R. v. Barnes, 2015 ONSC 373

COURT FILE NO.: CR-12-90000121-0000

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ERDLEY BARNES

Chris de Sa, for the Respondent

John M. Rosen and Adam Boni, for the Applicant

HEARD:

September 30, October 1, 2, 3, 2013

May 13, 14, 15, 16, 21, 22, 23, 26, 27, 28, 29, 30, 2014

B. P. O’marra, j.

REASONS FOR CHARTER RULINGS

[1] On May 28, 2014 I ruled that Mr. Barnes’ s. 10(b) rights were breached on February 3, 2010. On May 30, 2014 I ruled that his s. 8 rights were breached in regard to a search warrant executed on February 4, 2010. Pursuant to s. 24(2) of the Charter I excluded evidence obtained as a result of those breaches. These are my reasons.

EVENTS OF FEBRUARY 3, 2010

[2] On February 3, 2010 members of the Toronto Police Service set up surveillance in and near an apartment building at 1030 Sheppard Avenue in Toronto. Mr. Barnes was the target and apartment 614 was the specific unit of interest. A green Honda connected to Barnes was located in the adjacent parking lot. The registered owner of that car was Tyrone Grant with an address of 7 Hallen Road in Brampton.

[3] Shortly before 3:00 p.m. Barnes was observed to arrive in a taxi and get out near the Honda in the parking lot. He entered the building by a rear or side entrance.

[4] Barnes went to the sixth floor of the building and entered apartment 614. He remained in the apartment for over four hours.

[5] At approximately 7:15 p.m. Barnes exited apartment 614 and proceeded out of the building. He got into the green Honda and drove away. Members of the surveillance team followed him.

[6] At approximately 7:25 p.m. the Honda vehicle was boxed in by police near Yorkdale Mall and Barnes was arrested. Among the items recovered from inside the Honda was a quantity of cocaine.

[7] P.C. Eliadis was working in uniform that evening and was to assist in the execution of a search warrant at 1030 Sheppard Avenue, apartment 614. He was told by Detective Long that Barnes was subject to a court ordered house arrest term. At approximately 7:30 p.m. Officer Eliadis was present with other officers when Barnes was boxed in as he drove near Yorkdale Mall. Officer Eliadis arrested Barnes for breach of a house arrest term of bail. Barnes was advised of his s. 10(b) rights and was asked if he understood. He was also asked if he wished to call a lawyer. Barnes said that he understood and wished to call a lawyer as it was “going to be a long night”.

[8] Detective Constable McKenzie of the Guns and Gangs Squad was also present when Barnes was stopped and held by the police. He observed other officers remove Barnes from the Honda and place him in handcuffs. Earlier at 7:15 p.m. he had observed Barnes to exit apartment 614 at 1030 Sheppard Avenue.

[9] McKenzie looked into the green Honda and saw what appeared to be two small bags of cocaine on the floor of the driver’s side. He then approached Barnes and advised him that he was under arrest for possession of cocaine for the purpose of trafficking. He also told Barnes that the police would be executing a search warrant at 1030 Sheppard Avenue, apartment 614. In response to that Barnes said he did not live there but on a street called “Widdycombe”. McKenzie asked where and received no further response.

[10] At 7:45 p.m. Barnes was transported to 32 Division by Constable Eliadis and Constable Laptiste.

[11] At 8:23 p.m. Detective Constable Fredericks advised other members of the Guns and Gangs Squad that a search warrant had been granted for 1030 Sheppard Avenue, apartment 614. The warrant was executed shortly thereafter. Among the items found inside the apartment was a large quantity of cocaine and marijuana, as well as items related to the sale of drugs.

[12] On October 17, 2014 I delivered extensive reasons in convicting Mr. Barnes of possessing the drugs in the car as well as the large quantity of drugs in apartment 614.

EVENTS OF FEBRUARY 4, 2010

[13] Detective Long spoke to Detective Brian Johnson, a member of another Guns and Gangs team, at 32 Division. He told Johnson about the drug seizures and arrest of Barnes the previous day. Detective Johnson recalled that his team had previously conducted surveillance on Barnes. Detective Johnson suggested that Detective Constable Fredericks speak to Detective Constable Tavares about the prior surveillance on Barnes. On February 4, 2010 Detective Constable Tavares swore to an ITO to obtain a telewarrant for 73 Widdicombe Hill, unit 1205 in Toronto. The evidence disclosed to the issuing justice may be summarized as follows:

(a) In August of 2009, a proven reliable Confidential Informant registered with the Toronto Police Service advised Det. Cst. Tavares that “Bigga”, whose real name is Erdley Barnes is “the main cocaine guy”. He is 6’4, 225 lbs., black and slim. Barnes “always has spots where he stores his stuff but moves frequently to avoid get [sic] caught by the cops.”

