ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-4348

DATE: 2015/11/24

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

DELLEN MILLARD
Applicant

B. Moodie, on behalf of the Crown

R. Pillay on behalf of the Applicant, Millard

HEARD: November 4, 2015

A. J. Goodman J.:

RULING ON Application to exclude evidence obtained from a MAY 14, 2013 telewarrant to search a 2007 GMC Yukon TRUCK

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S.648(1) OF THE CRIMINAL CODE OF CANADA AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTILTHE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS.

[1] This is an application brought by Dellen Millard (“Millard”) to exclude evidence as a result of the use of telewarrant to effect a search of his 2007 GMC Yukon truck (“truck”), as a breach of his right to be free from unreasonable search and seizure in accordance with ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”).

[2] In a previous application, I concluded that the applicant was lawfully arrested by the police on May 10, 2013 and that his arrest was not arbitrary. Specifically there was a finding that Millard’s Charter rights related to his arrest were not violated.

Background:

[3] On May 6, 2013, Tim Bosma (“Bosma”) went for a test drive in his Dodge Ram 3500 truck with two men. He never returned. By May 10, 2013, police believed the applicant was one of the two men who abducted Bosma.

[4] A constellation of factors provided the police grounds to believe that the applicant had unlawfully confined Bosma and stolen his truck. These factors include that at the time of the applicant’s arrest, Bosma had been missing for 97 hours, just over four days. He matched the description provided by Sharlene Bosma, Wayne Deboer and another witness, Igor Tumemenko. Millard’s tattoo, satchel and middle name, amongst other considerations, led police to believe the applicant was one of the men last seen with Bosma. Further, the police had reason to believe that foul play was why neither Bosma nor his truck returned. After he drove off with the two men, Bosma’s phone was quickly turned off and later found discarded. Police later learned that Millard’s personal cell phone was associated to the cell phone used to contact Bosma and Igor Tumemenko. A Crime Stoppers tip linked a vehicle with the same VIN number as Bosma’s truck observed with its interior removed at a shop in the “Twin Cities”.

[5] This and other information furnished the police with the requisite grounds to arrest the applicant. At 7:38 p.m. on May 10, 2013, the applicant was arrested for unlawful confinement and theft in relation to the disappearance of Timothy Bosma. He had been driving his truck in Mississauga at the time of his arrest.

[6] The truck was seized and towed to the Hamilton Central Police station where it was parked in the underground garage. The police chose not to search Millard’s truck incident to his arrest at that time without warrant. The police impounded the vehicle and sought a telewarrant to search the truck.

[7] In the early morning hours of May 14 2013, Detective Cattle authored an ITO in support of a telewarrant to search four vehicles that had been seized during the course of the investigation, including the applicant’s truck. The telewarrant was granted at 2:00 a.m. on May 14, authorizing a search of the truck between 7:00 a.m. on May 14 and 6:00 p.m. on May 24, 2013. At 5:20 p.m. on May 16, forensic identification officers from the Niagara Regional Police Service executed the telewarrant to search the truck, and completed their search at approximately 11:30 p.m. on May 17. As result of the search, numerous items including a key to Bosma’s truck, instructions for the Eliminator, a diary and a GPS device were seized.

Positions of the Parties:

[8] Initially, the applicant claimed the search of his truck violated his s. 8 rights in that the police did not have requisite grounds to arrest him or to seize the vehicle he was driving. In oral submissions, the applicant conceded that should this Court find that he was lawfully arrested, the within application is narrowed to the exclusive issue of whether the police use of the telewarrant procedures to obtain the search warrant to search the truck was a breach of his s. 8 Charter rights. As mentioned, that issue is now rendered moot by virtue of my November 16, 2015 ruling.

[9] The applicant submits that the telewarrant process was improperly used in this case and, as a result, the warrant cannot stand. The applicant argues that the telewarrant is facially invalid and there is no statement setting out circumstances that make it impracticable to appear personally before a justice. Moreover, since the telewarrant itself was not sought and issued until over three days after the seizure of the truck, there were no pressing circumstances in this case that warranted resort to the extraordinary provisions set out in section 487.1 of the Code.

[10] The telewarrant itself was not executed until two days after being issued. As the telewarrant that further authorized the search of the truck was defective, the applicant argues that the evidence obtained in that search should be excluded pursuant to s. 24(2) of the Charter.

[11] The Crown submits the applicant’s argument must fail. The “impracticability” threshold is not demanding. It was satisfied both by the officer’s express statement on the first page of the warrant, as well as by the totality of the circumstances disclosed in the entire ITO. The telewarrant application was made after business hours and no justice of the peace was available locally. Time was of the essence and the telewarrant procedure was validly utilized and the warrant properly issued.

