CITATION: R. v. Persaud, 2016 ONSC 8110
COURT FILE: CRIMJ(P) 0128/15
DATE: 2016 12 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. C. Hackett, for the Respondent
- and -
PARMANAND PERSAUD
G. Henderson, for the Applicant
HEARD: November 7-10, 2016 at Brampton
REASONS FOR JUDGMENT
HILL J.
TABLE OF CONTENTS
Para. No.
INTRODUCTION............................................................................. 1
BACKGROUND
The Fraud................................................................................... 5
The Original Warrant Application................................................. 13
A Telewarrant Application is Drafted............................................ 26
The Telewarrant Application....................................................... 48
Execution of Telewarrant........................................................... 56
Post Seizure Events.................................................................... 61
ANALYSIS
Introduction............................................................................... 63
What Was The Record Before the TWC?/
Non-Compliance With Statutory Prerequisites
The Submissions
Applicant........................................................................... 65
Respondent........................................................................ 67
Governing Principles............................................................... 68
Discussion............................................................................ 70
Grounds for a Telewarrant
The Submissions
Applicant........................................................................... 74
Respondent........................................................................ 76
Governing Principles............................................................... 78
Discussion............................................................................ 79
Grounds of Belief That Applicant Committed an Offence
The Submissions
Applicant........................................................................... 83
Respondent........................................................................ 91
Governing Principles............................................................... 97
Discussion........................................................................... 120
Grounds to Believe Things to be Searched For Were In Applicant’s Dwelling
The Submissions
Applicant.......................................................................... 136
Respondent...................................................................... 139
Governing Principles.............................................................. 143
Discussion........................................................................... 146
Description of Things to be Searched For
Submissions
Applicant.......................................................................... 159
Respondent...................................................................... 164
Governing Principles.............................................................. 165
Discussion........................................................................... 172
The Night Search
Submissions
Applicant.......................................................................... 177
Respondent...................................................................... 179
Governing Principles.............................................................. 181
Discussion........................................................................... 185
Exclusion/Admission of Seized Evidence
Submissions
Applicant.......................................................................... 192
Respondent...................................................................... 196
Governing Principles.............................................................. 200
Discussion........................................................................... 205
CONCLUSION.............................................................................. 218
INTRODUCTION
[1] Parmanand Persaud challenges the admissibility of seized evidence by way of a pre-trial motion heard by me as a Case Management Judge pursuant to Part XVIII.1 of the Criminal Code.
[2] On June 27, 2013, the applicant’s Brampton residence was searched by the Peel Regional Police Service (PRPS) under the authority of a warrant to search. The warrant issued in the course of a PRPS fraud investigation.
[3] The applicant submitted that the search of his dwelling amounted to unreasonable search and seizure in breach of s. 8 of the Charter justifying exclusion of the evidence seized from the residence.
[4] The specific constitutional violations alleged are as follows:
(1) the inability of the parties or this reviewing court to confidently determine the precise contours of the material submitted to the issuing justices
(2) non-compliance with the requirement for a warrant application to include all of the appendices described in the application
(3) there were insufficient grounds for the issuance of a telewarrant as opposed to a conventional s. 487 Criminal Code warrant
(4) no reasonable grounds to believe the applicant was a participant in the alleged conspiracy having regard to the face of Appendix C of the Information to Obtain the Telewarrant (ITO), and, taking into account errors, omissions and misleading text in the ITO
(5) there were no reasonable grounds in the ITO to support the inference that the things to be searched for existed, or if they did, that they would be located in the applicant’s dwelling
(6) vague, general and insufficiently particularized descriptions in the warrant of the things to be searched for
(7) an absence of any grounds for the execution of the search warrant at night.
BACKGROUND
The Fraud
[5] On May 22, 2013, members of Toronto Dominion Bank Corporate Security (TD) met with PRPS Detective James Dolan to lodge a complaint of fraud committed against the bank. On this same date, the applicant was suspended from his employment at the TD Bank and no evidence was seized in a search of the applicant’s office by TD Security.
[6] The substance of TD’s internal investigation was that at the 7686 Hurontario Street branch of the bank, where the applicant was employed, bank computers were utilized on more than one occasion between February 20 and March 16, 2013 to access, without any legitimate business purpose, information relating to TD customers whose bank accounts were at branches other than the 7686 Hurontario location. In an ITO sworn on June 27, 2013 (Appendix C, Section C Background of the Investigation), Det. Dolan wrote:
As a result of this internal investigation Corporate Security identified employees at the TD Bank branch located at 7686 Hurontario Street, Brampton, accessing customer accounts and fraudulently ordering cheques.
Between February and May 2013, employees of the bank fraudulently ordered cheques from customer accounts containing large investments, approximately 6 accounts were compromised resulting in order $465,097.00 in losses sustained by TD Bank and another $1.3 million in attempted fraud. The cheques were routed to addresses in the greater Toronto area, usually rented mail boxes for other co-conspirators to receive.
(emphasis added)
[7] In each instance, within a few days of certain customers’ accounts first being accessed, the account number of each of the account holders was used on a TD computer at the 7686 Hurontario branch to order books of account cheques to be forwarded to an address other than the actual address of the account holder, all without the consent of the respective account holders. In some cases, the books of cheques were mailed to UPS Store rental boxes.
[8] In his testimony before this court, Det. Dolan described the information he received as a “key stroke investigation” based upon the bank’s scrutiny of computer logs relating to whose computer log-on credentials were utilized for these transactions:
account holder
date account info accessed
log-on identity of TD employee
date cheques ordered
log-on identity of TD employee
(1)
Vivienne Kadis
Feb. 20/13
Persaud
March 1/13
Janayeva
(2)
Steven Kent
Feb. 23/13
Persaud
March 1/13
Sahota
(3)
Ferris Rafauli
March 16/13
Persaud
May 3/13
Sahota
(4)
Cynthia & Terrance McGibbon
March 16/13
Persaud
April 19 & May 15/13
Sahota/Singh
(5)
Baruch Confino
April 17/13
Persaud
(6)
Karl Aboud
April 17/13
Lakhani
May 15/13
Lakhani
(7)
Fouad Abdel-Malik
April 17/13
Lakhani
April 17/13
Lakhani
(8)
Deborah Aboud
May 15/13
Lakhani
May 16/13
Janayeva
[9] The TD investigation revealed that, on April 16, 2013, a cheque for $467,097.00 drawn on Steven Kent’s account was deposited by Baruch Confino into his CIBC bank account followed by several disbursements out of the account totalling over $438,000.
[10] The police investigation formally commenced on May 22, 2013. According to Det. Dolan, having been presented with the results and conclusions of TD Security, in which the bank suspected the applicant as the sole person responsible for accessing account information and ordering customers’ cheques, he had to decide “what happened”.
[11] Some minimal surveillance was conducted upon the applicant. The locations to which the cheques were mailed were investigated as were the circumstances of the negotiation of further fraudulently obtained cheques.
[12] By June 19, 2013, if not before, Det. Dolan began drafting search warrant application materials as an aspect of his investigation.
The Original Warrant Application
[13] PRPS Detective James Dolan was the affiant for the search warrant ITOs in this case. On consent, leave to cross-examine the officer was given relating to discreet subjects. On June 27, 2013, he applied for warrants to search:
(1) the applicant’s “dwelling” at 37 Velvet Grass Lane, Brampton, and
(2) the “place” of Shahan Hussain at 3375 14th Avenue, Unit 7/8, Markham.
This was the “original” application.
[14] According to the affiant’s testimony in this application, he personally attended at the Davis Courthouse in Brampton during the afternoon of June 27 to drop off his search warrant application materials.
[15] In cross-examination, Det. Dolan was asked if he was “rushed” in any way in terms of when to apply for, and execute, the two warrants. The witness replied that he felt “a bit” rushed advancing as his first reason that he was doing a search warrant the next day on another case. Det. Dolan then added that there were cheques popping up, more outstanding cheques, as well as arrests and interviews which had been conducted relating to the fraud with the risk that the applicant might be on notice and evidence lost.
