R. v. Julian Justinico, 2016 ONSC 539

CITATION: R. v. Julian Justinico, 2016 ONSC 539

COURT FILE NO.: 14-61

DATE: 2016/02/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Julian Justinico

Defendant

Aquilas Kapend, counsel for the Crown

Neha Chugh, counsel for the Defendant

HEARD: January 11-12, 2016

REASONS ON MOTION

Leroy, J.

1Justin Justinico is charged with sexual assault, a designated offence under s. 487.04 of the Criminal Code. His Honour Judge B. MacPhee issued a warrant pursuant to s. 487.05 of the Criminal Code on November 7, 2013 authorizing the taking of bodily substances from Mr. Justinico for forensic DNA analysis. The defence challenges the validity of the warrant. The constitutionality of the search turns on the validity of the warrant. Admissibility of the search results in the event of an unconstitutional search turns on analysis of the principles ingrained in s. 24(2) of the Canadian Charter of Rights and Freedoms.

2Section 487.05 provides that where a provincial court judge is satisfied there are reasonable grounds to believe

(a) that a designated offence has been committed,

(b) that a bodily substance has been found or obtained,

(c) that Mr. Justinico was a party to the offence , and

(d) that forensic DNA analysis of a bodily substance from Mr. Justinico will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

and who is satisfied it to be in the best interests of the administration of justice to do so may issue a warrant authorizing the taking from that person bodily sample(s) for the purpose of forensic DNA analysis.

3The defence argues that after excising the impugned sentences from the ITO what remains does not establish reasonable grounds to establish the reasonable belief required in subparagraphs (a) and (c). Reasonable grounds to believe in the elements of subparagraphs (b) and (d) is uncontested. The Center for Forensic Science confirmed a male bodily substance from the vaginal swab.

4Two groups of principles control the decision on the validity of the warrant. The first has to do with the standard to be met for the issuance of a DNA warrant. The second is the standard to be applied on review of the warrant.

The Standard for Issuance of s. 487.05 warrants

5Justice Watt summarized this standard, albeit in respect to a Section 11 CDSA Warrant in R. v. Sadikov 2014 ONCA 72 at paragraph 81 and 82 as follows – revised to reflect the different constituent elements.

81The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establish reasonable grounds to believe that a designated offence has been committed, that a bodily substance has been found or obtained, that Mr. Justinico was a party to the offence and that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person. If the inferences of criminal conduct and recovery of evidence connecting to the target host are reasonable on the facts disclosed in the ITO, the warrant could be issued: R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

82The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at

The Standard for Warrant Review –Sadikov paragraphs 83 – 89, per Watt J.A.

6[83] Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it, in this case, Justinico.

84The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.

85The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later: Morelli, at para. 43.

86… In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree: Ebanks, at para. 21.

87Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review: Garofoli, at p. 1452; and Ebanks, at para. 20.

88It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge’s role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40.

Facial/Sub-facial challenge

7Challenges to the validity of warrant may involve either or both a facial and sub-facial attack on the authorizing warrant.

8The challenge in the case at bar is of the sub-facial genre.

9Justice Watt explained the distinction in challenge genres in Sadikov at paragraphs 37 and 38 as follows:

37A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.

38Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para. 51; and Garofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52.

10In the case at bar the claim is that an entry in the ITO should be excised and that the excision denudes the ITO of reasonable grounds to believe that a designated offence was committed or that Mr. Justinico was a party. That is ipso facto a sub-facial challenge.

11As a matter of principle, on a review information in the ITO unconstitutionally obtained is properly excised. Provided that material is not part of a deliberate attempt to mislead the Justice, the record may be amplified by evidence showing the true facts – R. v. Aroujo 2000 SCC 65 per LeBel J at paragraph 56. At paragraph 58 Justice LeBel said that good faith error may be corrected by amplification.

12The term “as amplified on review” refers to the process whereby external evidence, known at the time, but not included, is adduced to amplify or enhance the record for the purpose of correcting technical errors and oversights in the supporting ITO. If, after excision, the authorization can be sustained, there is no need to resort to amplification. If the requisite excisions render the authorization unsustainable, good faith omissions and errors may be amplified on review.

Permissible extent of amplification

13Two perspectives on the extent of available amplification derive from the comments addressed to this subject in Morelli and Araujo.

14Justice LeBel in Araujo at paragraph 59 wrote:

59 When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii). The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.

15Some courts have interpreted those comments narrowly as signifying that minor technical errors can be rectified on amplification but substantive deficiencies cannot be rectified through the amplification process – R. v. Radjenovic, 2010 BCSC 1750 per Ker J.

16Other courts have held that the Supreme Court was not identifying an exclusive category of errors for which amplification can seek to reconcile, but rather was giving an example in the circumstances of the case. Aitken J. in R. v. Bouchard, 2011 ONSC 5052 ruled that while it would be wrong to permit a defective authorization to be totally rehabilitated by amplification, amplification was not limited to minor technical errors in drafting made in good faith. In Bouchard, Aitken J. allowed amplification to correct a drafting error wherein the Affiant left out a reference to the undercover officer, making it seem as if another person arranged to buy the drugs. She concluded there was no intention to mislead the issuing Justice, the words were simply left out.

