Court File and Parties
COURT FILE NO.: CR-15-101 DATE: 2016/07/27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Jason Poirier Defendant
Counsel: Ron Turgeon, for the Federal Crown Frank Horn, Counsel for the Defendant
HEARD: May 25, 2016
RULING ON APPLICATION TO QUASH A SEARCH WARRANT
Leroy, J.
Introduction
[1] This is Jason Poirier’s application to quash the search warrant issued by Justice of the Peace Forgues on September 3rd, 2014, authorizing entry and search of his residence and to exclude the evidence seized as the result. Although a number of grounds were raised in the notice materials, counsel advised that the application rests on challenge to the manner in which the warrant was obtained and the consequential effect it had on the integrity of the warrant.
[2] The warrant system is designed to balance the protection of society on the one hand with the protection of the individual’s constitutionally protected reasonable expectation of privacy on the other. A search warrant is an order issued by the Justice of the Peace, authorizing a peace officer to enter a specified place to search for and seize specified property which will afford evidence of an actual or intended crime. A warrant may issue upon a sworn information and proof of reasonable grounds for its issuance.
[3] There are three broad requirements of a valid search warrant:
- The informant must present the justice with an information upon oath which provides her with factual detail sufficient to confer jurisdiction.
- The issuance of a search warrant is a judicial act. The justice must act judicially in her independent assessment of the facts and in the exercise of her discretion whether to issue a search warrant.
- The warrant to search must contain sufficient description of the objects of the search in relation to category and offence.
[4] The basic jurisdiction for a search rests with the existence of credibly-based probability that an offence has been committed and there is evidence of it to be found in the place of search. Mr. Justice Hill in R. v. M.(N.N.) (2007), 2007 ONSC 31570, 223 C.C.C. (3d) 417 beginning at paragraph 319 summarized the principal requirements of a successful search warrant application.
[5] The defence accepts that the warrant application meets the test for sufficiency recognized in R. v. Garafoli (1990), 80 C.R. (3d) 317 (S.C.C.), page 344. On its face, the application achieves the necessary substantive information for a search warrant.
[6] The defence argument is that failure to record a conversation between the Justice of the Peace and Detective Langlois immediately before the detective revised his information for re-submission makes it impossible to review their process for impartiality and fairness in the independent assessment of the facts and exercise of judicial discretion.
[7] Counsel agree that if the warrant is quashed, the search was unreasonable and the evidence seized would be excluded as the result of a section 24(2) Charter review.
The Interactions
[8] Detective Langlois attended before the Justice of the Peace on September 3rd, 2014 at 11:40 hours. That interaction was recorded and transcribed – Exhibit #3 – 11:39:04 to 11:39:51 and is not in issue.
[9] At 13:55 hours, after reviewing the ITO, Justice of the Peace Forgues issued a Refusal of Order – Reason for decision. Her endorsement refusing the initial warrant application was: “Insufficient information provided by which an assessment of credibility/reliability of confidential informers can be made.” There is no complaint with the endorsement.
[10] Detective Langlois returned to the courthouse at 14:00 hours. In testimony, he characterized the deficiency discussion as one of clarification. On reflection, after reviewing the amendment to the revised ITO, he testified that Justice of the Peace Forgues said she could not ascertain from the face of the ITO submitted whether there was one informant disclosing to two officers or two separate informants disclosing to the two officers. Detective Langlois depicted the omission as a deficiency. This conversation was not recorded. This interaction is in issue.
[11] Detective Langlois said he called his partner as he walked back to the station so his partner could promptly revise the ITO to confirm two individual informants. He collected the revised ITO and immediately returned to the courthouse, appearing again before the Justice of the Peace at 14:10 hours. This conversation was recorded and is not in issue. Detective Langlois waited in the courthouse while the Justice of the Peace reviewed the amended ITO. The warrant was granted at 14:20 hours.
[12] The amendments to the ITO were as follows:
Paragraph 8 in relation to CI #1: The sentence “Please refer to the attached criminal record if any to access the informer’s credibility” was deleted in the second submission and replaced with “This informer balance redacted ”.
Paragraph 48 in relation to the second CI was added: “On the 3rd of September, 2014, I applied for and was denied a Section 11 CDSA search warrant by Her Worship Forgues citing errors written in the informant #2 qualifying comments by D/Cst. Whitehorne. (Underscore added by writer) As a result, I confirmed with D/Cst. Whitehorne that the informant #2 does balance redacted.”
