Court File and Parties

COURT FILE NO.: 13-5-98-0000

DATE: 20131218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Dennis Farquharson

Defendant

Carolyn Fineberg, for the Crown

Philip Hiebert, for the Defendant

HEARD: December 16 & 17, 2013

Goldstein j.

ruling re: application to exclude evidence

[1] Mr. Farquharson is charged with three counts related to possessing a hunting rifle. The police found the rifle during the course of a search for proceeds of crime. Mr. Hiebert, on behalf of Mr. Farquharson, says that the police breached s. 8 of the Canadian Charter of Rights and Freedoms and that the evidence, the rifle, should be excluded. For the reasons that follow, the application is granted and the evidence is excluded.

BACKGROUND

[2] On April 19, 2010, the members of Toronto police attended at 43 Avening Drive in order to make an opportunity drug purchase. They had information that drugs were being sold from that location. Detective Constable Wallace approached the front door at about 8 pm and knocked. He was there in an undercover capacity. Two men came out of the side door. DC Wallace heard the metal of the side door opening. They had a conversation. One of the men agreed to sell him a “60 piece” of crack cocaine. The police later identified that man as Evonne Bailey. He lived at a different address. Mr. Bailey told the officer to wait as he had to get the crack and wrap it. The officer gave Mr. Bailey $60 of marked police buy money. Mr. Bailey disappeared back into the house. He did not emerge. After about five minutes DC Wallace began banging on the door. A female and a male emerged from the side door. The woman told DC Wallace that “Cat” was gone and that he should go away. They argued. Eventually the officer left.

[3] The officer in charge of the investigation, Detective Scherk, decided to apply for a search warrant for 43 Avening Drive. He went back to his office with DC Wallace. He left a surveillance team in place to watch, and possibly arrest, the man who had taken the marked buy money. He and other officers did some quick research. Some 27 hits were pulled from the various police computer systems. In his Information To Obtain Detective Scherck noted that the systems had come up with 27 hits (although he mentioned both in the ITO and in his testimony that the hits were over-lapping and that multiple hits might refer to one incident) but referred to only one that he thought was relevant. A justice of the peace granted a telewarrant with an endorsement for night-time entry.

[4] Shortly before midnight the police entered the home using a battering ram. Two uniformed officers were instructed to ender a padlocked shed that was on the property. The police used a ram to open the shed as well. Inside was music equipment. The police found a hunting rifle in the rafters of the shed. Mr. Bailey was not in the house. Neither were the proceeds of crime.

[5] It is conceded that Mr. Farquharson had no licence or registration certificate for the firearm. It is agreed that it is a working firearm. The firearm is not a restricted or prohibited weapon.

ANALYSIS

[6] There are five issues to be determined:

(1) Did the police violate Mr. Farquharson’s rights when an undercover officer knocked on the door and conducted a drug transaction?

(2) Did the information to obtain contain misleading information such that the authorizing justice could not have issued the warrant?

(3) Did the warrant cover the music shed?

(4) Was the manner of execution unreasonable?

(5) Should the evidence be excluded pursuant to s. 24(2)?

1. Did the police violate Mr. Farquharson’s rights when an undercover officer knocked on the door and conducted a drug transaction?

[7] Mr. Hiebert says that when the undercover officer approached the front door he was conducting a search and required authorization. The officer’s drug-related conversation with Mr. Bailey, he says, amounted to an illegal search and seizure and should therefore have been excluded from the warrant. Without that conversation there would have been no basis for a justice of the peace to issue the warrant.

[8] I did not call on Ms. Fineberg, Crown counsel, to respond to this argument as it is without merit.

[9] I seriously doubt that Mr. Farquharson can have a reasonable expectation of privacy in a conversation between two other people, even if that conversation occurs on his driveway: R. v. Edwards 1996 255 (SCC), [1996] 1 S.C.R. 128. I doubt he even has standing to make the argument. I agree that he has standing to argue that the officer was not entitled to enter his property and knock on his door for the purposes of an undercover investigation. Once Mr. Bailey exited the house and chose to speak to the officer, however, I have difficulty understanding how that conversation could possibly engage Mr. Farquharson’s Charter rights.

