.J. No. 2602, at para. 18; R. v. Bashir, 2012 ONCA 793, [2012] O.J. No. 5427, at para. 7; R. v. McKenzie, 2011 ONCA 42, [2011] O.J. No. 156, at para. 12; R. v. Johnson, 2013 ONCA 177, [2013] O.J. No. 1308, at para. 53; R. v. Ellis, 2013 ONSC 1494, [2013] O.J. No. 1274, at para. 125; Grant, at paras. 139-140.

[99] The exclusion of the evidence from the apartment would undermine the Crown’s ability to show possession, control and particularly knowledge of the items in the storage locker for each of the accused.

[100] If the evidence from the apartment were excluded, the items in the locker would be viewed in isolation. This may allow Ms. Browne and Mr. Robinson to distance themselves from the weapons and drugs in the locker. Excluding the evidence of the guns and drugs at the apartment would weaken the Crown’s argument that Ms. Browne had knowledge of the guns and drugs at the locker. Similarly, the evidence of the guns and drugs in the apartment, to which Mr. Robinson had a key, is important in establishing Mr. Robinson’s knowledge of and control over the guns and drugs in the locker.

[101] The exclusion of the evidence from the apartment would leave the jury with a distorted picture of the sophisticated operation the two are alleged to have engaged in. The exclusion of the guns and drugs at the apartment would have a marked negative impact on the truth-seeking function of the criminal trial process.

[102] In all of the circumstances, weighing the three factors in Grant, I conclude that the two firearms, the drugs, and the drug paraphernalia found during the search of the apartment, as well as the other items found in the apartment, should be admitted into evidence. To do so would not bring the administration of justice into disrepute. To the contrary, on the facts of this case, to exclude the evidence, particularly the firearms, would undermine the bona fide, although not perfect, efforts of the police in investigating crime, and would bring the administration of justice into disrepute.

Shortcomings in the preparation of the search warrant materials

[103] Notwithstanding my conclusions, I make some observations to avoid the repetition of this sort of incident in the future. There is no evidence before me that there is a systemic problem, and I make these comments looking to the future as a precaution.

[104] I find that in this case for this warrant there was a genuine question of urgency which may explain, though not totally excuse, the lack of attention to detail in the drafting of the search warrant materials.

[105] It took several days for the police to track down the new address of Ms. Browne. They discovered where she lived on May 31, 2011, and on June 1, 2011 immediately took steps to obtain a search warrant for her apartment. Once the locker contents had been seized, and Ms. Browne could not be located, time was of the essence to ensure that other relevant evidence linked to the locker would not be destroyed. I agree with the Crown’s submission that the search warrant for 135 Rose Ave., apartment 610, cannot be looked at without this context, as the execution of the search warrant for the apartment was integrally linked to the execution of the search warrant for the storage locker and the discovery of a large cache of firearms and ammunition.

[106] The affiant did his best to prepare materials to be considered by the person issuing the warrant under pressure. He had not prepared a warrant for three years, and had never prepared a warrant while a member of the Guns and Gangs Task Force.

[107] There was no mala fides by DC Storey whatsoever, and no attempt to mislead the issuing justice. The affidavit material was less than clear, and if anything, under-inclusive in terms of what was being sought. Any oversight is not exclusively the responsibility of DC Storey. Clearly, the affiant in this case, and any officer involved in preparing documentation to obtain search warrants, needs adequate training and supervision in the preparation of these important documents. There should be protocols in place to ensure that the work of one officer is checked for completeness and accuracy, notwithstanding any urgency that may arise.

[108] In this application, I thank all counsel for their professionalism, courtesy and assistance.

J. Wilson J.

Released: April 16, 2013