Superior Court of Justice
Her Majesty the Queen
v.
Alan Joseph Quesnel
Reasons for Ruling (on Voir Dire)
Before The Honourable Justice R. Pomerance
on June 2, 2016 at WINDSOR, Ontario
Appearances:
E. Brown Counsel for the Crown A. Bradie Counsel for the Accused
Table of Contents
Witnesses:
Exam. in-Ch. Cr- exam. Re- exam. No witness gave testimony during these proceedings
List of Exhibits
Exhibit Number Entered on Page No exhibits were entered during these proceedings
Transcript Ordered: June 2, 2016 Transcript Completed: June 6, 2016 Ordering Party Notified: June 7, 2016
Ruling
Wednesday, June 2, 2016
COURT REGISTRAR: Her Majesty the Queen and Alan Joseph Quesnel.
Reasons for Ruling on Voir Dire
POMERANCE J. (Orally):
On January 10, 2014 police executed a search warrant at the accused’s residence looking for, among other things, a firearm and a cell phone. The officers seized a gun, shell casings and surveillance equipment. The accused argues that the warrant was invalid, that police violated his rights under s.8 of the Charter and that the evidence should be excluded under s.24(2). I agree for the following reasons.
Overview and Backdrop
On January 6, 2014 the complainant called Amherstburg police to report a mischief. It was alleged that the accused had willfully damaged his car. Officer Wylie went to investigate at which time the complainant told him about an earlier incident in which the accused had threatened him with a gun, placing it inside his mouth, and had taken his cell phone. This was said to have occurred in the accused’s home. On the strength of this information police sought a warrant for the accused’s residence to look for a gun, the cell phone and other items.
Officer Burany was tasked to draft the ITOs and warrant. The first warrant was submitted to a Justice of the Peace on January 9, 2014 but was denied. The justice ruled that there were insufficient grounds to believe that the gun and cell phone would still be in the accused’s residence five days after the alleged incident.
Officer Burany sought a second warrant by telewarrant on January 10, 2014. He had supplemented the grounds as they related to the location of the items to be seized. The telewarrant issued and was executed that same day.
The Crown seeks to tender the seized evidence at the trial on the basis that it will confirm the complainant’s testimony.
The accused is charged with various offences including mischief, point a firearm, weapons dangerous, threats to cause death, assault with a weapon, robbery and possessing a firearm without a license.
The accused challenges the validity of the telewarrant authorizing the seizure of items in the accused’s residence. He also argues that the first warrant was defective. While the first warrant did not directly lead to the seizure of evidence, it is part of the investigative chronology and is relevant to the analysis under s.24(2). I must determine four issues:
- Did the ITO set out sufficient grounds for believing that the things to be seized would be at the designated location?
- Was the first warrant process defective because of the failure of the officer to swear the ITO?
- Was the second warrant process defective because the preconditions for obtaining a telewarrant were not met?
- If s.8 was breached, should the evidence be excluded under s.24(2)?
I will deal with each of these in turn.
Grounds to Believe That Items Were in the Residence
The accused argues that the ITO did not disclose sufficient grounds for believing that the items to be seized would be in the accused’s residence. As noted above, the justice who received the first application refused to issue the order on this basis.
The defence argues that the additions to the second ITO did not ameliorate the problem. While it is not my role to review the dismissal of the first warrant application, I do not necessarily agree with the justice that the grounds were insufficient. The question is whether there were reasonable grounds to believe that the firearm, presumably owned by the accused, and the cell phone allegedly taken from the complainant would still be in the accused’s residence five to six days after the incident.
The test for reasonable grounds to believe is not a mathematical formula. It does not equate with balance of probabilities, 51 percent or even a prima facie case. Rather, reasonable ground flow from credibly based probability. As it was put by the Supreme Court of Canada in Hunter v. Southam Inc.:
“The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly based probability replaces suspicion.”
Reasonable grounds exist when the fact in issue is reasonably probable. In this case, it was reasonably probable that the gun and the cell phone would still be in the accused’s residence despite the passage of some days. It was, of course, possible that a person might move or dispose of a firearm after threatening someone with it, but any number of scenarios are possible. The possibility of removal did not displace the probability that the gun would still be there.
This is not a case involving transient evidence which is likely to disappear by reason of the passage of time. It is not a case involving items which are the subject of trafficking or otherwise expected in the normal course to be transferred. With all due respect to the justice, I am not convinced that the grounds in the initial ITO were deficient.
