CITATION: R v. Ranglin 2016 ONSC 3972

COURT FILE NO.: Crim J(P) 1156/15

DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON RANGLIN

Defendant

B. McGuire and E. Taylor for the Crown

M. Moon and A. Pyper for the Defendant

HEARD: June 23, 2016

ENDORSEMENT ON EXCLUSION OF THE BLACKBERRY CELL PHONE SEARCH

Ricchetti J.:

Contents

THE CHARGE.. 2

BACKGROUND TO THE DEFENCE APPLICATIONS. 2

THE APPLICATIONS. 3

THE EVIDENCE.. 4

THE FACTS. 4

THE ISSUES. 7

ANALYSIS. 8

Was the initial seizure of Mr. Ranglin’s cell phones lawful?. 8

Was the subsequent separation of Mr. Ranglin’s cell phones by Officer Maisonneuve an unlawful search? 10

Was the proper warrant obtained?. 13

IF there was a s. 8 Charter breach, should the audio Files be excluded under s. 24(2) of the Charter? 16

Seriousness of the Breach. 16

The Impact of the Police Conduct on the Appellant’s Charter-protected rights. 17

Society’s interest in the adjudication of cases on their merits. 18

Conclusion. 19

Should the Court exclude the audio files as a result of the failure to make a report to a justice until January 2014? 19

Should this court quash the search Warrant for failing to disclose reasonable and probable grounds? 23

The Position of the Defence. 23

The Position of the Crown. 24

The Law on Reviewing Search Warrants. 24

The Law on tips in an Information to Obtain. 27

Analysis. 28

Should the court exercise its discretion to exclude the Blackberry audio files?. 34

Was there trial unfairness as a result of the Crown confirming to the Defence it would introduce the Blackberry audio files?. 34

Does the prejudicial effect of the Blackberry audio files exceed the probative value of the Blackberry audio files?. 37

Conclusion. 39

[1] On May 30, 2016, this court advised counsel that the Defence applications to exclude the Blackberry audio files described below were dismissed with reasons to follow.

[2] These are those reasons.

THE CHARGE

[3] Mr. Ranglin is charged with the first degree murder of Keith Brissett Jr. on June 7, 2011.

BACKGROUND TO THE DEFENCE APPLICATIONS

[4] The Crown, as part of its disclosure, disclosed to the Defence audio files found on Mr. Ranglin’s Blackberry cell phone.

[5] In October 2015 a judicial pre-trial of this matter was held. This matter was set for trial commencing on May 18, 2016 with pre-trial applications commencing May 9, 2016.

[6] By agreement of both parties, on May 9, 2016, the commissioned evidence of Taniesha Wisdom was taken by video.

[7] There is no dispute that Mr. Brissett was murdered with a 40 calibre firearm.

[8] On May 17, 2016 Crown confirmed in writing to the Defence that:

a)The Crown expert would testify that a “40 cal Llama” could have been the murder weapon, along with other types of 40 caliber handguns; and

b) The Crown would be seeking to introduce previously disclosed audio files from Mr. Ranglin’s Blackberry cell phone where “he describes owning/possessing a “40 cal” and “40 cal llama”.

[9] The jury was selected on May 18, 19 and 20, 2016. Prior to the commencement of jury selection, the Defence counsel advised this court of his intention to bring an application(s) to exclude the audio files from Mr. Ranglin’s Blackberry cell phone. These applications were brought on May 23, 2016.

THE APPLICATIONS

[10] At the core of the Defence applications, the Defence seeks, on various grounds, to exclude certain audio files found on a Blackberry cell phone (“Blackberry”) seized from Mr. Ranglin during his arrest on July 15, 2011 (“Audio Files”). The Audio Files are recordings of Mr. Ranglin "rapping" with references to owning or possessing a “40 cal", "40 cal Llama”. Most of these recordings were made on May 27, 2011, less than two weeks prior to Mr. Brissett's murder.

[11] The Defence seeks a ruling that:

a)The seizure of Mr. Ranglin's Blackberry was an unlawful seizure in breach of Mr. Ranglin’s s. 8 Charter rights;

b) The Search Warrant, issued by Justice of the Peace Quon on July 20, 2011 ("Search Warrant”), was not valid (a facial attack) as it failed to disclose reasonable and probable grounds for the seizure and search of the Blackberry. As a result, the Defence submits that the seizure and search of the Blackberry breached Mr. Ranglin’s s. 8 Charter rights;

c)The failure to make a report to a Justice in accordance with s. 489.1 of the Criminal Code was a breach of Mr. Ranglin’s s. 8 Charter rights;

d) An order that as the result of any or all of the Charter breaches alleged, the Audio Files be excluded under s. 24(2) of the Charter; and

e)An order prohibiting the Crown from adducing the evidence at trial of the Audio Files under the court’s inherent jurisdiction to prohibit trial unfairness or exclude the Audio Files on the basis that the probative value of the Audio Files are greatly outweighed by their prejudicial effect.

THE EVIDENCE

[12] The viva voce evidence on this voir dire consisted of the evidence of Detective Sean Deveraux and Constable Colin Maisonneuve.

[13] Counsel also agreed that the evidence includes the charging documents, Action Response (the results of the search of the Blackberry) and various emails between counsel.

THE FACTS

[14] On July 7, 2011, Keith Brissett Jr. was murdered in the rear of an apartment building at 7095 Rexwood Road, Malton. 6-7 shots were fired killing Mr. Brissett at close range. A 40 caliber weapon was used to commit the murder. No firearm has been recovered in connection with this murder.

[15] The Information to Obtain dated July 20, 2011 (“ITO”) sets out the status of the investigation into the murder to that date. To put it simply, the police investigation led the police to believe that Mr. Ranglin (aka Skyjuice or Juice), Mr. Anthony Borden (aka Tone) and/or Mr. Moy-Lingomba (aka Moss) and possibly others had knowledge of or involvement in the murder of Mr. Brissett.

[16] On July 7, 2011, the police obtained a Production Order for a tower dump and for a telephone number believed to be Mr. Ranglin’s cell phone number. No challenge has been made regarding these Production Orders.

[17] Mr. Ranglin is the cousin of Demar Ranglin, a person believed to have been killed by Mr. Brissett in 2003 but who was acquitted of that murder.

[18] The police attempted to interview Mr. Ranglin regarding the Brissett murder but Mr. Ranglin refused to speak with the police. Mr. Ranglin was put under police surveillance.

[19] The police discovered that Mr. Ranglin was on bail on other charges involving drugs. The police also discovered that Mr. Ranglin was disqualified from driving, but had been seen by the police operating a vehicle.

[20] On July 14, 2011, the police decided they would arrest Mr. Ranglin for driving while disqualified. One of the purposes of Mr. Ranglin’s arrest was to provide the police with an opportunity to interview Mr. Ranglin regarding the Brissett murder. However, the police officers testified that this interview, regarding the murder investigation, was an “offshoot” of the arrest for driving while disqualified.

[21] On July 15, 2011, Mr. Ranglin drove his vehicle, a silver Ford Fusion, onto his driveway. He got out of his vehicle. Within minutes, Mr. Ranglin was arrested by the police for driving while disqualified. There is no issue this was a lawful arrest for driving while disqualified. Charter rights and caution were provided to Mr. Ranglin. Mr. Ranglin exercised his right to speak to counsel.

[22] After his arrest, the police conducted a pat down search of Mr. Ranglin for safety. Further, given that Mr. Ranglin would be going into custody to await a bail hearing, all property on his person was seized by the police for safe keeping. For obvious reasons, persons in custody are not permitted to possess property such as cash and cell phones.

[23] The property seized from Mr. Ranglin included cash, Mr. Ranglin’s ID/bank cards and two cell phones, one of which was a Blackberry found on Mr. Ranglin’s person at the time of the arrest and another cell phone was found on Mr. Ranglin’s driveway which was believed to have fallen or discarded by Mr. Ranglin when approached by the police (“Mr. Ranglin’s Property”). This property was seized by Officer Deveraux and given to Officer Maisonneuve. To be absolutely clear, the police seized Mr. Ranglin’s Property but did not conduct any search of those items, including the Blackberry. The police did not even search the two cell phones to determine the telephone numbers associated with those telephones. In the normal course, Mr. Ranglin’s Property, seized during his arrest for safekeeping, would be returned to Mr. Ranglin when released.

