OTTAWA COURT FILE NO.: 11A-8440
DATE: 2015/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALEXANDRE LACROIX
Applicant
James Bocking, for the Respondent
Leo Adler, for the Applicant
HEARD AT OTTAWA: September 24, 2015
REASONS on application
Madam Justice B. R. Warkentin
[1] The applicant, Alexandre Lacriox, brings this application for an order setting aside a search warrant executed at 97 Rita Avenue, Ottawa, Ontario on February 10, 2010.
[2] The applicant seeks an order allowing this application together with a declaration that his s. 7 and 8 Charter rights to life liberty and security of the person and to be secure against unreasonable search and seizure were violated. Further, the applicant seeks an order excluding the firearm and ammunition that was seized on the execution of the warrant from his trial pursuant to s. 24(2) of the Charter.
Background re: Wire Tap and Search Warrant
[3] In 2008 the Ontario Provincial Police and the Ottawa Police Service commenced a joint operation called Project Lancaster that investigated gun trafficking in the City of Ottawa and surrounding areas. These police departments were concerned about the increase of gun violence in Ottawa.
[4] The investigators used a variety of tools and techniques to conduct their investigation. In early November 2010 they obtained authorization to intercept private communications. Two individuals, Jafari Waldron and Tristin Jones, and their activities in the trafficking of firearms in the Ottawa area were identified as the central focus of the investigation. This authorization was renewed and expanded on January 12, 2011 and named a third suspect identified as Germaine Smith as among other possible suspects.
[5] The applicant was not named as a target in the wiretaps; however, an “unidentified male using a cellular telephone number (613) 986-5382” was named in the second wiretap of January 12, 2011, one of a number of other possible suspects.
[6] There had been approximately 150 intercepted telephone calls and text messages between that telephone number and Mr. Smith. The investigators obtained telephone subscriber information and from this determined that the phone number of the unidentified male was registered to the applicant, with a billing address of 97 Rita Avenue in Ottawa.
[7] The investigators then conducted surveillance on the applicant over approximately 6 days during the period of January 25 through February 8th, 2011 where the applicant was observed entering and exiting the home at 97 Rita Avenue, another residence on Fisher Street, speaking on a cell phone and interacting with a small child at the Rita Avenue location.
[8] On February 8, 2011, a search of the applicant on various databases indicated that; according to his drivers’ licence, the applicant resided at 97 Rita Avenue; the applicant did not have a licence to own a firearm and had no firearms registered to him; and that in at least one recorded case with the police in 2009 the applicant was identified by police as residing at 97 Rita Avenue. The police also reviewed a Facebook account purporting to be that of the applicant’s and confirmed that the person whose photos were on the Facebook page was the same person on whom they were conducting their surveillance, and this person had a small child.
[9] It was based upon this information that the investigators came to determine that the applicant was the “unidentified male” in their telephone intercepts between Mr. Smith and telephone number (613) 986-5382 and that he resided at 97 Rita Avenue.
[10] A search warrant was issued on February 9, 2011for entry into 97 Rita Avenue, Ottawa for the purpose of searching for a handgun and ammunition. The entry was authorized for the period of February 9 to February 11, 2011 between the hours of 6:00 am and 8:59 pm inclusive. The search was conducted on February 10, 2011 where among other things; a handgun, ammunition and 215.7 grams of marijuana were found.
