CITATION: R. v. Cave, 2015 ONSC 5371

COURT FILE NO.: 682/14

DATE: 2015-08-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARCUS CAVE and KENNETH GRANT

Jill Prenger, for the Crown

Cheryl Robb, for Marcus Cave

Byron Xavier Alvares, for Kenneth Grant

HEARD: August 5, 6, 7, 10 & 11, 2015

REASONS FOR JUDGMENT

Gray J.

[1] Mr. Cave and Mr. Grant are charged with unlawful possession of certain firearms and, in the case of Mr. Cave, possession of a prohibited magazine for use with a firearm. The trial is scheduled to occur sometime in the spring of 2016.

[2] Pursuant to section 551.1 of the Criminal Code, I was appointed as the case management judge, and I heard a number of pre-trial motions as contemplated in section 551.3 of the Code. Pursuant to section 551.3(4), the rulings I make on those motions are binding, subject to a decision by the trial judge that it would not be in the interests of justice that they be binding.

[3] I made a number of rulings orally, that were transcribed at the hearing:

a) I ruled that both Mr. Cave and Mr. Grant had standing to move to quash the search warrant that was in issue, and ultimately to argue that the items seized pursuant to the warrant are inadmissible in evidence;

b) I dismissed a motion by Messrs. Cave and Grant to require the Crown to produce certain additional information regarding the confidential informant mentioned in the Information to Obtain (“ITO”) that was used to obtain the warrant;

c) I granted leave for limited cross-examination of the affiant of the ITO;

d) I granted a request of the Crown that I furnish, with the Crown’s assistance, a judicial summary of certain information provided with respect to the confidential informant that had been redacted from the ITO;

e) I permitted the Crown to reopen its case and tender evidence that it was Mr. Grant, the accused before the court, who had made the utterances that were in issue in the case.

[4] As to the latter point, during argument counsel for Mr. Grant took the position that the Crown had called no evidence to prove that Kenneth Grant, the accused before the Court, was the person who had made the utterances in issue. In the exercise of my discretion, I permitted the Crown to reopen its case and call evidence on that point. Based on that evidence, I am satisfied beyond a reasonable doubt that Kenneth Grant, the accused before the Court, is the person who made the utterances in issue.

[5] I reserved my decision on two matters: whether the items seized pursuant to a search warrant are admissible in evidence; and whether certain utterances made by Mr. Grant were made voluntarily, and/or whether they should be excluded from evidence as a result of alleged violations of section 10 of the Canadian Charter of Rights and Freedoms.

[6] A firearm was seized pursuant to the warrant. The evidence was unclear as to whether any other items were seized. For the purpose of this decision I will simply assume that “items” were seized and the Crown will seek to tender them as evidence at trial.

Background

[7] On June 21, 2013, an Information to Obtain (ITO) was deposed by Officer Jesse Dean of the Toronto Police Service, in support of an application to obtain a telewarrant to search the premises of Marcus Cave at 7555 Goreway Drive, # 232 in the City of Mississauga. It was sought to search for a firearm and related ammunition, magazines and clips, as well as documents pertaining to ownership/tenant information for the premises, and documents pertaining to any firearms licences. It was alleged that Marcus Cave was in possession of a firearm without being the holder of a licence to possess it.

[8] The deponent stated that in June, 2013, information had been provided to the Guns and Gangs Task Force by a confidential source who had first-hand information regarding a person currently in possession of a gun. The confidential source advised that that person has the gun at a townhouse in Mississauga. The confidential source stated that that person has personally seen the gun. Officer Dean had asserted that he had been able to determine the identity of the person in possession of the gun, Marcus Cave, and the location where the gun was being stored. He asserted that the gun would be found in the home of Marcus Cave at 7555 Goreway Drive, #232, Mississauga.

[9] Officer Dean deposed that in June, 2013, he received information from another police officer that that officer had received information from a confidential source.

[10] Any information that might tend to identify the confidential source has been redacted from the ITO.

[11] The confidential source advised that he or she had specific information about a male who was in possession of a gun. The source said a male known on the street as “Smiley” is in possession of a gun. “Smiley” is described as a male, black, 30 years old, 5’6” to 5’8”, with a slim build, approximately 150 pounds, with black dreads. The source said that “Smiley” lives at 7555 Goreway Drive, #232 in Mississauga with two other unknown males. Unknown male number one is described as male, black, 30’s, 5’10”, medium build, short receding hair. Unknown male number two is male, black, 5’8”, medium build, 30’s, with a light complexion and short black dreads.

[12] The source had been to 7555 Goreway Drive, #232, many times, to buy marijuana from “Smiley”. “Smiley” has a gun.

[13] The source attended the townhouse most recently in June, 2013. While present at the premises, the source was there to buy a quantity of marijuana, and “Smiley” removed a gun.

[14] The information about the gun provided by the source included that the gun is a black automatic hand gun, which the source believes to be real.

[15] The source described the townhouse as being in a housing complex made up of townhouses; Unit #232 is located on the inside of the complex and there is a roundabout with a playground in the middle of it in front of the unit; the townhouse has a living room and kitchen on the main floor and bedroom on the upper level.