[24] Mr. Ranglin was taken to the police station and interviewed on both the driving while disqualified and Mr. Brissett’s murder. For the most part, the interview related to the Brissett murder investigation. Mr. Ranglin said he did not know about the murder and did not provide any information regarding Mr. Brissett’s murder.

[25] Mr. Ranglin’s Property was returned to the 21 Division police station for safekeeping by Officer Maisonneuve. The police decided that Mr. Ranglin’s cell phones could provide evidence relating to the Brissett murder investigation and decided to seek a search warrant. Officer Maisonneuve separated Mr. Ranglin's two cell phones from the rest of Mr. Ranglin’s Property and placed the two cell phones in his locked desk on the date of the arrest (Friday July 15, 2011) until Officer Maisonneuve returned to work the following Tuesday July 19, 2011. At that time the two cell phones were lodged with the Police Central Property Department on Derry Road. The two cell phones remained there until seized by the police pursuant to the Search Warrant. Prior to being seized pursuant to the Search Warrant, the cell phones were not searched, even in a cursory fashion.

[26] It is entirely unclear whether the “property bag” with the rest of Mr. Ranglin’s Property ever left the police station and “followed” Mr. Ranglin to the courthouse or to the jail as appears to be the normal procedure. In any event, even if the “property bag” followed Mr. Ranglin from the police station to the courthouse and then to Maplehurst correctional facility, Mr. Ranglin would not have had access to Mr. Ranglin's Property until he was released at 4:00 p.m. on July 20, 2011.

[27] A s. 487 search warrant for Mr. Ranglin's cell phones had been sought and obtained on July 20, 2011 at approximately 12:15 p.m. and executed shortly thereafter from the police Property Department (“Search Warrant”). Later that same day, at approximately 4:00 p.m., Mr. Ranglin was released from custody. Mr. Ranglin's two cell phones were not returned to him as having been seized by the police earlier that day pursuant to the Search Warrant.

[28] A report to a justice under s. 489.1 of the Criminal Code was not made until January 2014.

[29] Mr. Ranglin was arrested in March 2014.

[30] A search of the Blackberry led to the discovery of the Audio Files.

[31] The Crown disclosure included the Audio Files.

[32] Mr. Anthony Borden was arrested for the murder of Mr. Brissett in 2012. His evidence is anticipated to be that Mr. Borden borrowed the handgun from Mr. Ranglin and returned it to Mr. Ranglin at the scene shortly before Mr. Ranglin used it to murder Mr. Brissett. Mr. Borden has pleaded guilty to accessory after the fact of Mr. Brissett’s murder. Clearly, Mr. Borden is a “Vetrovec” type witness. Any confirmatory evidence that the handgun used in the murder belonged to Mr. Ranglin may be significant to the jury's assessment of his evidence.

[33] It is also important to note that the type of handgun used to murder Mr. Brissett was a 40 calibre handgun. Mr. Ranglin refers to a 40 cal gun in the Audio Files.

[34] Just before trial, the police updated their expert report to include a Llama as a type of handgun which could have been the gun involved in the murder. Mr. Ranglin refers to a 40 cal Llama or Llama in the Audio Files.

THE ISSUES

[35] The following issues need to be decided:

i. Was the initial seizure of Mr. Ranglin’s Cell Phones lawful?

ii. Was the subsequent separation of Mr. Ranglin’s Cell Phones an unlawful search?

iii. Was the proper warrant obtained?

iv. If there was a s. 8 Charter breach, should the Audio Files be excluded under s. 24(2) of the Charter?

v. Should the Court exclude the Audio Files as a result of the failure to make a Report to a Justice until January 2014?

vi. Should this Court quash the Search Warrant for failing to disclose reasonable and probable grounds?

vii. Should the Court exercise its discretion to exclude the Audio Files on the basis that:

a) the admissibility of the Audio Files would result in trial unfairness to Mr. Ranglin; and

b) the prejudicial effect of the Audio Files greatly exceeds the probative value of the Audio Files?

ANALYSIS

Was the initial seizure of Mr. Ranglin’s cell phones lawful?

[36] It is unclear whether the Defence asserts that the initial seizure of the two cell phones was an unlawful seizure. However, because much was made by the Defence that the purpose of the police stop and interview was for the Brissett murder investigation rather than an HTA stop, I will deal with this issue.

[37] Dual purpose stops are lawful provided that the police have lawful authority to arrest the person for one of the purposes. See Brown v. Durham (Regional Municipality) Police Force, 1998 7198 (ON CA), [1998] O.J. No. 5274 (C.A.), at paras. 31-45 and R. v. Caprara (2006), 2006 18518 (ON CA), 211 O.A.C. 211 (C.A.), at para. 8. In this case, it is admitted the police were lawfully entitled to and did arrest Mr. Ranglin for driving while disqualified. The fact that the police had a secondary purpose (to interview him on the homicide investigation) does not invalidate Mr. Ranglin’s arrest or the events that necessarily follow the lawful arrest.

[38] As part of the lawful arrest, the police were entitled to search Mr. Ranglin, for a safety pat down, but also to remove any property that Mr. Ranglin would not be permitted to have in his possession while in police custody. See R. v. Piche (1996), 1996 3692 (BC CA), 85 B.C.A.C. 14 (C.A.). Mr. Ranglin was not permitted to have in his possession, in the police cells, in the courthouse cells or in Maplehurst Correctional Facility, Mr. Ranglin's Property. The police were entitled to seize those items in Mr. Ranglin’s possession and continue to hold those items for safekeeping until Mr. Ranglin's release from custody.

[39] While Officer Deveraux admitted that the seizure of Mr. Ranglin’s Property was a search and seizure “incident to arrest”, I do not find that Officer Deveraux meant that Mr. Ranglin’s Property was seized because it would afford evidence of the driving while disqualified. It was clear from Officer Deveraux’s entire testimony that he meant Mr. Ranglin's Property was seized as part of the arrest as he made it clear Mr. Ranglin’s Property would be kept for safekeeping while Mr. Ranglin was in custody.

[40] Officer Maisonneuve also testified that the purpose of seizing Mr. Ranglin’s Property was to keep the property safe since it was not “allowed in the cell area” by inmates. Like Officer Deveraux's evidence, while admitting that Mr. Ranglin’s cell phones were seized “search incident to arrest”, Officer Maisonneuve immediately stated that the police can hold onto property taken from an accused that is not permitted in the cells, inventory the property and to hold onto that property until it is to be returned.

[41] The evidence of the police officers must be considered in their entirety. I reject the Defence submission that the cell phones were seized as a “search incident to arrest” because it is clear and was clear to the police officers that the two cell phones (and the rest of Mr. Ranglin’s Property) had no evidentiary value to the driving while disqualified charge.

[42] The seizure of Mr. Ranglin's Property shortly after his arrest was lawful for the purpose of safekeeping until Mr. Ranglin's release.

Was the subsequent separation of Mr. Ranglin’s cell phones by Officer Maisonneuve an unlawful search?

[43] The Defence submits that the subsequent separation of Mr. Ranglin’s two cell phones from the rest of Mr. Ranglin's Property constitutes an unlawful seizure.

[44] The Crown submits that there is no significance to the separation of the two cell phones as they continued to remain in police custody for safekeeping without any search of those cell phones. The Crown submits there is no requirement that Mr. Ranglin’s Property be kept together in one place, provided that it remain in police custody for safekeeping while the police was entitled to retain that property. The Crown submits that Mr. Ranglin’s Property, all of it including the two cell phones, were in lawful police custody for safekeeping while Mr. Ranglin remained in custody.