Governing Principles
[13] The issue raised in this application was articulated by Justice Hill In The Matter of an application pursuant to s. 462.48 of the Criminal Code for an Order for Disclosure of income tax information (1999) CarswellOnt 1019 at paragraph 5:
- As I stated in Criminal Code, Re (October 24, 1997): I think it important to state that the role of the court, in those cases where an application is dismissed, is to provide those reasons which animated the court’s decision. Such reasons or observations may have the incidental effect of the authorities retooling a failed application in order to make a successive application to the court upon appropriate material. Although this may be an incidental effect of the delivery of reasons for judgment by the court, it is important to understand that the court is not to be co-opted into partnership with the government in the drafting of further and better materials. That approach oversteps the confines of judicial neutrality.
[14] The fine line was depicted by the Manitoba Court of Appeal in R. v. Gray (1993), 81 C.C.C.(3D) 174 at page 183:
“In my opinion, the impugned practice disclosed by the evidence resulted in the failure of the judicial officer to properly exercise her detached independent function. Where direction is given by a judicial officer respecting the contents of the information to obtain on a material point going to the merits of the application, he/she simply becomes an agent or arm of the police. (Italics added by writer) It is not proper for the police to present a judicial officer with an unsigned or incomplete information to obtain and, after receiving inappropriate direction with respect not only to the technical language but also the substance of the document, to then swear it in its altered form before the same judicial officer.
It is of course open to a magistrate hearing an application for a warrant and considering the evidence presented to identify deficiencies and to reconsider the application when these deficiencies have been remedied by the police. But that was not what took place in this case.”
[15] The same theme was addressed in R. v. Thurston, 1998 CarswellOnt 1792 at paragraphs 28 and 29. Judge McGowan wrote:
“28. When the Justice of the Peace declines to issue it is appropriate to note on the face of the information the reasons for refusal. Alternatively, if the Justice feels it is appropriate to clear up some minor detail, then she should ensure some record of the conversation is kept. (underscore added by writer)
- Having regard to all the circumstances here, I am unable to determine whether the Justice of the Peace crossed the proverbial line, because there is no record or recollection of the conversation. As in the Gray case, it is impossible for the defence to establish whether or not the conduct of the Justice of the Peace was fair and impartial.”
[16] Judge McGowan was not satisfied that the search warrant met the standard in Section 8 of the Charter. The critical concern was the danger of a perception of collusion between the police and judicial officer. The manner in which the warrant was issued was not demonstrably reasonable. He confirmed that best practice entailed a process whereby the Justice received the ITO already sworn, he or she would review and either issue a warrant or not.
Crown Position
[17] The Crown position is that the case at bar is substantively distinguishable from the cases cited. The Crown submits that the recall and the amendments constitute reliable evidence to establish that the unrecorded exchange did not cross into forbidden inappropriate direction on substance of the information the Justice of the Peace needed to issue. Detective Langlois retains recall in relation to the dialogue which is that the Justice of the Peace required clarification about whether there were two individual informers or one informer talking to two officers. This request for clarification would not cross the line into forbidden assistance. The amendments to the successor ITO are consistent with that recollection.
Conclusion
[18] With respect I disagree. The record we have does not assist in a review. The detective’s recall does not add reliability to the analysis. Whether there were one or two confidential informers could not have been the issue raised for clarification. The rejected ITO thoroughly distinguishes the confidential informers. It was clear there were separate confidential informers.
[19] The record for review is limited to the document trail. The two amendments to the ITO, redacted as they are, do not clarify the number of informants. Rather, the ITO amendments reference deficiency in Detective Whitehorne’s qualifying comments regarding Informer #2. It is impossible to form a reliable conclusion as to what the change to paragraph 8 signifies.
[20] The test is whether the manner in which the warrant was issued can be proven demonstrably reasonable. Whether Her Worship crossed into the realm providing direction to Detective Langlois respecting the contents of the application or not is unclear. Her Worship’s endorsement refusing issuance based on the first offering references deficiencies relative to her ability to assess the credibility of the confidential informers. Their dialogue would have related to the substance of the endorsement. That is consistent with the substance of paragraph 48. That is inconsistent with the detective’s recall. That pillar of the Crown submission fails.
[21] Although the facts at bar are not comparable to those in Gray or Thurston where the evidence did disclose improper direction on information content, the absence of a record of the conversation together with the open-ended written endorsement and revisions compiled in ten minutes after the dialogue that do not seem to validate the detective’s recollections, the record fails to permit a reliable review of the degree of fairness and impartiality brought to bear by the learned Justice of the Peace in respect to issuing this warrant.
[22] I note that the protocol in East Region for search warrant applications was amended in June 2015 so that attendances by police officers before Justices of the Peace were eliminated save for emergency situations.
[23] It would be an error to conclude a finding from this decision that either of the officer or the Justice of the Peace engaged in the prohibited drafting partnership. Rather, it is a case where the burden on the Crown of establishing warrant validity was not met. For these reasons, the warrant is quashed.