ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11171
DATE: 2013/01/31
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DUANE PHILIP LEWIS
P. Rollings, for the Crown
R. Braiden, for the Accused
HEARD: January 14 and 15, 2013
Grace J. (ORALLY)
A. BACKGROUND
[1] On July 25, 2011, a break and enter at the home of Larry Crow at 1109 Sunningdale Road, London, Ontario (the “Sunningdale residence”) was reported to the London Police Service (“LPS”). The list of items reported stolen included a number of firearms. The list was later amended (Exhibit 1) to include a 2004 Yamaha V Max motorcycle vehicle identification number 5110 (last four digits).
[2] As a result of a tip from a confidential informant, police attended a parking lot behind 25 Balfour Place, London, Ontario (the “apartment building”) on August 17, 2011. A Yamaha motorcycle was found under cover.
[3] Following discovery and removal of the motorcycle, the vehicle identification number (“VIN”) was located. Inquiries of the registered owner in Sudbury confirmed that ownership had been transferred to Mr. Crow although formal registration had not taken place. The police had, in fact, recovered the 2004 Yamaha V Max motorcycle shown on Exhibit 1.
[4] Mr. Lewis occupied one of the units in the apartment building. It is alleged that Mr. Lewis was in possession of the motorcycle. In respect of that item, he faces a charge under section 355 (b) of the Criminal Code.
[5] At approximately 12:45 a.m. on August 18, 2011, the LPS obtained a telewarrant allowing them to search Mr. Lewis’ apartment. It was executed later that morning. A safe was found within the apartment, removed and, at the request of the police, opened at Zubick’s, a local scrap metal dealer.
[6] The contents included an Enfield revolver (“handgun”). It was not one of the items reported to have been stolen from the Sunningdale residence. In respect of that item, Mr. Lewis faces charges under sections 91 (3) and 92 (3) of the Criminal Code.
[7] Before trial, Mr. Lewis filed a notice of application. He maintains that the police violated his right to be protected against unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”). He argues that the admission of physical evidence obtained as a result of a Charter non-compliant search would bring the administration of justice into disrepute and should be excluded under section 24 (2).
[8] At trial, Mr. Braiden advised the court that despite its breadth, the application is being pursued only in respect of the search of Mr. Lewis’ apartment and the safe found within it.
B. THE WARRANT
[9] Detective Constable Lee Currah of the LPS prepared an information to obtain a telewarrant of search late in the day on August 17 and into the early morning of August 18, 2011 (the “I.T.O.”).
[10] At approximately 12:20 a.m. on August 18, 2011, the I.T.O. was faxed to Newmarket, Ontario. Shortly afterward, a search warrant was issued pursuant to s. 487.1 of the Criminal Code by Justice of the Peace Dubé.
[11] Finding that it appeared there were reasonable grounds to believe that items reported stolen from the Sunningdale residence were to be found in Mr. Lewis’ apartment, the police were authorized to enter the residence and search for and seize any of the 64 listed items located there (I note in passing that the list appended to the ITO included Nike Solemate shoes which do not appear on trial exhibit 1).
[12] It was during the execution of the warrant a few hours later that police entered a bedroom within the apartment and found a safe containing the handgun.
C. THE APPLICATION
[13] Mr. Braiden argues that the ITO was insufficient.
[14] The application for a telewarrant was made pursuant to section 487.1 (1) of the Criminal Code. In part it provides:
Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant…the peace officer may submit an information on oath by…telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
[15] Section 487.1 (4) of the Criminal Code requires the ITO to contain, among other things: a statement of the indictable offence alleged, the place or premises to be searched, the items alleged to be liable to seizure; and a statement of the peace officer’s grounds for believing those items will be found in the place or premises to be searched.
[16] If the technical requirements are met and the designating justice is satisfied the ITO discloses reasonable grounds in accordance with s. 487 (1) (a), (b) or (c) of the Criminal Code, the telewarrant may issue. (s. 487.1 (5))
[17] The appropriate standard of review was explained by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at 1452 in these terms:
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.
