Her Majesty the Queen v David Joachim D’Souza, 2016 ONSC 5855

COURT FILE NO.: CR15-169-0000 DATE: 20160919

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

• and -

David Joachim D’Souza Applicant

COUNSEL: Michael Carnegie, Provincial Crown, Elizabeth Barefoot, Federal Crown, for the Respondent Vanessa V. Christie, for the Applicant

HEARD: September 12, 13, 14, 15 & 16, 2016

REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATIONS:

Sections 8, 10(a), 10(b) and 24(2) of the Charter

Conlan J.

I. Introduction

The Charges and the History of the Proceedings

[1] David D’Souza stands charged on a multi-count Indictment, as follows.

1. Her Majesty the Queen presents that David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region, and elsewhere in the Province, did unlawfully recruit, transport, harbor or exercise control, direction or influence over the movements of D.P., a person under the age of 18 years, for the purpose of exploiting her person, contrary to section 279.011(1) of the Criminal Code of Canada.
2. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did unlawfully receive a financial benefit knowing that it results from the commission of an offence under subsection 279.011 Criminal Code of Canada; contrary to section 279.02 of the Criminal Code of Canada.
3. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did live partly on the avails of prostitution of D.P., a person under the age of 18 years, contrary to section 212(2) of the Criminal Code of Canada.
4. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did procure D.P. to become a prostitute, contrary to section 212(1)(d) of the Criminal Code of Canada.
5. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess child pornography for the purpose of transmission to others, to wit; a computer graphic picture, contrary to section 163.1(3) of the Criminal Code of Canada.
6. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did without lawful excuse, point a firearm, to wit; a long-barreled gun at D.P., contrary to section 87 of the Criminal Code of Canada.
7. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess a weapon or an imitation of a weapon, for a purpose dangerous to the public peace, contrary to section 88 of the Criminal Code of Canada.
8. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did by speaking directly knowingly utter a threat to D.P., to cause death to D.P., contrary to section 264.1(1) of the Criminal Code of Canada.
9. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did have in his possession, a prohibited weapon, to wit; two push daggers, without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada.
10. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit; Cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
11. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule II, to wit; Cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
12. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit; Methylenedioxyamphetamine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
13. And further, David Joachim D’Souza, between September 1, 2013 and January 1, 2014, at the City of Owen Sound, Central West Region, did traffic in a substance included in Schedule I, to wit; Cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.

[2] The accused has elected to be tried in the Superior Court of Justice, by a judge and jury. The trial is scheduled to commence with jury selection in Owen Sound, Ontario on September 19, 2016. It is expected to last two weeks.

[3] Mr. D’Souza was arrested in late May 2014. In early June 2014, he was released on bail.

[4] The preliminary inquiry in the Ontario Court of Justice was conducted in June 2015, with the accused being committed for trial in July 2015.

[5] Over the course of many months, this Court has heard and ruled on numerous pretrial Applications dealing with a proposed change of venue, severance, the constitutionality of the human trafficking provisions in the Criminal Code, abuse of process, section 11(b) of the Charter, and proposed expert evidence to be tendered by the Crown.

The Allegations

[6] It is alleged that a young lady, D.P. (17 years old at the time), worked as a prostitute for several months. She, a victim of the accused’s coercion, would perform sexual acts in exchange for money. She would meet clients in Toronto and at the residence of the accused in Owen Sound. The arrangements would be made by Mr. D’Souza, who would receive some of the revenues paid to the complainant.

[7] It is further alleged that Mr. D’Souza once pointed a firearm at the complainant.

[8] In addition, it is alleged that the accused advertised the young lady’s sexual services on a website, showing provocative photos of her partially undressed.

[9] Upon the arrest of Mr. D’Souza at his residence, the police allegedly seized from that location, under warrant, firearms and weapons, cocaine, another controlled substance, marihuana, cell phones, and a laptop computer.

[10] A search warrant was also executed at the home of the accused’s parents in Scarborough. It is alleged that a handgun and ammunition were seized.

[11] No charges were laid regarding the firearms.

[12] In total, multiple electronic devices were seized by the authorities and examined forensically.

[13] At the preliminary inquiry, the complainant gave evidence that she was present to observe the accused conduct drug transactions and had been, from time to time, offered cocaine by Mr. D’Souza.

These Applications

[14] During the week of September 12, 2016, a blended voir dire was conducted to deal with several further issues raised in Defence pretrial Applications.

[15] Broadly speaking, in chronological order, those issues relate to (i) the arrest of the accused on May 29, 2014 (which arrest was effected after the complainant, D.P., gave an audio-video statement to the police that same day), (ii) the warrantless search of his person, (iii) the warrantless search of his minivan, (iv) the search under warrant of his residence, (v) the audio-video statement of Mr. D’Souza to the police in the early morning hours of May 30, 2014 (and all preceding utterances made by the accused to the police after his arrest), (vi) the search under warrant of his parents’ residence, and (vii) the search under warrant of electronic devices previously seized by the police.

[16] In a nutshell, ignoring for a moment section 24(2) of the Charter, the Defence makes the following legal arguments.

[17] First, regarding sections 10(a) and 10(b) of the Charter, Mr. D’Souza ought to have been told, right away, of the complete reasons for his arrest by the police on May 29, 2014. Failure to do so was a violation of section 10(a). Further, in breach of section 10(b), there was unreasonable delay in the police first contacting duty counsel once Mr. D’Souza arrived at the police station after his arrest. In addition, despite facing a significant change in his jeopardy, the police failed to facilitate the accused’s request to contact counsel voiced near the commencement of his formal audio-video statement. That failure was a violation of section 10(b).

[18] Second, regarding section 8 of the Charter, the searches of the accused’s person and his motor vehicle upon his arrest were warrantless and not authorized by law. The searches of the two residences were under warrant but otherwise unreasonable. More specifically, the search of Mr. D’Souza’s residence in Owen Sound was unreasonably executed at night and, in addition, precipitated by an unreasonable “clearing search” conducted by the police. Also, the application materials for the search warrant for that residence (the Information to Obtain or “ITO”) were misleading. The ITO for the search of the accused’s parents’ residence relied on earlier admissions made by Mr. D’Souza to the police, which utterances were made in violation of section 10(b). The forensic search of the electronic devices seized by the authorities was unreasonably conducted outside the permitted time period on the face of the warrant. Finally, the police failed to submit a Report to Justice regarding the execution of the electronic devices warrant.