[16] Officer Dean deposed that he made investigative inquiries to verify the information provided to him. By searching police databases, he discovered that the alias “Smiley” is associated to several people. One of those people is Marcus Cave, who is described as male, black, 29 years old, 5’6”, 150 pounds with black hair and long dreadlocks. His alias is listed as “Smiley” or “Scoobie”. None of the other people known by the alias “Smiley” fits the description provided by the confidential informant.

[17] Marcus Cave is known to police and has a criminal record.

[18] A photograph of Marcus Cave in one of the police databases was shown to the confidential informant who confirmed that this was the same person the source knew as “Smiley” who lived at 7555 Goreway Drive, #232, Mississauga.

[19] Another police officer, Officer Blake, attended the management office for the complex at 7555 Goreway Drive in Mississauga and confirmed that Marcus Cave is the registered tenant of 7555 Goreway Drive, #232. The townhouse is a three bedroom unit. Marcus Cave is the only tenant listed.

[20] Officer Dean deposed that the source is well entrenched in a criminal lifestyle which allows him or her to come in contact with those involved with illegal firearms and gangs. The confidential source is known to police. The confidential source has a criminal record. It is stated that the source has never been convicted of perjury or “crimes of dishonesty”. However, appendix D, attached to the ITO, shows that the confidential source was convicted of at least one crime of dishonesty.

[21] Officer Dean deposed that the source had provided information in the past to the police for over six years. Information had led to the seizure of firearms in the past. Three specific cases are referred to.

[22] Officer Dean deposed that past source handlers stressed the reliability and accuracy of the information provided by the source.

[23] The information I have just reviewed is taken from the redacted ITO. The judicial summary furnished to counsel during the hearing did not provide any substantial additional information.

[24] Officer Dean deposed that the telewarrant procedure was used because the ITO was prepared on a Friday evening, and the court intake office would not be open until Monday morning. Thus, it was impracticable to attend personally before a Justice of the Peace.

[25] I permitted cross-examination of Officer Dean on two points:

a) Whether it was, in fact, “impracticable” to appear personally before a Justice of the Peace;

b) Whether he had information that Marcus Cave lived alone, contrary to the statement in the ITO that Mr. Cave lived with two unknown males.

[26] On cross-examination, Officer Dean testified that he applied for the telewarrant on Friday, June 21, 2013. He had completed the ITO shortly before it was faxed. He completed it shortly after 9:00 p.m., and it was faxed at 9:40 p.m. Once granted, the warrant was executed on Monday, June 24, 2013. He had asked for a four day window to execute the warrant.

[27] Officer Dean acknowledged that the application for the telewarrant was not urgent.

[28] Officer Dean testified that he had knowledge, from his experience as a police officer, that the court intake office was open from Monday to Friday, from 9:00 a.m. to 5:00 p.m. Accordingly, on the weekend it was not possible to attend personally before a Justice of the Peace in order to apply for the issuance of a warrant. He said he always makes an effort to see a Justice of the Peace in person, but because the office was closed on the weekend, he elected to use the telewarrant procedure. He acknowledged that bail courts are open at Old City Hall on the weekend, but asserted that the court intake office is not open on the weekend.

[29] Officer Dean acknowledged that he had had a conversation with Officer Blake after Officer Blake attended at the management office at the townhouse complex. He acknowledged that Officer Blake’s notes were to the effect that Mr. Cave lived alone in the townhouse. In the ITO, he said Mr. Cave was the only listed tenant. As far as Officer Dean was concerned, this did not undermine the credibility of the informant.

[30] The warrant itself was executed on Monday, June 24, 2013. The initial entry was effected by the Emergency Task Force (ETF) of the Toronto Police Service, and was followed by entry to the premises by member of the Guns and Gangs Task Force of the Toronto Police Service. The initial entry by the ETF took only about four minutes, after which the Guns and Gangs personnel took over.

[31] There was a relatively large number of police officers called as witnesses by the Crown in order to demonstrate that utterances made by Mr. Grant were voluntary. The evidence of many of the officers was not challenged by counsel for the accused, or their evidence was of marginal value. I will confine my review to the evidence that is relevant to the issues that I need to determine.

[32] Officer Locke, a member of the ETF, was one of the officers who entered the premises. He went upstairs to a bedroom where he found a male lying face down on a bed. Officer Locke had no verbal interaction with that person. Someone handcuffed him. He heard Sergeant Armstrong, whose evidence I will review later, ask this person his name. The person responded that he was Kenneth Grant.

[33] On cross-examination, Office Locke confirmed that Mr. Grant was compliant. It was clear that he was not allowed to go anywhere.

[34] Officer Locke said his only obligation for a person, such as Mr. Grant, who was detained, was to ensure that that person did not move. Officer Locke stated that he did not have a notebook and cannot recite to a detained person anything about that person’s right to counsel. While it was possible that he could carry a card with the requisite instruction, he does not do so. He has never administered a caution or advised a detainee of his or her rights to counsel.

[35] Officer Locke did not see where Mr. Grant went. He left him on the bed when the investigators came into the room, and it was the last time he saw Mr. Grant.

[36] John Paul Desousa is a member of the Guns and Gangs Unit with the Toronto Police Service. He was one of the officers who executed the search warrant on June 24, 2013. He testified that the Guns and Gangs Unit went into the premises at 3:49 p.m. on June 24, 2013. He was towards the end of the line of officers who went in the front door.

