R. v. Rutledge, 2015 ONSC 1675

COURT FILE NO.: CR8/14

DATE: 2015 03 16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DOUGLAS RUTLEDGE

Applicant

R. Fetterley, for the Crown

J.L. Fisher, for the Applicant

HEARD: February 3, 4, 6,9, 10, 11 and 12, 2015

REASONS FOR RULING

ON SEARCH WARRANT ISSUES

WEIN, j.

OVERVIEW

[1] At a remote Mono Township farmhouse in the dark of night, the police surrounded Mr. Rutledge’s home. They expected to find up to four individuals with access to extensive illegal weaponry and various illegal drugs. They made a ‘Command and Control’ entry, by tossing tear gas through a back window and ramming down the front door. Their actions were in aid of the execution of judicially authorized search warrants. Now, in the calm of the courtroom, it falls to assess the legality of the actions of the police.

[2] No reported cases in Canada address the issue of the planned use of tear gas in the execution of a warrant. [1]

[3] Mr. Rutledge is charged with seven counts related to the possession of prohibited and restricted firearms, including a handgun, a Glock handgun, and sixteen long guns, along with an ammunition clip for a semi-automatic weapon, and ammunition. The charges result from evidence seized in the execution of search warrants at Mr. Rutledge’s home on farm property on the 20th day of December, 2012.

[4] Prior to the commencement of trial, the defence applied to have the seized evidence excluded on four grounds:

Issue #1: It is argued that the search warrants were not based on reasonable and probable grounds, and that the Informant acted in bad faith;

Issue #2: It is argued that there were no reasonable grounds to obtain the authorization to execute the warrants at night;

Issue #3: It is also argued that the police used excessive force in executing the warrants, particularly in using tear gas, thereby rendering the search unreasonable;

Issue #4: Finally, it is argued that obtaining the warrants by means of the telewarrant procedure was improper, in that it was not demonstrated that it was impracticable for the affiant of the Information To Obtain (ITO) the warrants to appear in person in front of a justice of the peace.

[5] It is common ground between the Crown and defence that if the evidence is excluded, the Crown will not have a sufficient evidentiary basis to proceed to trial.

FACTS

OBTAINING OF THREE SEPARATE TELEWARRANTS

[6] Based on information received from a confidential informant (CI), confirmed and supplemented by further investigation, Detective Constable Buligan of the Ontario Provincial Police applied at 2:29 a.m. on December 19th, 2012 for a telewarrant under Section 487 of the Criminal Code. This warrant was granted at 2:45 a.m. and authorized a night search for weapons. The ITO requested to enter under cover of darkness to minimize the risk to the safety of police officers, based on the existence of a number of weapons, the suspected presence of cocaine, and the criminal record and history of violence of the main targets, Billy Cousins and Tyler Rutledge.

[7] A second telewarrant ITO was submitted at 4:20 p.m. on December 19th, 2012 for a Controlled Drugs and Substances Act (CDSA) warrant. The same CDSA telewarrant ITO was resubmitted because the police were notified that there had been a power failure at the telewarrant centre. However, the first submission resulted in a warrant being granted at 6:45 p.m. on December 19th by the same justice of the peace who had granted the Criminal Code telewarrant. The second CDSA ITO submission also resulted in the same Justice of the Peace issuing another identical CDSA warrant at 7:40 p.m. Both of these warrants also authorized a night search but shortened the time period authorized for execution. Nothing in this case turns on the issuance of a duplicate CDSA warrant.

[8] The CDSA ITO was almost identical to the Criminal Code ITO. There were two differences in the underlying conclusions about the residency of the main suspects, Tyler Rutledge and Billy Cousins. First, a correction was made to the confirmation of an address: MTO records of Tyler Rutledge, not Billy Cousins, showed that he resided at that address. Second, additional information was given concerning the confirmation of Billy Cousins’ residence at the subject address. By the time of the CDSA ITOs, it had been confirmed that another officer had attended at the residence earlier in the year, and a person he spoke to indicated that Billy Cousins did reside at that address occasionally.

[9] Accordingly, given the near identical information in all warrants, counsel based their arguments on the Criminal Code warrant, with the minor corrections and update in the CDSA warrant taken into account.

CONFIDENTIAL INFORMANT

[10] The ITO was primarily based on the information provided by a CI. There is no dispute that the identity of the CI is subject to privilege and cannot be revealed. The CI provided information on December 17th to his police handler, who relayed the information to Detective Constable Buligan, the Informant for all three warrants, on December 18th.

[11] The CI indicated that he had first-hand knowledge of his information as a result of associating with the subject of the investigation on an occasional basis, more than one time, and within the prior month. The ITO indicated that the CI had no convictions or offences related to dishonesty and that the information was being provided for monetary reasons. The CI was told that any information provided to the police had to be truthful in order to receive monetary compensation.

[12] The police indicated that they had no reason to disbelieve him: the information was detailed and appeared accurate, and there were no indicia of unreliability except perhaps for his request to be compensated.

CORROBORATION BY POLICE

[13] The police took steps to confirm the particulars of the information supplied by the CI. They did this through:

• information that had previously been supplied to the police by three separate anonymous sources;

• a search of criminal records on CPIC;

• a search of police NICHE records;

• A search of driver’s licence records; and,

• police observation of the residence and property from a distance.

INFORMATION TO OBTAIN

[14] Detective Constable Buligan, who prepared the ITO and sent in the warrants for authorization, was examined on a number of aspects of the ITO. As said, there were only two changes of any significance between the Criminal Code and CDSA warrants. With respect to the Criminal Code warrant, he noted that the MTO search was of Tyler Rutledge’s driver’s licence, and that the reference to Billy Cousins was simply an error, corrected in the CDSA warrants. In those warrants, it was clarified that the address confirmation was of Tyler Rutledge’s address. However, Billy Cousins was connected to the residence in that an officer had attended to check for Cousins there, and had been told that he resided there occasionally. The information also indicated that Cousins was Tyler Rutledge’s half-brother.

[15] Specifics of Detective Constable Buligan’s evidence are set out below, in relation to individual issues.

PREPARATION FOR EXECUTION OF THE WARRANTS

[16] On December 18th, after the Criminal Code warrant was issued, Detective Constable Buligan requested the assistance of a TRU Unit – the OPP Tactics and Rescue Unit. Staff Sergeant Penrose was the Central Region TRU Acting Unit Commander at the time. He was contacted at about 3:46 p.m. on that day.