(b) Barnes was arrested on October 17, 2008 by 13 Division officers and was found to be in possession of 28.47 grams of cocaine and $3,850.00. He gave officers a home address of 7 Hallen Road in Brampton.

(c) Barnes was currently before the Court on charges of Possession of Cocaine for the Purpose of Trafficking and Possession of Property Obtained by Crime.

(d) The address on CPIC for Barnes is listed as 7 Hallen Road, Brampton.

(e) On August 23, 2009, Guns and Gangs officers conducted surveillance on Erdley Barnes at 7 Hallen Road in Brampton. They followed him in his car to 73 Widdicombe Drive in Toronto. The vehicle parked on level 1 spot #65. Further surveillance led to Barnes gaining entry into apartment 1205 by way of keys. He did not exit the apartment for the rest of the evening.

(f) On August 24, 2009, the superintendent of the building at 73 Widdicombe Drive advised that apartment 1205 was leased to Neelam Gabi, who moved in on July 1, 2009. The parking spot allocated to her was B1 #65. The vehicle registered to that parking spot was a 2008 Acura CXS White in colour with a license plate BCMM 818.

(g) On August 25, 2009, officers from the Guns and Gangs Unit observed Mr. Barnes parking his vehicle in the underground parking garage at 73 Widdicombe Drive. He was again observed keying into unit 1205 and he was not observed to exit the apartment for the rest of the evening.

(h) The White 2008 Acura CXS (BCMM 818) is registered to Roshan Gabi of a different address.

(i) Erdley Barnes was arrested on cocaine offences on February 3, 2010. A search warrant was executed by members of the Guns and Gangs task force at 1030 Sheppard Avenue West #614 in Toronto that same day. 75.028 kilograms of marijuana and 2.27 kilograms of cocaine were seized from inside this apartment.

(j) Detective Constable Shawn McKenzie badge 5235, spoke with Barnes prior to the execution of the search warrant on 1030 Sheppard Avenue West unit 614. D/C McKenzie advised Barnes that a search warrant was being executed at his address at 1030 Sheppard Avenue West unit 614. At this time Barnes stated that he did not live there, that he resided on a street called “Widdicombe.”

(k) On February 4, 2010 at 7:30 p.m. the building superintendent at 73 Widdicombe confirmed that the unit 1205 was still being occupied by Neelam Gabi.

(l) No personal documents belonging to Barnes were located at 1030 Sheppard Avenue West Unit 614. Det. Cst. Tavares therefore believed that the Applicant’s permanent residence was 73 Widdicombe Drive #1205 in Toronto.

ANALYSIS REGARDING s. 10(b) ON FEBRUARY 3, 2010

Section 10(b) of the Charter imposes both an informational and implementational duties on the police who arrest a person. Once the detainee indicates a desire to exercise his right to counsel, the state is required to provide him with a reasonable opportunity to do so. In addition, the police must refrain from eliciting incriminatory evidence from the detainee until he has had a reasonable opportunity to reach counsel. In other words, the police are obliged to “hold off” from attempting to elicit incriminatory evidence from the detainee until he has had a reasonable opportunity to reach counsel.

R. v. Prosper 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at para. 34.

[15] Where a detainee’s jeopardy significantly increases during the course of an investigation the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

R. v. Sinclair 2010 SCC 35, [2010] 2 S.C.R. 310 at para. 50 and 51.

[16] Mr. Barnes clearly asserted his wish to contact counsel after being advised of his s. 10(b) rights by Constable Eliadis at approximately 7:30 p.m.

[17] Very shortly thereafter Officer McKenzie told Barnes that he was under arrest for the more serious charge of possession of cocaine for the purpose of trafficking. Barnes was in the custody of two uniformed officers when McKenzie approached him.

[18] Detective McKenzie did not caution or advise Barnes of his s. 10(b) rights on the more serious charge. He also did not ask the uniformed officers whether Barnes had been read his s. 10(b) rights, and if so, whether he sought to exercise his rights.

[19] The respondent submits that the statement by Detective McKenzie that a search warrant would be executed at 1030 Sheppard Avenue was not a violation of s. 10(b) but rather compliance with s. 10(a) of the Charter. I disagree.

[20] The reference to the pending search warrant was for investigative and not informational purposes. Officer McKenzie was looking for a response or a reaction by Barnes to what was soon to happen at unit 614. The comment by McKenzie about the search warrant elicited a comment by Barnes on an important investigative issue.

