ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R v. Podurgeil, 2015 ONSC 14
COURT FILE NO.: CR-14-0013-00
DATE: 2015-01-30
B E T W E E N:
Her Majesty The Queen,
Kevin Matthews, for the Respondent
Respondent
- and -
Ronald Podurgeil,
Michael A. Hargadon, for the Applicant
Applicant
HEARD: November 17, 2014,
at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Motion to Exclude Evidence
[1] The accused, Ronald Podurgeil, brings an application to exclude evidence. He relies on section 24(2) of the Canadian Charter of Rights and Freedoms to assert that evidence seized pursuant to a Warrant to Search should be excluded from the trial of this matter as the affiant on the Information to Obtain a Search Warrant (“ITO”) failed to provide sufficient information in his affidavit to permit the issuing justice to make an independent assessment of the cogency, trustworthiness, and reliability of informant information. As such, the evidence was seized under an unlawful search in contravention of Mr. Podurgeil’s rights under section 8 of the Charter. Mr. Podurgeil also asserts the manner in which the search was conducted was itself unlawful and in violation of his section 8 rights. This is a second independent basis upon which Mr. Podurgeil argues the evidence seized should be excluded.
Background
[2] Mr. Podurgeil is charged with two counts of possession of a controlled substance (cannabis marihuana and cannabis resin, each less than 3 kilograms, respectively) and one count of production of cannabis resin.
[3] The defence concedes the police seized cannabis marihuana and cannabis resin from Mr. Podurgeil’s home on May 16th, 2012, sufficient to support convictions against Mr. Podurgeil on all three counts.
[4] The Crown also concedes if the search warrant is found to be invalid, the evidence should be excluded and cannot be saved by the provisions of section 24(2) of the Charter.
Issue No. 1: Was the Search Warrant Valid?
[5] The testimony of D/Sgt Duce at the preliminary inquiry, as well as the ITO, were placed before the Court as the full evidentiary record to determine this particular issue.
[6] The essence of the defence attack on the validity of the search warrant is that the affiant of the ITO lied about the reliability of the two informants who provided information about the presence of illegal substances in Mr. Podurgeil’s home. This submission has two prongs. First, as the affiant did not make his own direct assessment of the reliability, truthfulness, or the track record of these informants, his assertion in the ITO that the two informants “have never provided information which has been false or misleading” was itself unreliable and false. Secondly, what the informants advised concerning Mr. Podurgeil’s drug related activities was not in the least bit borne out by the evidence seized by the police when they executed the warrant. Considering these two aspects, the defence argues that the affiant did not make full, frank, and fair disclosure of all material facts in the ITO and therefore, the search warrant was illegally obtained.
[7] In considering this issue, both Crown and defence relied on the decision of the Supreme Court of Canada in R v. Araujo, 2000 SCC 65, 2 S.C.R. 992. This case stands for a number of principles applicable to this case, which I have applied in considering the evidence and the arguments of the parties. These principles are as follows:
It is trite law that the applicant for a search warrant has a duty to make full, frank, and fair disclosure of all material facts in the ITO supporting the request (para. 46);
The reviewing judge does not stand in the same place and function as the authorizing judge (para. 50);
The reviewing judge does not substitute his or her view for that of the authorizing judge and does not conduct a rehearing of the application for the search warrant (para. 50);
The reviewing judge must carefully consider the existence of sufficient reliable information that might have been reasonably been believed, such that the authorization could have been issued (para. 52); and,
A contextual analysis is important in any consideration of the validity of a search warrant (para. 54).
[8] The affiant of the ITO was D\Sgt Duce. Under the heading “investigation chronology”, D/Sgt Duce plainly sets out that the specific information related to Mr. Podurgeil received from two confidential informants came from D/Constable Bartol. There are nine paragraphs of information (numbered 27 through 37) noted as obtained from the confidential informants. These paragraphs all contain subparagraphs ranging in number from 3 to 14, which contain particulars concerning Mr. Podurgeil and relate to his alleged drug activities.
