ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 669-14
DATE: 2015-08-10

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

Alan Crichton and Roland Murray
Applicants

S. Treherne, for the Crown

S. Baker & J. Gauthier, for the Applicants

HEARD: June 4, 2015

RULING ON CHARTER APPLICATION

O’NEILL J.:

[1] The present application and motion for relief was argued before me at Sudbury on June 4, 2015. At the conclusion of submissions, I reserved my decision pending the release of written reasons.

Background Facts

[2] The two applicants were charged on March 12, 2014, with two counts of possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), and one count of possession of proceeds of crime, contrary to s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] The applicants were committed to trial on August 28, 2014. They bring this motion for relief pursuant to ss. 8 and 24(2) of the Charter.

[4] The background facts in relation to this application are well summarized at paras. 1 to 11 of the applicant, Alan Crichton’s factum, which I reproduce below:

PART II: Relevant Facts

Search of the Four Sisters Hotel

1. On March 12th, 2014 Constable Larochelle, a member of the G.S.P.S. [Greater Sudbury Police Service] assigned to the Drug Unit, applied for, and was granted, a warrant pursuant to section 11 of the Controlled Drugs and Substances Act (“CDSA”) to search the room #117 of the Four Sisters Motel, for cocaine, digital scale, packaging material and Canadian currency. The warrant was executed by members of the drug Unit at 1712 hours on the same date wherein both the Applicants were located within the room. A search of the room yielded a large amount of Fentanyl patches concealed behind the mini-refrigerator, 14.51 grams of cocaine and a small amount of marijuana. The police also located Canadian currency on the Applicant, Roland Murray’s person.

Informant Information

2. The edited information to obtain (“I.T.O.”) indicates that the police received informant tips from two different sources during this investigation. The first source came from a confidential informant. According to the I.T.O. information was provided to Staff Sergeant Asunmaa on a date in March, 2014. The information is summarized in the I.T.O. as follows:

• that 2 black males were in Sudbury operating a Grey Chrysler 300, Ontario Licence Plate #BTHA 592;
• They are in possession of large quantity of cocaine;
• They are looking for locals to sell the cocaine;
• They are staying in town;
• The informant observed the males in possession of large a quantity of cocaine within the last 24 hours;
• This informant observed the two males sell a quantity of cocaine within the last 48 hours;
• The first male is black, in his twenties and has dread locks; and
• The second male is black, in his twenties with short hair.

3. Sgt. Asunmaa testified at the preliminary hearing. His evidence amplified some of the information he received. Sgt. Asunmaa clarified that he received the information on March 11th, 2014, from a numbered confidential informant. This informant advised him that two black males were in town for a week and that ounces of cocaine were observed inside the vehicle. The vehicle was not described as a Grey Chrysler, but a dark colored Chrysler 300.

4. Although Cst. Larochelle indicates in the I.T.O. that the confidential informant had actually observed the male parties sell a quantity of cocaine in the last 24 hours, the evidence of Sgt. Asunmaa at the preliminary hearing was that the informant had not observed a drug transaction.

5. The second informant, who is referred to in the I.T.O. as Confidential Informant No. 2, provided information to Constable Larochelle directly. The information provided from this source was that two black males came to town, and were staying at the Four Sisters Motel, Room #117 on the second floor. These males are driving a grey Chrysler Car.

6. Constable Larochelle admitted at the preliminary hearing that the information from Confidential Informant No. 2 was actually solicited by himself and Sgt. Train on March 11th, 2014. This informant did not actually observe any drugs or drug activity.

7. After receiving the information from Confidential Informant No. 1, members of the Drug Enforcement Unit attempted to locate the Chrysler 300 with the two black males. Constable Walden located a Grey Chrysler 200 with marker BTH A592 at the Four Sisters Motel at 1077 Regent Street. The vehicle was a 200, not a 300.

8. Cst. Walden observed a black male with dreadlocks exit the passenger side of a vehicle parked next to the Chrysler and enter into the motel. He then observed a black male with another black male smoking on the balcony of the motel.