The grounds were supplemented in the second ITO. There was some uncertainty about this process. The new ITO contained information about the complainant’s statement, namely, that he had seen a gun before in the accused’s residence. Officer Burany could not recall where he got this information from nor could any of the other officers explain how Burany learned of this.
Officer Burany did not watch the videotape of the statement and the video summary did not refer to this assertion. The officer who took the statement denied giving the information to officer Burany.
While there is no indication as to how the information came to light, there is no question about the accuracy of the information. The statement in question was indeed made by the complainant though there was some question as to when the earlier sighting had occurred.
In any event, even if the new grounds were excised from the ITO I would find that the remaining averments were sufficient to establish reasonable grounds to believe that the items would be found in the residence. I do not find the warrant to be defective on this basis.
Failure to Swear the First ITO
The first ITO purported to be sworn by Officer Burany on January 9th. Officer Burany testified in chief that he began preparing the ITO on the 6th and that he finished it on January 9th swearing it on that day. According to the face of the document, the oath was administered by Margo Purdy, a clerk with the Amherstburg Police Service and a Commissioner of Oaths.
During examination of the officer, it came to the attention of counsel that Officer Burany had not been at work on January 9th, rather, that was his day off. Defence counsel did not know this in advance because Officer Burany had edited his notes blacking out the reference to the fact that he was on leave on January 9th. All of this came to light when counsel took the opportunity to examine the Officer’s notebook. As it turned out, another portion of the notes which the officer had redacted was also relevant. The officer had redacted notes about being instructed to investigate a commercial premise owned by the accused in London.
Once it was discovered that the officer was not working on January 9th, this raised some perplexing questions. How could the officer have sworn the ITO on January 9th if he was not at work that day? Officer Burany was not able to explain the discrepancy between his testimony and his notes. Nor was he able to offer any explanation for why he had redacted the notes pertaining to January 9th or the reference to investigating the commercial premise. Officer Burany acknowledged that he was personally responsible for all redactions to his notes.
The mystery was solved when the clerk from the Amherstburg Police Service testified. The clerk had signed the jurat purporting to administer an oath to Officer Burany on January 9th, 2014. Ms. Brown, acting in the highest traditions of the Crown, called the clerk to testify once the discrepancy about January 9th came to light. Neither she nor Mr. Bradie knew what the clerk would say until the witness was called to the stand and asked the relevant questions.
The witness testified that she had been the clerk for the Amherstburg Police Service since 1999. She is a notary public and throughout that time was responsible for administering oaths on ITOs. There was, however, a significant problem; she had never actually administered an oath to officers signing ITOs. She testified that from time to time an officer might happen to say “I so swear” when signing the document but she never required that and she never asked the officer whether the contents of the document were true and accurate. She would simply sign the jurat. In many instances the clerk did not even witness the officer’s signature on the ITO. She testified that officers would often leave their completed ITOs in a basket at the end of the day and she would sign them the next morning in the officer’s absence.
The clerk acknowledged that she knew that this was not proper procedure. She knew that the documents were supposed to be sworn with the proper oath administered. She testified that this procedure was disregarded in the interest of expediency.
In light of this evidence and the discrepancy between Officer Burany’s notes and his trial testimony, I find as a fact that Officer Burany signed the ITO and left it in a basket for the clerk when he left work on January 8th. The clerk received the document on January 9th and signed the jurat in Burany’s absence. The police then arranged for the document to be brought to a justice in Windsor.
The clerk was very candid in her testimony. The practice that she described is startling and disturbing. One of the central premises of prior judicial authorization is that a neutral judicial arbiter is to receive information on oath. This is reflected in the statutory language of s.487 of the Criminal Code as well as other warrant provisions. It is required in order to forge compliance with s.8 of the Charter. The requirement of information on oath was acknowledged by the Supreme Court of Canada in its seminal decision in Hunter v. Southam Inc. in which the court stated:
“In cases like the present, reasonable and probable grounds established upon oath to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s.8 of the Charter for authorizing search and seizure.”
The requirement of the oath is a longstanding and elementary feature of warrants. The solemnity of the oath or affirmation, as the case may be, is required to ensure that the officer is attesting to his or her sincere information and belief before a warrant is acted upon to invade a citizen’s right of privacy. That critical element is missing in this case. Officer Burany never swore the first ITO. He signed it and it was signed by the clerk the next day. The absence of an oath or affirmation would render the first ITO, and if a warrant had issued, the warrant to be fatally defective. I will address the implications of this finding when I come to deal with s.24(2).
