COURT FILE NO.: CR-12-50000593-0000
DATE: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
JUSTIN BROWN
Defendant
Katherine Rogozinski, for the Crown
Ari Goldkind. for the Defendant
HEARD: December 12, 2013
Allen J. (orally)
Rulings on two voir dires
(Voluntariness of statement to person in authority/violation of s. 8 of Charter)
BRIEF BACKGROUND
[1] On March 3, 2011, the defendant, Justin Brown was arrested and charged on six firearm related offences. Under a warrant executed in relation to a basement apartment at 2207 Kipling Avenue in Toronto, the police seized an Ithaca Model 37 shotgun with a sawed off barrel and some ammunition. The defendant and his girlfriend were present at the apartment when the police arrived with the warrant. The girlfriend was jointly charged and arrested. She pleaded guilty to the firearm offences.
VOLUNTARINESS OF DEFENDANT’S STATEMENTS
[2] The Crown brings an application under s. 30.03(1) of the Superior Court of Justice Criminal Proceedings Rules to have certain statements by the defendant admitted into evidence. The defendant made statements to the police outside the apartment after the arrest and at the police station. The first statement contained an admission that the shotgun was his: “Let my girl go. The gun is mine” The second statement was recorded on the booking video where the defendant states that he resides at 2207 Kipling Avenue. The third statement in which the defendant said he found the gun at Sauble Beach was also made at the police station.
[3] I made a ruling with reasons to follow. I excluded the statements of the defendant confessing to owning the gun and finding it at Sauble Beach and admitted the statement saying he lived at 2207 Kipling Avenue.
[4] To establish admissibility on common law grounds, the Crown must prove beyond a reasonable doubt that a statement to a person in authority was made voluntarily ― that it was not influenced by such factors as threats, promises, physical violence or oppression. The trial judge must review and evaluate the statements in the context of the circumstances in which they were made. The Crown did not meet its burden with respect to the defendant’s admissions about the ownership of the gun and where he found it but succeeded on the statement on the booking video.
[5] The defendant made the statement that the gun was his after he was arrested by Officer McQueen who, with her partner Officer Lourenco, was a uniformed officer dispatched in a patrol car to assist at the scene of the search warrant. Officer McQueen arrested and cuffed the defendant outside the basement apartment. He was turned over to Officer Lourenco who took him to the patrol car parked in the parking lot outside the target address. Officer Lourenco read the defendant his rights to counsel. Shortly after this, Officer McQueen arrested the girlfriend and escorted her out of the apartment and took her over to another patrol car in the parking lot.
[6] Officer Lourenco’s evidence is that he again read the defendant his rights to counsel and following the caution, which asks a suspect whether they want to say anything in answer to the charges, the defendant spontaneously blurted out “Let my girl go. The gun is mine.” No other officer or person heard those words by the defendant. Officer Lourenco wrote the statement in his memo book after he returned to the police station to prepare his notes.
[7] The defendant testified he did not know there was a gun in the apartment. However, he does not deny saying the words Officer Lourenco testified to. But he does dispute the context in which he said the words. The defendant testified that Officer Lourenco repeated to him on more than one occasion that the gun was his and that he should admit it and that if he would admit it was his gun, the police would let his girlfriend go. According to the defendant, he did not immediately say the gun was his. Officer Lourenco’s and the defendant’s evidence is in accord that the defendant only made the statement after his girlfriend was brought out of the apartment handcuffed and crying. The defendant could see and hear his girlfriend as they took her to another patrol car. He said he was overcome by his girlfriend’s distress.
[8] The defendant described his feeling for his girlfriend as very loving and close. They had been together for six years. She had recently been a ward of the state and his family had accepted her as part of their family. He testified he would do anything to protect her and would do what he had done again to save her from harm. The defendant said he did not blurt out the words following the caution. He made the statement after being induced by Officer Lourenco by a promise on more than one occasion that the police would let his girlfriend go if he admitted to owning the gun.
[9] The statement on the booking video was made in answer to a question by an officer as to where he lived. The accused was answering a question customarily asked on booking. The statement about finding the gun at Sauble Beach was said in an interview room when he was being interviewed by two plain clothes detectives. The defendant testified he made the latter statement further to his earlier statement that the gun was his in order to support his confession to Officer Lourenco.