9. The surveillance of the Four Sisters Motel ended at 9:00 p.m. on the 11th of March, 2014. At this time, Constable Larochelle admitted that he did not have grounds to obtain a warrant.

10. The surveillance commenced again the following morning at 9:00 a.m. At 1002 hours two black males were observed occupying the Chrysler and attending Tim Hortons, then returning to the motel. At 1259 hours Constable Jefferson observed a Green 4 door car pull into a [sic] the Four Sisters Motel parking lot, and observed a black male, large build, with corn rows attend the vehicle and get into the back seat. The black male was observed exiting the vehicle and then returning inside the motel. Constable Jefferson passed the vehicle and saw the occupants with their heads down. He believed they were about to smoke drugs. Constable Larochelle then passed their motor vehicle and observes an occupant raise what appeared to be a glass pipe to their mouth.

11. The licence plate revealed that the car belonged to a “known drug user.” The car was never stopped to confirm the presence or absence of a controlled substance, and the police never confirmed the identity of the driver or the occupant.

[5] The additional facts relating to the application are as set out in the respondent’s factum (paras. 1-9), which I reproduce below:

1. that with respect to the drugs seized following the search of the hotel room occupied by the Applicants, the following was found:

i) 4 x 12 mcg/h Fentanyl Patches;
ii) 26 x 25 mcg/h Fentanyl Patches;
iii) 11 x 50 mcg/h Fentanyl Patches;
iv) 28 x 75 mcg/h Fentanyl Patches;
v) 1 x 100 mcg/h Fentanyl Patches;
vi) 14.52g of Crack Cocaine;
vii) 36g of Cocaine;
viii) 0.14 g of Canabis Marihuana

2. there was found $2,415.00 in Canadian Currency on the person of the Applicant, Roland Murray.

3. the police found two cell phones at the time of entry and arrest;

4. the police entered room 117 at the Four Sisters Motel pursuant to a CDSA warrant issued by Justice of the Peace Lafleur;

5. the CDSA warrant was issued on the strength of the particulars set out in the Information to Obtain prepared by Detective Constable Larochelle of the Greater Sudbury Police Service, and as reviewed and assessed by Justice of the Peace Lafleur;

6. in the Information to Obtain, Detective Constable Larochelle makes reference to information received from two confidential sources, the particulars of police surveillance and supplementary inquiries, to form a basis for a request that a search warrant be issued;

7. the Application for the Warrant was made on March 12th, 2014, submitted, granted and executed on the same day;

8. in order to gain entry to the room, police used a ram, that the room key with which the police had been provided was ineffective to gain entry;

9. the Applicants were compliant with police at the time of arrest.

Issues and the Law

[6] The standard of review with respect to the issuance of a search warrant, and the grounds for issuing such a warrant, are summarized under Part III of the applicant, Alan Crichton’s factum, at paras. 2, 6, 7, 10 and 12, which I reproduce below:

Standard of Review For a Warrant

2. It is axiomatic that the role of a reviewing court is limited and the court is not to substitute its views for that of the issuing justice. As stated by the Supreme Court of Canada in the seminal case of Garofoli:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence [are] all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115 at para 56

Reasonable Grounds

6. The minimum standard for the issuance of a warrant is reasonable grounds or credibly based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case. Reasonable grounds are not “proof absolute”, but they must amount to more then [sic] mere suspicion.

R. v. NMN, 2007 31570 (ON SC), [2007] O.J. No. 3022 at para 319.

7. There are three concerns to be addressed in weighing evidence relied upon by the police to justify the search. First, was the information predicting the commission of a criminal offence compelling? Second, where the 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 a search?

R. v. Debot, (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 at 215.

Full and Frank Disclosure

10. A search warrant affiant must set out facts fully, fairly, and frankly for the authorizing justice in order that she can make an assessment of whether these rise to the standard required in the legal test for the warrant. The requirement of full, fair, and frank disclosure is of fundamental importance. Otherwise, the issuing justice will be misled as to the circumstances being relied upon to establish reasonable and probably grounds to believe that the proposed search will afford evidence of the offence. A justice can only perform the judicial function of issuing a warrant if provided with accurate and candid information.