[45] In my view, all of Mr. Ranglin’s Property was in police custody and control, whether or not some items were in a locked desk and some items were in a property bag. There is no principle of law, or evidence of a policy or requirement that all of an arrested person's property seized by the police for safekeeping must be kept together in the same location. There is no principle of law, or evidence of a policy or requirement that all an arrested person's property must necessarily follow the person arrested from the police station to the courthouse to the prison or wherever the arrested person may go. It is inconceivable that keeping some of an arrested person's property lawfully in police custody for safekeeping at the police station is somehow an unlawful seizure.

[46] The fact that the police may have decided to seek a search warrant to seize and search the two cell phones does not change the character of the police’s custody of Mr. Ranglin’s Property – it remained in police custody for safekeeping.

[47] In some respects the issue in the presents similar issues as were before the court in Piche. The accused had been arrested for shoplifting. When arrested the police seized a significant quantity of money and other property for safekeeping. The money was separated from the rest of the accused's property by the police to investigate whether the money originated from an unrelated robbery in another town. The money was inspected by the police and determined that indeed it was from the unrelated robbery. Upon his release on the shoplifting charges, the police arrested the accused for robbery. The trial judge concluded:

Here I do not think the search of the money conducted by Hemstad can be said to have been unreasonable. It was at the time justifiably in the custody of the police, and the initial intrusion by Hemstad during his telephone discussion with Corporal Jones, if he indeed had to open it, was to verify the serial number of one of the bills.

[48] The Court of Appeal in Piche stated:

I agree with those conclusions of the trial judge. ....I would add another reason, stemming from p. 309 of R. v. Copan (1994) 39 B.C.A.C. 309 and that is that the appellant could not have had a reasonable expectation of privacy in the bag and the money, it being properly in unbroken custody and control of the police authorities from the time of his arrest for shoplifting.

[49] In the present case, expectation of privacy is not an issue since the police conducted no search, not even a cursory search, of Mr. Ranglin’s two cell phones while the cell phones were in their possession for safekeeping. Like in Piche, the cell phones were separated from the rest of Mr. Ranglin’s other property but it nevertheless remained in police custody for safekeeping. The police only used the knowledge that Mr. Ranglin’s two cell phones were in lawful police custody for safekeeping to obtain a search warrant to seize and search those two cell phones from the Police Property Department. I my view there was no breach of Mr. Ranglin’s expectation of privacy with respect to his two cell phones.

[50] Had Mr. Ranglin been released on the driving while disqualified charge, Mr. Ranglin’s Property, all of his property, would have to be returned to him unless the police had some other lawful authority to retain the cell phones – search as having a search warrant to seize and search the cell phones. However, in this case, Mr. Ranglin was not released until AFTER the police had seized the two cell phones pursuant to the Search Warrant.

[51] In R. v. Katsigiorgis, 1987 4204 (ON CA), [1987] O.J. No. 937 (C.A), the accused, while in the hospital had blood samples taken by the medical staff but the vials were sealed by the police officer for continuity purposes until the police officer could get a search warrant. The warrant was obtained. The police officer returned to the hospital and retrieved the vials. The Defence argued that the handling by the police by sealing them was an unlawful seizure. The trial judge found otherwise. The Court of Appeal agreed with the trial judge.

[52] In R. v. Blais (2004), 2004 8466 (ON CA), 181 O.A.C. 81 (C.A.), the police seized the accused’s property on arrest and placed it in a clear plastic bag. The police saw a key in the plastic bag and, by comparison with another key through the clear plastic bag, realized it related to a location where the police had found stolen items. The Defence argued that the seizure was an unreasonable warrantless search. The trial judge rejected this argument. The Court of Appeal agreed with the trial judge and concluded as follows, a conclusion that aptly applies to the present case:

[11] Following the appellant’s arrest and incarceration at the detention centre, the appellant’s personal belongings were seized by the jail authorities and placed in a sealed but transparent plastic bag. Some time later, the police seized a key from a co-accused that opened the door to the residence where some of the stolen goods were stored. As a result, Detective Hahn went to the detention centre to view the appellant’s belongings. The jail authorities permitted him to look at the belongings through the bag but he was not permitted to open the bag or take it away. Detective Hahn saw a key that resembled the key taken from the co-accused. He returned a second time with the co-accused’s key and again, through the bag, compared it to the key seized from the appellant. Having satisfied himself that the keys were likely the same, Detective Hahn then obtained a warrant to seize the key.

[13] Considering those circumstances, in my view, the appellant’s expectation of privacy was that the state would preserve the goods and return them to him upon his release. He could not reasonably expect that agents of the state would not inspect those goods, although he could expect that the police would obtain a search warrant before actually taking them out of the possession of the gaoler who was under a duty to safeguard them. This is exactly what Detective Hahn did in this case and I therefore see no violation of s. 8. Even if there was, this is manifestly a case where the evidence would not be excluded under s. 24(2) of the Charter given the obvious good faith by the officer and his attempts to comply with the law.

[53] The Defence relies heavily on R. v. Kitaitchik (2002), 2002 45000 (ON CA), 161 O.A.C. 169 (C.A.). In Kitaitchik, the accused was arrested for possession of stolen property. During his interview, the police officer instructed another officer to seize the clothing the accused was wearing during the interview for a homicide investigation. The trial judge found that seizing the accused clothing was a violation of the accused’s s. 8 Charter rights but refused to exclude the evidence. On appeal, the Crown did not dispute the violation of the accused’s s. 8 Charter rights (see para. 26). The issue argued on appeal was whether the evidence obtained from the analysis of the accused’s clothing was admissible under s. 24(2) of the Charter (see paras. 27- 31). The appeal was dismissed. This authority does not assist the Defence as to whether there was a breach of Mr. Ranglin’s s. 8 Charter rights because the Charter breach was conceded by the Crown on appeal in Kitaitchik.

[54] The Defence also relies on R. v. Pino, 2016 ONCA 389. This authority also does not assist the Defence. The trial judge found numerous violations of the accused’s Charter rights and that the police officers lied to the court. Nevertheless the trial judge found that the evidence should not be excluded under s. 24(2) of the Charter. The accused appealed. The main issue on appeal was whether Charter breaches, which occurred after the evidence has been discovered by the police, could be excluded under the Charter. This issue has no application to this case.

[55] There was a common sense purpose to Officer Maisonneuve’s action of putting the two cell phones in the locked desk. Had the two cell phones been placed in a property bag which might have followed Mr. Ranglin from the police station to the courthouse to Maplehurst and perhaps back to the courthouse, the specific location for the two cell phones, a requirement of an ITO and search warrant (a specific place to be searched must be identified), would have been problematic because, at any given time, the exact location of the two cell phones would be uncertain.

[56] The Search Warrant was granted and the cell phones were seized before the police had an obligation to return Mr. Ranglin's Property to him on release.

[57] I find that there was no s. 8 Charter breach when Officer Maisonneuve placed the two cell phones in his locked desk.

Was the proper warrant obtained?

[58] The Defence submits that the Search Warrant, a s. 487 search warrant, was the wrong warrant for the seizure and search of the cell phones. The Defence submits that the proper warrant was a s. 487.01 general warrant.

[59] The Crown submits that a s. 487 search warrant was the proper warrant for seizing and searching the cell phones in police safekeeping and that a s. 487.01 general warrant was neither available nor appropriate.

[60] Sections 487 and s. 487.01 of the Criminal Code provide as follows:

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

[61] It is clear that a s. 487 search warrant is the correct warrant for the search and seizure of a “thing” located in a “building, receptacle or place”.

[62] It is also clear that a s. 487.01 general warrant is not available where an “other provision ...would provide for a warrant, authorization or order permitting...the thing to be done”.

[63] In this case, the search warrant provided for the search and seizure of the cell phones from “Central Property of Regional Police at 180 Derry Road East, in the City of Mississauga”. This was the location of the lawfully held cell phones at the time of the execution of the Search Warrant. The Search Warrant authorized the police to seize and search Mr. Ranglin’s two cell phones from Central Property on the basis the search of the two cell phones would provide evidence relating to the homicide investigation.

[64] In my view, obtaining a s.487.01 general warrant would have been improper and unavailable because of s. 487.01(c) since Mr. Ranglin’s cell phones were lawfully being held by the police at the police station, a building.

