CITATION: R. v. Pasian, 2015 ONSC 1557
COURT FILE NO.: 11449
DATE: 2015/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
G. Boyd, for the Federal Prosecution Service, & D. Rows for the Crown Attorney
Respondent
- and -
Scott Pasian
A. Prevost, for the applicant
Applicant
HEARD: February 9, 10 & 11, 2015
A. J. Goodman, J.:
[1] The applicant is charged with various drugs offences contrary to their respective provisions of the Controlled Drugs and Substances Act (“CDSA”) as well as several firearms related offences contrary to the Criminal Code.
[2] All of these offences are alleged to have occurred at the city of London in August 2011.
[3] The applicant seeks to exclude certain evidence seized by the police under a judicially authorized search warrant by virtue of an alleged breach of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”). The applicant alleges a further breach of his ss. 7 and 9 rights, which occurred as a result of his arrest.
Background
[4] On August 4, 2011, with a search warrant in hand, members of the London Police Guns and Drugs section conducted a search of 971 Prosperity Court residence (“Prosperity”) and in a locked bedroom on the basement level found illegal substances as well as a “Hi-Point” semi-automatic handgun hidden in a sock in a pile of laundry. The handgun contained a loaded magazine and there was a round “chambered” ready to fire.
[5] Specifically, police also located five plastic bags filled with 220 grams of cocaine, a large block of cocaine, two pieces of cannabis resin, 7 wrapped cylinders of marihuana bud, four bundles of Canadian currency as well as a bag of Canadian currency. At the time of the applicant’s arrest on the same date, 28 grams of crack cocaine and marihuana was located in his vehicle. The police seized a total of 247 grams of cocaine, 104 grams of marihuana and 17 grams of cannabis resin.
Mr. Pasian’s application for standing
Positions of the parties
[6] At the outset, Mr. Boyd submitted that the applicant did not have standing to bring this application with respect to the Prosperity residence as no evidence had been filed in support of such a position. The Crown submitted that Mr. Pasian had not established that the Prosperity address was his residence and that he was, in fact, living at the house. The Crown argued that the evidence in support is wholly deficient to establish a reasonable expectation of privacy.
[7] Mr. Prevost, on behalf of Mr. Pasian, submits that there is sufficient evidence on the face of the record and in various exhibits filed to reasonably conclude that Mr. Pasian has standing to bring the Charter application and has an expectation of privacy in his residence.
Legal principles
[8] The leading case on this issue is a decision from the Supreme Court of Canada in R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128. In Edwards, at para. 45, the Supreme Court outlined a non-exhaustive list of factors to be considered in whether an accused has a reasonable expectation of privacy. The factors to be considered in assessing the circumstances include, but are not limited to, presence at the time of the search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; the ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation.
The principles applied to this case
[9] There are several rooms in the Prosperity house including those located in the basement area. The key seized from Mr. Pasian at the time of his arrest unlocked the door to the house and the basement bedroom. In the bedroom police observed a mattress on the floor along with an armoire in the north end of the room. A black suitcase was noted on the floor at the foot of the mattress that contained cash, cocaine and marihuana. Additional cocaine was found in a black handbag situated near the suitcase. Officer Potruff found a baggie of crack cocaine on a pair of grey underwear, Blackberry and LG cell phones, two boxes of sandwich bags and a government of Ontario receipt in the name of Pasian. The date, origin and nature of this receipt were not revealed in evidence. A loaded firearm was located in the room.
[10] It is settled law that an accused need not satisfy all of the Edwards criteria to achieve success on the issue of standing. A comprehensive review of the totality of the circumstances is required in conjunction with the well-established legal principles.
[11] I have no cogent evidence of any personal clothing, or any hygiene items. There is no other evidence presented with respect to a lease or rent receipts or who may have had de facto control over the premises. I have one unspecified government receipt in Mr. Pasian’s name. Similar to the fact situation in the case of R. v. Lao, [2013] O.J. No. 1995 (C.A.), I do not have any evidence as Mr. Pasian’s subjective belief of an expectation of privacy. It is uncontested that Mr. Pasian was not present at 971 Prosperity Court upon the execution of the search warrant.
[12] I agree with Crown counsel that I ought to regard all of the circumstances and the lack of evidence presented in this application to assess whether the applicant has met the criteria as outlined in Edwards.
