ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-90000-216-0000
DATE: 2014/06/02

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SUET STACY TING

Accused

Andrew Weise and Kester Yeh, for the Crown

Dragi Zekavica, for the Accused

HEARD: May 26 to May 29, 2014

RULING ON A VOIR DIRE

(Ruling on Charter of Rights, s. 8, search and seizure)

ALLEN, J.: (Orally)

BACKGROUND

[1] The accused, Suet Tracy Ting, was arrested on November 30, 2011 and charged under the Controlled Drugs and Substances Act on two counts: possession of the controlled substance methamphetamine for the purpose of trafficking and possession of the controlled substance cocaine for the purpose of trafficking. Ms. Ting alleges the drugs were seized contrary to s. 8 of the Charter of Rights in violation of her right to be secure from unreasonable search and seizure.

[2] Ms. Ting’s arrest by officers with the Durham Regional Police Services was part of a larger drug investigation in relation to Project Gladiator. The police conducted wiretaps and surveillance in September 2011 that led them to the apartment where Ms. Ting was arrested at 4204 B Dundas Street West in Toronto. Those wiretaps were ruled admissible by MacDonnell J. of this court on March 5, 2014. Two warrants for a residence at that address were authorized by a justice of peace, one on November 28 and the other on November 30.

[3] The defence brought an application to cross-examine the affiant on the search warrants which I granted. The parties agreed that the evidence on this application be used at trial depending on my determination on s. 8. The defence also raises Charter violations under s. 9, arbitrary detention, and s. 10(b), right to counsel, the need to determine those issues also depending on the outcome of the s. 8 application. The defence called no witnesses. Ms. Ting used the services of a Cantonese interpreter during the proceeding.

THE EVIDENCE

The Information to Support the First Search Warrant

[4] On November 28, 2011, the police applied for and were granted the first of two warrants to search an apartment at 4204 B Dundas Street West. D.C. Mason is the affiant on both warrant affidavits. In preparing the first warrant he relied on the observations and reports of other officers and his own observations on September 21. Information on the information to obtain (ITO) and evidence heard at trial are as follows:

[5] Det. Gillis was the officer in charge of the investigation on Project Gladiator. On September 15, the police intercepted a conversation between Alireza Kharizfar and an Asian female referred to as “Momo”. The cellphone number used by the Asian female was 647-865-6815. The police gathered from the intercepted conversation that a drug transaction was going to occur between them.

[6] To assist with understanding the location of the apartment the police searched, a Google photograph was entered as an exhibit. It depicts the front of a plaza at 4204 Dundas Street West. There is a dry cleaner at the left corner of the plaza with two doors on the ground level and a set of two windows on the second floor and another set on the third floor. Next to the dry cleaner immediately to the right is a Domino’s Pizza with two doors on the ground level, also with two sets of windows on each of the second and third floors. The first door to the left of the dry cleaner has three mailboxes next to it and is the third door from the left corner of the plaza. That is the door to Ms. Ting’s apartment where the warrants were executed on November 30. Hereafter, for simplicity I will refer to that door as Door 3. There are therefore four doors in the front of 4204 Dundas Street West.

[7] On September 15, Det. Gillis followed Mr. Kharizfar to 4204 Dundas Street West where Mr. Kharizfar entered a door in the front of the plaza next to the Domino’s Pizza. Mr. Kharizfar exited the door a few minutes later. Det. Gillis observed that the door Mr. Kharizfar entered had three mailboxes next to it. He was not observed to be carrying anything in his hands on entering and exiting the door.

[8] A further interception on September 18 captured a conversation between Mr. Kharizfar and someone using the number 647-865-6815 in which a drug transaction was discussed. Det. Gillis attended at the plaza on that day and observed Mr. Kharizfar enter a front door, which an Asian female, who Det. Gillis was able to briefly capture on video, opened for Mr. Kharizfar. Mr. Kharizfar exited after a few minutes. Mr. Kharizfar was not observed to be carrying anything in his hands. The affidavit does not identify an address or an exact location for the front door that Mr. Kharizfar entered. Det. Gillis testified it was Door 3.