[9] There are two paragraphs (numbers 22 and 23) where D/Sgt Duce deposes as to the reliability and track record of these confidential informants. Within these paragraphs he specifically deposes that they both have “never provided information which has been false or misleading”. In these paragraphs he does not particularize how he specifically comes to that assessment.
[10] At the preliminary inquiry, D/Sgt Duce was specifically cross-examined about his assessment of the reliability of the two confidential informants. The defence argued D/Sgt Duce’s assessment of the quality of the informants was perfunctory. This assertion comes from the following exchange during cross-examination (vol. 2 pp. 49 -50):
Q: Okay. And of course I imagine you had a conversation with Detective Constable Bartol about those prior occasions in which this informant provided information, right?
A: Correct.
Q: And did you ask him specifically about whether or not the information that he provided was partially accurate on those occasions?
A: No, I did not.
Q: You did not. Okay. It’s probably between you and the other officer a pretty colloquial conversation so to say “How’s this guy? What’s he like?” And Detective Constable Bartol gives you his assessment based on his status as the informant, right?
A: Well, yes, he provided all the information in relation to his informants.
Q: Okay. And he certainly didn’t express any doubt with respect to this informant, did he?
A: With his reliability, no.
Q: No, okay. And I imagine you had a conversation, I sort of already asked this, but you had a conversation with respect to the accuracy of the informants information on prior occasions, right?
A: Well, from what Detective Constable Bartol advised me from what he has seized and what – on how many occasions, yes.
Q: Right. But I suppose you didn’t discuss in detail what the informant said the police should be able to find there, right, just what was actually found?
A: Correct.
Q: Okay. And I imagine that you would agree with me that providing that sort of information would really help the Justice of the Peace determine whether or not this informant is actually reliable, right?
A: If it was put forth, yes.
Q: Okay. So you’re the ITO Aff. (sic) and you’re providing information ex parte on oath. Why didn’t you ask those questions?
A: It’s just something that, I mean, I take for granted what my officer that I work side by side with and the Drug Enforcement Unit for a number of occasions accurately from what he depicts his informants have given him.
Q: Right.
A: He advises me that they’re proven reliable on these grounds that he has laid out for me and I deem that to be truthful and I go from there.
[11] In my view, this exchange does not reveal a perfunctory assessment of the credibility and reliability of the confidential informants by D/Sgt Duce. The evidence revealed by the cross-examination indicates D/Sgt Duce turned his mind to the issue prior to preparing the ITO. While his assessment at paragraphs 22 and 23 do not specifically identify D/C Bartol as the source of the assessment of the credibility and reliability of these two informants, elsewhere in the ITO, the precise source of the particulars about Mr. Podurgeil’s conduct is identified. In my view, this is not an attempt to be less than full, fair, and frank in disclosing material matters.
[12] The failure to identify in paragraphs 22 and 23 the specific procedural technique used by D/Sgt Duce’s to make assertions as to the reliability of the confidential informants are not indicative of a failure to be full, fair, and frank, when the entirety of the ITO is considered. In my view, there is no intention to mislead evidenced in paragraphs 22 and 23. There is no information one way or the other in the ITO itself as to whether or not D/Sgt Duce is relying on his own experience or that of others, to come to this conclusion. This was obtained on cross-examination. What D/Sgt Duce testified about concerning his inquiries to be able to make the statement concerning the reliability of the informants does not lead me to agree with the defence that his assessment of the credibility or reliability of the confidential informants was done in a perfunctory manner.
[13] In any event, in my view, the essential facts which are required to provide reasonable and probable grounds for the issuance of the search warrant come from the particulars provided in paragraphs 27 through 37 and not from the reliability assessment in paragraph 22 and 23. The source of D/Sgt Duce’s information in paragraphs 27 through 37 is fully and clearly set out. It is second hand from another officer. This is clear. It cannot therefore be said that D/Sgt Duce was being anything less than full, fair, and frank with regard to disclosing material facts.