[17] Staff Sergeant Penrose’s understanding was that officers were still working on the CDSA warrant, that there was cocaine involved, and that the weapons included an automatic weapon (an AK) and a Glock. In such situations, where there is a potential for a high powered automatic or semi-automatic gun to be used, a risk assessment checklist is done by the requesting force. The assessment involves factors such as the potential for firearms to be involved, the potential for violence, whether the location is fortified, and whether there is an involvement with any known gangs or terrorism activities. If a high risk is assessed, then the TRU Unit is engaged to proceed.

[18] In this case, the additional information was requested, and as is the normal practice, it came in the form of a SMEAC report, that is Situation, Mission, Execution, Administration Communication. Based on the SMEAC plan that had been developed by Detective Constable Buligan, and on the content of the search warrant, and on his review of CPIC and NICHE printouts for the four persons who were believed to be potentially in the house, he determined that aerial photographs should be taken by the OPP helicopter to supplement the Google map aerial views of the property.

[19] He summarized a number of concerns: it was understood that a number of weapons including assault weapons, a high powered semi-automatic gun, and handguns might be involved; various drugs were involved; three of the four individuals had been flagged by CPIC as being violent, related to their past criminal record or history with the police. The property was rural, with the home located at a high point some distance from the road, and it was also isolated. The presence of dogs on the property added difficulty to the police in entering undetected. The aerial photographs would help in determining the location of vehicles and the best manner of containing the property and entering it through doors and windows. Staff Sergeant Penrose concluded that this was a high risk mission requiring assistance of the Emergency Response Team and a number of other officers.

[20] The goal was to apprehend the individuals and ensure that they could not escape or hide, or destroy evidence, and importantly for officer safety, that they would not have time to arm themselves. Accordingly, it was determined that it would be necessary to make a forcible entry, at night, assisted by the use of tear gas. Tear gas would force any occupants outside before they could arm themselves or destroy evidence, and so would enhance safety of both the officers and the occupants by reducing the likelihood of an armed confrontation.

[21] The officer explained how options involving less invasive methods were ruled out because of the risk to officers and the public. Accordingly, the plan that was developed was to contain the property surrounding the house, then simultaneously call out the individuals and force them out with tear gas, before they could activate weapons or destroy evidence. The plan was developed throughout the day on the 19th, and the team was briefed on December 20th at 3:02 a.m. The aim was to effect execution of the warrants at about 5:00 a.m. when it would still be dark, and ideally the occupants would be home and asleep and unprepared.

[22] Staff Sergeant Penrose’s expectation was that all four individuals would potentially be at the house, but there was no way for the police to determine this with certainty.

[23] Staff Sergeant Penrose was cross-examined at length concerning some alleged discrepancies or exaggerations as between the SMEAC report prepared by Detective Constable Buligan and his own power-point SMEAC, prepared for his team. He was also directed to occurrence summaries underlying Detective Constable Buligan’s SMEAC report that he had not seen previously.

[24] Differences included that Douglas Rutledge and his father were not named in the Criminal Code warrant, and Billy Cousins was named as a “found in” rather than a primary suspect. Staff Sergeant Penrose did not ask Detective Constable Buligan why the Applicant and his father were listed in the SMEAC report when they were not named in the warrants, because his understanding was that all had extensive knowledge of the weapons and drugs. He believed that Billy Cousins was staying at the residence, even if not an actual resident there, although he understood that Billy Cousins had another residence. He did not cross-reference vehicles shown in the photographs to the vehicles known to be driven by the targets. In part this was because the helicopter was used not to corroborate information but to help develop the plan for the execution of the warrant. He did recall noting that the ITO, which he had not previously reviewed, indicated that Billy Cousins lived in the farmhouse as opposed to simply staying there. In terms of developing the plan, it was sufficient that there was a belief that he would be there.

[25] He also acknowledged that the underlying summary of the incident concerning Billy Cousins’ pointing a gun said only that he “cocked” a gun: he agreed that ‘pointing’ a gun would justify a more violent takedown and that the ‘cocking’ of the gun would be of less concern, but still a high degree of concern. With respect to the indication that Billy Cousins had used a taser, it was pointed out that the underlying document suggested only that one of his “crew members” had two tasers or tasered someone. Nonetheless, he still felt that Billy Cousins had an extensive history of violence. In any event, he testified that he would still make the same decisions with respect to the force necessary in the execution of the warrant. In other words, he did not weigh the history of the individuals involved to a nicety, and even with this additional information he would not have altered his plan.

[26] However, he did agree that the presence of Billy Cousins was most concerning and that without the presence of Billy Cousins and/or Tyler Rutledge, he might have considered a different approach. He still would have been concerned because of the presence of ‘exotic’ firearms. The number and type of firearms he believed were there as well as the possibility that Cousins and Tyler Rutledge could be present justified the high degree of concern for safety, so that no one would be injured.

[27] The officer explained in some detail the assignment of various duties, including road blocks, containment officers, armed response vehicles (ARVs) to breach the door, and radio communication units. The group left for the staging area at about 4:19 a.m.

EXECUTION OF THE WARRANTS AND SEIZURES

[28] Staff Sergeant Penrose reviewed how the officers deployed themselves. After the containment officers surrounded the house, the armoured vehicle with the ram for the door moved up the driveway at 5:04 a.m. At 5:06 a.m., virtually simultaneously, the hailing of the house with a loud speaker began, the house phone number was called, the door was rammed, a window at the opposite side was breached and tear gas deployed through the window. All of this happened quickly in order to limit the risk to the officers and any individuals in the house.

[29] In this case, no one was injured, and no one required any medical attention as a result of the use of tear gas. No shots were fired. The entrance door was broken, a back patio door was damaged, and two windows on the opposite side of the house were broken. The officer did not note any interior damage other than what the use of tear gas may leave, but the tear gas did not start any fires and is designed for interior use. It was not specified what damage tear gas may leave.