Legal principles:

[12] The s. 487.1 telewarrant procedure provides for the issuance of search warrants without the personal attendance of a peace officer or, potentially, information provided in writing. To issue a telewarrant, the issuing justice must be satisfied that the information is in respect of an indictable offence; the information conforms to the requirements of s. 487.1(4) and the information discloses reasonable grounds for dispensing with an information presented personally and in writing.

[13] A peace officer may apply for a telewarrant to a justice designated for the purpose. Section 487.1(4) of the Code requires that the information submitted by the officer must include:

• A statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

• A statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable for seizure;

• A statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place of premises to be searched;

• A statement as to any prior application for a warrant under the telewarrant section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge; and,

• The information in the ITO otherwise meets the statutory preconditions to issue a qualifying search warrant (e.g. the requirements of s. 487(1)(a), (b), or (c) in relation to an indictable offence.

[14] According to ss. 487.1(5)(a) and (b) of the Criminal Code, a justice may only issue a telewarrant where, amongst other things, the justice is satisfied that: the ITO "conforms to the requirements of s. 487.1(4); and the ITO "discloses reasonable grounds for dispensing with an information presented personally and in writing”.

[15] Once issued, a telewarrant confers the same authority to search and seize as a warrant issued by a justice before whom a peace officer appeared personally. After issuing the warrant, the Justice of the Peace is required to forward the application materials as well as the warrant to the court in the jurisdiction where the warrant is to be executed.

Analysis:

[16] The sole issue in this application is whether the telewarrant was validly issued.

[17] On May 10, 2013, the police had reasonable and probable grounds to arrest Millard. On that evening, police pulled the applicant over while he was driving his truck and arrested him for offences of unlawful confinement and the theft of Bosma’s pickup truck. Incident to arrest, police seized Millard’s truck. As Millard’s arrest was lawful, there is no independent challenge to the seizure of the truck.

[18] In any Charter application, the onus is on the applicant to prove a violation of his rights on a balance of probabilities. Here, the applicant must demonstrate that the materials before the issuing justice could not satisfy the impracticability standard and the warrant consequently could not have issued.

[19] Circumstances that make it "impracticable" to appear personally before a justice is a relatively low threshold, which imports a large measure of practicality and common sense. While it demands more than mere inconvenience, the standard does not demand urgency, exigency, or that personal attendance before a justice be impossible.

[20] Regarding the warrant, the applicant’s sole complaint is that the Information to Obtain (“ITO”) did not justify the affiant not appearing personally before a justice to obtain the warrant. The applicant states that the ITO did not contain a statement of impracticability and did not disclose reasonable grounds to dispense with the requirement for personal attendance. Had the police waited a few hours, the applicant opines that presumably he would have no complaint.

[21] I observe that there is no argument before me that the materials in the ITO in support of the search of the applicant’s truck are otherwise deficient. I need not go into a lengthy recitation of the jurisprudence as to my role in reviewing the warrant. My analysis here is limited to the complaint advanced by the applicant with respect to the telewarrant procedure.

[22] The thrust of the argument raised in this application is that the ITO did not contain an adequate statement of the circumstances that make it impracticable for the affiant to appear personally before a justice as required by s. 487.1(4). As this requirement is mandatory, the warrant is necessarily invalid and could not have issued pursuant to s. 487.1(5). Moreover, the ITO does not disclose reasonable grounds for dispensing with a personal appearance before a justice as mandated by s. 487.1(5). It is submitted that these failures standing alone invalidate the warrant and render this a warrantless search.

[23] In R. v. Erickson, 2003 BCCA 693, at para. 33, Saunders J.A. observed that the term "impracticable" was "not a word commonly used as a legal standard," and suggested that, in contrast to more commonly used terms such as "reasonable, urgent, emergent, exigent, necessary, and reasonably necessary," it was reasonable to conclude that Parliament employed the word "impracticable" in s. 487.1(1) of the Code to mean "something less than impossible," and thereby imported "a large measure of practicality into the standard: See R. v. Leminski, 2011 ONSC 30. However, personal attendance based on an “impracticable” standard must be more than just mere inconvenience for the affiant: R. v Lao, 2013 ONCA 285 at para. 68.

[24] In R. v. Pavic, [2010] O.J. No. 5015 (S.C.), at para. 18, Bryant J. held:

Counsel for Pavic concedes that a justice of the peace was not available in the early morning hours of May 22, 2007 at the London Courthouse. I do not accept the position of the Applicant that an application for a warrant under s. 487.1 is limited to urgent or exigent circumstances. Counsel's interpretation is contrary to the plain or ordinary meaning of the statutory language of "impracticable to appear personally before a justice of the peace." In my view, the existence of urgent or exigent circumstances is not a prerequisite for an application for a warrant by means of telecommunication. The officer is not required to delay applying for a warrant until a justice of the peace is on duty at regular business hours. See also R. v. Robinson, 2011 ONSC 1388, [2011] O.J. No. 2527 (S.C.) at para. 23.