[19] With regard to remedy, Ms. Christie, on behalf of Mr. D’Souza, candidly acknowledges that some of the alleged Charter violations would not, in and of themselves, lead to the exclusion of evidence under section 24(2).

[20] Rather, the Defence submits that the totality of the circumstances (in other words, the violations collectively, time and again) ought to lead inexorably to a remedy under that section.

The Voir Dire

[21] Both sides filed extensive written materials on the Charter Applications.

[22] In addition to those filings, the Court heard testimony from three police officers: (i) Detective Daniels of the Owen Sound Police Service (who interviewed both the complainant and the accused and who also participated in the search under warrant of Mr. D’Souza’s residence), (ii) Detective Robertson of the same police service (who arrested Mr. D’Souza, performed the initial “clearing search” of his residence prior to the search warrant being issued and then acted as the exhibits officer for the subsequent search under warrant of that residence), and (iii) Detective Holovaci of the same police service (who searched the person of the accused and his motor vehicle upon arrest, without a warrant, and participated in the subsequent search under warrant of Mr. D’Souza’s residence).

[23] During the week of September 12th, there was another voir dire, which proceeding immediately followed the one dealing with the Defence Charter Applications and which dealt with the admissibility, apart from the Charter issues, of the electronic data extracted from the devices seized by the police and sent to Waterloo for forensic analysis. The Court received documentary evidence and heard testimony from two further witnesses: a now retired Detective from the Waterloo police force’s Technological Crimes Unit, Graver, and Detective Matheson of the Owen Sound Police Service. It was agreed by all counsel that, in deciding the Defence Charter Applications, the Court could consider evidence adduced on the subsequent voir dire.

The Relevant Sections of the Charter

[24] Although likely well known to any informed reader, for ease of reference, I set out below sections 8, 10(a), 10(b) and 24(2) of the Charter.

Section 8 – Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Section 10 – Arrest or detention

10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and

Section 24 – Exclusion of evidence bringing administration of justice into disrepute

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

II. Analysis

The Rulings

[25] At the conclusion of the pretrial Applications during the week of September 12th, on Friday, September 16, 2016, with jury selection looming and the trial scheduled to commence on Monday, September 19, I gave the Court’s oral rulings on the Defence Charter Applications. I indicated at that time that written Reasons would follow. These are those Reasons.

[26] As of the end of the day on September 16th, it became unnecessary to rule on the authenticity of the electronic data. The Defence conceded that in light of the evidence of Graver. As for other admissibility issues concerning that evidence, I indicated to all counsel that we would have to deal with those as the trial unfolded and as the evidence was about to be introduced. There remain serious hearsay, relevance and probative value/prejudicial effect issues that will need to be resolved along the way.

The Onus and Standard of Proof

[27] The burden of proof is on the accused Applicant to demonstrate, on a balance of probabilities, a violation of his section 8, 10(a) and/or 10(b) Charter right(s).

[28] Where a Charter violation is found, the burden is on the accused Applicant to demonstrate, on balance, that the evidence in question ought to be excluded pursuant to section 24(2).

[29] Warrantless searches, however, are presumed to be unreasonable under section 8. The onus then falls to the party seeking to justify the warrantless search, the Crown, to rebut, on balance, the presumption of unreasonableness.

The Initial Arrest of Mr. D’Souza – Section 10(a) of the Charter

[30] Mr. D’Souza was arrested on May 29, 2014. Detectives Robertson and Holovaci had been tasked with attending in the vicinity of Mr. D’Souza’s residence in Owen Sound, watching for him and then arresting him for human trafficking.

[31] I accept the evidence of Robertson and Holovaci that they had been briefed by Detective Matheson but were advised that there were reasonable and probable grounds to arrest the accused for only one offence: human trafficking.

[32] I accept the evidence of Robertson that, once he observed Mr. D’Souza exit his residence and walk towards the van in the driveway, Robertson approached the driveway, and then the van, and had the male verbally identify himself as the accused, upon which Robertson immediately placed Mr. D’Souza under arrest for human trafficking.

[33] I am satisfied that, although the investigation was ongoing at the time of the arrest, and although the complainant had already disclosed things in her audio-video statement to the police that could have grounded other charges, it was reasonable for Matheson to instruct and reasonable for Robertson to follow the instruction to arrest the accused only for human trafficking.

[34] It follows that Mr. D’Souza was informed promptly of the reason for his arrest or detention. There was no violation of his section 10(a) Charter right.

The “Clearing Search” of Mr. D’Souza’s Residence – Section 8 of the Charter

[35] After Mr. D’Souza was arrested on May 29, 2014, and before he was transported to the police station, Robertson entered the locked residence using a key belonging to the accused and, for a brief period of time (no more than five minutes), went through every room of the house including the basement. He also opened the overhead garage door and looked inside the garage, although he may not have actually stepped foot inside the garage in order to do so.

[36] All of that was done without a warrant.

[37] Not surprisingly, standing is not an issue; it is conceded by the Crown that Mr. D’Souza had a reasonable expectation of privacy with regard to his residence.

[38] The Crown has failed to demonstrate on balance that the said warrantless search of Mr. D’Souza’s private dwelling was not unreasonable. It was clearly unreasonable and a violation of the accused’s section 8 Charter right.

[39] There was no authority for Robertson to do what he did, especially in light of his own evidence that he had no reason to disbelieve the accused that there was nobody else inside the home and, further, he had no information from any source that there was anyone else inside the home.

[40] Whether assessed in the context of section 487.11 of the Criminal Code [which section permits the police to exercise the search powers outlined in subsection 487(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one], or in the context of section 529.3 of the Criminal Code (which deals with the police authority to enter a dwelling without a warrant to arrest or apprehend someone where exigent circumstances exist), or in the context of section 11(7) of the Controlled Drugs and Substances Act (which essentially mirrors section 487.11 of the Criminal Code), or in the context of the common law doctrine of hot pursuit, this “clearing search” conducted by Robertson was unreasonable.

[41] First, section 529.3 of the Criminal Code does not apply at all because Robertson did not enter the dwelling to arrest or apprehend anyone.

[42] Second, the same applies to the concept of hot pursuit.

[43] Third and finally, neither section 487.11 of the Criminal Code nor section 11(7) of the Controlled Drugs and Substances Act can be relied upon by the Crown because it is clear that there were no exigent circumstances justifying this warrantless search of Mr. D’Souza’s residence.

[44] Robertson’s evidence was that he felt it was necessary to do what he did because he was concerned about prostitution victims, firearms and/or drugs being inside the home. Eventually, after considerable prodding by the Crown in direct examination, Robertson testified that he was concerned about the potential destruction of drug evidence inside the home.

