COURT FILE NO.: 13-50000194-0000
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Larry Hardiman
Defendant
Andrea MacGillivray, for the Crown
Mary Cremer, for the Defendant
HEARD: November 18, 19, & 20, 2013
goldstein j.
ruling on application to exclude evidence
BACKGROUND
[1] In the fall of 2011 Larry Hardiman was hired by Philipp Welsch to assist in moving the belongings of Kelly Rainville. One of Mr. Hardiman’s duties was to rent two temporary storage lockers at a facility on Lakeshore Boulevard. Ms. Rainville’s property was placed in the storage lockers. The property consisted of expensive art, such as antique vases and large oil paintings. Mr. Hardiman later refused to release the property unless he was paid $6000.00. Ms. Rainville contacted the Toronto Police Service. On November 3, 2011 the police obtained search warrants for the two lockers. Some of Ms. Rainville’s property was found in the lockers. Some property was still missing. The police later learned that Mr. Hardiman rented a storage locker at a self-storage company at 345 Danforth Avenue. On November 7, 2011 the police obtained search warrants for the Danforth storage locker and for Mr. Hardiman’s home at 160 The Esplanade, Unit 611. When the police executed those warrants they did not find any of Ms. Rainville’s property. What the police did find in both locations were machines used for the production of fraudulent credit cards, computers, blank or partially finished credit cards, and “how to” books for making fake identification.
[2] The police seized the items under authority of s. 489(1) of the Criminal Code and the common law “plain view” doctrine. They did not obtain a warrant to further search either location. They did obtain a warrant to conduct electronic searches of the seized computers. The Crown sought to introduce those items into evidence in order to prove Mr. Hardiman guilty of charges related to the manufacture, possession, and use of fraudulent credit cards. Ms. Cremer, on behalf of Mr. Hardiman, brought a motion pursuant to the Canadian Charter of Rights and Freedoms to exclude the evidence on the grounds that the police had no authority to seize the items. All parties acknowledged that the outcome of the Charter motion would determine the disposition of the charges. On November 22, 2013 I dismissed the application with reasons to follow. These are those reasons.
FACTS
[3] Kelly Rainville owned a townhouse at 2289 Lakeshore Boulevard, Townhouse 113. Philipp Welsch was in the moving business. He was operations manager for Tender Touch Moving. Ms. Rainville and Mr. Welsch had a longstanding business relationship. Mr. Welsch testified that Tender Touch specializes in moving the property of very wealthy people. Ms. Rainville was a VIP client.
[4] In the summer of 2011 Ms. Rainville needed to move out of her townhouse. She intended to put her property into storage. The property consisted of very expensive artwork, objets d’art, and antique furniture. Tender Touch offered storage services as well as moving services. Ms. Rainville hired Mr. Welsch to conduct the move. The plan was to move the property from Ms. Rainville’s townhouse to Tender Touch’s storage facility in Barrie, Ontario.
[5] Mr. Welsch hired Larry Hardiman to assist with various aspects of the move. Mr. Hardiman was also told to rent two storage lockers at All-Canadian Self-Storage. Mr. Welsch gave Mr. Hardiman two high-security locks for that purpose.
[6] At the end of September, 2011, Mr. Welsch attended All-Canadian Self-Storage to retrieve Ms. Rainville’s property. He found his high-security locks cut and new locks installed. Mr. Hardiman was supposed to give Mr. Welsch access to the lockers. The rental agreement, however, stipulated that no one but Mr. Hardiman was to have access.
[7] Mr. Hardiman and Mr. Welsch were having a disagreement about money. Mr. Hardiman refused to release the property until he received his price. After almost a month of fruitless negotiations, Mr. Welsch informed Ms. Rainville that Mr. Hardiman had some of her property in a storage locker and refused to release it. Ms. Rainville and Mr. Hardiman spoke. Mr. Hardiman asked for $6000 in order to release the property.
[8] Ms. Rainville instead went to the police. On November 3, 2011 the Toronto Police Service executed a warrant at All-Canadian Self-Storage. The two lockers contained Ms. Rainville’s property but it was apparent that some property was still missing. Mr. Welsch informed the police that he was aware that Mr. Hardiman rented space at a self-storage facility at 345 Danforth. After further investigative work, the police obtained warrants for 345 Danforth and for Mr. Hardiman’s apartment at The Esplanade.