[16] The detective testified that included in his search warrant application materials was a draft Sealing Order. He also left at the court an Introduction cover page with his name and phone numbers (Exhibit #10). This PRPS form document included this information:
REQUESTED EXECUTION DATE and 27 June 2013
TIMES
URGENCY None
[17] While in the witness stand, although the affiant had his own file materials relating to his application, there was a degree of confusion as to precisely what was provided to the court. Accordingly, this court directly accessed the original, unredacted materials in the sealed packet from the Ontario Court of Justice (OCJ) court files (Exhibit #6) which contained, in the following order:
(1) a 1-page Form 1 ITO sworn by the affiant relating to the Markham business address referring to Appendices A, B and C (no appendices attached)
(2) a 1-page Form 1 ITO sworn by the affiant relating to the applicant’s dwelling referring to Appendices A, B and C (no appendices attached)
(3) an unsigned draft Form 5 warrant dated June 27, 2013 at Mississauga to search the applicant’s residence referring to Appendices A and B (no appendices attached)
(4) an unsigned draft Form 5 warrant to search dated June 27, 2013 at Mississauga referring to Appendices A and B following by Appendices A (pp. 1-2), B (p. 3), C (pp. 4-30) and D (2 unnumbered pages). The four Appendices were titled in the following wording:
(1) APPENDIX A
This appendix forms part of an Information to Obtain a Search Warrant for the business offices located at 3375 14th Avenue Unit 7 and 8, Markham, Ontario and the residence located at 37 Velvet Grass Lane, Brampton
(2) APPENDIX B
This appendix forms part of an Information to Obtain a Search Warrant for the business offices located at 3375 14th Avenue Unit 7 and 8, Markham, Ontario and the residence located at 37 Velvet Grass Lane, Brampton
(3) APPENDIX C
This appendix forms part of an Information to Obtain a Search Warrant for the business offices located at 3375 14th Avenue Unit 7 and 8, Markham, Ontario and the residence located at 37 Velvet Grass Lane, Brampton
(4) APPENDIX D
This appendix forms part of an Information to Obtain a Search Warrant for the business offices located at 3375 14th Avenue Unit 7 and 8, Markham, Ontario
[18] None of the above-described original pages in the court file were stapled together. There was only one set of appendices.
[19] Appendix A read as follows:
Things to be searched for:
- Correspondence from TD Canada Trust in the names of:
Cynthia and Terrence MacGibbon
Steven Kent
Vivienne and Robert Kadis
Ferris Rafauli
Karl and Debra Aboud
Fouad Abdel-Malik
Baruch Confino
- Cheques in the names of:
Cynthia and Terrence MacGibbon
Steven Kent
Vivienne and Robert Kadis
Ferris Rafauli
Karl and Debra Aboud
Fouad Abdel-Malik
- Hand written notes containing:
a. Names, addresses, dates of birth, Social Insurance Numbers, telephone numbers, employment information of TD Canada Trust clients.
b. Banking information including account numbers.
Computers, computer hard drives, memory cards and any other devices that can capture, read, record or transfer computer data. These items will be analyzed by Peel Regional Police for evidence of fraudulently obtained identity information and banking information including account numbers.
Any mail, correspondence, handwritten notes containing addresses, UPS mail box rental agreements for the following addresses where fraudulently obtained cheques were delivered:
15 Camwood Cres Toronto Ont M3A 3L2
4100 Westminster Place unit 105, Mississauga
2343 Brimley Road unit 358, Scarborough
3044 Bloor St West unit 125, Etobicoke
- USB drives, media cards and cellular telephones and smart phones, or PDA’s such as a BlackBerry or an IPhone. These items will be analyzed by Peel Regional Police for evidence of fraudulently obtained bank account information. Computers and cellular phones will also be examined to identify other co-conspirators involved the offence.
[20] In each of the two 1-page Form 1 draft search warrants, whatever was described in Appendix A it is said was “being sought as evidence in respect to the commission, suspected commission or intended commission of an offence against the Criminal Code”.
[21] Appendix B read as follows:
OFFENCES:
That Parmanand Persaud between February 22 and 27 June, 2013, at the City of Brampton in the Central West Region and elsewhere in the Province of Ontario did conspire and agree together the one with the other and others of them and with Baruch Confino, Syed Tazeem Hussain and with persons and persons unknown to commit the indictable offence of fraud over $5,000 contrary to section 465(1)(c) of the Criminal Code of Canada.
[22] The 27 pages of Appendix C, with minor redactions in its disclosure format to the defence, was organized under these headings:
(1) INTRODUCTION OF INFORMANT
(2) INVESTIGATIVE RESOURCES
(3) INTRODUCTION OF PERSONS INVOLVED
(4) BACKGROUND OF THE INVESTIGATION
(5) THE INFORMANT SAYS THAT THE GROUNDS FOR SO BELIEVING ARE
(6) GROUNDS TO BELIEVE ITEMS SOUGHT DO EXIST AND ARE AT THE LOCATION TO BE SEARCHED
(7) GROUNDS TO BELIEVE AN OFFENCE HAS BEEN COMMITTED
(8) GROUNDS TO BELIEVE THE THINGS TO BE SEARCHED FOR WILL AFFORD EVIDENCE WITH RESPECT TO THE OFFENCE(S) AS DESCRIBED
(9) CONCLUSION.
[23] Appendix D is heavily redacted in its disclosure format to the defence. The appendix included these subheadings: “Reliability of Informant”, “Information Provided”, and “Corroboration of information provided”.
[24] The Introduction Sheet (Exhibit #10) bears the handwritten word “URGENT” and a time of “3:00 pm”. Det. Dolan testified that a clerk may have written “URGENT” on account of the officer stating that “he wanted to get it done today”. Detective Dolan was advised by the court by phone that his application for search warrants had been denied. Also in handwriting on Exhibit #10 is “3:40 pm Denied called” and the signature of Justice of the Peace Budaci. The application was sealed by the Justice of the Peace.
[25] After receiving the phonecall at 3:45 p.m., Det. Dolan picked up a copy of Justice of the Peace Budaci’s handwritten endorsement on the face of the unsigned draft Form 5 warrant to search the applicant’s dwelling. The court’s signed reasons for refusal stated:
(1) Reasonable grounds to believe and nexus have not been established with addresses
(2) Scope of search is too broad. All electronics are not required to be searched
(3) Cheques are printed
(4) CI information has not been corroborated.
(emphasis of original)
A Telewarrant Application is Drafted
[26] Detective Dolan returned to his office at 180 Derry Road in Mississauga. He did not understand the reference to “Cheques are printed”. He sought no clarification. He did not consult a superior or Crown counsel. The officer decided “almost immediately” to reapply for the issuance of the sought-after warrants.
[27] According to Det. Dolan, after return from the courthouse, by about 4:00 p.m. on June 27, although “as a guy in fraud for 8 years [he] had no problems with it” [the original application] and though being of the view that his original ITO was “really easy to understand”, he began a “redraft” process in an effort to attempt to explain his thought process “differently” and “better”.
[28] The affiant retained the same nine (9) heading titles in Appendix C and added a tenth, “Addressing Reasons for Denial” essentially reorganizing his argument in relation to the reasons for denial of the original application. Apart from a reference to the applicant’s laptop in paras. 65 and 67 of Appendix C, there was “really no new factual stuff”. The affiant did not expressly state in the new ITO(s) what new facts, if any, had been added to his grounds of belief in Appendix C compared to what he had submitted in his original unsuccessful application for the warrants. Once done, in his view, he had provided a better “easier to understand” explanation.
[29] While the redrafted ITO contains some renumbering of paragraphs which were formerly bullet-point designated, but otherwise unnumbered, in Appendix C of the original ITO, the only additional text is that found under the title, “Addressing Reasons For Denial”.
[30] The added section, ‘D. Addressing Reasons for Denial’, reads as follows:
- Reasonable grounds to believe and nexus have not been established with address 37 Velvet Grass Lane, Brampton:
i. Parmanand PERSAUD is identified as an employee of TD Bank.
ii. Parmanand PERSAUD is identified accessing accounts that he has no business reason to view. Cheques are ordered on these accounts using just the account number. PERSAUD is only TD Bank employee at the branch located at 7686 Hurontario Street, Brampton, to view the victim’s bank profile listing personal information and account numbers. The fact that the cheques are ordered using only the account number it is reasonable to believe that account information was recorded either hand written or electronically in order to recall at the time the fraud was committed and the cheques were ordered.
iii. Parmanand PERSAUD home address is 37 Velvet Grass Lane, Brampton. This is confirmed through the MTO and surveillance by Police have placed him at that address and parking his vehicle in the garage.
iv. During surveillance by Police PERSAUD is observed using his cellular telephone. PERSAUD is also observed taking a laptop from his residence and using it at a Starbucks coffee shop in Brampton.
v. TD Bank Corporate Security has Parmanand PERSAUD home address as 37 Velvet Grass Lane, Brampton.