[14] I come to this conclusion as the sections concerning the particulars provided to the police are identified as being supplied first to D/C Bartol and then to D/Sgt Duce. No such attribution is alleged in paragraphs 22 and 23.
[15] Further, I agree with the submission of the Crown that paragraphs 22 and 23 could be excised from the ITO and reasonable and probable grounds would still exist for the issuance of the search warrant.
[16] With respect to the second prong of the defence attack, this is based on the “after the fact” results of the execution of the warrant. This information could not have been available to the issuing Justice or D/Sgt Duce. It is not disputed that all of the drug related indicia which the confidential informants had advised the police they observed in Mr. Podurgeil’s home were not in fact found when it was searched. These items were (referencing the paragraphs in the ITO):
Weigh scales (para 29(e), 32(d));
Oxycontin (para 33(b)(e)(n), 35(a), 36(c), 37(f)); and,
Morphines (para 37(f)(k)).
[17] Also it is admitted that no significant amount of cash, debt lists, or primary containers used to store, preserve or conceal controlled substances were found in the search.
[18] Conversely, as noted above, a quantity of cannabis marihuana and cannabis resin were found in the search.
[19] In my view, this after the fact evidence cannot be of any assistance to assessing whether the issuing justice could or could not have issued the warrant in the first place. Items that might have reasonably been expected to be found based on the ITO were not found. However, and of equal value in considering this element of the defence argument, drugs were indeed found as might have been reasonably expected from the information provided by the confidential informants.
[20] This circumstance does not mean D/Sgt Duce was not making full, fair, and frank disclosure at first instance. I find this aspect of the defence argument equivocal at best.
[21] Therefore, with respect to Issue No. 1, I find the search warrant was validly issued. There is no basis relying on the Araujo factors enumerated above to conclude that the search warrant was improperly or illegally obtained.
Issue No 2: Was the method of search contrary to Section 8 of the Charter.
[22] In addition to the evidence on the preliminary inquiry, Mr. Podurgeil gave vive voce evidence as to the actual nature of the search he experienced.
[23] The police evidence can be fairly summed up as being that this search followed “standard procedure” for execution of a warrant in a residence where drug trafficking was suspected. The object of the method of entry was to prevent the destruction of evidence and the immediate securing of the premises with minimal danger to the officers or occupants involved.
[24] Six officers were involved. They broke down the door. They quickly secured the residence and arrested Mr. Podurgeil.
[25] The officers were aware there were no children expected to be in the residence. They were aware Mr. Podurgeil had some mobility issues and used a cane. They were aware he had no criminal record. A check was not done to see if he owned any registered firearms.
[26] The police used a stack formation. Interestingly, the officers would not elaborate on what this meant in cross-examination and the issue was not pursued.
[27] The police used a ram to smash through the door of Mr. Podurgeil’s home. Less than five rams were required to enter. The officers were armed with their service pistols. No long guns or rifles were used. The officers’ guns were drawn as they entered the home.
[28] There was an issue as to whether or not the police knocked on the door before they broke it down. None of the officers who testified could recall if they knocked. However, Constable Ladouceur and Constable Joynson testified they yelled “Police Search Warrant” immediately upon entering Mr. Podurgeil’s home.
[29] Mr. Podurgeil testified he was with another person, one of his caregivers, when the police entered. He did not hear a knock. He said the door was open. He just heard a crash and men yelling “police police”. He then found himself staring down the barrel of what he described as a long gun. Mr. Podurgeil was quite convinced of this and testified that he had played enough video games and watched enough American and Canadian cop shows on TV to recognize such a weapon. The warrant was produced to him.
[30] Mr. Podurgeil was terrified. He cooperated with police. He pointed out to them where both the cannabis marihuana and the cannabis resin that was ultimately seized were in the house. He was handcuffed and taken to a police cruiser.
[31] Mr. Podurgeil had a difficult time maintaining his composure during his testimony. He was traumatized by the event. He claims he has been ostracized in the very small community where he lives by these charges. He is now afraid living in his own home.