[10] There is an implied right to knock that extends to the police: R. v. Evans 1996 248 (SCC), [1996] 1 S.C.R 8. That implied right does not provide the police with authority to search for evidence. The implied right does, however, extend to the authority to communicate with the homeowner: Evans, para. 15.

[11] In R. v. Lotozky, 2006 21041 (ON CA), [2006] O.J. No. 2516, 81 O.R. (3d) 335, 210 C.C.C. (3d) 509 (C.A.) the police followed a suspected drunk driver onto the driveway of his parent’s home. The police made a breath demand. The defence argued that the police did not have the right to enter the driveway for the purpose of a search. Rosenberg J.A. rejected that argument:

[18] At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure.

[12] In my view, an undercover officer conducting an investigation into a suspected drug house in an attempt to make an opportunity drug purchase is not searching simply by knocking on the door. In all of the other implied right to knock cases the officers were looking for physical evidence or attempting to peer into windows or smell for marijuana. For example, this case is not at all the physical observation and examination of the shoes in R. v. Atkinson, 2012 ONCA 380, [2012] O.J. No. 2520, 110 O.R. (3d) 721 (C.A.). An undercover officer is merely looking to communicate. A person who chooses to communicate takes the risk that the communication will be shared with others.

2. Did the information to obtain contain misleading information such that the authorizing justice could not have issued the warrant?

Mr. Hiebert points to four things that he says are misleading in the ITO:

• The house was not kept under strict surveillance, contrary to the assertion in the ITO;

• The fact that Evnonne Bailey had recently been arrested and lived at a different address;

• The residence at 43 Avening was in fact a multiple unit building; and,

• The residents at 43 Avening told the police that “Cat” was not there anymore.

[13] I agree with Mr. Hiebert that the ITO is misleading with regard to the surveillance. I do not agree that the other issues had a bearing on whether the warrant could have been issued. I will address only the surveillance issue.

[14] In the ITO Detective Scherk indicated that

• “the address was kept under strict surveillance, including the street that backs on to 43 Avening Drive. There is no way a person could leave without being observed”;

• “the surveillance team is still in place at the of this application, and have constant access to me via cellular phone”; and,

• “A surveillance team of trained officers has been watching the address continuously since that time.”

[15] Detective Scherk stated in the ITO that he had every belief that the proceeds of crime were still in the residence. He was cross-examined on that point. He says he left clear instructions and assumed that they would be followed. In fact those instructions were not followed. The surveillance was mobile and did not include the back of the house. The surveillance officers were cross-examined at the preliminary inquiry and they made it clear that the house was not, in fact, locked down. The officers missed Mr. Bailey, who was nowhere to be found when the police battered down the door. I do not doubt that Detective Scherk swore the ITO in good faith. I found him to be a credible and careful witness. I believe him when he stated that he gave strict instructions to his team to maintain tight surveillance. I also believe that he did not appreciate that the surveillance was not nearly as tight as he intended. The leaky surveillance was an important fact that should have been brought to his attention, and to the authorizing justice’s attention.

[16] The question for a reviewing court is not whether the issuing justice should have issued the warrant, but whether the authorizing justice could have issued the warrant: R. v. Garofoli R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421.

[17] The fact that misleading information is contained in the warrant does not vitiate it: R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097

[18] The real question is, after the misleading material is excised from the warrant, is there still a basis upon which the authorizing justice could have issued it. As Sopinka J. stated in Garofoli, the question is whether there continues to be a basis upon which the warrant could have been issued.

