Court File and Parties

Citation: R. v. FLYNN, 2016 ONSC 6989 Court File No.: CJ 8494 Date: 2016-11-14 Superior Court of Justice - Ontario

Re: R. v. BREANNA FLYNN

Before: The Honourable Justice D.A. Broad

Counsel: Vlatko Karadzic, for the Crown/Respondent James Marentette, for the Accused/Applicant

Heard: September 28, 2016

Endorsement

Background

[1] The applicant is charged with one count of theft over $5,000.00 pursuant to s. 334(a) of the Criminal Code of Canada and one count of possession of property, namely Canadian currency, of a value exceeding $5,000.00, knowing that it was obtained by the commission in Canada of an indictable offence, pursuant to s. 355(a) of the Criminal Code.

[2] The applicant was employed as a financial operations assistant at the Wilfrid Laurier University bookstore. Part of her duties involved counting sales receipts and preparing bank deposits. On the morning of September 16, 2014, two deposits which she had prepared and one other deposit were found to be missing from the safe in which they had been stored. The total amount found to be missing from the safe was $31,300.47.

[3] The bookstore had installed a number of video recording devices, including devices outside the office in which the applicant worked and in which the cash receipts were stored.

[4] On September 30, 2014, police officers arrested the applicant as she arrived at work and conducted a search of her vehicle, as well as a purse and a bag found in her vehicle. These searches were conducted incident to the applicant’s arrest.

[5] On October 1, 2014, Detective Constable Westmoreland applied to Justice of the Peace L. Ritchie for a warrant to search the applicant’s home. A first application was denied by the Justice, who required further information to be provided. A second application, with additional evidence added to the Information to Obtain (ITO), was granted.

[6] The search warrant was executed by police on October 1, 2014. $27,962.00 in Canadian currency was found in a shoebox in the master bedroom of the applicant’s home.

[7] The applicant has brought an application pursuant to s. 24(2) of the Charter to exclude all evidence found upon execution of the warrant. She argues that the revised ITO contained material which was false or misleading and which must be excised from the ITO. She says that, on the basis of the material remaining in the ITO after that excision, a search warrant could not have issued and the warrant was therefore invalid. As a consequence, she argues that the search of her home was warrantless and infringed her right under s. 8 of the Charter to be free of unreasonable search and seizure.

[8] The applicant, on her application, sought leave to cross-examine Detective Constable Westmoreland on the ITO. For oral reasons delivered on September 28, 2016, I granted leave to counsel for the applicant conduct the cross-examination.

The Information to Obtain

[9] The initial ITO submitted to the Justice included the following information:

(a) on Monday, September 15, 2014, the applicant documented deposits for three days of sales at the bookstore. She told investigators that she left this money secured in the safe in the cash room of the bookstore;

(b) video surveillance showed that during the day on September 15, 2014, the applicant was in and out of the cash room all day. Three other employees briefly visited her in the cash room, but no one other than the applicant was ever alone in that room;

(c) overnight the video showed a custodian briefly entering to clean the cash room, however she was not in the room for long enough to steal the money and was not seen leaving the room with the stolen money;

(d) on the morning of September 16, 2014, the applicant’s co-worker, Susan Chilton arrived at work and opened the safe. She discovered that the money was missing and both she and the applicant reported the theft to management;

(e) when the applicant was arrested on September 30, 2014, she was found in possession of $398.35 in Canadian currency, as well as tax documents showing she had recently filed taxes for the past three years and owed approximately $12,000.00;

(f) based on the fact that the applicant had exclusive opportunity to steal the money Detective Constable Westmoreland stated his belief that she committed the offence of theft over $5000.00;

(g) Detective Constable Westmoreland reviewed the report authored by Special Constable Sean Gow which disclosed the following:

1. There was video surveillance in place directly outside the door to the cash room. He determined that there was a problem with the date and time stamp on the video;

2. Wilfrid Laurier University employee, Jim Krueger explained that the computer had gone down over the weekend and the clock reset itself. Krueger fixed the issue at approximately 1:00 p.m. on Monday, September 15, 2014. The clock on the wall is visible in the surveillance and assisted Special Constable Gow to verify and correct the video time stamp;

