ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11/90000/8140000

DATE: 20141003

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

• and -

MARK ANDREW JOHNSTON
Applicant

M. Cullen and C. Zary, for the Crown
C. Murphy, amicus curiae
Mark A. Johnston, representing himself

HEARD: September 8 & 9, 2014

M. Forestell J.

RULING ON APPLICATION TO EXCLUDE EVIDENCE UNDER
SECTIONS 8 AND 24(2) OF THE
CANADIAN CHARTER OF RIGHTS AND FREEDOMS

I Overview of the Charges and the Applications

[1] The Applicant, Mark Johnston, is charged with two counts of fraud over $5,000. The allegations underlying the charges are that he was part of a scheme in which fraudulent GST and income tax returns were submitted in the names of inmates or former inmates of a correctional facility. The offences are alleged to have been committed between March 1, 2007 and April 30, 2009.

[2] In September 2009, the Applicant was an inmate at Maplehurst Correctional Facility (“Maplehurst”). On September 14, 2009, Corporal Therrien of the RCMP executed a search warrant at Maplehurst and seized documents which the Crown intends to introduce as evidence in the trial. These documents were seized from the administrative files at Maplehurst and from the Applicant’s cell.

[3] The Applicant brought this application to exclude all of the items seized from Maplehurst pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”). He submitted that the search was unreasonable and a breach of his s. 8 rights for the following reasons:

1. The information to obtain the search warrant was deficient and the entire search was therefore warrantless and prima facie unreasonable; and,

2. The manner of execution of the warrant was unreasonable, in that:

i. the search of the Applicant’s cell occurred outside the time specified in the warrant;

ii. the search warrant was executed by a correctional officer;

iii. the property seized included items not specified in the warrant; and,

iv. the correctional officer directed the Applicant to pack his belongings.[^1]

[4] The Respondent’s position is that the Applicant had no reasonable expectation of privacy in any of the items seized and that s. 8 of the Charter is not engaged. Alternatively, the Respondent argues that the warrant was sufficient and that the manner of execution of the search was reasonable.

[5] The hearing of the application proceeded over two days. On September 18, 2014, I indicated that the application was dismissed and that my reasons would follow. These are those reasons.

II The Issues

[6] The issues in this application may be framed as follows:

1. Did the Applicant have a reasonable expectation of privacy that was potentially compromised by the search or seizure?

2. If the Applicant had a reasonable expectation of privacy, was the search or seizure unreasonable?

3. If the search or seizure was unreasonable should the evidence be excluded under s. 24(2)?

III The Evidence on the Application

[7] The following documents were filed on the application:

1. The search warrant issued on September 8, 2009;

2. The information of Corporal Therrien to obtain the search warrant;

3. The transcript of the intake of the warrant by the Justice of the Peace;

4. The transcript of the testimony of Correctional Officer (“C.O.”) Darren Jones at the preliminary inquiry;

5. A copy of the September 15, 2009, internal report of C.O. Jones regarding the seizure of personal property from the Applicant’s cell;

6. Copies of the documents seized from the offices of Maplehurst;

7. Copies of documents seized from the Applicant’s cell and retained by the police;

8. A copy of the Return to the Justice;

9. The expert report comparing the handwriting in the seized documents to the alleged fraudulent returns;

10. A transcript of the evidence of Corporal Therrien at the preliminary inquiry; and

11. Two e-mail chains between Corporal Therrien and a representative of Correctional Services regarding the execution of the warrant.

[8] Corporal Therrien and C.O. Jones testified on the application.

[9] Many of the facts on this application are not in dispute. I will first set out the undisputed facts before addressing the areas of contention.

[10] On September 8, 2009, Corporal Therrien of the RCMP sought and obtained a search warrant to search Maplehurst for the following: “Handwriting samples of Mark Johnston, including but not limited to canteen sheets, request forms, legal-aid applications, personal property declaration forms, protective custody decision/review forms, accident/injury reports, and outgoing mail.”

[11] The Information to Obtain contains information relating to both Mark Johnston and Michael Bannon. Two search warrants were issued by the issuing justice: one for Maplehurst relating to Mark Johnston and one for the Toronto West Detention Centre relating to Michael Bannon.

[12] The warrant was signed by Justice of the Peace Molinari on September 8, 2009, and it authorized peace officers to enter and search for the handwriting samples between 9:00 a.m. and 5:00 p.m. on September 14, 2009.

[13] Corporal Therrien had advised the correctional facility of the warrant in advance of its issuance. He further advised representatives of Correctional Services on September 9, 2009, that the warrant had been issued and that he would attend to execute it on September 14, 2009.

[14] C.O. Jones was the Security Manager at Maplehurst in September 2009. Upon being advised of the pending execution of the warrant, C.O. Jones gathered the documents that were in the various administrative files at Maplehurst. He gathered the documents over a period of days. These documents were not given to the police until Corporal Therrien arrived with the search warrant at 10:30 a.m. on September 14, 2009.

[15] In addition to the documents seized from the administrative files of Maplehurst, C.O. Jones seized the Applicant’s personal property from his cell. Although the evidence of C.O. Jones was contradictory and inconsistent regarding the timing of the seizure, it is an admitted fact that C.O. Jones obtained the personal property from the Applicant’s cell on September 13, 2009. On that date, C.O. Jones attended at the cell of the Applicant. At the time, the Applicant was sharing a cell with another inmate. C.O. Jones directed the Applicant to pack his personal belongings. The applicant packed his belongings in a bag. C.O. Jones then walked the Applicant to a segregation cell, where C.O. Jones took possession of the bag containing the Applicant’s personal property. The next day, on September 14, 2009, C.O. Jones handed the bag of personal property over to Corporal Therrien when he arrived with the search warrant.