[19] In my view, if an authorizing justice had been aware that the surveillance was not tight, and aware that Mr. Bailey could have easily slipped out the back, he or she would not have issued the warrant. The tight surveillance was critical to maintaining reasonable grounds to believe that the evidence was still in the place to be searched. In the absence of tight surveillance, there might well have been suspicions that Mr. Bailey was still there but there could not have been reasonable grounds that he was still there. The warrant, of course, was for the money and not the person, but in the context of this case the police believed that the money would likely stay with the target. Indeed, the whole purpose of obtaining a telewarrant and a night-time endorsement was because money can be moved so easily. Detective Scherk stated in the ITO:

“Money is perhaps the most transient of commodities, readily acceptable as trade by virtually everyone. Police have observations, but not control of the residence and the longer between the transaction and the execution of the search warrant, the more chance of the recovery of the evidence sought becomes compromised.”

[20] The transient nature of the money was the reason why Detective Scherk was so adamant that tight surveillance had been maintained on the property. He recognized that without tight surveillance, the police did not have reasonable grounds to believe that either Mr. Bailey or the proceeds were in the location. He also recognized, at least implicitly, that tight surveillance could not be maintained indefinitely. Without reasonable grounds, obviously, no warrant could have issued. The converse is also correct: tight surveillance would have nabbed Mr. Bailey as he left, presumably with the proceeds of crime. If Mr. Bailey did not have the proceeds of crime on him, then there would have been reasonable grounds to believe that he had left those proceeds in the residence. I therefore find that once the misleading information is excised from the ITO, no remaining grounds exist for the issuance of the warrant. In this case, amplification also clarifies that if accurate information had been before the authorizing justice, the warrant could not have been issued.

3. Did the warrant cover the music shed?

[21] Mr. Hiebert argues that the music shed was a separate outbuilding and therefore that the police required a separate warrant.

[22] The evidence on this point was diametrically opposed. The officers all testified that the music shed was under the carport and formed a part of the house, or at least a common roof with the house. Mr. Farquharson’s wife and daughter, and his good friend, also testified. They were consistent that the music shed was not under the carport and sat separately from it.

[23] Ms. Fineberg argues that I should reject the evidence of the family members as unreliable and accept the evidence of the police officers. Mr. Hiebert argues exactly the opposite, of course.

[24] I accept that the evidence of the police officers is more reliable and that the music shed was under the carport, at least in part. Kadeisha Farquharson and Angela Vassell are the daughter and wife of Mr. Farquharson. They both drew diagrams that were practically illegible and they both seemed to have hazy memories of the location of the shed, perhaps because there was more than one shed on the property. Both witnesses placed the music shed in the backyard, away from the carport. Interestingly, although both lived at the address neither had actually been inside the music shed. I find that they were confusing the music shed with the utility shed that was in the backyard. In contrast, I accept the evidence of Police Constable Craig. PC Craig made a diagram in his memo book that clearly shows the music shed to be at least partially under the carport. It is not linked by any enclosed structure or hallway to the actual residence, although the space between the shed and the residence was referred to as a hallway by most of the witnesses. I find that what the witnesses have referred to as a hallway is simply the open area between the music shed and the residence that happened to be under the carport. In fact, as will shortly become relevant, although the music shed was at least partially covered by the carport and may have had some common elements, I find that it was actually a separate structure.

[25] The warrant permits the police to search the “dwelling house situated 43 Avening Drive, Toronto, Ontario, herein called the premises”.

[26] Form 5.1 of the Criminal Code is the form for telewarrants issued under s. 487.1. The warrant for 43 Avening was a telewarrant. The form used by the police in this case appears to be a standard form, but it does not, in fact, capture the precise wording of Form 5.1. That, of course, is not fatal, but Form 5.1 refers to things to be searched for being found “in the following premises.” The warrant to search 43 Avening Drive refers to the place to be searched as “the dwelling house”.

[27] Does “dwelling house” include the music shed?

[28] Section 2 of the Criminal Code states:

“dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way…

[29] In my view, the music shed was not connected to the residence by a doorway or a covered and enclosed passage-way. None of the witnesses testified that the music shed was connected by a covered and enclosed passage-way.