[9] From a further interception on September 21 the police concluded Mr. Kharizfar would be going to 4204 Dundas Street West to buy drugs.

[10] On September 21 from his vehicle D.C. Mason took videotape recordings at the plaza at 4204 Dundas Street West. He videotaped an Asian female exiting and entering a front door of 4204 Dundas Street West twice, once to go to the garbage bins by the road, and the other time to look into one of the mailboxes. D.C. Mason testified those occurrences happened at about 8:00 p.m. and 9:00 p.m. The affidavit does not detail the address or location of the door the Asian woman exited and entered but D.C. Mason testified it was Door 3.

[11] D.C. Mason also testified that at 9:15 p.m. he recorded Mr. Kharizfar arriving in his vehicle, attending at a front door of 4204 B and being let in by someone. The precise location of the front door Mr. Kharizfar entered is not detailed in the affidavit but D.C. Mason testified the door Mr. Kharizfar entered was Door 3.

[12] The police conducted a search on vehicles in the parking lot at 4204 Dundas Street West. The one the Asian female was seen exiting was found to be registered to Valerie Pham. D.C. Mason reported that Valerie Pham was observed leaving and returning to the front door labelled 4204 A and was later observed exiting and re-entering a rear door labelled 4204 B (rear unit).

[13] None of the police officers involved in the investigation ever entered the door Mr. Kharizfar entered or looked inside the door before they executed the first search warrant.

[14] D.C. Finateri was on foot by the door at 4204 B Dundas Street West on September 22 and observed an Asian female who she said was the same female who had attended the garbage bins. D.C. Finateri subsequently viewed a driver’s licence photograph of Valerie Pham. She reported that the woman she observed let Mr. Kharizfar into 4204 B Dundas Street West was the same person depicted on Valerie Pham’s driver’s licence.

[15] Det. Gillis’ investigation revealed that a female with the surname Pham is listed as a resident of 4204 B (rear unit). Det. Gillis sought the assistance of Toronto Hydro and the Toronto Fire Services for the layout of the building at 4204 Dundas Street West. Toronto Hydro revealed there are two separate buildings which are beside each other in the plaza using that address − 4204 B Dundas Street West, Toronto and 4204 A Dundas Street West, Toronto. Tammy Pham is listed as a customer of Toronto Hydro at 4204 B Dundas Street West, Unit 2 Rear.

[16] The Toronto Fire Services’ information indicates there are two buildings it designated as “A” and “B”. The “A” building is occupied by the dry cleaner and the “B” building to the right is the building housing the Domino’s Pizza. Det. Gillis’ report indicates that the “B” building’s front door is located just to the left of the Domino’s Pizza and has the characters 4204 B in coloured block characters located above that door. The Toronto Fire Service also indicated that 4204 B Dundas Street West has two apartments, listed as “Front” and “Rear”, each apartment having two floors. The report indicates there is a back door leading to a parking lot in the rear.

[17] Neither the Toronto Hydro nor the Toronto Fire Services reports mentions the existence of a basement apartment at 4204 B Dundas Street West.

[18] A video taken by Det. Gillis of the rear of the building shows three doors in the back of 4204 B Dundas Street West, a white door with three windows at the top and two brown doors, one on each side of the white door. Det. Gillis, like D.C. Davies, who was the scene of crime officer, and D.C. Mason, testified they did not know where the doors at the rear of the building led or whether they are related to 4204 B or not. D.C. Davies admitted he did not know how many units were at the rear. He also admitted he did not know there were doors at the rear and stated knowing that fact would not be important to the investigation.

[19] The officers never investigated the rear doors despite the fact they had been at the rear of the building. This is also in spite of the fact that the target address was a rear unit. Det. Gillis and D.C. Davies also testified they did not know whether any of the doors at the front of 4204 B led to the second or third floors, although the Toronto Hydro report indicated Tammy Pham lived at Unit 2, which suggests a second floor unit.