- Reasonable grounds to believe and nexus have not been established with address 3375 14th Ave. unit 7 and 8, Markham:
i. Service Ontario has identified Global Industries as a registered business and the registered director is Shahah HUSSAIN.
ii. A male known as Sami wired $130,000.00 money to Multimedia Marketing Inc. These funds came from the stolen TD Bank cheque drawn on the Steven KENT and deposited into Baruch CONFINO bank account. Multimedia Marketing Inc. is operated by Nadir ANDANY and Ajaz KHAN. Both of these parties have identified Sami as Syed HUSSAIN date of birth May 31, 1971. Both parties have supplied a telephone number of 647-706-5000 for Sam.
iii. Virdi WOLLOCH has identified Sam as the party that gave him the stolen TD Bank cheque drawn of the Steven KENT account and deposited into Baruch CONFINO bank account. WOLLOCH supplied Sam’s telephone number as 647-706-5000. The same number identified by ANDANY and KHAN previously.
iv. Mario GIANGIOPPO director of a company called Sigma Group Corp. GIANGIOPPO met guy named Sammy several times. Sammy was in charge of Global International. GIANGIOPPO give Sammy his banking information in order to be wired $125,000.00 for a wood lumber purchase. Sammy later told me to make disbursements to different companies.
v. GIANGIOPPO received 125,000.00 from Baruch CONFINO bank account. CONFINO had obtained this money by cashing a stolen cheque drawn on the Steven KENT TD Bank account.
vi. GIANGIOPPO advised that he, Global International, Sammy and Shahah HUSSAIN, Keith LAM all have offices 3375-14th Avenue unit 7 and 8 in Markham.
- Scope of search is too broad. All electronics are not required to be searched:
i. Parmanand PERSAUD is observed using a cellular telephone and carrying a laptop computer with him by Police.
ii. The fact that the cheques are ordered using only the account number it is reasonable to believe that account information was recorded either hand written or electronically in order to recall at the time the fraud was committed and the cheques were ordered.
- Cheques are printed:
i. I do not understand this comment by the Justice of the Peace in relation to the denial of my previous application.
- CI information has not been corroborated.
i. I have corroborated the only information I am able to at this time. Refer to Appendix D.
[31] In the one Appendix C transmitted by Det. Dolan to the TWC he noted that at the TD Bank branch at 7686 Hurontario Street, employees were “regularly” known to use their log-on credentials to log in and then leave the computer unattended and still logged on (paras. 4, 10, 13, 15, 16, 18, 20, 22).
[32] At para. 2 of Appendix C, the affiant stated:
TD Bank Corporate Security has advised me that on February 22, 2013 Parmanand PERSAUD accessed and viewed various information screens for the TD Bank account of Steven KENT. KENT is not a customer of the branch located at 7686 Hurontario Street, Brampton. This client resides in Oakville and does not do any banking at this branch. There was no legitimate business purpose for PERSAUD to access and view this account.
[33] This form of language was repeated in essentially identical language with respect to four other account holders: Confino (para. 5), Kadis (para. 8), Rafauli (para. 11), and the MacGibbons (para. 14), and again in para. 65 ii.
[34] In cross-examination, the detective agreed that his use of the language, “Parmanand Persaud accessed and viewed”, in each of these paragraphs was in reality a “common sense” conclusion or inference, not a directly known fact, because no one saw who used the applicant’s log-on credentials on a TD computer to access the customers’ account information.
[35] Det. Dolan agreed that he had no direct evidence, or knowledge, and did not believe that TD Security did either, to suggest that anyone observed the applicant accessing account information of the relevant TD customers:
Q. Now, you never received any information from TD Corporate Security that someone had directly viewed Mr. Persaud accessing the Steven Kent account information?
A. No, this was all from computer key strokes…
Q. … What had happened in this case and the other accounts that are described in the ITO is that Mr. Persaud’s log-in information was used on February 22, 2013 to access and view the Steven Kent account?
A. Yes.
Q. And from the fact that Mr. Persaud’s log-in information was used to access the Steven Kent account, you’re making the common sense argument or drawing the inference that it was in fact Persaud that accessed the account on that day?
A. Yes, well it says it is his log-in information.
Q. What I’m suggesting is when you put “accessed and viewed”, that’s a conclusion which you’re drawing?
A. I believe he did.
I probably should have put the word “log-on” which is not there.
(emphasis added)
[36] Mr. Henderson referred the witness to different wording in other paragraphs of Appendix C, for example para. 17:
TD Bank Corporate Security has advised me that on April 17, 2013 Karl ABOUD’s account was viewed on the TD Bank computer logged on under employee Zain LAKHANI. ABOUD is not a customer of the branch located at 7686 Hurontario Street, Brampton. This client resides in Oakville and does not do any banking at this branch. There was no legitimate business purpose for LAKHANI to access and view this account.
[37] As well, the paragraphs describing the ordering of cheques, in each case (paras. 4, 10, 13, 15, 16, 18, 20, 22) used the language first exemplified in para. 4: “The cheques were ordered on a computer logged on under TD Bank employee …”.
[38] The witness acknowledged the differential use of language and in the paragraphs referring to the applicant, “I did not put the word ‘log-on’”.
[39] In his testimony, Det. Dolan accepted that the ITO contained various other errors or omissions.
[40] While paragraph 23 of the ITO refers to an address in para. 15, the address is not there. At Section E, para. 3 of Appendix C, the affiant stated that the applicant was suspended by TD Bank on May 28, 2013. Det. Dolan testified that this was a “typing error”, as the suspension was on May 22. Although the affiant recorded in his notes of June 19 that the applicant had been terminated “with cause” that fact was not included in Appendix C (“I just didn’t put it in”). Asked if it was his understanding that the applicant had been fired because of the alleged fraud, the affiant answered: “I don’t know that”. He had no recall as to whether he made inquiries in this regard.
[41] Although Det. Dolan stated in the ITO that TD Bank Corporate Security had interviewed various TD employees (Sahota, Janayeva, Singh, Lakhani), obtaining their denials of accessing the relevant customers’ accounts or ordering cheques, nothing was said about investigatory interviews of the applicant. Asked in cross-examination whether the applicant had been interviewed by TD personnel, the affiant initially responded, “I don’t recall”. Then, by reference to his notes, Det. Dolan agreed that, on June 4, 2013, the applicant, while under police surveillance, had met with TD Human Resources. The affiant was unable to say whether he inquired as to what transpired, or was said, at the meeting (“I don’t have anything written down … you have to ask the TD Bank”). Det. Dolan agreed that this would be useful information to know. The witness also gave this evidence:
Q. I’m going to suggest to you that you knew Mr. Persaud had also been interviewed by TD Corporate Security and you had been advised that he also denied all involvement in the alleged frauds?
A. I really don’t know.
I just don’t recall.
Q. Are you telling us today that you never made any inquiries or are you telling us you may have made inquiries but you don’t remember what you were told when you made those inquiries?
A. I just don’t remember.
(emphasis added)
[42] Also not included in the ITO was any reference to Det. Dolan’s April 25, 2013 videotaped interview of the applicant relating to the TD Bank. In cross-examination, the affiant explained the lack of inclusion on the basis that it was a “separate investigation” into bank drafts stolen from the bank. Pressed further, the affiant agreed that at the interview the applicant had consented to being fingerprinted and had provided on-line access to his cellphone records for February 2013 up to the time of the interview. Det. Dolan testified in respect of the cheque fraud that these phone records would be of limited assistance as there was police interest in “texts, notepads and pictures” – a matter he agreed was not discussed in the ITO.
[43] Paragraph 62 of the ITO describes police surveillance of the applicant conducted “on several dates including June and 5, 2013”. This was “a typo” with missing information. According to the affiant, the surveillance was on June 3 and 4, not June 5.
[44] The account numbers of those TD bank customers for which cheques were ordered without their consent, were not set out in Appendix A (things to be searched for) or in Appendix C (grounds of belief). In describing the account numbers during his evidence, Det. Dolan stated that it would be “an 8 or 10-digit account number, I’m assuming”. Counsel led this additional evidence:
Q. You mentioned that the account numbers are … 8 to 10 digits?
A. … That’s a guess, don’t hold me … I’d have to check and see what the accounts numbers are…
I’m just thinking when I look at the bottom of my cheque.
[45] Questioned as to how searchers would know if a number written on paper or recorded electronically was a bank account number relevant to the TD Bank investigation, Det. Dolan variously answered that he and Det. Fleming had both worked on the investigation, and, “I would know if it was a bank account number, I believe”.