[37] Upon entering the family room, he found Marcus Cave and another individual. He lifted them from the floor and placed them on chairs. He testified that a third person, identified as Kenneth Grant, came down the stairs while handcuffed. Mr. Grant was brought to the family room and placed on a couch, approximately ten feet from the other two individuals. He was in boxer shorts, wearing no shirt.

[38] Officer Desousa was asked to search one of the rooms upstairs. He went to one of the bedrooms and assisted Officer Balind in searching the room. In a closet, a safe was found. Upon searching the safe, Officer Desousa found a loaded handgun. He took out the bullets. There was also jewellery in the safe, together with a passport in the name of Kenneth Grant.

[39] Officer Desousa advised out loud that he had found a gun. Officer Balind took photos of the contents of the safe. Those photos were tendered into evidence before me.

[40] Officer Tan, who had been assisting, went downstairs and apparently advised Mr. Grant that he was under arrest.

[41] When Officer Desousa was finished his search, he placed some of the contents of the safe in a box and proceeded to go downstairs. He went towards the couch on which Mr. Grant was seated. He testified that Mr. Grant started talking to him.

[42] Officer Desousa testified that Mr. Grant said “Officer, are you seizing my jewellery?” Officer Desousa testified that he responded “Have you been told that you are under arrest?”, to which Mr. Grant responded “Yes”. Officer Desousa said “Have you been told that you have a right to speak to a lawyer?”, to which Mr. Grant responded “Yes”. Officer Desousa said “Have you been told you don’t have to say anything?”, to which Mr. Grant responded “Yeah”.

[43] Officer Desousa testified that Mr. Grant said he wanted to take some of his jewellery with him when he was taken to jail. He said he wanted to take some bracelets and a necklace, while other items, such as watches and coins, could be left in the safe.

[44] Officer Desousa testified that he returned to the bedroom, and opened the safe. Mr. Grant identified a bracelet and a necklace that he wanted to take with him. He did so. The rest was left in the safe.

[45] Officer Desousa testified that Mr. Grant also wanted to be given some pants and a shirt. Officer Desousa provided them, and helped Mr. Grant to get dressed.

[46] Officer Desousa said there was no other conversation with Mr. Grant and he had no other dealings with him.

[47] On cross-examination, Officer Desousa confirmed that after the Toronto Police had executed the search warrant, and arrested the suspects, they were turned over to officers from the Peel Regional Police force.

[48] Officer Desousa confirmed that Mr. Grant was cuffed, and was not able to leave. He stated that where a suspect is detained, he should be advised of his rights as soon as is practical. That occurs when it is safe to do so. He said he was not aware if Mr. Grant was given his rights to counsel. He did not hear anyone give Mr. Grant his rights to counsel or caution him. He did not do so. He did not see or hear Officer Tan arrest Mr. Grant.

[49] Office Desousa testified that Mr. Grant spoke to him right away after Officer Desousa came close to him after arriving at the bottom of the stairs. His intention had to been hold the box in a holding area. It was not his intention to speak to Mr. Grant. He did not tell Mr. Grant what he had searched for or what he had found.

[50] Officer Desousa testified that Mr. Grant did not ask to speak to a lawyer. He did not mention the name of any lawyer, particularly “Ted Royal”.

[51] Officer Desousa testified that as far as he is concerned a police officer is not required to stop speaking to an accused after an accused has been given his rights to counsel and cautioned, even where an accused wants to speak to counsel.

[52] Officer Desousa said that when Mr. Grant first spoke to him he did not know what Mr. Grant was going to say.

[53] Maurizio Ceresoli was a member of the Guns and Gangs Unit who executed the search warrant. He testified that he overheard some of the conversation between Officer Desousa and Mr. Grant about Mr. Grant’s jewellery. He testified that Mr. Grant said “Can I get my jewellery?”, or something like that. He said Officer Desousa then left and came back.

[54] On cross-examination, Officer Ceresoli said he did not administer the rights to counsel or a caution to Mr. Grant, and did not hear anyone else do so.

[55] Officer Mark Armstrong, of the Toronto Police Force, was a member of the ETF when the search warrant was executed. It is not part of his job to administer rights to counsel or a caution to a suspect. As far as he is concerned, that is done by members of the Guns and Gangs Unit.

[56] Officer Armstrong testified that after he entered the premises he found two people on the couch, Marcus Cave and Germaine Grant. Marcus Cave said it was his place, and Germaine Grant said he was visiting.

[57] Officer Armstrong testified that he went upstairs where he found another male in one of the bedrooms. That was Kenneth Grant. He asked Kenneth Grant whether he lived there, to which he responded no, he was visiting.

[58] On cross-examination, Officer Armstrong confirmed that he did not administer a caution or rights to counsel to Kenneth Grant before he asked Kenneth Grant any questions, and before Kenneth Grant gave any information.

[59] Officer Mark Tan, with the Toronto Police Service, was a member of the Guns and Gangs Unit who executed the warrant.

[60] After entering the premises, Officer Tan went upstairs to a bedroom where he found Kenneth Grant lying on a bed. There was an ETF officer there.

[61] Officer Tan testified that he took possession of Mr. Grant, and brought him to his feet. He told Mr. Grant that Mr. Grant was detained, and that Officer Tan was there to execute a warrant. He testified that he gave Mr. Grant a caution and advised him of his right to counsel.

