COURT FILE NO.: 14-4348 DATE: 2015/11/16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and -
MARK SMICH Applicant
Counsel: F. Kelly & C. Fraser on behalf of the Respondent T. Dungey & J. Trehearne on behalf of the Applicant
HEARD: October 14, 15 & 21, 2015
BEFORE: A. J. Goodman J.
RULING ON OMNIBUS APPLICATION TO EXCLUDE EVIDENCE
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS
[1] In this omnibus application, the applicant, Mark Smich (“Smich”) seeks various heads of relief with respect to this prosecution by virtue of alleged breaches of ss. 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms (“Charter”).
[2] In oral submissions, the relief sought was narrowed to the exclusion of evidence as a result of a search warrant improperly obtained and subsequently executed at 1081 Montrose Drive in Oakville; an application for relief due to lost evidence, as well with regards to the alleged egregious manner of the applicant’s arrest by police. The applicant also seeks an order for the exclusion of evidence pursuant to ss. 24(1) and 24(2) of the Charter.
[3] In addition, the applicant seeks to exclude the evidence of the photo line-up conducted by the police with Igor Tumamenko (“Tumamenko”).
[4] During the course of submissions, Ms. Trehearne effectively moderated Smich’s substantive s. 10(b) breach claim; although she asks this Court to consider the manner of the police interrogation and the entire systemic pattern of alleged breaches by the police against her client and other individuals, for the exclusion of evidence under the s. 24 Charter framework.
Search of 1081 Montrose Abbey Drive, Oakville
Positions of the Parties:
[5] The applicant submits that the warranted search of his residence violated his s. 8 of the Charter rights to be secure against unreasonable search and seizure. In particular, the applicant submits that the police lacked the requisite grounds to conduct the search, and that the search was conducted in an unreasonable manner.
[6] The applicant submits that on its face, the Information to Obtain (“ITO”) did not contain reasonable grounds to believe that there was anything in the home that would meet the criteria of s. 487 of the Criminal Code. There was no basis to conclude that the applicant committed the offence in question; and, there was no basis to conclude that evidence of the offence would be found in the residence of 1081 Montrose Abbey Drive.
[7] In addition, the applicant submits that a sub-facial review of the ITO reveals that the affiant made material omissions and misstatements. The applicant submits that when the record is amplified, the reliability of the only two pieces of evidence relied upon in the ITO to connect Smich to the offence is undermined. The affiant failed to include in the ITO that the statement of Andrew Michalski, (“Michalski”) was provided when Michalski himself was under arrest for first-degree murder, and that he was released following his statement to the police. Contrary to the affiant’s assertion, Igor Tumamenko (“Tumamenko”) did not identify the applicant in a photo line-up. The photo line-up procedure was significantly flawed, which undermined its reliability.
[8] The Crown submits that the search warrant is presumptively valid and the applicant has failed to discharge his onus in that his arguments are meritless.
Legal Principles:
[9] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161 (S.C.C.) at 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[10] It is clear that with a s. 8 Charter beach application, the court reviewing a search warrant ITO does not stand in place of the justice who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of a review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99. R. v. Morelli, 2010 SCC 8, at paras. 40-42; see also R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley¸ 1993 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.
[11] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:[^1]
(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).
(2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.
(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135:
The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168. R. v. Chan, 1998 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.
(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.
(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 1991 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
[12] In the context of a search warrant ITO, the overarching principles may be summarized as follows:
(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.
(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85-87.
(3) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.).
(4) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.
(5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:
(6) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences:” R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27. R. v. Sanchez (2004), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370.
Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 1996 174 (SCC), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501;
(7) The appropriate standard of reasonable or credibly-based probability envisions a practical non-technical and common sense probability as to the existence of the facts and inferences asserted: R. v. Sanchez, 1994 5271 (ON SC), [1994] O.J. No. 2260 (Gen. Div.) at para. 29;
(8) Evidence as provided for is s. 487 of the Code includes all materials that might shed lights on the circumstances of the crime: Canadian Oxy Chemicals v. Canada (Attorney General), 1999 680 (SCC), [1998] S.C.J. No. 87 at paras. 19-23. Items sought need only have been potentially relevant to constitute evidence for the purposes of a search warrant: R. v. Witen, [2011] O.J. No. 2176 (S.C.).
[13] There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the contextual validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, overemphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.
Analysis:
[14] It is trite law that the onus is on the applicant to demonstrate that the warrant issued is invalid and that there was no basis for its authorization.
[15] My analysis is limited to the details provided in the ITO along with the evidence adduced in this application. It is not a de novo hearing and I do not substitute my view for that of the issuing justice. As referenced, the standard for review is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40, Araujo, at para. 54, Garofoli, at p. 1452.
[16] My inquiry into the admissibility of evidence is not a trial in which the truth of the allegations is explored in detail. In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, and not information that is correct or that may tend to contradict other information.
[17] The ITO spans 56 pages. Some of the salient information provided in the ITO by the affiant in support of the issuance of the search warrant includes:
On Saturday May 11th, 2013 Detective Andrea RICHARD and Constable Matthew MCLEOD of the Toronto Police Service conducted an interview of Robert BOCHENEK. The following was learned from that interview;
a. Robert BOCHENEK moved into 5 Maple Gate Court approximately 1 month ago.
b. He was living there with Dellen MILLARD and Andrew MICHALSKI. BOCHENEK rented a room in the basement and MICHALSKI and MILLARD lived upstairs.
d. Robert BOCHENEK was asked if he knew anything about the missing person and he stated that all he knew was what he read about on Facebook and what he looked at on the internet.
e. Robert BOCHENEK was asked if he knew who the suspects described in the media could be and he stated that the smaller male might be someone named “Mark”. He said he met Mark at Maple Gate and described Mark as being in his 20’s, 5’11, and a medium to thin build.
On Sunday May 12th, 2013 Detective JACKSON received a phone call from Toronto Police Constable SHAW. Constable SHAW works in 22 Division as a field intelligence officer. Constable SHAW was aware of this investigation and knew that investigators were looking to identify Mark. Through open sources on the internet Constable SHAW located a Mark Daniel SMICH associated with Dellen MILLARD. Detective JACKSON then located a Mark Daniel SMICH born August 13th, 1987 through a CPIC query.
On Monday Mary 13th, 2013 Constable Pat MITCHELL was tasked with speaking to Chris RASCH of the Canada Border Services Agency (CBSA) and to ascertain if they had any dealings with Dellen MILLARD. Constable MITCHELL learned the following;
On February 23rd, 2013 Dellen MILLARD and his girlfriend Christina NOUDGA (92/04/26) were stopped and searched at the Rainbow Bridge crossing into Canada. There [sic] vehicle had a strong odour of marihuana. MILLARD had two cell phones on him, one IPhone 4 and one Samsung Galaxy. He was asked to unlock the IPhone as it was locked and MILLARD refused. As a result the IPhone was seized.
