CITATION: R. v. PEDRAM MALEKI, 2015 ONSC 2261
COURT FILE NO.: CR-12-2111
DATE: 2015-04-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Johnston, for the Crown
v.
PEDRAM MALEKI
E. Ghebrai, for the Accused
HEARD: OCTOBER 7, 8 and 10, November 4, 13, December 5, 16, 2014, March 20, 2015
RULING RE: SEARCH WARRANT
LEMON, J.
THE ISSUE
[1] Mr. Maleki has brought an application to exclude the evidence of a marijuana grow operation that was seized during the execution of a search warrant. He submits that there was no reasonable basis for the Justice of the Peace to issue the search warrant, and, on review, it should be quashed. He submits that the evidence should therefore be excluded pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms.
[2] No arguments were made with respect to the Charter issues. Neither counsel was prepared to make those arguments. Instead, I was only asked to rule on the sufficiency of the warrant. The Charter issues are to be argued on another day after this issue is determined.
[3] After 8 appearances, three attendances to cross-examine the affiant and argument, I advised that the warrant was quashed for reasons to follow. These are those reasons.
BACKGROUND
[4] Mr. Maleki is charged with producing cannabis and possessing cannabis for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act.
[5] In the months leading up to January 21, 2011, Constable Aamer Merchant of the Peel Regional Police Service received information from a confidential informant concerning Mr. Maleki. Constable Merchant said that the confidential informant had proven reliable in the past and had provided information that had resulted in the seizure of drugs. The informant described Mr. Maleki as a Middle Eastern male who had a “low haircut” and a goatee. He was also described as driving a black BMW.
[6] The informant said that Mr. Maleki was growing marijuana at 9 Mira Road in Markham and was in possession of other drugs at 373 Redstone Road in Richmond Hill.
[7] Constable Merchant prepared the Information to Obtain for the search warrant on January 21, 2011. Based on the informant’s information and other information that Constable Merchant was able to obtain on his own (as set out below), he was able to obtain a telewarrant for the search of both residences between the hours of 8:50 p.m. on January 21 and 6:00 a.m. on January 22, 2011.
[8] The search warrant was executed at 11:56 p.m., on January 21, 2011 at the Mira Road address. A quantity of marijuana plants was located in the basement of the residence. As a result of that search, Officer Merchant did not proceed with the search of the Redstone property.
LEGAL AUTHORITIES
[9] The principles related to search warrants and their review have been set out in a host of leading cases. See: R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.),R. v. N.N.M., 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022., R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 16, [1990] 2 S.C.R. 1421, R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.) R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), R. v. Farrugia, 2012 ONCJ 830, R. v. Morelli, 2010 SCC 8, R. v. Greffe (1990), 1990 CanLII 143 (SCC), 55 C.C.C. (3d) 161 (S.C.C.), R. v. Herdsman, 2012 ONCJ 739, [2012] O.J. No. 5598, R. v Adansi, 2008 O.R. No. 1202, R. v. Sutherland (2000), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont. C.A.).
What needs to be in the Information to Obtain?
[10] The ITO must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place. Reasonable grounds "are not proof absolute" though they must be more than mere suspicion.
[11] A search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish those reasonable grounds. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious.
[12] Some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person. Probable cause does not arise, however, from a purely conclusory narrative. The affiant is not, however, obliged to record every minute step taken in the investigation.
[13] The affiant's reasonable belief does not have to be based on personal knowledge, but the ITO must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief.
[14] Because a search warrant application is generally an ex parte application, there is a legal obligation to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly”.
[15] A justice can only perform the judicial function of issuing a warrant if provided with accurate and candid information. Therefore, the affiant is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions". Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice".
[16] As a general rule, the police cannot fail to disclose on the basis that they are confident that any misconduct in obtaining the information is irrelevant because of an independent source for the information, inevitable discovery or attenuation. The court considering the warrant application will itself make the determination of the relevance of pre-application behaviour.
What needs to be considered when the officer’s knowledge comes from informants?