[62] Officer Tan testified that he did not have his notebook with him, so he could not read the caution and right to counsel that were normally contained in his notebook. He testified that he told Mr. Grant that Mr. Grant had the right to a lawyer and the right to speak to a lawyer and that anything said by Mr. Grant could be used as evidence against him. He testified that Mr. Grant responded that he understood. Mr. Grant was calm and not agitated or animated. He testified that Mr. Grant was cuffed, but he did not know by whom.

[63] Officer Tan testified that he took Mr. Grant downstairs to the living room where there were two other males in custody. He put him on a couch in the living room, where there were several other officers in the vicinity. Officer Tan went back upstairs to the bedroom.

[64] Officer Tan testified that he participated in the search of the bedroom with Officer Desousa. Officer Desousa announced that he had found a gun in a safe, together with some identification for Kenneth Grant. Officer Tan testified that he looked in the safe and saw a black gun.

[65] Officer Tan testified that he went downstairs to arrest Mr. Grant. He approached Mr. Grant and told him that a gun had been found in the room that he had occupied, and that he was under arrest. Officer Tan said he explained to Mr. Grant what his rights were. He said he could speak to a lawyer. He said Mr. Grant would have the reasonable use of a telephone. He said that anything said by Mr. Grant could be used against him. Officer Tan testified that Mr. Grant said he understood.

[66] Officer Tan testified that he did not recall when or if he saw Mr. Grant again. He turned Mr. Grant over to Officer Dhillon, an officer with Peel Regional Police, at 5:04 p.m.

[67] On cross-examination, Officer Tan confirmed that he only saw the gun in the safe. He did not see anything else.

[68] Officer Tan did not have his notebook with him. To the best of his recollection, the words he used while upstairs with Mr. Grant were that he, Officer Tan, was present for the purpose of executing a search warrant; that Mr. Grant was detained; that Mr. Grant could speak to a lawyer; and that if Mr. Grant said anything it could be used against him. Officer Tan testified that Mr. Grant used words to convey that he understood.

[69] Officer Tan acknowledged that he did not specifically investigate the feasibility of Mr. Grant using a telephone. He acknowledged that Mr. Grant could not use a telephone in the home while there were police officers there.

[70] Officer Tan testified that he wrote his notes when he got to 12 Division at the Peel Police offices. He looked at the notes made by a central note-taker before he made his own notes.

[71] Officer Tan acknowledged that he did not specifically give Mr. Grant an opportunity to speak to a lawyer. He said he would not have allowed a call to be made while there was a search underway.

[72] On re-examination, Officer Tan stated that he never heard Mr. Grant say anything about a lawyer.

Submissions

[73] On the issue of whether the seized items are admissible in evidence, counsel for the accused argue that they were not seized pursuant to a valid search warrant. Accordingly, what occurred was an unreasonable search and seizure and was contrary to section 8 of the Charter. Accordingly, the items can only be admitted pursuant to section 24(2) of the Charter, and, in the exercise of the court’s discretion, it should be determined that they ought not to be admitted.

[74] Counsel submit that based on the redacted ITO, there is not sufficient credible and reliable evidence to permit a Justice of the Peace to find reasonable and probable grounds to believe that an offence was committed and that evidence of that offence would be found at the specified time and place. Further, counsel submit that there was false and misleading material in the ITO that should cause the court to decline to give effect to the warrant. To the extent that the ITO depends on information supplied by a confidential informant, there is insufficient material to show that the tip from the informant was compelling; that the information from the informant is credible; or that it was corroborated by a proper police investigation.

[75] For these reasons, counsel submit that the search, based as it was on an invalid warrant was an unreasonable search and seizure and thus contrary to section 8 of the Charter.

[76] As far as section 24(2) of the Charter is concerned, counsel submit that, based on the tests set out in R. v. Grant, 2009 SCC 32, the items seized should be excluded from evidence. Counsel submit that the court must consider three factors: the seriousness of the Charter-infringing state conduct; the impact on the Charter-protected interests of the accused; and society’s interest in an adjudication on the merits.

[77] Counsel submit that the conduct of the police here discloses a serious violation. The conduct of the police approaches bad faith. At best, it discloses a casual, reckless attitude. No attempt whatsoever was made to corroborate anything substantial provided by the informant. Simply getting Mr. Cave’s address does not show anything about the possibility of Mr. Cave having a gun. Furthermore, there was not full and frank disclosure by the police in the ITO. The reliability of the informant is suspect. The police declined to disclose the information from Officer Grant to the effect that Mr. Cave lived in the apartment alone.

[78] The effect of the violation on Mr. Cave and Mr. Grant, particularly Mr. Cave, is serious. Clearly, a search of one’s own private home is a very serious matter and can only be done where substantial grounds are shown.

[79] As far as the interest of the public in an adjudication on the merits is concerned, that cuts two ways. While the public has an interest in seeing serious crimes prosecuted, it also has an interest in ensuring that Charter rights are protected. It would send the wrong message to the police if Charter violations can be ignored.

[80] Counsel for the Crown argues that there was no violation of s.8 of the Charter. The seized items were seized pursuant to a valid telewarrant. No grounds have been shown to justify setting aside the telewarrant. It was applied for on a Friday evening, and it would not have been possible to appear personally before a Justice of the Peace until Monday morning. This is sufficient to make it “impracticable” to appear personally. Even on the basis of the redacted ITO, there was ample evidence before the Justice of the Peace to justify the issuance of the telewarrant. Insofar as the ITO contains information from a confidential informant, the information is compelling, the informant is credible and had provided reliable information in the past, and the police were able to corroborate significant amounts of the information.