[13] At this stage, I had difficulty in concluding that Mr. Pasian had a subjective belief of a reasonable expectation of privacy. I also agree with the Crown that the lack of evidence is merely suggestive but cannot lead me to any other conclusion that Mr. Pasian was at all material times, a transient occupier as opposed to being an actual resident of the Prosperity house.
[14] Acknowledging that the threshold for this standing assessment is a low one, there is simply a lack of evidence and no plausible explanations regarding the applicant’s lack of personal effects, his occupancy of the house or a room; nor a lease or other documents to substantiate is that he had a valid connection to the house other than being seen at the residence on a number of occasions. I was not satisfied based on the evidence or the lack of evidence that Mr. Pasian had any subjective expectation of privacy, reasonably held. In brief oral reasons, I dismissed the application.
The request to re-open the evidence on this threshold application
[15] Following my ruling, Mr. Prevost beseeched the court to allow a reopening of the evidence and to call his client. This approach was somewhat unorthodox, as I had already made a decision based on the material filed and the viva voce evidence adduced during this hearing.
[16] An accused who seeks exclusion of evidence alleged to have been obtained by a constitutional infringement is required to comply with Rule 31 of the Criminal Proceedings Rules. The Rule promotes constructive use of judicial resources and avoids surprise by requiring, among other things, a written application that contains a precise, case-specific statement of the basis and grounds upon which exclusion is sought, a detailed summary of the evidence or other material upon which reliance is placed, and a statement of the manner in which the applicant proposes to introduce the evidence.
[17] While there is no legal requirement under the Rules or jurisprudence for an applicant to file an affidavit or testify on such applications, it is trite law that the onus is on the applicant to establish that he has standing to bring such an application when challenging a judicially authorized warrant to search a residence. The applicant must provide a foundation to convince the court of standing for relief on a balance of probabilities and it is trite law that the applicant must put his best foot forward in presenting his or her case.
[18] Much of the jurisprudence provided by counsel described situations where the evidence was complete or a final determination was made on the substantive charges. For example, see R. v. Arabia, 2008 ONCA 565, [2008] O.J. No. 2960. A trial judge has the discretion to allow a reopening even post-conviction and should do so only in exceptional circumstances. A revisiting of a judicial ruling ought not to be disturbed without an adequate explanation, even one made during the course of trial and prior to the ultimate determination of whether or not an accused is guilty of an offence. R. v. Anderson, 2008 ONCA 814, [2008] O.J. NO. 4832 (C.A.), R. v. Johnson, [1986] B.C.J. No. 2845, R. v. Tortone (1992), 1992 7580 (ON CA), 9 O.R. (3d) 161 (C.A.),
[19] Both parties presented their respective positions to the court. Following submissions, Mr. Boyd’s description of defence counsel’s approach to the evidence presented and counsel’s tactical decision undertaken in this application is not without merit: R. v. S.C.C., 2008 BCCA 262, [2008] B.C.J. No. 1148 (C.A.) at para. 16. See also R. v. Sweeney, 2000 16878 (ON CA), [2000] O.J. No. 3534 (C.A.).
[20] The failure to exercise due diligence is not fatal but remains an important consideration: R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759; R. v. M. (P.S.), 1992 2785 (ON CA), [1992] O.J. No. 2410 (C.A.).
[21] As the applicant did not comply with the Rules and Crown counsel specifically placed Mr. Prevost on notice of these concerns in advance of this hearing, at the very outset of the application, I had inquired of Mr. Prevost if he had any evidence to adduce on the standing question. Despite these overtures, no cogent evidence was presented in support of the threshold issue at first instance. The applicant did not choose to file an affidavit, call witnesses or present any viva voce evidence.
[22] As mentioned, the scant materials filed or referenced did not advance the applicant’s case. Mr. Prevost’s explanation for his approach in not adducing sufficient evidence to address the threshold issue tended to be somewhat self-serving. While I am concerned about counsel’s failure to act with due diligence on this point, it is not lost on me that we are in the early stages of this trial. The evidence to be adduced is relevant to the Charter application. Mr. Boyd fairly conceded that the Crown was not prejudiced by the reopening of evidence at this stage of the trial. I note that this application is made prior to any conviction finding: R. v. Hayward, 1993 14679 (ON CA), [1993] O.J. No. 2939 (Ont. C.A.). I also considered the test as described by the Court of Appeal in R. v. Kowall, 1996 411 (ON CA), [1996] O.J. No. 2715, at paras. 31 & 32.