Another text to a cell phone contact labeled “Juice” stated that “Maple Gate just got robbed” and the “gats are gone.” Gat is street slang for guns.
Constable MITCHELL then received a phone call from Detective JACKSON who asked him to have CBSA query the names of Mark SMICH born 87/08/13 and Christina NOUDGA born 92/04/26.
On Tuesday May 14th, 2013 I contacted Hamilton Police Intelligence Unit and asked for subscriber information for phone number 416-877-2790 belonging to Marlena A.
Mark SMICH was arrested and charged with Mischief on September 29th, 2012 and was released on an Undertaking and used the address of 1081 Montrose Abbey Drive in Oakville as his residence.
Paragraphs 54, 55 and 56 of the ITO address the surveillance conducted on Smich exiting 1081 Montrose Abbey Drive and 30 Speers Road.
On Sunday May 19th, 2013 I read the interview summary of a Javier VILLADA, who was interviewed by Detective Andrea RICHARD. Upon reading that summary I learned the following;
Javier said that Andrew is a good friend to Dellen and that Andrew has a small car that was getting fixed by Shane at the hanger as Shane is a mechanic.
Javier stated that he knows of a friend of Dellen’s as “Mark” with an unknown last name. Javier stated that Mark worked with Javier for once and it was only for one day because Mark wasn’t a good worker. Dellen introduced Mark to Javier. Javier further advised that Mark used to live at Maplegate with his girlfriend in the basement.
Javier asked investigators to pause the interview video as he was very concerned about his own son’s safety when talking about Mark. Javier asked that if he said anything what would happen. Javier stated that he doesn’t trust Mark. He described Mark as being 25-26 years old, tattoos, short, skinny, med build, white male, light brown hair, almost blonde. Javier stated that Mark and Andrew are the only friends of Dellen’s that he knows of.
On Sunday May 19th, 2013 I read an interview summary of Andrew MICHALSKI taken by Sergeant Mark PETKOFF on May 13th, 2013 and upon reading the summary I learned the following; (Omitted)
On Sunday May 19th, 2013 I read an audio statement summary of Matt HAGERMAN taken by Detective Dave OLENIUK and Detective Constable Patrick MITCHELL. From reading the summary I learned the following;
Of the friends, he recalled a person named Mark and that Dell hung out with him. Matt stated that Mark matched the description of the other suspect and Matt believed he had a criminal past and lived in the Oakville area. Matt stated that he was positive that Mark was the second suspect in the investigation.
Matt wanted to stress and put a “big emphasis” to look at Mark as suspect #2. He stated that Mark wasn’t known for violence by Matt but used drugs and he wouldn’t be surprised if he was violent.
On Sunday May 19th, 2013 I read a report authored by Detective Glenn FABE who attended the residence of Igor TUMANENKO on May 15th, 2013. As mentioned in paragraph 17 Igor TUMANENKO gave a description of the two men he took for a test drive in his truck. Upon reading the statement I learned the following: (Omitted)
On Sunday May 19th, 2013 I learned from Detective TSELEPAKIS that he checked phone numbers 416-877-2790 (registered to Marlena MENESES) and 647-219-7086 (registered Juice) against production order results from 647-892-3355, Dellen MILLARD’s phone.
The affiant’s grounds to believe are captured in paragraph 65.
[18] It is noteworthy that the essence of the complaint raised in this application is premised on insufficiency of information in the ITO, and to a lesser extent, misleading details, rather than excision principles The balance between inadequate and prolix details furnished by an affiant in an ITO is discussed by Nordheimer J. in R. v. Lattif, [2015] O.J. NO. 1153 (S.C.) at para. 22.
This complaint respecting the contents of the ITO represents the type of "wordsmithing" exercise that too often purports to offer the substantive challenge to an ITO. If the affiant attempts to summarize the evidence in the interests of being concise, the affiant is accused of misleading the reader. If the affiant goes into excruciating detail regarding the available evidence, then the affiant is accused of overwhelming, and thus confusing, the reader with unnecessary detail. No matter which route an affiant attempts, s/he is criticized.
[19] With respect to the relevant details known to police at the time, the evidence reveals that on May 12, 2013, a police officer who knew police were looking to identify ‘Mark’ identified a ‘Mark Daniel Smich’ through open sources on the internet as being associated to Dellen Millard (“Millard”). The officer determined that Mark Daniel Smich was born in 1987.
[20] On May 13, 2013, police interviewed Michalski. He referred to a Mark as being Millard’s friend and the affiant describes Michalski’s statement as follows: “Andrew has known Dellen for about five years and was living with Dellen at this home at Maple Gate for about five weeks; on Saturday May 4th, 2013 Michalski learned from Millard that he was planning to steal a pick-up truck. He said the motive for stealing the truck was to get a truck to tow a trailer to Mexico containing his race car”.
[21] According to the witness, on May 5, 2013 Millard showed Michalski images of trucks that were posted for sale on Kijiji and Auto Trader. Millard spoke to Michalski and said that he and Mark test drove a truck that day that was posted for sale but didn’t steal it because, according to Millard, Mark was sick. Millard asked Michalski after speaking with prospective sellers if they should steal the truck from the “nice guy” or the “asshole”. Millard told Andrew that he and Mark were to look at another truck on May 6th.
[22] Michalski spoke with Millard on May 7, and he told him that he had stolen the truck. On Friday May 10 at about midnight, Michalski received a phone call from Mark “that the cops got Dell”. Smich directed him to remove all the drugs from Dell’s homes. Michalski stated that Smich has a girlfriend named Marlena A. and provided a cellular telephone of 416-877-2790. This number was the number that had called Michalski on May 10.
[23] The applicant submits that a review of Michalski’s statement and the circumstances in which it was provided demonstrates that his credibility ought to be approached with great care and suspicion. The argument is that if the issuing jurist had known Michalski was under arrest for murder when he spoke to police, by that fact alone, whatever he said would become so incredible that it would have to be ignored.
[24] An affiant need not have a subjective belief in the veracity of the information advanced in support of the requisite reasonable grounds. The only requirement is that there exist reasonable grounds to believe that an offence has been or will be committed and that evidence about the offence can be obtained through judicial authorization. The affiant is required to set out the grounds with the basis for such belief. In the exparte application it is expected that the grounds being advanced contain all relevant information in support of the issuance of the warrant. This demand for full, fair, and frank details mandates that the affiant also provide material information that may not be supportive of the grounds being advanced. It is the issuing justice who considers the information and makes an independent decision whether reasonable grounds have been made out. Contrary to what was suggested by counsel, the issuing justice need not delve into specific findings of credibility regarding individual witnesses or sub-affiants; rather it is a consideration of the entire grounds provided in the ITO that may give rise to credibly based probability leading to supporting the issuance of a judicially authorized search warrant.[^2]
[25] Nevertheless, just because a witness is facing serious criminal charges or is in custody, it is the overall review of information provided to the issuing justice that is considered. Even discounting the absence of this information, in my view, this information did not detract from the issuing jurist’s assessment leading to the issuance of the warrant. As pointed out by Crown counsel, police advised that they wanted to speak to Michalski on video. Michalski asked to call his lawyer. Eventually, Michalski spoke to his lawyer privately. He said “I decline to talk unless I am under arrest. I won’t be going with you”. Police then arrested him and brought him to the station. Again, he spoke with counsel and was cautioned and offered duty counsel. He then provided a lengthy videotaped statement and police subsequently released him unconditionally the same day.