[45] The problem is that those concerns could apply to virtually any case.

[46] A man is arrested in his driveway for trafficking marihuana. The arresting officer might naturally be “concerned” that there could be drugs inside the home and could be someone else inside who could flush them down the toilet.

[47] A woman is arrested on her sidewalk for possession of stolen cheques. The arresting officer might naturally be “concerned” that there could be other stolen cheques inside the home and could be someone else inside who could burn them in the fireplace.

[48] A teenager is arrested on his bicycle leaving his driveway – the arrest is for a series of residential break-ins in the neighbourhood. The arresting officer might naturally be “concerned” that there could be evidence of stolen property and/or break-in instruments inside the home and could be someone else inside the home who could try to conceal the items in the ceiling tiles or even destroy them.

[49] Child pornography might be inside the home of someone arrested on the street for its possession, and perhaps someone might erase it from the computer. A second girl might be inside the home of a man arrested for kidnapping a child from a playground. Gasoline might be in the basement of the residence of a lady arrested in her driveway for a rash of arsons.

[50] The fact is that Robertson was never told by anyone that there could be someone else inside the home. He never saw anyone else inside the home while he was doing his surveillance. He never saw anyone else come to or leave from the home while he was doing his surveillance. He asked the accused if there was anyone else inside the home; the accused answered in the negative; and Robertson did not doubt or disbelieve him. Robertson was forthright and honest when he testified that he had no information at all, from anyone or anything, that someone else was inside the home.

[51] Dwellings are places of sanctity and carry with them one of the highest expectations of privacy. The police are not to enter them on a whim, even for a cursory search. This Court has cautioned this same police force previously about these co-called “clearing searches”, although in fairness that caution came after May 29, 2014 – R. v. Sol & Schlosser, 2015 ONSC 4160.

[52] These types of “clearing searches” of private dwellings cannot be permitted to become a practice of this or any police service.

[53] There are most certainly instances when a warrantless search of a dwelling is reasonable. But there must be some basis in the evidence, something, to justify the officer’s belief that it was necessary to enter the residence before the warrant is granted. There is nothing here.

[54] It is not sufficient for the Crown to say that Matheson briefed Robertson and Holovaci, told them to arrest the accused for human trafficking but likely also mentioned something about prostitution, firearms and drugs in the course of the very few minutes that the briefing lasted. That cannot possibly amount to exigent circumstances.

The Search of Mr. D’Souza and the Seizure of Cocaine – Section 8 of the Charter

[55] There were two warrantless searches of Mr. D’Souza’s person after his arrest on May 29, 2014, both performed by Holovaci.

[56] The first was a very quick pat-down search just outside the van. The second was a more fulsome search, including of pockets, after the accused was handcuffed and placed, seated, near the front door of the house. They occurred minutes apart. No issue is taken with the first pat-down search. The second search revealed a relatively small amount of suspected cocaine seized from the accused’s pocket. That second search is being attacked by the Defence.

[57] I accept Holovaci’s evidence that the second search was precipitated by his observations of Mr. D’Souza being nervous, fidgety and moving around his arms as if to possibly retrieve something.

[58] I further accept Holovaci’s evidence that he was concerned at that moment about the accused trying to access a weapon, means of escape and/or evidence.

[59] Ms. Christie, in her usual candour, essentially acknowledged that, if the Court believed Holovaci, it is likely that the second search would be held to be a valid one. I find that it was. Specifically, I conclude that it was a valid “safety search”.

[60] “Safety searches” are driven by exigent circumstances. They are reactionary measures by the police to eliminate threats, however, they are not unbridled and must be authorized by law.

[61] A safety search will be authorized by law when it is found to have been reasonably necessary to eliminate an imminent threat to the safety of the public or the police. The subjective belief of the police officer is relevant but not sufficient. The legality of the safety search will ultimately turn on an objective assessment of its necessity. The manner of the search will also be important – the extent of the interference with the accused’s liberty. R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paragraphs 32, 37, 40 and 41.

[62] Holovaci was alone with Mr. D’Souza when he made the observations of the accused acting suspicious while seated near the front door of the residence (Robertson was inside the home).

[63] Holovaci knew very little about the investigation but knew, at least, that this was a serious matter involving alleged human trafficking.

[64] The initial pat-down search of the accused was quick and cursory.

[65] In all of the circumstances, I am satisfied that Holovaci perceived an imminent threat that necessitated a further personal search of the accused. I am further convinced that the said perception was objectively reasonable.

[66] As for the manner of the search, it did not interfere with Mr. D’Souza’s liberty or his personal integrity any more than it needed to, both in terms of its length and its scope. The suspected cocaine was seized from the accused’s pocket.

[67] The Court was urged by Defence counsel to treat the evidence of Holovaci with some skepticism. It was pointed out, for example, that one portion of his testimony at the preliminary inquiry suggested that he was denying knowledge of any pat-down search prior to the search that revealed the suspected narcotics. I have considered that.

[68] I think that is an incomplete characterization of Holovaci’s prior testimony. It is clear that, in direct examination at the preliminary inquiry, he acknowledged there having been two personal searches of the accused at the scene of the arrest.

[69] Suffice it to say that I do not share the same concerns as Defence counsel regarding the overall credibility and reliability of Holovaci’s evidence.

The First Search of the Motor Vehicle – Section 8 of the Charter

[70] After the discovery of the small amount of cocaine, Holovaci entered the van in the driveway. That was done without a warrant.

[71] Holovaci testified that he wanted to confirm Mr. D’Souza’s identity. He asked the accused if he had any identification. The accused directed Holovaci to the wallet inside the motor vehicle.

[72] The Crown concedes that Mr. D’Souza has standing in that he had a reasonable expectation of privacy in the motor vehicle in the driveway of his residence (and in the wallet that was inside the van).

[73] The Crown questions whether Holovaci’s entry in to the van and retrieval of the wallet was a search at all. I find that it was. Any incursion in to the vehicle, however brief, that involved looking around (as Holovaci admitted to doing here) is a search.

[74] I find, however, that this search was reasonable. It was harmless. It was very brief. It was for a legitimate purpose. It was truly incidental to the arrest.

[75] A search incidental to arrest is an extraordinary power conferred on the police. Such a search is not only warrantless but is usually conducted where the grounds to obtain a warrant do not exist. The central guiding principle is that the search must be truly incidental to the arrest. R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paragraph 16.