[81] In the alternative, counsel for the Crown submits that the seized items should be admitted into evidence pursuant to s. 24(2) of the Charter. If there was a violation of s.8 of the Charter, it was not serious. The police made an effort in good faith to comply with their obligations when they applied for the telewarrant. Any errors in the material were minor and inadvertent. The Justice of the Peace was not misled as to anything material. While a search of a private home is at the high end of the scale as far as the interests of the accused are concerned, society has a high degree of interest in an adjudication on the merits. Gun offences are very serious indeed.

[82] As far as the utterances of Mr. Grant are concerned, counsel for Mr. Grant asserts that they should be excluded from evidence, either on the ground that they were not made voluntarily, or that they were made after a violation of section 10 of the Charter. The Crown bears the onus on the voluntariness issue, while Mr. Grant bears the onus on the issue arising under section 10 of the Charter.

[83] Counsel for the Crown argues that the statements by Mr. Grant were clearly made voluntarily. With three exceptions, every police officer who may have had anything to do with Mr. Grant before or at the time he made his utterances were called as witnesses. The three exceptions were Officer Balind, Officer Bryant and Officer Bielby. Officers Balind and Bryant, according to the evidence, had no interaction whatsoever with Mr. Grant. Officer Bielby dealt only with Germaine Grant, and not with Kenneth Grant.

[84] Utterances were made by Mr. Grant to Officer Armstrong and to Officer Desousa.

[85] As far as Officer Armstrong was concerned, the only questions asked had to do with very simple, preliminary matters such as Mr. Grant’s name and whether he lived in the apartment. Mr. Grant readily provided this information, and it can hardly be suggested that he did not do so voluntarily. Nothing was promised or held out to Mr. Grant, and he was not threatened in any way.

[86] As far as the utterances to Officer Desousa are concerned, once again they were entirely voluntary. In fact, it was Mr. Grant who insisted on speaking to Officer Desousa, rather than Officer Desousa asking for any information. Mr. Grant was not offered any inducement, nor were any threats made to him. He was reminded, before he said very much, that he had been told that he had the right to speak a lawyer, and that anything he said could be used against him. Notwithstanding this reminder, Mr. Grant insisted on telling Officer Desousa that he wanted to take his jewellery to the jail with him, and he identified the jewellery in the safe that he wanted to take with him. While it may not have occurred to Mr. Grant that his statements were potentially very incriminating, nevertheless it is clear that they were voluntarily made.

[87] While counsel for Mr. Grant did not concede that the statements were made voluntarily, his submissions, in the main, were focused on his argument that there was a violation of section 10 of the Charter, and that the evidence should not be admitted under section 24(2) of the Charter.

[88] Counsel submitted that there was a clear violation of section 10 of the Charter, both at the time when Mr. Grant was first detained in the bedroom, and at the time he was arrested in the living room. In both cases, he was not fully advised of his right to retain and instruct counsel without delay. Furthermore, counsel submits that the violation of section 10 is systemic, and is not to be tolerated.

[89] Counsel points out that Officer Armstrong made it clear that as a member of the ETF he does not advise suspects of their right to counsel nor does he administer a caution. That is the case even where, as here, he is the one who actually detains a suspect. Indeed, he has never advised a suspect of the right to counsel or cautioned a suspect.

[90] In this case, Officer Armstrong asked Mr. Grant his name and whether Mr. Grant lived in the apartment. The answers to both questions, and in particular the second question, were potentially incriminating. Had Mr. Grant been advised of his rights, he may well have chosen to say nothing.

[91] As far as the caution and advice given to Mr. Grant by Officer Tan are concerned, there was also a clear violation of section 10 of the Charter. Officer Tan never advised Mr. Grant of the availability of the right to speak to a legal aid lawyer, nor was he advised of the right to use an 800 number in order to do so. The Supreme Court of Canada has mandated that a detainee be advised of these rights, and there is no excuse for not doing so.

[92] As far as section 24(2) is concerned, based on an application of the Grant factors, the evidence should be excluded.

[93] The Charter-infringing state conduct is serious; there was a serious impact on the Charter-protected interests of Mr. Grant; and society’s interest in an adjudication on the merits cannot outweigh those factors.

[94] Counsel for the Crown submits that there was no violation of section 10 of the Charter, and in any event the evidence should be admitted pursuant to section 24(2).

[95] Counsel submits that Mr. Grant was given sufficient warning, in the particular circumstances of this case, to justify the conclusion that the requisites of section 10 of the Charter have been satisfied.

[96] The preliminary questions asked by Officer Armstrong are not sufficient to set in motion the panoply of rights triggered by section 10 of the Charter. If that were so, every time a police officer asked a detained citizen’s name and where he or she lives, that would trigger the requirements of section 10. That simply cannot be the case. Perfunctory, simple, identification questions of a detained person need not be preceded by the warnings and cautions prescribed by section 10.