[46] Under cross-examination, Det. Dolan was questioned as to where he believed the applicant kept a record of an account number between accessing a customer’s account and the date the account cheques were ordered for a mail out. The witness believed that the applicant took the record of the account number home and brought it back to the TD Bank branch to order the cheques. The witness was not prepared to discount that at times the applicant may have maintained an account number at home, at the office, in his vehicle, or on his person (“Well you’re going to keep it somewhere in my mind”). The May 22, 2013 search of the applicant’s office revealed no evidence that he was involved in the alleged fraud. Insofar as grounds for believing that the applicant would have retained such information at his home on June 27, Det. Dolan testified that he was of the view it would be “maintained” by the applicant as account information would not necessarily be discarded as it might have “value” – “what you’re talking about is account information that could have a future value for potential future crime”. This opinion was not expressed in the ITO.
[47] In his testimony, Det. Dolan accepted that nowhere in his ITO did he state any reason to believe that the applicant would be in possession of any fraudulently obtained cheques at his residence on June 27.
The Telewarrant Application
[48] By the point in time when Det. Dolan completed his redraft at 5:15-5:20 p.m., and swore the ITOs at 5:35 p.m., he was of the view, based on his experience, that no justice of the peace would be available at the Brampton courthouse to receive his search warrant application. As a result, he decided to apply by facsimile transmission to the provincial Telewarrant Centre (TWC) in Newmarket. The detective stated in his ITO that, “It is outside the normal hours of the Ontario Court of Justice, Brampton”. At 5:37 p.m., he initially forwarded to the TWC a PRPS form entitled “Initial Fax Contact Form” (Exhibit #5) indicating that s. 487 Criminal Code search warrants would be sought. Beneath the pre-printed words on the form, “If urgent, specify reason(s)”, Det. Dolan typed, “We are seeking two 487 C.C. search warrants with one set of grounds: one in Brampton, the other in Markham. We are not seeking night time entry. Only 3 hrs to execute”.
[49] At 5:42 p.m., the TWC faxed back the same form, and under the title “Initial Reply from a Justice of the Peace”, were the handwritten words, “Send when ready” above the signature of a justice of the peace.
[50] Because Det. Dolan, as he was in the witness stand, was once again struggled to reconstruct from his files what it was he faxed to the TWC in the way of a warrant application, this court was required to access the original application materials from the OCJ court file here in Brampton (Exhibit #7). The witness testified that, in terms of his own file, “the original 44 [pages] may no longer exist”. For the purpose of disclosure, the officer had combined parts of the original and telewarrant application materials in his possession in an effort, after some form of “shuffle”, to produce a replica of his telewarrant application. At points in his testimony, the detective was confused as to whether he faxed 42, 43 or 44 pages to the TWC.
[51] The original TWC documents, in the order found in the sealed packet, are as follows:
(1) A signed 2-page (and 3 pages of appendices attached) Modified Form 5.1 Telewarrant to Search the dwelling-house at 37 Velvet Grass Lane, Brampton authorizing the police to enter the premises and to search for, and seize, the things described in Appendix A, “between the hours of 5:00 p.m. and 11:00 p.m.” Appendices A (things to be searched for) and B (offence under investigation), in identical language to the original application. The warrant, signed by Justice of the Peace Seglins, is noted as having issued at 7:40 p.m.
(2) A signed 5-page Modified Form 5.1 Telewarrant to Search identical to that described in para. (1) above authorizing a search of the “place” at 3375 14th Avenue unit 7-8, Markham.
(3) The Initial Fax Contact Form.
(4) A 2-page (and 3 pages of appendices attached) Modified Form 1 Information to Obtain Telewarrant to Search relating to the Markham premises signed by Det. Dolan and certified by Justice of the Peace Seglins as received at 6:14 p.m. on June 27. The attached appendices, A (things to be searched for) and B (offence under investigation), were in identical terms to the above-described versions of these appendices. Although this ITO makes reference to grounds of belief in Appendix C, that appendix was not attached. Beneath the preprinted words on the form requiring a statement of reasonable grounds as why it would be impracticable to appear personally before a justice of the peace, Det. Dolan had typed, “It is outside the normal business hours of the Ontario Court of Justice, Brampton”. Beneath the preprinted words on the form requiring disclosure as to whether a prior warrant application had been made in respect of the same matter, Det. Dolan typed:
On the 27 June, 2013 the informant swore an information to obtain a search warrant at the Ontario Court of Justice, Brampton. The application for a search warrant was denied by Justice Budaji / The reasons were referenced and addressed in this application and information to obtain.
(5) A 2-page Modified Form 1 Information to Obtain Telewarrant to Search relating to a search of the applicant’s residence, signed by Det. Nolan and certified by Justice of the Peace Seglins as received at 6:15 p.m. This ITO contains the same language from Det. Dolan as described in para. (4) above relating to the reason for resort to the telewarrant application, and as to disclosure of the prior unsuccessful warrant application. Attached are Appendix A (2 pages) and Appendix B (1 page) in identical terms to the above descriptions of these appendices. Appendix C (grounds of belief) is also attached comprising 29 pages. Appendix D then follows, a 2-page document titled as described in para. 17 (4) above.
(6) The court file contains as well three further copies of the Initial Fax Contact Form, a draft Sealing Order, a Telewarrant Fax Cover Sheet identifying that the warrants and sealing order have been granted as requested, another copy of the telewarrant to search relating to the Markham address (original signatures) together with Appendices A and B.
[52] None of these pages were stapled in the sealed packet in the custody of the court.
[53] Review of the PRPS fax header imprint of transmitted page numbers across the top of these documents results in a different order of facsimile transmission to the TWC for the above-described documents:
Document
Transmission time
Imprinted page no(s)
(1)
Initial Fax Contact Form*
5:44 p.m.
001
(2)
ITO (Markham)
5:44 p.m.
002-003
(3)
Draft Telewarrant (Markham)
5:44 p.m.
004-005
(4)
ITO (Brampton Dwelling)
5:44 p.m.
006-007
(5)
Draft Telewarrant (Brampton)
5:45 p.m.
008-009
(6)
Draft Sealing Order
5:45 p.m.
010
(7)
Appendix A
5:45 p.m.
011-012
(8)
Appendix B
5:45 p.m.
013
(9)
Appendix C
5:45 p.m.
014-042
(10)
Appendix D
5:49 p.m.
042-043
44 pages
*Preprinted words on the form state “No. of pages in application (information to obtain and warrant)”. Det. Dolan typed in “42”.
[54] It is evident that only one (1) copy of Appendices A and B was faxed to the TWC and that the additional 3 copies of these two Appendices must have been made by some unidentified person at the TWC as each of the documents in paras. 53 (3)(4) and (5) above, as subsequently constituted in the OCJ court file, are followed by an Appendix A with header page numbers 011-012 and an Appendix B with header page number 013. Because of dark shading at the tops of the pages of Appendix A and B, the titles and wording at the top of these pages was incapable of being read.
[55] The TWC faxed documents back to Det. Dolan (Exhibit # 12):
Document
Transmission time
Imprinted page no(s)
Telewarrant Fax Cover Sheet*
7:48 p.m.
001
Telewarrant to Search Brampton residence (including Appendices A and B)
7:48 p.m.
002-006
Sealing Order signed by Justice of the Peace Seglins (re Brampton residence)
7:49 p.m.
007
Telewarrant to Search Markham address
7:49 p.m.
008-009
Appendix B
7:49 p.m.
010
Appendix A page 2
7:49 p.m.
011
Appendix A page 1
7:49 p.m.
013
Sealing Order signed by Justice of the Peace Seglins (re Markham address)
7:49 p.m.
013
13 pages
*Handwritten on the Fax Cover Sheet are the words “TOTAL 13 PAGES”.
Execution of Telewarrant
[56] The draft warrants forwarded by Det. Dolan to the TWC sought authority to search between 5:00 and 9:00 p.m. The signed warrants extended the time to 11:00 p.m.
[57] In cross-examination, Det. Dolan was asked whether he was surprised to have received a warrant authorizing a night search, unsolicited by the police. The witness responded, “I guess I never thought about it”. Det. Dolan did not seek any revision of the time period for execution.
[58] Det. Dolan, who was in overall charge of the search operations, testified that it was his intention to search the applicant’s bedroom at his Brampton residence. He anticipated this would take 10 to 15 minutes.
[59] Det. Dolan testified that he had two search teams at his disposal. He elected to take both teams to first search the Markham business address at 8:30 p.m. where they were admitted by a cooperating witness.
[60] Det. Dolan and Det. Fleming arrived at the applicant’s residence at 10:28 p.m. The applicant was outside and was immediately arrested. The police spoke to the applicant’s parents and provided them a copy of the telewarrant to search. The search was completed by 11:26 p.m.