[23] An allegation of a breach of a constitutional right is an important issue. Generally, I am loath to deny an accused’s opportunity to fully present his case in court. However, this fundamental right is neither unfettered nor can it be considered in isolation without due regard to the principles of fairness. It is not available at all costs and an applicant is generally not entitled to get a “second kick at the can” after having received a negative result or ruling from a judge, -absent extenuating circumstances - especially when the issue had been initially raised by Crown counsel at the outset of the hearing.
[24] Frankly, I am troubled by applicant’s counsel’s approach in this case. My review of the authorities does not tend to support his position to reopen the evidence after I made my ruling on the threshold issue. That being said, after much consideration and consternation, I permitted counsel to re-open his application and adduce evidence by calling his client. Mr. Prevost was cautioned that this indulgence would not likely receive favourable consideration in the future should a similar approach to the Rules and the lack of a proper evidential foundation be adopted for these types of s. 8 Charter threshold questions.
[25] Nevertheless, after Mr. Pasian testified on the reopening of evidence, the Crown was provided an opportunity to cross-examine the witness. On an overall assessment of the fresh evidence, Mr. Pasian’s references to his belongings and his limited occupation of the basement suite, as well as his expressed expectation of privacy, the Crown conceded that the threshold for standing had been met. Therefore, having met the Edwards criteria, I concluded on a balance of probabilities that Mr. Pasian did have a reasonable expectation of privacy in his basement room at the Prosperity residence. I reversed my earlier ruling and the application for standing with respect to s. 8 Charter application was granted.
Section 8 of the Charter
Positions of the parties
[26] The applicant submits that there was insufficient information contained within the Information to Obtain (“ITO”) for the issuing justice to grant the warrant authorizing the search of Prosperity residence and the Chrysler 300 automobile. As such, the applicant’s rights under s. 8 of the Charter were breached.
[27] The applicant submits that the justice of the peace that issued the warrant did not have sufficient, credible and reliable evidence to find reasonable and probable grounds to believe that an offence had been committed at the specified time and place alleged.
[28] The applicant argues that the officers did not have the requisite grounds necessary for the applicant’s arrest, a breach of his s. 9 Charter rights. It is further submitted the applicant’s right to liberty was interfered with in a manner inconsistent with the principles of fundamental justice.
[29] The applicant requests that all evidence stemming from the execution of the warrant at the Prosperity residence and obtained during the applicant’s unlawful arrest be excluded pursuant to s. 24(2) of the Charter.
[30] The Crown submits that judicial review of the facial validity of a search warrant involves a common sense review of the cumulative effect of all the information provided. The Crown submits that the officer is entitled to draw inferences and make deductions based upon his experience. Based upon the totality of all the information provided in the information to obtain there are ample grounds to support the test for a “credibility based probability” and Mr. Pasian has failed to satisfy his onus.
[31] Mr. Boyd says that the police received compelling, credible source information that Mr. Pasian was trafficking in illegal drugs. This information was corroborated by surveillance that confirmed detailed information provided by the two sources. Mr. Pasian was specifically observed on two occasions leaving the residence in his automobile. The highly detailed source information, combined with the corroborating police surveillance clearly provided reasonable grounds for the issuance of the warrant.
[32] The Crown says that if indeed there is a breach, there is no evidence before this court to establish that the breach occurred through bad faith, prevarication or deceit by the affiant or the police. The admission of the impugned evidence in this case would not bring the administration of justice into disrepute. The breach is, at best, a good faith breach and is not so serious as to warrant exclusion under s. 24(2) of the Charter.
Legal principles
[33] In addressing the application to exclude the evidence of the seizure of drugs and a firearm from the residence, s. 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure.
[34] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness. As there was a judicially authorized warrant, it is trite law that the onus rests on the applicant to establish a breach of his Constitutional rights.
[35] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115, (S.C.C.) at 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge
[36] It is clear that on a s. 8 Charter application, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of a review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99. See also R. v. Morelli, 2010 SCC 8, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59; Garofoli, at p. 1452; and R. v. Wiley¸ 1993 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.
[37] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:[^1]
(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d., 2011 SCC 32).
(2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.
(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) at para. 135:
The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line- by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168; R. v. Chan, 1998 5765 (ON CA), [1998] O.J. No. 4536 at para. 4, (C.A.);
(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.
