ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-90000137-000

DATE: 20130918

BETWEEN:

HER MAJESTY THE QUEEN

– and –

COREY BROWNE

Chris de Sa, for the Crown

Robert Nuttall, for the Defendant

HEARD: September 9 – 13, 2013

HAINEY J.

REASONS FOR DECISION

Overview

[1] Mr. Browne is charged with a number of drug-related offences. The Crown’s case depends on evidence seized as a result of the execution of a search warrant at 2:46 a.m. on October 6, 2009 at Mr. Browne’s residence, at 701 Don Mills Road, Apartment 2408 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. Browne applies pursuant to section 24(2) of the Charter of Rights and Freedoms (the “Charter”) 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 because:

a) The information contained in the Information to Obtain the Search Warrant (“ITO”) was not a sufficiently reliable and credible basis upon which the justice could have issued the search warrant;

b) There were no exceptional circumstances to justify the execution of the search warrant at night pursuant to section 488 of the Criminal Code;

c) The manner in which the search was carried out was unreasonable, and

d) The failure to provide a copy of the telewarrant to Mr. Browne breached his rights under section 8 of the Charter.

Record

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

1. The ITO that was sworn by Detective Constable Ryan Russell. 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 six” procedure outlined by the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. Mr. Browne was provided with a judicial summary of the edits in the redacted version of the ITO.

2. The testimony of the following witnesses:

• Sergeant Oliver Febbo;
• Sergeant Mike Forestall;
• P.C. Rene Kuhn;
• P.C. Stephen Carmichael;
• Ms. Gail Gaskin;
• Detective Michelle Little;
• P.C. Stuart Philp;
• P.C. Jeffery Taveres;

3. A Statement of Admissions and Agreed Facts;

Facts

[5] At 12:45 a.m. on October 6, 2009, a search warrant was issued by justice of the peace Malik pursuant to section 487 of the Criminal Code authorizing the police to enter apartment 2408 at 701 Don Mills Road between the hours of 1 a.m. on October 6, 2009 and 6:59 a.m. on October 7, 2009 to search for a firearm. The offence specified in the search warrant was unlawful possession of a handgun by Corey Browne on or about the 5th day of October, 2009.

[6] The search warrant was issued on the strength of an ITO that was sworn by Detective Constable Ryan Russell. In the ITO, D.C. Russell relied extensively upon information received from a confidential informant (“CI”). As indicated above, the copy of the ITO provided to Mr. Browne has been redacted to protect the identity of the CI. Mr. Browne has also been provided with a judicial summary of the redacted portions of the ITO.

[7] The information provided by the CI as disclosed in the redacted ITO and the judicial summary is as follows:

a) Corey Browne is a black male with brown dreads and a goatee. He is about 5’ 10” – 6’ tall. He has a medium build and weighs approximately 180-200 pounds;

b) He lives with his younger brother, “Junior”, who the CI also described in detail. They live in apartment 2408 at 701 Don Mills Road. The CI described the length of time and circumstances under which he/she has known Mr. Browne;

c) According to the CI, Mr. Browne is a drug dealer who sells cocaine and marihuana from his apartment and in the area of Flemington Park. The CI has purchased drugs from Mr. Browne and described the length of time and circumstances under which he/she has purchased drugs from him;

d) The CI also described the nature and quantities of drugs purchased from Mr. Browne, the details surrounding the CI’s purchase of drugs from him and the location or locations where the drugs were purchased. The CI advised that Mr. Browne could always be located loitering in the area of the apartment buildings in the Flemington Park area;

e) The CI saw Mr. Browne within a month when he/she purchased a specified quantity of a controlled drug from him. The CI provided information regarding the quantity of crack cocaine observed in Mr. Browne’s possession and details known to the CI about Mr. Browne’s drug dealing activities;

f) The CI advised that Mr. Browne is currently in possession of a gun. The CI observed Mr. Browne to be in possession of the gun in his apartment. The CI gave a detailed description of the gun and advised that Mr. Browne has the gun for protection so that he does not get robbed;

g) The CI also gave details regarding the circumstances and timing of a previous occasion when he/she saw Mr. Browne with a gun;

[8] The ITO indicates that D.C. Russell showed the CI two photographs of Mr. Browne and the CI identified the man in the photographs as the person he knew as Corey Browne who he/she had seen in possession of a gun.