[9] On November 7, 2011 the police executed the warrant at Danforth. Mr. Hardiman had rented a storage locker that was approximately the size of a one-car garage. The space contained materials and tools for what appeared to be a workshop. Ms. Rainville’s art was nowhere in sight. Contained within the unit was a small room that was locked. The police removed the door and entered the room. Detective Miron described taking the door off the hinges. It was immediately apparent to him that the room contained equipment consistent with credit card manufacturing. Detective Finlay testified that the combination of monitors, computers, and printers led him to believe that it was a manufacturing area for illegal credit cards. Detective Finlay also testified that when he entered the room blank credit cards and other paraphernalia was scattered about. He agreed that it was quite likely that the paraphernalia had been placed there by other officers conducting the search. Detective Beaver testified that when he first saw the room there were ID cards and other items scattered on the desk. He testified that he searched some cupboards. Constable Passerino testified that he was aware that some of the magnetic cards were used for “skimming”, meaning that they could be modified to access other people’s bank accounts.
[10] It is unclear who was the first officer in the small locked room. The police officers testified that it would be standard for the forensic identification officer to go in and take photographs before any actual searching was done. Constable Passerino testified that he generally took photographs before the other officers started searching.
[11] Exhibit 13A is a photograph of the small locked room at 345 Danforth. The room is undisturbed. There is a filing cabinet under the desk. On the desk is a computer monitor, credit card printer, keyboard, and computer. On shelves above the desk is another embosser, more computers, and other equipment. The top drawer of the filing cabinet is open. There are no books, blank credit cards, ID cards, or other items on the desk. Constable Passerino testified other officers likely placed those items there. Those items appear on the desk in other photographs. That is undoubtedly what happened.
[12] Exhibit 20C is a close-up of the open drawer. There are blank credit cards, magnetic strips, and ID cards that are visible in the photograph.
[13] I find as a fact that Exhibits 13A and 20C represent the state of the room prior to searching. The equipment on the desk was in plain view. I also find as a fact that the top drawer of the filing cabinet was open. The open drawer means that the visible items – blank credit cards, magnetic strips, and ID cards – were also in plain view. The items scattered on the desk obviously came from a search of the open drawer as well as searches of other drawers and cupboards.
[14] The items to be seized that were described in the warrant were Ms. Rainville’s missing pieces of art. The police were aware that Mr. Hardiman had a criminal record for fraud. That fact was set out in the information to obtain. They had no idea, however, that they would stumble upon a factory for making fake ID and fraudulent credit cards. Thus when they seized the machines and the paraphernalia they did so under the authority of s. 489(1) of the Criminal Code or the common law plain view doctrine.
[15] Once the evidence from the storage locker at 345 Danforth was seized and secured, the police moved on to Mr. Hardiman’s apartment at The Esplanade. Within the apartment was a locked room that also contained what can only be described as a credit card factory. The police found a stamping press, a laminator, computers, and a monitor. It is clear that the police saw the large items and proceeded to search the room. More blank credit cards and other paraphernalia was seized.
[16] Although none of the officers could indicate whether they had searched the drawers and cupboards in the small rooms at either the Danforth or The Esplanade (with the exception of Detective Beaver) it is obvious that they must have done so. The photographic evidence makes it clear that once the officers entered the closed off part of the Danforth and the storage closet at The Esplanade the blank credit cards and other incriminating small items were not laid out on the desks. Officers clearly went through the drawers and seized those items. Only the large items – embosser, printers, computers, monitors, laminators, the blue press – were in plain view on the desk or the shelves. It was also obvious from the moment the police were in the small rooms that none of Ms. Rainville’s property was present.
ANALYSIS:
[17] Mr. Hardiman had a reasonable expectation of privacy at both locations, although the expectation of privacy at his home was obviously higher. Thus, he has standing to make the argument.
[18] Whether or not there has been a violation of s. 8 of the Charter comes down to whether or not the seizure of evidence from 345 Danforth and The Esplanade can be justified under either s. 489(1) of the Criminal Code or under the common law plain view doctrine. Thus, the issues can be framed this way:
Were the seizures at 345 Danforth and The Esplanade authorized by the common law plain view doctrine or s. 489(1) of the Criminal Code?