[76] A valid search incidental to arrest does not depend on reasonable and probable grounds, however, there must be some reasonable basis for doing what the police did. The search must not only be conducted in a reasonable manner but also be aimed at achieving some valid purpose connected to the arrest. The officer’s belief is relevant but not determinative in that there is an objective component to the assessment of whether the search was for a valid purpose stemming from the arrest. Fearon, supra, at paragraphs 21, 22 and 27.

[77] Here, I find that Holovaci, although confident that the person he was dealing with was in fact Mr. D’Souza, reasonably believed that he ought to confirm the identity by means other than what the accused had verbally indicated to Robertson just prior to the arrest.

[78] I find further that the question to the accused as to whether he had any identification and the brief entry in to the van to retrieve the wallet, as directed by the accused, were not anything nefarious or a ruse of any sorts but rather a genuine attempt to confirm his identity.

[79] As such, it was a reasonable search that was truly incidental to the arrest. There was no Charter violation.

The Second Search of the Motor Vehicle – Section 8 of the Charter

[80] After Mr. D’Souza had been transported to the police station from the scene of the arrest, Holovaci searched the van. He seized a black cell phone. That was done without a warrant.

[81] I find that the said search was a reasonable one. It was a valid search that was truly incidental to the arrest of the accused for possession of cocaine.

[82] I accept the evidence of Holovaci that the purpose of that search of the motor vehicle was to look for drugs. I find that there was a reasonable basis for the officer’s belief that there may be more drugs inside the van, as the accused had been arrested just after entering the driver’s seat of the motor vehicle and had subsequently been found to be in possession of suspected cocaine.

[83] The search occurred not long after the arrest, was relatively brief in duration and was confined to the driver and passenger areas of the van.

[84] Objectively assessed, there was a valid purpose for the search – to look for more drugs. And the manner of the search was reasonable.

[85] Ms. Christie fairly conceded that, if the initial discovery of the cocaine on the person of the accused was held to not offend his Charter rights, then the subsequent search of the van for drugs would likely be found to be a valid one. I agree, and I so find.

The Search of Mr. D’Souza’s Wallet

[86] After the accused was transported to the police station, back at the scene of the arrest, Holovaci searched Mr. D’Souza’s wallet. He was looking for drugs. None were found. But a Best Western Hotel key card was seized as being potentially relevant to the human trafficking offence for which the accused had been arrested.

[87] I accept the evidence of Holovaci that he searched the wallet to see if it contained any small quantities of narcotics. I further conclude that the said search was a reasonable thing for the police officer to do.

[88] Mr. D’Souza had just been arrested for a small amount of cocaine seized from his pocket. He was inside the van just before his arrest by Robertson. The wallet was also inside the van. It is not a stretch to think that someone might store a small amount of narcotics in his wallet.

[89] Looked at objectively, there was a valid purpose for the search of the wallet – to look for more narcotics. The manner of the search was reasonable.

[90] In short, that search of the wallet by Holovaci was a valid one that was truly incidental to the accused’s arrest for possession of cocaine. There was no Charter violation.

The Delay in the Police Contacting Duty Counsel – Section 10(b) of the Charter

[91] Robertson first saw the accused exit his residence at 5:00 p.m. on May 29, 2014. The arrest occurred almost immediately after that.

[92] Between 5:00 p.m. and 5:10 p.m. (when another police officer arrived on scene to transport the accused to the police station), after being read his rights, the accused unequivocally expressed a desire to call a lawyer.

[93] At the police station, Detective Daniels telephoned duty counsel at 5:40 p.m. Mr. D’Souza spoke with duty counsel about ten minutes later.

[94] Thus, there was a delay of 30-40 minutes in the police contacting duty counsel.

[95] On the face of it, such a delay is not in compliance with Mr. D’Souza’s constitutional right to retain and instruct counsel “without delay”.

[96] There must be a contextual analysis to this, however. The accused was arrested outside his residence. There was no reasonable opportunity for the police to facilitate Mr. D’Souza contacting a lawyer in private at the scene of the arrest. The transport officer arrived on the scene very promptly. Mr. D’Souza was then immediately brought to the police station.

[97] I accept Daniels’ evidence that he was first told of the accused wanting to speak with duty counsel at 5:30 p.m. He could have been told that earlier. Ideally, he would have been told that prior to 5:10 p.m. But we do not live in an ideal world, and the conduct of the police in fluid situations is not measured against a standard of perfection.

[98] Duty counsel should have been called by 5:30 p.m. There is no explanation for why that did not occur until ten minutes later, however, I am not prepared to find that the delay in this case amounts to a breach of the accused’s section 10(b) Charter right.

[99] I note that there was no communication between the police and the accused between 5:10 p.m. and 5:40 p.m. That does not excuse any delay in any case, as the Charter does not say “without delay unless the accused is just sitting there”, but it is a fact that is worth mentioning in the overall analysis.

The Search Under Warrant of Mr. D’Souza’s Residence – Section 8 of the Charter

[100] The first issue raised by the Defence is that the search of Mr. D’Souza’s residence on May 29, 2014 occurred at night.

[101] Night searches are to be granted only in exceptional circumstances. The presumption, built in to section 488 of the Criminal Code itself, is that the warrant will be executed by day. Mere convenience is not enough to displace that presumption. R. v. Sutherland, at paragraph 25.

[102] I do not find the night-time execution of the search warrant at the accused’s residence to be a violation of his section 8 Charter right.

[103] Even excising from the ITO everything related to the prior “clearing search” of the residence, which search I have found to be unconstitutional, it is my conclusion that the issuing Justice could still have reasonably granted the request in the application materials to execute the warrant at night.

[104] The application materials naturally anticipated that it would be night when the warrant was issued, if granted, and the police had Mr. D’Souza safely in custody, two officers guarding the residence and other personnel ready and able to carry out the search.

[105] Those circumstances, coupled with the seriousness of the potential charges outlined in the ITO, painted a picture for the issuing Justice that could reasonably have justified the warrant being executed right away.

[106] The Defence next raises a complaint about the fairness of the ITO itself.

[107] As I observed in R. v. Patrick, 2014 ONSC 7169, at paragraphs 61 through 63, the application for a search warrant by the police is a delicate procedure. It is done ex parte and almost always on the basis of written materials alone. Thus, it is critically important that the applicant disclose for the reviewing justice the material facts in a full, fair and frank manner. Not every minute detail of the investigation needs to be outlined, however, material facts both in support of and adverse to the authorization sought must be disclosed. R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at page 1015.