The Second ITO: No Grounds for Use of a Telewarrant
The second warrant was sought on January 10th. Officer Burany availed himself of the telewarrant system. In so doing, he swore that it was impracticable to appear before a Justice of the Peace in person. He typed onto the preprinted form that “a Justice of the Peace is not available at the time the application for the warrant is being made.” The warrant issued shortly after noon that day and was executed later in the afternoon. Officer Burany testified that he had been told that no J.P. was available by Officer Capelcure.(ph) He further testified that this was consistent with his belief as he had on a prior occasion been told that J.P.s in Windsor do not review ITOs on Fridays.
While Officer Burany attributed this information to Officer Capelcure, Officer Capelcure did not speak of this in his testimony. To the contrary, he testified that he became involved in the second warrant only upon learning that it had been issued. It was then that he arranged a briefing for the executing officers.
Officer Wylie testified that at 10:30 a.m. on January 10th, he was told that he would be travelling to Windsor with Officer Burany to take the warrant to a justice. His notes indicate that he did not go to Windsor but instead was dispatched to other duties. According to Officer Burany, he learned on the morning of January 10 that he was required in traffic court that afternoon, something that he had not previously been aware of. His attendance in traffic court would likely have prevented him from taking the ITO to Windsor himself to wait for it to be reviewed.
I do not accept Officer Burany’s testimony. I do not accept that he was told by Officer Capelcure that there was no J.P. available. There is no evidence to support this assertion. The testimony of Officer Capelcure implicitly contradicts it. I am assuming that, had Officer Capelcure made an inquiry about such availability, he would have recorded it in his notes as an important event relating to a precondition for the warrant. Yet there was no note of this. Nor did the officer offer any such evidence in his testimony. Nor was any other evidence led to suggest that there was no justice in Windsor available to review the warrant. Certainly, there was no evidence to support the notion that justices in Windsor do not review search warrant informations during business hours on Fridays.
Officer Burany has already been shown to be an unreliable historian. I refer here to the discrepancy between his testimony and his notes regarding January 9. I am not prepared to base a factual finding on this officer’s word alone. Why did the officer seek a telewarrant? I find that this was done because it was easier than travelling to Windsor. As January 10th unfolded, it became increasingly inconvenient for an officer to drive the warrant package to Windsor. The initial plan was that Officers Burany and Wylie, would take the application. However, Officer Burany learned that he was in traffic court that afternoon and Officer Wylie was dispatched to other duties. The officers had already driven to Windsor the day before with the first warrant package.
Inconvenience is not enough to justify resort to a telewarrant. It must genuinely be impracticable to attend personally. (See R. v. Daniels, 2015 ONSC 283, R. v. McKenzie, 2016 ONSC 245 and R. v. Clark, 2015 BCCA 488.) In this case, it was not impracticable. I find that contrary to the assertion in the ITO, there was no basis for the assertion that a Justice of the Peace was not available. I do not make that finding lightly; I base it on the evidence and lack of evidence in this case.
I have considered the evidence regarding the submitting of unsworn ITOs. This was done despite the fact that it contravened proper procedures. It was done in the name of expediency. It is not a great leap to think that other shortcuts might also have been taken for the same reason. This would include resort to telewarrants when it was merely inconvenient or undesirable to attend personally before a justice. One of the statutory preconditions for the telewarrant was not met. The warrant is accordingly invalid. In the result, the seizure was effected without the authority of a valid order. The warrantless seizure resulted in a violation of the accused’s rights under s.8 of the Charter. I will now turn to s.24(2).
First Inquiry: Seriousness of the Charter Infringing Conduct
On a superficial level, the breach in this case might not seem particularly serious. The officers took steps to obtain prior judicial authorization. The use of a telewarrant rather than an in-person warrant does not change the fact that a warrant was obtained. In the normal course, failure to meet the impracticability standard in s.487.1 of the Criminal Code would not require the exclusion of the evidence (see example R. v. Daniels), but the problems run much deeper in this case.
Here, I must consider the investigative chronology as a whole including the process underlying the first warrant application. The second warrant is temporally and tactically linked to the first warrant application. That application was marred by a serious systemic defect. The ITO was not sworn and the evidence established that it was the general practice of this police service to submit ITOs that were not sworn. This is an extremely serious contravention of the statutory and constitutional requirements of a warrant. The routine nature of this practice, which has been ongoing since 1999, has serious implications for the administration of justice.
The clerk candidly testified that she knew that she was violating the rules. She did not testify about whether officers were aware that they were violating the rules, but I must presume that they were. Again, the requirement of information on oath is not a novel proposition, it is fundamental. Certainly Officer Burany, who took a warrant-writing course, would’ve been well aware of this requirement.
