CITATION: R. v. Martin, 2013 ONSC 6065
COURT FILE NO.: CR-12-1935
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Charles Waite, for the respondent
Respondent
- and -
JASON MARTIN
Mitchell Chernovsky, for the applicant
Applicant
HEARD: September 23, 24 25, 26, 2013 at Brampton
REASONS FOR JUDGMENT
Skarica J.
OVERVIEW
[1] The accused, Jason Martin, brings a Garafoli application to set aside a search warrant and further, for a declaration that evidence derived pursuant to the invalid warrant should be excluded at trial due to violations of section 8 of the Canadian Charter of Rights.
FACTS
[2] The basic facts are set out in the applicant’s statement of the case which is generally accepted as correct by the respondent Crown.
[3] On November 2, 2010, C.F., a 15 year old boy, was stabbed four times in the course of a street robbery (C.F. robbery) involving three black males. Police investigation pointed to the identity of a young person, KB, as a viable suspect and likely the main participant in the robbery. KB was picked out of a photo lineup by a confidential informant, CHS#1.
[4] On November 7, 2010, Santokh Mann, a 68 year old man, sustained two stab wounds in the course of a similar robbery (Mann robbery) by four black young males. The police determined, reasonably, there was a strong likelihood that the same culprits were responsible for both robberies.
[5] In the Information to Obtain (ITO), Mr. Mann is quoted as describing the four suspects as follows:
~ Male, black, 14-16 years of age, wearing all black clothing with a black hooded sweater pulled up over his head
~ Male, black, 14-16 years of age, wearing all black clothing with a hooded sweater pulled over his head
~ Male, black, 14-16 years of age, wearing all black clothing with a hooded sweater pulled over his head
~ Male, black, 14-16 years of age, wearing all black clothing, no hooded sweater, with short black hair
[6] The ITO indicates that the officers requested copies of videotapes taken from 7405 Goreway Drive which is the area that the suspects fled to after the Mann robbery. The ITO indicates that the videotapes were reviewed on November 8 by Constable King. Four suspects were seen running through the video surveillance. The first was male, dark pants, dark hooded sweatshirt, white running shoes with the tongue of the shoe sticking out of his pants. The second was male, dark coloured coat, white t-shirt visible underneath the coat and dark jeans. The third male wore a light coloured hooded sweatshirt or jacket, dark pants, and white running shoes. The fourth male was wearing dark clothing.
[7] The applicant in its statement of facts states that none of the males in the videotape can be described as light skinned. The respondent Crown states, in its review of the facts, that the quality of the video did not allow for the identification of skin colour of any of the persons seen on the video. None of this information is included in the ITO.
[8] On November 5, 2010, the confidential informant, CHS #1, indicated that KB, during the C.F. robbery, was wearing a black and red reversible jacket, dark blue jeans, white and grey checkered “Vans” shoes with no laces. This information appears at paragraph 8 (c) of the ITO. Paragraph 16 of the ITO indicates that KB was arrested at Lincoln Alexander Secondary School and was observed to be wearing the white and grey checkered “Vans” shoes with no laces, outlined in paragraph 8 (c).
[9] On November 5, 2010, the same confidential informant, CHS #1, indicated that the other suspect, a light skinned male –wearing a black jacket with grey sleeves during the C.F. robbery, stole the victims IPOD. This information appears at paragraph 8 (d) of the ITO. Paragraph 17 and 21 of the ITO, indicate that the accused/applicant Jason Martin was arrested at Lincoln Alexander Secondary School and was observed to be wearing the grey sweater with black sleeves outlined in paragraph 8 (d). However paragraph 8 (d) describes a black jacket with grey sleeves and not a grey sweater with black sleeves. In my opinion, a black jacket with grey sleeves is not equal to a grey sweater with black sleeves. The only reasonable conclusion is that Mr. Martin was not wearing, at the time of his arrest, the clothing of the light skinned black male who stole the IPOD during the C.F. robbery. Further, it should be noted that the police did not include in the ITO, the description of the clothing of the light skinned black male by Anthony Croft (light skinned male wearing a black hoodie with a red Jordan symbol on the back) or by the victim C.F. (light skinned male wearing a brown jacket with a height of 5’10” or “bigger” and a build bigger than the medium built stabber).
