CITATION: R. v. Smith, Wynter, 2017 ONSC 4683
COURT FILE NO.: CRIMJ(P) 1413/16
DATE: 2017 08 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Christopher Presswood, for the Crown
- and -
SABASTIAN ST. PATRICK SMITH
Corey Nishio, for Sabastian St. Patrick Smith
and
OWAYNE WYNTER
Olabode Odetoyinbo and Gurpreet Singh for Owayne Wynter
Applicants
HEARD: July 25, 26, and 27, 2017
RULINGS ON APPLICATIONS TO EXCLUDE EVIDENCE RESULTING FOR S. 8 CHARTER BREACHES
Justice Thomas A. Bielby
INTRODUCTION
[1] On or about the 23rd day of September, 2014, the two accused, who are both applicants, were charged with various firearm offences. The police exercised search warrants with respect to both their homes. The warrants were the result of a tip from a confidential informant (the Source) and the subsequent police investigation. A handgun was discovered in the garage of Mr. Wynter’s home and a cell phone in the home occupied by Mr. Smith. On that phone were discovered pictures allegedly showing Mr. Smith with the handgun in his pocket.
[2] The handgun, a 45 caliber pistol, was wrapped in a t-shirt and stored in a cupboard of some sort.
[3] Both applicants are challenging the constitutional validity of the search warrants. They submit that the information set out in the Information to Obtain (“ITO”) was not sufficient to raise reasonable and probable grounds to the level needed to authorize the search warrants.
[4] The applicants submit that their rights under section 8 of the Charter of Rights have been violated and pursuant to section 24(2) the evidence discovered during the searches ought to be excluded.
[5] Mr. Smith brings a further application alleging a further violation of his section 8 rights. He submits that the police searched his cell phone without first obtaining his informed consent. It is submitted therefore that the contents of the cell phone ought to be excluded from evidence further to section 24(2).
[6] The Crown opposes both applications submitting that the necessary grounds existed and that Mr. Smith provided informed consent to allow the search of his cell phone.
[7] The Crown further submits that if any section 8 rights have been violated, the evidence discovered during the searches of the applicants’ homes and the pictures located on the phone ought not to be excluded pursuant to the section 24(2) analysis.
FACTS
[8] At a time proximate to September 23, 2014, the Source advised the police that Mr. Smith, was in the possession of a handgun. Details were provided to the police as to how the Source came into possession of this information.
[9] The Source told the police where Mr. Smith lives and where he stored the handgun.
[10] The Source further advised that Mr. Smith works at Moxie’s (restaurant) and that he leaves the handgun with an associate who lives nearby when he is at work.
[11] The Source advised that Mr. Smith drove an older model silver Mercedes Benz.
[12] Mr. Smith was described as a male, black, 24 years of age, with long hair.
[13] The Source provided details of the handgun and told the police that Mr. Smith had a picture of himself and the handgun on his Blackberry Messenger.
[14] Upon receiving this information the police started to investigate Mr. Smith. The circumstances of the investigation were laid out in the ITO (Exhibit 2) prepared by the affiant, Detective Constable Aman Nasser of the Toronto Police Services.
[15] The ITO as provided to defence counsel was heavily redacted to protect the identity of the Source.
[16] The Crown conceded that the redacted version would not establish the reasonable and probable grounds necessary for a warrant. He asked the court to conduct what is called, a step 6 Garafoli inquiry, a process defence counsel did not oppose.
[17] The unredacted ITO was provided to me by the Crown along with a draft Judicial Summary of its contents. I reviewed these documents and met with the Crown attorney in court, in the absence of the accused and their counsel. The record of these discussions were ordered sealed.
[18] Changes were made to the Summary and the draft was presented to defence counsel, after which further discussions were held.
[19] The unredacted ITO was ordered sealed and made a letter exhibit.
[20] Exhibit 6 represents the final version of the Judicial Summary.