[97] Counsel acknowledges that the statements made by Mr. Grant to Officer Desousa had to be preceded by proper warnings and cautions under section 10 of the Charter, but counsel submits that in the circumstances what was communicated to Mr. Grant was sufficient. He was specifically told that he had the right to speak to a lawyer. He was also told that he had the right to reasonable use of a telephone in order to do so. He was also specifically told that anything he said could be used against him. Mr. Grant acknowledged that he understood what he was being told, and he raised no issue about speaking to a lawyer or using the telephone.

[98] In these circumstances, counsel submits that it would be unreasonable to insist on a particular script to be read to Mr. Grant. What occurred was reasonable in the circumstances, and it should be concluded that there was no violation of section 10 of the Charter.

[99] In the alternative, counsel submits that the utterances should be admitted pursuant to section 24(2) of the Charter. It is clear that Mr. Grant understood what his rights were, and he understood that anything he said could be used against him. The information given to the police was volunteered by him with no prompting by the police, and there was nothing that would suggest that the information was not provided voluntarily. It would bring the administration of justice into disrepute to refuse to admit the evidence.

Analysis

[100] I will first analyse the admissibility of the seized items, and then I will analyse the admissibility of the utterances of Mr. Grant.

a) Are the seized items admissible in evidence?

[101] Counsel for the accused attack the telewarrant on a number of grounds:

a) whether the telewarrant procedure could be used;

b) whether there was sufficient material in the ITO, as redacted, to justify issuing the warrant;

c) whether there was false and misleading information in the ITO.

[102] I will deal with each of these in turn.

[103] The telewarrant procedure can be used where it is “impracticable” to attend personally before a Justice of the Peace: Criminal Code, section 487.1.

[104] The term “impracticability” signifies a relatively low threshold to meet: see R. v. Phillips, 2004 BCSC 1797, [2004] B.C.J. No. 2919 (B.C.S.C.), at para. 23. However, inconvenience is not the same as impracticability: see R. v. Lao (2013), 2013 ONCA 285, 305 O.A.C. 346 (C.A.), at para. 68.

[105] In Lao, a telewarrant had been applied for at around 7:22 a.m., on the same day that the Justice’s office would have been open later that day. In those circumstances, the trial judge and the Court of Appeal agreed that it was not impracticable to appear personally before a Justice of the Peace. Accordingly, the telewarrant was not validly issued and reliance upon it violated section 8 of the Charter. However, in the circumstances, the Court of Appeal held that the seized evidence should be admitted into evidence pursuant to section 24(2) of the Charter. The Court held that the use of the telewarrant process did not amount to a serious Charter breach, as a warrant would have issued in the normal course in any event: see Lao at paras. 74-82.

[106] In the case before me, I have little difficulty in concluding that in the circumstances it would have been impracticable to appear personally before a Justice of the Peace. Since Officer Dean had completed the paperwork on Friday evening, June 21, 2013, he would have had to wait over two full days to appear personally before a Justice of the Peace. I do not accept the argument of counsel for the accused that there was insufficient evidence that a Justice was unavailable over the weekend. An experienced police officer in Toronto is well aware of when the court intake office is open, and I accept Officer Dean’s evidence in that regard. Thus, I conclude that the attack on the telewarrant on this ground fails.

[107] As far as the second argument is concerned, the appropriate test as to the validity of a warrant is set out by Fish J. in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40 as follows:

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.

[108] Where, as here, a significant part of the information on which the ITO is based comes from a confidential informant, there are certain additional tests that apply: the information from the informant must be compelling; the source must be credible; and the information must be corroborated by a police investigation. Each factor does not constitute 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: see R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C), at p.215; and R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.), at para. 12.

[109] These factors were summarized by Code J. in R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892 (S.C.J.), at para. 35, as follows:

It appears from Wilson J.’s reasons in Debot, and from the subsequent jurisprudence, that the term “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, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedence, and any past history of providing reliable information to the police. The term “corroboration” refers to any supporting information uncovered by the police investigation.

[110] There is some difference in the jurisprudence as to whether corroboration requires confirmation of the very criminal activity that is suspected or targeted, or whether corroboration simply requires confirmation of enough information provided by the informant to give confidence in the informant’s information. The former standard appears to have been adopted by Salhany J. in R. v. Kesselring, [1998] O.J. No. 3861 (Gen. Div.) at para. 12. The latter approach was adopted by Hill J. in R. v. Nguyen, [2004] O.J. No. 1055 (S.C.J.), at para. 52, where he stated “there need not be corroboration of the very criminal act in issue for confirmative detail to have probative value regarding the accuracy of an informant’s information”.

[111] It should be noted that in Kesselring, Salhany J. upheld the validity of the warrant in issue. His decision admitting the evidence was upheld by the Court of Appeal: 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436 (C.A.), but that court did not deal with this specific issue.

[112] The same approach as that taken by Hill J. was taken by the Alberta Court of Appeal in R. v. Caissey (2007), 2007 ABCA 380, 227 C.C.C. (3d) 322 (Alta. C.A.), at para. 25; affirmed, R. v. Caissey, 2008 SCC 65. Caissey was cited with approval by the Ontario Court of Appeal in its recent decision in R. v. Green, 2015 ONCA 579, at para. 29. See also R. v. Greaves-Bissesarsingh, supra, at paras. 43-45.

[113] It seems clear that the jurisprudence subsequent to Kesselring has made it clear that corroboration of the very criminal activity that is targeted is not required. Surely, corroboration by the police is necessary only to give sufficient confidence in the trier of fact to justify reliance on the information supplied by the informant.