[10] At paragraph 9 of the ITO, it is indicated, “Martin fits the physical description of the suspects provided by the victim (Mann) listed in paragraph 5 (of the ITO) although he is 19 years old, he is approximately 5’5” and appears much younger than his actual age.” Exhibit #3 was filed at these proceedings and is the record sheet of the accused’s arrest. It lists the accused at 19 years of age, 5’9” with a thin build (140 lb.) and medium complexion.
[11] My view of the accused from Exhibit 4 (a) – a video of the accused’s police interview on November 9, 2010 – shows a young man who looks 19 years of age and does not look anything like a youth of 14-16 years of age. In totality, therefore Mr. Martin does not fit the generic description of the 4 suspects provided by Mr. Mann listed at paragraph 5 of the ITO. Constable Davis was in an easy position to verify all of these details by simply looking at the arrest sheet and/or walking down the hallway to personally observe the accused who was being interviewed by Officer Woolley during the afternoon of November 9, 2010 (the same day as the preparation of the warrant). However, Constable Davis chose not to avail himself of these easily accessible sources of information and relied instead on second and third hand sources of knowledge which were clearly inaccurate.
[12] On November 8, 2010, a photo lineup was shown to Santokh Mann who was still in the hospital.
[13] The reference to the photo line-up and results are included at paragraphs 12-14 of the ITO. The ITO indicates that two line-ups were created with Jason Martin as a potential suspect in one line-up and KB as the potential suspect in the other line-up. Constable Ryce and Constable Ajula attended at Sunnybrook Hospital to administer the two photo line-ups to the victim. Paragraph 14 of the ITO indicates that the victim viewed the Jason Martin line-up and identified Martin as “the one that hit me with the knife, it could have been a knife or something else.” The ITO indicates that due to the victim’s medical condition, he was unable to view the KB photo lineup. This is all of the information supplied by the ITO regarding the photo lineup administered by the police on the victim Mr. Mann at the hospital.
[14] The photo line-up itself and the evidence of Constable Ajula (Exhibit 6) paint a disturbingly different picture than what is presented in the ITO. Constable Ajula testified that he was dispatched to administer two photo line-ups where one suspect was in one line-up and the other suspect was included in the other line-up. Constable Ajula admitted that he didn’t actually make notes of the line-up other than a reference to the fact that he did it. He did not record the line-up procedure at all. There was neither a videotape nor audio done of the line-up. There was no one else with the officer when the line-up was administered.
[15] The photo line-up was entered in as Exhibit #2 in these proceedings. None of the ten boxes on the photo line-up instruction sheet are checked off, as required. There is a note above the boxes which says, “Male unable to sign/initial. Difficult for him to move his hand.” The victim was unable to sign under the signature section confirming his understanding of the line-up procedure. The officer agreed that the victim was in distress and “he was in obvious pain.” The officer testified that the victim “did make an attempt to sign.” Regarding the second line-up, the victim started to look at it but then stated, “my head is spinning” and the victim stated that his eyes hurt and he needed more time and the victim didn’t look at the second line-up at all.
[16] Regarding the first line-up, the victim picked out the accused and stated, “This is the one that hit me with the knife. It could have been a knife or something else.” He was unable to sign on the signature section. The victim looked at photo #2 and stated, “He was there”. Again the victim was unable to sign. Regarding photo #3, the victim stated, “He may have been in the group”. The victim was unable to sign. Regarding photo #4, the victim stated that he recognized this person. The victim was unable to sign. Regarding photo #5, the victim stated that, “He was there. Not #3”. The victim was unable to sign. I agree with the defence submission that photo #5 and photo #3 are clearly two different people. The victim was unable to recognize photos #6 to #12 and again was unable to sign. Officer Ajula testified that the victim did identify 4 people who were at the scene from the one photo line-up. Officer Ajula testified that he had never seen that before. Officer Ajula further testified, “I don’t know if it is odd but it’s unusual that they had considered or identified four people” and “it’s very rare but he did say that he recognized those four people”. The officer dropped off the photo line-up at midnight at the station on November 8. Officer Ajula testified he gave thought to telling the liaising officers about problems with the line-up but he didn’t see them and has no note of ever telling them.
