CITATION: R. v. Bain, 2017 ONSC 4549

COURT FILE NO.: 11700/14

DATE: 2017/07/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen (Respondent)

-and-

Jesse Bain (Applicant)

BEFORE: Justice A. K. Mitchell

COUNSEL: R. Farrington, for the Applicant

F. Brennan, for the Respondent (Federal Crown)

HEARD: June 14 and 15, 2017

RULING WITH RESPECT TO s. 8 and s. 24(2) charter APPLICATION

Overview

[1] The applicant, Jesse Bain, is charged under s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”) with one count of possession of cocaine for the purposes of trafficking and one count of possession of marijuana for the purposes of trafficking. He is further charged with two counts of unlicensed possession of a prohibited weapon contrary to section 91(3) of the Criminal Code of Canada (the “Code”).

[2] Mr. Bain claims the Information To Obtain (“ITO”) was prepared hastily and as a result contains insufficient information to form reasonable grounds on which the issuing justice of the peace could have authorized the search of Mr. Bain’s apartment. Mr. Bain brings this application alleging a violation of his s. 8 Charter right to be free from unreasonable search or seizure.

[3] In addition to the alleged unlawful search of the Premises and the breach of his Charter rights flowing therefrom, the applicant claims the manner in which police carried out the unlawful search mandates the exclusion of the evidence under s. 24(2) of the Charter.

Background

[4] On December 12, 2013, police obtained evidence from Lyndsey Fitzgerald that the applicant was criminally harassing her. Ms. Fitzgerald had previously contacted police to report unwanted contact from Mr. Bain approximately two weeks earlier. As a result of their investigation into Ms. Fitzgerald’s complaint, police formed reasonable and probable grounds to arrest the applicant for criminal harassment.

[5] Police attended at 308 – 1459 Trafalgar Street, London Ontario (the “Premises”) to effect the arrest of Mr. Bain for criminal harassment. In effecting arrest, Police Constable Brian Scott (“PC Scott”) observed an ammunition belt with 12-15 rounds of .270 rifle ammunition in plain view on a dresser in the applicant’s bedroom. Police left the Premises with the applicant under arrest. They did not seize the ammunition belt.

[6] As part of the criminal harassment investigation, Ms. Fitzgerald completed a Domestic Violence Supplemental Report (“DVSR”) in which she disclosed that the applicant told her he had two guns at his house and showed her a “shell”. Later in the day on December 12, 2013 while the Applicant was detained on the harassment charge, a search warrant was issued pursuant to s. 487 of the Code (the “Warrant”) based on an Information To Obtain (“ITO”) sworn by Detective Constable William Tennant (“DC Tennant”).

[7] The Warrant’s stated purpose was to seek evidence that the applicant was in unlawful possession of a firearm, namely a handgun, without being the holder of a registration certificate, contrary to s. 91(3) of the Code. The Warrant authorized the seizure of firearms, ammunition and related documentation, cellular telephones, and data storage devices.

[8] Police executed the Warrant and seized the following items from the Premises:

(a) An ammunition belt with 20 rounds of 270 calibre rifle ammunition on top of the bedroom dresser along with a 22 calibre round and a 32 calibre round in the safe in the bedroom closet;

(b) A Samsung Rogers smart phone on the bedroom dresser;

(c) Brass knuckles in a closed wooden box on the living room table;

(d) A knife opening by centrifugal force in the wooden box on the living room table

(e) Green coloured dime bags in the wooden box on the living room table;

(f) Five 1 gram packages of cocaine in small zip lock bags in a silver box in the upper kitchen cupboard to the right of the kitchen sink;

(g) 378 grams of marijuana in the freezer of the kitchen fridge;

(h) An operational digital scale and a plate with cocaine residue in the upper kitchen cupboard to the right of the kitchen sink; and

(i) A Gateway laptop on the couch in the living room.

[9] Following his arrest and pending his release on bail, the applicant was held in custody for approximately 4 days.