[30] In R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319, 270 Man.R. (2d) 82, 275 C.C.C. (3d) 427 (C.A.) the police had a warrant to search “the premises…. At 39 Southlawn Stroll”. The officer who wrote the ITO asked for permission to search the residence as well as “outbuildings and garbage containers”. During the execution of the warrant an officer attended the backyard where he saw that a rock had apparently been moved out of a flowerbed. Curious, he turned over the rock and found a gun. Another officer found the magazine buried in the flower bed.

[31] The issue before the Manitoba Court of Appeal was whether the warrant for “the premises” included the flowerbed. Chief Justice Scott, for the Court, conducted an extensive review of the authorities, including an examination of the concept of “curtilage”:

78 Academic authorities are to the same effect and refer to the "curtilage" principle. In Scott C. Hutchison, James C. Morton & Michael P. Bury, Search and Seizure Law in Canada, looseleaf (Toronto: Thomson Reuters Canada Limited, 2005), vol. 1, ch. 16, it is noted (at pp. 16-31, 16-32):

As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in the order (which would only include the "curtilage" [from the footnote: Curtilage generally includes all lands immediately associated with a building identified in the warrant]), a search of a dwelling-house does not import authority to search any outbuildings, garages, sheds, barns, receptacles, lockers, etc., at the same location as the principal residence. ....

[emphasis added]

[32] Chief Justice Scott further commented:

92 As I have noted, the warrant in the case at bar was for "the premises of [the appellant] at 39 Southlawn Stroll." It was not a dwelling-house warrant. Instead, one might refer to it as a "civic address warrant." As noted in the discussion of Tesfai above, that case involved a dwelling-house warrant, not a warrant for the premises, as is the case here. Similarly, in the case of R. v. Chuhaniuk, 2010 BCCA 403, 261 C.C.C. (3d) 486, relied on by the appellant, the warrant was for the accused's residence.

93 In my opinion, a review of the case law leads to the conclusion that the term "dwelling-house" is narrower than the term "premises”…

[33] Chief Justice Scott ultimately found that the curtilage principle applied and that the premises included the flowerbed. The evidence was admitted.

[34] See also: R. v. N.N.M., 2007 31570 (ON SC), [2007] O.J. No. 3022, 223 C.C.C. (3d) 417 (Sup.Ct.) where Hill J. conducts an extensive and detailed review of the case law surrounding curtilage and out-buildings.

[35] The policy reasons for distinguishing between a “dwelling house” and “premises” are obvious. A dwelling house is a premises but a premises is not necessarily a dwelling house. A premises could be a place where the occupants enjoy a very limited expectation of privacy, such as a business where members of the public attend regularly. A dwelling house obviously enjoys the highest degree of privacy recognized by our law, short of bodily integrity.

[36] In R. v. Chuhaniuk, 2010 BCCA 403, [2010] B.C.J. No. 1815, 261 C.C.C. (3d) 486 (C.A.) the police requested a warrant to search a residence and outbuildings. The justice of the peace only granted a warrant for the residence. During the course of executing the warrant, the police checked the outbuildings for officer safety purposes. They discovered a marijuana grow operation and sought a second warrant, which was granted. Frankel J.A., for the Court, found that a warrant to search one building on a particular property does not give licence to search all the buildings on a property. The police have the right to enter and inspect other places on the property in order to protect themselves and others. There must be a reasonable basis to believe that there are safety concerns, however. There is no general right to search.

[37] To look at it a different way, as Hill J. noted in R. v. N.N.M., a break-in at the music-shed would likely not constitute the offence of breaking and entering a dwelling house: R. v. N.N.M., para. 367; Criminal Code, s. 348(1).

