Court File and Parties

Court File No.: CR-17-0000186-0000 Date: 2017-05-30 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Muhammad Madbouli, Defendant

Counsel: Stephen Byrne, for the Crown Peter Thorning and Deepa Negandhi, for the Defendant

Heard: March 6-9, 14, 16, April 6, and May 12, 2017

Ruling on an Application to Exclude Evidence

B. P. O’Marra J.

Overview

[1] On May 16 and 17, 2014, Jermaine Rowe was the target of a major drug investigation by members of the Toronto Police Service (TPS). He was a named party on an Authorization issued pursuant to Part VI of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The plan for those days was for surveillance to be conducted on Rowe and to arrest him and any others involved in drug transactions. Rowe, the applicant and others were observed in various vehicles and at various locations in Toronto and Mississauga on May 17, 2014. Their activity appeared to involve drug trafficking. Cell phone conversations between Rowe and the applicant were intercepted throughout that day. The surveillance officers were updated on those intercepted communications throughout the day.

[2] At approximately 8:15 p.m. on May 17, 2014, the applicant was alone in his vehicle on Rathburn Road in Mississauga when he was boxed in by several unmarked police vehicles. He was pulled out of his vehicle and detained by several plainclothes officers for approximately fifty-five minutes before he was transported to a police station in Toronto. There is no dispute that the police had reasonable grounds to stop and arrest the applicant when they did so. There are contentious issues related to whether the applicant was told of any specific charges and what was said to him related to access to a lawyer.

[3] The police seized items from the applicant at the time of arrest including a set of keys. One of those keys was later used by police to enter an apartment unit. They eventually recovered drugs, cash and firearms that are the subject of these charges. They also recovered mail addressed to the applicant and personal papers including his social insurance card.

[4] The applicant submits there were violations of sections 8 and 10(b) of the Charter of Rights and Freedoms that should lead to the exclusion of the items found in the apartment.

Standing to Challenge the Search Warrant

[5] The applicant was found in possession of a key to the apartment. Inside the apartment the police recovered sensitive personal identification and personal items such as a social insurance card, mail, business cards and an airline ticket. The mail indicated a different address. The cumulative effect of that evidence is that he had access and a degree of control over the premises and an objectively reasonable expectation of privacy. On this blended proceeding the Crown relies on these same factors to establish possession of the drugs, firearms and proceeds of crime. The applicant is not required to show that he had exclusive access and control of the premises: R. v. Pugliese, [1992] O.J. No. 450 (C.A.) at para. 14; R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45; and R. v. Jordan, 2002 BCSC 1322, [2002] B.C.J. No. 2077 (BCCA) at para. 22. I am satisfied that he had standing to challenge the legality of the search and seizure.

Right to Counsel

[6] The applicant testified that he was not informed of the reason for his arrest or of his right to counsel at the takedown at 8:15 p.m. Officers Ross and Holland testified that he was so informed and that he declined to contact counsel at that time. I do not accept the evidence of the applicant on those issues. However, that finding is not significant in light of other uncontroverted evidence related to right to counsel. There was no dispute as to the following:

(1) When the uniform transport officers of the TPS took custody of the applicant at 9:20 p.m., they advised him of his right to contact counsel and he told them he wanted to do so.

(2) When the applicant was booked at the police station in Toronto at 10:00 p.m., he again indicated he wanted to contact counsel; and

(3) There was no effort by the police to facilitate the applicant’s access to counsel until 3:27 a.m. This was approximately seven hours after his arrest and six hours after he requested access to counsel. At the same station where the applicant was detained, the TPS facilitated Rowe and two other persons arrested in this sweep to contact counsel.

[7] The Crown concedes that the breach of s. 10(b) of the Charter was serious. However, he submits that it should not lead to exclusion of the real evidence seized by police while the applicant waited for a chance to contact counsel. The Crown fairly conceded that the breach of s. 10(b) of the Charter was sufficiently connected to the transaction that led to discovery of the real evidence to require analysis under s. 24(2) of the Charter.

Search Incident to Arrest

[8] The Crown concedes that the seizure of the keys at the time of arrest based on the reason given for the seizure did not meet the requirements of a lawful search incident to arrest. The police also seized a vehicle rental agreement from the interior of the car. That seizure was also not incident to arrest.

Warrantless Entry of the Apartment

[9] One of the keys unlawfully seized from the applicant at the time of arrest was used to enter the apartment without a warrant. The lead officer of the search team was instructed to enter, clear and freeze the apartment until a search warrant was issued. The entry team was to confirm whether anyone was in the apartment and prevent destruction or loss of potential evidence. They were specifically not to search for particular items or move any property inside the apartment.