(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 1991 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
(7) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.
(8) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R. v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85-87.
(9) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.).
(10) It is trite law that an 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” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.
[38] The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was amply described in the Cunsolo case. A court considering the issuance of a search warrant is entitled to draw reasonable inferences: R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Sanchez (2004), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370.
The Information to Obtain
[39] The affiant in this case is Detective Constable Bullick. On August 4, 2011, he applied for and was granted a s. 11 CDSA search warrant for the Prosperity residence and a Chrysler 300 vehicle. Some of the relevant information relied upon by the affiant in applying for the search warrant includes:
On July 29, 2011, Detective Constable Bullick drove by 971 Prosperity Court, was patrolling various areas within the city of London that were known for drug presence. One of the addresses he attended was 971 Prosperity Court.
The affiant noted a Chrysler 300 in the driveway with license plate BDHY 747. He ran the licence plate through CPIC and spoke with dispatch to inquire as to whether there were any complaints regarding the vehicle.
Through dispatch, the following information was obtained: the registered owner of the motor vehicle is a woman named Ashley Meddalena and was believed to be the sister of the applicant and the girlfriend of a gun and gang suspect “Carlton Stewart”. There had been a complaint made by two different concerned individuals.
Source #1 indicated that a male in a white Chrysler 300 had been attending the parking lot of the TD located at 191 Wortley Road and appeared to be dealing drugs out of the vehicle to a man on a bicycle. Neither individual attend the bank.
Detective Bullick spoke with a second source. Source #2 indicated that a male in a vehicle plated BDGY 747 was on Lockyer Street in London Ontario. Source #2 indicated that something appeared to be exchanged between the driver and a female, and that this had occurred about three times over the past three months. Source #2 was unsure of the two middle letters of the license plate, and said that the driver of the vehicle was possibly white.
[40] On August 2, 2011, members of the London Police Drugs and Guns Section conducted surveillance on the Chrysler. The Chrysler was again located in the driveway of Prosperity at 10:05 a.m. by detective Constable Joel Pavoni. Police made the following pertinent observations:
11:34 a.m., the Chrysler goes mobile;
11:41 a.m., the Chrysler parks in the parking lot of the John Labatt Centre in downtown London;
D/C Bourdeau observed the male driver (sole occupant) to be Scott Pasian;
1:28 p.m., Pasian enters in to a black Lincoln MKX, plated BKXV 785 (this vehicle is registered to Discount Car and Truck Rental from Toronto). The Lincoln was parked directly beside the Chrysler;
the rental was returned to Discount Car and Truck Rental in London and Pasian returned to the Chrysler 300.
[41] On August 3, 2011, surveillance was conducted on the Chrysler vehicle and the police observed the following:
9:50 a.m., Pasian comes out from the house at 971 Prosperity Court, enters in to the Chrysler 300 (sole occupant) and leaves the address;
the Chrysler is temporarily lost from sight at 9:57 a.m.;
10:37 a.m., the Chrysler is located in the drive of 68 Augusta Crescent;
10:46 a.m., Pasian enters the Chrysler and drives away;
10:51 a.m., the Chrysler attends to the parking lot of the Howard Johnsons hotel located on Exeter Road, just west of Wellington Road;
An unknown white male exits the west side door of the hotel and attends to the driver’s side of the Chrysler, leans in the vehicle and after a brief meet, the male goes back into the hotel.
10:53 a.m., the Chrysler leaves the parking lot of the Howard Johnson’s. It is my experience as a drug investigator that an open meeting in public for the short duration as described is consistent with that of a hand-to-hand transaction for the trade of cash for an illegal narcotic.
11:04 am, the Chrysler attends to the parking lot of the Valu-Mart on Wortley Road. This Valu-Mart is directly across the street from the bank described in point #10. An unknown male on a bicycle attended to the driver’s side of the Chrysler and leaned in the opened driver’s window. After a brief meet, the male on the bicycle left the parking lot and then the Chrysler also left the parking lot in a separate direction. It is my experience as a drug investigator that an open meeting in public for the short duration as described is consistent with that of a hand-to-hand transaction for the trace of cash for an illegal narcotic; and
11:21 a.m., the Chrysler attends back to 971 Prosperity Court, Pasian exits the Chrysler and walks up towards the front door of the house.