[65] The Defence relies on Kitaitchik supra. However, in Kitaitchik, the police seized the clothes from the accused during the interview. Clearly, the seized clothing were sought to be seized as “incident to the arrest” for a murder investigation but not the offence for which the accused had been arrested. Since a seizure "incident to arrest" only applies to the seizure of property which would provided evidence relating for the offence the person was arrested, the seizure, without a warrant, was unlawful. The s. 8 Charter breach was not an issue on appeal. In my view, the clothes being worn by Mr. Kitaitchik during the interview would not be subject to s. 487 search warrant since the items to be seized were not in a building, receptacle or place. In Kitaitchik a general warrant would have been the correct warrant to obtain.

[66] Perhaps, if the police wanted to stop Mr. Ranglin somewhere in public and seize his cell phones, a s. 487.01 general warrant may have been the proper warrant. But in this case, unlike Kitaitchik, the two cell phones were at a specific location in a building.

[67] The Defence also relies on R. v. T.G.H., 2014 ONCA 460, 120 O.R. (3d) 581. In T.G.H. the police wanted to photograph the naked body of the accused. The police obtained a s. 487.01 general warrant. The Court of Appeal held it was the correct warrant to obtain (see para. 14). The Court of Appeal held that there was no s. 8 Charter breach. The issue in T.G.H. was whether the accused was entitled to be advised of his Charter rights and caution and an opportunity to speak to counsel before the police carried out the general warrant. The Court of Appeal found a s. 10(b) Charter breach but found that the evidence was nevertheless admissible.

[68] This court is satisfied that the correct warrant for the seizure and search of the lawfully held cell phones of Mr. Ranglin was a s. 487 search warrant. Seizure of the two cell phones with the Search Warrant was not a Charter breach.

IF there was a s. 8 Charter breach, should the audio Files be excluded under s. 24(2) of the Charter?

[69] I have found that there was no breach of Mr. Ranglin’s s. 8 Charter rights arising from the seizure of the Blackberry at the arrest scene, at the police station or because an allegedly wrong warrant was used to seize the Blackberry (subject to the issue of quashing the Search Warrant which is dealt with below). However, if I am wrong, the Audio Files would not have been excluded under s. 24(2) of the Charter.

[70] The Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71, 85 and 86, set out the manner in which a court must assess and balance the effect of admitting or excluding the evidence based on the impact, if any, on the repute of the administration of justice.

[71] When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.

[72] The court’s role on a s. 24(2) application is to balance its assessments under each of these factors and then to determine, considering all relevant circumstances, whether admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the Breach

[73] There is a continuum of unconstitutional conduct ranging from minor, trivial, technical or the product of an understandable mistake to wilful or reckless disregard of Charter rights. What must be determined is where along this continuum the police’s conduct falls. Admitting evidence obtained by deliberate and egregious police conduct in disregard of the accused’s rights may lead the public to conclude the court implicitly condones such conduct, thereby undermining respect for the administration of justice. However, where the breach was committed in good faith or of a minor technical nature, admitting the evidence may have little or no adverse effect on the repute of the administration of justice. See Grant, at para. 108.

[74] In this case, the police acted entirely reasonably and respectfully of Mr. Ranglin’s Charter rights. Even if there was a Charter breach, the Blackberry was not searched, even in a cursory way, until the police believe they had a judicially authorized warrant to do what they eventually did. The only information the police used was the fact that Mr. Ranglin possessed the two cell phones, knowledge which was properly obtained through the lawful arrest. The police understood that they could only search the two cell phones with Mr. Ranglin’s consent and, when Mr. Ranglin refused, the police abided by his decision, respected his Charter rights and obtained the Search Warrant.

[75] By any analysis, the police conduct in this case, even if there had been a Charter breach, would have been on the lower end of the spectrum of seriousness.

[76] I would conclude that this factor favours the admission of the Audio Files.

The Impact of the Police Conduct on the Appellant’s Charter-protected rights.

[77] The impact from the police conduct is case-specific because it is examined from the accused’s perspective. Again, there is a continuum of intrusiveness of the unconstitutional conduct ranging from fleeting, transient or technical to the profoundly intrusive. The inquiry assesses the danger that admitting the unconstitutionally obtained evidence may suggest to the public that Charter rights do not count, thereby negatively impacting on the repute of the administration of justice. The greater the intrusion, the more important it is that a court exclude the evidence to substantiate the Charter rights of the accused. Grant, at para. 109.

[78] If the separation of the cell phones from the rest of Mr. Ranglin’s Property (the primary Defence submission) was a Charter breach, it is hard to imagine the police action had much of an impact on Mr. Ranglin’s Charter–protected rights – the cell phones remained in protected police custody without a search but separated from Mr. Ranglin’s other property.

[79] Once the police had seized the two cell phones lawfully, Mr. Ranglin had a diminished expectation of privacy with respect to his seized property.

[80] In any event, there was limited information on the Blackberry – no incoming or outgoing calls, no text messages, as all this information was password protected information could not be accessed by the police. The only items found on the Blackberry were photographs and five rap recordings.

[81] This factor would be neutral.

Society’s interest in the adjudication of cases on their merits

[82] Society generally expects that a criminal allegation will be adjudicated on its merits. See Grant, at para. 79. An examination of this line of inquiry also takes into consideration the reliability of the evidence and the importance of the evidence to the prosecution and, to a limited extent, the seriousness of the offence charged.

[83] Here, the evidence of the Audio Files is reliable and significant to the prosecution’s case in that it may be confirmatory of Mr. Borden’s evidence that the gun used in the shooting belongs to or was possessed, at least at one time, by Mr. Ranglin. Mr. Border is a “Vetrovec” witness and the jury will have to consider whether there is any confirmatory evidence of his statement. I will deal with the relevancy of the “rap lyrics” below.

[84] Further, Mr. Ranglin "raps" about his "40 cal" the same calibre of gun used by the shooter. This, along with other evidence as to who was present at the time of the shooting, is probative as to who the shooter might have been.

[85] This offence is the most serious offence in the Criminal Code and which can be committed against society. The truth seeking function and adjudication on the merits are highly important in this case.

[86] As a result, this factor strongly favours the admission of the evidence.

Conclusion

[87] The enquiry does not stop by counting which factors favour exclusion and which favour admission. The above factors are part of an overall objective enquiry as to whether a reasonable person, informed of all relevant circumstances and values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. See Grant, at paras. 66-70.

[88] In my view, balancing the factors and considering the whole of the evidence, I am satisfied that the admission of the Audio Files would NOT bring the administration of justice into disrepute.

Should the Court exclude the audio files as a result of the failure to make a report to a justice until January 2014?

[89] The Crown admits that there was a breach of Mr. Ranglin’s s. 8 Charter rights when the police failed to make a report to justice as required by s. 489.1 of the Criminal Code. However, the Crown submits that the Audio Files should not be excluded under s. 24(2) of the Charter.

[90] The Defence submits this is a serious breach, caused by the widespread and systemic failure of the police to file returns to justice, justifying the exclusion of the Audio Files under s. 24(2) of the Charter.

[91] The Defence relies on R. v. Brown, 2016 ONSC 3282. The Defence correctly points out that, in that case, the police had failed to make a report to a justice for 3 ½ years. However, in that case, the reasons for the exclusion of the evidence related primarily to the unlawful arrest, unlawful seizure and the “systemic conduct” of the police throughout. None of those factors are present in this case. In my view, the reasons in Brown do not suggest that the failure to make a report to a justice was a central or significant issue in the s. 24(2) analysis.

[92] The Defence relies on R. v. Elez, 2015 ONSC 7727, a summary conviction appeal, from a decision of the trial judge to exclude evidence as a result of a failure to make a report to justice for 6 months. The Summary Conviction Appeal court overturned the acquittal and ordered a new trial.

[93] The Defence submits that Officer Maisonneuve didn’t know of his responsibility to make a report to a justice. This evidence was not significant because he testified that it was the responsibility of the officer who obtains the search warrant – Officer Rice – not Officer Maisonneuve to make the report to the justice.