R. v. NNM, supra at para 320

12. 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 of warrant are all relevant to review of a warrant and related to whether there continues to be any basis for the decision of the authorizing judge. The reviewing court will look to the remaining grounds of belief in the Information to Obtain after redaction of the offensive text, or in the case of an omission with the addition of the relevant missing facts, in order to determine whether there is a basis upon which the court could have issued the warrant.

Ibid. at para 322

[7] Further, as stated by the respondent in its factum, in Part II, at paras. 2 and 6:

• the issuing justice can draw reasonable inferences from the evidence in the I.T.O. (R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196); and

• ultimately, the question for the reviewing judge is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge the application for the search warrant should have been granted at all by the authorizing judge (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992).

Analysis

Unreasonable Search and Seizure

[8] I am satisfied by the arguments of the applicants and from the factum of the applicant, Alan Crichton, that upon review and amplification, reasonable grounds to issue a warrant to search the hotel room (as opposed to the said Chrysler motor vehicle) did not exist. In this respect, I point out the following:

• Constable Larochelle acknowledged that there were differences, and some vagueness, relating to the issue as to whether Informant #1 observed or took part in a drug transaction;

• Sgt. Asunmaa stated on the hearing before me that Informant #1 actually took part in a transaction. Officer Larochelle testified before me that his notes did not indicate that Informant #1 observed a drug transaction.

• He went on to state that he typed some information directly into the I.T.O., including in para. 14 that “confidential Informant #1 observed the two males sell a quantity of cocaine to a purchaser in the last 24 hours.

• Sgt. Asunmaa testified that although he told Officer Larochelle that Informant #1 observed a drug transaction, in fact Informant #1 took part in the said transaction.

• Constable Larochelle did not include in the I.T.O. that the Informant’s information was to the effect that the drugs were observed inside the vehicle, not inside the motel room;

• Constable Larochelle did not include in his affidavit the lack of any drug transactions in the 12-hour period between 9:00 p.m. on March 11, 2014, and the following morning;

• no drug activity was observed in the motel room itself;

• that a person known to be a drug trafficker was arrested in Ken Debassige’s residence, is not logically supportive of an inference that one person in the green vehicle registered in Mr. Debassige’s name was thereby ingesting drugs, when the officer observed a glass pipe raised to the passenger’s mouth; and

• Officer Jefferson did not observe the passage or handling of any drugs or money, in the one minute period, within the green car.

[9] On the application, counsel for the respondent submitted that the evidence in the I.T.O., as amplified on the hearing, provided compelling and reasonable grounds to conclude that the drugs to be searched for would be located within the motel room. I do not agree nor am I able to agree that the only reasonable inference to make was that the drugs in question would have been taken to and stored in the motel room, and not kept, hidden or otherwise, in the locked Chrysler.

[10] For these reasons, I conclude that reasonable grounds beyond mere suspicion did not exist to support the issuance of a warrant to search the motel room in question.

Section 24(2) – Exclusion of Evidence

[11] The legal principles relating to the analysis under s. 24(2) of the Charter are set out concisely in the applicant, Alan Crichton’s factum, at paras. 13 to 19 under Part III:

13. If the search warrant is shown to be unreasonable, the burden is on the Applicants to show, on a balance of probabilities that the evidence should be excluded pursuant to subsection 24(2).

14. In Grant and Harrison, the Supreme Court of Canada created a new s.24(2) framework which requires an assessment of whether the admission of the particular evidence would be damaging, in a long-term sense, to the integrity of, and public confidence in, a justice system that is committed to observance of the rule of law and upholding Charter rights. A trial judge is required to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

a. the seriousness of the Charter-infringed state conduct;
b. the impact of the breach on the Charter-protected interest of the
accused; and
c. society’s interest in the adjudication of the case on its merits.

R. v. Grant, [2009] S.C.C. 32
R. v. Harrison, [2009] S.C.C. 34

15. The seriousness of the Charter-infringing state conduct is informed by the extent to which the police, in violating the Charter, demonstrated a willful or reckless disregard of Charter rights, or committed an inadvertent or minor violation of the Charter, and whether they acted in good faith.