(h) Susan Chilton was not at work on Monday, September 15, 2014;

(i) the applicant’s written statement to Special Constable Gow disclosed the following:

1. She arrived at work at 8:30 a.m. on Monday, September 15, 2014;

2. Between 11:00 and 11:30 a.m., the Brinks armoured car service arrived. The applicant told the Brinks personnel that there were no deposits for that day as she had not completed the September 11 and 12, 2014 deposits;

3. Between 12:00 and 1:00 p.m., the applicant completed the two deposits and locked them in the “bottom safe”. The two deposits comprised $11,677.10 and $12,539.10 respectively. The applicant sealed the bag containing the former deposit but did not seal the bag containing the latter deposit to permit Chilton to count and verify the deposit when she returned;

4. The applicant also noticed another deposit which had already been sealed and placed the bag from the “top safe” into the “bottom safe”;

5. The applicant placed the bottom safe in the “half latched position” meaning the safe was not fully secured; and

6. On Tuesday, September 16, 2014, the applicant arrived at work at 8:30 a.m. Susan Chilton opened both safes at 9:00 a.m. and found that the bottom safe only contained the deposit book. The deposit bags and cash were not there. The applicant and Chilton searched the office for the cash and then reported the problem to the store director.

(j) cash register receipts were analysed by University Administration and Finance Department personnel and the missing money was determined to be $31,300.47 from three deposits, namely, September 8, 2014; $82.17, September 11, 2014; $18,677.72 and September 12, 2014; $12,540.58;

(k) Special Constable Gow provided a written report detailing the activities recorded by video surveillance, from which Detective Constable Westmoreland learned the following:

1. The applicant was in and out of the cash room on Monday, September 15, 2015 numerous times throughout the day;

2. Three bookstore employees each visited the applicant in the cash office during the day;

3. Throughout the day the applicant sometimes left the office door open, sometimes closed and sometimes closed without latching the door;

4. No one entered the office during the times that the applicant was absent from the room;

5. The applicant was the only person to ever be alone in the office during the workday;

6. At 2:38 p.m., the applicant moved two dark bags that were visible on the top of a filing cabinet just inside the cash room door. She then put something down on the filing cabinet that could have been a grey plastic bag;

7. At 4:30 p.m., the applicant departed the cash office and left the door slightly ajar;

8. At 10:10 p.m., a custodian entered the room and removed the garbage and dusted the room. She closed the door and left at 10:12 p.m.;

9. No one else entered the room overnight until 8:29 a.m. when the applicant arrived and unlocked the office door;

10. The applicant entered and exited the room several times. She was the only person to be alone in the room;

11. At 9:00 a.m., Susan Chilton arrived at work; and

12. At 9:23 a.m., Chilton and the applicant left the room together with a book believed by Special Constable Gow to be the deposit book.

(l) Detective Constable Westmoreland reviewed selected portions of the video surveillance to provide context for Special Constable Gow’s report. He observed that the custodian entered the cash room on three occasions; firstly, from 10:10:47 to 10:10:57, the custodian entered the room and exited with a bag of garbage, secondly, from 10:11:10 to 10:11:20, the custodian entered with an empty garbage bag and exited empty-handed and thirdly, from 10:11:42 to 10:12:24, the custodian entered and exited carrying a feather duster;

(m) Detective Constable Westmoreland reviewed the video around at the time recorded as 2:38 p.m. when Special Constable Gow described the applicant as placing a grey plastic bag on the filing cabinet. The surveillance captures the hallway outside the cash room door, but when the office door is open, a small portion of the cash room is visible. He observed:

1. Between 2:37 and 2:38 p.m., the applicant moved two dark bags on top of the filing cabinet. He believes this is the location where the applicant stored her purse in the office as she placed her purse/handbag in this location at the start of the day; and

2. The applicant moved the bags around and the video shows her holding a grey plastic bag, similar in colour to the Brinks bags used by the bookstore to lodge deposits. However, the video is not of sufficient quality to say conclusively if it is a Brinks deposit bag.