[42] Included in the ITO was Mr. Pasian’s background outlining that he did not have a criminal record, albeit he had two charges withdrawn, one of which was for drug possession. The background information in the ITO also included a healthy number of unrelated police occurrences, which the affiant stated “assists in corroborating the investigation”.
[43] Moment prior to the authorization, members of the London Police Service were still continuing their surveillance. Detective Payette observed Mr. Pasian drive the Chrysler 300 from Prosperity to the Shell gas station at Oxford and Waterloo Streets. He observed Mr. Pasian park the Chrysler beside a green pickup truck, and an unknown female attended at the Chrysler’s passenger side. A minute later, the unknown female returned to the truck. Police later observed an alleged hand-to-hand drug transaction.
[44] While the arrest and search of the applicant was taking place, members of the London Police were advised that the warrant had been authorized. At approximately 12:00 p.m., on August 4, 2011, members of the London Police executed the warrant at the Prosperity residence.
Analysis: Section 8 of the Charter:
[45] I am cognizant that the scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued.
[46] Although the applicant has the burden to prove the invalidity of a judicially authorized warrant, in securing such a warrant, there is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, overemphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.
[47] In my opinion, several segments of the ITO in this case are troubling, (albeit not necessarily fatal to the affiant’s application). For example, the affiant failed to fully detail the other locations visited by Mr. Pasian during his travels on August 2 and 3, 2011 from the surveillance conducted in this case, which I pause to observe, was quite limited in scope and duration.
[48] The affiant also included information that although the applicant did not have a criminal record, he did have two charges withdrawn, one of which was for drug possession. A withdrawal of any charge, for whatever reason, is often without explanation and may be prejudicial. It tends not to advance the reasonable grounds for search. R. v. Corbeil, [2013] O.J. No. 5490 at para. 25; R. v. Sam, [2014] O.J. No. 1486 at para. 12.
[49] I agree with the applicant that the ITO contains a significant amount of irrelevant information related to Mr. Pasian. I also agree with the applicant that the inclusion of these occurrence reports unrelated to Mr. Pasian is problematic. The only purpose served by the inclusion of the reports is to suggest that the applicant was heavily involved in the drug trade for many years prior to this investigation, which has neither been substantiated nor can be inferred by other information found in the ITO.
[50] Further, the affiant bolsters his belief by continually including information linking the applicant to Mr. Carlton Stewart. The reputation of a suspect must be related to the ostensible reasons for the search: R. v. Debot, 1989 13 (SCC), [1989] 2 SCR 1140 at para. 58. In some of the occurrence reports used in support of the grounds, it is stated that the applicant was pulled over for using a cellphone while driving; in 2010, Carlton Stewart was believed to be driving the applicant’s vehicle; the applicant’s girlfriend said she was driving the vehicle he loaned her and that he was the roommate of Carlton Stewart. A subsequent occurrence report included in the ITO stated that an off-duty officer noted in September 2010 that the applicant had been carrying two cellphones and was working out with Carlton Stewart while attending the Athletic Club. Likewise, one of the occurrence reports stated that it appeared a black man was dealing drugs from a vehicle registered to the applicant and not the vehicle subject to this investigation.
[51] The background information may have provided the affiant with the subjective grounds for belief that the applicant was involved in drug related activity, and are included for the sake of completeness. However, as I held in R. v. Bui, [2014] ONSC 8, albeit on a different factual basis, these assertions cannot assist in forming the objective grounds necessary to authorize a search.
[52] In this case, the inclusion of these occurrences purport to paint a picture of the applicant and his tenuous connection to a possible known drug dealer is prejudicial and of marginal relevance. In my view, these are occurrences of the type referred to in Debot as being irrelevant to forming the necessary grounds for a search, involving other individuals without the logical or appropriate nexus to the applicant, and promotes conjecture by mere association. Indeed, the January 2010 occurrence leaves the impression that the applicant was involved in nefarious activity on that date, all which is unsubstantiated and speculative at best.
[53] The ITO included information regarding two complaints about someone dealing drugs from a Chrysler 300 in the Wortley Village area. These sources appear to be entirely credible and reliable and satisfy the specific description of the vehicle in question, even in the face of a report that purports to have one letter of the license plate being mis-described. The surveillance confirmed the confidential source information and provided the general description of the applicant, in turn that would provide grounds to believe that it was he who had been observed engaging in the activity complained of.