[94] Like Elez, the evidence before me does not establish a widespread, systemic or systematic failure by the police to file returns under s. 489.1 of the Code.

[95] As set out above, a Grant analysis is required to determine whether, as a result of a Charter breach, evidence should be excluded.

[96] The Ontario Court of Appeal in R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, finally put to rest any dispute that a violation of s. 489.1 of the Criminal Code is a s. 8 Charter breach.

[97] In Garcia- Machado, the Court of Appeal stated:

[44] The question on this appeal is whether the Constable’s failure to comply with the requirements in s. 489.1(1) to make a report to a justice as soon as practicable also rendered the continued detention of a seized item unreasonable and therefore contrary to s. 8 of the Charter.

[45] I conclude that the answer to that question is “yes”. As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable’s post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.

[98] In Garcia-Machado, the trial judge had excluded the evidence. The Ontario Court of Appeal reviewed the trial judge’s s. 24 (2) analysis and reversed the trial judge, finding the evidence to be admissible:

[59] In my view, the trial judge failed to consider the following relevant factors.

[60] First, he did not expressly consider that the initial search was authorized by a warrant. Before the Constable seized the evidence, a justice had already balanced the very significant privacy interest of the respondent in his blood and his medical records against the interest of the state in investigating the crash: see R. v. Vu, 2013 SCC 60 , [2013] 3 S.C.R. 657, at para. 46.

[61] Second, Cole instructs that in assessing the impact of a breach, a trial judge should consider the nature of the respondent’s reasonable expectation of privacy at the time of the breach. In Cole, a work-issued laptop computer was seized without a warrant. The Supreme Court, at para. 92, found that the trial judge, in assessing the impact of the breach, had failed to consider the applicant’s diminished reasonable expectation of privacy in a work-issued computer. Similarly, here the trial judge failed to consider that the respondent had a minimal residual privacy interest in the blood sample and the hospital records when the reporting period under s. 489.1(1) lapsed.

[62] Third, the trial judge did not consider that the property seized was that specifically authorized by the warrant and that the property was used for the precise purpose for which it was obtained. No event subsequent to the issuance of the warrant necessitated a re-balancing of the respondent’s privacy interest against that of the state in investigating the incident. While the respondent had an objectively reasonable expectation that the property would not be used for any purpose other than that for which it was obtained, he did not have an objectively reasonable expectation that the property seized would not be used for the very purpose for which it was lawfully obtained.

[63] Fourth, had the Constable made the requisite report “as soon as is practicable”, the justice of the peace would undoubtedly have ordered detention of the evidence. The police indisputably needed the blood sample and the hospital report for the investigation. This “inevitability” factor was a consideration in Cole. There, in assessing the impact of the breach, the Supreme Court took into account the fact that had the officer complied with the applicable constitutional requirements, the evidence would necessarily have been discovered: Cole, at para. 93.

[64] Fifth, the trial judge did not focus on the nature of the property at issue. The respondent was not deprived of the use or enjoyment of the items. The items at issue are much different than a smart phone or a computer. Practically, it did not matter to the respondent if the state continued to detain the items and deprived the respondent of the opportunity to have them returned.

[65] Sixth, this was a case of delayed compliance, not of complete non-compliance.

[66] And, finally, in the case of the hospital records, the impact of the breach on the respondent’s residual privacy interest was even less than in the case of the blood sample.

[99] The Court of Appeal’s reasons regarding the seriousness of the breach and the impact on the accused Charter rights, are applicable to the present case:

a) The seizure and search of Mr. Ranglin’s cell phones, including the Blackberry, was effected pursuant to a lawfully issued search warrant. The search conducted was for the very things authorized by the search warrant;

b) The actions by the police were not done in bad faith or were in deliberate, severe or reckless disregard for Mr. Ranglin's Charter rights;

c) While cell phones are highly personal items potentially containing vast quantities of personal and confidential information, the Action Report in this case shows that there was limited information on the Blackberry – no incoming or outgoing calls, no text messages, as all this information was password protected information could not be accessed by the police. The only items found on the Blackberry were photographs and five audio recordings. While this information is nevertheless confidential personal information, this limited information obtained by the police, was a limited invasion of privacy which is a factor putting this breach at the middle or lower end of the spectrum. As stated in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 54:

First, while cell phone searches — especially searches of “smart phones”, which are the functional equivalent of computers — may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the handgun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones

d) This is a case of delayed compliance not non-compliance, albeit it is noteworthy that this was 2 ½ year delay to make a report to a justice after the seizure. This lengthy delay increases the impact on Mr. Ranglin’s residual privacy interest in the Blackberry. However, this is only a factor in the overall analysis.

e) Had the police made the report to justice as required by the Criminal Code, detention of the Blackberry would inevitably have been ordered. The fact that the Audio Files refer to a gun of the same calibre used in the shooting would have been sufficient for continued detention of the Blackberry. Even if the cell phones were ordered to be returned, there is no doubt that copies of the Audio Files would have been permitted to be kept by the police during the homicide investigation;

f) While Mr. Ranglin was deprived of the use of his cell phones, I note that he was aware his cell phones had been seized by the police on July 15, 2011 but took no steps to recover the cell phones from the police despite being released on July 20, 2011 and not re-arrested on the murder charge until March 2014;

g) Even if I were to accept that Officer Maisonneuve was unfamiliar with the requirements to make a report to a justice, this is only a factor to be considered, not determinative of the seriousness of the breach. The Court of Appeal in Garcia-Machado stated:

[67] I acknowledge the trial judge’s concern that the Constable, although he did not act dishonestly, in bad faith, or with wilful or reckless disregard for the law, was not familiar with the timing requirement of s. 489.1(1), despite its enactment nearly thirty years ago. I also acknowledge that, based on the Constable’s evidence, the trial judge found the Constable’s colleagues, including some superiors, were similarly ill-informed. Nonetheless, considering all the factors outlined above, I would without hesitation characterize the seriousness of the breach in this case as minor or technical.

[100] The evidence in this case is reliable and a significant piece of evidence relating to the possession of a gun consistent with and what might have been used in Mr. Brissett's murder. The relevancy is discussed in more detail below. This evidence may also provide some confirmatory evidence that the gun used in the shooting was Mr. Ranglin’s gun. While the exclusion of this evidence would not gut the Crown’s case, society’s interest in the adjudication of this case on the merits favours admission.

[101] Considering the above factors, I am satisfied that the Audio Files should not be excluded under s. 24(2) of the Charter.

Should this court quash the search Warrant for failing to disclose reasonable and probable grounds?

The Position of the Defence

[102] The Defence submits that the search warrant should be quashed on the basis that it fails to disclose, on its face, reasonable and probable grounds for the seizure and search of Mr. Ranglin’s Blackberry.

[103] The Defence submits that the ITO only discloses rumours and innuendo’s regarding Mr. Ranglin’s involvement in the Brissett murder investigation. The Defence points to the fact that the ITO doesn’t even suggest that Mr. Ranglin was a suspect. The Defence submits this ITO is a clear example of a “fishing expedition” by the police.

The Position of the Crown

[104] The Crown submits it is irrelevant that the police did not point to a suspect or suggest that Mr. Ranglin was the suspect in Mr. Brissett's murder. The issue is whether Mr. Ranglin’s cell phones would reasonably provide evidence relating to Mr. Brissett’s murder.

[105] The Crown submits that the Search Warrant must be read and considered as a whole and, when done so, there is sufficient credible and reliable information amounting to reasonable and probable grounds that the issuing justice could have issued the Search Warrant.

The Law on Reviewing Search Warrants

[106] The ITO must provide there are reasonable grounds to believe that:

• an offence has or will be committed;

• the things to be searched for exist;

• the things are at the identified location; and

• the things will afford evidence of the specified offence.

See R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.).

[107] In a facial attack on a search warrant, the starting point for the review is:

a) a presumption the search warrant is facially valid;

b) the statements in the ITO are accepted as reliable and accurate.

See R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 73.