[17] Officer Justin Davis, the affiant, testified that he did not speak to Officer Ajula. He reviewed the photo line-up and testified that he should have disclosed “this” to the authorizing justice. Without a video tape or audio tape or speaking to Officer Ajula, Officer Davis was unable to know if the victim’s identifications were hesitant or immediate, tentative or certain.
[18] None of the information detailed in paragraphs 14 to 17 above, is mentioned in the ITO.
LAW
THE TEST UPON REVIEW
[19] The test upon review is set out in R. v. Garofoli (1990) C.C.C. (3d) 161, 1990 52 (SCC), [1990] S.C.J. No. 115 (S.C.C.) as follows at paragraphs 53-56:
53 In Hunter v. Southam, supra, this Court set out the basic requirements with respect to prior authorizations. In Duarte, supra, this Court decided that s. 178.13(1)(a) complies with these standards, and that before granting an authorization, a judge must be satisfied by affidavit that there are reasonable and probable grounds to believe that:
(a) a specified crime has been or is being committed; and,
(b) the interception of the private communication in question will afford evidence of the crime.
54 To arrive at the conclusion that the search is authorized by law, the reviewing judge must therefore conclude that these conditions were complied with. If he concludes that they were not, then the search is not authorized by law and is unlawful. Consequently, in order to discharge the duty cast upon the reviewing judge to determine whether there has been a breach of s. 8, he or she must determine whether the Code provisions have been satisfied. This is the inevitable result of the statutory conditions being identical to the requirements of s. 8. Whereas Wilson precluded a review of the authorizing judge's decision that the statutory conditions had been complied with, unless some ground such as fraud or new evidence was established, the application of s. 8 requires review as a step in determining the reasonableness of the search and seizure.
55 While a judge exercising this relatively new power need not comply with the Wilson criteria, he should not review the authorization de novo. The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119:
If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.
56 The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[20] The reviewing judge must determine if there is information that may reasonably be believed on the basis of which the authorization could have issued. Regarding the requirement of “sufficiently reliable information”, the Supreme Court of Canada indicated, in R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), 2000 S.C.J. No. 65, at paragraph 51:
51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [Emphasis added.]
As I noted as a judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even a basis that is schematic in nature may suffice. However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098, the requirement was described as "sufficient reliable information to support an authorization" (emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.
[21] Information that is inaccurate or material non-disclosure will not necessarily vitiate the search warrant. As stated in R. v. Pires and Lising, (2005) 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.), [2005] S.C.J. No. 67, at paras. 29 - 30:
29 At trial, the guilt or innocence of the accused is at stake. The Crown bears the burden of proving its case beyond a reasonable doubt. In that context, the right to cross-examine witnesses called by the Crown "without significant and unwarranted constraint" becomes an important component of the right to make full answer and defence: R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5, at para. 41. If, through cross-examination, the defence can raise a reasonable doubt in respect of any of the essential elements of the offence, the accused is entitled to an acquittal. Likewise, defence evidence, as a general rule, is only subject to exclusion where the prejudicial effect substantially outweighs its probative value: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at p. 611. The appellants rely heavily on these principles in support of their contention that they have a constitutional right to cross-examine the affiant who filed in support of the wiretap authorization.
30 However, the Garofoli review hearing is not intended to test the merits of any of the Crown's allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order. (I say "relevant" evidence because, if not relevant, its inadmissibility is easily determined without the need to review the authorization process.) As indicated earlier, the statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance. The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. For example, in this case, where the authorization relates to participant or consent surveillance, the reviewing judge must determine [page362] whether there was a basis for the authorizing judge to be satisfied that:
(a) there are reasonable grounds to believe that an offence has been or will be committed;
(b) either the originator or the intended recipient of the private communication has consented to the interception; and
(c) there are reasonable grounds to believe that information concerning the offence will be obtained by the interception.
Hence, there is a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization.
[22] Ultimately, in reviewing the sufficiency of the warrant, the test is whether there is at least some reliable evidence that might reasonably be believed on the basis of which the authorization could have issued – see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.) at paragraph 40 and R. v. Morgan [2012] O.J. No. 110 (C.A.) at paragraph 25. The Supreme Court in Morelli outlines the test as follows:
40 In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have [page272] issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[22] Justice Dilks in R. v. Lang, [1997] O.J. No. 2658 summarizes the function of the reviewing judge as follows:
5 The application is brought to determine whether there are set out in the supporting affidavit reasonable and probable grounds to believe that a specified crime was or is being committed, and that the interception of the private communications in question will afford evidence of the crime. (R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 at 187.)