[54] In this regard, I disagree with the applicant’s characterizations of the transactions in question. The connection between the vehicle and the applicant has also been established. In my opinion, it appears from the confidential information and the surveillance conducted on the applicant, that this information provides sufficient information upon which the issuing justice could have authorized the searches of the applicant’s vehicle.
[55] However, does all of the information provided to the issuing justice furnish the grounds to search the Prosperity residence?
[56] The essence of the ITO reflected observations by police officers that the male operating the Chrysler vehicle is Mr. Pasian, who was observed conducting drug transactions from his Chrysler sedan. Before or on the date of these alleged drug transactions, Mr. Pasian left and returned to the Prosperity house. Mr. Pasian’s vehicle was observed at the address on three separate dates and the Crown suggests that it is reasonable to believe Pasian is keeping drugs on his person, in the Chrysler sedan and at the Prosperity residence.
[57] With respect to the background of Prosperity, the ITO includes information, unrelated to Mr. Pasian, but highly suggestive that in April 2011 police had suspicions of drug related activity ongoing at that address. I note that no confidential informant claimed that drugs were being sold or trafficked at Prosperity during the time period relevant to this authorization.
[58] On the first day of surveillance, all that is observed is Mr. Pasian exiting Prosperity in the Chrysler sedan and parking at the John Labatt Centre. Approximately an hour and a half later, the applicant is observed entering a rented black Lincoln MKX. The Lincoln was returned to the “Discount Car and Truck Rental” in London, and the applicant later drove off in his own vehicle.
[59] On the second day of surveillance, the applicant was observed exiting Prosperity and entering his vehicle. Surveillance was lost for approximately 40 minutes, and he was subsequently located at 68 Augusta Crescent. Mr. Pasian later attends the parking lot of the Howard Johnson Hotel on Exeter Road and a brief hand-to-hand drug transaction occurs. Mr. Pasian was then observed leaving the parking lot and attending the Valu-Mart on Wortley Road. While in the parking lot, a male on a bicycle is observed attending the driver’s side of the vehicle and leaning into the window suggestive of another brief hand-to-hand drug transaction. The applicant returned to Prosperity.
[60] The Supreme Court of Canada has held there has to be reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified time and place: Morelli, at para. 40.
[61] Crown counsel submits that Mr. Pasian’s association with other known drug dealers and his presence at the house are relevant considerations when assessing the informant’s information. I agree with Crown counsel that these factors are relevant; however, they should not be used to make otherwise insufficient grounds for the application being sought.
[62] During his testimony, the affiant revealed that on August 2 and 3, Mr. Pasian went to other places known to be locations where drug trafficking may occur, including a King Street address. While careful not to draw improper inferences, it seems equally plausible that the drugs could have been obtained while en route during these intermittent stops. This information was omitted from the ITO and the entirety of the information about the applicant’s connection to the residence and the drug transaction in question remain tenuous.
[63] I agree with the applicant’s position that it was incumbent on police to provide much more detail and corroboration than was provided in this ITO. I also agree with the applicant that the surveillance and investigation here was insufficient to sustain the grounds in the ITO for the Prosperity residence. In my opinion, that because the core of the ITO fails to contain sufficient information indicating the commission of a crime, the affiant’s experience does not assist in the formation of the reasonable grounds of belief required for the issuance of the s. 11 CDSA search warrant.
[64] The fact that evidence was found as a result of the search does not add to the credibility of the informant. It appears to be settled law that the results of a search cannot be used as ex post facto support for the reliability of the information.
[65] The source information and surveillance of Mr. Pasian on August 2 and 3, amount to observations that could only provide grounds for the search of the motor vehicle and not Prosperity. The background information in the ITO related to Prosperity amounts to no more than police observing other individuals, as well as observations of different vehicles being parked in the driveway including the Chrysler. In addition to the fact that there was nothing to suggest that the residence was being used for drug activity, there was no information contained within the ITO that would tie the applicant to the address, aside from the minimal observations made of Mr. Pasian’s staggered arrivals and departures.
[66] Clearly, I must be careful not to be over-critical of the police officer’s drafting of an ITO in support of credibly-based belief that a place to be searched will afford evidence of a crime. Nor should I focus on one or two paragraphs to the exclusion of the entirety of the ITO. While I would not describe the ITO as misleading, I am satisfied that the ITO, on its face, presents inadequate temporal and factual underpinning for the information in support of the affiant's allegation that the applicant had drugs in the residence available for trafficking in the commercial context. There was no other activity worthy of substantiating the allegations apart from conjecture.