[38] In my view, the music shed can not be said to be part of the “dwelling house” either for the purposes of the warrant or as part of the curtilage as defined by s. 2 of the Criminal Code. The music shed was not meant to be accessible from the residence. It had a separate lock and key. It was the equivalent of an outbuilding. It had a separate key because the carport was open to the outside world and anyone could have wandered up the driveway, into the carport, and into the shed if it were not locked. The fact that it was not part of the actual residence where people lived is illustrated by that fact that only Mr. Farquharson had a key. His daughter, Kadeisha, testified that she was never in the music shed. It was obviously not accessible from the residence.

[39] A search of the rafters of the music shed cannot be said to be for the purposes of officer safety, as described by the British Columbia Court of Appeal in R. v. Chuhaniuk. There was no evidence that a dangerous person might have been lurking there. Indeed, the officers designated to search the music shed testified that they were told that they were searching for money.

[40] Where the police wish to search a dwelling house, they must describe it with great precision. The police were mindful of their duties and did so here. The ITO did not mention outbuildings or garages. In any event, the police had no grounds to believe that Mr. Bailey or the proceeds of crime were in the music shed. There was evidence that the front of the house was under stricter surveillance than the back. If the music shed had been in the carport, as the officers testified, then they likely would have seen someone enter it. They did not. If the music shed had been behind the carport, where the police had imperfect or no surveillance, they also would not likely have seen someone enter it. The police therefore had no grounds to believe that someone had left the house, gone to the music shed, and secreted the proceeds of crime in it. Since no warrant could have or did issue, the search was warrantless and therefore in violation of s. 8 of the Charter.

4. Was the manner of execution unreasonable?

[41] Mr. Hiebert argues that the use of a battering ram to ender the home in the middle of the night was excessive when the object of the search was money. He says the police should have knocked. I disagree. If the object of the search was money in the context of a fraud investigation and the place to be searched was a business premises a battering ram might not be necessary. If the object of the search was money in the context of an armed robbery investigation and the place to be searched was the hideout, no doubt the police would be justified in taking measures necessary to protect themselves. The police had information that 43 Avening was a location where drugs were sold. Indeed, a drug transaction had already taken place there that evening. Drugs and weapons frequently go together. The drug trade is violent. Unless the actions of the police are thoroughly unreasonable, the court should not second-guess police officers engaged in the execution of what may well be dangerous duties. Furthermore, the proceeds of crime, which consisted of four bills, could easily have been flushed down a toilet or burned in a fireplace if the police were required to knock. I do not think that the police should be second-guessed in this case.

[42] I do not find it necessary to deal with the issue of the night endorsement at length. Suffice it to say that I am satisfied that there was a basis upon which the authorizing justice could have permitted the execution of the warrant at night, assuming all other pre-conditions had been met.

[43] I do agree with Mr. Hiebert, however, that the use of a ram to enter the music shed was unreasonable. The police had complete control of the premises when the music shed was searched. Mr. Farquharson told them that a key was available. The shed was locked from the outside, which meant that if someone were hiding in the shed someone else would have locked him or her in. That seems very unlikely and certainly there was no evidence to suggest that a person was, in fact, in the shed. In my view, the use of the ram to enter the music shed was un-necessary and unreasonable.

5. Should the evidence be excluded pursuant to s. 24(2)?

[44] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the Supreme Court of Canada revised the framework for analysis for s. 24(2) of the Canadian Charter of Rights and Freedoms. The court created a new three-pronged test:

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under 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…

The seriousness of the Charter-infringing state conduct

[45] In my view, the warrantless search of a locked building that forms part of the premises (although not the dwelling house) is serious. On the spectrum of seriousness, it is obviously not as serious as a warrantless search that actually involves a dwelling house or bodily integrity. That said, it is a serious violation of privacy. It occurred on private property at night. It is not trivial.