[108] It is important for me to remember that this is not a hearing de novo. It is not for me to simply substitute my views for that of the issuing Justice and decide whether, on the same information presented, I would have granted the warrant. R. v. Gyles, [2005] O.J. No. 5513 (C.A.) at paragraph 10.

[109] The question for me is whether, on the record before the issuing Justice as amplified by the evidence on the voir dire, there remains a sufficient basis upon which the issuing Justice could reasonably have granted the warrant.

[110] I agree with the Defence that there are some inaccuracies in the ITO. Two clear examples will suffice.

[111] First, at page 4, it is stated that the accused was in custody for and charged with many more offences than he actually had been arrested for by the time that the warrant application was submitted.

[112] Second, at pages 10 and 14, there are references to crack cocaine (rather than suspected cocaine) having been found on Mr. D’Souza.

[113] I also agree with the Defence that there are imperfections in the way in which the audio-video statement provided by the complainant was summarized in the ITO. Again, two clear examples will suffice.

[114] First, at page 5, it is indicated that the complainant told police that she had been employed by the accused as a prostitute. In hindsight, it would have been better to avoid the language of employment as the complainant never described it as such. It would have been more accurate to simply outline the complainant’s recitation of the financial arrangement: she would have sexual relations with men as arranged by Mr. D’Souza, and he would receive some of the money.

[115] Second, at page 9, there is a statement that the complainant told police that the accused “constantly” made threatening remarks like “don’t tell anyone or I’ll kill you”. That is an exaggeration of what the complainant told Daniels. She did mention threats to kill her but also added that she could not really remember exactly what was said, and she certainly did not say that the threats were being made regularly.

[116] Finally, I agree with the Defence that the ITO could have been drafted clearer to delineate what the complainant actually told police and what the police interpreted that to mean in terms of criminal charges. Two examples are warranted.

[117] First, at page 6, it is indicated that the complainant was “lured” in to prostitution by the accused. “Lured” is a strong word. That word was not used by the complainant. “Encouraged” would have been a more accurate word, or no descriptor at all but simply an outline of what happened according to the complainant: she met with Mr. D’Souza and another girl; he told her about working as a prostitute; she hung out at the accused’s house where prostitution was going on; and she just ended up doing it.

[118] Second, at page 5, there is a statement that the complainant wished to report to the police having been “forced” to work as a prostitute. Again, “forced” is a strong word. That word was never used by the complainant, at least not in the evidence before the Court on this voir dire.

[119] The Crown is correct that the ITO does not say that the complainant actually told Daniels (or the police) that she was forced to work as a prostitute, however, the wording contained in the search warrant application could leave the impression with any reviewing justice that it was the complainant who characterized her involvement with prostitution as having been “forced”.

[120] As can be seen thus far, I am in agreement with the Defence on much of its argument about the ITO. Where I disagree is on whether the above deficiencies, even taken collectively, invalidate the search. I find that they do not.

[121] The vast majority of the imperfections highlighted by the Defence, some of which are noted above, are simply immaterial.

[122] For example, whether the accused had actually been arrested for a prostitution offence (he had not), or the police had reasonable and probable grounds to believe that the said offence had been committed and wanted to search the house for evidence related to that offence (more accurate) would have been immaterial to the decision of the reviewing Justice.

[123] The same applies to everything else raised by the Defence (those inaccuracies or imperfections are immaterial) except, perhaps, for the final two items outlined above: the use of the words “lured” and “forced”. Those references trouble the Court the most.

[124] In the end, however, even if those references were completely absent from the ITO, I am satisfied that there remained sufficient grounds outlined in the application materials such that the search warrant could reasonably have been granted.

[125] As I outlined in a previous ruling on the constitutionality of the human trafficking provisions contained in the Criminal Code, it is not necessary that the prosecution prove that the accused “forced” the complainant in to prostitution.

[126] Thus, while references to terminology like “lured” and “forced” are inaccurate and perhaps capable of misleading the reviewing Justice as to the true state of affairs as expressed by the complainant herself, those references were also completely unnecessary to the establishment of reasonable and probable grounds for the issuance of the search warrant.

[127] In plain language, I have looked at the ITO several times. I have asked myself: ignoring all references to the complainant having been “lured” in to prostitution, or “forced” to be a prostitute, is there enough left that could have reasonably caused the reviewing Justice to grant the application? Yes there is.

[128] In summary, the search under warrant of Mr. D’Souza’s residence in Owen Sound was not unreasonable.

The Exchange Between Detective Daniels and Mr. D’Souza at the Cells of the Police Station at 12:09 a.m. on May 30, 2014 – Sections 10(a) and 10(b) of the Charter

[129] There were gross violations of Mr. D’Souza’s Charter rights, 10(a) and 10(b), that occurred at about 12:09 a.m. on May 30, 2014.

[130] Daniels had left the search of the accused’s residence in order to return to the police station to speak with Mr. D’Souza. His purpose was to find out where a handgun was (the complainant had spoken about guns in her audio-video statement, and the police had found paperwork for a handgun during the execution of the search warrant at the accused’s residence, but no gun).

[131] By the time that Daniels was speaking with Mr. D’Souza at the cells at 12:09 a.m. on the 30th, he knew that the police had found things at the residence that would most certainly lead to more charges (remember that the accused had only, by then, been arrested for human trafficking and simple possession of cocaine). And it was known to Daniels that Mr. D’Souza had spoken with duty counsel only with regard to those two offences.

[132] By 12:09 a.m. on the 30th, it ought to have been obvious to Daniels that Mr. D’Souza was now being detained not only for human trafficking and possession of cocaine but for many other reasons as well. In fact, the police had already discovered, while executing the search warrant at the accused’s residence, evidence to sustain a litany of offences listed in the ITO itself.

[133] The discussion between Daniels and the accused at 12:09 a.m. on the 30th focussed on the handgun, however, in law, it had to have been precipitated by further rights and cautions from the police officer to Mr. D’Souza. No rights or cautions were given.

[134] The Crown concedes that the police violated Mr. D’Souza’s section 10(b) right to counsel. That was a wise concession that I agree with, and I so find.

[135] But I would go further to say that the police also violated the accused’s section 10(a) Charter right. He deserved to be told, by 12:09 a.m. on the 30th at the very latest, that the reasons for his detention had changed dramatically. He was told nothing of the sort.

[136] I think that Daniels had honourable motives in speaking with the accused at 12:09 a.m. on the 30th, however, as will be seen below in these Reasons, those motives will not be enough to save the evidence derived therefrom under section 24(2) of the Charter.