Analysis

S. 8 Charter

[10] Pursuant to section 8 of the Charter, everyone has the right to be secure from unreasonable search and seizure. This was not a warrantless search. The Warrant was judicially-authorized and is presumptively valid and the resulting evidence seized from the Premises presumptively admissible. Therefore, Mr. Bain bears the onus of demonstrating, on a balance of probabilities, the invalidity of the Warrant.[^1]

[11] In assessing the validity of the Warrant, the standard of review is whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the Warrant could – not would - have issued. If that standard is met, the Warrant is valid. I am not permitted to substitute my view for that of the issuing judge.[^2]

[12] In assessing the sufficiency of the evidence contained in the ITO, the issuing judge is permitted to draw reasonable inferences from the contents of the ITO.[^3] I must be satisfied that, in the totality of the circumstances, the ITO reveals reasonable grounds to support the issuance of the Warrant. If the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the Warrant could have issued and is valid.[^4] The Warrant is to be considered as a whole. The test is not whether any particular section of the ITO is capable of supporting the issuance of the Warrant.

[13] The police are not required to spend time and resources beyond what is reasonably necessary to prepare an ITO containing sufficient information to support a warrant. Police are not required to provide overwhelmingly convincing information. Nor are police required to prove beyond a reasonable doubt that evidence of the anticipated offence will be found at the premises. The threshold to meet is one of reasonable probability that evidence will be found at the target location. I adopt the definition of “reasonable and probable grounds” Hill J. provided in R. v. Sanchez[^5] as follows:

Mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case…The appropriate standard of reasonable or credibly based probability envisions practical, non-technical and common sense probability as to the existence of the facts and inferences asserted.

[14] DC Tennant was cross-examined. DC Tennant has drafted 70-80 ITO’s over the course of his policing career. DC Tennant estimated that two and a half hours had elapsed between the time he spoke with DC Churney and execution of the Warrant. During that time DC Tennant prepared the ITO and obtained the Warrant. He admitted he was unaware of a shorter time to obtain a search warrant. He worked quickly to obtain the Warrant knowing police were holding the Premises secure until a Warrant was obtained. He admits never having spoken with Ms. Fitzgerald to obtain further and more detailed information before submitting the application for the Warrant. He relied entirely on the answer provided to the question posed of her in the DVSR and other information provided by other sources.

[15] Police Constable Sherri Baltzer (“PC Baltzer”) testified to her interaction with both Mr. Bain and Ms. Fitzgerald from whom she took a statement with respect to her complaint of criminal harassment. PC Baltzer attended at the Premises with two other police officers for purposes of arresting the applicant for criminal harassment of Ms. Fitzgerald. She has an independent recollection of the arrest. She recalls picking up the ammunition belt and the applicant advising her that it was “his buddy’s belt”. She unequivocally denies the applicant advised her “my buddy gave [the belt] to me”.

[16] The applicant submits that DC Tennant acted out of a sense of urgency and in doing so he failed to take the steps necessary to ensure the sufficiency of the information contained in the ITO before submitting the application for the Warrant. He argues it was a static situation that was not evolving – there either were or were not handguns at the Premises. The applicant argues that DC Tennant should have taken the time to contact Ms. Fitzgerald and assess her credibility because presumptively she would harbour animus against Mr. Bain as a result of his continued harassment.

[17] The applicant’s counsel points to the following paragraphs of the ITO which he argues support a finding that the Justice was misled (albeit unintentionally):

Paragraph 11: PC LA Kirk submitted a Domestic Violence Supplemental Report which is a required interview that contain (sic) 25 standard questions for victims in domestic related investigations. In that interview Lyndsey Fitzgerald stated the following:

(a) Does the accused own/have access to firearms or weapons including a license for the firearm?

(b) He’s told me he has two guns in the house (308-1459 Trafalgar Street, London ON), he showed me a shell (I believe this reference is to ammunition), I believe he does. He may have been trying to scare me.