Post Seizure Events
[61] Det. Dolan filed with the court a Form 5.2 Report to a Justice dated July 9, 2013 (Exhibit #9) relating to the items seized on June 27 from 3375 14th Ave. Units 7 & 8, Markham. The seizures are described in the form as being set out in Exhibit A. While there is an attachment, it is not marked as Exhibit A. The detective also filed a Form 5.2 Report to a Justice on July 9, 2013 respecting the seizures from the applicant’s residence (Exhibit #8) with the seized items said to be described in Exhibit A. No attachment was marked as Exhibit A. The attachment lists seized items under the heading, “3375 14th Ave Markham”. The witness informed the court that these were “mistakes” on his part.
[62] The applicant stands committed to stand trial on February 6, 2017 charged with fraud, conspiracy to commit fraud, unlawful possession of property, unlawful possession of identity information and theft. Other individuals (Confino, Hussain, Khan) are also charged in some counts.
ANALYSIS
Introduction
[63] In a s. 8/24(2) pre-trial Charter motion, the court reviewing a search warrant ITO does not stand in the place of the justice of the peace who issued the warrant. The properly circumscribed limits of review were succinctly summarized by Watt J.A. in R. v. Mahmood et al., 2011 ONCA 693, at para. 99 (leave to appeal refused [2012] S.C.C.A. No. 111):
A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley¸1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274.
(emphasis of original)
See also: Quebec (Attorney-General) v. Laroche (2002), 2002 SCC 72, 169 C.C.C. (3d) 97 (SCC), at p. 188; R. v. Reid, 2016 ONCA 524, at para. 73 (appln for leave to appeal filed [2016] S.C.C.A. No. 432); R. v. Nero and Caputo, 2016 ONCA 160, at paras. 70-72, 79, 82, 84, 87, 116 (leave to appeal refused [2016] S.C.C.A. Nos. 184, 187); R. v. Budd (2000), 2000 CanLII 17014 (ON CA), 150 C.C.C. (3d) 108 (Ont. C.A.), at p. 117 (leave to appeal refused [2001] S.C.C.A. No. 57).
[64] In performing its narrow role of constitutional review of an ITO, various instructive guidelines have been applied by courts including:
(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Hafizi, 2016 ONCA 933, at para. 43; R. v. Campbell, 2010 ONCA 588, at para. 45 (aff’d 2011 SCC 32); R. v. Crevier, 2015 ONCA 619, at paras. 66, 74; Nero and Caputo, at para. 68.
(2) The review takes a practical, common sense approach to all the circumstances (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 129), considering the narrative of the ITO contextually without piecemeal dissection: Hafizi, at paras. 49-50, 56; R. v. Sadikov, 2014 ONCA 72, at para. 87.
(3) “[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.
(4) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), at para. 135 (affd 2014 ONCA 364):
The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 CanLII 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.
(5) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Green, 2015 ONCA 579, at para. 18; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
(6) That said, as observed by Fish J. in Morelli, at para. 167, police officers “should draft ITOs as precisely and clearly as possible”.
(7) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether, following any amplification and/or excision, the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.
(8) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70, 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).
What Was The Record Before the TWC?/
Non-Compliance With Statutory Prerequisites
The Submissions
Applicant
[65] These two grounds are interrelated and are most conveniently dealt with together. On behalf of the applicant, Mr. Henderson argued that there is an unsettling lack of certainty as to what Det. Dolan submitted to the TWC in his application for a telewarrant. The officer no longer possessed a complete copy of his application and, as a result, disclosed a composite set of pages selected from both the original and the telewarrant applications. The confusion was compounded by the officer’s uncertainty as to whether he transmitted 42, 43 or 44 pages to the TWC.
[66] Counsel further submitted that review of the TWC packet, along with Det. Dolan’s testimony, reveals that, within the transmission, the officer faxed two 2-page “face plate” modified Form 1 ITOs (Brampton home/ Markham business) but only one set of appendices. The order of pages transmitted, as drawn from review of the PRPS fax header numbers, discloses that the 2-page face plate modified Form 1 relating to the ITO for the applicant’s dwelling was not a completely sequential document with attached appendices. Some unknown individual, whether a clerk, a secretary or a justice of the peace, copied from the single set of transmitted appendices to insert multiple copies as required into the court record. This was a “mix and match” approach without a complete and unbroken 4-corners application document as required by the Code.
Respondent
[67] On behalf of the Crown, Ms. Hackett submitted that whatever confusion may have existed in Det. Dolan’s evidence, it is evident from the text of his Initial Fax Contact Form that “one set of grounds” was meant to support the application for the two search warrants. The two sworn ITOs referred to a common set of appendices which the justice of the peace at the TWC understood to be an integral part of each application.
Governing Principles
[68] In R. v. Avila, 2016 ONSC 3270, at para. 25, the court observed:
The notes of law enforcement officers should be accurate and complete and contemporaneously made whenever practicable: Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, at paras. 62-68. Delayed note-taking risks error and unconscious editing. “[T]he quality of the record-keeping and the adequacy of an officer’s notes are important”: R. v. Thompson, 2015 ONCA 800, at para. 58. Notes not only contribute to refreshing a witness’ memory, but also serve prosecution disclosure obligations and inform defence positions respecting case resolution, and further contribute at trial to a trier of fact receiving reliable evidence.
[69] Section 487.1(1) of the Code permits a peace officer to apply for a telewarrant by facsimile transmission of “an information on oath”. A sworn information is in effect an affidavit. Just as an exhibit to an affidavit shall be referred to in, and attached to, the affidavit (Criminal Proceedings Rules for the Superior Court of Justice (Ontario), Rule 4.06(3)(a)), so too appendices to an ITO must be referred to in, and attached to, the ITO.
Discussion
[70] Police note-taking of material steps in an investigation includes the ability of a police officer to produce a reliable record of documentation relevant to an application for a court order. This should include drafts and the final application materials.
[71] In this case, Det. Dolan produced by way of disclosure to the defence, and in turn to the court, a hybrid of his two search warrant applications (Exhibit #2, Tab 7; Exhibit #4). The witness was not in a position to produce a copy of the 40-plus pages of material forwarded to the TWC. He was uncertain how many pages were faxed to the TWC. These shortcomings were alleviated to some extent by this court’s direct access to the TWC return to the OCJ Brampton court office pursuant to s. 487.1(2.1) of the Code.
[72] It is not uncommon for an affiant to use a single sworn ITO, properly drafted, to apply for the issuance of warrants to search more than one building, receptacle or place. For reasons which never became apparent, that is not what transpired in the present case where Det. Dolan purported to use two (2) sworn ITOs, each of which was directed to a different location (Markham business/applicant’s dwelling), and each of which represented that it included Appendices A, B and C. However, as is evident from the TWC return packet described at para. 53 above, (1) only one set of appendices was faxed to the TWC and (2) the appendices did not sequentially follow either sworn ITO. This approach does not constitute a complete, properly sworn information under oath respecting the application to search the applicant’s dwelling. Arguably, therefore, Mr. Henderson is correct that it was jurisdictional error for the justice of the peace to consider the application in this state.
[73] Be that as it may, Justice of the Peace Seglins, or someone under his/her direction, reassembled the transmitted pages and made additional copies of the appendices thereby constructing a complete version of an ITO relating to the application to search the applicant’s dwelling. Given this court’s conclusions respecting other deficiencies in the ITO and the residence search warrant, no final determination need be made on the existence of jurisdictional error on account of the irregularities surrounding the warrant application.
Grounds for a Telewarrant
The Submissions
Applicant
[74] Mr. Henderson noted that Det. Dolan began his revisions to the original warrant application at about 4:00 p.m. on June 27. The officer was at his office about a 5-minute drive from the Brampton courthouse. He intended to resubmit essentially the same application with only 5 new paragraphs (paras. 65-69) covering a little more than a page of text. The detective made no attempt to contact the intake office at the courthouse in an effort to determine whether a justice of the peace, if not Justice of the Peace Budaci, would be prepared to receive the warrant application. The application was prepared by 5:30 p.m.
[75] It was submitted that the police “cannot reverse engineer” the impracticality threshold to suit their own purposes. There was no urgency here. The warrants could, alternatively, have been applied for in person at the courthouse on the morning of June 28.
Respondent
[76] Ms. Hackett submitted that Det. Dolan took the time necessary to prepare his second application for the two search warrants. The drafting was completed by 5:15 – 5:20 p.m. and the documents sworn at 5:35. There could be no reasonable suggestion that this work could have been done with greater dispatch. A justice of the peace would require time to read and deliberate upon the application.
[77] As a PRPS officer of long service in Peel, Det. Dolan was entitled to rely upon his experience that the courthouse intake office for warrant applications would be closed by 5:00 p.m. The detective had valid operational reasons for not waiting until the next day to apply for the warrants. It was impracticable to proceed by a conventional application.