[67] The sources have provided some details and their credibility is not in serious dispute. However, there was no meaningful corroboration of the information with respect to the applicant’s alleged illicit activities at the residence. In other words, the ITO fails to identify and justify material grounds regarding the allegations that comprised the basis for the application to search the residence that suggested criminal activity related to Mr. Pasian. As such, the ITO does not achieve the standard as outlined in Morelli at para. 102.
[68] Even when reading the ITO as a whole, the informational content does not support the reasonable inferences advanced by the ITO affiant and, in turn, provide a foundation upon which a judicial officer, acting reasonably and judicially could have issued a warrant for the residence. I find that the applicant’s s. 8 Charter rights were breached as a result of the search and seizure at the Prosperity address.
[69] With respect to ss. 7 and 9 of the Charter, the evidence supports that on August 4, 2011, the applicant was observed committing an offence in direct view of the surveillance officers. A search incident to arrest derives its authority from the lawful arrest and does not require independent justification: R. v. Golub, 1997 6316 (ON CA), [1997] O.J. No. 3097 (C.A.) at para. 31, R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51. A police officer has no right to conduct a search unless the officer has reasonable grounds to believe his or her safety or the safety of others is at risk.
[70] In my opinion, the applicant’s entire arrest was conducted according to law. The detention and subsequent search and seizure in this case of both Mr. Pasian and his vehicle he was occupying at the time were premised on officer safety concerns and was rationally incident to a valid arrest in conformity with the jurisprudence enabling such activity.
[71] Here, there was more than mere suspicion but actual observations of a drug transaction occurring. Given the constellation of factors in this case, it is objectively reasonable for all of the officers to act in the manner they did, and to have the applicant arrested, detained and searched.
[72] The applicant has failed to meet his onus with regards to any alleged breach of his ss. 7 and 9 Charter rights, or his s. 8 Charter rights with respect to the search of his Chrysler motor vehicle.
Section 24(2) of the Charter
[73] Section 24(2) of the Charter states:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[74] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system. The disrepute is to be considered by the court in its role of maintaining the integrity of, and public confidence, in the justice system. It is an objective inquiry and it asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[75] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused.
[76] The onus is on the applicants to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.
[77] In Grant, the court stated that ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Supreme court points out that a reviewing court should be concerned or disassociated itself where the police knew or ought to have known that their conduct was not Charter-compliant.
[78] The Supreme Court outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
[79] The main concern of the court is to preserve public confidence in the rule of law and its processes. Even a finding that a Charter breach falls at the most serious end of the spectrum is not dispositive of the s. 24(2) inquiry. An accurate assessment of the seriousness of a Charter breach requires an inquiry into where the police conduct falls on the continuum between good faith, lack of good faith, and bad faith.
[80] In considering the seriousness of the Charter-infringing state conduct, the court must ensure that they are not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights.
[81] The impact on any breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The court should assess whether any breach, if there was one, was “fleeting or technical” as opposed to “profoundly intrusive”. This factor does not assess the extent to which the state intruded on the individual generally, but only the extent to which the state intruded on the individual beyond any intrusion that was lawfully permitted. The seriousness of the intrusion upon the rights of an accused may vary greatly.
[82] In considering society’s interest in the adjudication of the case on its merits, the court is to consider “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion.” Further, the court should consider the reliability of the evidence and the nature of the right infringed.
Application of these principles to the present case
[83] As mentioned, there are three lines of inquiry at play under section 24(2) of the Charter. I must consider each of the three factors and then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. Each factor is of equal import.
The seriousness of the Charter-infringing state conduct
[84] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.
[85] In Grant, the court at para. 75 elaborated this factor by stating:
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[86] The obtaining of a search warrant will ordinarily support a finding of good faith provided that in securing the warrant, the police did not use false or deliberately misleading information or somehow attempt to subvert the process: R. v. Rorcha, [2012] ONCA 707 at paras. 28-31.
[87] Here, I am persuaded that the police were not reckless with respect to the accused’s constitutionally protected rights. I do not find any bad faith, per se and did not use false or deliberately misleading information. It cannot be said that the police disregarded the rights of the accused in obtaining the drugs and firearm without their reasonable belief that grounds existed to substantiate these serious allegations.