[10] The Crown has a weighty burden to prove beyond a reasonable doubt the voluntariness of statements. I find the statement on the booking video to have been made voluntarily. The video was played in open court. There is no evidence that the defendant was coerced or induced to make that statement or that it was given under circumstances that were oppressive. It was a routine question. I therefore allow that statement to be admitted as evidence at trial.
[11] There are a number of reasons I find the Crown did not meet its burden with respect to the statement to Officer Lourenco. Officer Lourenco’s credibility suffers in respect of his failure to confirm or document a confession to such a serious offence. The following evidence is pertinent to that finding:
Officer Lourenco did not advise his partner, Officer McQueen, or any other officer of the confession. This fact stands out because Officer Lourenco and Officer McQueen, with the defendant in the backseat of the cruiser, drove him to the police station, the ride taking from 30 to 40 minutes. If the statement was made in the context Officer Lourenco described, it makes no sense that he did not at least tell his partner. One would think an admission on such an offence would be of some moment. How could Officer Lourenco reasonably believe it was not important to tell Officer McQueen or any other officer?
Officer Lourenco did not confirm the statement with the defendant on the spot or ask him to sign it. He did not prepare his memo notes contemporaneously with the statement by the defendant.
Officer Lourenco did not ensure that the defendant made a written statement or a video statement at the police station, although the defendant was in an interview room for two hours before he was lodged in a cell.
Officer Lourenco’s notes about the search and arrest of the defendant are sparse at best. Most importantly, there are no notes supporting the circumstances surrounding the defendant’s admission.
[12] It is recognized that police can properly offer inducements to obtain confessions. The inducements that are of some concern however are those that when standing alone or in combination with other factors, are strong enough to overwhelm the will of the suspect [R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; [2000] S.C.J. No. 38, at para. 57, (S.C.C.)].
[13] Decisions on voluntariness are fact-driven, very much dependent on the particular facts of the case. The defendant testified credibly about his close and protective relationship with his girlfriend. His evidence about Officer Lourenco’s conduct and words was detailed and on the whole consistent. He testified unwaveringly about Officer Lourenco’s promise that the police would let his girlfriend go if he confessed ownership of the gun. The evidence was that he did not succumb to the inducement until he saw his girlfriend and heard her cries when she was brought out of the apartment after her arrest. I find the quid pro quo offer by the police that his girlfriend would be freed in exchange for a confession was such that it would reasonably have overwhelmed the defendant’s will under the particular circumstances of his relationship with his girlfriend and the repetitive urging by Officer Lourenco R. v. Oickle, at para. [57].
[14] I therefore find that the defendant’s confession was induced under circumstances such that the statement was not made voluntarily.
[15] I come to the same conclusion with regard to the statement about finding the gun at Sauble Beach. That statement was influenced by the same inducement made by Officer Lourenco. I find the defendant made it in furtherance of establishing the gun was his. It simply added a further detail to his earlier statement.
[16] I therefore admit the statement made on the booking video that the defendant lived at 2207 Kipling and I exclude the statements that he owned the gun and that he found it at Sauble Beach.
REASONABLENESS OF THE SEARCH AND SEIZURE
Standing
[17] As a preliminary step to a challenge to a search warrant, the defendant is required to establish standing to bring the application. The defendant has to establish a property interest in the property or dwelling place that was searched that would give rise to a reasonable expectation of privacy on his part. The threshold in establishing this is not a high one [R. v. Edwards (1996), 1996 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.)]. The Crown in this case has conceded standing.
[18] In view of the tests under s. 24(2) of the Charter as discussed below the defendant gave evidence to establish that his subjective expectation of privacy was reasonable. There are both subjective and objective components to be considered R. v. Edwards, at para. [45]
[19] As I noted earlier, the defendant and his girlfriend had been in a romantic relationship for about six years when the search incident occurred. The defendant testified that the apartment was rented by his girlfriend about six months before the search and that because of her state ward status the rent was paid by a governmental agency. The defendant did not have a key to the apartment but was always able to enter by planning in advance when he would arrive. The defendant’s main residence was with his family in Kitchener, Ontario but he spent on average three days a week, sometimes more, sometimes less, with his girlfriend. On those days, when his girlfriend was at school, he would tend to the dog they jointly acquired and would spend the nights there. The defendant’s evidence was that like any other apartment his girlfriend’s apartment was a contained unit. The door was locked when they were home, making it not accessible to uninvited people. The defendant’s evidence was that when he was at the apartment he had a reasonable expectation that no intruders would walk in or force their way into the apartment.