The Audio-Video Recorded Interview Between Detective Daniels and Mr. D’Souza at 12:59 a.m. on May 30, 2014 – Section 10(b) of the Charter

[137] There was a gross violation of Mr. D’Souza’s Charter right to counsel that occurred just after 12:59 a.m. on May 30, 2014.

[138] The Crown concedes that violation.

[139] Daniels interviewed the accused. It was audio and video recorded. Near the start of the interview, at about line 24 on page 4 of the transcript, when asked if he wanted to call a lawyer or duty counsel, Mr. D’Souza answered a definitive and unequivocal “yes”.

[140] That should have been the end of the matter. There was no reason to try to clarify the answer. There was nothing to clarify.

[141] Instead, the officer continued to point out that Mr. D’Souza had already spoken to duty counsel (well before he was facing a stew of criminal offences). Eventually, the accused told the officer that he wanted to speak with his mother or his sister or somebody. No lawyer or duty counsel or anyone was called.

[142] During the voir dire, Daniels was honest enough to admit that he never got a straight answer to whether the accused wanted to call a lawyer or duty counsel. Actually he did get a straight answer. But even if the officer is right, there remains a violation of section 10(b). Daniels had a duty to get a straight answer.

[143] I was impressed with Daniels’ candour when he testified. He did not try to twist the words of the accused in to some kind of waiver of his right to contact a lawyer. That candour, however, as will be seen below in these Reasons, will not save the evidence under section 24(2) of the Charter.

The Search Under Warrant of Mr. D’Souza’s Parents’ Residence – Section 8 of the Charter

[144] The Defence attacks the validity of the search of Mr. D’Souza’s parents’ residence on the basis that the ITO did not provide fair, frank and full disclosure. That argument mirrors the one advanced with regard to the application for the search warrant for the Owen Sound residence. For the reasons outlined above, I reject that submission.

[145] The Defence has better arguments, however. But first, we must deal with the issue of standing.

[146] A claim for relief under subsection 24(2) of the Charter can only be made by the person whose Charter right(s) has/have been infringed. We refer to this concept as locus standi or, more commonly, standing.

[147] Like all Charter rights, section 8 protects persons, not places. It is a personal right. The right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy. That question is to be determined on the totality of the circumstances. R. v. Edwards, [1996] S.C.J. No. 11.

[148] The onus is on the accused to establish standing. There must be a sound evidentiary basis to support a privacy interest as opposed to just a theory propounded by the Defence.

[149] The accused has met his onus to establish standing with regard to his parents’ residence in Scarborough, Ontario (“Royal Rouge”).

[150] Using the factors outlined at paragraph 45 of the decision of the Supreme Court of Canada in Edwards, supra, I observe the following.

[151] First, although it is clear that Mr. D’Souza was not actually living at the Royal Rouge home in late May 2014, it is also undisputed that the property belonged to and was being lived in by his parents.

[152] Second, the evidence from the complainant was that the accused was a student at Georgian College, which is why he had fairly recently acquired a residence in Owen Sound.

[153] Third, the record confirms that the motor vehicle in the driveway of the accused’s Owen Sound residence, and the one that he was about to use on May 29, 2014, was registered to his father of the Royal Rouge address.

[154] Fourth, there is evidence from the complainant that the accused frequented the Toronto area and had personal possessions inside his parents’ Royal Rouge home.

[155] Fifth and finally, there is evidence that, just one year prior to his arrest, Mr. D’Souza’s permanent address for jury duty purposes in Toronto was the Royal Rouge property.

[156] In all of the circumstances, looked at objectively, I find that the accused had a reasonable expectation of privacy vis a vis his parents’ home, or at least in the bedroom that he had there.

[157] I conclude that the police search of the Royal Rouge home on May 30, 2014 (conducted by Toronto authorities on behalf of the Owen Sound Police Service) was a violation of Mr. D’Souza’s section 8 Charter right. It was an unreasonable search that depended, predominantly, on information given to the police by the accused, which information was provided in serious contravention of the accused’s section 10(a) and 10(b) Charter rights.

[158] One look at the ITO for Royal Rouge makes it abundantly clear that it relied very heavily on Daniels’ discussions with the accused at both 12:09 and 12:59 a.m. on May 30th. Those discussions, as found above, were in clear violation of the accused’s section 10(a) and 10(b) Charter rights. The fruits of those unconstitutional interactions between the state and Mr. D’Souza cannot be used to save the subsequent search, under warrant, of the residence at Royal Rouge.

[159] Put another way, if one excises out from the search warrant application the information provided by Mr. D’Souza to Daniels at 12:09 and 12:59 a.m. on May 30th, one can only conclude that the search warrant could not reasonably have been granted. All that would have been left of significance is the speculation of the complainant that the accused “possibly” had guns at his parents’ place in Toronto.

[160] The specifics that were needed for the reasonable and probable grounds to obtain the warrant all came from the accused himself – see the most important paragraph in the entire ITO, clause 22.

[161] The police search of Royal Rouge cannot stand. To allow the state to benefit from the fruits of that search would mean that the serious violations of the accused’s section 10(a) and 10(b) Charter rights would go unaccounted for.

The Search of the Electronic Data – Section 8 of the Charter

[162] Although the Crown first raised an issue about whether the accused has standing to challenge the search of the cellular telephone that was seized by Holovaci from the driveway of his feet moments after the arrest on May 29, 2014, that argument was all but abandoned in final submissions in Court.

[163] The item was discovered very proximate to Mr. D’Souza’s person. It was not Robertson’s telephone. It was not Holovaci’s telephone. Surely, it is natural to presume that it belonged to Mr. D’Souza, which is precisely why Holovaci quickly seized it.

[164] I have no hesitation in finding that the accused had a reasonable expectation of privacy in that electronic device.

[165] With regard to the other electronic devices forensically examined by the police in Waterloo, at the request of the Owen Sound authorities, it is conceded by the Crown that Mr. D’Souza has standing.

[166] In all, Waterloo police examined a laptop computer, an external hard drive and three cellular telephones.

[167] The Defence complains that the police never filed a Report to Justice regarding the execution of the electronic data search warrant. That failure is conceded by the Crown.

[168] The filing of such a Report is not optional. It is mandatory under subsection 489.1(1)(b)(ii) of the Criminal Code. Failure to file the Report as required can amount to a violation of section 8 of the Charter, however, I decline to make that finding here.

[169] Without wanting to award the police for their carelessness in not filing the Report, in the particular circumstances of this case it amounts to a harmless oversight.