[17] Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances.
[18] 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.
[19] 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 the degree of detail of the "tip”; the informer's source of knowledge and indicia of the informer's reliability such as past performance or confirmation from other investigative sources.
[20] The strength of the informant’s information is considered using the “Three C’s”. Was the information predicting the commission of a criminal offence compelling? Where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?
[21] Each of these factors does not form a separate test. Rather, the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[22] “Compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, such as whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. “Credibility” captures considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. “Corroboration” refers to any supporting information uncovered by the police investigation.
What can the reviewing judge consider?
[23] The ITO must be considered as a whole and the affiant should not be held to the specificity and legal precision expected of pleadings at the trial stage. However, the affiants’ performance of their legal obligations is subject to judicially enforceable standards that are directly relevant to their task. Professional naivety affords no excuse for any drafting errors.
[24] A search warrant is presumptively valid. 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, and not a line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question.
[25] A “sub-facial” attack goes behind the face of the ITO to challenge the reliability of its content. The reviewing judge considers the record that was before the issuing justice in light of the evidence called at the review hearing and asks whether there is a basis on which the justice could have issued the warrant.
[26] The issuing justice’s decision must be upheld unless the applicant meets the burden of demonstrating the warrant’s invalidity by establishing on a balance of probabilities that there was no basis for its authorization.
[27] The reviewing court is not entitled to substitute its decision for the issuing justice. Rather, the court is obliged to determine whether the decision of the judicial officer is one he or she could reasonably and judicially have reached in the exercise of his or her discretion to issue the warrant.
[28] The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[29] The application judge must also consider information that was not disclosed to the issuing justice. The existence of fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence, or the omission of facts material to the exercise of discretion to issue a warrant are all relevant to review of a warrant and relate to whether there continues to be any basis for the decision of the authorizing judge.
[30] Ordinarily, the reviewing court looks to the remaining grounds of belief in an ITO after redaction of the offensive text, or in the case of an omission with the addition of the relevant missing fact(s), in order to determine whether there is a basis upon which the court could have issued the warrant. "In this way, the state is prevented from benefitting from the illegal acts of the police officers, without being forced to sacrifice search warrants which would have been issued in any event."
[31] A reviewing judge is not foreclosed, in appropriate circumstances, "from concluding 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".
What are the rules for telewarrants in exigent circumstances?
[32] Where a peace officer believes that an indictable offence has been committed, and that it would be impractical to appear personally before a Justice to make an application for a warrant, the peace officer may submit an information on oath by telephone or other means of communication. Therefore, all factors having to do with time exigencies, and the availability of the Justice of the Peace, have to be assessed in relation to the urgency of resorting to the exceptional measure of a telewarrant. Courts have found that if there is no foundation for the issuance of a telewarrant, the search conducted must be deemed warrantless. Other cases have held that the lack of completeness with respect to this aspect of the information is not fatal.
[33] As a general rule, the existence of exigent circumstances cannot be justified on the basis of the police operationally causing an emergency. Exigency cannot be justified where "the police created an artificial situation of urgency".
[34] A high degree of privacy is extended regarding a residence and the Code therefore "imposes special requirements where a search by night is contemplated" as night-time entry is meant to occur only "in exceptional circumstances."
EVIDENCE OF OFFICER MERCHANT
[35] On consent, the defence cross-examined Officer Merchant on two occasions.
[36] He has been a police officer for 12 to 13 years at the time of these events. He had been the affiant in 30 search warrants. In cross-examination, he begrudgingly acknowledged that he could be described as experienced.
[37] Officer Merchant agreed that he had an obligation to source information, to provide factual information and to lay out all of the information he had whether helpful to his case or not. He agreed that he ought not mislead the Justice of the Peace, either intentionally or unintentionally; he should use clear language to avoid misinterpretation. He agreed that he should use reasonable due diligence to follow avenues of investigation as thoroughly as he possibly could. He understood that since this was an ex-parte application, he was required to exercise a greater diligence, particularly with respect to a night-time entry.