(n) a search of the applicant’s purse incident to arrest disclosed a black wallet containing $152.25 in Canadian currency along with identification and bank cards of the applicant, an “Employment and Social Development Canada” statement of account for employment insurance. The outstanding amount was $125.84 and due September 27, 2014. The statement was in a brown envelope along with $125.00 in Canadian currency, A “Waterloo North Hydro” envelope containing $120.00 Canadian currency was also found;

(o) a search of the applicant’s vehicle disclosed a large black bag similar to the bag the applicant was observed on the video surveillance to be carrying. The bag contained notices of assessment for income tax years 2011, 2012 and 2013 showing that she owed $12,791.00 in income tax.

[10] The initial ITO was reviewed by Justice of the Peace Ritchie. The warrant was denied and the Justice gave the following reasons in writing:

(a) “no source for place to be searched”;

(b) “no description or source of place to be searched (other officer test)”; and

(c) “unclear if issue (problem) with date/time stamp of video affects the alleged times and dates in ITO”.

[11] Detective Constable Westmoreland resubmitted the ITO with five pages of additional information addressing Justice of the Peace Ritchie’s reasons for the original denial.

[12] The additional information respecting the source of the place to be searched is not pertinent to the present application. Regarding the issue identified by the Justice relating to the date/time stamp of the video, the amended ITO provided the following additional information:

(a) Detective Constable Westmorland reviewed the original video surveillance files provided by Special Constable Gow which were labelled “bookstore back hall 1” and “bookstore back hall 2”. The file labelled “bookstore back hall 1” is the video before the correction carried out by Jim Krueger and had an incorrect time and date stamp which began at 10:45:38 on September 14, 2014 and ended at1:55:28 p.m. on September 14, 2014. The file labelled “bookstore back hall 2” is the video that has the correct time stamp beginning on September 15, 2014 at 1:27:30 p.m. and ending on September 16, 2014 at 12:00:00;

(b) Detective Constable Westmoreland set forth details leading him to believe that both videos were recorded on the same date, September 15, 2014, including:

1. Jim Krueger told Special Constable Gow that he fixed the clock on the surveillance computer at around 1:00 p.m. on September 15, 2014;

2. The time stamp on video #2 begins on September 15, 2014 at 27:30 p.m. which is consistent with Krueger’s description of when he changed the clock. This led Detective Constable Westmoreland to believe video #2 is the surveillance video recorded after Krueger corrected the clock and that the date stamp is correct;

3. In video #1 and video #2, the applicant is observed wearing the same clothes and numerous other employees are recorded in both videos wearing the same clothing, indicating that both videos were recorded on the same day;

4. In video #1, a uniformed Brinks guard arrived at the cash office and quickly departed with nothing in his hands, which is consistent with the applicant’s report that on September 15, 2014, Brinks arrived but she did not have the deposits ready to send with them;

5. Video #1 is date stamped as September 14, 2014 being a Sunday. Detective Constable Westmoreland reviewed the website of the bookstore and found that it is not open on Sundays. He therefore believed that the September 14, 2014 date stamp was incorrect.

(c) Detective Constable Westmoreland set forth details leading him to believe that the time stamp on video #2 is correct, including:

1. The video begins at 1:27 p.m., which is consistent with Krueger’s description of fixing the clock around 1:00 p.m.;

2. When the video begins at 1:27 p.m., the clock on the wall shows the same approximate time of 1:25;

3. The video depicted the applicant leaving work at 4:30:36 p.m. on the time stamp. The clock on the wall showed approximately 4:35 p.m. This is consistent with the applicant’s statement that she left work at 4:30 p.m.;

4. The video showed the applicant arriving for work on September 16, 2014 at 8:29:38 a.m. The clock on the wall showed approximately 8:35. This is consistent with the applicant’s statement that she arrived for work at 8:30 a.m.; and

5. The video showed Susan Chilton arriving for work at 9:00:17 a.m. which is consistent with the statement of both the applicant and Chilton.