[114] In my view, the test set out in Morelli, as modified by the tests in Debot, have been satisfied in this case. In so concluding, I have relied only on the ITO as redacted.

[115] At the end of the day, there is sufficient credible and reliable evidence to permit a Justice of the Peace to find reasonable and probable grounds to believe that an offence has been committed, and that evidence of that offence will be found at the specified time and place.

[116] The information provided by the informant is, in my view, compelling and reliable. The informant personally attended the townhouse to buy marijuana from a person known as “Smiley”. The informant personally saw a gun while at the premises. He was able to describe the gun as a black automatic handgun. The informant was able to describe “Smiley” as a male, black, 30 years old, 5’6” to 5’8”, slim, approximately 150 pounds with black dreads. The informant provided specific information about the townhouse and its description and location. The informant provided firsthand observations, and there is no reliance on second-hand hearsay, rumour, or gossip.

[117] As is not unusual, the informant is involved in a criminal lifestyle, and has a criminal record. The motivation for providing the information is redacted, but it is reasonable to assume that there is some consideration flowing to the informant. The informant has provided information in the past that has proved to be useful, and that information, in substance, is set out in the ITO. Handlers have stressed the reliability and accuracy of the information provided by the informant.

[118] The police corroborated some of the information provided by the informant, albeit not the specific criminal activity that is targeted. Through consultation of police databases, the police were able to confirm that a person with the alias “Smiley” is Marcus Cave, who has similar physical characteristics to those of the person identified by the informant as “Smiley”, and that that person lives in the premises identified by the informant. A photograph of Mr. Cave was shown to the informant, who confirmed that this was the same person he or she knew as “Smiley” who resided at the address in question, 7555 Goreway Drive, #232, Mississauga. An officer attended at the apartment complex, and confirmed that Mr. Cave is the registered tenant at the premises in question.

[119] In the final analysis, I am satisfied that the requirements to show that the informant’s information is compelling; that the informant is credible; and that there is sufficient corroboration, have been met.

[120] I am not convinced that there was sufficient misrepresentation or lack of candour in the ITO, sufficient to justify lack of reliance on the warrant. While Officer Blake’s notes indicate that he was told that Mr. Grant lived in the apartment alone, and Officer Dean did not disclose that in the ITO, I am not convinced that the omission was intended to deceive. Having listened to both Officer Dean and Officer Blake, I am not convinced that there was any deliberate misrepresentation. Officer Dean did disclose that Mr. Cave is the only tenant listed. Further, I am not persuaded that the statement that the informant has never been convicted of crimes of dishonesty was deliberately intended to deceive, nor am I persuaded that the Justice would have been deceived in any way. Appendix D to the ITO clearly discloses the informant’s entire criminal record, and that was available to the Justice.

[121] For these reasons, I am not satisfied that reliance on the warrant was unlawful. Accordingly, there was no breach of section 8 of the Charter, and the items seized as a result of executing the warrant are admissible in evidence.

b) Are the utterances of Mr. Grant admissible?

[122] I will first determine the voluntariness of the utterances. If the Crown cannot establish, beyond a reasonable doubt, that the utterances were voluntary, they are then inadmissible in evidence and it is unnecessary for me to consider the issue under section 10 of the Charter.

[123] In my view, the utterances by Mr. Grant were voluntary.

[124] The statements made by Mr. Grant to Officer Armstrong, when he stated his name and that he was a visitor to the premises, were not preceded by any promises, inducements, or threats. The questions were perfunctory, and informational. He was not compelled to give the information, and he imparted it willingly.

[125] As far as the statements to Officer Desousa are concerned, once again they were not preceded by any threats, promises or inducements. Indeed, the information was volunteered by Mr. Grant without any prompting by the police or any questions being asked. Before he volunteered anything substantial he was told that he could speak to a lawyer and that he did not have to say anything. While it may not have occurred to Mr. Grant that what he was about to say was quite incriminating, nevertheless what he said was voluntarily offered.

[126] In my view, the fact that three police officers were not called as witnesses does not affect this conclusion. Reasonable explanations were offered for not calling them, and I am convinced that none of them had any involvement with Mr. Grant.

[127] For these reasons, I am persuaded that the Crown has proven beyond a reasonable doubt that the utterances made by Mr. Grant were voluntary.

[128] The remaining issue is whether there was a violation of section 10 of the Charter, and if so, whether the evidence should nevertheless be admitted pursuant to section 24(2) of the Charter.

[129] In my view, both at the time of Mr. Grant’s detention in the bedroom and at the time he was placed under arrest by Officer Tan, there were violations of section 10 of the Charter. Section 10(a) and (b) of the Charter provide as follows:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

[130] The rights under section 10 arise on both arrest and detention. In either case, a suspect must be informed promptly of the reasons for the arrest or detention. Further, the suspect has the right to retain and instruct counsel without delay and to be informed of that right.

[131] In this case, I am satisfied that Mr. Grant was informed promptly of the reasons for both his detention and his arrest. I did not understand counsel for Mr. Grant to argue otherwise. Accordingly, I will focus on whether Mr. Grant was accorded the rights set out in section 10(b), and particularly his right to be informed of his right to retain and instruct counsel without delay.

[132] Two important decision of the Supreme Court of Canada have given specific guidance as to the content of the advice that must be given to a detainee or person arrested: R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190; and R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173.