[38] Despite that, the cross-examination disclosed as follows:
Because the basis for the warrant was information provided by a confidential informant, Officer Merchant carried out investigations over the balance of January 21 to corroborate that information. Officer Merchant said that he was familiar with Mr. Maleki because of Mr. Maleki’s involvement in gangs in Mississauga. What he did not say explicitly to the Justice of the Peace in the ITO was that his personal information was two to three years old.
Officer Merchant set out in the ITO that he “was conducting surveillance” at the two residences in question. What he did not say was that he simply drove by those two residences.
At the preliminary inquiry, Officer Merchant testified that he had made no observations of the Mira Road property that day. Rather, he had gone a few days before. He had no notes of that drive-by. He said that he had never driven by the address in Richmond Hill. However, by the time of this hearing, he had found another set of notes that reminded him that he did drive by the properties on the 21st. Those notes, which are quite brief, do not confirm one way or the other whether he drove by or was simply given the information by others.
He agreed that the word “surveillance” was a “strong word” and not full, frank and fair. He agreed that this may have been a breach of his duty to not mislead the Justice of the Peace.
When he drove by the Mira Road address, he observed a motor vehicle in the driveway. He investigated that license plate and found it to be registered to a female unrelated to this investigation.
He carried out checks with respect to the two residences and the black BMW. None of them were registered in the name of the accused, but were registered to a male with the same last name. However, a search of Mr. Maleki’s driver’s license found that it was for the same address as the Richmond Hill property.
Of greatest concern is that Officer Merchant set out in the ITO that he discovered that Mr. Maleki “has a criminal record for violence, offence weapons, break and enter, drugs, other Criminal Code and other Federal Statutes”. In his cross-examination, he was referred to the first page of that CPIC response. The most obvious entries are “Caution: this is not a criminal record” and “No convictions”. Officer Merchant testified that he did not notice that error until he was reviewing the ITO with the Crown to provide a Crown vetting summary with respect to the excised portions of the ITO.
Despite the reference to violence and weapons in the CPIC document, he made no inquiries of the details of those offences. Despite what he thought was a significant criminal record, after he arrested Mr. Maleki, Officer Merchant released him on a Promise to Appear.
He agreed that the marijuana grow operation would not be lost overnight.
Despite obtaining corroborative evidence of the tip at Mira Road, Officer Merchant did not carry on with the search of Redstone. He said that was because Mr. Maleki told him that there were no drugs at that residence and his mother, who lived there, was in poor health. He said that he had “no reason to disbelieve Mr. Maleki”.
ANALYSIS
Officer Merchant
[39] I cannot accept Officer Merchant’s evidence.
[40] He agreed that he misled the justice of the peace with respect to his “surveillance” of the two residences.
[41] I find that Officer Merchant lied to the court about his knowledge of Mr. Maleki’s record. I find that Officer Merchant lied to the Justice of the Peace as to the existence of Mr. Maleki’s record. After 12 years as a police officer and having had experience drafting ITO’s, I cannot accept that he failed to properly read Mr. Maleki’s record. If he did read it incorrectly, I cannot understand how he would have carried out the search without more knowledge of the details of the record given its items relating to weapons and violence. Even if he was that careless, it is inconceivable that Mr. Maleki would have been released on a promise to appear.
[42] On a balance of probabilities, I cannot accept that Officer Merchant failed to search Redstone for the reasons he gave. I can only conclude that he did not believe the informant that there were drugs at the residence in the first place. He failed to tell the Justice of the Peace about that weakness.
[43] Finally, the officer put in his conclusion “these distributors are the most dangerous as they are responsible for importation of the substance, as well as being responsible for distributing amounts that trickle down into our schools and neighbourhoods”. The Crown acknowledges that this inflammatory editorial comment is inappropriate. While I expect that a Justice of the Peace could well ignore this flight of drama, the inclusion by this experienced officer, would suggest that, again he could not be relied upon to give helpful and appropriate evidence.