[30] It was clear from the evidence that the use of tear gas was part of the plan formulated for the briefing prior to the execution of the search warrant. The plan was fluid: Staff Sergeant Penrose acknowledged that there might have been circumstances in which the tear gas would not be deployed, for example if a baby or a child had been seen in the room. Constable Beaudin acknowledged that if he had seen someone in the room, or if for example he had seen a flammable substance on the floor, he would have radioed that back and received instructions, so he couldn’t say whether or not they would have deployed tear gas in those circumstances. It was not part of the plan for him or the other officers to look into the window after it was broken, because for officer safety at that stage they would immediately deploy the gas as quickly as possible.

[31] Constable Beaudin was the TRU officer who was assigned to breach the window. He and his team walked up the driveway using his monocular night vision sight. They saw a light on from the sublevel but it was very dark and there were no lights in the house upstairs. He had to use his night vision to peer in the window he was planning to breach, but he couldn’t see a lot because the glass was reflecting back at him. He saw the back of a couch through the window and what he thought was a kitchen further into the room. He did not see any individuals so, in accordance with the plan, the ARV was called in. When he got the indication, he breached the window with a metal trident, and within seconds another officer threw in the tear gas, at the same time as the front door was being rammed by ARV. As he broke the window he said loudly, “Police: Search Warrant”. He expected that the loud hailer was also being used.

[32] While he didn’t see the tear gas actually thrown in, because he was stepping back, he saw it billowing out. He heard a man screaming or scared and then was told the man was in custody. The window damage was consistent with what he caused and he agreed that the tear gas canister could have caused black marks on the floor.

[33] Very quickly, the applicant came out of the house and was taken into custody and was interviewed by Detective Buligan. He was coughing and teary-eyed, but did not require medical intervention. He complained of being cold, and was moved to a warmer vehicle.

[34] Ex post facto justification of a warrant cannot be based on what is discovered. However, the evidence was that the police seized a long list of items including a number of weapons, drugs and drug-related paraphernalia from the house, but only the Applicant, Mr. Rutledge, was in the house at the time of the search.

THE LEGAL FRAMEWORK

[35] Evidence obtained through the execution of a search warrant may be excluded at trial where the defence establishes on a balance of probabilities that the search was conducted in violation of a person’s rights to be secure against unreasonable search and seizure, as guaranteed by Section 8 of the Charter, and that the evidence should be excluded pursuant to the principles established under Section 24(2) of the Charter.

[36] A judicially authorized search pursuant to a warrant is presumed valid, and the onus is on the accused to show invalidity.

REDACTION OF CONFIDENTIAL INFORMATION

[37] Materials provided to the defence, including the ITOs as well as the SMEAC plans and all of the supporting documents, were redacted to protect the identity of the CI as well as the identity of other sources who had provided earlier information to the police concerning the targets.

[38] As well, the Crown made two additional redactions. First, at the commencement of the trial, a redaction was made on Page 12 of the Crown Factum. The original of that page has now been sealed by court order and placed in a sealed envelope. The defence copy was redacted just before the court hearing started and without the defence being aware of the nature of the redaction.

[39] Secondly, the SMEAC power point developed by Staff Sergeant Penrose contained an indication that “the source indicates that (blank: redacted) tasered. This redaction was made prior to the court receiving a copy, but the original text was known to the defence. After an adjournment to seek advice, and following a mid-trial before another judge, and independent counsel being given to Mr. Rutledge, defence counsel agreed that his knowledge did not compromise his ability to proceed, or Mr. Rutledge’s defence, so no further steps were required. The defence, of course, has undertaken not to reveal the word or words redacted in that line.

GARAFOLI PROCEDURE

[40] The Crown agreed at the commencement of the hearing that the redactions resulted in a situation where the court would not be satisfied of the sufficiency of the details in the ITOs to uphold the issuance of the warrant. Accordingly, the Crown cross-applied under Step 6 of the Garofoli process to have the unredacted ITOs reviewed by the Court, with a judicial summary prepared for the defence: R. v. Garofoli, [1990] 2 S.C.R. No. 1421. The Crown’s position was that the summary would provide the defence with sufficient material to be able to meaningfully participate in the hearing process, and that the ITOs for the telewarrants including the redacted material would be seen as affording a basis upon which the justice of the peace could reasonably issue the telewarrants.

[41] After an in camera review of the draft summaries filed by the Crown, and revising and adding to those summaries, judicial summaries of the redacted portions were provided to the defence. Documents used in the procedure, as well as the original ITOs, have been resealed in the file.

[42] The defence took the position that the summaries were adequate for the purpose of assessing the facial and sub-facial validity of the warrant.

[43] The judicial summary included the following information:

• that the unredacted words (relating to the CI’s criminal record) are not misleading;

• that the CI was at their house less than a month ago, and described specific firearms, related items, and persons present;

• that the CI has been at their house and has seen guns more than once;

• that the CI has seen cocaine of a specific quantity;

• that the CI bought specific drugs at the house;

• that the CI estimated the volume and quantity of the drugs being sold;

• that the CI saw a shotgun less than a month before the search.

ISSUE #1:

SUFFICIENCY OF THE WARRANT

STANDARD OF REVIEW

[44] In reviewing the sufficiency of the information underlying a warrant, it is well established that the test for the reviewing judge is to determine, based on the record before the issuing justice, as amplified on review, whether the issuing justice could properly have issued the warrant. The review is not a de novo hearing, with a substitution of views by the reviewing justice of the conclusions of the issuing justice: Garofoli at p. 1452; R. v. Morelli, 2010 SCC 8. [2010] S.C.R. No.253 at paras. 39-43:

[40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. (Morelli at para 40, emphasis in original).

[45] It must be appreciated that the issuing justice will have taken a common-sense, practical, non-technical assessment, drawing reasonable inferences from the ITO: R. v. Vu, 2013 SCC 60, 2013 S.C.C. 60 at para 16.

[46] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R.1140, [1989] S.C.J. No. 118, the Court set out the contextual analysis required for the assessment of the information provided by an untested CI. The test was later adopted in Garafoli, at para. 80:

…Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe.

(i) Hearsay statements of an Informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the “tip”;

(b) the informer’s source of knowledge;

(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[47] With respect to the sufficiency of the warrant:

A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected. Further, the Criminal Code imposes special requirements where a search by night is contemplated… judicial officers must be able to treat the information at face value. If police officers are to be permitted to use expressions such as "proven reliable" in order to protect their sources, a justice of the peace must be able to assume with confidence that the expression bears its accepted meaning.

