OSHAWA COURT FILE NO.: 13543/14

DATE: 20150703

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Harley Guindon, Christopher Gonder, Robert Pammett Junior, Wallace Groves and Andrew Bryan

Applicants

Sarah Egan and James Clark, for the Respondent (Crown)

Alan Richter, for Harley Guindon

Ramona Abraham, for Christopher Gonder Thomas Balka, for Robert Pammett Junior Stephen Proudlove, for Wallace Groves Andrew Bryan, Self-Represented

HEARD: July 2, 2015

RULING ON THE ISSUE OF EXCISION

BIRD J.

Introduction

[1] The applicants seek a ruling excising all references to the events of March 7, 2012 from any affidavits in support of Part VI authorizations and informations to obtain (ITOs) search warrants and production orders. In a ruling released on June 29, 2015, I found that the occupants of a white Suzuki driven by Kasey Skitch were unlawfully arrested and searched by members of the Durham Regional Police on March 7, 2012. Christopher Gonder was one of the passengers in the vehicle and the evidence seized from his person was excluded pursuant to section 24(2) of the Charter. The other two occupants, Ms. Skitch and Mr. William Dashuk are not before the court. As a result, there was no application to exclude evidence seized from Ms. Skitch, her purse or the vehicle. That evidence included drugs and cellular phones.

[2] A search warrant was subsequently granted to permit the police to search the contents of the phones including the contact lists and text messages. As a result of those searches, a production order was obtained for the subscriber records of three phones believed to be used by Robert Pammett. The affiant of the ITOs in support of the production order and search warrant relied upon the events of March 7, 2012 to establish the necessary grounds for each authorization. It is conceded that without reference to the vehicle stop and seizure of the phones, there would not have been sufficient grounds to obtain either order.

[3] In addition, the events of March 7, 2012 were relied upon in the affidavits in support of two Part VI authorizations in relation to this investigation. Mr. Gonder, Mr. Pammett, Wallace Groves and Harley Guindon were all named parties in both authorizations and the Crown intends to introduce their intercepted private communications at trial. The applicants are bringing a Garofoli application to challenge the admissibility of those intercepted communications, alleging that the authorizations were obtained in violation of their section 8 Charter rights.

[4] As a preliminary matter to the Garofoli application, the applicants seek a ruling excising all references to the events of March 7, 2012. They assert that because the evidence seized from Mr. Gonder, Ms. Skitch and the vehicle was unlawfully obtained, the police should not be permitted to benefit from it in any way. The applicants submit that permitting the information about March 7 to remain in the affidavits and ITOs would result in a flagrant abuse of the Charter and render the protection afforded by section 8 meaningless. The Crown opposes the excision of references to the items seized from Ms. Skitch and the vehicle on the basis that the applicants do not have any standing to challenge the lawfulness of a search of a third party. It argues that because the applicants’ personal Charter rights were not infringed by the search of Ms. Skitch or her vehicle, they are not entitled to any remedy in relation to the items seized.

Analysis

[5] The issue to be determined is whether evidence obtained in violation of the Charter rights of a third party should be excised from affidavits and ITOs that were used to obtain orders that do engage the applicants’ privacy interests. There is no question that all of the applicants have standing to challenge the validity of the Part VI authorizations as they were named parties whose private communications were intercepted. Likewise, Mr. Pammett has standing to challenge the production order to obtain subscriber records in relation to phones he used. The phone seized from Mr. Gonder has already been excluded pursuant to section 24(2).

[6] The law clearly requires the excision of all references to evidence that was obtained in violation of an applicant’s Charter rights: R. v. Grant, 1993 68 (SCC), [1993] S.C.J. No. 98, R. v. Plant, 1993 70 (SCC), [1993] S.C.J. No. 97 and R. v. Wiley, 1993 69 (SCC), [1993] S.C.J. No. 96. The appropriate approach in such a case is to excise the information that was unconstitutionally obtained and determine whether there is a basis upon which the authorizing judge could have granted the authorization on the remaining material. This procedure prevents the state from benefitting from the illegal acts of police officers without sacrificing search warrants that would have been issued in any event (Grant at paragraph 50).

[7] The applicants submit that a failure to excise the events of March 7, 2012 would allow the state to benefit from the unlawful arrest of the occupants of the Suzuki and the resulting illegal searches.