If not, should the evidence be excluded under s. 24(2) of the Charter?
1. Were the seizures at 345 Danforth and The Esplanade authorized by the common law plain view doctrine or s. 489(1) of the Criminal Code?
[19] Ms. Cremer concedes that the police were lawfully present at 345 Danforth and The Esplanade. She also concedes that the police were authorized to enter the closed-off spaces in both locations where the contraband was found. The evidence is clear that when the police peered into the two small rooms it was immediately apparent that the large items of Ms. Rainville’s property that was still missing were not there. The police, she argues, were not entitled to then conduct a further search of the room. Ms. Cremer urges me to adopt the following chain of reasoning:
• When the police opened the doors to the two small rooms they knew or should have known immediately that the items to be searched for were not there;
• The large items on the shelves and the desks - the embossers, printers, laminators, and computers – were not enough to form reasonable grounds to believe that they were used for the commission of an offence;
• The drawers containing blank credit cards and gift cards and other paraphernalia were not in plain view;
• The police were not authorized to look in the drawers;
• Without the combination of the blank cards and paraphernalia the police did not have reasonable grounds. The seizure was not authorized by law.
[20] I respectfully disagree. In my view the presence of the embossers, laminators, computers, and printers did give rise to reasonable and probable grounds. Constable Passerino and Detective Miron both commented that the purpose of the machines was obvious. Detective Miron agreed that each single machine did not give rise to a suspicion of criminal activity, but taken together they did. Detective Passerino would have seen the room before the credit cards were scattered about (although he would have seen the open drawer). When the blank credit cards and other paraphernalia seen in the open drawer are added into the mix, the purpose of the room is obvious.
[21] I note that there is no evidence to suggest that an officer went into the small locked room at 345 Danforth and opened the drawer before Constable Passerino took a photograph.
[22] The presence of the embosser, computers, monitors, keyboards, and credit card printer at both locations would have been enough for the police to form reasonable grounds to believe that an offence had occurred even without the material in the open drawer at 345 Danforth. Although those items are not in and of themselves criminal, when considered in combination their purpose gives rise to reasonable grounds to believe that an offence is occurring.
[23] The purpose of the machines at 160 The Esplanade would have been informed by the presence of the machines (even without the blank credit cards) at 345 Danforth. In other words, once the police had seen the machines at 345 Danforth they would have immediately drawn the same conclusion about the machines at The Espalande.
[24] I do, however, agree that the police were not entitled to open the other drawers or cabinets and search any further at either location, which they did. The police were not authorized by law to seize the blank credit cards, blank gift cards, and other paraphernalia that was not immediately visible. If the police wanted to conduct a further, more intrusive search, they needed to obtain another warrant. I say this because the police had no need to search in drawers or cupboards in order to search for Ms. Rainville’s property. At that point they were looking for large items such as furniture, vases, and large paintings. None of that was likely to be secreted in a drawer.
[25] Section 489(1) of the Criminal Code authorizes anyone executing a warrant to seize anything that he or she believes on reasonable grounds will afford evidence in respect of an offence.
[26] In R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, 160 C.C.C. (3d) 449, the accused operated a restaurant. The restaurant was the victim of a theft. The accused reported the theft of a safe from the restaurant. The police located the open safe in a field. The safe contained documents. Prior to returning the safe the police copied the documents and turned them over to Revenue Canada. The documents contained Chinese characters and accounting figures. Revenue Canada commenced a tax evasion investigation and, relying on the copied documents, obtained a search warrant for the restaurant. At their trial for tax offences, the accused argued that the fruits of the search should be excluded because the warrant was based on documents that were seized illegally. The Supreme Court of Canada found that the police were entitled to examine the safe for the purpose of the theft investigation. They were not entitled to rifle through the contents for an unrelated purpose as the owners still retained an expectation of privacy. The plain view doctrine did not assist, as the police had no idea what the documents represented. The tax evasion offence was not immediately apparent – although the police were certainly suspicious, the tax evasion did not come to light until the documents were translated and analyzed.
