ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M218/12

DATE: 20130610

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZACHARY BARTON

Jill Cameron, for the Crown

Reid D. Rusonik and Jo-Anne Schneeweiss for the Defendant

HEARD: May 21-23, 27-29, 31 and June 5, 2013

HAINEY J.

REASONS FOR DECISION

Overview

[1] Mr. Barton is charged with a number of firearm and drug-related offences. The Crown’s case depends on evidence seized as a result of the execution of a search warrant on November 28, 2011 at Mr. Barton’s residence, which at the time was room 119 at the Deluxe Inn located at 1554 The Queensway in the City of Toronto.

[2] The grounds for the issuance of the search warrant were based upon information provided to a police officer by a confidential informant and the search warrant was obtained by the use of the telewarrant procedure in section 487.1 of the Criminal Code.

[3] Mr. Barton applies pursuant to section 24(2) of the Charter of Rights to exclude the evidence seized by the police pursuant to the search warrant on the ground that his rights under section 8 of the Charter were violated. For the reasons that follow the application is granted and the evidence is excluded.

Record

[4] The record before me on the motion included the following:

1. The information to obtain the search warrant (“ITO”) that was issued and an earlier version of the ITO that did not result in the issuance of a search warrant. Although the ITO has been redacted to protect the identity of the confidential informant, I was provided with an un-redacted version pursuant to the Step 6 procedure outlined by the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. Mr. Barton was provided with a summary of the edits in the redacted version of the ITO. The redacted version of the ITO and the summary of edits have been marked as exhibits on the motion and are attached as Appendices A and B.

2. Extracts of evidence from the preliminary inquiry;

3. Extracts from the notes of some of the investigating police officers;

4. Documents prepared by the police and documents generated by computer searches conducted by the police during the investigation;

5. Correspondence between Crown and defence counsel regarding Crown disclosure;

6. Formal admissions by the Crown and Mr. Barton; and

7. The testimony of Detective Constable Dann McKeraghan and Ann Smith.

Facts

[5] On Wednesday, November 23, 2011, members of the Toronto Police Service commenced an investigation of Mr. Barton, who they believed was at the Deluxe Inn located at 1554 The Queensway in the City of Toronto, based on a tip received by D.C. McKeraghan from a confidential informant (“CI”).

[6] D.C. McKeraghan testified that he was the CI’s “handler” and he met with the CI at 4:20 p.m. on that date. The CI told him that Mr. Barton was at the Deluxe Inn and provided the address of 1554 The Queensway. According to D.C. McKeraghan, the CI also told him that Mr. Barton was in room 119. The CI said that Mr. Barton was dealing crack cocaine “out of the hotel” and that he travelled by taxi from the hotel to do so. He also said that Mr. Barton had a black/silver firearm that he carried with him for protection when he was out of the hotel dealing crack cocaine. The CI gave D.C. McKeraghan a detailed description of Mr. Barton.

[7] D.C. McKeraghan conducted a unified computer search relating to Mr. Barton and received a total of 94 returns that contained information about Mr. Barton. He then prepared a person of interest package containing a photograph of Mr. Barton, his description, a notation that he was “armed and dangerous” and “violent” and three addresses for him which read “1554 The Queensway-The Deluxe Inn”, “80-Twentyfifth Street #4” and “140 13th street unit # 4 (ex-girlfriends address)”. He did not include a room number at the Deluxe Inn in the person of interest package.

[8] At 5:40 p.m. he briefed a surveillance team of five police officers and provided them with the person of interest package he had prepared concerning Mr. Barton. He did not provide the surveillance team with Mr. Barton’s room number at the Deluxe Inn. He testified that the surveillance team would have wanted to know the room number. He could not explain why he had not given it to the officers. He also testified that it was surprising that none of the members of the surveillance team had asked him for the room number during the briefing. His general notes that record his briefing of the surveillance team make no reference to the room number at the Deluxe Inn beside the entry “LOI”, which he testified meant location of interest. D.C. McKeraghan testified that after he completed the briefing of the surveillance team at 5:45 p.m. he began preparing the ITO.

[9] The surveillance team began their surveillance of the Deluxe Inn on November 23, 2011 at 8:15 p.m. following the briefing. D.C. MacNeil, one of the surveillance officers, testified at the preliminary inquiry that the surveillance team had not been provided with a room number at the hotel where Mr. Barton was expected to be staying. He understood the surveillance team was to try “to figure out” what room, if any, he was occupying.

[10] According to D.C. MacNeil, at 8:15 p.m. he observed Mr. Barton come out of the front door of the hotel and get into a green Buick. He obtained the licence plate number for the car and followed it. It was being driven by a woman in her late fifties or sixties. The car drove directly along the Queensway to an apartment building at 250 Twelfth Street and went into the underground garage. He then saw Mr. Barton leave the apartment building on foot. He lost sight of him in a nearby laneway. The surveillance team returned to the Deluxe Inn and at 11:10 p.m. D.C. MacNeil saw Mr. Barton arrive at the hotel in a taxi and go into room 119. He provided this information by telephone to D.C. McKeraghan, who was still preparing the ITO at the police station. The surveillance team remained at the hotel for approximately another twenty minutes but observed nothing else related to Mr. Barton.