6 The function of the reviewing judge is not to entertain the application for authorization de novo (idem at 187) or to substitute his or her view for that of the authorizing judge (idem at 188). The reviewing judge is to determine, upon the material before the authorizing judge, as amplified on review, whether the authorizing judge could have granted the authorization. If the conclusion is in the affirmative then the reviewing judge should not interfere (idem at 188). The reviewing judge should not set aside the authorization unless he or she is satisfied on the whole of the material that there was no basis for the authorization (idem at 189).
7 Applying that test to the application at hand, in order to succeed the applicants must prove on a balance of probabilities that on the whole of the material before Smith J. there was no evidence of probable cause and investigative necessity upon which she could have granted the authorization.
8 The applicants must successfully surmount three hurdles:
They must establish that the supporting affidavit contains (i) fraud or reckless disregard for the truth (ii) material non disclosure (iii) misleading disclosure, or (iv) a statement of facts which new evidence shows is different from the actual facts.
They must show that the error is material, in the sense that it involves a matter of such importance as to be likely to influence the issues of probable cause and investigative necessity, or likely to alter the character of the supporting affidavit.
They must prove on a balance of probabilities that the authorization relied on one or more of these errors. If it is more probable that the authorization would have been granted with full knowledge of the errors then the application fails.
9 Errors in the application material, although advertent or even fraudulent, do not necessarily vitiate the authorization. They are only factors to be considered in deciding whether there continues to be any basis for the decision of the authorizing judge.
LEGAL OBLIGATION OF AFFIANT IN ITO
[23] The affiant in an ITO must provide full, frank and fair disclosure of all material facts. The standard of disclosure in the ITO is set out by the Supreme Court of Canada in R. v. Araujo, supra, as follows:
46 Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order to seek permission to use wiretapping? The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts: cf. Dalglish v. Jarvie (1850), 2 Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners, [1917] 1 K.B. 486 (C.A.); Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 528; United States of America v. Friedland, [1996] O.J. No. 4399 (QL) (Gen. Div.), at paras. 26-29, per Sharpe J. So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need include every minute detail of the police investigation over a number of months and even of years.
47 A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it. There is nothing wrong -- and much right -- with an affidavit that sets out the facts truthfully, fully, and plainly. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.
48 Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers. This would strengthen the material by making it more reliable. In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants.
AMPLIFICATION
[24] Reviewing courts are entitled to resort to amplification evidence to correct minor errors. The focus at all times is on the information available to the police at the time of the application rather than information that the police acquired after the original application was made. The law regarding amplification is reviewed by the Supreme Court of Canada in R. v. Morelli, supra, as follows:
41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
42 It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59).
43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors (para. 59). In all cases, the focus is on "the [page273] information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59).
EXCISION
[25] The reviewing judge is required to set aside information that is misleading or incorrect and then determine if there is sufficiently independently verifiable information that was not affected by the errors and upon which the an authorization could reasonably be based. In R. v. Araujo, supra, the Supreme Court of Canada outlined the role of excision as follows at paragraphs 57 and 58:
57 In Bisson, supra, at p. 1098, our Court gave very short reasons but also affirmed the reasons of Proulx J.A. in the Quebec Court of Appeal, 1994 5328 (QC CA), [1994] R.J.Q. 308, 87 C.C.C. (3d) 440. In his judgment, Proulx J.A. was clear that a court must look at non-disclosure of any material fact [TRANSLATION] "with respect to the affidavit considered as a whole, or even with respect to the remaining parts of it" (p. 455 C.C.C.). He quoted at p. 457 C.C.C. from the Ontario Court of Appeal in Church of Scientology, supra, at pp. 528-29: "[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue" (emphasis added) also affirmed in Morris, supra, at p. 558. Again, erroneous information is properly excised. In Bisson, supra, of course, the recanted information obviously had to be excised entirely and the remaining information then assessed in the totality of the circumstances. Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, amplification may be in order. Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.
58 Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.