Paragraph 12: PC Brian Scott observed ammunition, specifically 12-15 rounds of .270 rifle ammunition in an ammunition belt on his bedroom dresser while arresting BAIN for domestic criminal harassment.

Paragraph 13: PC LA Kirk took a statement from the victim Lyndsey Fitzgerald in which Fitzgerald discloses that BAIN has shown her ammunition for a firearm and told the victim he has two firearms in his residence.

[18] The applicant submits that the italicized insertions in paragraph 11 appear to form part of Ms. Fitzgerald’s evidence and yet they are merely DC Tennant’s unsupported assumptions and amplification of the vague and non-specific information provided by Ms. Fitzgerald. In the result, the additional language would have misled the issuing Justice. Moreover, it cannot be ascertained when the information provided by Ms. Fitzgerald was received from Mr. Bain. The lack of information regarding the time frame during which she had her discussion with Mr. Bain makes this evidence not compelling.

[19] Paragraph 13 is misleading because Ms. Fitzgerald’s reference to “the house” was replaced with “his residence” and her reference to “guns” was replaced with “two firearms”.

[20] I disagree. Dealing first with paragraph 11. The question in the DVSR is drafted in the present tense. It can be reasonably inferred Ms. Fitzgerald was responding in the same tense and was therefore providing current, not dated, information. Inserting the address of Mr. Bain’s residence is supported by the query of the GENERO system which revealed his address to be 308-1459 Trafalgar Street in the City of London. It was reasonable to infer that Ms. Fitzgerald’s reference to “in the house” was not referring to the type of structure the applicant resided in (house versus apartment) rather was referring to his residence. Search results revealed the Premises as his home address. This was the address inserted by DC Tennant. This additional information was not misleading nor was it unsupported by the other information obtained during the investigation.

[21] I accept that the use of italics by DC Tennant was intended to eliminate any confusion between the information supplied by Ms. Fitzgerald and the supplemental information provided by him. The addition of the words “I believe” preceding “this reference is to ammunition” confirms it is the belief of the affiant and not the informant that the context of the reference to a “shell” is in reference to ammunition and not, for example, a seashell.

[22] The ITO is replete with references to the ammunition belt being rifle ammunition and not handgun ammunition.[^6] DC Tennant was not intending to mislead the issuing Justice that the ammunition belt related to a handgun.

[23] It is trite law that when police rely upon information from a confidential informant the issuing justice must consider whether the information supplied is compelling, credible, and corroborated by other aspects of the police investigation[^7]. However, that is not the test when dealing with an unredacted ITO as we have here.

[24] The source of the information is not confidential. Ms. Fitzgerald is not a Crime Stoppers tipster. Ms. Fitzgerald is the former girlfriend of Mr. Bain. There is no reason to question her credibility based on her anonymity. She is not anonymous. There is no other basis to challenge her credibility. She was fair in her assessment of his comment to her that he had two guns in the house when she qualified her answer by adding “[h]e may have been trying to scare me.” There is no basis to suggest a presumptive bias in her response to the question because she is the domestic complainant with respect to Mr. Bain’s criminal harassment charges. Her credibility is bolstered by the fact her complaint made to police in support of the criminal harassment charge was corroborated by her work supervisor. She has no criminal record. I find it was not necessary for DC Tennant to take additional steps to assess her credibility in these circumstances.

[25] The applicant points out that it was acknowledged by DC Tennant, PO Baltzer and DC Carson that the ammunition belt was for a rifle not a handgun yet the Warrant was specific for handguns. Looking at the ITO, itself the conclusion reached by DC Tennant in the ITO is not specific to handguns rather it is his stated belief that based on the information provided by Ms. Fitzgerald and information from the Genero search that the applicant is in possession of restricted weapon, namely a firearm, contrary to section 92(3) of the Code. The conclusion is not misleading based on the information supplied to DC Tennant.