(d) Detective Constable Westmoreland described choosing a reference point on the video, being when the clock on the wall showed approximately 12:00. Because the clock on the wall is viewed at an angle, he estimated that the reference point was accurate to approximately plus or minus 5 minutes. When the clock on the wall showed 12:00, the video time stamp was12:33:29 p.m. The Brinks guard is recorded on the video arriving at 12:08:40 p.m. on the time stamp. Using the correction referred to above, this is approximately11:35 a.m. which is consistent with the applicant’s estimate that Brinks arrived between 11:00 and 11:30 a.m.

(e) Detective Constable Westmoreland stated that the video ends at time stamp 1:55:28, and using the above correction, this is an approximate actual time of 1:22 p.m. The clock on the wall showed approximately1:25 p.m. He stated that “the end time of video #1 coincides with the start time of video #2.” He went on to state that, based upon the analysis set forth, he believed that video #1 is recorded on September 15, 2014, despite the incorrect date and time stamp. He also believed that video #2 has a correct date and time stamp and that “the two videos combined constituted a continuous recording of the day of the theft.”

(f) Detective Constable Westmoreland concluded the ITO with a summary of his grounds to believe an offence had been committed, a summary of his grounds to believe the things to be seized will afford evidence of the offence and a summary of his grounds to believe the things sought are at the place to be searched.

(g) Detective Constable Westmoreland stated that, based on the facts described in the ITO, he believed that the applicant committed the offence of theft over $5000.00, summarizing his grounds as follows:

1. On September 15, 2014, the applicant counted and lodged two deposits of cash from the bookstore into a safe in the bookstore cash room;

2. On that day, video surveillance showed that the applicant was the only person to be alone in the cash room;

3. When Brinks arrived to collect the normal deposit, the applicant turned them away and indicated to them that she was not done counting the deposit;

4. At the end of the day, the applicant left the door to the cash room ajar. Overnight the only person to enter the room was a custodian who did not have access to the safe and was not in the room long enough to have stolen the money;

5. On the morning of September 16, 2014, Susan Chilton unlocked the safe and found the money was missing;

6. Accounting by University staff confirmed stolen deposits totaling $31,300.47; and

7. There is evidence that the applicant was under financial stress. She had recently separated from her husband and moved into her own house. Income tax documents showed she had not filed taxes for three years and owed approximately $12,000.00.

(h) on cross-examination, Detective Constable Westmoreland acknowledged that that the heart of the case against the applicant and the most compelling piece of evidence supporting the warrant to search her residence was that she had exclusive opportunity to steal the money. He also acknowledged that the evidence of exclusive opportunity was largely based on police investigation of the surveillance recordings taken in the hallway outside the cash office at the bookstore.

(i) Detective Constable Westmoreland stated that he now understands that the video system employed by the Wilfrid Laurier University bookstore was motion-activated and therefore did not represent a continuous tape recording of the entire day of the theft. He stated that he did not know this at the time that he reviewed the report prepared by the Special Constables together with the excerpts of the videos which he viewed. He used the time stamp to look at certain selected clips of the video and did not notice that the video stopped if there was no activity. Neither Special Constable advised Detective Constable Westmoreland that the video system was motion-activated.

(j) Detective Constable Westmoreland indicated that in his experience as an investigator approximately 75 percent of the video that he had viewed was motion-activated. Motion-activated video is more common than continuous video. He indicated that, in preparation of the ITO, he did not address his mind to the question of whether the video was motion-activated or continuous. He stated that at the time of the investigation he was focused on whether there were reasonable grounds to support an application for a warrant to search the applicant’s residence. Whether the video was continuous or motion-activated was not something that he turned his mind to.

(k) Detective Constable Westmoreland’s cross-examination revealed that there was a the likelihood of a gap of five to ten minutes between the termination of video #1 and the start of video #2. He acknowledged that his statement in the ITO that that the end time of video #1 “coincides with” the start time of video #2 was not a good choice of words. It would have been preferable to use the phrase “consistent with”.