[20] As a result of the information gathered, Valerie Pham, d.o.b 19-Feb.-72, became the target of the search warrant and 4204 B Dundas Street West, Unit 2, Rear, became the target address. The warrant was granted on November 28, 2011 and permitted a search and seizure of drugs, currency, cellphones and their contents, drug related items, identification and occupancy documentation, keys and financial records. The vehicles subject to the warrant were a 2005 Infinity and a 2005 Acura which were registered in Valerie Pham’s name.

Execution of the First Search Warrant

[21] On November 30 at about 6 a.m., the police executed the search warrant on Ms. Ting’s apartment. The officers entered Door 3 at the front of the plaza. As the scene of crime officer, D.C. Davies was charged with receiving and cataloguing the evidence at the scene. The police broke the lock and just inside the door saw a stairway leading down to a basement apartment into the living room area. The officers immediately discovered there was no back door to the apartment that would allow for an exit out to the rear of the building. On the stairs they met an Asian female dressed in night clothes.

[22] Despite the fact the police were authorized to enter a rear unit not specified as being in a basement, the police did not cease their plan to search in order to allow them to further investigate as to whether they had entered a residence that was not the target address.

[23] D.C. Davies instructed the other officers to investigate the Asian female to see if she was Valerie Pham. Within minutes the police detained Ms. Ting after which point they requested her identification. She was cooperative in producing her driver’s license which contained the name Suet Stacy Ting, her d.o.b. 15-Jan-1965, her picture, and the residential address 92-36th Street, Etobicoke. A copy of the driver’s license is in evidence.

[24] The officers searched the premises. They observed in plain sight on a table, drug paraphernalia and a plastic cylinder D.C. Davies thought appeared to have crack cocaine in it, although this was never confirmed. Another officer handed D.C. Davies a Nokia cellphone that had been on a table. The phone number on the phone was 416-854-9155. When the police called the number it rang.

[25] That Nokia cellphone is described in the affidavit as a new cellphone for Momo and incorrectly states that an interception involving Mr. Kharizfar and that phone took place on August 11, 2011, instead of November 8, 2011. The interception of calls on the cellphone number 416-854-9155 was not authorized as part of the investigation of 4204 Dundas Street West. The November date is outside the investigation period that underlies the warrants.

[26] An officer asked Ms. Ting to activate the translation feature on the Nokia phone to allow text messages to be translated from Cantonese to English and read by the police. D.C. Davies testified he accessed and looked at translated texts on that cellphone.

[27] D.C. Davies testified he expected the stairs would go down and then up to the rear of the building. It is not clear what this expectation was based on since none of the officers had been inside Door 3 or made any observations inside that door. D.C. Davies reported to Det. Derusha that Door 3 surprisingly led to a basement and not to Unit 2 Rear. Det. Durusha arrived on scene and at 7:40 a.m. told the officers to stop the search.

[28] Until that point the officers had just continued to search the basement apartment and catalogue the items they found which were: $600 (CDN), a silver Nokia cellphone and five other cellphones. They also found a note containing the words “King Kong” in English, according to the police, an alias for a known drug dealer. They found no drugs in the initial search.

[29] A Toyota Corolla rented in Ms. Ting’s name was parked at the premises. That vehicle was never picked up in the surveillance of 4204 Dundas Street West and was not subject to the first search warrant.

[30] D.C. Davies testified he thought the Asian female in the basement apartment was Valerie Pham. He acknowledged he had previously seen the photos of Valerie Pham which are in evidence and he saw the photograph on Ms. Ting’s driver’s license. By their dates of birth, there is a seven year age difference between the two women. A comparison of their photographs indicates the two women have different features and different hair colours.

[31] The fact Ms. Ting’s driver’s license contained the address 92-36th Street, Etobicoke, did not cause the police to investigate further whether they had encountered Valerie Pham, the person they were targeting.

[32] The police also found in the apartment a rent receipt for an apartment described on the receipt as 4204 B Dundas Street West, Lower Unit. The lessee on the receipt is Tom Powroznik. The police never investigated Tom Powroznik. The police did not investigate in whose names the cellphones they found were registered to or the name of the owner of the land line in the apartment. The Nokia phone was registered to Tom Powroznik.

