SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11646
DATE: 2015/10/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen (Respondent)

• and -

Andrew Bartlett (Applicant)

BEFORE: Justice A. K. Mitchell

COUNSEL: J. Hardy, for the applicant

T. Zuber, for the Crown

HEARD: September 24, 2015

RULING WITH RESPECT TO s. 24(2) charter APPLICATION

Overview

[1] The applicant, Andrew Bartlett, is charged under the Criminal Code of Canada with five counts of possession of a firearm while prohibited from doing so (s.117.01(2)), two counts of breach of the Firearms Regulations, two counts of unauthorized possession of a weapon (s. 91(2)), two counts of knowledge of an unauthorized possession of a firearm (s. 92(1)), one count of possession of a prohibited or restricted weapon/ammunition (s. 95(b)), two counts of unauthorized possession of a firearm (s. 91(1)), one count of knowledge of unauthorized possession of a weapon (s.92(2)) and, contrary to section 5(2) of the Controlled Drugs and Substances Act, one count of possession of marijuana for purposes of trafficking.

[2] On January 7, 2013 and based on information contained in the information to obtain a search warrant (the “ITO”), Detective Jeff Ordronneau of the Ontario Provincial Police, sought and obtained a search warrant for Mr. Bartlett’s residence located at 35309 Cedar Swamp Road, Parkhill, Ontario (the “residence”).

[3] The ITO contained information provided by a confidential informant (“CI”).

[4] The issuing justice issued the warrant having found there were reasonable and probable grounds to believe the applicant would be in possession of a firearm at the residence.

[5] Relying on the judicial authority of the warrant, the police searched the residence and seized, among other items: 2 cross bows, 10 crossbow arrows, 4 arrowheads, multiple rounds of ammunition, a Colt M4 carbine, a 12-gauge shotgun, and a 12-gauge barrel.

[6] The Crown did not request a judicial summary of the unredacted ITO instead conceding the redacted ITO contained insufficient grounds to support the issuance of the warrant. This concession supports a finding that Mr. Bartlett’s constitutional right to be free from unreasonable search and seizure enshrined in s. 8 of the Charter has been violated. The remaining issue is whether the evidence seized from the residence should be excluded under s. 24(2) of the Charter.

[7] By my ruling of June 8, 2015, I granted leave to the applicant to cross-examine Detective Ordronneau on the content of the redacted ITO for the purpose of obtaining amplification evidence to support his position that the evidence seized should be excluded pursuant to s. 24(2) of the Charter.

[8] Detective Ordronneau was cross-examined immediately prior to argument on the s. 24(2) Charter application. By way of amplification evidence, Detective Ordronneau confirmed that he was not the handler of the CI and that he, personally, made no attempts to verify the information supplied by the CI. All information provided by the CI was supplied to the handler, Detective Constable Teresa Streefkerk, who passed along this information to Detective Ordronneau.

[9] Similar amplification evidence was provided by Detective Ordronneau at the preliminary hearing on August 7, 2014 as follows:

(i) He did not know how many prior occasions the CI had provided information to the police;

(ii) The CI was not his source; rather, the source of Detective Streefkerk;

(iii) He did not know how many prior search warrant applications were based on information supplied by the CI to police;

(iv) He did not know on how many prior occasions information provided by the CI had led to the arrest of persons wanted on an arrest warrant;

(v) He had no personal dealings with the CI; and

(vi) The full criminal record of the CI was not disclosed to the issuing Justice and Detective Ordronneau was not provided with a copy of, did not review and did not ask for a copy of the criminal record of the CI for his review.

Should the evidence seized from the residence be excluded pursuant s. 24(2) of the Charter?

[10] An application for a search warrant is an ex parte process and therefore an affiant has a duty to the court to provide a clear and accurate record to support the requested warrant. The standard of care imposed on the affiant is high because without such a high standard the guarantee under s. 8 of the Charter would be rendered meaningless.[^1]

[11] I must decide whether to exclude the evidence obtained from the illegal search and seizure of the residence having regard to three factors[^2]:

(a) the seriousness of the State conduct violating the Charter, including the nature of the police conduct that led to the discovery of the evidence, whereby:

(i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to dissociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law;

(ii) an inadvertent, trivial or minor violation, the existence of good faith or exigency circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence;

(b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial;

(c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to:

(i) the reliability of the evidence and the extent to which it is undermined by the breach(es);

(ii) the importance of the evidence to the Crown’s case;

(iii) the notion that the discoverability of the evidence is no longer a determinative factor.

(a) The seriousness of the State conduct violating the Charter

[12] The conduct of the State falls on a continuum with the more egregious conduct justifying the exclusion of evidence under s. 24(2) of the Charter.