[46] I do not find bad faith on the part of the police in terms of obtaining the warrant. I do not believe that Detective Scherk intentionally misled the authorizing justice. As noted, I found him to be a truthful and careful officer. The information flow between him as supervisor and his team was, however, problematic. Ordinarily the internal organization of a police team is of no concern to the Court, but in this case that information flow (or lack of information flow) caused misleading information to be placed before the authorizing justice. That misleading information led to a search without grounds. The police procedures in this case were flawed.

[47] I am also troubled by some of the actions upon the execution of the warrant. As noted, I have found that the manner of execution in terms of entering the shed was unreasonable. It was not necessary to break down the door when a key was available. A search warrant certainly entitles the police to take those steps that are reasonably necessary to protect themselves and the public. It does not entitle the police to take unreasonable steps that result in damage to property that they did not have the authority to search in the first place.

[48] Notwithstanding the good faith of Detective Scherk, I find this to be a serious violation. A night-time entry into private property without grounds absent exigent circumstances cannot be characterized as anything but serious. With great respect to the officers, who do a difficult job under difficult circumstances, it is troubling in the context of a search of a building where the police had no grounds to believe that evidence would be found and no grounds that it was necessary for officer safety purposes. As noted, the officers who searched the music shed were searching for evidence, not clearing it for safety purposes.

The impact on the Charter-protected interests of the accused

[49] The impact of the illegal search on Mr. Farquharson’s Charter-protected interests was significant. The police entered Mr. Farquharson’s private property without grounds at night and without exigent circumstances relating to human safety. Although not part of the dwelling house, as a locked building on private property the music shed was a place where Mr. Farquharson enjoyed a high expectation of privacy. Given his obvious interest in music, and the key on the shed, it is clear that the “biographical core of information” that the Charter seeks to protect was heavily engaged. The impact is obviously serious.

Society’s interest in the adjudication of the case on its merits

[50] In this final prong of the Grant analysis, the Court must consider the fact that the evidence sought to be excluded is real evidence that forms the entirety of the Crown’s case. Society always has an interest in the adjudication of the case on its merits, but that interest must, of course, be balanced against the important role that the Court has in safeguarding Charter rights.

[51] Cases involving a firearm are always serious. Firearms always create a risk of serious bodily harm, which is why Parliament has chosen to treat firearms violations so seriously even where the risk of harm is relatively low. That said, there are firearms that are extremely dangerous and serve no useful purpose and firearms that have a legitimate role. As Doherty J.A. commented in a different context in the very recent case of R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.):

32 Firearms that fall within the definition of either a prohibited or restricted firearm are commonly connected to criminal activity and seldom associated with any legitimate employment or activity. Firearms that do not fall within either definition, e.g. long rifles and shotguns, are associated with legitimate activities such as hunting and farming.

[52] The firearm in this case was a hunting rifle. It did not have readily accessible ammunition that fit the weapon. It was not a pistol useful for knocking off convenience stores or rivals in the drug trade. It was not an assault rifle that could be used for Newton-style school massacres. I do not wish to minimize the seriousness of illegal possession of a firearm, particularly in our city where illegal firearms have caused such havoc and tragedy, but I would take a very different of this matter if the weapon was of a type “commonly connected to criminal activity” where the risk of harm to the public is great. I would be much more inclined to admit the evidence were the firearm in question a loaded handgun or an assault rifle.

[53] In my respectful view, society’s interest in the adjudication of the case on the merits is outweighed, by the necessity to disassociate the court from this particular warrantless search of private property. It is also important to disassociate the court from the unreasonable execution.

Conclusions on s. 24(2)

[54] In this case, the Court is faced with a warrantless search that yielded a hunting rifle. I note that there was more than one aspect to the Charter-infringing state conduct here: there was misleading information in the ITO; the warrant did not cover the building that was actually searched; and the manner of execution was unreasonable. When those violations are balanced against the type of firearm that was seized and the relatively high expectation of privacy in the music shed, I find that the appropriate course is to exclude the evidence.

DISPOSITION:

[55] The application is granted. The seized evidence is excluded

Goldstein J.

Released: December 18, 2013