Governing Principles
[78] Recently, in R. v. Dabreo, 2016 ONSC 1907, at paras. 82-83, 86-89, 92, I stated:
[82] Section 487.1 of the Criminal Code provides for the issuance of a telewarrant.
[83] With justices of the peace in Ontario not scheduled or assigned to be within courthouses 24 hours a day, the provincial telewarrant centre in Newmarket, Ontario was established to have one or more on-duty justices of the peace, outside normal court hours, available to consider facsimile transmission applications for search warrants and, where appropriate, to issue warrants by telecommunication means.
[86] The presumption is that a peace officer applying for a Code or C.D.S.A. search warrant will appear personally before a judicial officer scheduled and assigned to consider such applications. Resort by the police to the telewarrant procedure cannot merely be routine, most convenient or simply at the option of the applicant. The s. 487.1(1) limitation of impracticability deliberately funnels the majority of warrant applications to match the availability of judicial complement at courthouses during the daytime, and as well recognizes that the majority of warranted searches occur during the day.
[87] The telewarrant regime as designed in Ontario avoids the prospect of a warrant applicant being unable to obtain a warrant from 6:00 p.m. to 9:00 a.m. or the need for on-call justices of the peace to be available throughout the province after court hours awaiting the possibility of an application.
[88] A better sense of the judicial interpretation of the impracticability precondition for a telewarrant application can be derived from these authorities:
I do not accept the Crown’s submission that telewarrants merely provide an alternate process for obtaining warrants and that there is no reason to limit their use. If that were the case, the legislation would not have included the requirement that appearance in person must be “impracticable”. I agree with the trial judge that inconvenience is not the same as impracticability and, in my view, it was open to the trial judge to conclude that the record before him did not establish that it was “impracticable” to obtain a warrant in the usual manner.
(R. v. Lao, 2013 ONCA 285, at para. 68)
[65] I do not agree with Mr. Clark that to meet the impracticability requirement the facts set out in an ITO must satisfy a judicial justice not only that an in-person appearance is not feasible but also that there is an immediate need for a warrant.
[66] The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week. Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued. The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated. Apposite is the following from the judgment of Madam Justice Levine in R. v. Le, 2009 BCCA 14, 268 B.C.A.C. 58:
[35] The appellant suggests that as there was no urgency to carry out the search, Constable Lane should have waited until the next day when she could have appeared in person to obtain the warrant, or she should have asked another officer, who was working during the day, to obtain the warrant. In my opinion, the telewarrant procedure is available so that police officers who work on shifts or in communities where justices of the peace are not available at all hours may carry out their duties, and it is not for the court to interfere in the management of police investigations by requiring them to organize themselves to avoid using the telewarrant procedures in the Code or risk being found in violation of those provisions.
[Emphasis added.][by BCCA]
[68] In the present case, the question is whether, on the basis of the statement on the printed form and para. 26 of Appendix A, JJ Cyr could have been satisfied that the ITO “discloses reasonable grounds for dispensing with an information presented personally and in writing” (Code, s. 487.1(5)). The answer is clearly “yes”. Indeed, as discussed in R. v. Nguyen, 2009 BCCA 89 at para. 18, 243 C.C.C. (3d) 392, if a judicial justice had been available for an in-person application, then one would expect either the Justice Centre or JJ Cyr to have so advised Constable Marshinew.
(R. v. Clark, 2015 BCCA 488, at paras. 65-66, 68; leave to
appeal filed [2016] S.C.C.A. No. 32)
- The Legal Meaning of the Term “Impracticable”
[19] The jurisprudence on the meaning of the term “impracticable” in this legislative context suggests the creation of a relatively low threshold standard, which imports a large measure of practicality and common sense. According to the authorities, the term “impracticable” requires that personal attendance before a justice be more than merely inconvenient for the affiant, but it need not be impossible for the affiant. The term “impracticable” requires, in short, that personal attendance before a justice be very difficult or not practical for the affiant in the circumstances. See R. v. Erickson, 2003 BCCA 693, 19 C.R. (6th) 367, at para. 33; R. v. Phillips, 2004 BCSC 1797, at paras. 20-24; R. v. Nguyen, 2009 BCCA 89, 243 C.C.C. (3d) 392, at paras. 16-19; R. v. Luong, 2010 ONSC 84, at para. 37; R. v. Hatton, 2011 ABQB 242, 274 C.C.C. (3d) 538, at para. 57; R. v. Lemiski, 2011 ONSC 30, 226 C.R.R. (2d) 27, at para. 44; R. v. Kirubanathan, [2011] O.J. No. 5766 (S.C.J.), at paras. 23-31; R. v. Ballenger, 2013 ONSC 1305, 278 C.R.R. (2d) 16, at paras. 8-18; R. v. Lao, 2013 ONCA 285, 305 O.A.C. 346, at para. 68; R. v. Lacelle, 2013 ONCA 390, 284 C.R.R. (2d) 184, at paras. 2-7; R. v. Boussoulas, at paras. 72, 76; R. v. Daniels, at para. 14; R. v. Gardner, 2015 BCSC 801, [2015] B.C.J. No. 992, at paras. 17-18.
[20] Recently, in R. v. Rutledge, 2015 ONSC 1675, [2015] O.J. No. 5802, at para. 111, Wein J. summarized the law in this area as follows:
The standard “impracticable” has been interpreted to mean “something less than impossible”, importing “a large measure of practicality, what may be termed common sense”. Ontario decisions generally view the standard as being relatively low: see Boussoulas, at para. 72. While the personal attendance must be more than a mere inconvenience for the affiant: (R. v. Lao, 2013 ONCA 285 at para. 68), it has also been said that the court ought not to interfere in the management of police investigations by requiring them to organize in a fashion that avoids using the telewarrant procedures: see R. v. Lemiski, 2011 ONSC 30 (at para 44) referring to R. v. Luong, 2010 ONSC 84 at para 37. The telewarrant legislation was clearly intended to allow the police to use modern technology to bridge gaps over time and distance: R. v. Phillips, 2004 BCSC 1797, [2004] B.C.J. No. 2919 (at para 23).
[emphasis added] [by original]
(R. v. McKenzie, 2016 ONSC 245, at paras. 19-20)
[89] While each case stands to be considered on its own factual circumstances, the geographic or temporal unavailability of a justice of the peace to receive a warrant application has generally been accepted as a legitimate instance of impracticability: Clark (″because I am working a nightshift in the early morning hours and the Kelowna Court House is presently closed“); R. v. Lacelle, 2013 ONCA 390 (″There is no Justice of the Peace available at this time“); R. v. Nguyen, 2009 BCCA 89 (″the Provincial Court house is currently closed and Constable Stanford is unable to access the services of a Provincial Court Judge or Judicial Justice of the Peace…“); see also R. v. Young, 2008 BCCA 513; R. v. Berry, 2002 BCSC 1742.
[92] Urgency or something approaching exigent circumstances is not an essential prerequisite for a telewarrant. It may, however, be a factor in a particular case. I do not consider the Ontario Court of Appeal to have suggested otherwise by its reference in Lao, at para. 66, to “the non-urgent nature of the application” as a circumstance mandatorily to be taken into account where, on the facts of that case, the application was forwarded within an hour of the in-take court opening at the relevant courthouse. Large municipal and regional police forces schedule shifts of police officers for 24 hr.-a-day coverage. It cannot seriously be suggested that only the dayshift can apply for warrants.
Discussion
[79] From the content and presentation of his evidence, there is no reason to believe that during the afternoon of June 27, 2013, Det. Dolan was stalling or delaying in some measure to avoid making a conventional s. 487 application of the type he made earlier in the day. There is no evidence that the officer was attempting to avoid Justice of the Peace Budaci.
[80] As a PRPS officer, Det. Dolan relied upon his experience with the hours of operation of the intake office at the Brampton courthouse to conclude that, at 5:30 p.m., no search warrant application would be received and assessed at that location. In the circumstances, the officer was entitled to rely upon his experience without attempting to make specific inquiries of the courthouse.
[81] Was it however “impracticable” for Det. Dolan to have reapplied for warrants to search on the following morning? On the one hand, the officer noted as to “Urgency” on the Introduction page left with the original ITO earlier in the day, “None”. Cross-examined in this proceeding, the detective advanced as his first reason for wanting to perform the searches on June 27 that he wished to execute a search warrant in another case on June 28. Almost by way of adversarial afterthought, as to why he was “a bit” rushed, did the witness make reference to the prospect of loss of evidence. To the extent that urgency is one factor to be considered within the impracticability analysis, there was little evidence of such circumstances.