[13] This was not a warrantless search. The applicant does not challenge the manner in which police acted on the warrant issued with judicial authority. The conduct of the police executing on the warrant was in all respects reasonable. Moreover, the applicant does not accuse the police of fraudulently and intentionally misleading the issuing judicial authority by failing to disclose relevant facts, or providing false and intentionally misleading information. The applicant limits his argument to the conduct of the police in preparing the ITO. He argues that the affiant was so careless and negligent in his drafting of the ITO that the ITO was not only deficient but also misleading.

[14] Detective Ordronneau swore the ITO wherein he described the grounds for believing that a firearm would be found at the residence. Detective Ordronneau relied almost exclusively on information provided by the CI. Detective Ordronneau was not personally involved in the surveillance conducted in an attempt to corroborate the information provided by the CI.

[15] The Crown concedes the redacted ITO is deficient and could not in its redacted state support the issuance of the warrant; however, argues the redacted ITO is not misleading. The Crown submits that the applicant must establish the redacted ITO was misleading (although it is not necessary to show the ITO was intentionally misleading[^3]), before the State’s conduct reaches the level necessary to support exclusion of the evidence.

[16] I agree with the general proposition proffered by the Crown. To support the exclusion of evidence, the redacted ITO must contain or omit information which is materially misleading and not merely inadequate or deficient. Carelessness in preparation of the ITO will not, in most instances, support the exclusion of evidence. However, significant carelessness in the preparation of the ITO will most likely lead to the issuing justice being misled and will be considered as being on the serious end of the spectrum of state misconduct[^4].

[17] The applicant relies primarily on the decisions in R. v. Morelli[^5], R. v. Dhillon[^6], and R. v. Rocha[^7]. In each case, the court excluded evidence consisting of firearms and ammunition found after the execution of a warrant based on a deficient ITO.

[18] Of these cases, the facts in Rocha bear striking similarity to the facts here. In Rocha the trial judge was not asked to prepare a judicial summary of the unredacted ITO; rather, the ITO stood or fell on the redacted version of the ITO. The affiant of the ITO was not the handler of the confidential source; rather, the affiant relied on information supplied by the handler. The ITO did not set out the criminal record of the CI; rather, only that the CI had no convictions for perjury or fraud. The ITO contained conclusory statements not supported by a factual foundation. In Rocha the trial judge excluded the firearm and drug evidence seized from the accused’s residence having found that the redacted ITO contained no information to compel the belief that drugs and firearms would be located at the house at the time of the search. The issuing justice relied entirely on the conclusory statement of the CI that “most of the cocaine was kept at the brother’s house”. Aside from a description of the outside of the accused’s house, no information to support that conclusion was provided by the CI.

[19] I find that the redacted ITO was not only deficient due to the careless manner in which the ITO was drafted but also misleading. No particulars of the CI’s criminal record were provided. Without this information, the reliability of the CI could not be assessed by the issuing justice. Furthermore, the affiant failed to investigate the criminal record of the CI and he failed to make any attempts to verify the information provided to him by Detective Streefkerk which makes the conclusory statement that “over the last three months, police have received reliable source information that Andrew Bartlett is in possession of firearms at his residence…” unsupported by any factual basis. Detective Ordronneau admitted that his failure to investigate the criminal record of the CI was not an oversight rather was the standard operating procedure of the OPP.

[20] The surveillance conducted by the police does not corroborate the CI’s information that the applicant “is in possession of a firearm” and that “[he] fires off a firearm at the target all the time and the sounds can be heard around the whole area”. The surveillance only serves to corroborate the CI’s information to the effect that there is a target erected in the backyard of the residence.

[21] The redacted ITO does not confirm whether information previously supplied by the CI to police resulted in the issuance of a warrant that resulted in the seizure of evidence leading to a conviction.

[22] The applicant does not suggest, nor is there any evidence to support, a finding that Detective Ordronneau intentionally misled the issuing justice or acted in bad faith. Moreover, there is no suggestion Detective Ordronneau deliberately withheld material information. Despite this, the redacted ITO is misleading.

[23] Detective Ordronneau states that he has personal knowledge of the information contained in ITO (paragraph 2). Nowhere is it stated that all information of which Detective Ordronneau claims to have personal knowledge and upon which he relies was supplied to him by Detective Streefkerk. Furthermore, nowhere is it stated in the ITO that Detective Streefkerk, not Detective Ordronneau, is the handler of the CI and that the information supplied by the CI was supplied to Detective Streefkerk and not directly to Detective Ordronneau. The issuing justice was led to believe that he need only satisfy himself as to the reliability of the CI. He would not have considered the reliability of Detective Streefkerk which would have been necessary in circumstances of “double hearsay”. The reference to Detective Streefkerk in the ITO relates, only, to her involvement in conducting surveillance of the residence and not to her involvement in obtaining information from the CI. This omission is misleading.