[26] Of significance in this application is that there is no argument the content provided by the affiant was untrue or inaccurate as to what Michalski represented to the police. According to Michalski, Millard said things to Michalski that implicated himself although it may be reasonable to conclude that Michalski’s overall information as provided to him from Millard tended to incriminate Smich. Potentially adding more detail about Michalski’s initial denial, while potentially relevant to his credibility, does not impact the fact that Michalski gave information implicating Smich to support the affiant’s grounds for the ITO. In my view, this was not a material omission and the jurist was not misled.
[27] As mentioned, the applicant submits that the police improperly relied on the results of a photo line-up to obtain the warrant to search the home. There was no positive identification of the applicant and the photo line-up procedure was significantly flawed. The applicant adds that the photo line-up cannot form grounds for the search or his subsequent arrest.
[28] On May 15, 2013, Tumamenko was shown a photo lineup including an image of the applicant at #3 of the array. Of this line-up, the affiant wrote:
TUMAMENKO selected image #3 and advises he believes this to be the person that accompanied the taller male, however he felt the male is now skinnier than in this photo. He compared the image to that of image #2 advising the suspect was skinnier in the face like image #2. TUMAMENKO signed the back of image #3 picking him out of the photo lineup as being the second male in the pickup truck.
On Thursday May 16th, 2013 I became aware from the lead investigators that Igor TUMAMENKO had picked out Mark SMICH from the photo lineup presented to him on May 15th, 2013.
Later in the ITO, the affiant repeated:
Igor TUMAMENKO identified Mark SMICH as the second person in the vehicle when they went for the test drive.
[29] Unlike Tumamenko’s detailed description of Millard, his recall of the second male did not match that of the applicant’s in some respects. The applicant is 5’11, and no witness described him as wearing or owning a red hoodie or brightly coloured shorts. Tumamenko claimed that the second male was Caucasian, 5’6, skinny, 25-30 years of age, light skinned, light brown short hair, and wearing bright coloured shorts below the knees and running shoes.
[30] When viewing Smich’s photograph, Tumamenko actually said “I believe it is this fellow but he was a little bit skinnier you know”. He compared the image to that of image #2 advising the suspect was skinnier in the face like image #2. He did eventually select photo #3, without I might add, prompting or direction from the officers.
[31] While there may be some criticisms about the procedure and completeness of the photo line-up along with Tumamenko’s qualified identification of the perpetrator, these complaints are not fatal to the issuance of the warrant. Tumamenko clearly picked Smich from the mix with some reservations in his ultimate choice. This was made reasonably clear by the affiant in the ITO. While more details could have been provided, I agree with Mr. Kelly that any omissions in drafting to make it even clearer were immaterial because a more complete description of the events would not have made a difference given that Smich’s identification is bolstered by other reliable evidence.
[32] In the context of this identification, even without advising that issuing justice that the witness was not “100% certain”, I do not find that the overall information provided in the ITO on the identification process was misleading or unfair.
[33] I do not accept that there is nothing in the ITO to specify the description of the other suspect to which another witness, Matt Hagerman (“Hagerman”) referred, nor to explain how he was positive that “Mark” was the second suspect. According to the affiant, Hagerman recalled “a person named Mark and that Dell hung out with him” and he stated that Mark matched the description of the other suspect. Hagerman claimed that he was positive that Mark was the second suspect in the investigation.
[34] The applicant submits that there is no evidence in the ITO that the applicant committed an offence, or that he was even present for its commission. With respect, I disagree. A series of points were raised in the applicant’s factum in support of this assertion. Upon due consideration, I do not find support for those arguments in my review of the ITO. For the sake of brevity I refer to several examples as provided by the applicant.
[35] The applicant says that Michalski told police that Millard told Michalski that “he and Mark” test drove a truck on May 5, 2013, and that “he and Mark” were to look at another truck on May 6. However, it is suggested that there is no evidence that “Mark” went on the 6th as Millard said was planned. In fact, Michalski said that Millard told Michalski on May 7, that “he” (Millard) had stolen the truck, suggesting that “Mark” did not go with him. Based on the totality of the information, I find that the issuing justice could have drawn a reasonable inference that Smich had in fact went with Millard on May 6, 2013.
[36] The applicant says that Wayne DeBoer stated that the second male was 5’8 or 5’9 and wore a red hoodie over his face the entire time. There is no evidence that Smich wore or owned a red hoodie. The applicant is 5’11, and therefore does not match the description DeBoer gave. Javier Villada gave general evidence that he did not “trust” “Mark” and that he feared for his son’s safety. He said he thought “Mark” was a thief. He gave no evidence of “Mark’s” involvement in any offence. Villada’s impressions and speculation were of no evidentiary value. There was no reason given as to why Hagerman was “positive” as to the identity of the second suspect, nor anything to substantiate Hagerman’s suspicions.
[37] The applicant also argues that Robert Bochenek, Hagerman and Villada told police that a ‘Mark’, who matched the description of the second suspect in the media reports, was associated with Millard. Villada stated that “Andrew” is a good friend to Millard, and that “Mark” and his girlfriend used to live with Millard in the basement of Maple Gate. Villada described Mark as being 25-26, short, skinny, medium build, white, light brown hair, almost blond. At para. 57 of the ITO, the affiant writes: “Javier stated that based on the media descriptions, he believed that Mark may be the outstanding male sought by police.” The complaint is that media descriptions referred to are not included in the ITO. I do not find that this was a material omission. In my view, all of these assertions do not detract from the entirety of the information provided to the issuing justice in support of the issuance of the warrant.
[38] The applicant persuasively stresses the distinct variations in the witness’ reporting of his height. Indeed, this is but one factor in the overall mix of identification evidence. Some of the witnesses actually knew Smich personally from prior encounters with him. While Bochenek, Hagerman, Villada and Michalski did not implicate Smich directly, they all had reliable evidence of the applicant’s involvement and timely association with Millard. Inclusion of witness confident expressions of Smich’s involvement was not improper because it had other relevance even though it may not have been entirely of assistance to prove complicity.
[39] I must disagree with the applicant in that the phone number registered to “Juice” and that had contact with the phone registered to Millard on 1172 occasions in an unspecified period of time, and 25 times between May 3 and May 16, 2013, could not ground the warrant. On February 23, 2013, Millard was stopped at the border and his cell phone searched. A text message to a contact named “Juice” stated that “Maple Gate just got robbed”, and the “gats are gone”. According to the affiant, “gats” is street slang for guns.