[33] The police who searched the basement unit remained in the apartment from 7:40 a.m. when they were ordered to stop the search, until 2:45 p.m. when the second warrant was obtained. They did not vacate the apartment despite the fact that even from their own view the first warrant contained a wrong address which they reasonably would have known meant they were not authorized to be there.

Execution of the Second Warrant

[34] D.C. Davies denied the search was stopped because the police had entered the wrong apartment. He testified they had the right apartment but the error was that the warrant contained the wrong apartment number, the wrong address. He testified that the focal point of the search was always the front door where the police had observed Mr. Kharizfar and the Asian female enter and exit.

[35] D.C. Mason drafted the second warrant was which was issued at 2:45 p.m. The face of the second warrant reveals that the place for the search was changed from 4204 B (rear unit) Dundas Street West, Toronto, Ontario to 4204 B, Dundas Street West, Toronto, Ontario. There is no reference to a basement or lower apartment on the face of the warrant. The Toyota rented in Ms. Ting’s name replaced the two vehicles on the first warrant that were registered in Valerie Pham’s name.

[36] D.C. Mason testified he attempted in the second affidavit to clarify the location and address of the new target address and the identity of the target person based on information from D.C. Davies. The pertinent additional information in the second affidavit states:

o that there is only one basement unit behind the door at 4204 Dundas Street West contrary to what the police expected which was that 4204 B would be separated into a front and back unit.

o that the rear unit cannot be accessed through the front door and can only be accessed through the back door

o that a sole female was in the apartment that appeared to be Valerie Pham but who identified herself as Suet Tracy Ting (dob 15-Jan-1965)

o that the front door (4204 B) is the door Mr. Kharizfar attended each time to pick up or sell drugs

o that investigators confirmed the female believed to be Valerie Pham is Suet Ting

o that a cellphone seized from Ms. Ting was confirmed to be the phone number that was intercepted communicating with Mr. Kharizfar

o that the police had misidentified “Momo” Valerie Pham

o that the police went to Tammy Pham’s rear unit where marijuana was located in plain sight but because that was the wrong unit Tammy Pham was not charged.

[37] The police resumed their search and seized 70 grams of methamphetamine and 6.6 grams of cocaine and charged Ms. Ting with possession of controlled substances for the purpose of trafficking.

ANALYSIS

General Legal Principles

[38] Ms. Ting submits her rights under s. 8 of the Charter were violated when the police entered her apartment at 4204 Dundas Street West on November 30, 2011. She asks, pursuant to s. 24(2) of the Charter, for the exclusion of drugs on the basis of the substantial violation of her rights. It is the defence’s burden on a balance of probabilities to prove Ms. Ting’s rights were violated and the evidence should not be admitted at trial.

Reasonable and Probable Grounds

[39] It is the defence’s position that the police did not have reasonable and probable grounds to search Ms. Ting’s apartment. As has been shown above, the first ITO sought to establish reasonable and probable grounds to search not a basement apartment in the front of the plaza at 4204 B Dundas Street West but another apartment in the plaza at 4204 B Dundas Street West, Unit 2, Rear where the police anticipated another person, the original target, Valerie Pham, would be present.

[40] The statutory pre-conditions for obtaining a search warrant on a property are found in s. 487(1) of the Criminal Code. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing judge or justice of the peace there are reasonable grounds to believe there is in a building, receptacle or place,

o anything in which an offence has been committed or is suspected to have been committed, or

o anything there are reasonable grounds to believe will reveal the whereabouts of a person who is believed to have committed an offence.

[41] The issuing court must be satisfied by the information sworn in an affidavit in support of a warrant and must act on reasonable and probable grounds in authorizing a warrant.

[42] Exclusion of seized evidence can result from a warrant being executed outside the rules. The execution of a warrant on a private residence is subjected to extra scrutiny as incursions on the private domain of a person’s life are considered more serious breaches than interferences in less private spheres [R. v. Grant, 2009 SCC 32, at para. 76; and R. v. Debot 1989 13].