[25] In this application I heard uncontradicted testimony from the case manager, S/Sgt. Kavanagh (”Kavanagh”) and affiant, Detective Cattle (“Cattle”).

[26] Kavanagh outlined the nature of the complex case and the exigencies facing the investigative team at the relevant time. He described the rapidly evolving events and the requisite investigation along with the resources exigencies that he faced. Kavanagh was required to request a significant number of additional officers from the Hamilton Police organization as well as forensic identification officers from neighbouring police services. Due to urgency, he tasked another warrant writer to complete the telewarrant. The investigative team believed that Bosma was still alive at the time. Kavanagh testified that steps were taken to preserve evidence and the four vehicles were to be thoroughly searched by the forensic identification officers in priority, in seeking clues as to Bosma’s whereabouts.

[27] Kavanagh conceded that it would have been preferable to conduct searches of all vehicles expeditiously and at the same time, but inadequate forensic resources did not permit such an approach. In cross-examination, Kavanagh explained that with the nature of this investigation with the available resources, along with the need for thorough examinations, he had requested the 10-day window in order to complete these searches. He advised the affiant to seek a telewarrant as the ITO was not going to be completed in time for an appearance before a local justice of the peace.

[28] Cattle explained that he was tasked to write an ITO to seek a warrant to search four vehicles that had been seized. He had been asked to do so amongst other tasks. He explained that, as with all officers during this particular period, they had been working “literally around the clock”. Kavanagh asked him to compose the ITO for the warrant as soon as possible. Although he was able to adopt information from a prior ITO drafted by Det. Tselepakis, he testified that there was much work required and it took him from 9:30 a.m. on Monday, May 13 to approximately 10:00 p.m. that day to draft the ITO. In cross-examination, the officer testified that even if he had waited until 9:00 a.m. the next morning to appear personally before a justice, there was no expectation that he would be seen by the justice in a timely manner. In his experience, he opined that he could have waited all day to have the warrants approved. His belief was that there was a high degree of urgency to the searches of all four vehicles at the time.

[29] In his testimony, the affiant explained why he sought the issuance of a telewarrant in the circumstances of the present case. His brief statement might well have sufficed to provide the reasonable grounds to justify dispensing with the usual personal attendance and the issuance of a telewarrant, especially, as in this case there was some urgency to the request. I accept Cattle’s testimony in this regard.

[30] I also accept Kavanagh’s evidence as to the exigencies and difficulties encountered by him with respect to adequate human resources and management of the multiple ongoing warrants to be executed along with the related investigations and enquiries.

[31] In the present case, the ITO provides the necessary reasonable grounds for use of the telewarrant procedure, and with the amplification evidence advanced in this hearing, tended to show the urgency and impracticability in support of the affiant’s request to the issuing justice for a warrant to issue. The affiant stated that he had reasonable grounds for his belief that it was "impracticable" to appear before a justice "in person" to request the warrant, for the reasons outlined on the first page of the ITO, namely: “Justices of the Peace in Hamilton work Monday to Friday 9 a.m. to 4 p.m.” The ITO included a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.

[32] While there could have been additional information, based upon the contents of the ITO, the justice could have been satisfied that the mandatory legal pre-conditions were sustained for the issuance of a telewarrant. There is information in the ITO that included the statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice and reasonable grounds for dispensing with an information presented personally and in writing.

[33] Further, in my view, it would have been apparent to the issuing justice from the entirety of the materials filed that time was of the essence in this investigation, and it would be impracticable for the officer to appear personally before a justice on May 14, 2013. This context distinguishes the present case from R. v. Daniels 2015 ONSC 283 (S.C.). In Daniels, the telewarrant was marked “not urgent” and was sought in relation to a drug case. This context, as well as the absence of any specific plea as to why the impracticality requirement was met led Campbell J. to conclude that the materials failed to disclose reasonable grounds of impracticality. In contrast, the investigative context disclosed in the materials provided on this application further supported the conclusion that it would be impracticable for the affiant to appear personally before a justice. The ITO itself further detailed Bosma’s disappearance, and the wide range of efforts police had been employed in their urgent attempts to locate this missing person.

[34] In my opinion, the timing of the application for and execution of this warrant highlighted by the applicant do not support the conclusion that the issuing justice could not have found that the impracticability criterion was satisfied. When considered as a whole, the material before the issuing justice provided a basis upon which a finding that the impracticability criterion was met could be made. The ITO specifically explained that police believed the search of the various vehicles in question required a window of 10 days. Nothing in the telewarrant regime limits the scope of time for a search that a telewarrant, or for that matter, any s. 487 warrant can authorize.