17Where the authorities do agree is while amplification cannot be used to circumvent the application process, care should be taken not to put form over substance in those cases where errors were made in good faith.

Application to this case

18The ITO submitted to the learned Justice MacPhee provided reasonable grounds to believe the existence of the four elements needed for a DNA warrant. The information was such that a judicial officer could be satisfied that there were reasonable grounds to believe in the existence of the four elements required for issuing the warrant.

19The challenge to the impugned warrant derives from my earlier ruling excluding from evidence the portion of accused’s statement from page 20 through to conclusion of his opportunity to speak with counsel. Counsel agree that the last two sentences of paragraph D11 have to be excised. There are two reasons. The first is that Det. McKay erred in the representations that “The accused further admitted to entering the residence through the back door after attempting two other doors which were locked. The accused admitted to attending the victim’s bedroom and performing oral sex on her followed by intercourse whereby he took his penis and inserted it into S. D.’s vagina.”

20Detective McKay made an innocent error in interpretation. Mr. Justinico did not actually say the words. A review of the statement brings to mind the standard jury instruction to the point that questions are not evidence unless the witness agrees that what was asked is correct.

21Secondly, those conclusions derived from the portion of the statement excluded for constitutional reasons.

22The first issue is whether excision vitiates reasonable grounds to believe that a designated offence has been committed and that Julian Justinico is a party to this offence.

On the issue of whether a designated offence has been committed

23I do not accept this defence submission. The excision does not impact on this component of the authorization checklist.

24The complainant reported a sexual assault in her bed, bedroom at approximately 5:00 a.m. after everyone at the party had gone and the house occupants were asleep.

On the issue of whether Julian Justinico is a party to the offence

25The ITO on this issue disclosed that Mr. Justinico attended the party at the complainant’s home (along with others), that a roommate caught Mr. Justinico spooning the intoxicated complainant, who was asleep (passed out) in her bed, Mr. Justinico was instructed to leave, that he talked about how it would be great to have sex with the complainant and how he was pissed at the roommate for ruining his chance. Mr. Justinico admitted to returning to the house after the party ended and the house was dark.

26I noted in the statement ruling that Detective McKay recognized he did not have reasonable and probable grounds to detain or arrest Mr. Justinico based on the disclosures from the complainant and witnesses. Mr. Justinico elevated the basis for reasonable belief with the acknowledgement he returned to the house after the party. The 5:00 a.m. timeline for the assault coincident with Mr. Justinico’s return to the premises is a coincidence that could not be ignored in the assessment by the issuing justice..

27Detective McKay was alert to amplification details not included in the ITO in the context he thought he had a safe confession.

28Those details include the following:

i. the complainant went to bed at 3:00 a.m. before the visitors had gone;

ii. the accused entered her room and her bed before leaving in the 3:00 a.m. time slot;

iii. the accused resided in the same building the year before – inference is that he would know how to access the interior;

iv. the assailant was a smaller figure, as is Mr. Justinico – 5’10”, small build.

29I can appreciate why those details would be categorized redundant in the face of the perceived confession. Their omission was in good faith and not intended to mislead the issuing Justice and are properly admitted as amplification evidence. They fill in known details that were redundant before the statement ruling.

30My conclusion is that even without the amplification details, the ITO as excised delivered sufficient information to achieve the reasonable grounds to believe standard to issue the warrant. If that is not correct, the amplification details complete the record to the required extent.

31If the court had concluded there was a search infringement the evidence of DNA correlation is admissible, notwithstanding the section 8 breach because the defence has not established on a balance of probabilities that having regard to all the circumstances the admission of the DNA evidence at his trial would bring the administration of justice into disrepute.

32I have considered the following:

i. Seriousness of the breach (infringing state conduct) – Detective McKay made a human mistake. What he heard was not what was said. The decision to exclude a portion of the statement was directed more at the high degree of intrusion that occurs when a statement in unconstitutionally obtained rather than officer conduct. Prior judicial authorization was obtained. Blameworthiness is at the lower end of the spectrum.

ii. Impact on accused – the requirement for judicial approval of the test signifies Parliament’s concern for process in respect to DNA testing. There was an intrusion on the accused’s privacy interest, bodily integrity and human dignity. The procedure was innocuous and involved a finger pin prick.

iii. Society’s interest in adjudication on the merits: Sexual assault is a crime of violence with serious consequences for the victim. DNA evidence is very reliable. It is important to the singular issue of identification in this case. Both favour admissibility.

Conclusion

33The sample of the applicant’s blood taken pursuant to the order of Judge MacPhee was not obtained in a manner that infringed or denied Mr. Justinico’s right to be secure against unreasonable search or seizure under section 8 of the Charter.

34Had the court’s conclusion been that Mr. Justinico’s Charter right against unreasonable search and seizure was infringed, the admission of this evidence at trial would not bring the administration of justice into disrepute. It would not be excluded under section 24(2) of the Charter.