[108] The onus is on the party seeking exclusion to establish the invalidity of the search warrant. See Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 35, 83; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14.

[109] The principles applicable to a review of the issuance of a search warrant were canvassed in Campbell:

[46] In Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68, LeBel J., writing for the majority of the Supreme Court of Canada, indicated that:

[T]he reviewing judge will assess the whole of the evidence submitted to him or her and to the authorizing judge, and will then decide whether the authorization should have been given. The reviewing judge will begin the analysis by recalling that the law regards the authorization as facially valid, and that it is the task of the applicant, on review, to demolish that appearance of validity. If that attempt fails, the authorization will be upheld.

[47] Earlier in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para 62, Sopinka J., writing for the majority, said:

[T]he reviewing judge should not set aside the decision [of the issuing justice] unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.

[48] In Araujo at para. 54, LeBel J., writing for the whole court, said:

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.

[49] When looking for sufficient reliable information in the balance of the ITO the statutory standard to be applied is whether the affiant had “reasonable grounds to believe” relevant evidence would be found. This standard has been the subject of much judicial consideration.

[50] In the seminal case, Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, Dickson J. first set the standard of reasonable and probable grounds for search warrants to be consistent with s. 8 of the Charter. He also offered the following guidance as to the application of the standard:

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.

[51] Later, in Debot, at p. 1166, Wilson J., without alluding to the term “credibly-based probability”, described the standard of proof as one of “reasonable probability” or “reasonable belief”.

[52] Most recently the dicta of Deschamps J. in Morelli, at para. 129, are helpful in understanding the standard. Although she was writing for a minority of three out of seven justices of the Supreme Court of Canada, the following comments are not inconsistent with the majority reasons:

Determining whether evidence gives rise to a “credibly-based probability” does not involve parsing the facts or assessing them mathematically. Rather, what the judge must do is identify credible facts that make the decision to authorize a search reasonable in view of all the circumstances. I therefore agree with the non-technical, common-sense approach taken by Rehnquist J. (as he then was) in Illinois v. Gates, 462 U.S. 213 (1983):

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

[53] The Supreme Court and this court have referred to Illinois v. Gates in earlier cases. See Garofoli, at para. 61; R. v. Church of Scientology (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) (leave to appeal to SCC dismissed).

[54] No matter what formulation is used, it is essential that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not on mere suspicion. The standard is necessarily qualitative and reasonable people can differ in some cases about whether the authorization should have been granted. In this context the question for the reviewing court remains could the Justice of the Peace have issued the warrant.

[55] Before applying the standard to this particular case, I make two observations. First, the grounds for the warrant to search the respondent’s room did not have to be restricted to those grounds for believing that the evidence to be found would incriminate him. The evidence to be found could incriminate any person. A general search warrant issued pursuant to s. 487 the Criminal Code authorizes the police to search for “evidence with respect to the commission of an offence”. Second, it is not relevant whether either of the other tenants may have had backgrounds or circumstances that made them more suspect of being involved in the offence than the respondent. The only question for the reviewing court is whether the Justice of the Peace could have issued the warrant to search the respondent’s room.

(emphasis added)

[110] In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 680 (SCC), [1999] 1 S.C.R. 743, the Supreme Court, at paras. 24-25, described the intrusiveness of search warrants and the need to ensure they are not used as fishing expeditions or improperly diminish individuals privacy interests.

The broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations. This is particularly true with respect to personnel records which may contain a great deal of highly personal information unrelated to the investigation at hand. Judges and magistrates should continue to apply the standards and safeguards which protect privacy from unjustified searches and seizures.

[111] The reviewing judge of the prior judicial authorization, has a “narrow jurisdictional compass”. This jurisdictional limitation was described in R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721:

[20] Judges reviewing wiretap affidavits, or any materials in support of prior judicial authorizations, work within a narrow jurisdictional compass. In R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, [page726] Sopinka J. summarized the standard of review, at p. 1452 S.C.R.:

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, non- disclosure, 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.

[21] The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli, at p. 1452 S.C.R. Nor is the review to take on the markings of a trial, where the truth of allegations is explored. As noted by Charron J. in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, at para. 30, "the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order" (emphasis in original).

(emphasis added)

[112] This limitation on a reviewing judge’s jurisdiction was recently repeated by the Court of Appeal in R. v. MacDonald, 2012 ONCA 244, 290 O.A.C. 21:

[9] A judge reviewing the authorization of the issuance of a warrant has a limited mandate. That mandate was set out by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at 1452:

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 review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[113] An issuing justice is entitled to draw reasonable inferences from the stated facts. Hunches, guesses or mere speculation are not permitted. R. v. Sanchez (1995), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.), at pp. 364-365.

The Law on tips in an Information to Obtain

[114] In R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, the Supreme Court set out the factors to consider the reliability of an informant’s information in an ITO by looking at whether the information is compelling, credible and/or confirmed.

[115] The greater the information about and from an informant, the better the assessment of the weight to be given to the tip can be made by the judicial authorizing officer. Little information will no doubt negatively affect the weight to be given to the tip. More information may or may not bolster the weight to be given to the information. The information from the informant is to be considered along with all of the other evidence in the ITO.

[116] The reliability of the information from the informant and weight to be given to the information will depend on a contextual analysis of all the relevant factors in the circumstances. It is the totality of the evidence which must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in other areas. Debot, at para 63 and Crevier, at para. 67.

[117] There is no formulaic test as to what an assessment of the totality of the circumstances entails. See: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421.

Analysis

[118] The evidence set out in the ITO must establish reasonable and probable grounds that a murder had been committed and the Blackberry could reasonably provide evidence relating to that murder. It is not necessary that the evidence sought belongs to or will establish who the perpetrator of the offence is or might be. See Campbell, at para. 52.

[119] In this case there is no issue that the ITO establishes a murder had been committed. The sole issue is whether the ITO contained “reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”. See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54.

[120] The Crown seeks to rely on Mr. Ranglin’s refusal to provide an alibi or his cell phone number(s) as some evidence in support of the issuance of the Search Warrant. This inference is not available. Evidence of a person’s refusal to speak to the police or provide them with any information is a constitutional right and the exercise of that right is not evidence that can assist the police in obtaining a search warrant or assist the issuing court in determining whether reasonable and probable grounds exist in the ITO.

[121] I agree with the Defence that certain statements referred to in the ITO, taken in isolation, are nothing more than hearsay or rumours and do not add to the evidentiary basis to establish reasonable and probable grounds upon which the issuing justice could issue the Search Warrant. However, the totality of the evidence in the ITO must be considered in determining whether the issuing justice could have issued the Search Warrant?

[122] The Defence concedes that Mr. Ranglin is also known as “Skyjuice” or “Juice”.

[123] The ITO discloses and repeats the extensive police investigation relating to the murder. The police interviewed numerous persons at the scene of the murder. The police interviewed family and friends of the deceased. The police interviewed or attempted to interview persons of interest relating to the murder and conducted their own investigations.

