COURT FILE AND PARTIES

COURT FILE NO.: 13212/12
DATE: 20140226

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Pammett

BEFORE: Justice McCarthy

COUNSEL:
A. Weiler & S. Egan, for the Crown

T. Balka, for Pammett

HEARD: February 25, 2014

ENDORSEMENT

The Relief Sought

[1] In the third part of this Garofoli application, the Applicant seeks an order that the search warrant executed at 615 George Street, Peterborough, on February 10, 2011 (“the warrant”), was constitutionally invalid and that the evidence obtained pursuant to that warrant be excluded from the trial of this matter. That relief is sought pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“the Charter”).

[2] The Applicant further seeks an exclusion of additional evidence obtained in a subsequent investigation, specifically comments made by the Applicant in respect of the alleged unlawful search. The exclusion is sought on the basis that this evidence was obtained in the course of a Charter violation or as part of a chain of events stemming from a Charter violation.

The Warrant and Search

[3] On the strength of the Information to Obtain (ITO), authored by Detective Constable Davies, Number 688, the impugned warrant was issued on February 9, 2011 by Justice of the Peace Solursh. Pursuant to the warrant, a search was executed on February 10, 2011.

The Applicant’s Position

[4] The Applicant argues that, on its very face, the warrant is invalid because it fails to set out a date on which the warrant was to be executed. Moreover, the warrant, in the absence of a specified search date, had to be executed on the date of issuance, that is, February 9, 2011. The record is clear that the warrant was not executed on the date of issuance and must, therefore, be held to be invalid. The Applicant submits that the police had no authority to enter the residence in question; accordingly, the Applicant’s s.8 Charter rights have been violated. The court should now proceed to a consideration of a remedy under s. 24(2) of the Charter. The Applicant relies on the case of R. v. Rafferty, 2012 ONSC 703, [2012] O.J. No. 2132, for the proposition that if it is intended that a warrant be executed on some date other than the date on which it is signed, then that date or date range must be specified. Failure to do so can be fatal to the warrant’s constitutional validity.

[5] The Applicant contends that the proper Charter remedy is an exclusion of the evidence obtained pursuant to the unlawful search. Under the lines of inquiry set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, paras. 67-86, evidence is to be excluded when the court finds that the infringing state conduct was serious, when the corresponding deprivation of Charter-protected rights on the accused was grave and when the administration of justice would not be brought into disrepute by the exclusion of the evidence. The Applicant submits that all three factors are met in this application.

[6] Finally, the Applicant contends that the comments made by the Applicant about the impugned search should be excluded. The Applicant argues that there is a sufficient temporal and causal link between the Charter infringement and the capturing of those comments via the Part VI authorization. The Applicant relies on the Supreme Court of Canada decisions in R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, and R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463. The Applicant urges this court to find that the comments made by the accused form part of the same chain of events initiated by the Charter infringing warrant.

The Crown’s Position

[7] The Crown argues that the absence of a permitted search date on the warrant was a mere technical irregularity which does not fundamentally undermine the integrity of the warrant. The ITO submitted in support of the warrant request was entirely clear that the proposed takedown warrants were to be executed starting at 6am on February 10, 2011. The fact that the warrant was issued at 8:25pm on February 9, 2011 and authorized the police to conduct the search between the hours of 6:00am and 1:00pm made it implicit that the search would be conducted during that window on the next day, that being February 10, 2011. The evidence of P.C. Maxwell at the preliminary inquiry on September 18, 2012 makes this abundantly clear. What was requested in the ITO, what was authorized by the warrant and what took place on the ground are all entirely consistent. The failure to insert the search date on the warrant was a mere oversight. Moreover, the Crown submits that the comments of the Court of Appeal in R. v. McCarthy (1995), 1995 965 (ON CA), 91 O.A.C. 348, wherein the panel agreed with the appellant’s concession that the absence of the date on which the warrant could be executed was only a technical defect, is authority for the proposition that technical shortcomings should not serve to undermine the integrity of a warrant.

[8] The Crown argues that, even in the event of a Charter infringement, there must be no exclusion of evidence under s. 24(2) of the Charter in light of the technical nature of the breach, the limited impact on the accused’s rights, the importance of that evidence to the Crown’s case and the need to uphold the integrity of the administration of justice.

[9] Finally, the Crown argues that there is an insufficient temporal and causal link between the alleged infringement and the Applicant’s comments made some eighteen months later. In addition, the issuance of the Part VI authorization was a constitutionally cleansing event that drove a wedge between the alleged Charter infringement and the comments captured through the authorization. Moreover, there was no conduct by the police that caused, encouraged or prompted the Applicant to make the comments in question. The Applicant did so out of his own free will, well after the alleged Charter infringement had occurred.

Analysis

[10] I am unable to find any s. 8 Charter infringement. The comments by the Court of Appeal in McCarthy, although not dispositive of the appeal in that case, nevertheless provide binding guidance on the issue. Technical irregularities should not serve to undermine or upset presumptively valid warrants unless the technical irregularity carries with it some evidence of bad faith or negligence, or has served to deceive or confuse an involved person. It is clear from the record that the Justice of the Peace issued the warrant in the evening prior to the actual search and that the window allowed for executing the warrant was from 6am to 1pm. By implication, this would signify that the warrant was to be executed the next day. It is clear that the date of February 10, 2011 was proposed in the ITO. It is also clear that the search was executed within that window on the target date. There is absolutely no evidence of bad faith, high handed or neglectful conduct on the part of the police. In the entire circumstances of this case, the failure to specify the date on which the warrant was to be executed does not render the authorized search unlawful, arbitrary or unreasonable. There was no infringement of the Applicant’s Charter rights.

[11] In the event that I am wrong in my conclusion that there was no infringement, I would not be prepared to order the exclusion of the evidence as a remedy under s. 24(2) of the Charter. The infringement was not serious. The deficiency in the warrant was technical and did not compromise the integrity or basis of the authorization. The deprivation to the Applicant was inconsequential; a perfectly constituted warrant would have borne the date of February 10, 2011 but nonetheless would have brought about the same result. The evidence obtained is of real importance to the Crown’s case. I find that the administration of justice would be brought into disrepute if that evidence were to be excluded.

[12] I do agree with the Applicant that, had there been a Charter infringement and an accompanying s. 24(2) exclusion remedy, this would have properly resulted in the exclusion of the comments captured on the Part VI authorization. Regardless of the length of time between the infringing event and the comments, it is clear that the Applicant would not have made the comments if the warrant had not been granted and executed. This may seem self-evident but it is important. The chain was not broken by any constitutionally cleansing event. I agree with counsel for the Applicant that the case of R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259, can be distinguished from the case at bar because the cleansing event in Simon, namely the accused giving his express, unqualified and informed consent for the police to take a saliva sample, drove a wedge between the giving of that sample and what had been found to be an earlier s. 10 (b) Charter breach. There was no such chain breaking or cleansing event in the case at bar. In light of my ruling on the alleged Charter infringement, however, the point is moot.

Disposition

[13] For the reasons set out above, I conclude that neither the granting nor the execution of the warrant served to infringe the Applicant’s s. 8 Charter rights. Accordingly, there is no remedy available to the Applicant under s. 24(2) of the Charter. That portion of the application is dismissed.

Justice McCarthy

Date: February 26, 2014