[35] Further, the 10 day examination period requested in the warrant does not foreclose a finding of impracticability. Based on the evidence adduced in this hearing, the police had engaged in numerous, time-sensitive and detailed tasks related to the disappearance of Bosma. The police resources were taxed and requests were made for additional officers to deal with the multitude of investigative leads. Concurrently with the issuance of the warrant, the police were conducting detailed searches of three other seized vehicles in an order of priority and with the limited availability of forensic identification resources.

[36] The applicant also argues that it is problematic that the telewarrant was sought over three days after the truck was seized. Further compounding matters, the telewarrant was executed over two days after it was issued, on the evening of May 16 and was issued to cover a 10-day period.

[37] I do not accept the argument that the circumstances were not exigent and there was no need to dispense with personal attendance before a justice and resort to the provisions under section 487.1 of the Code. I am persuaded that the police had limited resources and had to manage the complex and rapidly-evolving investigation for the missing person. Seized vehicles were searched in investigative priority. I accept Kavanagh’s rationale with regards to the delay in actually attending to the applicant’s truck. In fact, it is not lost on me that officers from neighbouring jurisdictions had to be called in to assist with the forensic investigation.

[38] Based on the entirety of the circumstances known at the time, in my view, this was not a case of inconvenience, rather of impracticality. There is no violation of any Charter rights due to the police telewarrant request or to have delayed the forensic search of the truck or that the ITO sought a 10-day period to search the truck; or that the telewarrant was not executed until the evening of May 16, two days after it was issued.

Section 24(2) of the Charter:

[39] I have not found a breach of the applicant’s s. 8 rights. If I am in error in this assessment, I would admit the evidence pursuant to s. 24(2) of the Charter.

[40] Indeed, if the affiant’s statement regarding grounds for seeking the telewarrant missed the “impracticability” mark, it did so by a slight margin. There was information advanced to the justice that does not detract from the grounds required for issuance of the telewarrant. Indeed, this was not a situation where the affiant’s testimony was tendered before me to amplify or correct the necessary reasonable grounds justifying use of the telewarrant process, without having provided any such grounds in the original ITO faxed to the issuing justice.

[41] In R. v. Lacelle, 2013 ONCA 390, [2013] O.J. No. 2749, the Court of Appeal considered the potential application of s. 24(2) in a case where the court assumed, without deciding, that the only statement in the ITO that could have justified the use of the telewarrant procedure (i.e. "[t]here is no Justice of the Peace available at this time [9:51 p.m.])," should be excised. The Court of Appeal assumed that there was nothing in the ITO that justified use of the telewarrant process. Nevertheless, the court concluded that the evidence obtained as a result of the telewarrant search was admissible under s. 24(2) of the Charter. More particularly, with respect to the seriousness of the Charter-infringing conduct, the court stated, at paras. 11-12:

The first line of inquiry under Grant is into the seriousness of the Charter-infringing conduct. In R. v. Lao, 2013 ONCA 285, at para. 75, this court found that "the use of the telewarrant process without having adequately demonstrated that it was impractical to appear in person" did not amount to a serious Charter breach.

[42] In my opinion, the conduct of the police here demonstrates abundant good faith. The police had grounds to not only seize the applicant’s truck incident to arrest, but also to search the truck for evidence incident to arrest. By resorting to the telewarrant procedure, the affiant sought and obtained prior judicial authorization to search the applicant’s vehicle. This demonstrates that the police were mindful of the privacy interests of the accused, and sought judicial approval for the proposed search of the accused's vehicle. As Rosenberg J.A. observed in R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (C.A.) at paras. 28-29:

[a]pplying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights," and unless the applicant can show that the warrant was "obtained through the use of false or deliberately misleading information," obtaining the warrant generally "tells in favour of admitting the evidence.

[43] There is no dispute that police had grounds for a s. 487 search warrant for the applicant’s truck. In summary, if there was a breach of the applicant’s s. 8 Charter rights, it was not serious. The police did not search the vehicle incident to arrest rather, they sought a judicially authorized search warrant. Resorting to the provisions of s. 487.1 of the Code in these circumstances did not demonstrate a flagrant disregard for the applicant’s Charter-protected rights. The truth-seeking function of the trial militates in favour of the admission of this evidence. On balance, the admission of the evidence would not bring the administration of justice into disrepute.

Conclusion:

[44] In my opinion, the warrant could properly have been issued given the statement in the ITO providing the necessary reasonable grounds justifying use of the telewarrant process, and that personal attendance before a justice was impracticable.

[45] For all of the aforementioned reasons, I conclude that the police actions in obtaining the telewarrant to search the applicant’s truck did not breach his s. 8 Charter rights and the evidence is admissible at trial.

[46] The application is therefore, dismissed.

A. J. GOODMAN, J.

Released: November 24, 2015