[10] The search team attended at unit #1209, 1 Hickory Tree Road with the key obtained at the arrest. The key did not work. The search team then went to an adjacent building, 3 Hickory Tree Road, and found that the key worked at unit #1209 at that address. The inclusion of the specific address in the search warrant was based on the use of the key obtained unlawfully at the time of arrest.

[11] The lead officer on the warrantless entry was told by his supervisor that there were exigent circumstances based on a number of persons associated to the address, that the applicant had been arrested in public and the possibility that evidence could be destroyed. The supervisor did not testify on the applications. The lead officer at the scene added that he heard “rustling” noises from inside the apartment before the police entry. He could not exclude the possibility that there were people inside. When they entered after announcing that they were police and using the key, they did not find anyone inside but there was a large dog.

[12] Photos of the interior of the apartment before the search warrant was issued included three phones on a couch. Those items were later seized from the kitchen counter. Thus, the phones had been moved from one location to another after the initial entry by the police and before the search warrant was issued.

[13] The onus is on the Crown to justify a warrantless search. The Controlled Drugs and Substances Act, (CDSA) S.C. 1996, c. 19, s. 11 sets out the process and authority for search and seizure of drugs and offence-related property. Section 11(7) of the CDSA provides that a peace officer may conduct a warrantless search of a premises if the circumstances to obtain a warrant exist, and there are exigent circumstances that make it impractical to obtain a warrant. In R. v. Paterson, 2017 SCC 15, the Supreme Court of Canada recently considered the ambit of exigent circumstances related to s. 11(7) of the CDSA at paras. 32-37 inclusive:

[32] All that said, circumstances in which “exigent circumstances” have been recognized have borne close resemblance to the definitional categories in s. 529.3(2). This Court’s jurisprudence considering s. 10 of the Narcotic Control Act, R.S.C. 1985, c. N-1 (which was repealed and replaced by the CDSA), which permitted a peace officer to search a place that was not a dwelling-house without a warrant so long as he or she believed on reasonable grounds that a narcotic offence had been committed, is instructive. That provision was held in R. v. Grant, [1993] 3 S.C.R. 223 “Grant 1993”, to be consistent with s. 8 of the Charter if it were read down to permit warrantless searches only where there were exigent circumstances. Such exigent circumstances were then described to exist where there is an “imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed” (Grant 1993, at p. 243; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 153, per L’Heureux-Dubé J., dissenting; and R. v. Silveira, [1995] 2 S.C.R. 297, at para. 51, per La Forest J., dissenting). Similarly, circumstances in which “immediate action is required for the safety of the police” were also found to qualify as “exigent” (Feeney, at para. 52; see also, in respect of searches to preserve officer safety, this Court’s statement in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32, that such searches will be responsive to “dangerous situations created by individuals, to which the police must react ‘on the sudden’”). In Feeney, at para. 47, exigency was also said to possibly arise when police officers are in “hot pursuit” of a suspect (see also R. v. Macooh, [1993] 2 S.C.R. 802, at pp. 820-21).

[33] The common theme emerging from these descriptions of “exigent circumstances” in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. This threshold is affirmed by the French version of s. 11(7), which reads “l’urgence de la situation”.

[34] Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7). Those circumstances must render it “impracticable” to obtain a warrant. In this regard, I respectfully disagree with the Court of Appeal’s understanding of s. 11(7) as contemplating that the impracticability of obtaining a warrant would itself comprise exigent circumstances. The text of s. 11(7) (“by reason of exigent circumstances it would be impracticable to obtain [a warrant]”) makes clear that the impracticability of obtaining a warrant does not support a finding of exigent circumstances. It is the other way around: exigent circumstances must be shown to make it impracticable to obtain a warrant. In other words, “impracticability”, howsoever understood, cannot justify a warrantless search under s. 11(7) on the basis that it constitutes an exigent circumstance. Rather, exigent circumstances must be shown to cause impracticability.

[35] The appellant says that the requirement of “exigent circumstances” rendering it “impracticable” to obtain a warrant requires, in effect, that such circumstances “leav[e] the police no choice but to proceed with entering a dwelling-house”. In other words, he maintains that the “impracticability” of obtaining a warrant should be understood to mean impossibility. Conversely, the Crown submits that a much lower threshold is indicated, such that obtaining a warrant is not “realistic” (whatever that may mean) or “practical”.