[11] The applicant seeks to quash the warrant on the grounds that there is an insufficient factual basis to support the inferences that need to be drawn in order to find, upon review, that the authorizing justice properly authorized the search of the applicant's home. The applicant's position is that there were insufficient grounds as set out in the Information to Obtain ("ITO") for the following reasons:
a) Of the approximately 150 intercepted telephone communications between Mr. Smith and the telephone number registered to the applicant, the majority of these were purportedly on the subject of drug dealing. Only three of the intercepts are alleged to relate to firearms and these conversations feature what the affiant of the ITO claimed to be coded references to firearms and ammunition.
b) There was no independent evidence that the applicant was the one speaking on the telephone during these conversations except the registration information of the telephone number to the applicant. This is insufficient to identify the applicant as the speaker in the intercepted conversations.
c) There was no evidence that a firearm was located at the dwelling house of 97 Rita Avenue and the ITO did not provide a sufficient basis upon which a justice could conclude that there were reasonable and probable grounds to believe there was a firearm located at 97 Rita Avenue or that the alleged coded references were in fact regarding firearms; and
d) That the affiant was wrong when he claimed to have reasonable and probable grounds to believe that the applicant was the speaker on the intercepted conversations; that the conversations included coded references to firearms; that the conversations included discussions of a specific firearm that would be found at 97 Rita Avenue or that any firearm would be located there at the time of the execution of the search warrant.
[12] The Crown argued that the search warrant was valid and the application ought to be dismissed. The Crown submitted that the applicant has failed to establish on a balance of probabilities that the search and seizure conducted was unreasonable and contrary to the applicant's rights under s. 7 and 8 of the Charter. The Crown submits that because the applicant's s. 7 and 8 Charter rights were not breached, s. 24(2) of the Charter is not engaged.
[13] The affiant of the ITO, Detective Constable Jeff Swrjeski (“Detective Swrjeski”) was cross examined with leave of the court, on consent of the Crown.
[14] Detective Swrjeski is police officer and has been employed with the OPP since 1999. In 2010 and 2011 he was attached to the OPP Provincial Weapons Enforcement Unit where he was assigned in 2008. Until the time he had prepared the ITO that is the subject of this hearing, Detective Swrjeski had prepared more than 100 ITO’s for search warrants for various alleged offences including a number for firearms related offences.
[15] In addition to his role in preparing the ITO, Detective Swrjeski was involved in most aspects of Project Lancaster, including as one of those who monitored the communications that were recorded by virtue of the wire-tap authorizations. There were ten civilian monitors and a variety of police officers involved in reviewing those communications.
[16] On February 8, 2011, Detective Swrjeski was informed by one of the others monitoring communications about a call that had been placed on February 4, 2011 from Mr. Smith to the applicant’s cell phone. In this conversation, the following exchange occurred:
Germaine Smith asked if “you know anybody looking for one of those things”, “the thing is right now it’s like 3”, “it’s Gretzky”. The person alleged to be the applicant responded, “I’m still holding on to the old Michael Jordan”, “not the first number, the second number…when he comes back to the game”. Germaine Smith replied “I got a mini”, “a mini version of that”, “has like more dental work in it”.
[17] Detective Swrjeski, in his ITO stated that he believed that Mr. Smith, when referring to “the thing”, was referring to a handgun and the reference to “its 3” meant it would cost $3,000.00. He also stated that the references to sports figures were with respect to the numbers they wore on their jerseys. The reference to Gretzky was to the number 99 and that this reference meant a 9 mm handgun. The reference to the Old Michael Jordan was to the number 45, and meant a .45 calibre handgun. The fact that the person alleged to have been the applicant stated that he was still holding on to the old Michael Jordan, indicated that he had a .45 calibre handgun in his possession. Finally, Detective Swrjeski stated that the words “dental work” referred to ammunition.