[32] I was referred to one authority in respect of this issue. It was the 4 – 3 decision of the Supreme Court of Canada in R v. Cornell, 2010 SCC 31, 2 S.C.R. 142. Not surprisingly, the Crown emphasized the majority portion of the decision and the defence relied on the comments of the Court contained in the dissent.
[33] The majority decision emphasized the following legal principles applicable to all searches and particularly those of unannounced forced entries and judicial review of the reasonableness of such searches. Justice Cromwell writing for the majority stated:
To be reasonable under section 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable and the search conducted in a reasonable manner (para 16);
Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give notice of presence by knocking or ringing the door bell, give notice of authority and state their notice of authority (para 18);
The decisions made by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be (para 23); and,
The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require (para 24).
[34] The dissenting decision emphasized some additional principles. Justice Fish stated:
The police must make some attempt to ascertain whether there is a real likelihood that, without a sudden and violent entry, the occupant will have time and will proceed to conceal or destroy evidence (para 106); and,
The police must make reasonable inquiries to ascertain the nature of the premises they intend to search, the identities and background of its occupants, and the real risk of resistance by force (para. 109).
[35] The defence described this search as being a 9 on a 1 to 10 scale. Counsel argued that if this is the “norm”, it cannot be reasonable as particular circumstances of the accused were not taken in to account. Mr. Podurgeil was not known to be an aggressive or violent person. He had some mobility issues. He did not have a criminal record and had no history of interactions with police except as a complainant. As entry of a home was involved, the very significant privacy expectation required such contextual consideration be undertaken by police. According to the defence, their failure to do so leads to the conclusion that the search was unreasonable in the manner of its execution.
[36] As to the issue of whether or not the police knocked or not, I find they did not actually knock on the door. However, they did announce their presence and intention, clearly and sufficiently to alert Mr. Podurgeil as indicated by his evidence. This, in my view, satisfies the first requirement (the appropriate announcement) for the finding of a reasonable search as enunciated in Cornell.
[37] They rammed the door. It opened with less than five hits. According to Mr. Podurgeil, the police “destroyed the door and latch”. This is not surprising. However, without more I cannot agree that this aspect was excessive to the point of being unreasonable.
[38] I am mindful of the onus on the defence to prove a Charter violation in regard to this particular issue. In this case, in my view, there was not sufficient evidence before me to cause me to ignore the legitimate concerns the police expressed when dealing with a situation they believed to involve a drug trafficker. Mr. Podurgeil’s house was under surveillance. The evidence of the officers indicated they did consider Mr. Podurgeil’s situation before determining that they were going to do a forced entry. Unlike the facts which drew the ire of the dissenting justices in Cornell, the police in this case had a copy of the warrant, were not wearing balaclavas and did actually discuss the situation concerning Mr. Podurgeil before making the tactical decision to make the entry in the manner that they did.
[39] Immediately after the police entry, the nature of the verbal interactions between the police and Mr. Podurgeil were not those of a church social. This is not surprising. However, there was no personal violence in the course of the search. No one was personally injured. I understand why Mr. Podurgeil was terrified. But to my mind this is not sufficient to create a finding that the search was unreasonable.
[40] The comment made by Justice Cromwell in Cornell regarding security measures at paragraph 24 that “if something happens the measures were inadequate but if nothing happens they were excessive” seem apt for this case as well. This is how the defence sees the search. I see it otherwise. Considering all of the evidence concerning the search, I am not convinced on the balance of probabilities that the defendant has demonstrated that this search was conducted in an excessive or unreasonable manner and correspondingly, I find the search did not violate his rights under section 8 of the Charter.
[41] The application to exclude evidence found by the search is hereby dismissed.
_________”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 30, 2015
CITATION: R v. Podurgeil, 2015 ONSC 14
COURT FILE NO.: CR-14-0013-00
DATE: 2015-01-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
RONALD PODURGEIL
Applicant
REASONS ON MOTION TO EXCLUDE EVIDENCE
Fitzpatrick J.
Released: January 30, 2015
/mls