[26] The ITO is unusual in that it is unredacted and does not contain information provided by a confidential informant. The assessment of the sufficiency of the ITO requires an assessment of the ITO as a whole. In addition to the information supplied by Ms. Fitzgerald in the DVSR, the ITO also contains the corroborative evidence of the ammunition belt observed by police in plain view at the Premises upon Mr. Bain’s arrest. The information supplied by Ms. Fitzgerald may have proven insufficient to the issuing Justice on its own. The ammunition belt observed by police in the face of Mr. Bain’s statement that is was his friend’s ammunition may have proven insufficient to the issuing Justice on its own. However, the combined effect of this information coupled with the results of a search of the Canadian Firearms Registry which revealed the applicant has never registered a handgun or any firearm and has no licence to legally possess a firearm in Canada, created a sufficient record upon which the issuing Justice relied to issue the Warrant. It should be noted that the issuing Justice had no concerns or questions with respect to the sufficiency of the information.

[27] As already noted in these reasons, I am not permitted to substitute my own view for that of the issuing Justice. I am not permitted to interfere with the decision of the issuing Justice if based on the evidentiary record the authorizing justice could have issued the Warrant. I find that based on the information contained in the ITO the issuing justice could have issued the Warrant and I am therefore without jurisdiction to interfere with his decision.

[28] Therefore, the Warrant was validly issued and the seizure of evidence from the Premises was lawful. Accordingly, there has been no breach of Mr. Bain’ constitutional right to be free from unreasonable search and seizure embodied in s. 8 of the Charter.

S. 24(2) Charter

[29] Since I have found no breach of section 8 of the Charter, it is unnecessary to consider the application of s. 24(2) of the Charter. However, if I am wrong in my assessment of the sufficiency of the ITO, I will conduct a Grant analysis and in particular an assessment of the impact of the alleged damage to the Premises and the state of disarray in which the Premises were left following execution of the Warrant.

[30] In considering whether to exclude the evidence obtained from an illegal search and seizure the court must have regard to three factors[^8]:

(a) the seriousness of the State conduct violating the Charter, including the nature of the police conduct that led to the discovery of the evidence, whereby:

(i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to dissociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law; and

(ii) an inadvertent, trivial or minor violation, the existence of good faith or exigent circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence.

(b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial;

(c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to:

(i) the reliability of the evidence and the extent to which it is undermined by the breach(es);

(ii) the importance of the evidence to the Crown’s case; and

(iii) the notion that the discoverability of the evidence is no longer a determinative factor.

(a) The seriousness of the State conduct violating the Charter

[31] The conduct of the State falls on a continuum with the more egregious conduct justifying the exclusion of evidence under s. 24(2) of the Charter. Egregious conduct compels the court to distance itself from such conduct.

[32] This was not a warrantless search. Despite observing the ammunition belt in plain view at the Premises at the time of Mr. Bain’s arrest, police respected the applicant’s demand for a warrant before seizing the belt. The applicant does not suggest Detective Tennant intentionally misled the issuing Justice or acted in bad faith. Instead, the applicant challenges the haste with which police prepared the ITO and of greater concern to the applicant is the manner in which the Warrant was executed and the damage caused to his personal property.

[33] The applicant argues the affiant was reckless and did not exercise diligence rather acted in haste in drafting of the ITO entirely without justification as the Premises were secured by the presence of a police officer and the applicant was in custody. There was no urgency to obtaining the Warrant. The ammunition belt was secure. The applicant argues more care should have been taken to ensure the ITO was drafted properly.

[34] Had I concluded the deficiencies in the ITO identified by the applicant had been materially misleading and without the misleading information the Warrant could not have issued, the conduct of DC Tennant in drafting the ITO in haste was not so egregious that it favoured exclusion of the evidence. He held an honest belief that time was of the essence. There was no evidence of bad faith on the part of DC Tennant.

[35] The affiant while acting hastily in the preparation of the ITO was not reckless, careless and/or negligent in his preparation of the ITO to such an extent that he demonstrated complete disregard for the basic requirement that the ITO contain at least some grounds upon which the issuing Justice could reasonably believe evidence of possession of a handgun would be found at the Premises. The fact a handgun was not ultimately found at the Premises does not factor into a consideration of the grounds at first instance. Hindsight has no bearing on the assessment.