[27] In R. v. Jones, 2011 ONCA 632, [2011] O.J. No. 4388, 107 O.R. (3d) 241, 278 C.C.C. (3d) 157 (C.A.) the police seized a computer under a warrant. The warrant permitted the police to search for evidence of a fraud. While searching the police found child pornography. The police obtained legal advice from a Crown Attorney and, based on that advice, continued searching. They found photographs and videos. One of the issues before the Court of Appeal was whether those seizures were justified by either the plain view doctrine or s. 489(1) of the Criminal Code. The real issues before the Court concerned the reach and scope of the authority to search computers. Those issues engaged the principles underlying the plain view doctrine and s. 489(1). The discussion is therefore useful in informing the analysis in this case.
[28] In discussing the plain view doctrine, Blair J.A. stated:
56 The "plain view" doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however:
(i) The officer must be lawfully in the place where the search is being conducted ("lawfully positioned", in the language of the authorities);
(ii) The nature of the evidence must be immediately apparent as constituting a criminal offence;
(iii) The evidence must have been discovered inadvertently;
(iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.
[29] Blair J.A. also discussed the reach and scope of s. 489(1):
72 There is very little jurisprudence dealing with s. 489. In Fawthrop, at para. 27, Borins J.A. concluded, after a brief consideration of the section, that,
... the power of seizure which [subsections (1) and (2)] authorize necessarily is confined to what police officers locate in the execution of a valid search warrant under subsection (1) or where an officer is lawfully present in a place under subsection (2). Therefore, read as a whole, s. 489 authorizes police officers to lawfully seize items which they locate in the circumstances provided for in subsections (1) and (2).
73 Implicit in the s. 489 power is the premise that the law enforcement officer has come across or seen something in the course of a lawful search. The law enforcement officer must have reasonable and probable grounds to believe that that something "will afford evidence" of a crime. For the reasons expressed above, Sgt. Rimnyak did not come across or see the video files in the course of his initial seizure and search of the computer. Like the plain view doctrine, s. 489 provides law enforcement agencies with a right to seize. It does not provide them with a right to search for further evidence.
[30] The police were in both locations lawfully. They were entitled to seize any thing that they believed on reasonable grounds would evidence of the commission of an offence. That is why they were entitled to seize the machines that were on the desks and anything in the open drawer that was immediately obvious but they were not entitled to search. They were not entitled to go open other drawers or cupboards and search them.
[31] The facts of this case may be contrasted with the facts in R. v. Cook, [2008] O.J. No. 4765, 182 C.R.R. (2d) 158 (Sup.Ct.). The police executed a Controlled Drugs and Substances Act warrant. They unexpectedly came across a box containing MP3 players. The police were suspicious that the MP3 players were stolen property, but they never said that they had reasonable grounds. Accordingly, the seizure in that case was not authorized by either plain view or s. 489(1) of the Criminal Code.
2. Should the evidence be excluded under s. 24(2) of the Charter?
[32] The large machines – the embosser, the card printer, the computers, the monitors, the keyboards – were all seized in compliance with s. 489(1) of the Criminal Code and/or the plain view doctrine. The magnetic strips, blank credit cards, and fake ID that were immediately visible in the open cabinet drawer at 345 Danforth were also seized in accordance with s. 489(1) of the Criminal Code or the plain view doctrine. It is, therefore, not necessary to consider s. 24(2) of the Charter in relation to that evidence.
[33] Everything else that was taken from closed drawers or cupboards was seized without a warrant and therefore in violation of s. 8 of the Charter. It is necessary to consider whether that evidence can still be admitted.
[34] A practical problem arises. Although some items were clearly not visible in the open drawer at 345 Danforth – such as the books – it is impossible to tell which items were in plain view in that drawer and which items were taken out of that drawer and spread out on the desk for seizure. Regrettably, the police did not keep track. In light of my ultimate ruling – which is that the evidence is admissible – the failure to keep track is irrelevant.
[35] The same problem does not arise with 160 The Esplanade. As I understand the evidence, the blank credit cards, gift cards, magnetic strips, and other small items were all taken from drawers or cubpoards. They were all seized without authority and therefore in violation of s. 8 of the Charter.
[36] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 set out the three-pronged test for determining whether evidence should be excluded on the basis of s. 24(2) of the Charter:
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:
[37] The police were lawfully entitled to be present at both locations. They were lawfully entitled to conduct searches. They were lawfully entitled to seize the machines in plain view. They were also lawfully entitled to seize items lying at the top of the open drawer.