[40] I accept the applicant’s characterization that the text message from February 2013 from Millard to “Juice” that “Maple Gate just got robbed” and that the “gats are gone” was not evidence of the applicant’s involvement in this offence. The message was from Millard to “Juice”, with no reply. However, it is cogent evidence of an association with Millard during the relevant timeframe. The Maple Gate address in Toronto was Millard’s residence. Villada claimed that Smich was living there at the time. As to the specific dates, it is of no profound consequence to the issuance of the warrant when such evidence is being advanced to establish a link between Millard and Smich coupled with other evidence to support complicity in this offence.
[41] I find that there is also ample support before the issuing justice to suggest that “Juice” was Smich. The timely contacts by phone are some evidence of association with Millard and may give rise to evidence of participation in an offence. The fact that the affiant does not define “contact” or that the descriptions of 25 communications in a 13-day period are of no moment.
[42] The phone number of 416-877-2790 was identified by police as belonging to Marlena Meneses. The address associated with the phone account was 307 Riverside Drive, Unit 2A, Toronto. Millard owned the property at 307 Riverside Drive. The alternate phone number for that account was 647-219-7086 and was associated to “Juice”, who had an address of 1081 Montrose Abbey Drive, Oakville. This was the address the applicant gave upon his arrest for mischief in 2012. When police called the number, a voicemail message indicated the number was for “Marlena and Mark”. 647-219-7086 “showed up” on Millard’s phone 1172 times within an unspecified period of time, and 25 times between May 3 and May 16, 2013.
[43] The affiant advanced the theory that Millard and Smich were operating in tandem. With respect to the day of Bosma’s abduction, Michalski told police that Millard said that he and Mark were going to steal a truck. The next day, Bosma and his truck were “gone”. The police had information that both Smich and Millard had been familiar with guns and they were in regular phone contact repeatedly during the relevant time.
[44] On review, there is sufficient evidence in the ITO to link the identification of Smich as the possible accomplice in the abduction and murder of Bosma.
[45] The applicant submits that the ITO does not meet the requirements of s. 487 because it lacks reasonable grounds to believe that evidence of the offence would be found at the applicant’s home. With respect, I disagree.
[46] The police executed the search warrant on May 22, 2013. While the post-facto fruits of the search of the residence cannot be used to sustain inadequate grounds in the ITO, the police seized items including but not limited to the applicant’s health card; a calendar with phone number 647-219-7086 written on it, a small plastic bag containing 11 22-calibre rounds, two laptops, a bag of marihuana and the yellow and black tool box.
[47] The applicant has not chosen to lead evidence about what his subjective expectation of privacy was, or, objectively, whether his expectation was reasonable. In his factum and briefly in oral submissions, the applicant suggests the Montrose Abbey Drive home was not his residence and that the evidence suggests he lived with his girlfriend elsewhere in Oakville. If this assertion was correct, it may be questioned whether the applicant would be able to advance a s.8 breach with regards to the threshold issue of standing.
[48] However, I do not have direct evidence on the viability of an alternate residence and I and am not convinced that is truly the case. Moreover, the fact that other information exposed that the applicant may have lived or frequented the Speers Road address or other locations at various points in time, does not necessarily undermine the reliability or validity of the information and the reasonable belief held by the affiant.
[49] I do not accept the logic advanced by the applicant that even if there was evidence that he committed the offence or was present for its commission, there is no basis to believe that items relating to the offence would be found at 1081 Montrose Abbey Drive. Timely surveillance placed Smich at the Montrose Abbey Drive house. There are a variety of reasons why an individual may or may not secret evidence at his or her residence or at other locations. I have no evidence to suggest otherwise and do not jump to the conclusion that a person who has committed an offence such as forcible confinement or murder would wish to distance himself or herself from any evidence and as such, would not store evidence at home. In fact, Millard was arrested days after the alleged event with real evidence found on his person.
[50] The applicant argues that surveillance suggested that he was living at 30 Speers Road and was visiting 1081 Montrose Abbey Drive. It was suggested that Smich was seen more frequently at 30 Speers Road than at Montrose Abbey Drive. As mentioned, in my view, this observation does not detract from the grounds provided by the police to the issuing justice that evidence related to the offence may be found at the 1081 Montrose Abbey Drive or the Speers Road address. Through surveillance, Smich was seen on May 14 and 15, 2013 entering and leaving 1081 Montrose Abbey Drive, Oakville. There was more than ample evidence to sustain such a belief.
[51] Grounds are to be assessed cumulatively and the issuing justice could reasonably conclude that based on the totality of the evidence in the ITO that the applicant was the second male. The affiant had reasonable grounds to believe that Bosma was murdered and that Millard was a party to the murder and that he had a partner complicit in the act. Further, grounds supported that Smich was that partner. On my review, the issuing justice could draw reasonable inferences from the information contained in the ITO and known to the police at that time, that advance the reasonable grounds to believe that the 1081 Montrose Abbey Drive was Smich’s residence. There were ample grounds to believe that a firearm was still outstanding and that it could be found at the 1081 Montrose Abbey Drive address along with other evidence.
Manner of the Search:
[52] The applicant submits that the manner of the search of the 1081 Montrose Abbey Drive residence was violent, unjustified and a fundamental breach of his Charter rights.
[53] The police executed the search warrant on May 22, 2013. The police Emergency Response Unit entered first using a battering ram on the front door and employing a distraction device as they entered. According to the evidence, Officer King was positioned in the backyard. He saw the applicant’s mother, whom he described as “older”, in the backyard. He “hollered” for her to come to him, but she “ignored” him and went inside. The police entered the house to find the applicant’s mother coming in from the patio holding gloves and scissors. Officer Ing ordered her to put the items down and to get on the ground. The applicant’s mother was hysterical and not following the instruction. Officer Ing kicked a wooden coffee table out of the way and broke one of its legs against the fireplace. He told the applicant’s mother to sit on the couch, which she did.
[54] Following the entry, the applicant says that his mother told police that they had acted “like animals” in her home. She said if they had just come and showed her the warrant, they could have come in any time. She noted that the garage door had been open. Police were shouting and that they were “shooting” in her home. She said that she was “threatened”, and that she and her dogs were scared.
[55] I must point out that I do not have any evidence of these assertions before me in this application. Smich was not present when the search was executed.
[56] In these types of situations, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. Assessments of the police actions after-the-fact must be measured and considered when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of the accused with the requirements of safety and effective law enforcement.
[57] In addressing the police decision to forgo the customary knock and announce approach in this case, in my opinion, the manner of the execution of the warrant at 1081 Montrose Abbey Drive, and for that matter at 30 Speers Road, was reasonable in the circumstances faced by the police carrying out the search. At para. 74 of the ITO it was expressed that police were going to use the Emergency Response team in the execution of the search. The issuing justice was aware that the police were not going to knock and announce and that the circumstances warranted a dynamic entry:
Due to the level of violence used in this homicide, the nature of a firearm being used and the firearm still outstanding the safety of the public and the safety of officer’s involved with executing the arrest and search warrants are paramount. Based on the threat of this outstanding firearm members of the Hamilton Emergency Response Unit will be executing the search warrants, 1081 Montrose Abbey Drive., Oakville and 30 Speers Rd., Apartment 1106, in Oakville.
