Court File and Parties
COURT FILE NO.: CR13300002610000
DATE: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NIKKO BASSOO-NARINE
Defendant/Applicant
Counsel:
Joseph Hanna, for the Respondent, Crown
David Bayliss, for the Defendant, Applicant
HEARD: November 18 and 19, 2013
REASONS FOR DECISION UNDER SECTION 24(2) OF THE CHARTER
hainey j.:
Overview
[1] Nikko Bassoo-Narine is charged with the following offences:
Unlawful possession of a loaded firearm;
Unlawful possession of a prohibited firearm;
Being an occupant of a motor vehicle in which he knew there was a firearm; and
Possession of a firearm while he was prohibited from doing so because of an order under the Youth Criminal Justice Act.
[2] Mr. Bassoo-Narine applied for an order pursuant to sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms excluding all evidence seized by the police as a result of violations of his rights.
[3] I ruled that Mr. Bassoo-Narine’s rights under section 9 of the Charter had been violated. It was also conceded by Crown counsel that his rights under section 8 of the Charter were violated when a search of his residence was conducted after he had been arrested.
[4] Following my ruling I heard evidence from D.C. Kimberley Harris and submissions from counsel on whether the evidence seized by the police should be excluded pursuant to section 24(2) of the Charter. I ruled that the evidence should not be excluded. I indicated that I would provide written reasons for my decision later. These are my reasons for decision.
[5] In my reasons for decision with respect to the alleged breaches under sections 8 and 9 of the Charter I reviewed the evidence on the application in detail. I do not intend to repeat it other than to refer to the evidence that is relevant to the section 24(2) analysis under the Charter.
[6] All charges relate to events that are alleged to have occurred on August 5, 2012 when Mr. Bassoo-Narine was a passenger in the front seat of a car that was parked in a parking lot.
[7] At the time, Mr. Bassoo-Narine was under police surveillance as a result of information police had received from a confidential informant that he was in possession of a firearm. A warrant to search Mr. Bassoo-Narine’s residence had been obtained. Mr. Bassoo-Narine had been under police surveillance over the previous two-day period.
[8] When the car in which Mr. Bassoo-Narine was a passenger entered the parking lot, the police officers were ordered to “take it down” and arrest Mr. Bassoo-Narine.
[9] A number of police officers approached the parked car. Mr. Bassoo-Narine was forcibly removed and placed under arrest.
[10] D.C. Magee was the first officer to arrive at the front passenger’s window of the car. He testified that he pointed his gun and a flashlight at the passenger’s window of the car. He yelled “police, don’t move”. He observed the butt of a gun in the waistband of Mr. Bassoo-Narine’s pants through the partially-opened front passenger’s window. He immediately opened the front passenger’s door and removed Mr. Bassoo-Narine from the car.
[11] According to D.C. Magee, as he was removing Mr. Bassoo-Narine from the front passenger’s seat, the gun fell from Mr. Bassoo-Narine’s waistband onto the ground where it was later seized by the police.
[12] Detective Constables D’Onofrio, Fougere and McKernaghan, who were near D.C. Magee when he removed Mr. Bassoo-Narine from the car, testified that as he removed him from the car they heard an object hit the ground. They later determined that it was a gun that was fully loaded. Mr. Bassoo-Narine submits that the gun should be excluded under section 24(2) of the Charter.
[13] Following Mr. Bassoo-Narine’s arrest, the police officers executed the previously obtained search warrant at his residence. Nothing of interest was found as a result of the search.
[14] Although a search warrant authorizing the search of Mr. Bassoo-Narine’s residence was obtained before Mr. Bassoo-Narine was arrested, Crown counsel does not rely upon it as authority for the police officers’ arrest of him, the seizure of the firearm or the subsequent search of his residence. The information to obtain the search warrant (the “ITO”) was based upon information provided by a confidential informant. The ITO has been significantly edited to protect the confidential informant’s identity. Crown counsel concedes that the ITO in its edited form does not provide reasonable and probable grounds for the issuance of the search warrant.