[21] At Appendix C of the ITO, Officer Nasser introduced himself and deposed that he was the lead investigator in the matter. He was, at the time, assigned to the Organized Crime Unit – Gun and Gang task Force (the Task Force). The officer sets out the details of the investigation undertaken and the sources utilized.
[22] A police investigation was commenced and Mr. Smith was an individual known to the police. He had a criminal record and was subject to an order prohibiting him from possessing firearms. It was confirmed that Mr. Smith lived at 19 Ridgefield Court in Brampton and that he was the registered owner of a silver, 2001 Mercedes Benz automobile. The address was said to be the main address in the investigation.
[23] A warrant was sought and was issued relying in part on surveillance conducted on September 20, 2014. The warrant authorized a search of the Smith residence at 19 Ridgefield. The warrant expired at 6:00 am that day and the authorized period expired before the warrant could be executed.
[24] At some point thereafter police applied for another warrant but that request was denied. No reason was provided for the denial.
[25] Further surveillance was deemed necessary and the ITO reveals that on September 21, 2014, members of the Task Force attended in the area of 19 Ridgefield and observed Mr. Smith arriving in his Mercedes Benz at 7 Fairlawn St., which is just around the corner from 19 Ridgefield. He waited there for a short period of time then drove to his residence.
[26] Shortly thereafter Mr. Smith drove back to 7 Fairlawn and picked up, “an unknown black male”. Smith then drove to a Royal Bank after which he drove to another address and he and the unknown male entered the house, existing a short time later.
[27] Mr. Smith and the unknown male then drove to a plaza at Airport Road and Sandalwood Parkway East where it is alleged that both Mr. Smith and the unknown male were observed participating in two hand to hand exchanges which the police believed were consistent with drug trafficking.
[28] At some point a check was done in regards to 7 Fairlawn Rd and it was determined that it is the residence of a young male, named Owayne Wynter, born September 16, 1990. A picture was obtained and it was determined that the unknown male observed by the police was Mr. Wynter.
[29] It would appear that police were of the opinion, based on these observations, that Mr. Wynter was the associate who lived nearby.
[30] The 7 Fairlawn Blvd address was said to be the secondary address in the investigation.
[31] In the new ITO, Officer Nasser opined that he believed that there is evidence located inside 19 Ridgefield and 7 Fairlawn, namely, a firearm. He sought warrants to search both residences as well as Mr. Smith’s Mercedes Benz.
[32] Search warrants were issued and exercised in the early morning hours of September 23, 2014. Both accused were in their respective homes at the time and were arrested on the scene.
[33] As noted, the searches resulted in the seizure of Mr. Smith’s cell phone and the discovery of a 45 calibre handgun in the garage of 7 Fairlawn.
[34] On these facts the applicants submit that the evidence in the ITO was insufficient to obtain the warrants to search and as a result the searches were illegal. As well, the cell phone seized in the Smith residence was searched without the authority to do so, further violating Mr. Smith’s s. 8 rights.
[35] Mr. Smith testified at the application hearing. He said that when the search was executed he was asleep in his bedroom. He described his arrest and his movement with the police in the house. When sitting in the kitchen he was able to overhear on a police radio that something had been found in the search of the other house (7 Fairlawn). He was told he was being charge with gun offences and trafficking cocaine.
[36] Ultimately, Mr. Smith was taken to the police station, processed and placed in an interview room.
[37] Mr. Smith testified that laid on the floor and went to sleep, stating that by this point it was well after 3:00 am.
[38] At 4:40 am Officer Clarke came into the room and told Mr. Smith to get up. The officer had Mr. Smith’s Apple iPhone in his hand and Mr. Smith testified that he was told to unlock the phone and that the police were getting a warrant to search the contents of the phone. Mr. Smith unlocked the phone by using his thumb print.
[39] This limited exchange, between the officer and Mr. Smith was not recorded.
[40] On cross-examination Mr. Smith testified that the officer said, open your phone, we are getting a warrant and that he was looking for evidence. He also said on cross-examination that he did not know the police were looking for evidence against him even though he knew why he was at the station and the nature of the charges.