R. v. Grant ibid. at paras 74 - 76

16. The impact of a violation on Charter-protected interests is influenced by whether the violation undermined the central objective of the Charter protection, the nature and extent of the breach, and its effect on the accused.

R. v. Grant, supra at paras 76 – 78.

17. Society’s interest in a trial on the merits is influence[d] by whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion having regard to the reliability of the evidence and its importance to the Crown’s case. If a Charter breach undermines the reliability of the evidence, the truth seeking function may be better served by exclusion. The seriousness of the alleged offence may support the admission of the evidence; however, it may also militate in favour of exclusion, because s.24(2) is focused on the long-term repute of the justice system and the public has a vital interest in having a justice system beyond reproach, particularly when the penal stakes for the accused are high.

R. v. Grant, supra paras 79-84
R. v. Harrison, supra para 33

18. The taint of impropriety in obtaining a warrant, or even inattention to constitutional standard in police conduct, might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.

R. v. Blake, [2010] ONCA 1 at para 33

19. In a section 24 analysis regarding evidence found and seized pursuant to an improperly-issued warrant, what is in the balance is the need for police to diligently, most carefully, and fully make out the case for a search warrant’s issuance. Short-cutting or short-circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental important in applying s. 24(2).

R. v. Ling, [2009] BCCA 70 at para 54

[12] I am unable to conclude that the applicants have demonstrated within the legal framework set out in the case law that the evidence of the drugs seized herein ought to be excluded. I come to this determination for several reasons, which I will outline below.

Seriousness of the Charter-Infringing State Conduct

[13] I do not view the actions of the police officers in question, including their method and manner of securing the I.T.O., as severe, nor as intentionally misleading. It is true that there were errors in the I.T.O., and indeed vagaries. This is especially true on the issue as to whether Informant #1 observed or actually took part in a transaction as I have outlined and described earlier in these Reasons. But I cannot gauge the officers’ actions as intentionally misleading, or as acting in bad faith. I come to that conclusion, in part, having heard oral evidence on the application.

Impact on the Charter-Protected Interest of the Applicants

[14] In this case, I measure the impact on the Charter-protected interest of the applicants at the serious end of the spectrum. The within unreasonable search and seizure impacted important privacy rights of the applicants, who were temporarily residing, behind a locked door, in a motel room away from their usual residences.

Society’s Interest in an Adjudication on its Merits

[15] Public interest in truth-finding is a relevant consideration under a s. 24(2) inquiry. In this case, the evidence obtained is not of questionable reliability, but rather of highly reliable strength and weight. And the offences in question are, no doubt, of considerable seriousness. But while failure to prosecute a serious charge due to excluded evidence may have an immediate impact upon how people view the justice system, it is to be remembered that the focus of a s. 24(2) inquiry is the long-term repute of the justice system.

[16] Overall, I view the police as having acted in good faith in this process, despite some of the omissions which I have pointed out. But I am unable to conclude that the search warrant was obtained through the use of deliberately false or misleading information, or that the drafting process itself subverted the search warrant process.

[17] I find that the search warrant information, misleading in portions, as I have outlined, nevertheless falls at the less serious end of a “misleading” spectrum.

[18] A finding herein of good faith, overall, on the part of the state actors, reduces the need for this court to disassociate itself from the conduct that resulted in the Charter infringement. I further find that in terms of a spectrum analysis, although errors were made herein in the drafting process, the said search warrant process pursued in this case does not represent a wilful and reckless disregard of Charter rights.

[19] For these reasons, I conclude that on the s. 24(2) analysis, the evidence obtained upon execution of the search warrant is not to be excluded.

[20] Order issued accordingly.

The Honourable Mr. Justice J. Stephen O’Neill

Released: August 10, 2015

COURT FILE NO.: 669-14
DATE: 2015-08-10

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

Alan Crichton and Roland Murray
Applicants

RULING ON CHARTER APPLICATION

O’Neill, J.

Released: August 10, 2015