[15] I arrived at the following conclusions regarding Mr. Bassoo-Narine’s allegations that his rights under sections 8 and 9 of the Charter had been violated:
Mr. Bassoo-Narine was arbitrarily detained by D.C. Magee for the short period of time between when D.C. Magee first shone his flashlight through the front passenger’s window, pointed his gun at Mr. Bassoo-Narine, yelled “police, don’t move” and when D.C Magee saw the butt of a gun in Mr. Bassoo-Narine’s waistband. His rights under section 9 of the Charter were thereby violated.
Once D.C. Magee saw the butt of a gun in Mr. Bassoo-Narine’s waistband he was entitled to arrest him and seize the gun. Mr. Bassoo-Narine’s rights under section 8 and 9 of the Charter were not violated after this had occurred.
[16] Following my ruling I permitted defence counsel, Mr. Bayliss, to cross-examine D.C. Harris, who was the affiant of the ITO. The cross-examination was limited to certain specified issues. It was also subject to the protection of the identity of the confidential informant. Mr. Bayliss cross-examined D.C. Harris concerning the following issues:
(a) Conclusive statements she made in the ITO to determine if her statements were justified;
(b) Her own experience which she relied upon in making assertions in the ITO;
(c) Her knowledge of or suspicion about the identity of the confidential informant;
(d) The reason why she did not indicate the outcome of investigations of Mr. Bassoo-Narine referred to in the ITO;
(e) The reason why she did not disclose that Mr. Bassoo-Narine had not been found guilty of criminal charges referred to in the ITO;
(f) The basis of her assertion in the ITO that Mr. Bassoo-Narine had never given his address as 524 Dawes Road;
(g) The reason why she applied for a telewarrant; and
(h) Whether she had any information as to the precise location of Mr. Bassoo-Narine’s residence at 524 Dawes Road.
[17] D.C. Harris testified that she has been a police officer for 15 years. When she prepared the ITO in this case she had been the affiant in over 25 previous ITOs. She described the preparation of an ITO as an ongoing “learning process”.
[18] She explained that she had received a written two-page report from a Crime Stoppers’ tip. A good deal of the information contained in the ITO came from the tip. She did not know who the tipster was. As a result, she could not follow up to determine whether the tipster was credible.
[19] She testified that the information in the tip was detailed. She described it as one of the more extensive Crime Stoppers’ reports she had seen. She concluded that the tip was compelling based upon its detail and other information she obtained.
[20] She explained that she had referred to Mr. Bassoo-Narine as a criminal in the ITO because as a result of the tip she believed he was illegally in possession of a firearm. She only referred to Mr. Bassoo-Narine’s youth record in the ITO because he does not have an adult criminal record. She agreed that it would have been preferable for her to specify that he had not been convicted of any of the criminal charges or police investigations referred to in the ITO. However, she testified that she did not believe the Justice who issued the search warrant would have been misled by her failure to do so because the ITO was clear that he only had a youth record.
[21] She explained that the police database indicated that Mr. Bassoo-Narine had never given his address as 524 Dawes Road to the police. This was the basis for her statement to this effect in the ITO. She agreed that she had not conducted any other investigation regarding this issue.
[22] She agreed that the description of Mr. Bassoo-Narine’s height in the tip did not match the police descriptions of his height. This did not cause her to question the reliability of the tip because in her experience height estimates often vary.
[23] She explained that she applied for a telewarrant because in her experience she could not see a Justice of the Peace personally at 11 p.m. on a Friday night.
Positions of the Parties
[24] Mr. Bayliss submits that the gun should be excluded pursuant to section 24(2) of the Charter. He argues that there were two serious breaches of Mr. Bassoo-Narine’s Charter- protected rights arising from his arbitrary detention at gunpoint and the warrantless search of his residence. There was also a taint of impropriety and inattention to constitutional standards by the police. In particular, he cites the fact that D.C. Harris included misleading information in the ITO and withheld other relevant information. He argues that she failed to make full and frank disclosure in the ITO. Further, she should not have utilized the telewarrant procedure. This resulted in the improper issuance of the search warrant that the police relied upon to arrest Mr. Bassoo-Narine and to search his residence. Mr. Bayliss also relies upon the manner in which the police conducted the takedown and arrest of Mr. Bassoo-Narine which unnecessarily placed his safety at risk. Finally, he argues that the warrantless and overbroad search of his residence supports his position that the evidence should be excluded.