The Sufficiency of the Description of Targeted Premises

The Law

[43] It has long been the law that a warrant issued in relation to premises must accurately describe the location to be searched. A failure in this regard will render the warrant invalid. Courts have recognized that a search warrant can become an instrument of state abuse if its contents do not adequately describe the offence, accurately describe the premises to be searched, or fails to give an accurate description of the articles to be seized [Re McAvoy (1970) 1970 1132 (NWT TC)].

[44] A warrant signed by a judge or justice of the peace gives the authorization to enter a premises. The purpose of the affidavit sworn by the affiant is to assist the judge or justice of the peace with information to assess the grounds on which the warrant is being sought. It is the information available to the justice at the time of authorization that is critical to their decision to issue the warrant [R. v. Parent, 1989 217 (Y.K.C.A.)].

[45] Rules govern the court’s review of the issuing court’s grant of the warrant. The review court must ask whether it can be concluded based on the record before the authorizing judge, amplified on review, whether the issuing court could have granted the authorization [R. v. Araujo, [2000] S.C.R. 992]. The review judge should not substitute their own decision for that of the issuing court [R. v. Garofoli 1990 52 (S.C.C.)]. The review court should not base its determination on whether the review judge would have issued the warrant but 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].

[46] A Canadian text on the law of search and seizure emphasizes the importance of specificity in describing the premises to be searched. A precise description is especially critical with multiple unit dwellings:

The search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself. Vagueness in the description of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises, with the resultant falling into disrepute of the search warrant process and remedial consequences under the Canadian Charter of Rights.

Apartments within a single building should be further designated by number if they have them or, if not, according to their location within the building.

[J. Fontana and D. Keeshan, The Law of Search and Seizure in Canada, 7th ed. 2007, Lexis-Nexis]

[47] A number of cases have come before the courts where the sufficiency of the description of the premises to be searched is at issue. Each case presents with a different fact situation so the adequacy of the description of the premises must be decided in the context of the particular facts of the case. The question is whether the justice would be misled or ill-informed about the premises the police are seeking to enter and search.

[48] In R. v. Parent, cited above, the warrant contained no address for the premises to be searched but the ITO did contain an address. The court held that the failure to name a place on the warrant is not a mere matter of procedural defect but so fundamental as to render the document of no legal effect.

[49] In R. v. Jacobson three warrants were obtained by the police to search a vehicle. The address where the vehicle was to be located was set out correctly in the first two warrants. As a result of an oversight the wrong address was placed on the third warrant. The court held that the error on the third warrant was minor and hence an inadvertent technical error that did not invalidate the warrant [R. v. Jacobson, 2009 ONCA 130].

[50] The British Columbia Court of Appeal dealt with facts somewhat similar to those before me.

[51] In R. v. Silvestrone a justice of the peace authorized a warrant for a search for drugs on address B on the right side of a duplex. The police entered next door at address A on the left side of the duplex. The police realized at some point the warrant was for address B, however they rammed the door open, entered and proceeded to search the premises. An officer observed drug paraphernalia and became certain they had entered the right place. Another officer searched the accused and found small packets of cocaine on his person.

[52] One of the officers left the premises to obtain a second warrant for address A and informed the justice of the peace that address A, not address B, was the correct address. The search was stopped pending the receipt of the second warrant. After obtaining the second warrant the police continued with a thorough search of the premises where distribution paraphernalia and 169 grams of marijuana were found and seized.

[53] The court held that the first warrant did not authorize the search of address A and the search was therefore a warrantless search. The court held that the evidence obtained as a result of the first search should be excluded. The court also ruled that the second warrant should be quashed on the basis that the justice of the peace was misled as to the true state of affairs when she granted it [R. v. Silvestrone, 1991 5759].