[9] The ITO indicates that D.C. Russell also conducted a number of checks on the police database concerning Mr. Browne. This produced the following information:

a) Mr. Browne resides at 701 Don Mills Road, Apt. 2408. His mother, Gail Gaskin, and his younger brother, Dre Gaskin, also live at the same address. His brother was described by police as a black male with brown braided hair, 6’3”, 240 pounds;

b) Mr. Browne was described by police officers who dealt with him in February 2009, as a black male, 6’ tall, 205 pounds with black hair in a toque and a beard;

c) Mr. Browne had been previously investigated by police 78 times;

d) Mr. Browne has a criminal record including convictions for possession of cocaine, obstructing a peace officer and failing to comply with a recognizance. He had been investigated by police in the Flemington Park area a number of times between 1999 and 2004.

e) On July 30, 1998 Mr. Browne was acquitted of firearms charges after a trial. The allegations were that while a search warrant was being executed in an apartment he threw a firearm onto the roof next door. The police recovered the firearm and two other firearms in a bedroom of the apartment. Mr. Browne’s co-accused was found guilty of all of the firearms charges;

f) In February 2004, Mr. Browne was acquitted of possession of cocaine for the purpose of trafficking. The allegations were that he was smoking a marihuana cigarette while driving and when stopped, the police seized 15.81 grams of cocaine and $1,415 which he had in his possession. Although it was not disclosed in the ITO, Mr. Browne admits he was convicted of unlawful possession of the cocaine.

[10] The ITO also indicates that D.C. Norton attended at 701 Don Mills Road, apartment 2408 on October 5, 2009 and made the following observations:

a) The building kiosk for 701 Don Mills Road showed the name “G. Gaskin” with an entry code of “#0036”;

b) D.C. Norton went to the 24th floor and heard male voices coming from apartment 2408. He also smelled the strong odour of marihuana coming from the apartment;

c) There were lights on inside apartment 2408 that were visible from outside the apartment.

[11] In the ITO, D.C. Russell requested authorization to execute the search warrant at night. In paragraph 12 of the ITO he swore that he had reasonable and probable grounds to conclude that Mr. Browne was still in possession of the firearm and that he “firmly believed” he was still in possession of it. He further swore as follows:

I am requesting night time entry to ensure police officers are given enough time to gather the resources necessary to execute this warrant. Any delay in the execution of this warrant could result in the loss of evidence. Any delay in seizing the firearm places members of the public in danger. … Authorization to search during the night time hours will allow police to secure evidence for a criminal investigation and secure a greater level of safety for the police, Corey Browne and any found-ins alike.

[12] It is admitted that officers from the Toronto Police Services Gun and Gang Task Force with the assistance of the Emergency Task Force executed the search warrant at 700 Don Mills Road, apartment 2408 at 2:46 a.m. on October 6, 2009. The door to the apartment was breached and Mr. Browne and Steven Hanslip were found in the living room of the apartment.

[13] Beside them were several bags containing crack cocaine totaling 69.14 grams with a street level value of $13,820. A further quantity of 1.64 grams of crack cocaine, valued at approximately $200, was located in a bedroom. Also found in the apartment were four digital scales and $2596 in cash.

[14] The evidence established that the entry into the apartment was carried out by the Emergency Task Force under the supervision of Sergeant Mike Forestall. Sergeant Forestall testified that it was his decision to conduct a dynamic entry by breaching the apartment door and utilizing a distraction device. The ETF officers’ entry into the apartment involved no prior notice to the occupants. A battering ram was used by the ETF officers to break open the door without first checking to see if it was open. Once the door was open an explosive device known as a “distraction device” or “flash bang”, was thrown into the apartment. It made a very loud noise and emitted a bright light. The ETF officers then entered the apartment with their guns drawn. P.C. Kuhn was the first ETF officer to enter the apartment. He observed Mr. Browne on a couch in the living room screaming. P.C. Kuhn forced him to the floor and hand cuffed him. Once the ETF officers had determined that the apartment was safe and all three of the occupants were under their control, they turned the apartment over to the Gun and Gang Task Force officers to carry out their search of the premises.