[25] Crown counsel, Mr. Hanna, submits that there is no evidence of any bad faith on the part of the police. Further, there is no aspect of the police officers’ conduct from which the court should disassociate itself. He maintains that D.C. Harris acted properly in preparing the ITO and obtaining the telewarrant. She did not mislead the Justice in any way. He submits that the arbitrary detention of Mr. Bassoo-Narine was only for a split second. The breach of his Charter rights was therefore minimal. The search of his residence occurred after his arrest and the seizure of the firearm. There is, therefore, no causal connection between the seizure and the search. Finally he submits that society has a very strong interest in having these offences tried on their merits because they involve serious allegations that Mr. Bassoo-Narine was carrying a loaded gun when he was prohibited from doing so. According to Mr. Hanna, excluding this evidence would bring the administration of justice into disrepute.
Section 24(2) Analysis
[26] I must consider whether the evidence seized by the police should be admitted into evidence notwithstanding that I have found that Mr. Bassoo-Narine’s Charter rights were violated. This requires me to engage in a balancing exercise and consider the following factors:
a) The seriousness of the Charter-infringing conduct;
b) The impact of the breach on Mr. Bassoo-Narine’s Charter-protected interests; and
c) Society’s interest in the adjudication of the case on its merits.
[27] These factors must be balanced rather than placed in a mathematical equation. I must determine whether the admission of the evidence would bring the administration of justice into disrepute having regard to all of the circumstances. This requires me to consider the long-term reputation of the administration of justice.
Seriousness of the Charter Infringing-Conduct
[28] This factor involves the assessment of the police conduct to determine where it fits on a continuum ranging from intentionally misleading conduct at one end to mere inadvertence at the other end. In R. v. Rocha, 2012 ONCA 707, [2012] O.J. 4991, Rosenberg J.A. stated at paragraph 29 as follows:
The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.
[29] In considering the seriousness of the Charter-infringing conduct I must determine whether the conduct was serious or minor, severe or innocuous, deliberate or unintentional or wilful or negligent. The more deliberate the state conduct that violated Charter rights the more likely the evidence will be excluded.
[30] According to Mr. Bayliss there are two aspects to the Charter-infringing conduct; the arbitrary detention of Mr. Bassoo-Narine at gunpoint and the warrantless search of his residence. In both cases the police relied upon the authority of a search warrant that should not have been issued due to D.C. Harris’ failure to make full and frank disclosure in the ITO. Mr. Bayliss characterizes the seriousness of the Charter-infringing conduct by the police as “somewhere above the half-way mark on the continuum”.
[31] Mr. Hanna submits that the Charter-infringing conduct is at the less serious end of the continuum because there is no evidence of any misconduct or bad faith on the part of the police. According to Mr. Hanna, D.C. Harris acted properly in preparing the ITO on the basis of the Crime Stoppers’ tip. She did not attempt to mislead the Justice or withhold any information from the ITO. She made full and frank disclosure. The Justice would not have been misled in any way. It was appropriate to apply for a telewarrant under the circumstances.
[32] Further, according to Mr. Hanna, the officers who arrested Mr. Bassoo-Narine and conducted a search of his residence believed they had a valid search warrant authorizing his arrest and the search. There can be no bad faith or misconduct attributed to them.
ITO and Telewarrant
[33] I do not find any misconduct or bad faith on the part of D.C. Harris in preparing the ITO or obtaining the telewarrant in the manner that she did. I found her to be a responsible and forthright police officer. I accept her evidence that she was relying upon what she honestly believed was a compelling tip that Mr. Bassoo-Narine was in possession of a firearm. She candidly acknowledged that it would have been preferable for her to have been clearer about certain of her statements in the ITO. However, I find that the Justice would not have been misled by any of the information she included in or omitted from the ITO. I do not find any taint of impropriety or inattention to constitutional standards in her preparation of the ITO. Further, I accept her explanation for why she applied for a telewarrant. I do not find any impropriety in her doing so.