[18] The “narrow jurisdictional compass” within which a trial judge works was further explained by the Ontario Court of Appeal in R. v. Ebanks (2009), 2009 ONCA 851, 97 O.R. (3d) 721 at para. 21 as follows:
The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli at p. 1452. Nor is the review to take on the markings of a trial, where the truth of allegations is explored. As noted by Charron J. in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30, “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” (emphasis in original).
[19] Mr. Braiden’s submissions focused on two aspects of the ITO: first, information attributed to a confidential informant and second, information provided by an occupant of another unit in the apartment building.
[20] With respect to the informant, one paragraph of the ITO was redacted and not shared with Mr. Braiden or this Court.
[21] The sufficiency of the ITO rests on the version introduced at trial as exhibit 4 as amplified by the Crown’s Response to Charter Application which recited paragraph 15 in its entirety notwithstanding the fact it had previously been redacted.
[22] I turn first to the confidential informant.
[23] Mr. Braiden does not dispute that information provided by a confidential informant may justify the issuance of a search warrant. In R. v. Rocha, 2012 ONCA 707, Rosenberg J.A. wrote at para. 16:
The test for sufficiency of an ITO that is based on an informer’s tip is…dependent upon whether the tip is compelling, whether the informer is credible and whether the tip has been confirmed by independent police investigation…Weaknesses in one area may be compensated by strengths in the other two areas.
[24] Mr. Braiden maintains that no reliance could be placed on the informant. The statement that the informant was “proven and reliable” was conclusory with no factual support whatsoever. The tip was not compelling because the six parking spots behind 25 Balfour Place were not assigned to a particular resident. The allegation Mr. Lewis was in possession of the motorcycle was not confirmed by independent police investigation because no surveillance was conducted.
[25] I recognize that the police initiated the search for a stolen motorcycle based on information received from a confidential informant.
[26] I also recognize that additional principles emerge from the cases when dealing with an ITO based on information received from a confidential informant. For example, the underlying circumstances disclosed by the informant must be set forth. Statements which are merely conclusory are insufficient: R. v. Debot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.) at 218-9 aff’d 1989 13 (SCC), [1989] 2 S.C.R. 1140. The results of the search cannot be used after the fact as evidence of the reliability of the information provided by the confidential informant: R. v. Garofoli, supra at 191.
[27] In this case the confidential informant was a source of four pieces of information: the location of the motorcycle; the fact it was stolen, that Mr. Lewis resided at 25 Balfour Pl. and that Mr. Lewis was in possession of the motorcycle.
[28] I deal first with the motorcycle’s location and the fact it was stolen. A motorcycle was found in the parking lot behind 25 Balfour Pl.
[29] In time, its VIN was located, the registered owner contacted, the connection to the owner of the Sunningdale residence established and the fact of its removal without his consent confirmed.
[30] The sequence of events was outlined in the ITO immediately following redacted paragraph 8, in these terms (commencing at p. 12 of 24):
(From London Police report #11-79410) From D/C BROWN’S statement I learned the following: On August 17th, 2011, D/C BROWN received further information from the same confidential and proven source that the above mentioned stolen motorcycle was presently parked behind LEWIS’ residence at 25 Balfour Pl. At 9:00 am, D/C BROWN attended 25 Balfour Pl. and located a motorcycle parked in the parking lot with a tarp over it….
(From London Police report #11-89317) From PC GOULD’S statement, I learned the following: On August 17th, 2011, at 9:42 am, PC GOULD attended the rear parking lot of 25 Balfour Pl. and located a Yamaha V-Max parked at the rear with a cover on it…
(From London Police report #11-79410) From D/C TESTA’S statement I learned the following: On August 17th, 2011, at 12:40 pm, D/C TESTA attended Ross’ Towing to inspect the motorcycle for a VIN number. D/C TESTA located the VIN number…and found it to be…JYA2LTNO74AO35110. A query of this VIN number was conducted…D/C TESTA determined that the current registered owner was a Richard St. George from Sudbury.