[18] After reviewing this intercept from February 4, 2011 with the lead investigator, Detective Swrjeski reviewed all 150 intercepts between Mr. Smith and the applicant. From that review, he drew the following conclusions:
a) Of the approximately 150 intercepted telephone communications between Mr. Smith and the telephone number registered to the applicant, the majority were purportedly on the subject of drug dealing. Only two of the intercepts in addition to the one on February 4 were alleged to relate to firearms, based on similar wording and alleged coded references to “things”, sport figures’ jersey numbers, and other coded references that the affiant claimed referred to handguns, ammunition and to trafficking in handguns;
b) When testifying in this hearing, the affiant added that having listened to the 150 intercepts, the voice on the phone of the “unidentified male” who answered calls from Mr. Smith was the voice of the same person in each of the 150 communications;
c) That they also used coded conversations regarding the sale of marijuana in most of the other 147 intercepts and that the code words in connection with the sale of marijuana were completely different than the alleged coded references to firearms;
d) Based upon the searches of the various records as set out above, together with the surveillance and other investigations conducted, the affiant believed the “unidentified male” was the applicant; and
e) The coded reference by the applicant that he was holding on to the “old Michael Jordan” was evidence to support the belief that there were reasonable grounds that the applicant was in possession of a .45 calibre firearm.
[19] The affiant stated in his ITO that in his experience, guns are commonly held for periods of time especially by those involved in the drug industry and that based upon this experience and the contents of the intercepted communications between one of the main targets of their investigation, Germaine Smith and the applicant, that he had reason to believe the applicant was in possession of a .45 mm handgun and ammunition.
Position of the Applicant
[20] Counsel for the applicant argued that the ITO contained a number of mistakes that amount to false statements and that the affiant was not sufficiently knowledgeable about the use of code words for firearms to credibly swear an ITO containing the statements he made within the ITO.
[21] In particular, counsel for the applicant alleged the deficiencies in the ITO were as follows:
a) The ITO in paragraph 4.1 indicates that the intercepts between Mr. Smith and the applicant on the three occasions in question originated from the applicant, when in fact it was Mr. Smith who called the applicant’s telephone number;
b) The affiant was not an expert in codes/slang used by firearms traffickers and as such misled the justice by suggesting he had knowledge of the meaning of the alleged coded references to sports jersey numbers as being a reference to handguns;
c) The list of coded references to handguns that had been provided to the civilian monitors of the intercepts did not contain references to sports figures or to their jersey numbers;
d) There was no logical connection to the fact that the applicant might still be holding on to a handgun nor to the fact that it was being held at the residence at 97 Rita Avenue;
e) The date of one of the intercepts was mistakenly noted in the ITO in one paragraph as having happened on February 2, instead of February 4, 2011;
f) The surveillance of the applicant did not demonstrate any connection between the applicant and Mr. Smith;
g) The affiant must have been lying on the witness stand when he claimed to have drawn the conclusion that it was the same voice on all 150 intercepts of the applicant’s phone number. Had he drawn this conclusion prior to preparing the ITO, he would have and should have informed the justice of that conclusion;
h) A different officer’s name was inserted in the Warrant to Search as the person executing the search warrant, when the Warrant was issued to the affiant by the justice;
i) That while there were references in the ITO to conversations between Mr. Smith and the applicant regarding drug dealing, there was no request to obtain a warrant to search for drugs. Nonetheless, many of the items seized and charges stemming from those items have resulted in the laying of charges regarding drug trafficking and other offences not related to firearms possession; and,
j) In his notebook, over a period of 13 days in January, the affiant had written July (this was corrected on approximately January 17th, prior to the affiant reviewing the intercepts in question). Counsel for the applicant claimed this error demonstrated an officer who was careless and lacked attention to detail.
[22] Counsel for the applicant referred to the Supreme Court of Canada Case of R. v Morelli 2010 SCC 8, [2010] 1 SCR 253, a case of a search and seizure of a personal computer, and suggested that this court should substitute the words “gun dealer” for “personal computer” in every paragraph of that decision.
[23] In essence, he asked the court to draw the conclusion that the ITO prepared by Detective Swrjeski was carelessly drafted, materially misleading and factually incomplete. In addition that the ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the applicant and that even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search.
[24] For the reasons that follow, I do not share the applicant’s interpretation of the facts and his interpretation of the legal principles that should be applied to this ITO.
[25] In Morelli, the appellant had viewed in a Web browser from his computer, pornographic images of children stored in a remote location on the internet. The Court found that this did not establish the level of control necessary to find possession, which required possession of the underlying data files in some way; whereas the viewing of images online constituted the separate crime of accessing child pornography.