[8] The law is well established that all erroneous material must be excised from an affidavit on a Garofoli review (R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65 at paragraphs 57 and 58). In all of the cases that deal with the excision of erroneous information, there is no suggestion that only those errors which relate directly to an applicant are to be removed. Affidavits and ITOs contain a wealth of background information that doesn’t all pertain directly to each accused person. The activities of associates who are not charged may be referred to, as might places in which an applicant could not assert a privacy interest. If a mistake is made describing the activities of associates of an applicant, that erroneous material will be excised from the affidavit. The applicant does not need to establish a personal interest in the information to have it excised.

[9] The Crown nevertheless takes the position that in relation to unconstitutionally obtained evidence, an applicant can only seek excision of it if it involved an infringement of his personal Charter rights. In support of its position, the Crown relies upon the decision of the Ontario Court of Appeal in R v. Chang, 2003 29135 (ON CA), [2003] O.J. No. 1076, which it asserts is dispositive of this issue. In Chang, there was an authorization granted in Quebec. Communications intercepted pursuant to the Quebec authorization were relied upon to obtain two authorizations in Ontario. The applicant was not a named party in the Quebec authorization, nor were his communications intercepted as a result. However, his communications were intercepted as a result of the two Ontario authorizations which he challenged in part on the basis that the Quebec authorization should not have been granted.

[10] There is no question that the appellants had standing to challenge the validity of the two Ontario authorizations. The issue before the court was their ability to challenge the Quebec authorization. The court held that they did not, stating they did not have standing to challenge the sufficiency of the evidence upon which the Quebec judge made his order (at paragraph 40). The court agreed with the trial judge that there had to be a principled reason for taking the inquiry back a step and a logical basis for stopping there. The trial judge was concerned that a challenge to the sufficiency of the grounds in support of the Quebec authorization could stretch into infinity. In addition, doing so would offend the general rule that a court order is immune from collateral attack.

[11] The Crown submits that Chang stands for the proposition that an applicant can never challenge a search warrant or wiretap authorization based on a violation of a third party’s Charter rights. I do not accept the submission that the judgment is that broad. The court in Chang was being asked to conduct a full Garofoli review of the Quebec authorization. That is not what the applicants are seeking to do in this case. There has already been a ruling that the impugned evidence was obtained in violation of the Charter. I found that there were insufficient grounds to stop the Suzuki, the arrests of the occupants were unlawful and the resulting searches were illegal. The applicants are not attempting a collateral attack on anything in seeking excision of the events of March 7, 2012. There can be no concern about the process extending into infinity because the ruling has already been made.

[12] In addition, the trial judge in Chang did consider the legality of the Quebec authorization. Molloy J. permitted an inquiry into whether the Quebec judge had jurisdiction to grant the authorization and whether it required a confirmation order from a judge in Ontario. She stated that the accused had standing to raise those issues because they related directly to “the legality of the evidence” upon which the Ontario authorizations were based. The Court of Appeal agreed with this approach, noting that it did not involve a wholesale Garofoli review (at paragraph 38). This, in my view, supports the position of the applicants that they are entitled to raise the issue of the legality of the evidence upon which the authorizations, production order and search warrant were based.

[13] The Crown finds further support for its position in the case of R. v. Croft, [2013] A.J. No. 1358 (Alta. Q.B.). Burrows J. held that it would be inconsistent with the individual nature of Charter rights to permit a person to seek a remedy based on the infringement of another person’s rights. As a result, Burrows J. refused to excise information obtained in violation of a third party’s Charter rights on a Garofoli review. However, in the same judgment the court considered the use that could be made of text messages that were illegally obtained because they were intercepted without a judicial authorization. The applicants sought to excise references to these text messages from the affidavit in support of the authorization. Even though there had not been a finding that the text messages were obtained in violation of any of the applicants’ personal Charter rights, Burrows J. found they had standing to seek the excision of this evidence under the common law doctrine of abuse of process. He held that excision could be sought on the ground that inclusion of illegally obtained information would render the Garofoli process unfair. Burrows J. stated that anyone who is obliged to submit to a trial can seek the excision of evidence by asserting that consideration of it would render the trial unfair.

[14] The Crown also relies on R. v. Atkinson, [2007] O.J. No. 1681 (Ont. S.C.J.) wherein Desotti J. held that the accused did not have the standing to challenge the arrest of a third party. However, in assessing the grounds for search warrants that did involve the accused’s privacy rights, the court considered whether the description of the third party’s arrest was misleading. Desotti J. undertook a detailed analysis of the ITO and found that there was no intention by the affiant to mislead. In the alternative, Desotti J. stated that if he was wrong in that conclusion, any false or misleading statements could be excised from the ITO. This statement suggests that the accused was not precluded from seeking excision in relation to the events surrounding the arrest of the third party if they were inaccurately portrayed in the ITO.