[16] On September 14, 2009, Corporal Therrien seized the bag of personal property that had been taken from the cell of the Applicant along with the documents from the offices of Maplehurst. Corporal Therrien did not examine the contents of the bag before seizing it. He did not look at the contents of the bag until the next day, when he saw that some of the contents of the bag did not have the handwriting of the applicant. He retained the items with handwriting and returned the other items to Maplehurst on September 22, 2009. Neither C.O. Jones nor Corporal Therrien kept any record of the individual items that were seized and then returned.

[17] The documents that were seized and retained by the police from the administrative offices of Maplehurst consisted of canteen requests, newspaper requests, a request to see a doctor about a rash, and a Notice of Appeal. The documents seized from the Applicant’s cell consisted of handwritten and typed pages with names, addresses and telephone numbers of individuals and businesses, four handwritten pages with names, SIN numbers and dates of birth of individuals, a page of calculations, a transcript of a civil legal proceeding, and a judicial pre-trial conference report from a civil proceeding. With the exception of some portions the latter two documents, all of the pages had handwriting on them.

[18] It is agreed that C.O. Jones gathered the documents that he believed were covered by the warrant in advance of the execution of the warrant. This included gathering the personal property of the Applicant from his cell. C.O. Jones gave contradictory evidence about his understanding of the nature of the property that could properly be seized under the terms of the warrant. Initially in his testimony he agreed that he read the warrant as authorizing the search for and seizure of handwriting samples. Later in his evidence he testified that he understood that the warrant authorized him to search for and seize all personal property of the Applicant. There is no dispute that the warrant did not authorize the seizure of all personal property of the Applicant.

[19] There is a factual dispute on the application as to the legal authority that C.O. Jones believed provided him with the authority to search for and seize the property.

[20] C.O. Jones testified that he was preparing for the execution of the search warrant when he seized the Applicant’s belongings. He also testified that he was of the view that he was entitled to search any inmate at any time for any reason. He interpreted the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the “Act”), and regulations to permit him to search at any time. He further testified that while searches were regularly authorized by the superintendent under the Act and regulations, there were additional searches that were conducted outside that authorization. The additional searches were, in the view of C.O. Jones, permitted by the legislation and regulations and required no documentation.

[21] The relevant legislation and regulations are before me on this application and will be discussed in more detail in my analysis later in these reasons. The legislation and regulations permit a search to be authorized by the superintendent at any time. The regulations permit the superintendent to delegate the power to authorize a search. The regulations permit a correctional officer to conduct a search without the prior authorization of the superintendent if s/he has reasonable cause to believe that the inmate would destroy or dispose of contraband during the delay necessary to obtain the authorization of the superintendent. A written record is required of any search pursuant to s.25 of regulation 778. These aspects of the legislation and regulations were put to C.O. Jones.

[22] C.O. Jones agreed that he did not have reasonable cause to believe that the Applicant would dispose of or destroy contraband in the time that it would take to obtain the authorization of the superintendent. He was not searching for contraband. C.O. Jones did not prepare a written record of the search. He testified that he did not believe that a written record was required because he viewed his actions not as a search but as a seizure.

[23] In answer to a question by amicus, C.O. Jones agreed that he had seized property from the Applicant and that the seizure was not specifically authorized by the superintendent. However, he said: “I am his delegate…I have the right to search and prepare things. No different than preparing the paperwork.” The reference to delegation was made in the context of being the superintendent’s delegate for the purposes of cooperating in the execution of the search warrant.

[24] I find that C.O. Jones directed the Applicant to pack his property and moved the Applicant to segregation in order to facilitate the orderly execution of the search warrant that C.O. Jones expected to receive the following day. I find that C.O. Jones did not inspect or examine the contents of the bag. He merely seized the bags and gave them to Corporal Therrien the following day.

[25] Corporal Therrien testified that he was not permitted to go through the correctional facility to conduct a search, but relied on C.O. Jones to provide the relevant material outlined in the warrant. Corporal Therrien understood that he would not be allowed onto the unit where inmates were housed because of security concerns.

[26] Corporal Therrien agreed that when he obtained the search warrant he anticipated receiving documents from the offices of Maplehurst and had not turned his mind to obtaining documents from the Applicant’s cell. However, the search warrant authorized the search of the entire Maplehurst complex which included the cells.

[27] Corporal Therrien was not aware until the following day that the material seized from the Applicant’s cell went beyond the parameters of the warrant. He retained the materials that contained the handwriting of the Applicant. He returned documents that did not contain handwriting. This evidence was not challenged.

[28] I find that C.O. Jones believed that he had the authority under the legislation governing the institution to compile in advance the property referred to in the search warrant in order that the warrant could be executed in a manner that did not disrupt the security of the institution. He was not acting under the authority of the warrant, but under the authority that he believed had been delegated to him by the Superintendent of the institution to ensure that Maplehurst complied with the terms of the warrant and did so in a safe and orderly manner.

(Decision continues exactly as provided in the source.)

M. Forestell J.
Released: October 3, 2014

Footnotes

[^1]: It is also argued that this aspect of the search engages the s. 7 rights of the Applicant.