APPLICATION OF LAW
EXCISION
[26] As outlined in greater detail in paragraph 9 of this judgment, paragraphs 17 and 21 of the ITO conclude that the accused was arrested “wearing the gray sweater with black sleeves, outlined in paragraph (8) (d)”. This is an error as paragraph (8) (d) of the ITO refers to a black jacket with grey sleeves. I would excise this erroneous conclusion from the ITO. I note that this erroneous material was before the authorizing justice without any need for further evidence as adduced at this voir dire.
[27] As outlined in greater detail in paragraphs 10 and 11 of this judgment, the conclusion reached in paragraph 9 of the ITO that, “Martin fits the physical description of the suspects provided by the victim listed in paragraph 5, although he is 19 years old, he is approximately 5’5” and appears much younger than his actual age.”, is inaccurate and I excise this conclusion from the ITO. The failure of the affiant to simply walk down the hallway and view the accused in order to satisfy himself first hand regarding Martin’s actual physical appearance contributed to this error. This is a classic illustration of the advice given in the Araujo case at paragraph 48 that attempts should be made to obtain the best firsthand knowledge where possible.
[28] Paragraph 9 of the ITO also indicates that the accused is a known associate of KB and that Jason Martin had recently moved to the Mississauga area. At paragraph 7 of the ITO a witness to the November 2 C.F. robbery, Anthony Croft, indicated that KB was with two unidentified suspects from “out of town” and are unknown to him despite the fact that he was born and raised in Malton. Croft stated that these three suspects followed the victim and Croft left and had no further contact with the involved parties. Assuming that all of this is reliable evidence, it could not, standing alone, provide a basis upon which a warrant could issue. Both counsel, I believe, have conceded this conclusion.
[29] Accordingly, the only remaining evidence that could possibly provide a basis upon which a warrant could issue is the evidence of the photo line-up administered to the victim Santokh Mann. Accordingly, I agree with the defence submission that the Santokh Mann photo line-up administered to Mr. Mann in the hospital on November 8 is the critical piece of evidence which supports the warrant.
[30] As reviewed in detail in paragraphs 12 to 18 of this judgment, the picture painted in the ITO is dramatically different from what actually occurred. There was material non-disclosure of the extent of the distress that Mr. Mann was undergoing at the time; there was material non-disclosure of the fact that Mr. Mann picked a total of 4 suspects out of the line-up and that at the time of the photo line-up presentation, the accused was the only suspect included in the photo lineup. There was no disclosure of Officer Ajula’s concerns that there were problems with the line-up and there was no disclosure of Officer Ajula’s concerns that it was very unusual and rare that four people would be identified. Officer Ajula never voiced these concerns to the affiant. The affiant was however aware of the contents of the photo lineup. He admitted that he should have put in the details of the four people that were identified in the line-up in the warrant but did not provide any adequate reason for the omission of these important details. There was non-disclosure of the fact that the line-up was not videotaped or audio taped as recommended by the Sophonow Inquiry recommendations – see R. v. Alves, [2009] O.J. No. 3864 (C.A.) at paragraph 11. However, it should be pointed out that violating the Sophonow Inquiry recommendations are not fatal to the admissibility of the photo line-up results. In R. v. Pelletier, 2012 ONCA 566, [2012] O.J. No. 4061 (C.A.), the Ontario Court of Appeal held, at paragraph 94:
94 Fifth, the recommendations of the Sophonow Inquiry about the manner in which photo line-ups should be conducted are persuasive tools to avoid wrongful convictions arising from faulty eyewitness identification, but they are neither conditions precedent to the admissibility of eyewitness testimony nor binding legal dictates for the assignment of weight: R. v. Goulart-Nelson, [2004] O.J. 4010 (C.A.), at para. 11; R. v. Grant, 2005 ABCA 222, (2005), 198 C.C.C. (3d) 376, at para. 6; and R. v. Doyle, 2007 BCCA 587, at paras. 12-13.
See also similar comments in R. v. Yigsaw, 2013 ONCA 547, [2013] O.J. No. 4091 (C.A.) at paragraph 41.