The reasons in Hosie called for a renewed sense of responsibility by officers seeking search warrants. What we have here, beyond the reliability issue, is a less than complete investigation, a failure to disclose the Informant's criminal record and several other errors referred to earlier. I do not go so far as to find bad faith on the part of the officer, but I do find that he was flagrantly careless and showed no appreciation for the significance of an intrusion upon the privacy of a home. The fact that the intrusion took place at night, without need or justification, simply exaggerates the seriousness of the other defects. Standing by itself, this is the most serious of the violations. As stated earlier, with a properly issued warrant, the officer could have stood at the door of the apartment in the morning and have been reasonably certain that the evidence would be found. ( R. v. Sutherland 2000 CanLII 17034 (ON CA), [2000] O.J. No. 4704, 139O.A.C.53 at paras 15, 29-30.)

[48] Several issues were raised concerning the facial validity of the warrant:

• the lack of information about the financial rewards for the CI;

• the lack of details or misleading language concerning the CI’s record;

• the lack of information providing a basis for a night-time entry;

• the lack of confirmation as to who would be at the address;

• exaggerations concerning past violence;

• limited details of the TRU plans.

[49] The defence also relies on a number of omissions in the disclosure, particularly including that Billy Cousins also was known to have had, at one time, a Shelburne address: the underlying NICHE reports indicated that his car was registered to his grandmother at a Shelburne address and he was known to have resided there.

[50] The essential issues in contention with respect to facial validity relate to the adequacy of the confirmation of the CI information that Billy Cousins was residing at the farm and therefore would likely be found there, and the adequacy of the information with respect to the likelihood that weapons would be found there.

[51] In this case, neither party prepared a chart of particulars of aspects of the CI information that were, or were not, corroborated. Rather, the defence argued both that the evidence was insufficient overall and that, even if sufficient, the conduct of the police and the conduct of the Informant drafting the ITO was so egregious that the warrant ought to be set aside.

[52] However, much of the CI information was confirmed, at least partially:

Cell Phone Number for Tyler For investigative reasons, not called

Description of Tyler Rutledge Consistent with police records, although no known reference to tattoo

Lives with Dad in a farmhouse. Confirmed

Grandfather lives there. Confirmed that grandfather is associated to the address through police records. Not noted that he might not live there, as discovered before second warrant but Grandfather not a primary target

Billy Cousins is a resident Did accurately note that his residency was confirmed earlier in the year. Did not note “occasionally” resides there in corroboration section but this was noted elsewhere in the CDSA warrant

Error re: driver’s licence check corrected in CDSA warrant

Billy Cousins is a brother he is a half-brother

Father resides at farm. Confirmed

Billy has a history of drug trafficking Confirmed by other police anonymous sources and minor drug possession charge

Tyler is a resident at farm Confirmed by driver’s licence and CPIC

Billy Cousins’ vehicles Confirmed through police records and other anonymous information

Details re: farmhouse, gates and cows Confirmed

Marijuana grown on the property Confirmed only through anonymous police information. School record of Tyler confirms marijuana from farm where he lives

Weapons/taser Some confirmation re taser, but NICHE Information was that Billy Cousin’s “crew” had two functional tasers: no reference to “crew”

Prior Informant indicated Cousins being involved with possession of firearms including a revolver.

Tyler and Billy had possible involvement with gun in Wasaga incident.

Two other anonymous sources indicate Billy Cousins involved with a person who “runs guns”

Cocaine Police sources indicate Billy’s involvement as a “runner”

[53] With respect to the weapons, I find that there was adequate confirmation, albeit some of it through other informants whose reliability was also unproved or who were anonymous. However, the incident in Wasaga Beach, while it did not result in the finding of a gun, and was inconclusive with respect to whether a gun had been seen, does provide some further independent corroboration. That incident also corroborates that Billy and Tyler were closely associated. Their association with drugs including marijuana and cocaine is also confirmed by the number of separate police incidents. The number of separate pieces of confirmation, while individually weak, tends to make the confirmation stronger when taken as a whole.

[54] With respect to the issue of the likelihood that Billy would be found there, the fact that his vehicle was registered to his grandmother at a Shelburne address could have been disclosed, but would not undermine his other connections to the property, uncovered through the investigation earlier in the year. The limits on the information that he resided there could have been clearer, but there was adequate information to confirm his association with the address.

[55] The defence also notes that inappropriately strong or misleading language, and conclusory language, was used by the Informant, such as “essentially every point…has been corroborated”, “very detailed information”, “extensive corroborating information”. The Informant is required to form an opinion. The issuing justice would certainly be aware of his responsibility to form independent conclusions. At most, these statements are surplusage and can be excised from the ITO in the context of considering the adequacy of the substantive information. Such exaggerated language is to be discouraged, and could be for example replaced by more objective assessments, but this language could not have misled the issuing justice exercising his independent function: See Boussoulas 2014 ONSC 5542 at paras 42-44.

[56] Similarly, with respect to the phrasing that “the information has been and will be further corroborated”, I agree that this is unusual language that ideally ought not to be used since future corroboration cannot be considered in the issuing of the warrant. Nonetheless, I accept the explanation of the officer that he simply meant it would be shown to be corroborated throughout the ITO.

[57] In summary, in assessing the material in support of the warrant and considering whether there was a reasonable probability of discovering evidence of the crimes alleged, relating to both weapons and drugs, it can be concluded that the information predicting the finding of weapons and drugs was compelling. It was detailed with respect to who might be present, the location of the property, and the description of the weapons and particularly where they might be found throughout the interior of the house. There was also specific information concerning the type of drugs that would be found.

[58] Secondly, with respect to the credibility of the source of the information, in this as in many cases, the police were relying primarily on information coming from an anonymous source. That source did not have a problematic criminal record, but was potentially to be financially rewarded. The particulars of the corroboration accordingly have to be carefully assessed to compensate for the inability to assess credibility: see R. v. MacDonald, 2012 ONCA 244 at para. 8. It is clear that in this case the information was particularly compelling, because the tipster had recent firsthand knowledge and was able to give not just biographical information, but detailed information of the weapons and locations inside the house. While the confirmation of the involvement of the two primary suspects in weapons and drugs was made only partly through their criminal involvement, and largely through other confidential information, the confirmation is somewhat stronger than a simple past criminal record. Even if each part of the information provided in confirmation was weak, together, in my view, the information cumulatively provided a sufficient foundation upon which the authorizing justice could exercise his discretion to grant the warrant. The higher level of verification required by R. v. Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175,107C.C.C. (3d) 385 (C.A.) at para 15 has been reached.