(l) on re-examination Detective Constable Westmoreland stated that if there was a five or ten minute gap between the end of video #1 and the start of video #2 it would not have affected his belief that there were reasonable and probable grounds for the issuance of a warrant to search the applicant’s residence. The video showed that throughout the day the applicant was the only one alone in the cash room. The likelihood that she would have exited the cash room and someone else entered it at the precise time of the gap between the two videos would be considered remote. The applicant was shown to be in the cash office at the time the first video stopped and at the time the second video started.

Applicant’s Position

[13] The applicant argues that Detective Constable Westmoreland never turned his mind to whether the video was continuous or motion-activated. In a case where the existence of reasonable and probable grounds is founded on the existence of exclusive opportunity to steal the funds, it is critical to know whether the video system recorded everything that happened during the relevant time period. It was therefore incumbent upon Detective Constable Westmoreland to communicate in the ITO that the system was motion-activated and to show how it is reliable in establishing that the applicant had exclusive opportunity to steal the funds.

[14] The applicant relies upon the observations of Cromwell, J.A. (as he then was) in R. v. Morris 1998 NSCA 229 (N.S.C.A.) at paras. 34-37 including that the purpose of the prior authorization requirement for the issuance of search warrants is to prevent unreasonable searches, not to condemn them after the fact and that if the prior authorization process is not vigorously upheld by the courts, it will lose its meaning and effectiveness. The requirement of prior authorization prevents searches where it is not demonstrated to an independent judicial officer that reasonable grounds exist.

[15] The applicant also argues that Detective Constable Westmoreland failed to adequately communicate in the ITO that there was a gap of up to 10 minutes between the end of video #1 and the start of video #2 and that the wording of the ITO was such that it created the impression that there was no gap between the two videos. She argues that Detective Constable Westmoreland either intentionally or recklessly misstated what the videos depicted.

[16] The applicant submits that the following paragraphs of the ITO must be excised:

(i) 14(d) - “no one entered the office during the times that FLYNN was absent from the room”;

(ii) 14(e) - “FLYNN was the only person to ever be alone in the office during the workday”;

(iii) 26 (c)(ii) - “when the video begins at 1:27 p.m., a clock on the wall shows the same approximate time of 1:25”;

(iv) 26(d)(iv) – “the video ends at the time stamp 1:55:28, using the above correction; this is an approximate actual time of 1:22 p.m. the clock on the wall shows approximately1:25 p.m. The end time of video #1 coincides with the start time of video #2”.

[17] The applicant argues that, following these excisions, the revised ITO does not support the existence of reasonable and probable grounds for issuance of the warrant as the existence of exclusive opportunity for the applicant to steal the money is not demonstrated.

[18] The applicant argues that amplification of an ITO is only permissible if it is shown that 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, relying on R. v. Araujo 2000 SCC 65, [2000] S.C.J. No 65 (S.C.C.) at para. 59. The failure of the police to disclose to the Justice that the video system was motion-activated and that there was a gap between the two videos did not constitute minor technical errors. Accordingly, no amplification to correct the deficiency in the ITO is permissible.

Analysis

[19] As observed by R.A. Blair, J.A. in the case of R. v. Nguyen 2011 ONCA 465 (C.A.) at para. 51, the obligation on an applicant for a search warrant is not to commit the error of “material non-disclosure”. Materiality is “something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter.” He went on to state “there is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event.”

[20] In my view, the failure of the ITO in this case to disclose the fact that the video surveillance system was motion-activated or that there may have been a 5 to 10 minute gap between the end of video #1 and video #2 falls into the category described by Blair, J.A. in Nguyen. Although the ITO may have, for completeness, made these disclosures, their omission did not bear on the merits or substance of the application. A search warrant is an investigatory tool to find out if evidence even exists (see R. v. Pires; R. v. Lising 2005 SCC 66 (S.C.C.) at para. 41). It is not incumbent upon the police to lay out evidence in an ITO which would support its case at trial beyond a reasonable doubt. The fact that the video surveillance system may have been motion-activated or that there was a gap between the two videos may go to the existence of reasonable doubt at trial, but it is not material to whether there existed reasonable and probable grounds for issuance of the search warrant.