[36] Turning now to the conduct of police in executing on the Warrant. The applicant relies on the decision of Code J. in R. v. Thompson[^9]. In Thompson the applicant raised the manner of execution of the warrant as a separate breach of his Charter rights. The court held that the deliberate and unnecessary damage to the applicant’s property and the deliberate and unnecessary disorder and disarray in which the property was left following “dynamic entry”[^10], rendered the manner of search unreasonable and in violation of s. 8 of the Charter. However, the court went on to find that despite the breach, a balancing of the Grant factors favoured admission of the seized drugs. In Thompson evidence of damage to the applicant’s home was undisputed.

[37] The Crown argues the police conducted the search in a reasonable manner and there was no damage caused by police other than to the safe which was justified on the basis it was locked and police were authorized by the Warrant to search the contents of the safe. Unlike the circumstances in Thompson this was not a case of dynamic entry.

[38] The Crown relies on the decision of this court in R. v. Chungkuong.[^11] This case also involved a situation involving dynamic entry. In Chungkuong the applicant challenged the manner in which the police executed a warrant including both the dynamic entry and the manner in which the residence was “ransacked” claiming it constituted a breach of his s. 8 Charter rights. The court dismissed the application finding that a state of untidiness following a police search is to be expected and police are not required to leave a property in pristine condition. The court went on to find that:

It is only where the search is conducted in a manner that unnecessarily and unreasonably disregards the property rights of the occupants that it reaches a level that infringes s. 8.[^12]

[39] The applicant has the burden to prove on a balance of probabilities that police caused damage to his property. The applicant alleges that police caused damage to the Premises and to his personal belongings during their execution of the Warrant. The damage included the following:

(a) One leg on the coffee table in the living room was irreparably damaged requiring replacement of the coffee table;

(b) Dishes were broken;

(c) A clothes dresser in the bedroom was damaged and one drawer was left not functional;

(d) Cologne bottles were broken;

(e) The fridge and freezer were left open resulting in food spoilage;

(f) Two dress shirts were torn and could not be mended;

(g) Pictures hanging over the sofa had their glass frames shattered;

(h) The smoke alarm was left dangling from the ceiling;

(i) The underside of the mattress was torn; and

(j) The door to the safe stored in the bedroom closet was torn off.

[40] In addition, the applicant claims police took no steps to ensure the well-being of his dog who was left alone in the apartment while he was in custody without food and water. PC Baltzer testified that the applicant told her upon his arrest that the dog would be fine in the apartment.

[41] The search of the Premises took approximately 40-45 minutes. The dog was placed in the bathroom during the search. Among the police officers who conducted the search, three testified on the voir dire – DC Tennant, Detective Constable Jimmy Bulhoes (“DC Bulhoes”) and Detective Constable Robert Carson (“DC Carson”). The following is a summary of their evidence:

(a) To the best of their recollection, the search was routine in all respects. They did not have an independent recollection of the search and referred to their duty book notes to refresh their memory. The search was not out of the ordinary;

(b) They did not cause any damage to the Premises or its contents during their search and in particular did not break anything;

(c) It is the practice of DC Carson to close the doors to the fridge and freezer once those areas are searched;

(d) DC Bulhoes searched the bedroom and testified he did not cut the mattress as it is not his practice to do so. He had no recollection or note that the closet door was difficult to open;

(e) They did not return the items searched to their original state or place rather they left them out to indicate to others that the area had been searched;

(f) The state of the Premises depicted in the photographs did not cause them concern; and

(g) It is not their practice to tidy premises following execution of a search warrant.