Confidential Informant
[44] As initially excised, the information received from the informant was not compelling. There were no details of what could be found or how the informant had obtained the information. There was very little corroboration. The informant could only be accepted as credible if Officer Merchant was and he was not. If I cannot rely on Officer Merchant, there is nothing that he tells me about the informant that I can rely on.
Step 6
[45] Based on what I heard by the end of argument on November 4, 2014, it appeared that the warrant should be quashed. However, there were substantial excised parts of the ITO that could, perhaps, still support the warrant. Accordingly, the Crown sought to have me review the entire un-excised ITO to consider the warrant’s validity. After submissions from both counsel, I accepted and followed the process set out in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 and R. v. Burgher, 2014 ONSC 4527, (Paras 7 – 36). Garofoli refers to six steps in the process to review a warrant that is attacked by the defence. Both counsel agreed that, effectively, we had first argued the case as of step 5. On consent, the Crown had provided the judicial summary from step two, which allowed for cross-examination and argument. Only upon my view that I would not uphold the warrant did the Crown seek to move to step six. That is to say, for me to review the un-excised ITO to see whether, as a whole, it could support the warrant.
[46] The Crown prepared another summary of what he was prepared to provide to the defence so as not to identify the informant. I was satisfied that this summary was sufficient to form the judicial summary for use by the defence. Officer Merchant was then cross-examined on the new material.
[47] This new summary and my review of the un-excised ITO add that the harvesting of the marijuana at Mira Road would commence over the weekend. It is agreed that January 21 was a Friday. The informant obtained the information within 72 hours of January 21. It referred to information that Mr. Maleki was attempting to sell his drugs quickly. And finally, it disclosed that the informant had observed the marijuana and cocaine personally.
[48] With that addition, the information was compelling but given the affiant of the ITO, Officer Merchant, it was not credible. As I listened to Officer Merchant give his evidence relating to this new information, I found that I simply did not believe what he had to say. The damage done to his credibility in the first cross-examination was such that his evidence at the step six cross-examination was worthless.
[49] The Crown conceded that the corroboration was weak but only because the officer had little time to corroborate the information before the harvesting might occur over the weekend. While an inference can be drawn that Mr. Maleki resides at Redstone and drives the BMW, there is little that attaches him to Mira Road. In my view, the greatest item of corroboration, the record, was a sham. I find that the information was not well corroborated regardless of the time available.
[50] I am satisfied that, with the information that I now have from the cross-examination of Officer Merchant, the ITO could not support the warrant. Even if it could, the conduct of Officer Merchant is so subversive that is requires that the warrant be quashed.
Telewarrant
[51] The ITO included Officer Merchant’s evidence that:
If the warrant cannot be executed immediately, it is probable the evidence will be lost. There is currently police surveillance on the residence at 9 Mira Road in Markham and 373 Redstone Road in Richmond Hill. Due to manpower issues and time constraints, it is not possible to maintain that surveillance around the clock until daylight hours.
[52] There is very little in the ITO as excised and summarized, to explain any need for a search on such an urgent basis and overnight. While the surveillance of the house would have been expensive and onerous, Officer Merchant agreed that the grow operation would not be lost overnight. The cover page to the Justice of the Peace indicates that the application was “not urgent”. There is nothing in Officer Merchant’s ITO or his evidence before the court that he took any steps to determine whether a Justice of the Peace would be available to speak to personally before he resorted to the telewarrant.
[53] While, perhaps, not determinative, this factor also supports quashing the warrant.
[54] Accordingly, the warrant is quashed.
Lemon, J.
Released: April 9, 2015
CITATION: R. v. PEDRAM MALEKI, 2015 ONSC 2261
COURT FILE NO.: CR-12-2111
DATE: 2015-04-09
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. Pedram Maleki
BEFORE: Lemon, J.
COUNSEL: R. Johnston, for the Crown
E. Ghebrai, for the Accused
RULING – Re: Search Warrant
Lemon, J.
DATE: April 9, 2015