Basic Principles and Standard of Review of Issuing Court’s Decision
[20] On March 3, 2011, the search warrant was obtained from a Justice of the Peace. The affidavit in the Information to Obtain (“the ITO”) indicates that in seeking the warrant the police principally relied on information obtained from a confidential informant (“the CI”) and also on information gathered through a brief attendance at the premises and investigative searches. The CI provided information that there was a shotgun in a basement apartment at that address. The defendant and his girlfriend were there at the time. The police first arrested the defendant and then his girlfriend. They seized an Ithaca .37 Model shotgun with a sawed off barrel and some bullets.
[21] The defendant seeks to have the firearm and ammunition excluded under s. 24(2) of the Charter on the basis that his right under s. 8 of the Charter to be secure from unreasonable search and seizure was violated by the police.
[22] Except in exigent circumstances, the police must obtain judicial authorization for a warrant to search the property of a person suspected of committing an offence. Strict rules govern the application for and execution of a warrant. The Criminal Code authorizes a judge or justice of the peace to issue a search warrant if the court is satisfied by the information sworn in the affidavit in support of the warrant that there are reasonable grounds to believe an offence has been or will be committed. The issuing judge or justice of the peace must act on reasonable and probable grounds in authorizing a warrant.
[23] A search and seizure conducted outside the prescribed standards constitutes a violation of a person’s s. 8 rights. The consequence of such a violation can be the exclusion of evidence obtained as a result of the breach. Intrusions by state agents into more private domains such as a home are faced with more critical scrutiny and are considered more serious breaches than interferences in less private spheres [R. v. Grant, 2009 SCC 32, 2009, S.C.C. 32, 2009 S.C.C. 32, [2009] 2 S.C.R. 353, at para. 76, (S.C.C.); and R. v. Debot 1989 Can II 13, p. 17, (S.C.C.)].
[24] The Supreme Court of Canada has set down principles to guide the court’s review of the issuing court’s decision to issue an authorization. If the review court can conclude based on the record before the authorizing judge, amplified on review, that the issuing court could have granted the authorization, the review judge should not disturb the decision. The review judge should not substitute their own decision for that of the issuing court [R. v. Garofoli 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161, at para. 56, (S.C.C)]. The question is not whether the review judge would have issued the warrant but rather whether there was sufficient credible and reliable evidence that would allow the issuing court to find reasonable and probable grounds to believe that an offence had been committed and that evidence of the offence would be found at the specified time and place [R. v. Morelli, 2010 SCC 8, 2010 S.C.C. 8, [2010] 1 S.C.R. 253, at para. 40, (S.C.C.)].
The Information to Obtain
[25] The CI’s information led to the arrest of the defendant. The law recognizes informer privilege as an absolute right. The rule recognizes the critical place informants can play in police investigations and the need to secure their safety. Thus, the police and Crown have a positive obligation to protect the identity of a confidential informant [R. v. Leipert, 1997 367 (S.C.C.), 1997 367 (SCC), [1997] 1 S.C.R. 281 (S.C.C)]. Where there is a confidential informant in a warrant application, information in the ITO that could potentially identify the informant is vetted to protect the privilege. The ITO in the case before me was vetted. Protection of the privilege however must be balanced against the defendant’s right to full answer and defence. So while protection of the privilege is paramount, there must remain available on the ITO sufficient information upon which the reviewing judge can assess the credibility and reliability of the informant and the information provided.
[26] Officer Michael Jeffrey was assigned to handle the CI and to be the affiant on the ITO. He testified that in March 2011 he had little if any experience in preparing ITOs and handling informants in relation to warrants. Officer Jeffrey spoke to the CI on only one occasion. The defence argues the information provided in the ITO is not sufficient to justify the issuing of the warrant and the officers therefore lacked reasonable and probable grounds to conduct the search of the apartment at 2207 Kipling Avenue.