[58] It was clear to the issuing justice that the police required a dynamic entry to ensure that the firearm they were searching for was not used to injure the officers executing the warrant, or any other person inside the residence or in the immediate vicinity.
[59] The appellant submits that the police should have known more about the residence and its occupants and that, if they had, they would have made a different decision concerning the type of entry to be made. I am not persuaded by the argument. While there was surveillance conduced on Smich, the officers were not situated on the very doorstep of the house. I am satisfied that the police had no real means of knowing who, if anybody, was in the residence before executing the warrant and employing a dynamic entry.
[60] As set out in the ITO, the police believed Bosma had been murdered with a .380 calibre firearm. They had reasonable grounds to believe that Smich may be inside the residence based on continuous surveillance last placing him there the day before his arrest. They had reasonable grounds to believe he was involved in the murder of Bosma. The gun was still outstanding and Millard was in jail and did not have it. It was reasonable to conclude that Smich did have it and the warrant specifically listed the gun as an item to be seized. Going in, police faced the risk that any person inside had access to a loaded firearm and could use it with deadly consequences.
[61] Upon entering the residence, they heard a female yelling and encountered the applicant’s mother coming in from the rear patio carrying scissors. She had ignored a command to stay outside. She was hysterical and was not complying with the either of the officers’ commands, including a command to sit on the couch. She was neither touched nor arrested, and eventually complied, scissors in hand. In the course of this interaction, an officer kicked a wooden coffee table out of the way. It was necessary in the circumstances to assert control given the potential for violence and a weapon to be employed. The damage to the residence was nominal when compared to other cases involving such use of a forced entry.
[62] It is true that the police had no evidence that the applicant’s mother had any involvement in, or knowledge of, the murder. The alleged emotional trauma and psychological impact on Smich’s mother is not lost on me. The stress, inconvenience or upset to the applicant’s mother is very unfortunate; however it is not a breach of any of the applicant’s Charter rights.
[63] Clearly, the need for speed was apparent to ensure the outstanding firearm was not used and to ensure evidence was not destroyed. The police were searching for the cellphones of Millard, Smich and Menses, and any identification related to Bosma, all of which could be quickly destroyed or rendered useless. The most crucial issue of course still remained the outstanding firearm. It is common sense to consider that when police are charged with the responsibility to execute a search warrant for an outstanding firearm, they are placed directly in harm’s way and the risk of death or serious injury is great.
[64] I am satisfied that the police action in executing the warrant was necessary to ensure no one had time to access the outstanding firearm. It was reasonable to believe that someone who had deadly force at hand was in the residence. I am persuaded that given the potential that a deadly firearm was located in the residence, the police had to ensure that the occupants could not retrieve a secreted firearm. The fact that a firearm was not located in the residence does not detract from the police officers’ belief about the safety of themselves or others in the premises.
[65] In my opinion, the police executed the search warrant for the 1081 Montrose Abbey Drive residence in a reasonable manner. The police had reasonable grounds to be concerned about the possibility of violence and did not employ physical force beyond that which was required to maintain control of the premises and those occupants inside the residence during the execution of the search warrant. I do not find a breach of the applicant’s rights due to the manner of the officers’ dynamic entry into the residence.
Manner of the Applicant’s Arrest:
Positions of the Parties:
[66] The applicant was arrested by police without warrant on May 22, 2013. The applicant submits that the police lacked the requisite grounds to arrest him, and in so doing violated his s.9 right against arbitrary detention. The applicant adds that at best, the police only had a reasonable suspicion. While they might have had the grounds to detain him for investigation, they did not have the grounds to arrest him for, and charge him with first degree murder.
[67] The applicant submits that the manner of his arrest violated his right to security of the person. Specifically the applicant argues that the police used unnecessary force in arresting him.
[68] Smich told the officers who later interviewed him that he was pushed to the ground during his arrest. He suffered bruising and scratches to his face, chest, and wrist, and his knee hurt. He told police that the officers who arrested him “smashed” him and “beat [him] up”. He said his leg was under his bike. Smich can be seen on video later touching his face as if it hurts. The arresting officer noted that the applicant suffered a “small round scrape” on his cheek as a result of the arrest.
[69] The applicant also submits that in failing to preserve the basis upon which the “Feeney” arrest warrant was issued, the police violated his right pursuant to s. 7 of the Charter. The applicant adds that when Ms. Meneses was also arrested, she was also “smashed” and “slammed to the floor”.
[70] The Crown submits that the applicant has not demonstrated that the arrest was unlawful or that it violated s. 9 of the Charter. The ITO provided for the search warrant contains ample grounds to arrest Smich. The arrest grounds, however, are not limited by the ITO. Moreover, the police did not execute the “Feeney” warrant and the manner of arrest was reasonable in this case.
Analysis:
[71] I am not persuaded by the applicant’s argument that at the time of his arrest, there were insufficient grounds to believe Bosma was murdered by Millard and Smich.
[72] A shell casing with Bosma’s blood was found in Bosma’s truck, which was located in a trailer owned by Millard. Bones were found in an incinerator near Millard’s barn. Millard’s statements to Michalski demonstrate that he and Smich were intent on stealing a truck. Indeed, two men went to look at Tumamenko’s truck. One of them had an “ambition” tattoo and Millard has a distinctive tattoo. The other man, by photo line-up, bolstered by Millard’s statements to Michalski, was indirectly implicated by other witnesses and identified as Smich.
[73] Smich had regular phone contact with Millard throughout the time in question. An earlier text message with respect to stolen guns suggests they were close friends. Smich was aware of Millard’s status and there is evidence to support the inference that he wanted to ensure that certain steps were taken to secret various items, including drugs. Smich appeared to have been attempting to help Millard who had been arrested for murder.
[74] The applicant submits that the manner in which he was arrested substantially interfered with the integrity of the justice system. The applicant says his behaviour did not warrant the force used during his arrest. The fact that the officers were ‘high fiving’ each other suggests a lack of professionalism and objectivity. Further, the police detectives involved in the interrogation all made comments that suggested that the applicant was lucky to ‘get off’ with such minor injuries when it was considered what they thought he really deserved in light of what they believed he had done.
[75] I do not view the characterization of the police reaction in the same manner as the applicant suggests. Clearly, emotions ran high and the applicant was arrested without incident in what can be described as a high risk take down scenario. Given all of the circumstances known to them at the time, including but not limited to the firearm that remained unaccounted. I don’t perceive anything nefarious or objectionable in the way the officers acted when they affected the applicant’s arrest.