(From London Police report #11-79410) From D/C BROWN’S statement I learned the following: On August 17th, 2011, at 4:40 pm, D/C BROWN spoke with Larry CROW. CROW informed D/C BROWN that the motorcycle stolen from his residence as a result of the break-in was in fact a 2004 Yamaha V-Max, black and silver in colour. Larry CROW informed D/C BROWN that he had purchased the motorcycle from Richard St. George in exchange for an ATV….D/C BROWN confirmed that the VIN number on the ownership was an exact match to the VIN number on the motorcycle.
On August 17th, 2011, at 6:15 p.m., Larry CROW attended police headquarters and I spoke to him personally. Larry CROW produced the ownership for a 2004 Yamaha V-Max motorcycle, black in colour. The ownership had been signed over to CROW from the previous owner, Richard St. George.
[31] I pause here to note that the application no longer relates to the motorcycle. In other words, the search for and recovery of this item of Mr. Crow’s property is not alleged to infringe Mr. Lewis’ s. 8 Charter right. Consequently, the extent to which the police acted on information from a confidential informant cannot, to this point, be the subject of complaint.
[32] I turn to Mr. Lewis’ connection to the apartment building, The confidential informant played a role. D-C Currah stated in para. 14 of the ITO (at p. 13 of 24) that:
- On August 17th, 2011, I spoke with D/C BROWN. D/C BROWN advised me that he has information from a proven and reliable source that Duane Lewis resides in apartment #4-25 Balfour Pl.
[33] However, that was not the sole information provided to the justice of the peace. At paragraph 16 of the ITO (p. 13 of 24), D-C Currah said:
- On August 17th, 2011, I conducted a CPIC query of Duane LEWIS. I learned that on May 25th, 2011, Duane LEWIS was released on a recognizance of bail to reside at apartment #4-25 Balfour Pl.
[34] What about Mr. Lewis’ connection to the motorcycle? Mr. Braiden is correct that reliance was again placed on the confidential informant. In the ITO, Detective Constable Currah stated (at p. 16 of 24):
- On August 15th, 2011, D/C BROWN received information from a proven reliable source that Duane LEWIS was in possession of a stolen Yamaha V-Max motorcycle stolen from the break-in at 1109 Sunningdale Rd. W.
[35] However, that was not the only paragraph that addressed the issue.
[36] The ITO contained further information. In paragraph 15 (at page 13 of 24) D-C Currah said in part:
On August 17th, 2011, at approximately 6:00 p.m., I had a conversation with Sgt. MacINNIS who advised that he had been in contact with Brian LITTLE. Brian LITTLE is the superintendant for the apartment building…Brian LITTLE confirmed to Sgt. MacINNIS that Duane LEWIS is the sole tenant for apartment #4. Brian LITTLE...resides in apartment #3 and is very familiar with LEWIS. Brian LITTLE has personally seen Duane LEWIS driving the motorcycle on two separate occasions…
[37] I return to the legal principles I summarized earlier. The ITO did not seek judicial authorization in respect of the motorcycle. The actions of the police in respect of that item were complete and are unchallenged.
[38] As noted earlier, Rocha outlines “[T]he test for sufficiency of an ITO that is based on an informer’s tip”. This ITO was based on more than the tip. It was based on additional investigation by the police and information provided by the occupant of a neighbouring unit – Mr. Little.
[39] That brings me to Mr. Braiden’s submission that the information connecting Mr. Lewis to the motorcycle was too vague.
[40] I recognize that the evidence at trial differed from the evidence contained in the ITO. At trial Mr. Little testified that he had seen Mr. Lewis ride a Yamaha motorcycle – he thought a 750 C.C. – once. Mr. Little was uncertain of the date and gave a range of possibilities that pre and post-dated the break and enter at the Sunningdale residence.
[41] At trial, Police Constable Blair Gould testified. He testified that he spoke to Brian Little Jr. who reported seeing the occupant of unit 4 riding the motorcycle twice in the previous two weeks. At trial Constable Gould said that person’s name was Duane Warren. Mr. Braiden pointed out that during the preliminary hearing Constable Gould had referred to “a” motorcycle rather than “the” motorcycle. Constable Gould addressed that point in his trial evidence.