[27] The Crown sought leave to provide the court with a summary of the contents of the vetted text absent any information that would identify the informant. In R. v. Garofoli the Supreme Court of Canada sets out six steps to be followed by a court reviewing a wiretap application, which steps have been adapted by judges reviewing the reasonableness of a search warrant. Step six, which allows the Crown to provide the court with a suggested judicial summary, is pertinent to my review. The intention of a summary is to assist the defence with more information in their application to challenge the warrant.
[28] I reviewed both the vetted and unvetted ITOs together with the proposed judicial summary. The defence was present for my discussion with the Crown about the judicial summary which was somewhat cryptic to avoid disclosure of information about the CI. I was satisfied that the vetted text had the potential to identify the CI or at least narrow the field of who the informant could be. There was a minor change to the summary that I required and two typographical error corrections. One typographical error was a simple grammatical error. The other was the use of the word “both” on Schedule D in reference to CIs, as though there were two CI’s on the ITO. That is the only place on the warrant that suggests more than one CI. On a reasonable reading of the entire ITO it is clear the use of “both” is a minor typographical error and certainly no reason to impugn the ITO. On the whole, I was satisfied the judicial summary fairly summarized the contents of the vetted text absent the information that might identify the CI. The defense was provided with the approved judicial summary.
The Evidence
[29] The defendant sought leave to cross-examine the affiant Officer Jeffrey, which I allowed. Officer Jeffery gave evidence about the ITO. The vetted ITO reveals that the CI provided the following information to Officer Jeffery:
that a male known as “Monster” is in possession of a sawed off shotgun;
that he believes Monster’s real name may be Justin;
that Monster’s description is “male white, 5’10”, reddish brown short hair, chin strap beard, approximately 25 years of age
that the target address was 2207 Kipling Avenue
a phone number
Officer Jeffrey conceded he did not provide the CI with a picture of Justin Brown.
[30] On March 1, 2011, Officer Freeman and Officer Kennedy conducted one brief approximately one and a half hour investigation of the premises. Their investigation turned up only uncontroversial evidence, a description of the building, where the entrance to the basement is, a description of the doors to that entrance, that there was a chain link fence around the building and that there was a tax business on the premises. They confirmed the address on the building was 2207 Kipling Avenue.
[31] No surveillance was conducted on the property. Neither Officer Freemen or Kennedy or anyone else saw Justin Brown or anyone fitting the description of Monster coming or going from 2207 Kipling Avenue. Officer Jeffrey was asked on cross examination, given the scant information from the CI and the CI’s apparent lack of experience, why surveillance was not conducted to generate more information to support the warrant. His response was that was not his call. It was the call of his supervising sergeant.
[32] Officer Jeffrey conducted a number of computer searches. He searched CPIC which contains among other information both real names and aliases and he did not obtain a link of Justin Brown to Monster. Officer Jeffrey found nothing on any police data base search to link Justin Brown and Monster. Officer Jeffrey testified that he was able to link Justin Brown to the data base, FIRs (Field Information Reports), a data base that collects information on persons who have had contact with the police. Officer Jeffery initially testified he was able to connect Justin Brown to 2207 Kipling using FIRs through a phone number.
[33] Crown counsel stood the following day to put on the record that there was no such FIRs record. Officer Jeffrey changed his evidence and testified the following day that the connection of Justin Brown to the address might have been done through a reverse telephone search using the phone number provided by the CI.
[34] Officer Jeffrey was not certain how the defendant was linked to the police data base. There is nothing in his memo notes and no other evidence before the court to establish a connection. Officer Jeffrey testified he might have written information establishing that connection in a steno book which he testified might be in his locker. Crown counsel stood the following day and conceded that when the matter was previously up for trial in May 2013, Officer Jeffrey had advised that the steno book was lost. In any event, the Crown brought no evidence to match the defendant to a police data base or to 2207 Kipling Avenue..
The Sufficiency of the Information to Obtain
[35] The Supreme Court of Canada set down the factors to be considered in examining the sufficiency of the information provided in support of the application for a warrant. Three questions should be asked in determining whether the information relied on by the police is sufficient to justify a search where the police rely on information from a source outside the police [R. v. Debot, supra, at para. 53]:
(a) Was that source credible?
(b) Was the information predicting the commission of a criminal offence compelling?
(c) Was the information corroborated by police investigation prior to making the decision to conduct the search?
[36] R. v. Debot provides principles to guide the review court’s approach to applying the three inquiries:
(a) The factors in the inquiries are not to be applied as separate tests.