[54] In R. v. Wisdom police officers searched the accused’s residence at apartment 303, 37 Durnford Road, Scarborough. The search warrant authorized a search of “a dwelling unit located at 37 Durnford Road” but did not specify any apartment number. Inside the apartment the officers seized a loaded firearm, ammunition, crack cocaine and marijuana. The search warrant was found invalid on its face because it did not specifically authorize a search of the applicant’s residence [R. v. Wisdom, 2012 ONCJ 54].

[55] In R. v. Charles both the warrant and the supporting affidavit omitted the “A” in the address for the premises located in a triplex. The complete address was 491 A Bourbonais St. Referring to U.S. jurisprudence the court found that the omission of the “A” in the address was a technical error that should not cause the warrant to be invalidated. The court held a technically wrong address does not vitiate a warrant if it otherwise describes the premises with sufficient particularity to allow the police certainty in identifying the premises [R. v. Charles, 2010 QCCQ 9178].

Determination on the Sufficiency of the Address

[56] It is clear there is no expectation that an ITO disclose every fact that might possibly be relevant. That would be an unreasonable and overly burdensome requirement [R. v. Chambers 1983 245 (B.C.C.A.); aff'd 1986 22 (S.C.C.)]. However, the facts relevant to a precise description of the property to be searched must be set out in the warrant. This is all the more important with a multiple unit property, particularly one with a complex layout, multiple storeys, front and rear units and both residential and commercial use.

[57] The surveillance of Mr. Kharizfar and the interceptions of calls between him and an Asian female connected him to Valerie Pham who in turn was connected to 4204 B Dundas West by her vehicle that was parked outside the premises. Toronto Hydro connected Valerie Pham to Unit 2 at the Rear of 4204 B through her sister Tammy Pham being a resident there as a Toronto Hydro customer. This became the target address but D.C. Mason failed in the affidavit to clearly situate the target unit within the context of the building structure at 4204 Dundas Street West.

[58] There were several police officers involved in the investigation of 4204 Dundas Street West, including the affiant, D.C. Mason. The officers had ample opportunity from September to November 28, when they requested the first warrant, to conduct a more incisive investigation of the property to arrive at a more specific location and address for the target apartment. For instance, although the target apartment was at the rear of 4204 Dundas Street West, none of the officers who attended the property investigated the rear doors of the premises. None of the officers who testified knew where the three doors at the rear of the property led. Nor before they entered Ms. Ting’s apartment were the police aware of where any of the four doors at the front led, except perhaps the door to Domino’s Pizza.

[59] Importantly, the affidavit did not describe the property in such a manner as to allow the justice of the peace to appreciate where the door to be entered and the residence to be searched were situated in the building structure. To state that the unit to be searched was at 4204 B Dundas Street West Rear Unit is at best unclear and at worst misleading when there are three doors at the rear of 4204 B. One of the rear doors is for the Domino’s Pizza. There is no mention in the affidavit of the multiple doors at the rear.

[60] The affidavit states Mr. Kharizfar and an Asian female they believed was Valerie Pham were seen entering and exiting a door variously described in the affidavit as either being “at the front of 4204 Dundas West” or “at the front of 4204 B Dundas West”. The affidavit does not clearly explain that there are four doors in the front of 4204 Dundas West, two for the “A” building and two for the “B” building. One of the doors at the front of the “B” building is an entrance to Domino’s Pizza, the business address for which is 4204 B Dundas Street West. The affidavit makes it appear there is only one entrance to the “B” building, the one that has the characters “4204 B” above the door in block letters, that is, Door 3, the one the police report seeing Mr. Kharizfar and the Asian female entering and exiting.

[61] Before entry, none of the officers observed inside Door 3 or spoke to anyone about where that door might lead. The officers testified, based on the Toronto Fire Services and Toronto Hydro reports, that they expected Door 3 to lead to stairs that went down and then up to the rear of the premises. They testified to being surprised that there were stairs behind that door that led to a basement apartment with no exit to the rear. However, it is not clear to me how the reports led them to draw the conclusion that, as D.C. Mason states in the second affidavit, if they entered Door 3 “they would find that 4204 B would be separated into a front and back unit”. Communication by the police with the proprietor of 4204 B Dundas Street West or further consultation with the Toronto Fire Services before entering the building might have provided information useful for the warrant application.

