ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17/13
DATE: 2013-09-20

BETWEEN:

HER MAJESTY THE QUEEN

– and –

L.W.

Defendant

Emily Roda, for the Crown
James Miglin, for the Defendant

HEARD: September 20, 2013

REASONS FOR DECISION

CHARTER APPLICATION UNDER SECTION 8

CONLAN J.

Introduction

[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.

[2] The Defence has brought an Application which seeks a finding that Mr. W.’s section 8 Charter right to be free from unreasonable search or seizure was violated by the police. The remedy sought is an Order under subsection 24(2) of the Charter excluding all evidence obtained by the police as a result of the said violation.

[3] In particular, the Defence seeks the exclusion of evidence obtained by the police, alleged child pornography photographs, as a result of a search of Mr. W.’s cell phone.

[4] In summary, the argument by the Defence is that the Warrant to Search was invalid as it was issued on the basis of incomplete and misleading allegations supplied by the police and a formal Information to Obtain that was sworn by a police officer with no personal knowledge of the case and, thus, no reasonable grounds to believe that the Warrant should issue.

[5] In part, the Crown concedes a section 8 Charter violation but argues that the evidence in question ought not to be excluded under subsection 24(2).

[6] This voir dire was conducted in the absence of the Jury on September 19 and 20, 2013. Two police officers testified. There were some Exhibits filed.

Analysis

Section 8 of the Charter

General Principles

[7] The Defence sought leave to cross-examine the two police officers who swore Informations to Obtain the Warrant to Search.

[8] The granting of such leave is in the discretion of the Trial Judge. Leave should be granted where the Court is satisfied on balance that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused that cross-examination will likely elicit evidence tending to discredit the existence of a precondition to the granting of the Warrant, such as the existence of reasonable and probable grounds. R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at page 1465.

[9] Unopposed by the Crown, leave was granted in this case. The Defence cross-examined the two police officers called by the Crown – Officers Einbodin (the officer in charge of the investigation and the affiant of the initial Informations to Obtain) and Bodin (the affiant of the last Information to Obtain which resulted in the Warrant to Search being issued by the Justice of the Peace on 27 November 2012).

[10] The application for a search warrant by the police is a delicate procedure. It is done ex parte and almost always on the basis of written materials alone. Thus, it is critically important that the applicant disclose for the reviewing Justice the material facts in a full and frank manner. Not every minute detail of the investigation needs to be outlined, however, material facts both in support of and adverse to the authorization sought must be disclosed. R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at page 1015.

The Facts

[11] Officer Einbodin’s involvement in this investigation began in August 2012. She interviewed the two young alleged victims and a lady, A.W., the mother of one of the alleged victims and the aunt of the other.

[12] Officer Einbodin suspected that Mr. W. had committed the offence of making child pornography.

[13] The Officer decided to apply for a Warrant to search some personal belongings of Mr. W., including a cell phone, to obtain evidence of the suspected offence.

[14] On November 7, 2012, Officer Einbodin swore an Information to Obtain.

[15] On that same date, the application materials and a draft Warrant were left at the Milton Courthouse for a Justice to review.

[16] On November 14, 2012, after picking up the materials from the Courthouse, the Officer noticed that the Warrant had been signed by a Justice of the Peace but without any execution dates or times.

[17] Consequently, on November 15, 2012, Officer Einbodin swore a new Information to Obtain, with some additional paragraphs to account for what had occurred with regard to the first Warrant.

[18] On that same date, the application materials and a draft Warrant were left at the Milton Courthouse for a Justice to review.

[19] Remarkably, it appears that the said package of materials was lost.

[20] On November 23, 2012, Officer Einbodin prepared yet another package of materials. She cannot recall if she swore a new Information to Obtain or prepared a new draft Warrant to Search.

[21] Because the Officer was about to be off work for several days, she left the package with her supervisor at the Halton Police, Sgt. Newcombe. She marked the package urgent because there was an upcoming Court date of some importance.

[22] On December 6, 2012, Officer Einbodin learned that the Warrant had been issued by a different Justice of the Peace on November 27 and executed the next day. She also discovered that the execution of the search on Mr. W.’s mobile phone resulted in what she believes to be three photographs of child pornography. The young person shown in the photographs is one of the alleged victims of the sexual related offences against Mr. W..

[23] Prior to November 2012, Officer Einbodin had limited experience with search warrants.

[24] Her colleague at Halton Police, Officer Bodin, had even less experience with search warrants. In fact, she had no experience; no knowledge and not even a rudimentary familiarity with search warrants or the process to obtain them.

[25] Officer Bodin also knew absolutely nothing about the investigation.

[26] Yet, for some inexplicable reason, on November 27, 2012, Officer Bodin and another Officer were directed to transport the package that had been prepared by Officer Einbodin to the Milton Courthouse.