(b) It is the “totality of the circumstances that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.”
(c) Bald or conclusory statements and statements amounting to gossip are not sufficient. A mere statement by an affiant that an informant told him that a firearm would be found in a particular place is insufficient to constitute reasonable grounds to issue a warrant. More is required.
(d) The underlying circumstances given by the informant for his or her conclusion must be set out in the ITO so that the issuing court might have sufficient information to satisfy itself there are reasonable grounds for believing what the informant has alleged.
(e) The source and quality of the information provided at the time the search was executed must be examined in determining the validity of the warrant.
Looking at the Vetted ITO and the Judicial Summary
[37] I will first look at the sufficiency of the information from the contents of the vetted ITO and the judicial summary. Following that I will consider the unvetted ITO and any effect it might have on the sufficiency of the information. This approach was used by previous courts [ For instance: R. v. Sahid, 2011 ONSC 979, [2011] O.J. No. 653, at para. 29, (Ont. S.C.J.) and R. v. Brown, 2011 ONSC 6223, [2011] O.J. No. 4624, at para. 36, (Ont. S.C.J.)]
Credibility
[38] R. v. Garofoli provides indicators of reliability of an informant’s information: (a) the degree of detail of the tip; (b) the informer’s source of knowledge; (c) indicia of the informant’s reliability such as past performance or confirmation from other investigative sources.
[39] The defence submits the information provided about the CI fails to establish his credibility and reliability with respect to the information he provided. I agree for the following reason:
The CI’s reliability has not been established. The vetted ITO and judicial summary contain no information as to whether the CI had previous experience as an informer and what if any his track record of success or failure might be in previously providing fruitful information to the police.
The CI’s credibility has not been established. There is no evidence as to whether he has or does not have a criminal record and whether if he has a criminal record he was convicted of crimes of dishonesty. I make that finding mindful of the delicate balance that must be maintained between disclosing sufficient information to justify a warrant and concealing information that could reveal the identity of the informant.
The judicial summary contains information that the CI had a motivation for providing the information. There is no information as to what actually motivated the CI to give information to the police, whether, for instance, he was promised something such as leniency with respect to outstanding charges or whether he was offered money in exchange for the information.
[40] The CI’s skill and accuracy in collecting information and making observations useful to investigations have not been tested. The fact a shotgun and ammunition were found does not add to the credibility or reliability of the informant or his or her information. The fact the search in the end produced a gun and ammunition cannot be used after the fact as support for the reliability of the information [R. v. Debot, supra, para. 68].
[41] As noted earlier, Officer Jeffrey candidly admitted he did not show the CI a picture of the defendant and conceded that if he had done so there would have been more certainty as to identity. He was also candid he knew little or nothing about the CI and that he only spoke to the CI once. Officer Jeffrey also stated there was nothing preventing him from contacting the CI again to provide the CI more information nor anything stopping him from obtaining more information from the CI about his experience and background to establish the credibility and reliability of his information. Further, Officer Jeffrey told the court the CI was not a registered or carded informant which means he lacked a proven track record of being useful to the police.
[42] Lack of credibility or reliability by itself might not be sufficient to establish the insufficiency of the information. However, it is a critical factor in the context of all the information provided.
Is the Information Compelling?
[43] “… a male he knows as ‘Monster’ is in possession of a sawed off shotgun. CS#1 believes ‘Monster’s’ real name may be Justin.’ I find the uncertainty of that statement is strikingly evident and its limited value can only be appreciated in the context of the totality of the facts.
[44] The CI’s information shows uncertainty about the real first name of the person nicknamed ‘Monster’ and contains absolutely no evidence about a surname. In his investigative searches, Officer Jeffrey was unable to turn up a link between Monster and Justin Brown. Officer Jeffrey did not show the CI a picture of Justin Brown so the CI had nothing on which to base a comparison with his description of Monster. Further, there is no information that anyone at any time saw Justin Brown or anyone meeting Monster’s description arriving at or departing the premises where the shotgun was found. The phone number provided by the CI produced no link of Justin Brown to a police data base or to 2207 Kipling Avenue. I cannot imagine how a reliable prediction of criminality could be made through such sketchy and uncertain information.