[62] I find the failure to clearly describe on the face of the warrant and in the affidavit the precise location and address of the premises is fatal to the warrant. The police were obligated to provide the justice of the peace with more precise details of the location and address of the premises they sought to search. It is a multiple unit dwelling with residential and commercial use housed in a rather complicated structure. The justice of the peace was entitled to have the information required to make an informed decision as to whether the statutory pre-condition pertaining to the premises was satisfied by the information provided.

[63] The case before me is distinguishable from the cases where there was a clear typographical error on the warrant, or where there was an omission on a warrant that is clarified by the information in the affidavit. Nor is it a case with multiple warrants, all with the correct address and the last one with a minor typographical error in the address. This is not a case where the building housing residential units is a triplex or duplex with only a few strictly residential units where an error in leaving out an “A” in the address could be regarded as a technicality.

[64] The case before me is more akin, in terms of the nature of the error and the purported solution, to R. v. Silvestrone where the officers knew either immediately before or just as they entered the premises that they had gone into the wrong place. The search warrant contained an inaccurate address number leading the police to enter the wrong residence in a duplex. The first warrant was found invalid and the officers obtained a second warrant that the review court quashed.

[65] I find therefore that the first search warrant in the case before me was invalid on its face as lacking an adequate description of the premises. A search of a property based on an invalid warrant is a warrantless search [R. v. Krammer, 2001 BCSC 1205 and R. v. Silvestrone]. The police had no authority to enter Ms. Ting’s apartment.

[66] Consequently, the evidence seized on the first warrant is inadmissible at trial.

[67] A finding of invalidity with respect to the first warrant is sufficient to exclude the drugs seized on the second warrant. The police remained in the apartment after the first warrant was known to be invalid. They were not authorized to be in Ms. Ting’s apartment when they received the second warrant. I find this would render the second warrant invalid, the further search of the premises warrantless and the drugs seized inadmissible.

[68] But even if I were required to consider the second warrant, I would find it invalid on its face.

[69] The second warrant did not really rectify the problem in any appreciable way. The second warrant on its face states the place to be search is 4204 B Dundas Street West, Toronto. D.C. Mason fails to cite on the face of the warrant the precise address with the unit number of the residence. The affidavit seeks to clarify the address to be searched by referring to “4204 B, a basement apartment and not a rear unit as specified on the warrant” and by stating that “the proper address is 4204 B (not the rear unit)”.

[70] Even if I accept that a failure to identify the unit on the face of the warrant is acceptable, I find the affidavit does not sufficiently clarify the description and location of the residence. I apply a similar critique to the second warrant as I did to the first. There are more than one front and back door to 4204 B Dundas Street West. Like the first affidavit the second affidavit does not make this clear and precisely indicate which of those doors leads to the apartment to be searched. It is far too vague to say the apartment to be searched is a basement apartment and not a rear unit, given the complexity of the building and its mixed use.

[71] The second warrant is therefore also invalid on its face. The methamphetamine and cocaine seized on the second search would also be inadmissible for this reason.

[72] It would be the Crown’s burden, where a warrantless search was conducted, to establish, on the balance of probabilities, that the search was reasonable. The Crown would have to establish special circumstances such as urgency or an exigency to succeed in justifying a warrantless search. I can see no urgency to the search and the Crown made no such argument [R. v. Collins 1987 84 (SCC)].

Reasonable and Probable Grounds

[73] I find there were insufficient reasonable and probable grounds to issue the warrants that resulted in the seizure of the methamphetamine and cocaine.

[74] The information purporting to justify the search is directed at information gathered through cellphone interceptions and surveillance that linked Valerie Pham to the drug dealer, Mr. Kharizfar. It was the interception of the calls between the two of them that connected Valerie Pham to drug dealing and the prospect of a drug deal occurring at 4204 Dundas Street West. A registration search of Valerie Pham’s vehicle parked at the plaza further linked Valerie Pham to that address. She was further connected to the address through the surname of her sister who resided in a rear unit.