[41] Mr. Smith testified that the officer said little else to him and did not tell him that anything found could be used against him. However, he also testified that he knew that if anything was discovered it could be used against him.
[42] Mr. Smith testified that he was not told that he could refuse to consent to unlocking his phone or that he could withdraw the consent at any time. He suggested it was implied that he might as well open the phone as they were getting a warrant in any event.
[43] He described this exchange as very rushed, lasting only about a minute.
[44] At 5:02 am Officer Clarke returned to the interview room and again asked Mr. Smith if he would consent to the phone being searched. Mr. Smith testified that the officer spoke to him more in a way he could understand and explained his rights. He was told he did not have to consent and that his consent could be withdrawn at any time.
[45] Mr. Smith, on this occasion, refused to consent to the police search of his phone.
[46] Officer Clarke before commencing this second interview, ensured that it was audio/video recorded. A copy of the recording was entered as Exhibit 1.
[47] On cross-examination Mr. Smith acknowledged that upon arrest when he was in the kitchen of his home he was given his rights to counsel and cautioned.
[48] Mr. Smith testified that he never thought the police would find anything on his phone.
[49] When asked if, when first asked to unlock his phone he ever contemplated saying no, that he had been in a deep sleep and had no time to think. He just did it (put thumb on phone to unlock it).
[50] Constable Clarke also testified on the voir dire. He testified that when still upstairs with Mr. Smith in his home he gave Mr. Smith his rights and caution, specifically saying that anything said by Mr. Smith could be used against him.
[51] It was Officer Clarke who found the cell phone in the Smith bedroom during a search in which he was looking for firearms and firearms accessories, such as ammunition and magazines.
[52] When back at the police station, Officer Clarke testified that at 4:40 am, September 23, 2014, he first entered the interview room in which Mr. Smith was waiting. His purpose for entering was to get Mr. Smith to consent to a search of his cell phone. He described Smith as awake.
[53] Officer Clarke testified that he told Mr. Smith of the specific charges and again told him of his right to contact and speak to a lawyer. He asked for Mr. Smith’s consent to unlock the phone and testified that he told Mr. Smith that he did not have to give his consent and that if he did he could revoke it at any time. He testified that he also told Mr. Smith that anything found could be used against him.
[54] Officer Clarke testified that Mr. Smith consented to the search and used his thumb print to unlock the phone.
[55] He described the encounter lasting five or six minutes.
[56] Officer Clarke described Mr. Smith as co-operative and respectful.
[57] The officer denied demanding that Mr. Smith consent to the search.
[58] Once the cell phone was unlocked, Officer Clarke left the interview room and reviewed some of the pictures stored on the phone. He found two pictures showing Mr. Smith having what looked like a handgun protruding from the right front pocket of his jeans. The gun looked like the one seized at the Wynter residence and that Smith, appeared to be standing in the garage where the handgun was located (Exhibits 3a and 3b).
[59] Officer Clarke then decided that he again had to get the consent to search on video. He testified that he locked the phone and did not download the pictures.
[60] Officer Clarke returned to the interview room and with the interaction being recorded went through with Mr. Smith what he called the same procedure. Mr. Smith was again given his right to counsel and cautioned.
[61] Officer Clarke testified that Mr. Smith was again told that he did not have to consent, that he could withdraw his consent at any time and that anything found could be used against him.
[62] At this second interview Mr. Smith declined to consent to a search of the contents of his cell phone.
[63] The officer explained that the purpose of this 2nd interview was two-fold: to “repair” the earlier discussions that were not recorded; and to get Mr. Smith’s consent to unlock the cell phone.
[64] Officer Clarke testified that on the first occasion Mr. Smith stated that the police could search his phone as there was no evidence.
[65] On cross-examination the officer agreed that there are various methods of preserving a witness’ evidence. It can be recorded or the witness can sign the notes completed by an officer. A statement can be typed and a witness asked to sign.
[66] The officer testified that the first interview commenced at 4:40 am and commenced the second interview at 5:02 am.