[133] In Brydges, the accused, who was charged with murder, was advised of his right to consult counsel but was not told of the availability of free duty counsel and legal aid. The Supreme Court of Canada held that as part of the informational component of section 10(b), a detainee or person charged must be advised of the availability of free duty counsel and legal aid. The court held in that case that there had been a violation of section 10(b), and that the evidence should not be admitted pursuant to section 24(2) of the Charter.

[134] In the subsequent case of Bartle, a police officer, before administering a breathalyser test, warned the suspect in the following terms:

You have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer that you wish. You also have the right to free legal advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid plan for legal assistance.

[135] The suspect was given this warning twice, once at the roadside and once at the police station. The suspect said no, he did not want to call a lawyer. He was given a breathalyser test, which he failed.

[136] The Supreme Court of Canada held that notwithstanding the warning, section 10(b) had nevertheless been violated because the police officer had not told the suspect that there was a 1-800 telephone number by which free duty counsel could be contacted. It was not relevant that the suspect had shown no interest in contacting counsel. The court held that the evidence should be excluded under section 24(2) of the Charter, notwithstanding the good faith of the police.

[137] Clearly, Brydges and Bartle are binding on me. The informational component of section 10(b) is clear: a detainee or person charged must be advised in specific terms that he or she has the right to speak to a lawyer and that legal advice is available through legal aid, and specifically through a free 1-800 number. Where that is not done, a violation of section 10(b) occurs.

[138] It is clear that the requisite caution and warning, as prescribed by the Supreme Court of Canada was not given either by Officer Armstrong in the bedroom or by Officer Desousa upon the arrest of Mr. Grant in the living room. Thus, there were violations of s.10(b) of the Charter.

[139] The remaining issue is whether, in either case, the utterances are to be excluded pursuant to section 24(2) of the Charter. I must assess the seriousness of the Charter-infringing state conduct; the impact on the Charter rights of the accused; and the interest of the public in an adjudication on the merits.

[140] As to the statements in the bedroom, I am convinced that the evidence should be admitted.

[141] The Charter-infringing conduct of Officer Armstrong was serious. Officer Armstrong has never given a caution or advised a suspect of his or her right to consult counsel. He apparently does not think it is part of his job to do so. In that, he is wrong. As part of his job, he will detain suspects. The rights under section 10 of the Charter arise on detention. If Officer Armstrong has not been trained as to his obligations, he should be.

[142] The impact of the violation on Mr. Grant’s rights is not particularly serious. The only information conveyed by Mr. Grant was his name and the fact that he was a visitor to the premises. Neither piece of information is particularly damaging, and in fact the fact that he was a visitor does not harm his case; rather it may help his case.

[143] As far as the public’s interest in an adjudication on the merits is concerned, the public has a clear interest in adjudicating a case involving guns. Any case involving guns is very serious.

[144] On balance, after weighing the appropriate factors, I conclude that it has not been established that the administration of justice would be brought into disrepute if the statements made by Mr. Grant to Officer Armstrong are admitted into evidence. They will be admitted into evidence at trial.

[145] I am not of the same view with respect to the utterances made by Mr. Grant to Officer Desousa. Those utterances were preceded by a caution and statement as to Mr. Grant’s right to counsel given by Officer Tan, that was not in compliance with the requirements of Brydges and Bartle.

[146] While not systemic, the infringement by Officer Tan is serious. Mr. Grant was in the course of being arrested. The legal landscape for Mr. Grant was about to alter rather fundamentally. It was very important that Officer Tan get it right. He did not have his notebook, and he tried to guess as to the appropriate formula for informing Mr. Grant of his rights. He did not get it right. Instead of guessing, he should have made sure, by whatever means he could, that he had the appropriate formula at hand. Instead, he effectively flew by the seat of his pants.

[147] I think the impact of the violation on Mr. Grant’s Charter-protected rights was significant. In both Brydges and Bartle, the Court declined to speculate about whether the detainee or accused might have said or done something different if he had been given the proper caution and advice. I similarly decline to speculate here. If Mr. Grant had been specifically told that he had the right to get immediate legal advice through an 800 number, it is possible he may have declined to say anything before talking to a legal aid lawyer.

[148] It goes without saying, as already noted, that the public has a strong interest in the adjudication of a gun charge on the merits. However, this factor cannot outweigh the other two factors. The seriousness of the offence has the potential to cut two ways: see R. v. Côté, 2011 SCC 46, at para. 53. In both Brydges and Bartle, the Supreme Court of Canada held that the administration of justice would be brought into disrepute if the challenged evidence was admitted. I see no reason why a similar conclusion should not be reached here.

[149] On balance, I conclude that it would bring the administration of justice into disrepute to admit the utterances. They will be excluded from evidence at trial.

Result

[150] For the foregoing reasons, I rule that the evidence seized pursuant to the search warrant is admissible at trial; the utterances made by Mr. Grant to Officer Armstrong are admissible at trial; and the utterances made by Mr. Grant to Officer Desousa are inadmissible at trial.

Gray J.

Released: August 26, 2015

CITATION: R. v. Cave, 2015 ONSC 5371

COURT FILE NO.: 682/14

DATE: 2015-08-26

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARCUS CAVE and KENNETH GRANT

REASONS FOR JUDGMENT

Gray J.

Released: August 26, 2015