[59] The defence also argued that the mere provision of information for a potential financial reward casts inherent doubt on the credibility of the Informant, but this is simply a factor to be considered in the context of the sufficiency of the warrant overall. I do not agree with the defence argument that further details of the meaning of “information must be truthful” were required to explain the agreement made with the CI. As well, as a known informer (as opposed to an anonymous tipster), he is subject to prosecution for providing false information to the police.

[60] In R. v. Rocha 2012 ONCA 707, the informer was described as having no convictions for perjury or public mischief. The ITOs did not set out whether the informer otherwise has a criminal record. In this case, the judicial summary notes that the descriptor of “the CI as having no convictions for offences of honesty” was not misleading. In other words there is no record for any offences that would suggest he ought not to be believed. It is a delicate matter to determine how much to reveal of a CI’s record, or even whether he has no record, but with the judicial summary of the redacted portion of the evidence, this concern of the defence was eliminated.

[61] With respect to the details supporting the request for a nighttime entry, the presence of a number of weapons is a sufficient basis on which the issuing justice, in the circumstances here, could justify a nighttime entry. A dynamic nighttime entry minimizes the risks associated with the possession of weapons: see Boussoulas at paras 80-85.

[62] With respect to the issue of who would reasonably be found at the home, defence argued that there was inadequate information concerning who resided at the home. While it was confirmed that Tyler Rutledge lived there, there was no confirmation that the grandfather, Clarence Rutledge, still lived there. By the time of the second warrant, there was some suggestion that he might also have a house nearby. The fact that Clarence Rutledge was simply “associated” with the address through NICHE records was expressly stated, and he was not a main target. It was also argued that there was no confirmation that Douglas Rutledge, the Applicant, didn’t work, but this was only supported by defence counsel’s comment that he worked on the farm, so this is of no significance: it can be inferred that the CI meant he had no outside job. I found that there was sufficient information of these aspects.

[63] Accordingly, I find that the ITOs amplified by the judicial summary were sufficient to meet the test on review by this Court.

ALLLEGATION OF BAD FAITH OR NEGLIGENCE BY INFORMANT

[64] With respect to the issue of the conduct of the Informant for the ITO, the Court in R. v. Araujo, 2000 SCC 65 noted that a reviewing court must take a contextual analysis when dealing with problems arising out of errors committed in good faith by the police in the material submitted in the ITO. Errors, even fraudulent errors, do not automatically invalidate the warrant. However, deliberate errors may be relevant to the review process.

[65] In appropriate circumstances a reviewing judge can conclude on the totality of the circumstances that the conduct of the police in seeking prior authorization was “so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves”. Araujo, at para. 54 referring to R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at p. 553.

[66] The court must excise erroneous information, but the erroneous information the extent recognized in Araujo may be amplified if it did not result from a deliberate attempt to mislead the authorizing judge:

Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wire-tap in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on the wire-tap application attempts to reconcile these principles. Courts should take similar approach to amplification. (Araujo at para 59).

[67] In in R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436, 132 O.A.C.41, the Court of Appeal noted that if in applying for the warrant the police engaged in a deliberate deception the warrant must be quashed. However, even if the complaints demonstrate a lack of care and precision on the part of the police in collecting information and describing it in the ITO, not all errors will render the warrant invalid on review. Some cases may be sufficiently serious that an otherwise valid warrant should be set aside. However, if the errors could not seriously mislead the authorizing justice of the peace, and there is no indication that the police officer proceeded in an offhanded or cavalier manner, the warrant will not be set aside.

[68] In other cases, the concerns about good faith have been found to be fatal. In Hosie because the ITO incorrectly suggested the Informant had been proved reliable when he was in fact unproven, so the warrant was found invalid. It is argued here that the errors were intentional and should not be condoned, but I find that any errors were partial and unintentional .

[69] The main point of concern for the court was with respect to the probability of the presence of Billy Cousins. Billy Cousins, along with Tyler Rutledge, was a primary suspect. He had the most violent record, and the closest association with guns in the past. The fact that Billy Cousins was known to have a different residence in Shelburne, his grandmother’s residence where the car he drove was also registered, was not disclosed . The first warrant, incorrectly, said that MTO records showed the farm as his address. This was corrected in the CDSA warrants, and the defence accepts that the first reference was a simple error on the part of the Informant. It was, however, disclosed in the second warrant in the summary of the NICHE records that the confirmation of his residence was simply that police had been told that he resided there “occasionally”. However, the officer’s conclusion was still that he could be considered to be resident there.

[70] While Billy Cousins was misdescribed as a brother of Tyler Rutledge, it appeared that he was a half-brother and I do not find that error to be of significance.

[71] Significantly, the defence argued that the ITO exaggerated the level of Cousins’ history for violence in a number of respects. With respect to the incident in which Billy Cousins and Tyler Rutledge were involved in a fight at a motel in Wasaga Beach, the summary suggested that the handgun was pointed by one of them. The underlying records indicated simply that a handgun was “cocked”. I do not find this a significant difference. The information did note that no firearm was located, and that some persons said they had seen a gun while others seemed to have changed their position once the police arrived. It was noted that charges were laid, for assault and break and enter.

[72] While the imperfections noted above do relate to the important issue of Billy Cousins’ likely presence at the farm, it is clear that there was some confirmed basis to think that the CI’s information was correct, and that he would be there. I also do not accept that references to Cousins’ propensity for violence were unfounded, taking a holistic view of all of the evidence connecting him to tasers and weapons in the past, along with the CI information. The possibility that he would be present, or could be present, was sufficient to justify the warrant, notwithstanding any imperfections in the details.

[73] Having observed the evidence of the Informant, I do not find bad faith, or a cavalier attitude. The officer was doing his best to confirm the information he had and obtain warrants in a timely way, in the interest of public safety. He made mistakes in the process of organizing, summarizing and condensing information, but in the final analysis the basis for the warrants remained sufficient and untainted by any lack of professionalism or disregard for the process.