[38] The police undoubtedly had reasonable grounds to search the drawers and the cupboards at both locations. At that point, as the officers all admitted, the investigation had changed, or at least widened, to include fraud and credit-card related offences. The police undoubtedly could have kept an officer at each location to maintain continuity and obtained a second warrant. Detective Constable Watson, the officer-in-charge of the investigation and the search warrant affiant, testified that it never occurred to him to obtain a second warrant as he believed that the police were in both locations lawfully. In fairness, Detective Constable Watson testified that when he went into the back room at 345 Danforth the blank credit cards and other paraphernalia were scattered on the desk. He may not have realized that at that point the other officers had gone through the drawers. Alternatively, the evidence on the desk may have been the items that were lying on the top of the open drawer.
[39] The failure of Detective Constable Watson to consider obtaining a second warrant can cut both ways. On the one hand, he should have known that the police are not authorized under the plain view doctrine or the Criminal Code to search – they are only entitled to seize. On the other hand, it appears that he was not aware that other officers had searched drawers or cupboards at either location. Under those circumstances, he was entitled to assume, even if incorrectly, that he did not need a second warrant. I therefore do not fault him for not obtaining a second warrant and I find no bad faith. That said, there should have been better control over the location within each room that each item of evidence was seized. Although Constable Passerino photographed each search location in detail, that was no substitute for proper inventory control by the police.
[40] On balance, therefore, I find that the Charter-infringing conduct of the police was toward the least serious end of the spectrum. Although it was more than “fleeting or technical” it was not abusive, wilful, flagrant, or deliberate. I make this finding the following reasons:
• The police did not act in bad faith. They understood the importance of judicial authorization to search. They subsequently obtained warrants for the hard drives and computers that were seized at both locations, and did not simply search without authorization;
• The police were at each location lawfully;
• The police undoubtedly had reasonable grounds and could have obtained a second warrant had they thought they needed one;
• The police did not anticipate or expect to find a factory for making fraudulent credit cards;
The impact of the breach on the Charter-protected interests of the accused:
[41] The more serious the impact on the accused person’s Charter-protected interests, the greater the risk that the admission of the evidence will bring the administration of justice into disrepute. A court must examine the interests engaged and look at the impact of the violation on those interests. As the Supreme Court noted in Grant (at para. 77), where, for example, a statement has been taken from an accused person in violation of s. 7 right to silence, the impact will be very high. A body cavity search in violation of s. 8 offends human dignity in a profound way.
[42] In this case, the impact of the breach was also towards the less serious end of the spectrum, although it was not trivial. The police were lawfully present at a storage unit (where Mr. Hardiman enjoyed an expectation of privacy that was less than that enjoyed in his home) and at his apartment. The violation was to look in drawers and cupboards, not look in Mr. Hardiman’s body, take a sample of bodily tissue against his wishes, or compel a statement. Those are examples of much more serious conduct by the police.
Society’s interest in the adjudication of the case on its merits:
[43] On this head of the Grant test, a Court must determine whether the truth-seeking function of a criminal trial will be better served by the admission of evidence rather than by exclusion. The reliability of the evidence will have an impact. For example, real evidence that is inherently reliable will usually do more to advance the public interest in the search for the truth than evidence that is compelled from the accused. As the court pointed out in Grant, the converse is also true.
[44] In this case, the evidence that the Crown seeks to introduce is real evidence in relation to serious charges relating to credit card fraud. It was discovered by accident and not as a result of some subterfuge or in order to get around the requirements of the Criminal Code. In my view, the administration of justice would not be well-served by excluding the evidence.
Conclusion on S. 24(2):
[45] In my view, the balance in this case favours inclusion rather than exclusion. Given that the Charter-infringing state conduct and the impact of the breach tend towards the less serious end of the spectrum, and that the evidence is real evidence, the analysis militates against exclusion.
DISPOSITION
[46] The application is dismissed.
Goldstein J.
Released: December 20, 2013
COURT FILE NO.: 13-50000194-0000
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Larry Hardiman
Defendant
Ruling on application to exclude evidence
Goldstein J.
Released: December 20, 2013