[42] I do not read the words “as amplified on the review” in Garofoli as ones permitting the reviewing judge to substitute trial evidence for that appearing in the ITO absent “the existence of fraud, non-disclosure, misleading evidence” or similar finding. In fairness, I did not hear Mr. Braiden make a contrary submission. The information in the ITO concerning Mr. Little was attributed to Sgt. MacInnis. That police officer did not testify.
[43] Mr. Braiden points out that the ITO does not say when Mr. Lewis was seen on the motorcycle. With respect, if he was seen on “the” motorcycle – as the ITO says – it must have been after July 25, 2011 when it was taken by someone from the Sunningdale residence.
[44] With respect, the issuance of the warrant in relation to Mr. Lewis’ apartment was not based on insufficient information. D-C Currah did not rely wholly or even principally on the confidential informant. That source was admittedly the reason a police officer entered the parking lot behind 25 Balfour Pl. in the first place but the ITO demonstrated the extent of the subsequent efforts to independently investigate and verify the information provided by that person. That investigation supported the justice of the peace’s conclusion that the requirements of s. 487.1 (5) of the Criminal Code were satisfied.
[45] The telewarrant allowed the police to enter and search Mr. Lewis’ private residence. Mr. Braiden submits that a safe – by its nature – can be assumed to contain items that are so private that a search of its contents should not occur until a 2nd warrant is obtained.
[46] He concedes that he has been unable to locate any case directly on point but submits R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481 (C.A.) is analogous.
[47] I disagree. The telewarrant to search authorized the police to search for and seize any of the 64 listed items located there. The list included items which were large and small. Smaller pieces included items of jewelry, 2 silver bars and keys.
[48] Absent authority, it is my view that a safe is no different than any other locked item – a room, a closet, a cabinet or drawer. Locking an item may – but does not necessarily – suggest a desire for privacy. It may simply suggest a concern for safety or security: R. v. Rochwell, 2012 ONSC 5594 (S.C.J.)
[49] Furthermore, the search of the safe was clearly incident to and for the same purpose as the search of the apartment itself. Additional judicial authorization was not required.
[50] Even if I had concluded Mr. Lewis’ s. 8 rights were breached I would not have excluded the firearm under s. 24 (2) of the Charter.
[51] Counsel made helpful submissions on the three part test outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. An unlawful search of a residence and a safe found within it is, of course, a serious breach of the rights conferred by s. 8 of the Charter and presumptively unreasonable. I also accept that the impact of the breach is significant.
[52] However, I note the following:
a. D-C Currah did not act on mere suspicion. A number of investigative steps were taken to verify the information provided by the confidential informant;
b. The police did not act without seeking judicial authorization;
c. I have seen nothing which suggests the search was conducted unreasonably.
[53] With respect to society’s interest in the adjudication of the case on the merits, I note:
a. The firearm that was seized constitutes non-conscriptive, real evidence that is highly probative;
b. The admission of the evidence is essential to the prosecution.
[54] In R. v. Blake, 2010 ONCA 1, Doherty J.A. wrote at para 25:
Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so. The police, and later the Crown, were obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making the material available to the defence. They did that. Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police conduct in this case does not fit anywhere on the misconduct continuum described in Grant…
[55] And later in the context of the weighing of the three factors articulated in Grant, Doherty J.A. added at paras. 32-33:
How does one balance these directly conflicting assessments? Without diminishing the important negative impact on the appellant’s legitimate privacy interests occasioned by the unreasonable search, I find compelling the argument that the exclusion of reliable crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.
Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant.
[56] Those statements apply here.
[57] For the reasons given, I have concluded that the evidence obtained as a result of the execution of the telewarrant is admissible. The application is dismissed.
Justice A.D. Grace
Justice A.D. Grace
Released: January 31, 2013
COURT FILE NO.: 11171
DATE: 2013/01/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DUANE PHILIP LEWIS
P. Rollings, for the Crown
R. Braiden, for the Accused
Released: January 31, 2013