[21] Moreover, I am not satisfied on a balance of probabilities that the officer’s failure to disclose the fact that the surveillance system was motion-activated or that there was a gap between the two videos was intentional or reckless. With respect to the former issue, Detective Constable Westmoreland testified on cross-examination that he simply did not turn his mind to whether the video system was motion-activated or continuous. Failure to turn his mind to that issue may have been arguably negligent, but I am not satisfied that it was intentional or reckless. Similarly, with respect to the gap, it is observed that the comment of Justice of the Peace Ritchie on the originally submitted ITO that it was “unclear if issue (problem) with date/time stamp of video affects the alleged times and dates in ITO” was difficult to interpret. Detective Constable Westmoreland was diligent in attempting to address the Justice’s concern. Any failure in doing so effectively was not intentional or reckless. Moreover, Detective Constable Westmoreland readily acknowledged on cross-examination that his use of the phrase “coincides with” was an error and it would have been more appropriate to utilize the phrase “consistent with”.

[22] Even if I am wrong with respect to the foregoing and the excisions sought by the applicant should be made, in my view, reasonable and probable grounds for issuance of a warrant for a search of the applicant’s residence remain based upon the ITO following such excisions. The applicant was stated to be the only employee responsible for counting and securing deposits in the cash room of the bookstore on duty on the day in question. She was observed to be in and out of the cash room all day and no one other than the applicant was observed on the video to be ever alone in that room. The applicant sent the Brinks personnel away when they attended for the cash deposit bags. When she was arrested, she was found in possession of $390.35 in Canadian currency, as well as tax documents showing that she had recently filed taxes for the past three years and owed approximately $12,000.00, supporting the existence of a motive, although not required to support the charge.

[23] It was acknowledged by Detective Constable Westmorland that exclusive opportunity was a crucial factor supporting reasonable and probable grounds. However, in my view, on the standard of proof required for a finding of reasonable and probable grounds for issuance of a warrant, it was not necessary to support exclusive opportunity to account for every moment of the day and night in question in the video surveillance record.

[24] In the case of R. v. Morelli, 2010 SCC 8, the Supreme Court of Canada stated the following at para. 40:

“in reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place”

[25] In my view, there was sufficient credible and reliable evidence set forth in the ITO, following the proposed excisions, to permit the Justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the applicant’s residence.

[26] It is therefore not necessary to make a determination as to whether amplification of the ITO should be permitted.

[27] On the basis of the foregoing, I find that the search of the applicant’s residence was not warrantless nor unreasonable and therefore there was no breach of s. 8 of the Charter.

[28] In light of this finding, it is not necessary to make a determination on whether the admission of the evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter. However, for the sake of completeness, I observe that I would not have found that the admission at trial of the evidence found upon the search of the applicant’s residence would bring the administration of justice into disrepute.

[29] Utilizing the analysis under R. v. Grant, I would not find any potential Charter-infringing state conduct to be at the serious end of the spectrum. Detective Constable Westmoreland, in my view, exercised reasonable diligence in seeking to provide full and proper disclosure to the justice of the peace in the ITO. He did not deliberately or recklessly mislead the Justice. His actions did not demonstrate a disregard of the applicant’s Charter rights.

[30] It is acknowledged by the respondent that the impact of any breach on the Charter-protected interests of the applicant would be considered great given that the search was carried out at her residence.

[31] I find that society does have an interest in an adjudication of the charges against the applicant on the merits. The evidence of the currency found as a result of the search is central and crucial to the Crown’s case, particularly on the possession of property charge and is strong and compelling. Excluding the evidence would detrimentally impact the reputation of the administration of justice much more than admitting it.

[32] Weighing the Grant factors, I find that the administration of justice would not be brought into disrepute by admission of the currency found as a result of the search of the applicant’s residence.

Disposition

[33] The application is therefore dismissed.

D.A. Broad, J.

Date: November 14, 2016