[76] Section 7 of the Charter is violated when there is a substantial interference with an accused’s physical or psychological integrity or with the integrity of the justice system: R. v. Pan, 2012 ONCA 581, [2012] O.J. No. 4162 (C.A.) at para. 45. When the accused makes out a prima facie s.7 violation, the burden shifts to the Crown to show that the use of force was within the limits of that permitted by s.25 of the Code: R. v. Davis, 2013 ABCA 15 at paras. 42 & 43; rev’d on other grounds R. v. Davis, 2014 SCC 4.
[77] On the evidence in this application, I do not find that there is a breach of s. 7 with respect to the reasonable grounds or the implementation of Smich’s arrest. Had I been required to consider the exclusion of the applicant’s statement to the police, the complaints raised by the applicant with regard to the manner of the interrogation may have had some materiality. However, I need not opine on that issue further as the Crown is not seeking to introduce the applicant’s statement into evidence at trial. I recognize that there remains an overarching allegation of systemic abuse and breaches of the applicant’s and others’ constitutional rights for exclusion of evidence pursuant to s. 24 of the Charter, which will be addressed momentarily.
[78] The medical evidence submitted by the applicant does not assist Smich with his allegations. It seems that the applicant may have overstated his medical condition or the injuries he alleges to have sustained as a result of his interaction with the police. I am not persuaded that his claim has merit based on the objective medical information provided in the hospital reports.
[79] I find that the applicant has not met his evidentiary onus to substantiate the alleged seriousness of his injuries due to the police actions in effecting his arrest. The applicant has not established that the police use of force during arrest was excessive, warranting this Court’s condemnation of the conduct.
[80] In my opinion, the police had reasonable and probable grounds to arrest Smich on May 22, 2013 without warrant. The applicant’s arrest was neither unlawful nor arbitrary. In any event, even if I had found such a breach, absent a finding of systemic Charter abuses, the applicant has no direct remedy available here arising from the nature of the arrest alone.
Lost Evidence:
[81] The applicant submits that there can be no justification as to why the affiant did not take steps to ensure that his proceedings before the issuing justice were recorded or, at the very least, take notes of those proceedings. The applicant submits that this information was lost due to unacceptable negligence.
[82] In addition, the applicant says that the loss of this evidence impairs his ability to make full answer and defence. In the circumstances, the applicant is forced to rely on the accuracy of the affiant’s memory, and on his truthfulness, as he recounts the grounds he put before the justice. The applicant says that he is put in this position because the affiant failed to take steps to preserve important evidence. In this circumstance, the applicant cannot meaningfully challenge whether sufficient grounds for his arrest were properly placed before the issuing jurist.
[83] In my view, this argument is without merit and I agree with the Crown on this issue. First, the police are not responsible for making the recording before a judicial officer. The failing, if any, was the jurist’s who should have kept a record of the evidence heard. Nonetheless, as I understand the jurisprudence, the factual matrix here does not give rise to a proper foundation for lost evidence with a correlative Charter remedy.
[84] More importantly, just two days before the s. 529 “Feeney” warrant, police sought the search warrant for the residence. The same jurist signed both the s. 487 search warrant and the s. 529 warrant. The fifty-five page affidavit for the search warrant sets out in detail what police knew and thought.
[85] To the extent that it speaks to companion authorizations issued by a justice, I agree with the reasoning offered by Nordheimer J. in R v. Lucas, [2009] O.J. No. 5333 (S.C.) at para. 28:
In this case, the concern about the police entering a dwelling house to effect a arrest entirely on their own initiative and without satisfying a judge that there are reasonable grounds to do so does not arise due to the fact that the police had already satisfied a judge that they had reasonable grounds to enter the dwelling house for the purposes of the search. To require the police, in such circumstances, to also obtain a companion authorization to enter the same house to arrest a person that they expect to find in that house would be redundant. It would not advance the fundamental principle that is at stake, namely, the protection of the privacy rights of the individual. Once a judge has been satisfied that the police have good and sufficient reason to enter a person's home, that core privacy issue has been resolved adversely to the person. Requiring additional authorizations to overcome those same privacy interests would be superfluous.
[86] Section 495(1) of the Code provided the legal authority for the police to conduct the arrest. Police can arrest persons who they reasonably believe have committed or are about to commit an indictable offence without warrant. Even if the jurist had no grounds for the issuance of the s. 529 warrant, or the basis for its issuance could not be ascertained, the applicant’s arrest was not unlawful as the impugned warrant was never executed. Its issuance does not suspend the rights of the police to affect an arrest without warrant.
[87] Even if I had sustained the applicant’s claim for “lost evidence” related to the ITO for the s. 529 warrant (or even the absence of an ITO) it did not impact the applicant’s s. 7 rights. As mentioned, I am satisfied that the police had their common law and s. 495(1)(a) statutory power to lawfully arrest the applicant without warrant on the public road in the Town of Oakville.
Section 10(b) of the Charter:
[88] For the sake of completeness, I will briefly address this issue. It is unnecessary to fully decide if the accused’s section 10(b) rights were violated as the Crown is not seeking to tender the applicant’s statement. It would have been necessary to discuss the issue in more detail, if s. 10(b) was violated and such violation resulted in a confession or the police discovering evidence during the search or any time thereafter or if the interviewing officer was a member of the search team at the Oakville residence; none of which exist in this case.
[89] More importantly, the interview took place 7.5 hours after police entered the home to conduct the search. It may be true that the search was not completed by the time the interview with Smich commenced. However, I am not convinced that even if a strict causal relationship is not required to exclude evidence and assuming a s. 10(b) violation; I find that it was too remote to ground a s. 24(2) exclusionary remedy regarding the lawfully seized items from the search conducted at 1081 Montrose Abbey Drive.
Section 24(2) analysis:
[90] I have not found any breaches of the applicant’s ss. 7, 8, 9 or 10(b) Charter rights with regards to the search and seizure, the applicant’s arrest or any other issue advanced in this application. If I am in error with respect to my determinations, I would have admitted the evidence seized from the Montrose Abbey Drive address pursuant to the principles enunciated in the seminal case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[91] If there was a breach of the applicant’s s. 8, rights in the search of the residence, it can be described as “technical in nature” at best. I agree with the Crown that in this case, it was inevitable that the items seized from 1081 Montrose Abbey address would have been discovered in any event after May 22, 2013. The lawful discoverability of non-conscripted, real evidence is also a relevant consideration. Society’s interest in adjudication on the merits leans towards admission.
[92] Even if there was a breach of the applicant’s rights due to an unlawful arrest, it does not attract a Charter remedy based on the totality of the circumstances related to the actions of the police in this case.
[93] The applicant also argues that the police abused or acted unfairly not only as against the applicant but towards other individuals engulfed in dealings with the police in this investigation; all giving rise to warrant this Court’s condemnation and intervention. The applicant adds that the police misconduct with respect to his mother and others implicated in the investigation discloses a systemic non-compliance with constitutional standards.