[82] While I find this to be a close case as to whether the affiant discharged his onus of demonstrating to the TWC the impracticability of personal appearance before a justice of the peace, I am not prepared to interfere with the decision of the justice of the TWC to have entertained the application.
Grounds of Belief That Applicant Committed an Offence
The Submissions
Applicant
[83] Mr. Henderson submitted that even without resort to a subfacial validity analysis, the face of Appendix C of the ITO fails to disclose reasonable grounds to believe that the applicant was a participant in the alleged conspiracy. In the sworn 2-page face plate Modified Form 1 relating to the search of the applicant’s dwelling, the grounds of belief are specifically identified to be those set out in Appendix C of the ITO. However, Det. Dolan also forwarded to the TWC 2 pages titled Appendix D not referred to in the Modified Form 1 or indeed in Appendix C except to state, at para. 69, that he has been unable to further corroborate what is set out in Appendix D.
[84] Counsel submitted that a subfacial evaluation of Appendix C based upon Det. Dolan’s testimony establishes that the text of this appendix was significantly misleading to a degree that it cannot be concluded that the justice of the peace would have issued the warrant to search the applicant’s dwelling had the ITO not been drafted in the manner that it was.
[85] Mr. Henderson noted that the successive application for the search warrant, while disclosing the court’s reasons for the refusal of the warrant in the original application, failed to disclose what, if any, new facts were being advanced to the TWC. Put differently, how was the second justice of the peace to know whether or not he/she was receiving an essentially identical ITO? The additional titlage, ‘D. Addressing Reasons for Denial’ does not answer this question.
[86] It was further submitted that Det. Dolan received a “prepackaged” complaint from the TD Bank on May 22, 2013. He was essentially “a passive recipient” who conducted little further investigation into the bank’s conclusion that the applicant was a member of the alleged conspiracy to defraud. Leaving aside the text of the ITO relating to Hussain and others, the only factual paragraphs of Appendix C relating to the applicant were paragraphs 1-16, 51, and 60-62. The grounds described in these paragraphs were the same on May 22 (the date Det. Dolan first met TD Bank Corporate Security) and on June 27 (the date of the warrant application).
[87] The investigator gathered no evidence to independently confirm TD Bank Security’s allegation that the applicant had, on identified dates, “accessed and viewed” customer account information without authorization.
[88] It is argued that accepting Det. Dolan’s characterization of the present case as a “keystroke investigation”, it was essential that the affiant be precisely accurate in describing the factual circumstances. In stating as a fact, not an inference, that the applicant had “accessed and viewed” account information, the affiant misled the court into believing that there was evidence directly implicating the applicant in breaching TD Bank policy and in turn in the broader conspiratorial agreement. This interpretation would be reasonable considering the significantly differential language of other paragraphs using the phrasing, “on a computer logged on under TD Bank employee…”, and the description of the culture of lax security of TD employees leaving a computer operating without logging off.
[89] In addition, Mr. Henderson noted the omission of other material information from the Appendix C grounds of belief which should properly have been disclosed in the application in order to provide a fair and balanced record for deliberation as to whether the applicant was involved. This included the following.
[90] The applicant was interviewed by Det. Dolan on April 25, 2013 relating to an investigation into the theft of bank drafts from the TD Bank. At that time, the applicant consented to being fingerprinted and provided access to his cellphone records. On June 4, 2013, the applicant met with TD Bank personnel. Despite the affiant disclosing information relating to the interviews of other TD Bank employees by TD Bank Corporate Security, Det. Dolan did not disclose anything about the applicant being interviewed, including what he may have said by way of denial of wrongdoing.
Respondent
[91] Crown counsel submitted that the ITO contained grounds respecting the applicant’s involvement in the alleged conspiracy upon which the justice of the peace could exercise his/her discretion to issue the warrant for the applicant’s dwelling – this is not an instance of an entire absence of evidence.
[92] Ms. Hackett submitted that the applicant for a search warrant is lawfully entitled to make a successive application for a search warrant following a denial decision. Here, Det. Dolan made such a successive application properly disclosing the reasons for the earlier judicial refusal and responsively explaining the police position respecting those reasons.
[93] The telewarrant application was not a different application (“It’s the same one submitted again”). It was submitted that the second justice of the peace was not sitting in review of a judicial colleague’s rejection of the original unsuccessful application. It was a de novo consideration of the application. Det. Dolan, however, reasonably started from the premise that he could not change anything within the body of the ITO presented to the first justice without disclosing modifications – he did just that by clearly flagging the change from the original application with section ‘D. Addressing Reasons for Denial’. Ms. Hackett submitted:
With regard to the submission of the second ITO, it’s the Crown’s position that it’s not a different ITO. It’s not a situation where the officer was trying to submit new information to the justice but rather what it is, is a resubmission of two successive ITOs that are the same … the same information but the only difference is addressed … in section D. …
[94] It was submitted that unlike reliance upon a civilian informant, Det. Dolan was entitled to rely upon the investigation of a reputable private investigative entity such as TD Bank Corporate Security for reliable information relating to an in-house investigation. Subsequent police investigation revealed the conspiracy “fanning out” and evolving.
[95] Various paragraphs of the Respondent’s Factum describe the applicant as searching and accessing customer account information (for example, paras. 14, 47, 66). The factum argues that the omission of language stating, “accessed on a computer logged-on with” the applicant’s credentials, is an “omission of no consequence” and, in the context of the ITO, “the phrases mean the same thing”.
[96] Considered cumulatively, the facts articulated in the ITO amounted to reasonable and probable grounds to believe that the applicant improperly “accessed and viewed” customer account information. Det. Dolan is not expected to be a “wordsmith” and his use of this language did not distort or change the meaning of facts he had learned in such a way as to mislead the issuing justice of the peace.
Governing Principles
[97] This ground of review engages consideration of a number of foundational concepts in search and seizure law including the nature of warrants, the standard of reasonable grounds to believe, subfacial validity, and the propriety of successive applications for a warrant to search.
[98] A search warrant is a “staple investigative tool” to answer the questions, “What happened? Who did it? Is the conduct criminally culpable behaviour?”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 21.
[99] That said, section 487 and 487.1 Criminal Code warrants to search are not arrest warrants and do not authorize search of a person – these warrants are place-specific to locate illegal substances, contraband or evidence: R. v. Ting, 2016 ONCA 57, at para. 47 (“Broadly defined, a search warrant is an order issued by a justice of the peace that authorizes the police to enter a specified place to search for and seize specific property”); Campbell, at paras. 54-5; CBC v. New Brunswick, at paras. 17, 45.
[100] In R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.), Cromwell J.A. (as he then was) stated at paras. 29-30:
29 The existence of reasonable grounds is therefore critical to the balancing of the values of privacy and effective crime detection. To repeat often used words:
The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. (Hunter at p. 167). (emphasis added)
30 Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establish this "credibly based probability":
(i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place: (R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365)
(ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at 364)
(iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke (1992), 1992 CanLII 2521 (NS CA), 115 N.S.R. (2d) 426 (C.A.); aff'd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.
(iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at pp. 1456-1457:
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails.
(emphasis added)
[101] In R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at page 215, in setting out guidelines respecting information received by the police, Wilson J. asked whether the information “originating from a source outside the police, was … credible”. We presume a trust level regarding domestic sub-affiant state investigators: “A police investigation is an example of teamwork and each member of the team is entitled to take the position other team members have performed their part properly”: R. v. Jensch, [1999] A.J. No. 1595 (Prov. Ct.), at para. 24 (aff’d [2000] A.J. No. 1573 (C.A.)); R. v. Agensys International Inc., (2004), 2004 CanLII 17920 (ON CA), 187 C.C.C. (3d) 481 (Ont. C.A.), at p. 493 (no requirement to independently verify information given affiant by other Revenue Canada employees). In Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), 2003 CanLII 52144 (ON CA), 173 C.C.C. (3d) 466 (Ont. C.A.), at para. 31 (leave to appeal refused [2003] S.C.C.A. No. 302), Rosenberg J.A. and Moldaver J.A. (as he then was) stated:
First, Mr. Drapeau reasonably relied upon the information provided to him by the United States investigators. He had dealt with them in the past and considered them to be honest. Thus, when they tell Mr. Drapeau that they have seen information in documents produced by the informer that support the existence of the conspiracy, Mr. Drapeau could rely upon that being the case, even if he had not personally seen those documents. Similarly, Mr. Drapeau could rely upon the officers’ reports of conversations with the confidential informer. The situation is similar to that in Debot where Wilson J. held at p. 215 that the officer making the search could rely upon the authenticity of another officer’s report of his conversation with the confidential informer. It is quite different from United States of America v. Future Électronique Inc. (2000), 2000 CanLII 11375 (QC CA), 151 C.C.C. (3d) 403 (Que. C.A.) at pp. 414-15 where the Canadian official gave no reasons for why he could rely upon the information provided by a named F.B.I. agent.