[31] The ITO for Mr. KB and Mr. Martin were prepared by Officer Davis on November 8 and 9. The two ITOs and draft warrants were faxed to the justice of the peace initially at 5:28 p.m. on November 9, 2010. KB’s warrant was authorized at 5:48 p.m. and Mr. Martin’s warrant was authorized at 6:04 p.m. These times are important because Mr. Martin was being interviewed in the same police station where Officer Davis was preparing the warrants – see Exhibit 4B filed in these proceedings. Further, the accused at 1:31 p.m. on November 9, 2010, provided to Officer Woolley a detailed alibi as to where he was during the time of the Mann robbery. The accused stated that he was at the movies with his step dad, step sister and cousin at Yorkdale. At about 1:55 p.m., the accused invited the police to phone his family “right now” on any of the phones. The accused indicated that the police would see him on the video cameras at the Yorkdale theaters. The police took no steps to confirm the alibi at that time.
[32] More egregiously, however, the evidence adduced before me was that Officer Woolley did not inform Officer Davis of this alibi at that time and Officer Davis made no effort to walk down the hallway to seek out any developments regarding the accused’s interview. Accordingly, Officer Davis was not aware of the alibi when he faxed out the ITO. Officer Davis conceded in evidence that he should have included the alibi in the ITO but he did not because he was not aware of it.
[33] I was informed in submissions that the police did not investigate or charge any of the other three suspects identified by Mr. Mann in the photo line-up due to events that occurred after the issuance of the warrant that exonerated all four of the identified suspects including the accused. In other words, Mr. Mann, an apparently honest person, made four positive and mistaken identifications, an event that is not a rare occurrence in Canadian legal history. However, this is information that I must not consider in assessing the validity of the warrant. As indicated in R. v. Morelli, supra, at paragraph 43, the focus is on the information available to the police at the time of the application rather than information acquired after the original application was made.
[43] What is the information available to the police at the time of the application? Mr. Mann had provided a generic description of the four attackers which included a description (see paragraph 5 of the ITO) that the four attackers were all black and 14 to 16 years old. At paragraph 9, the police included inaccurate information that the accused is 19 but looks younger (not true, in my opinion) and that he is approximately 5’5’’ (the arrest sheet in their possession stated he was 5’9”). Using this inaccurate information, the police concluded that Martin fits the physical description when in fact, the true details in their possession indicated that the accused does NOT match the generic description provided by Mr. Mann. The police prepared a photo line-up which contains one suspect – Mr. Martin – and showed it to Mr. Mann. They did not video tape or audio tape the procedure and there is no evidence available as to how certain and immediate Mr. Mann’s identifications were. Mr. Mann, in addition, is in pain and distress to the point where he can’t sign anything. He does not have the strength to view a second line-up. Mr. Mann picks out three other people as being there who are not suspects by the police and presumably there is no evidence at all that they are involved. I note that after the line-up, the police continue on with the ITOs involving Jason Martin and KB (who was not identified by Mr. Mann but the police continue to investigate him, even though they had their four identifications by Mr. Mann of the four suspects) but do nothing to investigate the other three “suspects” picked out by Mr. Mann in the line-up including Jason Martin’s photo. The fact that no ITO and no investigation is pursued against the three other “suspects” leads to a fair inference that the police did not take the three identifications not involving the accused and KB seriously. Further, the accused provided a full detailed alibi that the police did not investigate (one phone call that afternoon to one of the involved family members had the potential to either confirm or refute the alibi). In the totality, are these four identifications by Mr. Mann in the hospital reliable evidence which might reasonably be believed? I infer that the police, by their conduct, considered three of the identifications (identifications of photos #2 - #5) as not reliable evidence but chose to rely on the identification of the accused only. However, how could one pick the identification of the accused as reliable evidence which might reasonably be believed in these circumstances, particularly when the other evidence establishes that the accused does not match the physical description given earlier by Mr. Mann and that Mr. Martin has provided a detailed alibi which has not been refuted at any time (even though it would take minimal effort to place a phone call to the family while the accused is in custody)?
[44] Accordingly, I conclude that the totality of the identification evidence by Mr. Mann in the photo line-up is not reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. Unlike the situation in R. v. Morgan, supra, the ITO here, when stripped of the materially inaccurate and incomplete information, does not provide sufficient reliable information in the totality of the circumstances to satisfy the test as set out in Araujo, supra, at paragraphs 51 and 54. The warrant should not have issued and the accused’s section 8 Charter rights were violated by the subsequent search.