[27] This was akin to sending a rookie pilot in to aerial battle.

[28] It may have turned out fine if there were no problems with the materials, but there were.

[29] The Justice of the Peace told Officer Bodin that the Warrant to Search was missing. That was like speaking a foreign language to Officer Bodin, so she contacted Sgt. Newcombe. He told her to print off the document from a computer at the Courthouse.

[30] She did so. She inserted her own name as the person providing the information and reasonable grounds upon which the authorization would be granted.

[31] Largely out of curiosity, she decided to read the Information to Obtain that had been authored by Officer Einbodin.

[32] Officer Bodin then swore a new Information to Obtain face page, in her own name.

[33] She then returned the documentation to the Justice of the Peace. The Warrant to Search was issued on the same day, November 27, 2012.

[34] Afterwards, Officer Bodin, likely exhausted from the ordeal, returned to the police station and gave the documents to Sgt. Newcombe. She heard nothing further about this mess until very recently.

[35] Officer Bodin was candid in acknowledging that she was ignorant of what was transpiring on November 27, 2012. She testified bluntly that she had no idea that, in swearing the Information to Obtain face page, she was attesting at all to some personal knowledge of the investigation or the alleged grounds for the Warrant.

Assessment

[36] It is important for me to remember that this is not a hearing de novo. It is not for me to simply substitute my views for that of the issuing Justice and decide whether, on the same information presented, I would have granted the Warrant. R. v. Gyles, [2005] O.J. No. 5513 (C.A.) at paragraph 10.

[37] In my opinion, the Defence has proven on balance that Mr. W.’s section 8 Charter right was violated by the police.

[38] There are two branches to the analysis.

[39] First, the Warrant to Search issued on 27 November 2012 could not reasonably have been granted based on the information of Officer Bodin. She had no information. She had no reasonable grounds to believe anything about this case.

[40] The search of Mr. W.’s personal property was based on a Warrant that could not reasonably have been granted based on the materials before the issuing Justice as amplified by the evidence before me. Assuming that the Justice of the Peace thought that Officer Bodin had some first-hand knowledge about the case, we know now that the said assumption was completely in error.

[41] I agree with the Defence that what happened at the Courthouse on November 27, 2012 was akin to a Warrant being granted on no sworn information at all. And, as Forestell J. held at paragraph 11 of Her Honour’s decision in R. v. Phoenix Property Development, [1994] O.J. No. 2606, there is no jurisdiction for a Justice to receive unsworn information in support of a search warrant application.

[42] Having found that the Warrant could not reasonably have been granted, I find that the resulting search was presumptively unreasonable. That presumption has not been rebutted.

[43] The Crown was wise to concede a section 8 Charter violation on the basis of the above.

[44] Second, the information before the issuing Justice of the Peace was not full and frank disclosure of the materials facts. It was completely absent of any discussion of the statement to police provided by one of the alleged young victims, S.W.

[45] Officer Einbodin concedes that all of the grounds for the Warrant were based upon information supplied by the alleged young victim, P.E.

[46] But the Officer also acknowledges that there are allegations made to the police by P.E. which, if true, S.W. would surely have witnessed. S.W. did not disclose those things in her statement to the police.

[47] The Officer admitted in her testimony that there are material inconsistencies between what the two young alleged victims told her in their statements, however, the Officer explained that she chose not to include anything about S.W.’s statement in the Information to Obtain because that statement was not relevant to the offence of child pornography and the purpose for the Warrant being applied for.

[48] I accept that was the Officer’s belief at the time and now. I find no bad faith on the part of Officer Einbodin. I do not find that she intentionally misled the reviewing Justice.

[49] The Officer, however, is clearly wrong.

[50] The entire application was based on the credibility of P.E. The fact that P.E. made allegations to the Officer which were materially inconsistent with what S.W. said is very relevant to P.E.’s credibility, regardless of whether the material inconsistencies were with regard to pornography.

[51] Just two specific examples will suffice. Officer Einbodin testified that P.E. disclosed alleged acts committed by Mr. W. against P.E. which were witnessed by S.W. S.W., however, told the Officer that S.W. had never seen anything bad happen to P.E. except for one item. Further, P.E. told the Officer that S.W. was shown photographs of P.E. which were taken on Mr. W.’s phone. But S.W. denied that she had ever seen those photographs.

[52] There was no legitimate reason for Officer Einbodin to have included in the Information to Obtain summaries of the police statements taken from A.W. and P.E. but not from S.W.

[53] That choice, although very likely not intended to mislead anyone, had the probable effect of being materially misleading. At the very least, that choice led to highly relevant information not being presented to the reviewing Justice and an incomplete and slanted picture of the situation. This is precisely the problem that Justice Watt, as His Honour then was, cautioned against in R. v. Land (1990), 1990 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.), referred to at paragraph 51 of the decision of the Court of Appeal for Ontario in R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787.