[170] Because the execution of the electronic data warrant fell on the heels of the other seizures, both under warrant and otherwise (all of which Mr. D’Souza would have been aware of or should have been), the Report to Justice on the execution of the electronic data warrant was not necessary to bring home to the accused what was being detained by the police so that he could take whatever steps he thought were advisable to retrieve the items in due course.

[171] More simply put, the Report would not have benefitted Mr. D’Souza. Reports to Justice on the other seizures had already been filed.

[172] That does not excuse the police for failing to file the Report upon the execution of the electronic data warrant, but it does contribute to the Court’s decision not to elevate this sloppiness to the level of a Charter violation and a finding that the search of the electronic data was unreasonable.

[173] The much stronger argument advanced by the Defence, which submission I accept, is that the search of the electronic data was unreasonable and a breach of Mr. D’Souza’s section 8 Charter right because it occurred outside the time period expressly authorized for it.

[174] I simply do not understand the Crown’s argument on this issue. It is patently obvious that the police failed to adhere to the time constraints in the ITO and on the face of the search warrant itself.

[175] The documents speak for themselves. The ITO states clearly that it relates to data contained within electronic devices (see the top of the very first page of the document); and that it seeks to search data contained within those devices (see the bottom of the very first page of the document).

[176] The Crown submits that the time period authorized for the search on the face of the warrant itself, June 6 to July 6, 2014 (an entire month), was for the items to be taken out of the property vault at the Owen Sound Police station. Once that was done, the warrant had been executed.

[177] With respect, I find that argument to be completely devoid of merit.

[178] Detective Matheson, the affiant, testified at the voir dire on a subsequent pretrial Application and, thus, was never asked what he thought of that submission. If he had been asked, I am sure that he would have said that it is contrary to what he intended when he applied for the warrant.

[179] After all, Matheson swore, at page 20 of the ITO, that “[d]ue to the fact that a thorough and efficient search of the requested items may take a significant amount of time I am respectfully requesting that the search warrant, if granted, have an execution period of one month spanning from June 6, 2014 to July 6, 2014”.

[180] Obviously, Matheson meant the search of the data of the electronic devices, not pulling them out of the vault (which might take sixty seconds or so).

[181] It appears to be lost on the prosecution that, if the Court accepted its submission (which I do not), then whatever happened in Waterloo with the devices was done without a warrant. The warrant had already been executed when the items were removed from the property vault in Owen Sound. Surely then, the warrantless search of the data was unreasonable.

[182] When the Court put that to the Crown in the course of submissions, the reply was that the warrant perhaps was for both the retrieval of the items from the police locker and the search of their data, and as long as that search started before the expiration time on the face of the warrant, everything was fine.

[183] I do not accept that argument either. It means that Matheson misled the reviewing Justice, something I decline to find, in stating that the warrant was to conduct a thorough search of the data, which process might take as long as one full month.

[184] There is nothing in the application materials to suggest that the police merely intended to start the search process by July 6, 2014 but finish it whenever they got around to it. And there is nothing on the face of the search warrant itself to support the notion that the police were simply to commence the search of the data between June 6 and July 6, 2014.

[185] As it turns out, the police inexplicably delayed the procedure to get the items to Waterloo for analysis. The extraction of the data did not even commence until nearly the expiration of the time period for the search on the face of the warrant itself. The search of the data continued well beyond July 6, 2014. No effort was made to obtain a fresh judicial authorization.

[186] The police blatantly searched the data on the electronic devices after the time period that the search was authorized. In doing so, they conducted an unreasonable search and violated Mr. D’Souza’s section 8 Charter right.

[187] To support its position, the Crown relies principally on the decision of Justice Coroza in R. v. Nurse, 2014 ONSC 1779, [2014] O.J. No. 5004 (S.C.J.). In my view, that decision is completely unhelpful to the prosecution’s argument.

[188] In Nurse, supra, there had been an extraordinarily short period of time indicated on the face of the warrant to search the electronic device. The search commenced within the authorized time period but was completed just barely after the expiration time. Coroza J. found that there was some ambiguity on the face of the documents themselves as to whether the authorized search period was intended to relate to the search of the data itself. Thus, His Honour distinguished the facts in that case from those in R. v. Little, [2009] O.J. No. 3278 (S.C.J.), where Justice Fuerst had held that the authorized time period unambiguously referred to the search of the data on the computer.

[189] Our facts are like those in Little, supra. The documents themselves, including the sworn evidence of the affiant in the ITO, are unambiguous – the warrant was to search the data on the electronic devices (not to pull them out of the police locker).

[190] In those circumstances, I concur with Justice Fuerst that the police were required to comply with the authorized time period, and their failure to do so amounts to an unreasonable search.

Section 24(2) of the Charter: The Analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353

[191] There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

[192] Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute.

[193] Third and finally, an assessment of society’s interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence.

[194] In a case of multiple breaches of Charter rights, as here, it seems to me that the repeated nature of the state’s unconstitutional conduct is a relevant consideration on both the first and second lines of inquiry. For example, the cumulative effect of multiple violations, although individually rather trivial, might be seen as more serious.

[195] I will deal with each Charter violation, chronologically, and then at the end discuss the cumulative effect of all of the breaches of Mr. D’Souza’s Charter rights.

[196] First, regarding the “clearing search” of the Owen Sound residence, I find that the section 8 violation can best be described as moderately serious. Although there was no bad faith on the part of Robertson, the search was an ignorant disregard for the sanctity of the accused’s private dwelling.

[197] The impact on the interests of the accused was relatively minimal. The search was brief in duration and largely non-intrusive in scope.

[198] On the third factor of the section 24(2) analysis, nothing of an evidentiary value was discovered during the search, and the subsequent warrant would have been granted in any event. As the Crown is only concerned with preserving the evidence obtained from the search of the residence under warrant, there is no prejudice to the prosecution in excluding from the evidence at trial the observations made during the clearing search itself.

[199] On balance, considering in particular that the observations made by Robertson during the clearing search are in no way important to the Crown’s case at trial (their only importance was to the request to execute the warrant for the residence at night, which request I have found could reasonably have been granted absent the clearing search), I hold that the observations of Robertson during the clearing search are to be excluded from the evidence at trial. To hold otherwise would bring the administration of justice into disrepute.

[200] For clarity, the excluded observations include those of the inside of the house and those of the inside of the garage. The Crown did not argue in oral submissions in Court that the opening of the overhead garage door and the looking inside were anything other than a search. I find that they were a part of the search.