[94] Had I found a violation of the accused's own Charter rights, the concomitant violation of others rights might well have been relevant to an inquiry under s. 24(2). This could impact on the issue of the alleged seriousness of the violation, and the extent to which the court must distance itself from unacceptable police conduct.
[95] As Pommerance J. held in R. v. Muller, 2011 ONSC 4892, [2011] O.J. No. 3971 at para 91:
The case law is clear that, in order to seek a remedy under s. 24 of the Charter, an accused person must demonstrate a violation of his or her own personal rights. An accused cannot seek exclusion of evidence based on the breach of someone else's rights. For example, in Edwards, supra, the accused could not seek to exclude evidence of drugs that he had concealed in his girlfriend's apartment. The breach of her rights could not offer him a remedy at his trial. More recently, in R. v. Ramos, 2011 SKCA 63, the Saskatchewan Court of Appeal ruled that a trial judge erred in granting the accused a constitutional remedy on the basis of the fact that her co-accused's rights had been violated. The co-accused was the driver of the vehicle stopped by police and the accused was one of the passengers. The Court held at paragraph 27: "In keeping with Edwards (supra), the starting point for determining whether Ms Ramos' arrest was lawful must be the circumstances vis-à-vis her and not [her co-accused]."
[96] When alleged unacceptable police misconduct or systemic factors have not affected the accused's own Charter rights, the s. 24(2) inquiry is not engaged. A remedy under s. 24(2) must address the rights of the accused before the court.
[97] While I need address this issue further, if I was required to make a finding, I conclude that there is insufficient evidence to establish that anyone else’s rights were violated by the police; whether Michalski’s, Meneses’ or Smich’s mother for that matter.
[98] For greater certainty, I do not find any breach of the applicant’s Charter rights. Suffice it to state that I am not persuaded that there was a pattern of behaviour by the police towards the applicant personally or to others who had been the subject of the police investigation and intervention, warranting this Court’s condemnation and intervention in excluding any of the evidence seized from the applicant’s residence.
[99] In balancing all of the factors, the evidence seized by the police is admissible at trial pursuant to s. 24 of the Charter.
Photo Lineup:
Positions of the Parties:
[100] The applicant submits that not only could the photo line-up with Tumamenko not form grounds for the search or his arrest, but the results of the photo line-up should be ruled inadmissible and not be permitted to go before the jury. The applicant submits that the photo line-up procedure was significantly flawed, rendering the results wholly unreliable and inadmissible. In particular, it is submitted that, although the officer gave the witness the photos sequentially, he did not retrieve each photo after the witness looked at it, instead allowed the witness to keep the photos and look through them repeatedly and compare them.
[101] The applicant argues that the danger of asking a witness to choose from an array rather than showing the witness the photos sequentially is that the witness may choose from the array the picture that is the best fit. Tumamenko compared all the photos and picked the closest one. The problem was exacerbated by the fact that the officer told the witness that the suspect was among the photos being shown to him. This was further exacerbated by the officer’s clear desire to have the witness positively identify someone from the photo line-up, and his implicit urging of the witness to do the same.
[102] The applicant submits that the interaction with Tumamenko was not videotaped from the outset, which is required to provide the trier of fact with valuable information to assess the reliability of the identification. One officer remained off camera for the entire interaction. The applicant submits that the flaws in this case provide for judicial condemnation of the process and that this Court ought to exercise its discretion to exclude the photo line-up evidence. The photo line-up process was so tainted that the identification had no probative value.
[103] The Crown submits that information provided by Tumamenko was instrumental in the police narrowing in on Millard as a prime suspect in the disappearance of Bosma. The Crown argues that the procedure was not flawed and the guidelines in Sophonow were followed. If there was any deviation from the Sophonow guidelines, they were insignificant. In sum, the issue surrounding the photo line-up is a matter of weight and not admissibility.
Analysis:
[104] Tumamenko, like Bosma, had placed an ad online in the Kijiji classifieds and Auto Trader to sell his truck, one essentially the same make and model as Bosma’s truck. He made arrangements with someone by phone on Saturday, May 4 to come see his truck for a test drive the following day.
[105] On May 5, two men arrived at Tumamenko’s residence to test drive his truck. Most of the time Tumamenko spoke with the “taller guy” (who the Crown says is Millard). Tumamenko described the other person in the back seat of the truck as shorter in stature (who the Crown alleges is Smich). The taller guy sat in the front seat with Tumamenko.
[106] Some of the authorities relevant to my assessment include but are not limited to R. v. Hanemaayer, 2008 ONCA 580, R. v. Guzman, [2010] O.J. No. 4704 (S.C.), R. v. Miaponoose, 1996 1268 (ON CA), [1996] O.J. No. 3216 (C.A.), R. v. La (1997), 1997 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.), R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199 (C.A), as well as the report from “The Inquiry Regarding Thomas Sophonow”, Peter deC. Cory, (2001), Recommendations, “Photo Pack Line-Up”.
[107] In R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 51 & 52, Arbour J. on behalf of the majority of the Court stated:
The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented. Most recently the Honourable Peter deC. Cory, acting as Commissioner in the Inquiry regarding Thomas Sophonow, made recommendations regarding the conduct of live and photo line-ups, and called for stronger warnings to the jury than were issued in the present case (Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) ("Sophonow Inquiry"), at pp. 31-34).
While it is unnecessary to consider these recommendations in detail, I share the concern expressed by the Commissioner and, in this particular case, I think it would have been prudent to emphasize for the benefit of the jury the very weak link between the confidence level of a witness and the accuracy of that witness (Sophonow Inquiry, at p. 28).
[108] The Sophonow Inquiry Report was released 12 years prior to this investigation. It is appropriate to argue that in this era, there can be no excuse for any fundamental flawed procedures in the use of a photo line-up that does not adhere to the guidelines of the Sophonow Report. Even Crown counsel acknowledges that the Sophonow recommendations represent the best practices for photo line-up procedures. They are sage guidelines, not binding in law, but nonetheless ought to be followed by the police organizations on the issue of identification of suspects. Clearly a failure to adhere to these recommendations may result in a court excluding evidence of photographic line-ups in the proper case.
[109] On May 15, Tumamenko viewed a photo line-up, which included Smich in the array. Having reviewed the video of the photo line-up procedure and the evidence adduced during this application, I agree with the Crown that the many factors support the integrity of the process consistent with the recommendations set out in the Sophonow report. I am persuaded that the police followed the recommendations or at the very least, the spirit and intent of the Sophonow guidelines. Despite this, even if police in this case did not achieve perfection with the process, in my opinion, they nonetheless adhered to the vast majority of the recommended best practices.
[110] I have already addressed, in part, the issue of the integrity of the photo line-up conduct by the police earlier in these reasons. From my review of the transcripts and the materials filed, it appears that the entire procedure was videotaped; the officer conducting the line-up was not the officer in charge of the case and did not know the actual suspect. According to the police notes filed in this hearing, the second officer also did not know the suspect. For the most part the photos were viewed and reviewed sequentially.