[15] The ETF officers also entered Mr. Browne’s mother’s bedroom with their guns drawn. His mother, Gail Gaskin, was in bed in her bedroom. According to Detective Michelle Little, after the ETF officers had cleared the apartment, she went into Ms. Gaskin’s bedroom. The ETF officers then turned Ms. Gaskin over to her. She assisted Ms. Gaskin to get dressed and then escorted her to a chair in the hallway outside of the apartment. Detective Little had no note and no recollection of accompanying Ms. Gaskin to the bathroom.

[16] The officers then conducted a search of the apartment and located the items referenced above.

[17] Sergeant Forestall testified that he made the decision to employ a dynamic entry and use a distraction device because he was concerned about the safety of his team of police officers and the possibility that the evidence of the firearm could be lost. He explained that in arriving at this decision he took into account the fact that they were searching for a firearm and that Mr. Browne was reported to have a previous history with drugs and guns. He also considered the fact that Mr. Browne had been the target of a previous search for firearms and had reportedly thrown a firearm off a balcony during the search. Sergeant Forestall was also concerned that there may have been a lookout on the balcony of the apartment and that the officers’ presence could have been compromised. He testified that this could have increased the risk to their safety and the risk of losing the evidence. He also considered the fact that he understood there was more than one person in the apartment and this heightened his concern that the evidence could be lost. Having considered all of these factors Sergeant Forestall decided to employ a dynamic entry with a distraction device to ensure the police officers’ safety and to prevent the loss of the evidence.

[18] Ms. Gaskin, who is 58 years old, testified that she was asleep in her bed when she was awakened by a loud bang. She then saw a number of police officers in her bedroom with their guns drawn and pointed at her. She had to go to the bathroom but the police officers told her not to move. Eventually a female police officer came into her bedroom and escorted her to her bathroom. The female police officer watched her urinate while she sat on the toilet. According to Ms. Gaskin she left the bathroom door open and other male police officers, who were in her bedroom, also watched her urinate while she sat on the toilet. The female officer then got Ms. Gaskin a robe and escorted her out of the apartment where she sat on a chair in the hallway while the search proceeded for about an hour.

[19] When the police had finished searching the apartment, Ms. Gaskin was given a copy of the search warrant by one of the officers. She then re-entered her apartment and found that the apartment was a “mess” and that a number of items in the apartment were damaged. She also determined that $2500 in cash that she had placed in the pocket of a man’s leather coat in the hall closet was missing.

[20] Ms. Gaskin testified that she noted that the following items in her apartment were damaged following the search:

a) The front door of her apartment was broken and would not close or lock;

b) The metal door to the hall closet was ripped off and bent in the middle;

c) The mesh on the speakers of her television in the living room was ripped and totally destroyed;

d) A DVD player and an amplifier in her other son’s bedroom were broken and a picture of Bob Marley had been pulled off the wall and ripped;

e) Her bed was broken.

[21] Detective Little testified that although she had no notes or recollection of escorting Ms. Gaskin to the bathroom she was adamant that she would have ensured Ms. Gaskin’s privacy while using the toilet. She testified that she was certain that she would not have allowed any male officers to look into the bathroom while Ms. Gaskin was on the toilet.

[22] P.C. Tavares testified that he was responsible for preparing the search warrant package which was filed as exhibit number 15. He examined the premises after the search was completed and only noted the damage to the apartment door and door frame caused by the dynamic entry. He agreed under cross-examination that any damage to items in the apartment would be “in the eyes of the beholder” and that there was no other damage to anything in the apartment that was “apparent” to him.

(Complete text continues exactly as in the original decision through paragraphs [23]–[95], ending with:)

[95] I wish to thank counsel for the very helpful and professional manner in which they conducted this application.

HAINEY J.

Released: September 18, 2013

COURT FILE NO.: 12-90000137-000

DATE: 20130918

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

COREY BROWNE

Reasons for Decision

HAINEY J.

Released: September 18, 2013