[26] The ITO used to search and secure the appellant’s computer in Morelli alleged the appellant was in possession of child pornography and that the pornographic materials in question were contained inside the appellant’s personal computer. The Supreme Court determined that the search and seizure infringed the appellant’s constitutional right under s. 8 of the Charter.
Applicable Legal Principles
[27] The judge reviewing a search warrant has a more limited role than the authorizing judicial officer. The authorizing justice must be satisfied there are reasonable grounds to believe that an offence has or will be committed and that evidence concerning that offence will be found at the place to be searched. The case law is clear; the reviewing judge does not reconsider the issue of reasonable grounds and does not substitute his or her view for that of the authorizing justice. If, based on the record which was before the authorizing justice, the reviewing judge concludes that the authorizing justice could have granted the warrant then the reviewing judge should not interfere.
[28] The standard of review is set out in two of the leading cases, R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115 and R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449. The Ontario Court of Appeal has also recently summarized the standard of review on challenges to admissibility of evidence seized during a search in the case of R. v. Sadikov, 2014 ONCA 72, [2014] 305 C.C.C. (3d) 421.
[29] Justice Watt, writing for the court in Sadikov confirmed that the reviewing judge, on a facial validity challenge, is required “to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant.” (para. 37); whereas “sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content. These challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer.” (para 38).
[30] Justice Watt then noted that “The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued...” (para 38).
[31] Justice Watt summarized the standard for Warrant Review at paragraphs 83 through 88 of his reasons in Sadikov as follows:
83 Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it, in this case, Sadikov.
84 The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 84, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.
85 The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later: Morelli, at para. 43.
86 Warrant review is an integral part - a first step - in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored: Ebanks, at para. 21. In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree: Ebanks, at para. 21.
87 Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review: Garofoli, at p. 1452; and Ebanks, at para. 20.
88 It is no part of the reviewing judge's mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge's role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40.
[32] In summary, the relevant jurisprudence makes clear that my sole role as the reviewing judge is to determine whether the record contains sufficient reliable evidence that might reasonably be believed on the basis that the authorization could have been issued; not whether I would have issued the authorization.
Analysis and Discussion
[33] I find that the information contained in the amplified record, considered as a whole could support a belief based upon reasonable and probable grounds that a .45 calibre handgun and ammunition would be found in the residence at 97 Rita Avenue. The facts in the ITO were only modestly amplified by the affiant confirming that he had made an error in the date in one location of the ITO (February 2 rather than February 4, 2011), that the originator of the three telephone calls had been inverted in one paragraph; and that in addition to listening to the 150 communications between the applicant and Mr. Smith, he was of the opinion that it was the same voice using the applicant’s telephone. These errors or omissions were not material to whether or not the warrant could have issued on the ITO before the issuing justice.
[34] With respect to the ITO itself, there was sufficient information contained within the ITO that could link the applicant to both the cell phone number used in the calls between Mr. Smith and the “unidentified male” as well as linking the applicant to the home at 97 Rita Avenue. I do not find that there was anything in the ITO on these issues that was materially misleading to the justice of the peace. In fact, the affiant clearly set out the basis upon which those conclusions were made. It was open to the justice to accept them or to reject them as insufficient. The justice accepted them.
[35] Regarding the coded references to handguns and ammunition in the intercepts, counsel for the applicant alleged that the affiant was not qualified as an expert with respect to criminal slang and directed the court to the case of R. v. Abbey 2009 ONCA 624, [2009] 97 O.R. (3d) 330 (OCA). The court in Abbey addressed the qualifications required of proposed expert witnesses to provide opinion evidence about gang-related tattoos at a trial. While an important case, it is not relevant to the qualifications of an affiant of an ITO to provide their opinion regarding use of coded language used by those engaged in criminal subcultures.