[111] I note that nowhere in the jurisprudence is it suggested that an accused has a constitutional right to have a photo line-up procedure conducted in a sequential manner versus an array.
[112] It is speculation to suggest that Tumamenko may have made no identification if he had not been told that the suspect was among the photos and if he had not been encouraged to make such identification. The police did not fail to videotape the interaction and the process of showing him the array of photos. Similarly, it is conjecture to suggest that comments were made before the video was turned on, to influence the witness.
[113] Tumamenko selected photo # 3 from the photo line-up, although he was not 100% certain. Admittedly, he also focused on Image 2, a person he described as “they look like brothers definitely”. Ultimately, he settled on photo #3, which turned out to be Smich. Tumamenko signed the photographic line-up procedures form acknowledging he understood the directions given to him by police and he agreed with his description as drafted by the officer. The officer’s notes as to Tumamenko’s description and selection of the photograph were fair. It reflected what Tumamenko stated including his qualification of the identification of photo #3.
[114] Ms. Trehearne suggests in argument that the second officer who was off-camera may have influenced or directed Tumamenko to select a certain photo from the mix. Having reviewed the video carefully along with the instructions provided and directions during the selection process, I do not find support on the evidence adduced in this hearing in that respect. The twelve photos were, for the most part, submitted to Tumamenko sequentially, rather than as an array; and he was told he was under no obligation to make an identification. However, it appears that the witness took control of the photographs and placed them in a pile and was permitted to review his identification of the suspected culprit. That being said, I am not convinced that it tainted the results or rendered the entire process unfair.
[115] There is some validity to the complaint about the introductory comments to Tumamenko in that he was told that the suspect was in the group. However such confusion was allayed by a subsequent comment from Detective Fabe who stated: “I want you to look at each one carefully, remembering that the person you described may or may not be present in the group…”
[116] In Miaponoose, at page 4, the Court of Appeal noted that the case against the accused rested wholly on the correctness of the complainant's identification evidence ... "particularly since there is not a single item of confirmatory evidence which could minimize the inherent dangers of the eyewitness identification of the appellant."
[117] That situation is entirely dissimilar to the case before me. From my review of the videotape, it appears that Tumamenko may have had some qualifications as to his ultimate selection but his confidence in his choice did not appear to waiver or approach the same level of concern raised in Hibbert. In this context, I do not find that Tumamenko had difficulty with his memory or recollection. In fact, one could argue that his powers of observation appear to be well honed.
[118] Finally, the applicant argues that a number of the males in the other photos bear little resemblance to him and he is the only one smiling in his photo. This clearly distinguished him from the males in the other photos. I do not find that photo #3 was so remarkable from the others. As Mr. Fraser pointed out, other photographs in the array also had some subtle distinguishing features. Overall, I am not persuaded that there was an overt or tacit design by the police to employ these particular photographs, in order to promote selection of the impugned photo. The process was not set up to ensure Smich was purposefully selected.
[119] I also agree with the Crown attorney that there is confirmatory evidence in support of the photo line-up. Michalski’s anticipated evidence will include that on May 5, he was at Millard’s residence and both Millard and Smich were present. In the presence of Smich, Millard told Michalski that he and “Mark” had test drove a truck that day but they didn’t steal it because Mark was sick. Millard also told Michalski on this day that “they” would be looking at a truck on May 6. On May 7, Michalski was told by Millard “they” had stolen a truck. After Millard’s arrest, Michalski had direct dealings with Smich to dispose of a tool box and some drugs.
[120] The question of photographic line-up evidence was canvassed in R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, wherein Major J. for the Court opined:
Photographic line-up evidence, while worthy of a cautionary instruction to the trier of fact similar to that of that required for unsavoury witnesses, does not fall into the category of evidence which necessitates a threshold voir dire to determine its admissibility. Therefore, unlike confessions and "other discreditable conduct" (formerly "similar fact") evidence, it is an error to weigh identification evidence independent of all of the other evidence presented in the case. Therefore, in cases where identification evidence is presented and the issue in the trial is the identity of the perpetrator, this evidence must be looked at in the context of all of the other evidence. Concerns regarding the strength or quality thereof may adequately be compensated for by other evidence presented in the case: See also R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345 (S.C.C.), Miaponoose, (Ont. C.A.)
[121] At para. 18 of White, Major J. went on to state: “it is well settled that the criminal standard of proof applies only to the jury’s final determination of guilt or innocence and it is not be applied to individual items or categories of evidence.”
[122] It is settled law that competing inferences are a matter of weight not admissibility. To the extent the defence ably challenges the photo line-up; I agree with the Crown that it is properly a matter of weight. Both Tumamenko and Detective Fabe will be available for cross-examination to test their evidence on the integrity of the process.
[123] This identification evidence supports an available inference that Millard and Smich were together on May 5 looking to buy a truck. It is but a piece of circumstantial evidence and the defence is free to challenge this assertion and invite the jury to draw different inferences. At the end of the day, it will be for the defence to argue tainting, or whatever any other inferences that the jury ought to draw to suggest that this witness was in error or misidentified Smich, along with my instructions, if necessary, on the well-established principles of the frailty of identification evidence.
Conclusion:
[124] In my opinion, the applicant has failed to displace the presumption of a valid judicially authorized search warrant obtained and executed at his residence located at 1081 Montrose Abbey Drive in Oakville. I find that the manner of the search was reasonable in the circumstances that arose in this case. The evidence seized by the police at the Smich residence at 1081 Montrose Abbey Drive in Oakville is admissible in this trial.
[125] The police had the reasonable and probable grounds to arrest Smich on May 22, 2013. On the evidence adduced in this application, I am not persuaded by the applicant that there was excessive force employed by the police. The applicant’s arrest at the roadside was lawful and not arbitrary in nature. I do not find a breach of his Charter rights.
[126] As mentioned, I do not find a systemic pattern of misconduct exhibited by the police towards the applicant or a disrespect for his constitutional rights warranting this Court’s intervention under the relevant Charter principles.
[127] The photo line-up conducted by the police with Tumamenko is admissible and will be subject to the jury’s consideration as to its ultimate weight in the totality of the evidence to be considered at trial.
[128] For all of the aforementioned reasons, Mr. Smich has failed to establish, on a balance of probabilities, that his ss. 7, 8, 9 or 10(b) Charter rights had been breached. The application to exclude evidence pursuant to s. 24 of the Charter is dismissed.
A. J. GOODMAN, J.
Released: November 16, 2015
COURT FILE NO.: 14-4348 DATE: 2015/11/16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
MARK SMICH Applicant
RULING ON OMNIBUS APPLICATION TO EXCLUDE EVIDENCE
A. J. GOODMAN, J.
Released: November 16, 2015
[^1]: I refer in part to Hill J.’s comprehensive analysis of the applicable law in the case of R. v. Ngo, [2011] ONSC 6676. [^2]: There is a distinct analysis with respect to a review of an ITO where a confidential informant provides information. This consideration does not arise in this case.