[45] There has to be reasonable and probable grounds to believe that the suspect committed or was committing an offence and that evidence of the offence would be found at the specified time and place R. v. Morelli, supra, at para. [40]. I find there simply is no compelling information to support the allegation that Justin Brown had committed or was committing an offence or that there was reasonable and probable grounds to believe a shotgun would be found at 2207 Kipling Avenue at the time the search was executed.
Corroboration
[46] Officer Jeffrey acknowledged he was not aware of the CI’s experience and he did not make any inquiries. This makes even more critical the need for corroboration of the CI’s information before the execution of the search. This is particularly the case when the search involves breaking into a private dwelling.
[47] Apart from innocent information like a description of the premises, the information provided by the CI was not corroborated by Officer Jeffrey or by any other officer or source of information. There was no substantive reason offered by Officer Jeffrey as to why surveillance was not conducted. This I find is a major failing in the investigation since surveillance might have either turned up, from the Crown’s perspective, positive or negative information on possession of the shotgun by the defendant.
[48] As it stands, no connection was made between the name Monster and Justin Brown. The CI was never shown a picture of Justin Brown so he had no opportunity to confirm whether the description he had for Monster met the description of Justin Brown. There is no evidence from any person connected to the premises that links Justin Brown to 2207 Kipling Avenue. No one ever saw Justin Brown at 2207 Kipling Avenue. There is no evidence that anyone meeting Monster’s description was ever seen at the premises. Officer Jeffrey first testified that he was able to connect Justin Brown to CPIC and FIRs searches. He later testified he was not certain of this and that he might have made the connection through doing a reverse telephone number look up. In any event, as I found earlier, there is no evidence on the record of any investigative search linking a phone number connected to Justin Brown with the target address.
[49] In short, there was no substantive corroboration before the search that Justin Brown was connected to Monster or occupied or was connected to 2207 Kipling Avenue and no evidence Justin Brown had committed or was in the commission of the offence of possessing a shotgun. There is no corroboration a shotgun would be there when the search was executed.
From the Unvetted ITO
[50] I had the opportunity to see the unvetted ITO that was before the issuing court. I can with some confidence conclude that the unvetted ITO provides nothing to appreciably enhance the credibility and reliability of the information provided by the CI.
[51] There is no information about the CI as to his reputation as a confidential informant. The term criminal record is referred to but the reference does not enhance reliability of the ITO. The motivation for giving the information to the police is put in general terms and in any case the fact there was a motivation I do not think assists the Crown.
[52] There is information about the source of the CI’s information as to when the information was obtained and the location of the shotgun and information about being warned about obstruction of justice charges for false information. But when that information is viewed in light of the other shortcomings in the information as brought out in evidence on this application, it does not in any useful way enhance the reliability or credibility of the information on the ITO.
Conclusion
[53] I am not to determine whether I would have issued the warrant but whether there was sufficient credible and reliable evidence that would allow the issuing court reasonable and probable grounds to believe that the defendant had possession of a shotgun and that the shotgun would be found at 2207 Kipling at the time the warrant was to be executed. For reasons outlined above, I find on the totality of the information before the issuing court that there was less than sufficient information to establish reasonable and probable grounds to issue the warrant.
[54] The search and seizure was therefore unlawful as having been conducted in violation of the defendant’s right to security from unreasonable search and seizure.
SECTION 24(2) ANALYSIS
[55] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. R. v. Grant sets out as follows the inquiries that should be undertaken to determine whether to exclude evidence: (a) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (b) the impact of the breach on Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (c) society’s interest in the adjudication of the case on its merits.
[56] On the first inquiry, the seriousness of the breach falls along a spectrum: “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.” On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights R. v. Grant, at paras. [72 and 74].
[57] On the first inquiry, I have grave concerns about the actions of the police. But I think to find the state conduct in this case to have been motivated by bad faith, as the defence urges, might be pressing the point. This is not to say however that their actions should be condoned.
[58] Officer Jeffrey had little or no experience drafting ITOs or handling confidential informants in that context. He admitted to making some glaring errors in failing to follow customary police protocol. He met the CI only once when he knew the information the CI provided was uncertain – information as basic as the name of the suspect. A further meeting with the CI with a picture of the defendant would have been a reasonable step to take. The brief investigation by the other officers turned up only innocent information. There was an obvious need for further investigation in the form of surveilling the property which is a common police technique to gather evidence in support of a warrant. Watching the premises might have turned up or not turned up sightings of the person who met the CI’s description of Monster.