Arrest and Search
[34] I do not find any impropriety or intentional violation of Mr. Bassoo-Narine’s constitutional rights by the officers who arrested him and searched his residence. They believed they had a valid search warrant authorizing the arrest of Mr. Bassoo-Narine and the search of his residence.
[35] As I indicated in my previous ruling in respect of the alleged sections 8 and 9 Charter breaches, I accept the officers’ evidence that the manner in which they conducted the takedown of Mr. Bassoo-Narine was appropriate under the circumstances.
[36] I find that the seriousness of the state-infringing conduct by the police falls at the less serious end of the continuum. There is no aspect of the conduct from which the court must disassociate itself.
[37] For these reasons, this factor is neutral with respect to the exclusion of the evidence.
Impact of the Breach on Mr. Bassoo-Narine’s Charter-Protected Interests
[38] Mr. Bayliss submits that the two Charter breaches had serious impacts on Mr. Bassoo-Narine’s Charter-protected interests. He was arbitrarily detained at gunpoint and arrested in a dangerous fashion. His home was unreasonably searched.
[39] Mr. Hanna submits that the impact on Mr. Bassoo-Narine of the two Charter breaches was minimal. The arbitrary detention was only for a split second. The search of his residence occurred after the firearm was seized and is not causally connected.
[40] Although the arbitrary detention of Mr. Bassoo-Narine was for a very short period of time, I find that it was nonetheless a significant breach of his Charter-protected rights. He was arbitrarily detained at gunpoint while seated in a parked car.
[41] The warrantless search of Mr. Bassoo-Narine’s residence also had an impact on his Charter-protected interests. However, I find that there is little causal connection between the seizure of the firearm and the subsequent search of his residence.
[42] I find that the Charter breaches did have a significant impact on Mr. Bassoo-Narine’s Charter-protected rights.
[43] For this reason, this factor favours exclusion of the evidence.
Society’s Interest in the Adjudication of the Case on the Merits
[44] The principal factor to consider for this line of inquiry is the reliability of the evidence seized. As the majority of the Supreme Court of Canada said in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paragraph 81:
… exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration into disrepute.
[45] The evidence seized in this case is very relevant and reliable. The Crown requires it to prove the charges. The charges against Mr. Bassoo-Narine are most serious. There is no question that society has a strong interest in the trial of these charges on the merits.
[46] For these reasons, this factor strongly favours inclusion of the evidence.
Balancing the Three Factors
[47] The Supreme Court of Canada described the balancing exercise that must be conducted under section 24(2) in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paragraph 36 as follows:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[48] In R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48, the Ontario Court of Appeal upheld the admission of evidence obtained in violation of section 8 of the Charter following a section 24 (2) analysis. Doherty J.A. stated as follows at paragraph 33:
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.
[49] The charges against Mr. Bassoo-Narine are most serious involving an allegation that he possessed a loaded firearm when he had previously been prohibited from doing so. The evidence seized is reliable and important. Society has a strong interest in the trial of these types of offences. The impact on Mr. Bassoo-Narine’s Charter-protected rights was significant. He was arbitrarily detained at gunpoint, albeit for a split second. His residence was unreasonably searched. However, there was no misconduct or bad faith on the part of the police. There were no intentional violations of his constitutional rights. In the words of Doherty J.A. in R. v. Blake, there was no “taint of impropriety” or “inattention to constitutional standards” by the police to “tip the scales in favour of exclusion”.
[50] Having balanced all of the relevant factors I have concluded that to admit the evidence seized by the police would not damage the long-term repute of the administration of justice. The evidence is therefore admitted.
Conclusion
[51] I have concluded for the reasons I have outlined that the evidence should not be excluded under section 24(2) of the Charter. Mr. Bassoo-Narine’s application pursuant to sections 8, 9 and 24(2) of the Charter is dismissed.
[52] I want to thank counsel for their helpful submissions.
HAINEY J.
Released: December 12, 2013
COURT FILE NO.: CR13300002610000
DATE: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NIKKO BASSOO-NARINE
Defendant/Applicant
REASONS FOR DECISION
UNDER SECTION 24(2) OF THE CHARTER
HAINEY J.
Released: December 12, 2013