[201] Second, with regard to the exchange between Daniels and the accused at about 12:09 a.m. on May 30, 2014, the violations of Mr. D’Souza’s section 10(a) and 10(b) Charter rights were very serious. They represent a reckless disregard for those rights.

[202] As for the impact on Mr. D’Souza’s Charter-protected interests, that impact was significant. He was compelled to speak with Daniels at the cells of the police station and incriminate himself by making admissions about the handgun, all without knowing what the police had already found at the residence or that they had already formed reasonable and probable grounds to charge him with numerous other offences, and all without any access to counsel or any caution that he did not have to answer the officer’s questions.

[203] On the third factor of the section 24(2) analysis, the handgun ultimately seized from the Royal Rouge home has some importance (but is not crucial) to the Crown’s case at trial. It tends to corroborate some of what the complainant told the police in her formal statement.

[204] The charges against the accused are very serious, and society has a high interest in having them adjudicated on their merits. It is not often that Courts exclude firearms from evidence under section 24(2), and that would be the end result of the Court excluding from evidence the utterances of Mr. D’Souza at 12:09 a.m. on May 30th (along with those at 12:59 a.m.).

[205] On balance, the seriousness of the violations and their impact on the accused outweigh the third factor. I hold that everything said by the accused to Daniels at about 12:09 a.m. on May 30th is to be excluded from the evidence at trial. To find otherwise would bring the administration of justice into disrepute.

[206] Third, in relation to the statement by the accused to Daniels at 12:59 a.m. on May 30th, the same analysis applies. The first two factors favour exclusion as the violation of Mr. D’Souza’s right to counsel was very serious, and the impact on the accused’s Charter-protected interest was substantial. The third factor favours admission. On balance, I hold that everything said by the accused to Daniels during the said statement is to be excluded from the evidence at trial. The alternative would bring the administration of justice into disrepute.

[207] Fourth, regarding the search of Royal Rouge, the Court must exclude the evidence obtained therefrom – the Ruger handgun. Otherwise, there would be no real consequence for the gross violations of Mr. D’Souza’s constitutional rights at 12:09 and 12:59 a.m. on May 30th.

[208] It would make no sense to exclude what the accused had told Daniels but admit into evidence the gun seized from Royal Rouge. That search would never have occurred but for the utterances made by the accused to Daniels. The search warrant would never have been granted but for those admissions. The gun is clearly evidence derived from the earlier Charter violations that occurred at 12:09 and 12:59 a.m. on May 30th.

[209] Consequently, all evidence obtained by the police from the search at Royal Rouge is to be excluded from the evidence at trial. That is the only way to maintain respect for the administration of justice.

[210] Fifth, as for the search of the electronic data, the evidence must be admitted despite the section 8 violation. The breach was moderately serious – the police ought to have known better but did not deliberately trample on the rights of Mr. D’Souza.

[211] The impact on the Charter-protected rights of the accused was minimal. He would not have received the items back in any event. If the police had sought a fresh judicial authorization to continue the search of the data beyond July 6, 2014, it likely would have been granted.

[212] The electronic data evidence is quite important to the case for the prosecution. Essentially, without it, the Crown is left with the bare allegations of the complainant. These are serious charges, and society deserves to have them decided on a fulsome record that includes the evidence put forward by Graver (subject, of course, to other admissibility issues).

[213] On balance, to exclude the electronic data evidence would only serve to undermine the repute of the administration of justice.

[214] Finally, a difficult consideration – what to make of the multiple Charter violations in this case. Sitting as a Judge after the fact and criticizing the police on Monday morning, after the game has already been played the day before, must be frustrating at times for the police. But the Court makes no apologies for the criticism here. The Owen Sound Police Service is better than what was demonstrated in this case.

[215] From a completely unnecessary “clearing search” of a private home, to blatant contraventions of such basic and fundamental notions as the right to contact a lawyer when one says “yes” to the question posed by the interrogator, to sitting on a search warrant for electronic data at the risk of going beyond the clearly marked authorization period for the warrant, I am struck by the repeated nature of the Charter breaches committed by the police against the interests of Mr. D’Souza.

[216] I find no bad faith on the part of any of the officers involved.

[217] I do, however, find a pattern of careless disregard for what the law does and does not permit.

[218] At first blush, I was tempted to throw out all of the evidence: from Lamson Crescent, from Royal Rouge, and from the electronic data. But, after careful consideration, I am now convinced that would be a mistake.

[219] Collectively, I would label the Charter violations as very serious (because of those committed in the early morning of May 30th). And, collectively, I would describe their impact on the interests of the accused as significant or substantial. But I would also make the following observations.

[220] These charges are extremely serious. The idea that a man would exploit a young, vulnerable girl for financial benefit, get her involved in prostitution, have photos taken of her that constitute child pornography, point a firearm at her, threaten her, and (all the while) deal in harsh narcotics is repugnant. These are just allegations, but society’s interest in having them prosecuted is very high.

[221] Next, the evidence that is susceptible to exclusion is very important to the case for the Crown, at times crucial. Without it, some of the charges (like those involving the weapons and the narcotics) are nearly eviscerated. Other offences, like human trafficking and living off the avails of prostitution, would not be gutted completely but would be seriously undermined and would rest totally on the uncorroborated account of one girl.

[222] Finally, the evidence that is susceptible to exclusion is highly reliable. It is real evidence – stuff extracted from electronic devices, drugs, guns, weapons, et cetera.

[223] In the end, balancing the seriousness of the repeated and multiple Charter violations and their significant effect on the interests of Mr. D’Souza that are constitutionally-protected against the third factor of the section 24(2) analysis which so strongly and compellingly favours admission of the evidence in question, I find that the evidence must be admitted.

[224] Although not an easy decision in these circumstances, I am convinced that to exclude the evidence sought to be excluded by the Defence would bring the administration of our justice system into disrepute. I cannot say the same thing for its admission.

III. Conclusion

[225] For all of the above reasons, the Defence Charter Applications are allowed in part.

[226] To summarize, the following evidence is excluded from the trial: (i) all observations made by the police during the “clearing search”, (ii) everything said by the accused to the police at 12:09 a.m. on May 30, 2014, (iii) everything said by the accused to the police at 12:59 a.m. on May 30, 2014, and (iv) everything seized by the police from Royal Rouge.

[227] I remind Crown counsel to be very careful about what aspects of the electronic data evidence are tendered at trial. If the item relates to something already ruled to be inadmissible, such as a photograph of the handgun seized from Royal Rouge, then it cannot be relied upon at trial.

Conlan J.

Released: September 19, 2016