ISSUE #2:

AUTHORIZATION OF NIGHTTIME EXECUTION OF THE WARRANTS

[74] It is only in exceptional cases that nighttime searches of a private residence should be carried out: Sutherland. In circumstances where there are reasonable and probable grounds to believe there are firearms in a residence, there will generally be a legitimate concern about public safety that will justify a nighttime search: see MacDonald, at paras. 27-29.

[75] Grounds for executing a warrant by night must be included in the ITO, and the issuing justice must be satisfied of the reasonableness of those grounds, and specifically authorize night-time execution.

[76] Section 488 of the Criminal Code states:

Execution of search warrant

488. A warrant issued under section 487 or 487.1 shall be executed by day, unless

(a) The justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) The reasonable grounds are included in the information; and

(c) The warrant authorizes that it be executed by night.

[77] The ITO simply indicated that the “police wish to enter the property under the cover of darkness if possible”, “in the interest of officer and public safety” and that they intended to use the tactical unit.

[78] In the circumstances of this case, the issuing justice had sufficient grounds for authorizing a nighttime entry. A nighttime entry minimizes the risks that those present will have time to access or move weapons, and gives police the necessary element of surprise and added control: Boussoulas at paras. 80-84.

[79] A related issue arises concerning whether or not the police should advise the issuing Justice in the ITO of the details of the planned entry, such as that there is a plan for dynamic entry including the use of tear gas.

[80] R. v. Brown, 2011 ONSC 6223, [2011] OJ No. 4624 was a similar case involving a search for weapons. The police sought authority to conduct a “dynamic” entry at night but the proposed use of a “flash bang” device was not disclosed, although the involvement of the Emergency Task Force was noted. “Flash bangs” are distraction devices frequently used in an unannounced dynamic entry, but distraction devices are not deployed in all circumstances. In Brown, the court held that the use of the distraction device was reasonable.

[81] Similarly, in R. v. Thompson, 2010 ONSC 2862, [2010] OJ No. 2070, a section 8 violation was found based on the manner of entry. However, the violation was based on the evidence of deliberate and unnecessary damage to property, rather than on the use of a distraction device. The police in Thompson had not disclosed the plan to use a dynamic entry, suggesting that it may be preferable to disclose the involvement of an emergency response team or TRU team if known. However, the court held that the details of the entry plan need not be disclosed. The Court also held that the issuing justice cannot specifically authorize hard entry or specific tactics such as the deployment of devices.

[82] As was said in R. v. Cornell [2010] 2 S.C.R. 142, 2010 SCC 31, by Justice Cromwell,

…the question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate. The question for the judge, and the question the judge answered in this case, is whether the search overall, in light of the facts reasonably known to the police, was reasonable. Having determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment”. (at para 31)

[83] In my view, the request for a night warrant, in the context of drugs and weapons, and the references to the planned use of a tactical unit in both ITOs was more than enough to alert the Justice of the Peace in good faith to the fact that the police viewed the case as one potentially requiring exceptional measures.

ISSUE #3:

ALLEGATION OF EXCESSIVE USE OF FORCE

[84] The dynamic nighttime entry of a private residence, even when authorized by judicial authorization of such entry, can be a dangerous and traumatizing event running a high risk of physical injury, property damage, and personal trauma. Where possible, it is to be avoided and limited to the most exceptional situations. Where necessary, subsequent court supervision can and will discourage the employment of excessive force that aggravates the inherent harm involved in a dynamic entry, through ruling evidence inadmissible.

[85] In this case, the police used up to 25 individual officers, on a dark night, surrounding a home with stealth, and then employing two ARVs, loud hailers, officers carrying weapons, a ramming device on the vehicle, a window-breaking trident, and tear gas. In such cases, property damage is inevitable, and the deployment of tear gas in itself can cause physical, if temporary, harm to individuals.

[86] There are two separate components to the argument that the use of force was excessive in this case. The first is that the Information formulated by the Investigating officer deliberately over-emphasized the danger, by over-emphasizing the likelihood that the two main suspects, Tyler Rutledge and Billy Cousins, would be at that location, and by over-emphasizing the potential for violence from the possible inhabitants.

[87] It is argued that the ITO over-emphasized the prior incidents of involvement in drugs and weapons, the first SMEAC report went even further, and the final Briefing SMEAC report or power-point presented to the TRU team and supporting officers went further yet.

[88] In particular:

• the use of the term “pointed” a weapon rather than “cocked” a weapon;

• the notation that even the grandfather was known to be “violent” when he had no criminal record but simply a history of such things as threatening people when the cows got out on the road;

• the lack of information about the fact that Billy Cousins had an alternate address, and that the grandfather might actually live down the road; and

• the fact that it was Billy’s crew, not Billy himself, who was alleged to have the two tasers,

were argued to be factors that led the TRU team to decide upon an excessively armoured, hard entry approach.

[89] However, the lead officer, Staff Sergeant Penrose, fully rejected the possible influence of these factors, even if he had known about all of them. He was aware that Billy was not a permanent resident, and testified that other of the changes to the SMEAC report suggested by the defence would not have changed his risk assessment. He would in any event have placed this situation on a high risk scale, warranting significant measures for safety.

[90] I do not find that these summaries in the SMEAC plans were intentionally, advertently, or even inadvertently designed to justify a plan that would use more force than potentially necessary. The fact remained that persons with prior involvement with both guns and drugs were said to have a number of weapons, as well as drugs, in the home. Even on a view of the background evidence most generous to the Applicant, the police were entitled to take robust “Contain and Control” measures to ensure the safety of everyone involved.

[91] It is not argued that the property damage to the home was excessive, but argued that the use of tear gas in general was improper and in itself rendered the search illegal. Alternatively, it was argued that at the very least the use of tear gas was excessive in these circumstances.

[92] Two windows were broken, there is a possible soot or burn mark on the floor from the tear gas, and the front door was rammed albeit in a manner that allowed it to be restored to locking condition after the search. As well, a patio door was broken, but it is not indicated whether or not this occurred during the search or previously. There was no allegation of excessive disturbance of property in the house or any accidental breakage. It is apparent that all damage done was simply an inherent result of the plan used in the execution of the search warrant.

[93] As well, it was reported that Mr. Rutledge, the sole occupant, left the house shortly after the tear gas was deployed. One officer heard someone scream as if scared. There is no evidence that Mr. Rutledge was in the room where the tear gas was deployed, or that he was adversely affected by the tear gas for any length of time. He was described as startled but co-operative, quiet but without injuries. When he complained of being cold, he was moved to a warmer vehicle.