[54] The question for me is whether, on the record before the issuing Justice as amplified by the evidence on the voir dire, there remains a sufficient basis upon which the issuing Justice could have granted the Warrant: R. v. Nguyen, supra at paragraph 23.

[55] I answer that question in the affirmative. In other words, even if the issuing Justice had known about the information provided to the police by S.W. and had the benefit of the evidence on that point that was adduced before me, the Justice could still have granted the Warrant. The inconsistencies between the statements of P.E. and S.W. were not a bar to the finding of reasonable grounds to issue the authorization.

[56] I, therefore, do not find a breach of Mr. W.’s section 8 Charter right on the second branch of the analysis.

Subsection 24(2) of the Charter

[57] I shall apply the factors set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[58] As to the seriousness of the Charter-infringing state conduct, I disagree with the Crown’s submission that the section 8 Charter infringement which has been conceded by the prosecution was an administrative error and/or technical breach.

[59] A police officer improperly swore an Information to Obtain. The Warrant was based on that improperly sworn Information face page, which in turn was based entirely on the knowledge of another Officer, which in turn formed Appendix C and which contained material non-disclosure.

[60] Although I find no bad faith on the part of any Officer, the unreasonable search of Mr. W.’s personal property under the guise of the invalid Warrant issued on 27 November 2012 amounts to a Charter violation which I would place in the category of moderately serious. This factor weighs in favour of exclusion of the evidence.

[61] I make similar findings that were made by Justice Hill at paragraph 76 of His Honour’s decision in R. v. MacDonald, [2005] O.J. No. 551 – the gaffes and errors in this application for a search warrant were neither merely technical nor minor. And no urgency existed.

[62] It is no answer for the Crown to say that the police already had a Warrant that had been granted earlier. That Warrant was also defective, was issued by a different Justice and was tainted by the same material non-disclosure in the Information to Obtain.

[63] As to the impact of the breach on Mr. W.’s Charter-protected interests, I again disagree with the Crown. Although this is not a search which involves an invasion of bodily integrity or a self-incriminating statement, for instance, the search of one’s personal cell phone is intrusive nonetheless.

[64] In R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, Justice Fish, at paragraphs 2 and 3, outlines the high degree of intrusiveness and invasiveness involved in a police search of one’s personal computer.

[65] In my opinion, similar sentiments apply to a police search of one’s personal smart phone. Smart phones are, essentially, mini-computers. Attached to them is a relatively high expectation of privacy.

[66] It is no answer for the Crown to argue that the impact was less because Mr. W. and the property searched were already in police custody. All that means is that Mr. W. had no ability to challenge the flawed process.

[67] I would characterize this Charter violation as having had a significant impact on Mr. W.’s right to be free from unreasonable search or seizure. This factor weighs in favour of exclusion of the evidence.

[68] As to society’s interest in the adjudication of the case on its merits, even though exclusion of the evidence in question would not eviscerate the Crown’s case against Mr. W. on the child pornography charge (because there remains the evidence of P.E.), the weakening of the case and the seriousness of the offence cause me to conclude that this factor weighs in favour of admission of the evidence.

[69] A final observation is required. I disagree with the Crown’s submission that I cannot consider the second branch of the section 8 analysis discussed above (the material non-disclosure issue) in my assessment of whether the evidence ought to be excluded under subsection 24(2). Such an assertion is contrary to common sense and contrary to the case law which emphasizes that, in the overall balancing exercise required under subsection 24(2), the Court shall consider all of the circumstances of the case: R. v. Sonne, [2012] O.J. No. 1200 (S.C.J. – Spies J.).

[70] It would be contrary to notions of basic fairness for a Court to find inappropriate state conduct which falls short of an actual Charter violation but then ignore that when assessing whether evidence obtained as a result of Charter­-infringing state conduct ought to be excluded under subsection 24(2), especially when, as here, the two issues are strongly interrelated.

[71] In this case, the Defence has proven on balance that admission of the evidence obtained by the police as a result of the search would indeed bring the administration of justice into disrepute.

Conclusion

[72] The Defence Application is allowed.

[73] I find that Mr. W.’s section 8 Charter right to be free from unreasonable search or seizure was violated by the police.

[74] I Order that all evidence obtained by the police as a result of the said violation shall be excluded from the Trial, pursuant to subsection 24(2) of the Charter.

[75] In particular, all evidence obtained by the police as a result of the execution of the Warrant to Search issued on 27 November 2012, including the alleged child pornography photographs found on Mr. W.’s electronic device, shall be excluded from the Trial.

CONLAN J.

Released: September 20, 2013

COURT FILE NO.: 17/13
DATE: 2013-09-20

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

L.W.

Defendant

REASONS FOR decision

Conlan J.

Released: September 20, 2013