[75] Ms. Ting was never intercepted in a phone call or connected to a drug deal. Her vehicle was never picked up on surveillance at 4204 B Dundas Street West before the day the police searched her apartment. The police had never observed or encountered Ms. Ting before they entered her apartment on the first warrant. Mr. Kharizfar was observed entering and exiting a front door at 4204 Dundas Street West but there is no real evidence of why he went through that door. Moreover, the police entered Ms. Ting’s apartment at 6:00 a.m. when sightings of Valerie Pham and Mr. Kharizfar at 4204 Dundas Street West were made only in the evening. This raises a further question about the police’s justification for thinking there would be an offence committed at Ms. Ting’s apartment at the time they entered.

[76] I find in these circumstances that the statutory pre-conditions for the search are not satisfied. There were no reasonable and probable grounds to believe a criminal offence would be occurring in Mr. Ting’s apartment at the time they entered on November 30. For this further reason, the drugs must be excluded at trial.

THE SECTION 24(2) APPLICATION

[77] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of a person’s Charter rights if the admission of the evidence would bring the administration of justice into disrepute. The court must balance the effect that admitting the evidence would have on society’s confidence in the justice system.

[78] The Supreme Court of Canada in R. v. Grant sets out three inquiries that should be undertaken to determine whether to exclude evidence: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.

[79] The seriousness of the breach falls along a spectrum as explained in Grant.

[80] I find on the first inquiry the police conduct falls on the more serious end of the spectrum. The violations were not of a mere technical nature.

[81] The imprecision with which the police described the residence is not a technical error or an oversight. It was the result of a substandard investigation, a failure of due diligence, neglect to take the steps necessary to understand the layout of the building and impart that information to the justice of the peace.

[82] The police who entered the basement apartment very quickly realized they were in the wrong apartment.

[83] Ms. Ting’s vehicle which was parked at the premises at the time of the search was never observed on surveillance or known to be connected to any drug deals.

[84] A further vexing factor is that D.C. Davies accessed texts on the Nokia phone while holding an invalid search warrant and when the phone was not the subject matter of the investigation.

[85] In spite of what the officers had learned about the apartment and Ms. Ting, they continued into the apartment searching and seizing evidence.

[86] When the officers received the second warrant, in spite of what I see as at best a tenuous connection between Mr. Kharzifar and Ms. Ting and her apartment, the police forged ahead and continued the search.

[87] I find the police action in failing to adequately investigate the premises and provide sufficient information to the issuing court, though inexcusable, was more in the nature of reckless and substandard police work.

[88] However, I find once the police entered the apartment and realized they were in the wrong place, saw Ms. Ting and her identification, their actions moved toward flagrant disregard of Mr. Ting’s rights.

[89] On the second inquiry, I find the violation of Ms. Ting’s rights to be on the more severe end of the spectrum.

[90] The police entered the apartment in the early morning hours and found Ms. Ting in her night wear.

[91] This was a flagrant invasion by the police of the private and personal spheres of Ms. Ting’s life and home.

[92] The third inquiry requires the court to look at the seriousness of the offence.

[93] Drugs of the nature seized in the case before me have become a serious threat to the well-being and security of many communities.

[94] R. v. Harrison cautions however that the seriousness of the offence cuts both ways.

[95] The court must balance public concern over the type of crime against the serious infringements of Ms. Ting’s rights.

[96] The court must conduct a fact-driven qualitative balancing of the three lines of inquiry.

[97] I have found the nature of the state conduct in this case puts it on the serious end of the spectrum and the court should dissociate itself from that conduct.

[98] For those reasons, I find the balance of the three inquiries tips in favour of the exclusion of the methamphetamine and cocaine.

DISPOSITION

[99] The court orders that the methamphetamine and cocaine are inadmissible.

B.A. Allen J.

Released: June 2, 2014

COURT FILE NO.: 14-90000-216-0000
DATE: 2014/06/02

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SUET STACY TING

Accused

RULING ON A VOIR DIRE

B.A. Allen J.

Released: June 2, 2014