This then raises the next question: Why was it that Officer Burany redacted his notes to remove reference to the fact that he had a day off on January 9, the very day that the ITO purported to be sworn? The officer could not explain why he redacted that portion of his notes. Did the officer redact that information in order to conceal the fact that he had not properly sworn the ITO? Did he redact that information so as not to reveal that the ITO was left in a basket for the commissioner to sign in his absence the following day? It is difficult to contemplate any other reason for the redaction and none was authored by the witnesses.
If this was part of a calculated effort to mislead counsel and the court, the gravity of the situation is self-evident. So too is the deception inherent in the ITO process itself. The clerk in this and apparently every other instance, signed the jurat on the ITO. The jurat asserts that an oath has been administered. In this case it read, “Sworn before me at the Town of Amherstburg this 9th day of January, 2014.” The document was signed by the clerk and stamped with her commissioner’s stamp. This explicitly and erroneously conveyed that the oath had been administered. An issuing justice would have every reason to believe that proper procedures had been followed. Thus, the practice of not swearing ITOs was made even more serious by the fact that the ITOs purported to be sworn. The documents concealed the very defect that rendered them to be invalid. It was only fortuitous that this was even discovered in this case. Were it not for the unusual nature of the evidence and the disparity between Officer Burany’s notes and his testimony, the offending practice might never have been exposed.
The breach flowing from the second warrant is similarly very serious. I have found that the officer did not have a basis for asserting that a justice was not available. I have found that the officer resorted to a telewarrant for reasons of inconvenience and concealed the true state of affairs from the issuing justice.
The decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 dictates that I consider long term consequences of the Charter violation. This includes consideration of systemic factors. It is not acceptable for police officers to pick and choose from the rules governing the warrant process. Far less is it acceptable to conceal the extent of this selective compliance. The breaches in this case were the product of, at best, an intolerably casual approach to the warrant process and at worst, a deliberately deceptive approach. In either instance the first inquiry strongly favours exclusion of the evidence.
I note the recent decision of the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389 in which Laskin J.A. ruled in connection with s.24(2) that officers should not be entitled to benefit from their own dishonesty. In paragraph 102 he stated the following:
“Second, the police’s dishonest testimony about the arrest, though not an element of the Charter breach itself, is relevant to the first Grant factor. In my view, the trial judge understated its impact. The Supreme Court’s decision in R. v. Harrison, 2009 SCC 34 is directly on point. In that case at paragraph 26, the Supreme Court endorsed the observation of my colleague Cronk J.A. in her dissenting reasons in this court:
The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s.24(2) of the Charter. Few actions more directly undermine both of those goals in misleading testimony in court from persons in authority.”
The Second Inquiry: Impact on the Charter Protected Interests of the Accused
The warrant permitted a search of the accused’s residential dwelling. This is a sacrosanct sphere of privacy second only to bodily integrity on the s.8 hierarchy. The unauthorized search of a dwelling is by necessity a breach that has a significant impact on privacy rights. The second inquiry favours exclusion.
The Third Inquiry: Society’s Interest in Adjudication on the Merits
There are competing interests at play on this inquiry. On the one hand, the evidence seized by the police is reliable real evidence. On the other hand, this evidence is not the lynch pin of the Crown’s case. To exclude the evidence would not result in a termination of the proceedings. The Crown wishes to use the evidence to support the testimony of the complainant. Even if the evidence is excluded, the Crown can call the complainant to testify to the events giving rise to the charges. On balance, I find the third inquiry to be of neutral effect.
Overall Balancing
After balancing all three inquiries I find that the admission of the evidence seized from the residence would bring the administration of justice into disrepute. The Supreme Court of Canada in R. v. Grant directed that I consider long term consequences and the need to maintain Society’s confidence in the justice system. As in R. v. Pino, this is one of those cases in which the court’s need to disassociate itself from the police conduct is greater than Society’s interest in having the corroborative evidence admitted at trial. Therefore, I exclude the evidence seized from the accused’s residence including the firearm, the shell casings and the surveillance system.
Certificate of Transcript
Form 2
Evidence Act, subsection 5(2)
I, Agnes Dickson, certify that this document is a true and accurate transcript of the recording of H.M.Q. v. Alan Quesnel, in the Superior Court of Justice, held at 245 Windsor Avenue, Windsor, Ontario, taken from DRD recording number 0899-245-CRTRM2-20160602-113625-10-POMERAR, as certified in Form one.