[94] It is argued, however, that in and of itself the use of tear gas in a dynamic entry situation should be disallowed, or at least emphatically discouraged by the court, because the very purpose of the tear gas is to cause physical pain to any individual subjected to it. It should be viewed as “inhumane and unlawful”. The defence took the position that it was inherently unlawful, or at least was extremely excessive, in the circumstances of this case.

[95] There are no reported Canadian cases involving the deliberate use of tear gas in a dynamic nighttime entry context, as opposed to the use of tear gas to quell riots or subdue individuals who, whether in public or in private, present an immediate danger to themselves or others.

[96] There was no expert evidence before me on the effects, whether long-term or short-term, of the application of tear gas. Staff Sergeant Penrose, who had experienced tear gas exposure in training, termed it “not fun”. I did not in any way believe that, as the defence contended, he was making light of the serious decision to use tear gas by the team under his command.

LEGAL PRINCIPLES GOVERNING DYNAMIC ENTRY/EXCESSIVE FORCE

[97] The general rule, that except in exigent circumstances, police officers must announce themselves before forcibly entering a residence is not absolute. Normally police are required to give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as police officers, and give notice of their purpose by stating the lawful reason for their entry: Eccles v. Bourque, 1974 CanLII 191 (SCC), [1974] S.C.J. No.123, (at para.9)[1975] 2 S.C.R. 739 (at pp. 746-7).

[98] The police are justified in departing from these rules in circumstances where they have reasonable grounds to be concerned about the risk to their own safety or the safety of others, through the possibility of violence, or have reasonable grounds to be concerned about the destruction of evidence. In such circumstances, it is clear that it is the Crown that bears the onus of explaining any justifications, which must be known to the police at the time they execute an unannounced entry.

[99] The Supreme Court of Canada, in Cornell, articulated principles governing circumstances where a tactical team is being deployed to enter a residence in a dynamic fashion. Justice Cromwell, on behalf of the majority, set out the type of exigent exceptional circumstances that will obviate the use of the knock and announce rule.

[100] In particular, he noted that section 8 of the Charter does not require the police to put their lives or safety at risk if there is even a low risk of weapons being present. In Cornell, the Court assessed the justification for the use of an unannounced forced entry while masked. The court held that the assessment by the trial judge must take into account three things:

[23] First, the decision 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. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.

[24] Second, 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: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[25] Third, the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellate review.

[101] It was not disputed that the police are authorized to use tear gas of a certain specified type in the execution of their duties. Under the Police Services Act of Ontario, regulations govern the use of force and approval of weapons in training. The use of tear gas was authorized under the Police Services Act at the time of the execution of this warrant. The officer who broke the window so that the tear gas could be deployed indicated that he and the other officer refreshed their training the day before. The tear gas used was of a cold type that would not start fires. No issue was taken concerning the authority of the police to use tear gas in appropriate circumstances. No issue was taken with the type of tear gas deployed in this case, or that it was authorized for use by police in Ontario.

[102] However, while Canadian case law indicates that tear gas has been employed in hostage-taking situations, cases of mentally ill persons who have put themselves or others in danger, or where public safety is in issue in emergency situations, there are no reported Canadian cases reviewing the pre-planned use of tear gas in the execution of search warrant.

[103] In some cases, for example, involving a stand-off, the use of tear gas has been assessed as not breaching the Charter: R. v. Crockwell, 2013 NLTD(G) 17, (appeal struck 2014 NLCA 49). In assessing the police tactics used during a lengthy standoff, the Court found that

“the gas deployment on December 8 was both a necessary and reasonable tactic to force Mr. Crockwell out of the residence. The standoff was into its fourth day”. ( para.65)

People in the community were being affected and even though a significant amount of gas was used, which with distractionary devices would have caused great discomfort to Mr. Crockwell, the Court found that in the full circumstances such deployment was justified. Accordingly, no Charter breach of either section 7 or section 12 was found. It was held that the police had not acted excessively or disproportionately considering the circumstances.

[104] The defence argues that the use of tear gas as part of a planned execution of a search warrant should be prohibited by this court. The defence submits that if tear gas is allowed in this case, then in any case where there are guns and drugs and a past criminal record, the police will believe that tear gas can be used. The use of tear gas in this type of situation is a concern, but I cannot accede to the request that the Court entirely ban its use in the execution of search warrants. This court’s function is to review the reasonableness of the police conduct in this case. The police should always anticipate that in using extraordinary measures, including forced entry, distraction devices, and now tear gas, their actions will be carefully scrutinized by the courts to ensure no excessive force is used.

[105] The argument that tear gas is significantly or qualitatively worse than “flash bangs” or distraction devices is not founded on any evidence before me. The evidence suggests that tear gas is designed to cause pain or extreme discomfort by making the person choke and tear up. There is an undoubted discomfort level. It is argued that flash bangs, although they may cause fire and burn people if deployed too closely, are simply devices that shock the senses by bright lights and loud noises, but are not necessarily devices that will cause pain. On the limited evidence before me, I cannot accept this argument. ‘Flash bangs’ will cause pain to the eyes and ears. Tear gas, in set modules, is authorized. Both types of devices can assist the police by causing shock and surprise and forcing either momentary inactivity or movement out of the location, thereby minimizing the risk of use of weapons.

[106] Certainly on the evidence before me, there is not a sufficient basis to ban the use of tear gas in the execution of search warrants, or to state that it will always result in a finding of excessive use of force. These devices are authorized by regulation and controlled by restrictions on the type of device provided to the police and the training given to the limited number of officers who might deploy them. The review by courts of the overall circumstances of the execution of a warrant in any individual case provides an adequate control against the unconstitutional use of force. To accede to the defence request and prohibit the use of tear gas in the execution of any and all warrants, quite apart from any questions concerning the court’s jurisdiction, would in my view be to micromanage the police’s choice of equipment, a position that has already been rejected by the Supreme Court of Canada in Cornell.

[107] Was the use of tear gas excessive in this case?