[59] Further, Officer Jeffrey prepared no memo notes to assist the court with details of his investigation and he lost his steno book which he testified contained information about police data base searches that connected Justin Brown to 2207 Kipling Avenue.
[60] I find for reasons set out below on the second inquiry, that the defendant had a reasonable expectation of privacy in the apartment at 2207 Kipling Avenue. It is recognized that invasions by state agents into more private domains meet with more critical scrutiny and are considered more serious breaches than interferences in less private spheres R. v. Grant, at paras. [106 and 107]. When I place the invasion of a private domain in the context of the faulty investigation and the deficiency of the information, I find the police conduct to be on the more serious end of the spectrum. I do not conclude their actions point to bad faith. But I do conclude that the sudden breach of the door, without any need for urgency, following a woefully inadequate investigation demonstrated a flagrant disregard and disrespect for people’s personal lives in the private spheres of their homes. This cannot be characterized as merely a technical or minor error.
[61] Blame can be attributed to Officer Jeffrey for deficient memo notes and for losing a potentially valuable source of information, his steno book. The protocol around securing such records would apply in whatever area of police work an officer is involved. Officer Jeffrey had ten years’ experience as an officer in March 2011. Perhaps, the blame for assigning a novice to such an important matter as a warrant on a house and for the resulting errors lies with the police services as a systemic problem. Perhaps, Officer Jeffrey’s and his superior’s failure to call advance surveillance of the premises is a reflection of systemic management and chain of command problems. But none of this excuses, but rather makes more serious, the invasion of personal privacy rights, done with scant support for the action.
[62] The court must dissociate itself from that kind of state conduct.
[63] The second inquiry into the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused requires an assessment of the extent to which the breach actually undermined the interests protected by the right infringed. At this stage the court considers whether the breach was merely technical or profoundly intrusive. The more serious the impact on the person’s rights the greater the risk that admission of the evidence may signal to the public their Charter-protected rights are of little avail to them. The risk by not excluding evidence under these circumstances is that the administration of justice will be brought into disrepute R. v. Grant, at para. [76]. Again, an unreasonable search that interferes in a sphere in which a person has a reasonable expectation of privacy is more serious than one that does not R. v. Grant, at para. [78].
[64] On the facts cited above in paragraph 19, the evidence pertaining to standing, I find the defendant had a reasonable expectation of privacy. In making this assessment, as directed by R. v. Edwards, I am to have regard to the totality of the evidence. The defendant’s evidence was unembellished and on some facts might be seen as unfavourable. This lends to his credibility. The fact that the defendant spent on average three days a week at the apartment, did not have a key and did not pay rent are only a few factors among others I must consider. Both objective and subjective factors must be regarded. The quality of the relationship is revealing.
[65] The defendant and his girlfriend were in a romantic relationship of some permanence at the time and conducted themselves as couples do. He would help with groceries, walk their jointly owned dog and spend the night when he was in town. He was not a friend or even a relative who dropped in a few times a week. The apartment was self-contained and locked when they were home and not open for strangers to enter at will. Due to the girlfriend’s status as a ward of the state, the rent was paid by the government.
[66] Those facts I find gave the defendant a reasonable expectation of privacy in a private dwelling place.
[67] I distinguish the case before me from a case cited by the Crown, R. v. Lawson, where the judge did not find a reasonable expectation of privacy [R. v. Lawson, [2012]. O.J. No. 2210 (Ont. S.C.J.)]. The judge found the defendant in that case to be a “sometimes resident” of the apartment where a mother and her five children lived. There is no evidence about the defendant’s relationship to the mother. The mother also consented to the search. As well, like a case I previously decided, R. v. Castillo, where I found a somewhat diminished but still reasonable expectation of privacy, the defendant in R. v. Lawson was not present at the apartment when the police executed the warrant [R. v. Castillo 2011 ONSC 3257 (Ont. S.C.J.)]. I find those facts in the cited cases materially set them apart from the case before me.