[42] Photographs of the Premises were taken by Mr. Bain’s mother, Leonor Sawatzky, and these photographs were made an exhibit on the voir dire. Aside from the damage to the safe, the photographs do not depict the damage described by the applicant and his mother during their respective testimony. Ms. Sawatzky explained that she was in a hurry when she took the photos and missed capturing the damaged items. However, she acknowledged in cross-examination that she took the photos for the express purpose of showing what the police had done to the apartment.

[43] The circumstances of this case are more in line with those is Chungkuong than Thompson. A Charter breach requires more than police failing to clean up after themselves. A certain level of disarray is to be expected. Evidence of unreasonable and unjustified damage to property is required. Aside from the testimony of the applicant and his mother, there is no independent evidence of damage. I find it curious that of all the pictures taken by the applicant’s mother (with the applicant present), the actual damage alleged to have been caused by police was not documented save and except the damage to the safe which is admitted by the applicant to have been reasonable and justified in the circumstances. In fact the most glaring example is the photograph of the coffee table. The coffee table appears to be level with all legs supporting.

[44] It defies common sense that none of the alleged property damage was captured in any of the photographs taken by Ms. Sawatzky for that express purpose. The photos of the kitchen do not reflect broken dishes and spoiled food. The mattress does not appear to have been cut. The shattered glass from the picture frame was not captured in any of the photographs. There are no photographs of broken cologne bottles and ripped dress shirts. No receipts were kept with respect to replacement items purchased by the applicant. The applicant has failed to prove on a balance of probabilities that the police damaged the Premises and his personal property during execution of the Warrant.

[45] This was not a dynamic entry situation. Police gained access to the Premises using a key supplied by the landlord. No other persons were in the apartment at the time of the search. The conduct of the police in executing the Warrant was reasonable in all of the circumstances. Police conducted a routine search of the Premises. The conduct of the police favours inclusion of the evidence.

(b) The impact and extent of the violation on the Charter interests of the accused

[46] As recognized in R. v. Silveira[^13], one’s personal residence carries with it a significant expectation of privacy. Aside from an individual’s physical person, there is no place of privacy which one might protect more fiercely than one’s home.

[47] Any unlawful search of Mr. Bain’s residence would constitute a serious infringement of his Charter rights. This factor favours exclusion of the evidence found at the Premises.

(c) The societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence

[48] Justice Doherty J.A. in R. v. Blake[^14] analysed this third factor as follows:

Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here, particularly the crack cocaine, was entirely reliable and essential to the Crown’s case.

[49] The Crown advises that the evidence seized from the Premises will gut its case. Similar to the evidence seized in Blake, the items seized from the Premises are reliable and essential to the Crown’s case. Society has an interest in seeing those charged with serious offences, such as cocaine trafficking, tried on the merits of the case. While the ITO may have been prepared in haste and as a result was missing sufficient compelling evidence to support the issuance of the Warrant, to exclude the evidence would bring the administration of justice into disrepute. This factor favours admission of the evidence.

[50] Balancing the three Grant factors, I find the administration of justice would be undermined if the evidence was not admitted.

Disposition

[51] Application dismissed.

__Justice A. K. Mitchell

Justice A. K. Mitchell

Released: July 26, 2017

[^1]: R. v. Sadikov (2014), 2014 ONCA 72, 314 O.A.C. 357 (C.A.) at para. 35. [^2]: Ibid. at para. 84. [^3]: Ibid. at para 82. [^4]: Ibid. at para 81. [^5]: 1994, CanLII 5271 at page 14. [^6]: See paragraphs 10(f), 12 [^7]: R. v. Debot, [1989] 2 S.C.J. No. 118 at para. 53. [^8]: R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para.71. [^9]: 2010 ONSC 2862, [2010] O.J. No 2070 (SCJ). [^10]: “Dynamic entry” refers to the situation where the police enter a residence without first making their presence known to the occupants and without first seeking permission from the occupants to enter. It often involves use of force against both person and property. [^11]: 2012 ONSC 3488. [^12]: Ibid., at para. 42. [^13]: (1995), 1995 CanLII 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.) at para.148. [^14]: 2010 ONCA 1 at para. 31.