[36] While I am not persuaded that the strict condition of impossibility urged by the appellant is denoted by Parliament’s chosen statutory language of impracticab[ility], neither am I satisfied by the Crown’s argument equating impracticability with mere impracticality. Viewed in the context of s. 11(7), however — including its requirement of exigent circumstances — “impracticability” suggests on balance a more stringent standard, requiring that it be impossible in practice or unmanageable to obtain a warrant. The French version of “impracticable” in s. 11(7) — “difficilement réalisable” — is also consistent with a condition whose rigour falls short of impossibility but exceeds mere impracticality of obtaining a warrant. [3] So understood, then, “impracticable” within the meaning of s. 11(7) contemplates that the exigent nature of the circumstances are such that taking time to obtain a warrant would seriously undermine the objective of police action — whether it be preserving evidence, officer safety or public safety.

[37] In sum, I conclude that, in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

[14] This initial warrantless entry was based on the reasonable belief that it was necessary to prevent the destruction or loss of evidence. However, it was done with the unlawfully obtained key. On that basis the circumstances to obtain a warrant did not exist. Therefore this was not a lawful warrantless entry.

Reasonable and Probable Grounds to Issue the Search Warrant

[15] The Crown concedes that the seizure of the keys at the time of arrest breached s. 8 of the Charter. Reference to the keys in the Information to Obtain (ITO) must be excised. The Crown further concedes that when reference to the keys is removed, the ITO no longer contains sufficient grounds related to the specific apartment to be searched. The Crown relies on amplification evidence on this hearing to support the validity of the ITO.

[16] Amplification in support of an ITO cannot include or be based on information flowing from a Charter breach. Without reference to the key seized on arrest, there does not appear to be sufficient information in the ITO as amplified to indicate which apartment building was the one connected to the drug activity (unit #1209 at 1 Hickory Tree Road or unit #1209 at 3 Hickory Tree Road). The ITO excised of that information is insufficient to support a lawful search.

Should the Unlawfully Obtained Evidence be Excluded?

[17] Based on R. v. Grant, 2009 SCC 32 at paras 71 and 85, the Court must consider three factors:

(1) The seriousness of the breaches; (2) The impact on the applicant’s Charter-protected rights; and (3) Society’s interest in an adjudication on the merits.

The Court must then balance the three factors to determine whether admitting the evidence would bring the administration of justice into disrepute. This phrase must be understood in the long-term sense of maintaining the integrity of, and the public’s confidence in, the justice system: Grant, at para. 84.

The Seriousness of the Charter Breaches

[18] There were a series of errors and misinformation that led to the warrantless search of the apartment. The seizure of the keys at arrest and the warrantless search of the apartment do not appear to be deliberate violations of the applicant’s rights. The fact that an unlawful search was conducted at a dwelling, even if the applicant was not the sole or most significant attendee, is serious in its own right. The denial of access to counsel for at least six hours demonstrated a significant degree of indifference, if not disregard, for the rights of the applicant.

[19] The role of the unlawfully-obtained key was critical in the search team going from the wrong unit to the eventual target. This was not a mere typographical error on the address. The location and entry of the target unit cannot be lawfully justified when it rests on the unlawful seizure of the key. This factor favours exclusion of the evidence.

Impact on the Charter-Protected Interests of the Applicant

[20] The breach of s. 8 of the Charter significantly infringed the privacy rights of the applicant. His rights under s. 10(b) of the Charter were breached for a protracted period of time. During that time the applicant was denied access to counsel while the police used an item obtained by a different Charter breach to obtain a warrant to search the apartment. The cumulative impact of the breaches on his Charter-protected interests was significant. This factor favours exclusion of the evidence.

Society’s Interests in an Adjudication on the Merits

[21] The items seized by the police would be reliable physical evidence that is essential to the Crown’s case. There is a significant societal interest in a trial on the merits where dangerous items such as illicit drugs and firearms are recovered. This factor favours inclusion of the evidence.

Balancing the Interests

[22] The temporal connection between the warrantless search of the apartment and the protracted, unjustified delay in facilitating access to counsel is a significant factor in the balancing of interests aspect of the Grant analysis. The real evidence seized did not flow directly from the breach of s. 10(b) of the Charter. However, during the hours that the applicant was denied access to counsel, the police devoted that time and significant resources to the search that is the object of these applications. The failure to afford access to counsel in the circumstances of this case was grossly negligent, if not in bad faith.

[23] I do not find that the officers involved in the search were acting in bad faith. However, negligence in meeting Charter standards cannot be equated to good faith: Grant, at para. 75.

[24] Courts cannot lightly exclude real evidence of serious crimes based on breaches of the Charter. On the other hand, recovery of such items cannot invariably trump the other interests in the balance. The cumulative Charter breaches here, ranging from indifference to the applicant’s rights to deliberate denial of them, militate strongly in favour of the exclusion. In weighing the balance of these interests, in my view, the evidence derived from these events must be excluded.

Result

[25] RESULT: The applications are granted and the evidence seized from the apartment is excluded.

Released: May 30, 2017 B. P. O’Marra J.