[88] In Grant, the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. Here, I conclude that the conduct of the police does not fall into this category. While it is not open for speculation, discoverability is a relevant consideration. Had the police conducted a further investigation, and linked the August 4th events to their direct observations of Mr. Pasian, there could have been sufficiency of reasonable grounds to search for the drugs and a nexus to the Prosperity residence. Overall, I am not left with a concern about the police conduct in this case as their actions were not deliberate and they did not adopt a cavalier attitude towards the applicant’s rights.
[89] The admission of this evidence would not send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. In my opinion, this factor weighs in favour of inclusion.
The impact of the Charter violation on the Charter-protected interests of the accused
[90] The second branch of the test is outlined in Grant at paras. 76 & 78:
...focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity is more serious than one that does not.
[91] While it is true that a search of a dwelling house involve intrusion into the personal space of the accused, it is well-settled that such searches mandate serious constitutional protection.
[92] The measure of seriousness then is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.
[93] Accordingly, under this factor, discoverability retains a useful role in assessing the actual impact of the breach. It is well established that this factor may weigh against a finding the breach has had a meaningful impact on the accused’s Constitutional rights.
[94] In my opinion, the impact on the applicant's Charter-protected interests was significant as a dwelling house has a greater degree of privacy. At that stage of the investigation in this case, I find that that the warrantless search of the residence was a serious Charter violation. The evidence was discoverable, and while this is a close call, my consideration of the second factor weighs in favour of exclusion.
Society’s interest in the adjudication of the case
[95] In considering this factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion." The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion. In Grant, the Supreme Court discussed how the importance of the evidence to the Crown's case is a relevant consideration:
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[96] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process. As the Supreme Court stated in Grant:
(1) Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.’ … Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
(2) The Court must ask itself whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.
[97] As Crown counsel submits, should the evidence be excluded the prosecution will not have any case against Mr. Pasian. Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. There is no doubt about society’s interest in prosecuting offences dealing with possession of drugs for the purpose of trafficking and its association with a loaded firearm.
[98] The sizeable amount of drugs existed entirely independently of the Charter breach and is considered non-conscriptive evidence. There is no dispute that the illicit drugs and the loaded firearm found in Mr. Pasian’s bedroom are of high significance to the prosecution. This is not a case that can be proven by the Crown through other evidence that does not involve a Charter breach. It cannot be said that the evidence is of marginal value.
[99] While I must be cautious not to place too much emphasis on this latter point, in Grant, the Supreme Court offered that the seriousness of the offence may give rise to be a neutral consideration as it has the potential to “cut both ways”. In this case, I conclude that society's interests in the adjudication of the case on its merits are best served by not excluding evidence that was obtained by means of a Charter breach, when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.
[100] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided some guidance to trial judges at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
[101] The impact on the Charter-protected interests of the applicant was serious, although the police conduct in this case did not demonstrate a deliberate disregard of his Charter rights. I do not find that the actions of the police would invite a negative impact on the public confidence in the administration of justice and the rule of law.
[102] The illicit drugs and loaded firearm existed independently of any alleged Charter breach. The evidence is of great probative value to the Crown's case as a whole considering the truth-seeking goal of the trial. After careful consideration, I find that the balancing of all of the s. 24(2) factors militate in favour of admission of the evidence.
Conclusion:
[103] The applicant has not met his onus to establish a breach of his ss. 7 and 9 Charter rights. The applicant has failed to demonstrate a breach of his s. 8 Charter rights with regards to the search of his Chrysler motor vehicle.
[104] The applicant has established a breach of his s. 8 Charter rights with respect to the Prosperity residence. However, pursuant to s. 24(2) of the Charter, the evidence ought to be admitted at trial.
Justice A. J. Goodman
Released: April 8, 2015
CITATION: R. v. Pasian, 2015 ONSC 1557
COURT FILE NO.: 11449
DATE: 2015/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
V.
SCOTT PASIAN
REASONS FOR JUDGMENT
WITH RESPECT TO
ss. 7, 8, 9 & 24(2) of the cHARTER
A.j. gOODMAN, j.
Dated: April 8, 2015
[^1]: I refer in part to Hill J.’s comprehensive analysis of the applicable law in the case of R. v. Ngo, [2011] ONSC 6676 (Sup. Ct.).