[15] The decisions in R. v. Huynh, 2008 ABQB 464, [2008] A.J. No. 860 (Alta. Q.B.) and R. v. Dieckmann, [2013] O.J. No. 4321 (Ont. S.C.J.) support the Crown’s position. However, they are inconsistent with other jurisprudence from Ontario and with my understanding of the judgment in Chang.

[16] The applicants rely on the Court of Appeal’s judgment in R. v. Shayesteh, 1996 882 (ON CA), [1996] O.J. No. 3934, for the proposition that their attack on the legality of the orders can include a consideration of a third party’s Charter rights. In Shayesteh, the appellant challenged an authorization that he was not a target of on the basis of violations of another party’s section 8 rights. However, the appellant was a party to some calls that were intercepted pursuant to this authorization which would clearly provide him with standing to challenge it. The Court of Appeal held that the fact that this challenge involved a consideration of the third party’s section 8 rights did not affect the appellant’s standing to bring the application (at paragraph 40).

[17] In R. v. Brown, [2000] O.J. No. 1177 (Ont. S.C.J.), LaForme J., as he then was, permitted the applicants to challenge the constitutionality of search warrants that resulted in the production of cellular phone records for two persons who were not before the court. The Crown raised the issue of standing and submitted that the accused did not have a privacy interest in the records obtained pursuant to the search warrants and therefore could not challenge them. LaForme J. rejected this argument and found that the accused had the right to examine the police conduct that gave rise to the intrusion on their privacy through the interception of their private communications.

[18] Similarly, in R. v. Riley, 2009 7177 (ON SC), [2009] O.J. No. 738 (Ont. S.C.J.). Dambrot J. excised information from affidavits in support of authorizations that related to items seized from a third party’s home in violation of section 8 of the Charter (at paragraph 24). In R. v. Vu, [2004] O.J. No. 5681 (Ont. S.C.J.), Trafford J. held that the accused had standing to challenge the validity of the interception of private communications to which she was not a party because they were used to obtain a second authorization which named her as a known party. Trafford J. found that leaving an accused person without the ability to challenge the validity of an authorization naming him which was based on the unauthorized interception of private communications would result in a flagrant abuse of the rights protected by the Charter (at paragraph 16).

[19] I find further support for the position of the applicants in the decision in R. v. Mahmood, 2011 ONCA 693, [2011] O.J. No. 4943 (Ont. C.A.). At trial, all three appellants challenged production orders and search warrants that included information obtained pursuant to a warrant for a cellular phone tower dump. They submitted that all references to information obtained as a result of the tower dump warrant should be excised from subsequent ITOs on the Garofoli review. The Crown argued that Mr. Sheikh had no standing to seek the excision of this information because his phone number did not appear in the tower dump records. The issue of Mr. Sheikh’s standing to make the argument for excision was squarely raised on appeal (at paragraphs 86 and 151). In analysing the issues on appeal, Watt J.A. drew no distinction between Mr. Sheikh and his co-appellants. The court accepted that excising references to the tower dump information left the ITO in support of a search warrant to obtain subscriber information with insufficient grounds to support its issuance. The subsequent residential warrants were similarly insufficient following excision. The admissibility of the evidence fell to be determined under section 24(2). The fact that the Court of Appeal undertook the same analysis for all three appellants, even though Mr. Sheikh’s privacy interests were not directly impacted by the tower dump warrant, supports the applicants’ position that they can seek excision of illegally obtained evidence that was used to obtain orders that affected their privacy interests.

Conclusion

[20] The applicants are entitled to challenge the legality of the evidence upon which authorizations, search warrants and production orders impacting on their privacy interests were based. The evidence seized from the Suzuki on March 7, 2012 was obtained illegally as it resulted from an improper vehicle stop and the unlawful arrests of the occupants. A failure to excise references to this evidence would permit the state to benefit from the illegal conduct of the police. Therefore, all references to the stop of the Suzuki, the arrests of Ms. Skitch, Mr. Dashuk and Mr. Gonder, and the seizure of any evidence are to be excised from the affidavits and ITOs in support of Part VI authorizations, search warrants and production orders.

Madam Justice L.A. Bird

Released in Open Court: July 3, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.