[36] Counsel for the applicant was unable to direct the court to any case law that would require an affiant of an ITO to meet the same qualifications as an expert qualified to give opinion evidence at a trial. The affiant, in the ITO clearly set out his background in law enforcement and his experience in the Provincial Weapons Enforcement Unit. Based upon the ITO itself and the evidence given by Detective Swrjeski in the voir dire, I do not find there was anything materially misleading or factually incomplete in the information he provided about his knowledge and background regarding the use of coded language used by gun and drug traffickers.
[37] Detective Swrjeski was clear when he was providing his opinion regarding the references to handguns and ammunition. In cross examination on the voir dire he agreed with counsel for the applicant that the sports references used in the communications between Mr. Smith and the applicant were not listed on the possible code words provided to the monitors of the intercepts. Nonetheless, he explained very clearly how he and his fellow investigators had come to the conclusion that these references were to handguns and ammunition.
[38] I am satisfied that there was sufficient nexus to some of the language provided to the monitors of the intercepted communications to provide a basis upon which the affiant could have drawn the conclusions he did for the purpose of preparing the ITO. The fact the affiant did not disclose the absence of these sports references from the list of possible gun-related slang or code words provided to the civilian monitors was not materially misleading to the authorizing justice. It is reasonable to draw the inference that investigations of this nature evolve as information is gathered.
[39] It was accepted by counsel for the applicant that when discussing criminal activity on the telephone, those engaged in that activity will use coded references to their various activities, whether it is trafficking in drugs, handguns or other criminal conduct. In this case, Detective Swrjeski confirmed that the initial list of possible coded references was not updated as information was gathered. This however, does not discredit the opinion of an experienced officer, in consultation with the lead investigator and others in a significant, long term investigation about the possible meaning of coded references, nor does it amount to materially misleading or providing factually incomplete information to the authorizing justice.
[40] I also find that the other issues raised by the applicant regarding the incorrect date in Detective Swrjeski’s personal investigative notebook and the amended name on the Warrant to Search have no bearing on the information contained in the ITO or to the justice’s consideration of the ITO.
[41] The final issue addressed by the applicant was the matter of the seizure of items not listed in the search warrant, in particular marijuana and other drug related paraphernalia. I decline to make a ruling on this issue because the applicant did not comply with Rule 31 of the Criminal Proceedings Rules in bringing this matter before the court in his application. Rule 31 “…promotes constructive use of judicial resources and avoids surprise by requiring among other things, a written application that contains a precise, case-specific statement of the basis and grounds upon which exclusion is sought, a detailed summary of the evidence or other material upon which reliance is placed, and a statement of the manner in which the applicant proposes to introduce the evidence.” (Sadikov at para 36).
[42] The application was silent on the issue of the seizure of the drugs and related items. Counsel for the applicant did not cross-examine the affiant on his reasons for not including drugs and drug related paraphernalia in his ITO. It was only in counsel for the applicant’s submissions that this issue arose. The applicant is therefore precluded in this voir dire from claiming a breach of his s. 7 and 8 Charter rights with respect to the ITO and resulting seizure of these items.
Conclusion
[43] I do not conclude that the inaccuracies in the ITO were sufficient to find bad faith or intent to mislead by the affiant. The evidence presented by the affiant in the ITO itself contained reliable evidence that might reasonably be believed on the basis of which the warrant could have been issued. The additional evidence adduced in this voir dire merely corrected and clarified good faith errors or omissions of the affiant and was evidence that was available to the investigators at the time the ITO was sworn.
[44] For these reasons, the application to quash the search warrant is dismissed.
Madam Justice B. R. Warkentin
Released: October 8, 2015
OTTAWA COURT FILE NO.: 11A-8440
DATE: 2015/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Alexandre Lacroix
Accused
REASONS FOR JUDGMENT
Madam Justice B. R. Warkentin
Released: October 8, 2015