CHARTER OF RIGHTS - SECTION 24 (2)
[45] I am bound to apply the test as set out by the Supreme Court of Canada in R. v. Grant as summarized by the Supreme Court in R. v. Morelli, supra at paragraph 98:
98 To determine whether the evidence obtained as a result of the illegal search should be excluded [page288] under s. 24(2), we are bound to apply the test recently set out in Grant, at para. 71:
[U]nder 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.
- SERIOUSNESS OF THE BREACH
[46] Regarding the first branch of the Grant test, many of the considerations present in Morelli are present here. The Supreme Court in Morelli stated at paragraphs 99 to 103:
99 First, the Charter-infringing state conduct in this case was the search of the accused's home and the seizure of his personal computer, his wife's laptop computer, several videotapes, and other items. The search and seizure were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officers who believed they were acting under lawful authority. The executing officers did not wilfully or even negligently breach the Charter. These considerations favour admission of the evidence. To that extent, the search and seizure cannot be characterized as particularly egregious.
100 The opposite is true on considering the ITO upon which the warrant was obtained. The officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. At best, the ITO was improvidently and carelessly drafted. Not only did the ITO fail to specify the correct offence (accessing rather than possession of child pornography); it was also drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds. While [page289] the trial judge found no deliberate attempt to mislead, no attesting officer, acting reasonably, could have failed to appreciate that repeated references to "'Lolita Porn' on the screen" and to the deletion of "all the child porn off the computer" would cause most readers -- and, more particularly, the issuing justice -- to believe there was evidence that child pornography was actually viewed on-screen by the witness Hounjet.
101 Similarly, the officer should have known -- if he in fact did not -- that the immediate juxtaposition of these misleading statements and the incomplete description of the "web-cam pointing towards toys" would be unjustifiably inflammatory.
102 The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
103 We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers.
[47] Many of these factors are present in this case. The intrusion was in the accused’s private home and also allowed for a search of his school locker. I find as well, there was no deliberate misconduct by the officer who swore the affidavit. However, the affiant did not act with diligence. He did not walk down the hallway to view the accused and satisfy himself as to the accuracy of the second and third hand information provided to him. The errors in paragraphs 17 and 21 of the ITO were glaring and clearly refuted by paragraph 8 (d) of the ITO. Through a lack of diligence, the police did not provide the justice of the peace with details of the accused’s alibi. The affiant himself admitted that, with respect to the Mann photo line-up and the accused’s alibi, the officer should have included this material. The affiant has no adequate explanation as to why he failed to make the full, frank and fair disclosure that the law requires of him and his force. In the totality of the circumstances, the police conduct here is unacceptable and would erode the repute of the administration of justice.
- IMPACT OF THE BREACH ON THE CHARTER PROTECTED INTERESTS OF THE ACCUSED
[48] The courts have consistently held that an illegal search of a person’s home is a serious breach of the accused’s rights under section 8. Further the warrant also allowed for a search of the accused’s locker at school which again would have dramatic negative impacts upon the accused (a young man of 19) in the school community. In totality, this section 8 breach has a great impact on the Charter protected privacy rights of Mr. Martin.
- SOCIETY’S INTEREST IN AN ADJUDICATION ON THE MERITS
[49] The accused is charged with ammunition and drug offences including possession of heroin for the purpose of trafficking. These are serious charges. Further, I am advised that if the results of the search were excluded, the Crown would be left with essentially no case. Again the comments of the Supreme Court of Canada in Morelli at paragraphs 107 - 112 are appropriate to the circumstances in the present case:
107 I turn, finally, to the third factor to be weighed under s. 24(2) of the Charter -- society's interest in adjudication of the case on its merits. Here, exclusion of the evidence obtained in the search would leave the prosecution with essentially no case against the accused. It would thus seriously undermine the truth-seeking function of the trial, [page291] a factor that weighs against exclusion (Grant, at paras. 79-83).
108 In balancing these considerations, we are required by Grant to bear in mind the long-term and prospective repute of the administration of justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.
109 In my view, the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued.
110 Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.
111 The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.
112 I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.
[50] In Morelli, a home and computer were illegally entered; in this case a home and a locked safe were entered. These items are almost on a par in terms of privacy interests. Accordingly, in the result, I have come to the conclusion that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.
[51] I would, therefore, exclude any evidence that was obtained by the police in the execution of the search warrant that was issued to the police on November 9, 2010.
Skarica J.
Released: September 26, 2013