[124] From the entire police investigation set out in the ITO, without considering the tips, there was reliable evidence to believe that:

a) the shooter was a black male in his 20's. Mr. Ranglin is a black male in his 20's;

b) Mr. Brissett was shot, multiple times, at close range at the Rexwood Road apartment. This type of killing could suggest a “personal” motivation for the murder. Mr. Ranglin was the cousin of Demar Ranglin, the person allegedly shot and killed by Mr. Brissett (although acquitted of the charge), a possible motive for the a killing of this type of close range, multiple shots murder;

c) After the shooting, the majority of witnesses described the shooter got into a light, grey or silver vehicle and speed away. Mr. Ranglin was stopped on July 15, 2015 driving a silver Ford Fusion;

d) “Tone” (Anthony Borden), “Moss” (Junior Moy Lingomba), “Clayton” (Clayton Borden), “Diddy” (Curtis Jackson) and “Skyjuice” (Mr. Ranglin), are associated and deal in drugs. The street names of these individuals are highly unique. Some of them lived together in a Darcel Ave. apartment. There was potentially a drug war going on between two drug groups. This is another possible motive for the shooting;

e) A Mazda 3 was seen dropping two black men in the area of the shooting on the night of the shooting. A White Mazda 3 was seen speeding away from the murder scene. Mr. Borden was driving a white Mazda 3 rental at the time. A Mazda 3 had been rented by Ruby Borden, a relation to Mr. Borden on June 7, 2011 and was “occupied” by Moss and Mr. Borden – two members of this group;

f) Mr. Ranglin lied to the police about his knowledge of the Brissett murder. He denied that he was aware Mr. Brissett had died. However, Mr. Ranglin had previously commented to his surety questioning why it was taking so long for the police to contact him regarding Mr. Brissett's murder. This adds to the grounds to believe Mr. Ranglin had knowledge of or involvement in the Brissett murder;

g) Mr. Ranglin denied he had a nickname to the police but the investigation found numerous persons who knew Mr. Ranglin was known as “Skyjuice” or “Juice”. Mr. Ranglin appeared to be distancing himself from this group;

h) Mr. Ranglin had used false names for the registered owners of at least two of his cell phone numbers and had given his employer a telephone number with a false name belonging to a third party. This adds to the evidence of Mr. Ranglin’s possible involvement by his efforts to conceal his identity and personal information which could tie him to an involvement in the murder;

i) Mr. Borden was also using cell phones registered in the names of other persons, possibly to conceal his identity;

j) On June 16, 2011, shortly after the shooting, Mr. Ranglin possessed a Blackberry phone. The ITO sought to seize and search a Blackberry phone, potentially a phone that Mr. Ranglin was using close to the time of the murder;

k) A Production Order was issued for Mr. Ranglin's cell phone, which Production Order is not challenged by the Defence; and

l) Mr. Ranglin was arrested on July 15, 2011 for driving while disqualified. When confronted by the police on July 15, 2011, Mr. Ranglin fled on foot but was apprehended by the police.

[125] In addition to the above, the ITO sets out certain additional evidence from tips, three from informants and two from Crimestoppers, all of which were received within a short time of the shooting:

(a) CI tip #1 (Para 39)

This informant stated that the shooting was retaliation for a murder committed by the victim. There is no prior history with this CI.

This information regarding a possible motive is corroborated by the evidence from some of the individuals and other information obtained by the police.

(b) CI tip #2 (Para 42)

This informant identified Skyjuice as Mr. Ranglin, stated that Mr. Ranglin was known as a “gunman” and that an investigation into Mr. Ranglin and his brother resulted in a firearm being found in a motor vehicle. This informant has previously provided reliable information to the police.

The information regarding Mr. Ranglin being “Skyjuice” was corroborative of the statements from other witnesses. The information that Mr. Ranglin might be a gunman is not a difficult inference to be drawn from the evidence of other witnesses that Mr. Ranglin is involved in drug dealing.

(c) CI tip #3 (para 45)

This informant is a carded informant and was investigated by the police, leading them to consider his evidence reliable. This informant advised that Tone (Anthony Borden), Diddy and Skyjuice were involved in drug trafficking at Darcel Avenue; Tone was in possession of a 45 calibre handgun; Tone had shot and killed Mr. Brissett with a 45 calibre handgun at Rexwood Road; the killing was in retaliation for Demar Ranglin’s killing by Keith Brissett; Tone and Skyjuice ran up to Brissett’s vehicle during the shooting at Rexwood Road.

This tip has considerable detail. The similarity and consistency to other evidence in the ITO is unlikely to be a coincidence.

This tip also includes corroborative evidence of the group involving: “Tone”, “Diddy” and “Skyjuice” and their involvement in drug dealing. This tip is confirmatory that, at least some in the group, used guns. Further, these individuals were involved in the shooting which identifies, Skyjuice and Tone, two of the members of the group, who are black males in their 20’s consistent with the shooter’s description by other witnesses. Once again and like other evidence, this tip identifies the motive, being the retaliation for Demar Ranglin’s murder. This tip is also corroborative of the fact Mr. Borden was at the scene of the shooting consistent with Mr. Borden’s Mazda 3 being seen at the shooting.

(d) CrimeStoppers Tip #1 (para 51(a))

This tip stated that the shooter was Skyjuice, a black male, medium skinned, early 20’s, 5’6” to 5’8”, average build, brown eyes, black short hair. The caller also stated that Clayton and Diddy were also involved in the shooting.

Again, this tip ties the group of individuals together. It identifies not only “Skyjuice” but also provides a description for him consistent with the description others have provided for the shooter and Mr. Ranglin.

(e) Crimestoppers Tip #2 (para 51(b)

The caller saw the vehicle and described it as a pearl white Ford Fusion with two occupants, the driver was male Spanish or Indian, the passenger was male black, both in the 20’s.

This is consistent and corroborative of a number of witnesses who described a light, white, grey or silver vehicle speed off after the shooting and the description of the passenger being a male black in his 20’s.

[126] The above tips are also to some extent corroborative of each other and there is a substantial amount of commonality between the witness statements, the police investigation and the information from the tips.

[127] The degree of commonality in the totality of the information received by the police and various portions of the tips defies coincidence.

[128] This is one of those situations where a Debot analysis is not appropriate on any individual piece of information or on any one tip. This would necessarily focus the analysis on individual pieces of information rather than considering the cumulative and overall effect of all the information in the ITO. In R. v. Nguyen, 2007 ONCA 24, at para. 4, the Court of Appeal stated:

The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house.

[129] It was clear from the police investigation, including all the statements, their investigation and the tips, that the group of individuals (which include Mr. Ranglin) were reasonably believed to be involved in the shooting.

[130] Turning to the cell phones specifically, search of cell phones, the location, the calls made and received, text messages and other cell phone information is a valuable police investigative tool.

[131] It is clear that, at least some of the members of this group of individuals used cell phone numbers with false identification and provided false phone numbers. Mr. Ranglin was part of this group of individuals using such phones. Despite extensive efforts, the police had limited success in obtaining phone records for this group of individuals. Cell phones numbers were deliberately difficult to obtain for this group of individuals because of the use of false names and wrong phone numbers. By itself, this amounts to suspicion. However, when combined with the evidence regarding the involvement of this group in the shooting, the reason to believe the two cell phones would provide evidence relating to the murder becomes reasonable based on credible evidence.

[132] The Defence submits that the police had already obtained a Production Order for Mr. Ranglin. True. But Mr. Ranglin had two cell phones when he was stopped on July 15, 2011. It is not clear if the Production Order related to either of the cell phones Mr. Ranglin possessed on July 15, 2011. Further, a search of the cell phones would likely provide much more information that could be obtained from a Production Order such as photographs and audio recordings as found on the Blackberry in this case.

[133] Therefore, it is reasonable to believe, based on all the evidence in the ITO, that Mr. Ranglin’s cell phone could have evidence relating to this murder. Put another way, I am satisfied that the credible evidence in the ITO goes beyond suspicion and provide credibility based reason to believe that Mr. Ranglin may have had some involvement or was involved, with other persons, in Mr. Brissett’s murder for which his two cell phones might reasonably provide evidence relating to the murder.

[134] However, this court doesn’t have to go that far. The question is a lower threshold: Taking all of the above information in the ITO, could the issuing justice have concluded that Mr. Ranglin’s cell phones would provide evidence of the murder?

[135] In my view the totality of the evidence leads me to conclude that the issuing justice could have concluded, based on the totality of the information in the ITO, that reasonable and probable grounds existed that Mr. Ranglin’s Blackberry would provide evidence relating to the Brissett murder.

[136] In these circumstances, I am compelled to dismiss the application to quash the Search Warrant.

Should the court exercise its discretion to exclude the Blackberry audio files?

Was there trial unfairness as a result of the Crown confirming to the Defence it would introduce the Blackberry audio files?

[137] In R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, the Supreme Court described this court’s jurisdiction to exclude evidence where the admission of evidence would cause a trial to be unfair:

[23] The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, but the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules. In R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, a majority of this Court made it clear that a judge has a discretion to exclude evidence that would, if admitted, undermine a fair trial; see also R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525. Similarly, Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "if the admission of certain evidence would adversely affect the fairness of an accused's trial, the evidence ought to be excluded" (emphasis added). In Thomson Newspapers, supra, I attempted to explain that this approach is a necessary adjunct to a fair trial as guaranteed by s. 11(d) of the Charter in the following passage, at p. 559:

. . . there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.