(emphasis added)
[102] A judicial officer deliberating as to whether a search warrant should issue makes an independent determination as to whether reasonable grounds exist. In the absence of “facts” upon which a justice of the peace, “acting judicially”, could be satisfied, there is no basis for the court to make an independent judicial determination: R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 13-16 per Martin J.A. (leave to appeal refused [1987] S.C.C.A. No. 395). Accordingly, it is not sufficient for an affiant to simply narrate his or her conclusions or inferences without disclosing the foundational facts said to support such a conclusion or inference: R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 500 (leave to appeal refused [1989] 1 S.C.R. vii). Where an ITO advances conclusory language on a material issue, rather than rejecting the application, the judicial officer may discharge his or her “duty” of asking for the application to include the facts upon which the conclusion was based: Restaurant Le Clémenceau v. Drouin (Judge), 1987 CanLII 54 (SCC), [1987] 1 S.C.R. 706, at para. 7.
[103] A court considering the issuance of a search warrant is entitled to draw “reasonable inferences:” Nero and Caputo, at para. 71; Green, at para. 25; R. v. Fortune, 2013 ONCA 421, at para. 8; R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; Durling, at paras. 20, 27; R. v. Jackson (1984), 1983 CanLII 244 (BC CA), 9 C.C.C. (3d) 125 (B.C.C.A.), at p. 131; Re Lubell, at p. 190; Sanchez, at pp. 365, 370; Church of Scientology, at pp. 514-5.
[104] “It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320, the court stated:
Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 2004 CanLII 17920 (ON CA), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-400.
See also Morelli, at paras. 41-60, 100.
[105] At para. 74 of Crevier, the court stated:
On a sub-facial challenge, the burden likewise rests on the accused to establish the warrant’s invalidity. A sub-facial challenge, however, goes behind the ITO “to attack the reliability of its content”: Araujo, at para. 50. Any errors and inaccuracies in the ITO are excised, but can be amplified by evidence as long as the errors or inaccuracies were made in good faith. In determining the sub-facial validity of a warrant, the reviewing judge inquires into whether, based on the record as amplified on review, “there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued” (Araujo, at para. 51). An accused might, for instance, challenge the credibility and reliability of the ITO affiant through cross-examination. This could serve to undermine the reliability of the affiant’s statements in the ITO, including the information attributed to the confidential informer: see e.g. R. v. Brown, 2013 ONSC 2848, 282 C.R.R. (2d) 220, at para. 115.
See also R. v. Lucas, 2014 ONCA 561, at paras. 156-9, 193-4 (leave to appeal refused [2014] S.C.C.A. No. 460); R. v. Soto, 2011 ONCA 828, at para. 7.
[106] Amplification evidence cannot, of course, be used to provide evidence not known to the police at the time the ITO was sworn (Ting, at para. 70; Morelli, at para. 74) or to cure deficiencies beyond minor, technical errors in the ITO: Araujo, at para. 59.
[107] Boiler-plate language is generally to be avoided in an ITO as it can be inaccurately misleading: Araujo, at paras. 6, 47.
[108] In drafting an ITO, an affiant frequently seeks to reduce a mass of investigative detail to a more concise summary of what is essential to satisfy the warrant application test. There are risks in doing so. The compression process can lead to distortion or information dropped as transpired in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 where a warrant affiant stated in an ITO that an informant supplied the police with a particular address (“2618 – 26 Street S.W.”) when in fact the information from the informant was that the subject residence was a “cute house” beside a house with a lot of windows on 26th Street between two consecutive cross avenues in Calgary. Acting on the tip, the police investigation matched the house description to the address included in the ITO. The consequence of this drafting approach was described at pp. 286, 298:
The information implied that the informant had identified the exact street address of the premises to be searched, rather than only having provided more general information pertaining to the block in which the residence was located.
…the information gave the impression that the informant had supplied more detailed facts than was actually the case.
[109] The judicial approach adopted to this drafting issue was summarized in Araujo, at para. 56:
In Plant, supra, our Court considered a situation where the information on a search warrant application compressed two parts of the police investigation by stating that an informant had supplied the police with a particular address when the informant actually supplied a precise description of the house that enabled the police to identify its address. The address itself would be excised from the information on review, but Sopinka J., at pp. 298-99, allowed for the amplification of the information obtained from the informant and concluded that, given that there was no deliberate attempt to mislead, the information concerning the description of the house and the fact that the police had found such a house at the address in question could still contribute to the existence of reasonable and probable grounds.
[110] In R. v. Amare, 2014 ONSC 4119, at para. 83 (affd 2015 ONCA 673, at para. 7), the reasonable grounds standard was described in these terms:
83…
(1) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1
(2) in other words, the ‘reasonable grounds to believe’ standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117
(3) the fact “that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47
(4) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116
(5) that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 CanLII 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47
(6) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012) see also Crevier, at para. [65]
(7) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)
(8) in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67
(9) an officer’s training and experience may provide “an objective experiential…basis” for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73 [see also R. v. Wu, 2015 ONCA 667, at paras. 55, 57, 64 (leave to appeal granted [2015] S.C.C.A. No. 504)]
(10) a court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90) (emphasis in original)
[111] While an “ITO need not demonstrate a prima facie case against a named person” (R. v. Wallace, 2016 NSCA 79, at para. 29), or proof on a balance of probabilities or beyond a reasonable doubt (Sadikov, at para. 81), whether reasonable grounds exist to believe an individual committed a crime requires consideration of the totality of relevant circumstances.
[112] Where the Crown proceeds to defend the validity of a search warrant on the basis of a redacted ITO, it cannot purport to rely upon a submission that the police in fact had more grounds in the undisclosed material: R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.), at paras. 15-17; R. v. Dhillon (2010), 2010 ONCA 582, 260 C.C.C. (3d) 53 (Ont. C.A.), at para. 63.
[113] The judicial officer considering a successive warrant application is not sitting on appeal or in review of the refusal decision of the justice of the peace who declined to issue the warrant: R. v. Duchcherer (2006), 2006 BCCA 171, 208 C.C.C. (3d) 201 (B.C.C.A.), at paras. 14-34.
[114] In R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), a case in which there was no disclosure of the earlier refusal to the second judicial officer, Doherty J.A. stated at paras. 40-42:
40 The reasons for and the nature of the non-disclosure of the prior refusal are important considerations in determining the effect of that non-disclosure on the validity of the warrant. If the non-disclosure was for some improper motive or was intended to mislead the Justice of the Peace before whom the second application was made, that non-disclosure standing alone may well invalidate the warrant despite the presence of reasonable and probable grounds to issue the warrant: R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 at 127 (Ont. C.A.); R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 at 553 (N.S.C.A.); R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at 473 (S.C.C.). On the findings of the trial judge, that is not this case.
41 Where the non-disclosure is not the product of an improper motive or part of an attempt to mislead the Justice of the Peace, the question becomes whether the second Justice of the Peace acting judicially and having been advised of the prior refusal could have issued the search warrant. I have no hesitation in answering that question in the affirmative. The trial judge found that the information presented on the second application was substantially different from the information presented on the first application. The second information contained a much more detailed description of the grounds upon which the warrant was sought. In these circumstances, disclosure of a prior refusal based on a consideration of an entirely different information would not have precluded the issuing of a warrant by the second Justice of the Peace. In fact, given the significant differences between the two informations, the first refusal would have little relevance to how the Justice of the Peace exercised his discretion on the second application.
42 I would observe that had the second information been the same as the first information, the initial refusal would have played a much more significant role in how the second Justice of the Peace exercised his or her discretion. Indeed, in R. v. Eng, supra, at para. 49, Wood J.A. thought it improper to make successive applications based on the same information. As the information in this case were very different, I need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made. I leave that question for a case where it arises on the facts.
(emphasis added)
Justice Doherty’s observations at para. 42 were approved by Thackray, J.A. at para. 31 of the Duchcherer decision.
[115] In R. v. Eng, 1995 CanLII 1794 (BC CA), [1995] B.C.J. No. 329 (C.A.), at para. 49, Wood J.A. observed:
It is perfectly proper to bring on a fresh application for a search warrant, after one has been refused, either when new evidence becomes available or when it is apparent that the previous unsuccessful application was based on a Form 1 information which