[68] There is no evidence of any exigent circumstances in this case. At 1:00 p.m. on March 3, 2011, when the warrant was executed, the defendant and his girlfriend were at home. An ETF officer suddenly burst through the door of the apartment. The defendant was in the washroom and when he heard the noise he thought it was coming from another part of the building. He stepped near the door and was confronted by a masked ETF officer with a gun and Taser trained on his chest, shouting orders for him to get out of the apartment immediately. The girlfriend was attempting to restrain the dog, which according to the defendant, the ETF officer threatened to shoot if the girlfriend did not restrain it. The defendant complied immediately and left the apartment into the cold with bare feet and no time to put on shoes.
[69] I find it is undeniable that the police invasion of the defendant’s home was profoundly intrusive on his expectation of privacy in his personal domain. His right to be secure from unreasonable state intrusion was summarily foreclosed. The police action had a clear and serious impact on his rights and is a violation from which I find the court ought to dissociate itself.
[70] The Supreme Court of Canada in R. v. Harrison addresses the court’s role on the third inquiry. To ultimately decide whether to exclude the evidence, the court must engage in a qualitative exercise of balancing the three lines of inquiry. This exercise is very much driven by the particular facts of a case. It does not involve simply looking at whether the majority of the factors favour exclusion. The balancing must consider the effect admitting the evidence would have on the long-term repute of the administration of justice R. v. Harrison, [2009 SCC 34](https://www.canlii.org/en/ca/scc/doc/2009/2009scc34/2009scc34.html), [2009] 2 S.C.R. 494, at para. [36].
[71] The Court in R. v. Harrison found the police violation of the accused’s rights sufficiently serious to exclude a large quantity of drugs. The seriousness of the offence is a concern on the third inquiry. Where the case before this court involves the serious offence of possession of a firearm, R. v. Harrison involved another serious offence, the possession of drugs. Another important distinguishing fact is that the drugs were not found in the private sphere of the accused’s home but were rather seized on the highway from an automobile in which the accused was an occupant.
[72] R. v. Harrison addresses the serious consequences to our justice system that can result from a failure to prosecute a serious crime due to excluded evidence, on one hand; and, on the other hand, the longer term effect on the justice system of prosecuting a crime where the evidence was procured through a serious violation of an accused’s rights. A balance must be struck between those interests R. v. Harrison, at para. [34].
[73] There is no question that gun related crimes, because of the immediate risk they present to public safety and peace, are regarded as more serious than drug offences. The possession of a firearm with ammunition close by is no doubt very serious and poses a real threat to public safety. Understandably, the more serious the charge the greater the public interest in trying it on its merits. The seriousness of the offence is therefore a valid consideration, but as R. v. Harrison cautions, the seriousness of the offence can cut both ways:
In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24 (2)’s focus.
[74] R. v. Harrison signals that the judge on a s. 24(2) application should not focus solely on the immediate effect of exclusion on the justice system and neglect to consider the long-term repute of the justice system if the evidence is admitted. It is on the basis of the seriousness of gun crime that the Crown argues that the shotgun and ammunition should not be excluded and the matter should be prosecuted. However, the point the Supreme Court makes is that to prosecute in the immediate short-term interest of deterring gun crime in a case marked by serious Charter violations is to put at risk the long-term repute of the administration of justice. The seriousness of the offence must be considered, but must not take on disproportionate significance R. v. Harrison, paras. [34 and 84].
[75] In summary, I must balance the three inquiries. On the first inquiry, the nature of the state conduct is on the more serious end of the spectrum for involving an invasion of the defendant’s private domain without a sound basis to do so. The court should not appear to condone that conduct. On the second inquiry, the police conduct impacted one of the most precious of rights, the right to be secure from unreasonable state interference in the private domain of the home. This is on the most serious end of the spectrum and cannot be accepted by the court. I find the seriousness of the offence in this case is outweighed by the profound nature of the Charter violations. I believe this is a case where the long-term repute of the justice system would not be served by admitting the shotgun and ammunition. To admit this evidence, I find, would diminish the public’s comfort that their rights are valued by state authorities.
[76] For those reasons, I find the balance of the three inquiries tips in favour of exclusion.
DISPOSITION
[77] The Ithaca Model .37 Model shotgun with sawed off barrel and the ammunition are excluded.
Allen J.
Released: December 12, 2013
COURT FILE NO.: CR-12-50000593-0000
DATE: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
JUSTIN BROWN
Defendant
Rulings on two voir dires
Voluntariness of statement to person in authority/violation of s. 8 of Charte)
ALLEN J.
Released: December 12, 2013