[24] Detective Ordronneau relies on the following information provided by the CI to Detective Streefkerk: “BARTLETT fires off a firearm at the target all the time and the sounds can be heard around the whole area”. This information suggests that the CI personally observed the applicant using a firearm in the backyard near the residence; however, upon closer review the ITO does not state that the CI personally observed the applicant firing off a firearm at the target. Had the CI made this personal observation it would have been reported to the police and would have been stated specifically in the ITO. Moreover, the source of the CI’s information on this point is not stated in the ITO. At paragraph 21 of the ITO, Detective Ordronneau summarizes the information supplied by the CI as: “Source #1 indicated to police that BARTLETT is in possession of a firearm and fires the gun off at the rear of his property on a regular basis.” This statement is conclusory. The most compelling of the particulars supplied by the CI to support this conclusion are insufficient to establish the required connection between the applicant’s possession of a firearm and the residence. While the CI informed police that he or she physically saw the firearm, the CI did not inform police that he or she personally observed the firearm being fired at or near the residence or that he or she personally observed the applicant being in possession of the firearm in the residence. Without this information, the conclusory statement that the applicant fires off a firearm at the target in the backyard of the residence cannot be supported. The balance of the detailed information provided by the CI relating to the make of the vehicle driven by the applicant, the address of the residence and the existence of dogs on the property is not compelling. The reliability of this non-compelling evidence established through surveillance does not bolster the reliability of the compelling evidence supplied by the CI.

[25] Last, the CI observed the applicant in possession of a firearm sometime in 2012. The ITO was sworn and the search of the residence carried out in January 2013. There was a significant delay between the observation and the issuance of the warrant making the information supplied by the CI unreliable. Dated information cannot support the issuance of a search warrant.[^8]

(b) The impact and extent of the violation on the Charter interests of the accused

[26] The search of the residence without a valid warrant was a serious violation of Mr. Bartlett’s rights. As recognized in R. v. Silveira (1995), one’s personal residence carries with it a significant expectation of privacy. Aside from their physical person, it is hard to conceive of a place the privacy and sanctity of which one might protect more fiercely than their own home.

[27] This factor favours exclusion of the evidence.

(c) The societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence

[28] The Crown argues that the evidence seized from the residence relates to very serious offences, including the breach of an existing firearms prohibition order to which Mr. Bartlett is subject. The Crown submits that society’s interests would be better served in this instance by an adjudication of the case on its merits.

[29] Conversely, the applicant argues the third prong would be rendered meaningless if all that was required was a finding that the evidence relates to serious offences facing the accused. Mr. Hardy submits that the seriousness of the charges cuts both ways. He argues that society also has an interest in ensuring the State is vigilant in protecting and respecting an individual’s constitutionally protected rights and freedoms where a conviction in respect of the offence charged carries with it serious penalties including the possibility of a lengthy term of imprisonment.[^10]

[30] The Crown admits that exclusion of the evidence will “gut” its case against Mr. Bartlett. This was similar to the fate of the Crown’s case in Morelli where the court held that “the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private place in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued”.[^11]

[31] I adopt the views of Fish J. in R. v. Morelli, supra, at paras. 110 and 111 where he states:

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

[32] Despite the seriousness of the charges and the centrality of the evidence to the Crown’s case, the ITO is sufficiently misleading and incomplete so as to bring the administration of justice into disrepute should the Crown be permitted to proceed to trial relying on the evidence seized from Mr. Bartlett’s residence.

Disposition

[33] After considering and balancing the factors in R. v. Grant, the evidence seized from Mr. Bartlett’s residence shall be excluded.

“Justice A. K. Mitchell”

Justice A. K. Mitchell

Released: October 19, 2015

[^1]: R v. Morelli, 2010 CarswellSask 150 (S.C.C.) at para. 102.
[^2]: R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para.71.
[^3]: R. v. Morelli, supra, at paras. 58 and 59.
[^4]: R. v. Dhillon, 2010 CarswellOnt 6645 (C.A.) at paras. 51 and 61.
[^5]: Supra.
[^6]: Supra.
[^7]: 2012 CarswellOnt 13039 (C.A.).
[^8]: R. v. Dhillon, supra¸ at para. 66.
[^9]: (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.) at para.148.
[^10]: R. v. Raphael, 2010 CarswellOnt 10530 (S.C.J.) at para. 62.
[^11]: Supra, at para. 109.