[108] Hill J. in R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 states:

To be reasonable, any search must be executed in a reasonable manner:

(1) it must be borne in mind that when the police work in a close encounter with someone who may have committed a criminal offence, they must have reasonable resort to measures to minimize, to the greatest extent possible, harm to themselves: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 43; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 623

(2) when the police execute extraordinary measures as an aspect of arrest or search, consideration of whether their actions are based upon reasonably based and genuinely held beliefs, depends not only the factual circumstances of a particular case, but also the experience of the officers in similar situations, and their related training - "Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions": Florida v. J.L., at p. 272 - the courts should exercise some caution before attempting "to micromanage the police's choice of equipment": R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 31

(3) indeed, the courts have recognized the real potential for the presence of firearms in the immediate vicinity of significant quantities of illicit drugs as the trafficker seeks to protect his or her valuable commodity: United States v. Garcia, U.S.C.A. 10th Cir. (May 12, 2014; No. 13-2155), at pp. 12-3, 16; United States v. Beltram, U.S.C.A. 7th Cir. (May 15, 2014; No. 12-2990), at p. 9 (at para 86).

[109] In this case, the police reasonably believed that in executing the warrant they could be faced with an array of weapons, including handguns and an AK - an automatic or semiautomatic weapon. The home was two stories, plus a basement, and multiple persons might have been encountered. There was no risk, as there might be in a city, that persons leaving the home would pose a risk to the public, since there were no other homes anywhere nearby and it was night-time. On the facts here, it is not for the court to second-guess the police discretion respecting the operational approach taken. The extraordinary measure of using tear gas to flush out the inhabitants of this isolated home was, in this case, not unjustified.

ISSUE #4:

USE OF TELEWARRANT PROCEDURE

[110] A search warrant may be obtained by the police by means of a telewarrant procedure provided for in Section 487.1(1) of the Criminal Code. Proper resort to the telewarrant procedure is made in circumstances where it would be “impracticable” for the officer to appear personally before a justice and make the application for a search warrant in the usual fashion.

[111] The standard “impracticable” has been interpreted to mean “something less than impossible”, importing “a large measure of practicality, what may be termed common sense”. Ontario decisions generally view the standard as being relatively low: see Boussoulas, at para. 72. While the personal attendance must be more than a mere inconvenience for the affiant: (R. v. Lao 2013 ONCA 285 at para. 68), it has also been said that the court ought not to interfere in the management of police investigations by requiring them to organize in a fashion that avoids using the telewarrant procedures: see R. v. Lemiski, 2011 ONSC 30 (at para 44) referring to R. v. Luong, 2010 ONSC 34 at para 37. The telewarrant legislation was clearly intended to allow the police to use modern technology to bridge gaps over time and distance: R. v. Phillips, 2004 BCSC 1797, [2004] BCSC 1797, [2004] B.C.J. No. 2919 (at para 23).

[112] The affiant’s explanation for using the telewarrant procedure on the Criminal Code warrant suggested that the police did not want to wait until 9:00 a.m. to attend at the Justice of the Peace Office because they wanted to execute the warrant as soon as possible. It was also suggested that a delay could cause a risk to public safety and increase the likelihood of loss of the items, in that case firearms, magazine clips and ammunition for firearms.

[113] The Applicant argued that there was an inconsistency between the statement that the weapons would provide ‘status’ so they likely would keep them, versus the earlier statement in the ITO that waiting would increase the risk of loss. Yet both are simultaneously true. Waiting inherently poses a risk that the possessor of the weapon will move its location, and guns are likely to be retained in the drug subculture.

[114] It was argued by the defence that at the time of the first warrant, the Informant had no expectation that the warrant would be executed that night, so he could have waited until morning. However, P.C. Buligan testified that by the time he corroborated the information on December 18th, it was too late to get to the Justice of the Peace office before it closed, given the distance from his office to the closest courthouse, and he wanted the warrant to assist the tactical team in planning.

[115] Quite apart from the value of obtaining the second warrant from the same justice of the peace, he testified that it was again too late in the day to reach the Justice of the Peace office before it closed so he sent the second one by telewarrant as well. He also explained that he felt it was necessary to have the warrant as soon as possible based on the use of the tactical unit, which decides when they will do the execution of the warrant. Delaying the request for the first warrant would therefore have shortened the time the tactical unit had to decide how to execute the warrant. He denied that it was his “standard practice” to use telewarrants.

[116] The Crown conceded that the use of a telewarrant for the first Criminal Code warrant requires amplification. The evidence of the officer was that he needed the warrant before getting the TRU team involved. I do not agree, however, that the urgency was simply “imperfectly expressed”. As the Crown indicated, it would have been better to get both warrants at once and it does appear that the initial warrant at least could have been obtained in person the next morning.

[117] Unlike the situation in Boussoulas and other cases referred to in that decision, and perhaps contrary to the explanation given in the ITO, this warrant was not executed the same night it was issued. It was executed more than 24 hours later, and after the same J.P. had issued the CDSA warrant the next evening.

[118] The ITO did not indicate that he expected the warrant to be executed that first night or that the TRU team would be unable to proceed with planning unless there was a warrant already issued, so in the particular circumstances of this case there was no bad faith in using the telewarrant process.

[119] The “inherent dangers associated with the unlawful possession of firearms” supports the affiant’s contention of urgency in obtaining a warrant. The evidence that he later chose, with the involvement of and advice from the TRU team, to obtain another warrant resulting in a plan that ultimately fixed the search on the next night, does not in my view demonstrate that the telewarrant process was wrongly undertaken. The first ITO requested, and the warrant provided, authority to enter up to 3:00 p.m. on December 21st. So also, the timing of the second telewarrant, given the evidence of what further investigation was done during the day of the 19th, cannot have been said to be necessarily arranged so that a telewarrant was again needed.

[120] I do not find a breach of s.8 of the Charter on this basis. In any event, the defence acknowledged that any breach of s.8 on this basis, standing alone, would not justify the exclusion of evidence.

CONCLUSION

[121] The issuance and execution of the search warrants in this case did not result in a violation of s.8 of the Charter. Accordingly, the items seized during the search will be admissible at trial.

Wein, J.

Released: March 16, 2015

CITATION: R. v. Rutledge, 2015 ONSC 1675

COURT FILE NO.: CR8/14

DATE: 2015 03 16

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DOUGLAS RUTLEDGE

REASONS for ruling on search warrant issues

Wein, J.

Released: March 16, 2015

[1] There are a number of cases from the United States dealing with this issue: see for example State of Colorado v Thomas Anthony Lofton, 2012 10CA 0286