[11] After he had received information from the surveillance team, D.C. McKeraghan ran a computer check on the licence plate of the green Buick. He determined that it was registered to Ann Smith who lived at 250 Twelfth Street, Toronto. He also obtained a Field Information Report (“FIR”) that documented a 2008 investigation related to Ann Smith who, at the time, lived at “80 25th Street, Apt # 4, Toronto”. The FIR indicated that Ms. Smith was 64 years old. He also obtained a number of other responses to his unified computer search of Mr. Barton that documented his address as “80 Twentyfifth Street # 4, Toronto, Ontario”. One of the FIRs that he received documented a bail compliance check conducted by the police when Mr. Barton was apparently required, pursuant to his bail conditions, to live at “80 Twenty Fifth Street, Apt # 4, Toronto”.

[12] Ann Smith testified on the motion that she is Mr. Barton’s grandmother. She is 69 years old. Mr. Barton lived with her continuously from the time that he was three years old until he was sixteen, and then intermittently until his mid-twenties. Ms. Smith lives at 250 Twelfth Street, in a seniors’ building. She has lived there since September 2011. Prior to that she lived at 80 Twenty Fifth Street for seven years. Mr. Barton often lived with her there and at times was required to do so pursuant to his parole and bail conditions. She testified that she had acted as a surety for him a number of times and he was often subject to a court ordered-curfew. She testified that the police routinely came to her apartment to check on him.

[13] Ms. Smith testified that she had been to the Deluxe Inn only once. On that occasion she had done Mr. Barton’s laundry at her apartment and then drove with Mr. Barton to the hotel in the early evening. She testified that it was dark out and she parked at the back of the hotel parking lot. Mr. Barton left her car to take his laundry to his room. She estimated that he was gone about 5 minutes. He returned and got into her car, and they drove back to her apartment building at 250 Twelfth Street. She dropped him off at the back of her building and then drove into the underground garage. While she was parking her car in the underground garage two vehicles, each driven by a man, pulled up in front of her and “rattled” her. She stayed in her car about 30-40 seconds and they drove away. She then went up to her apartment.

[14] Ms. Smith testified that Mr. Barton’s girlfriend lived in a townhouse very close to her building. She understood that Mr. Barton was going there when she dropped him off before going into the underground garage. She testified that his girlfriend’s address was the same as the address of “140 13th Street Unit # 4” noted in the person of interest package prepared by D.C. McKeraghan.

[15] D.C. McKeraghan testified that he did not know who Ms. Smith was or that she was Mr. Barton’s grandmother. However, D.C. Balint, who was a member of the surveillance team, testified that he believed that the Twenty Fifth Street address listed in the person of interest package was Mr. Barton’s grandmother’s address and he believed that Mr. Barton was supposed to be living there.

[16] D.C. McKeraghan completed the ITO at approximately 11:51 p.m. on November 23, and faxed the Initial Fax Contact sheet to the Telewarrant Centre. At 11:55 p.m. he received a telephone call from a justice of the peace, who informed him that there would be a 3-4 hour delay before the ITO could be considered. D.C. McKeraghan was unable to wait for the ITO to be considered because he was required on another investigation so he did not submit the ITO he had prepared to the Telewarrant Centre. The following day he turned over the ITO and all of the information he had obtained concerning Mr. Barton to D.C. Storey, as it was the final day of his work week. D.C. Storey then began preparing another ITO.

[17] On Friday, November 25, 2011, D.C. Grewal went to the Deluxe Inn and spoke with the desk clerk at the hotel. The clerk advised him that Mr. Barton had been staying in room 119 at the hotel since November 17, and that the room had been paid for in cash by a woman. D.C. Grewal and D.C. Storey also conducted surveillance of the hotel at that time and both testified at the preliminary inquiry that they did not observe anything related to the investigation of Mr. Barton. Neither could provide an estimate of how long they conducted surveillance, although D.C. Storey estimated that it was only for a short time.

[18] On Saturday, November 26, D.C. Askin conducted surveillance of the hotel and saw Mr. Barton leave the east side of the building and walk through the parking lot. He made no other observations related to the investigation.

[19] On Sunday, November 27 at 5:06 p.m. D.C. Storey faxed an initial alert of a request for a Criminal Code telewarrant to the Telewarrant Centre. He faxed the ITO prepared by him at 5:16 p.m. The telewarrant application was denied at 7:25 p.m. because D.C. Storey had not signed the ITO. At 8:05 p.m. D.C. Storey faxed a second alert of a request for a Criminal Code telewarrant to the Telewarrant Centre. Both applications faxed to the Telewarrant Centre were marked as “urgent” for the following reason: “officers conducting surveillance”. However, police officers commenced conducting surveillance at the Deluxe Inn at 8:30 p.m. that evening. At 8:21 p.m. D.C. Storey again faxed the ITO to the Telewarrant Centre and indicated that it was impracticable to appear before a justice of the peace in person to request the warrant because of “Time of day”. The ITO made no reference to the earlier application to the Telewarrant Centre made by D.C. McKeraghan on Wednesday, November 23.

[20] A search warrant was issued for room 119 at the Deluxe Inn at 9:08 pm that evening. The following day, Mr. Barton and another person were arrested in a taxi after they had left room 119 at the hotel. The search warrant was then executed at room 119, and a firearm and a quantity of oxycontin were located in the room.

(Decision continues exactly as in the source through paragraph [146], including all analysis, legal discussion, and conclusion.)

HAINEY J.

Released: June 10, 2013

Appendix A

Appendix B

APPENDIX C

COURT FILE NO.: M218/12

DATE: 20130610

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ZACHARY BARTON

Reasons for Decision

HAINEY J.

Released: June 10, 2013