I went on to further explain, as I had in Corbett, supra, that the common law principle had now been constitutionalized by the Charter's guarantee of a fair trial under s. 11(d) of the Charter. At page 560, I continued:

The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744-46; Dickson C.J. does not really comment on this issue).

[24] The effect of s. 11(d), then, is to transform this high duty of the judge at common law to a constitutional imperative. As I noted in Thomson Newspapers, at p. 563, judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter. In such circumstances, the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset.

[45] At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 362,per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[46] Evidence may render a trial unfair for a variety of reasons. The way in which it was taken may render it unreliable. Its potential for misleading the trier of fact may outweigh such minimal value it might possess. Again, the police may have acted in such an abusive fashion that the court concludes the admission of the evidence would irremediably taint the fairness of the trial itself. In the case at bar, police abuse or unfairness is the only ground raised, and hence the only one with which we need concern ourselves.

[138] In this case the Audio Files were disclosed, some time ago, as part of the Crown disclosure. Mr. Ranglin’s “recorded rap music” describes him as possessing or owning a 40 caliber Llama/ 40 cal/ llama, all referring to a type or manufacturer of a handgun.

[139] The Crown disclosure has also always identified the murder weapon as a 40 caliber handgun. The connection and relevance of these two pieces of evidence to potentially establish that it was Mr. Ranglin’s handgun used in Mr. Brissett’s murder is or should have been readily apparent to the Defence. I fail to understand how the Defence could suggest it is taken by surprise when the Audio Files on a cell phone taken from Mr. Ranglin refer to a handgun of the calibre used in the murder at issue in this case.

[140] This evidence is significant to the Crown’s case. Given Mr. Borden’s expected evidence that he borrowed the handgun from Mr. Ranglin and returned it to Mr. Ranglin just before the shooting, may be corroborative of Mr. Borden’s evidence, which is significant because Mr. Borden is a “Vetrovec” witness.

[141] The Defence submits it did not appreciate the importance of this evidence until the Crown advised, a short time before trial, that it intended to introduce the Audio Files at trial. That may be true, but the Defence was aware that the Audio Files were part of the evidence disclosed to the Defence well before trial and could be introduced at trial. Absent an undertaking by or agreement of the Crown not to call this evidence (of which there is none), the Defence should have been prepared to deal with this evidence. The Defence’s alleged lack of appreciating the significance of the Audio Files is not a basis upon which relevant evidence such as the Audio Files should be excluded.

[142] The Defence states that during the judicial pre-trial, the Crown did not make “mention of there even being a possibility that the Crown would seek to adduce the evidence from the Blackberry now at issue”. I disagree with the Defence submission that the Crown must tell the Defence the significance of the disclosed evidence or the Crown’s theory. There is no such obligation on the Crown. Besides, while preparing for trial and during the course of trials, evidence comes out that is different than expected, positions taken by the Defence change and trials go in unexpected ways. Trials are to some extent fluid but the Crown is bound by the Indictment and the evidence which has been disclosed to the Defence.

[143] This is not “trial by ambush” as suggested by Defence counsel. The Defence has been aware of this evidence for a considerable period of time. The Crown was obliged to disclose all relevant evidence to the Defence. It did so in this case.

[144] The Crown’s communication to the Defence before trial that it would be introducing the Audio Files at trial is not and was not improper given the prior disclosure. What this communication did was to give the Defence an opportunity to challenge the admissibility of this evidence. The Defence accepted this opportunity and brought these applications. The Crown agreed to defer the commencement of the trial until these applications were heard. I see nothing improper or unfair in the manner which this matter arose and, more importantly, how this results in “trial unfairness” to the Defence.

[145] As a result, I do not accept that the admission of this evidence would result in an unfair trial.

Does the prejudicial effect of the Blackberry audio files exceed the probative value of the Blackberry audio files?

[146] The Defence submits that the probative value of the Audio Files has little or “marginal” relevance and will be highly prejudicial.

[147] In R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, the Supreme Court stated the following regarding this court's jurisdiction to exclude relevant evidence:

[18] The truth-seeking function of the trial creates a starting premise that all relevant evidence is admissible (R. v. L. (D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670). Evidence is logically relevant where it has any tendency to prove or disprove a fact in issue (Corbett, at p. 715).

[19] However, not all relevant evidence is admissible. The trial judge must also balance the probative value of the evidence against the prejudicial effects of its admission (R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; Corbett; Sweitzer v. The Queen, , 1982 23 (SCC), [1982] 1 S.C.R. 949; Seaboyer; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562). Evidence led by the Crown will be excluded where its prejudicial effects outweigh its probative value (Seaboyer). The presumption of the accused’s innocence leads us to strike a different balance where defence-led evidence is concerned. As this Court explained in Seaboyer, “the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law” (p. 611; see also R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129).

[148] Justice Pomerance in R. v McCullough, 2016 ONSC 1014 set out the court’s approach to the relevancy of rap lyrics:

[36] There is a risk that rap lyrics may be misinterpreted thus inflating the probative value of the evidence. The courts must be cautious in admitting this type of evidence: see R. v. Simard, 2000 SCC 61, as discussed in David Tanovich, R. v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases (2016), 24 C.R. (7th) 27, at p. 33.

[37] In his very helpful article, cited above, Professor Tanovich extracted the following principles from the case law:

When will rap lyrics have sufficient probative value taking into account the policy concerns identified? As a general rule, rap lyrics should only be constructed as probative where there is a direct link between the lyrics and the crime being prosecuted. This is the approach taken in Campbell and a number of courts in the United States. For example, in Skinner, it was noted that “… we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.” This is also the approach our courts have taken with accused-authored poems, stories and other writings. As Justice Corbett noted in R. v. Liard and Lasota:

The more similar the writings are to the actual murder, the stronger the inference that the author was interested in the very activity that happened. The more generalized the writings, the more they may only exhibit a “dark or disturbed thought pattern”, the less probative they are to issues of motive, planning and state of mind.

[38] I agree with this approach. In order for rap lyrics to be admissible, there must be a concrete nexus between the specific details of the lyrics and the specific details of the crime. Purely generic similarities – the lyrics are violent and the crime is violent – will not suffice to warrant admission.

[149] In this case, the Audio Files have more than little or marginal relevance. There is a clear and concrete nexus between the firearm used in Mr. Brissett’s murder and the lyrics:

• the same caliber;

• the name of a firearm which is consistent with the firearm used in the murde; and

• it is potentially corroborative or Mr. Borden’s evidence that he returned to Mr. Ranglin the 40 cal Llama just before Mr. Ranglin shot Mr. Brissett.

[150] There is substantial potential probative value in these rap lyrics.

[151] Turning to prejudicial effect of this evidence.

[152] If the Defence’s position is that this evidence is prejudicial since the Defence was told of the Crown would seek its admission just prior to trial. That does not constitute prejudice for the reasons set out above.

[153] This evidence is reliable. It is an audio file on Mr. Ranglin’s cell phone. I see no improper or impermissible use by the jury. The jury can accept or reject that this evidence and decide whether it has any relevance to the gun used in the shooting. The jury can also reject that it is or is not confirmatory of Mr. Borden’s evidence. Jury instructions can and will be given as to how the jury can use this evidence.

[154] I see nothing prejudicial, in the legal sense, that results in trial unfairness to Mr. Ranglin.

[155] As a result, a probative versus prejudice analysis does not warrant the exclusion of the Audio Files.

Conclusion

[156] The Audio Files are admissible at trial.

Ricchetti, J.

Released: June 29, 2016

CITATION: R v. Ranglin 2016 ONSC 3972

COURT FILE NO.: Crim J(P) 1156/15

DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHELDON RANGLIN

endorsement on exclusion of the blackberry cell phone search

Ricchetti J.

Released: June 29, 2016