[21] In the circumstances there was a failure by the police to take steps to facilitate access to counsel and hold off trying to elicit investigative information.

[22] Mr. Barnes did not testify on the s. 10(b) application. However, the police evidence is that he sought to exercise his rights on the less serious charge of breaching a house arrest term of bail. It is reasonable to assume he would have no less desire to speak to counsel when told he faced a new and more serious charge.

[23] The comment by Barnes that he lived on “Widdycombe” was the direct result of a breach of his s. 10(b) rights. That evidence must be excluded under s. 24(2) of the Charter. This ruling has implications on the s. 8 application related to an ITO and search warrant executed on February 4, 2010.

INFORMATION TO BE EXCISED FROM THE ITO

Where the police rely on information in their possession as the result of a Charter violation to obtain a search warrant, the Court must decide whether the warrant could properly have been granted based on information other than that secured by a constitutional violation. In making that evaluation, the Court will look at the remaining material in the information used to obtain the search warrant as modified or augmented on the exclusionary hearing at trial.

R. v. Ricketts [2000] O.J. No. 1369 at para. 18.

R. v. Grant 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at para. 50.

[24] The comment by Barnes on February 3, 2010 that he lived on Widdicombe was the product of a Charter breach and must be excised from the ITO.

THE ITO ON REVIEW

[25] The telewarrant was authorized pursuant to s. 11 of the Controlled Drugs and Substances Act:

s. 11(1) Information for search warrant – A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

(2) Application of s. 487.1 of the Criminal Code – For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.

[26] The affiant has a duty to make full, fair and frank disclosure of all material facts to the issuing justice, whether these facts are helpful to or may detract from the ultimate success of the application.

R. v. Morelli 2010 SCC 8, [2010] S.C.J. No. 8 at para. 58-60.

[27] The ITO should contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location.

R. v. Turcotte (1998) 1987 CanLII 984 (SK CA), 39 C.C.C. (3d) 193 (Sask. C.A.)

R. v. Colby [1999] S.J. No. 915 (Q.B.) at para. 10

[28] When material facts militate against issuance of a warrant those facts should be disclosed in the ITO. Inclusion of facts inconsistent with the belief of the affiant demonstrates good faith.

R. v. Martens 2004 BCSC 1450 at paras. 57.

[29] There was no mention on the ITO that Barnes was subject to a recognizance of bail with a “house arrest” condition to reside at 7 Hallen Road, Brampton. He was also subject to a probation order that listed the same Brampton address as his residence. The Honda vehicle that Barnes was driving when arrested was registered to Tyrone Grant with an address of 7 Hallen Road. All of this information was readily available to the affiant before the ITO was drafted and presented to the justice on February 4, 2010.

[30] Absent the information obtained in breach of s. 10(b) of the Charter on February 3, 2010 the last link of Barnes to the Widdicombe address was approximately 5 ½ months old. Based on the ITO as presented the justice would reasonably conclude that Barnes was currently living at Widdicombe. Unfortunately the ITO further failed to advise the issuing justice that Barnes was bound by two current court orders to reside at an address other than Widdicombe in a different city. That was a material omission by the affiant.

[31] The material omission on the ITO of court related information that links Barnes to a different residential address in another city left an inaccurate and misleading impression. The excising of the information related to the s. 10(b) Charter breach leaves a dated connection to the target address. In the circumstances the applicant has established that his rights under s. 8 have been breached.

APPLICATION TO EXCLUDE EVIDENCE OBTAINED IN THE SEARCH

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 at para. 71.

[32] The Charter-infringing conduct of the police in regard to the ITO was serious. An important piece of information as to where Barnes resided was the product of a breach of s. 10(b). There was a failure to include further important information that was readily available and which linked Mr. Barnes to another residence in another city. While that omission may not have been in bad faith it reflected a significant lack of due diligence and recklessness by the affiant on a critical issue.

[33] The impact on the Charter-protected interests was significant. The breaches rendered this a warrantless search of a private residence.

[34] There is a significant societal interest in having this case decided on the merits.

[35] In attempting to balance each of these factors in my view the admission of this evidence would in the particular circumstances bring the administration of justice into disrepute. Pursuant to s. 24(2) all of the evidence obtained pursuant to the telewarrant issued on February 4, 2010 is excluded as evidence.

Mr. Justice B. P. O’Marra

Released: January 19, 2015

COURT FILE NO.: CR-12-90000121-0000

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ERDLEY BARNES

REASONS FOR JUDGMENT

Mr. Justice B. P. O’Marra

Released: January 19, 2015