[67] In the officer’s notes the time of the first interview was noted as 4:20 am. This time was then crossed out and a time of 4:40 am inserted. The officer testified that he wrote 4:20 in error and denied the suggestion of counsel for Mr. Smith that 4:20 was the real time the first interview was conducted.
[68] Officer Clarke conceded he could have been more diligent and recorded the first interview. That is the reason why he sought a consent a second time.
[69] In the second interview the officer wanted to get Mr. Smith to acknowledge that he had already given his consent to a search of his phone. The officer wanted to have Mr. Smith confirm what he was told initially in regards to his consent. A review of the recorded interview (Exhibit 1) reveals while Mr. Smith can be seen nodding, he does not provide any verbal confirmation in regards to the circumstances of his consent.
[70] The officer acknowledged that it is generally difficult to get anyone to consent to a search.
[71] The officer testified that had he not found the pictures in issue, he would have still sought a warrant, which was ultimately issued on November 17, 2014. Officer Clarke was the affiant in the ITO (Exhibit 5) filed to obtain this warrant and therein disclosed his search of the contents of the cell phone and what was observed.
THE LAW
[72] R. v. Araujo [2000] S.C.R. 992, at p. 54, dictates that in order to determine whether or not the information to obtain the search warrant was sufficient, the court must assess, “Whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could be issued.”
[73] The hearing of this issue is not a trial de novo and I am not to simply substitute my own views over those of the issuing Justice of the Peace (“JP”). If the JP could have issued the warrant I am not to interfere.
[74] I must consider the totality of the circumstances and in particular, when the basis of the investigation results from information provided by a confidential informant, the three factors outlined by the Supreme Court of Canada in R. v. Debot 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at p. 25:
Is the information concerning the commission of a criminal offence compelling?
If the source of the information credible?
Was the information corroborated by police investigation prior to making the decision to conduct the search?
[75] In R. v. Greaves-Bissesarsingh [2014] O.J. No. 3892, at para. 35, M. Code J. stated,
“It appears from Wilson J.’s reasons in Debot, and from the subsequent jurisprudence, that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to supporting information uncovered by the police investigation.”
[76] A deficiency in one aspect of what has become to be known the “three C’s” can be remedied, to some extent, by the strengths in the other two (R. v. Okeke 1989 CanLII 13 (SCC), [1989] S.C.J. No. 118; R. v. Crevier 2015 ONCA 619, para.107).
[77] The law set out above is well settled and in argument all counsel relied upon it.
ARGUMENT ON THE ISSUE REGARDING THE SEARCH WARRANTS
[78] Counsel for Mr. Smith concedes and I agree, that the information provided by the Source, in relation to his client, was compelling. The Source provided an accurate description of Mr. Smith. The Source provided Mr. Smith’s address and details of the gun, details about where the gun was stored and details on the car he operated. The Source identified the manner in which he or she obtained the information and made clear whether or not the information was first hand or hearsay.
[79] Counsel for Mr. Wynter submits that the evidence provided by the Source is not compelling in regards to his client. The information certainly does not name Mr. Wynter but rather refers to an associate nearby. The associate is not described. While it is conceded that Mr. Wynter resides in the area, it is submitted by counsel for Mr. Wynter that the information provided by the Source falls well short of being compelling.
[80] In regards to credibility, both defence counsel noted that the Source had a criminal record and that he or she wanted some type of consideration for the information supplied.
[81] The ITO did include information that, in the past, the Source had provided information which has led to the seizure of contraband.
[82] Counsel for Mr. Smith submits that the evidence is “sub-par’ in relation to credibility. The nature of the convictions of the Source are unknown. It is unknown on how many occasions the Source has provided reliable information.
[83] Counsel for Mr. Wynter supports this position on credibility, asking the court to consider the Source’s record and motivation. He also submits that the Sourced did not provide any credible evidence to support the allegation that Mr. Wynter was the associate who, for the periods described, kept the handgun for Mr. Smith.
[84] On the issue of corroboration counsel for Mr. Smith notes that much of the information provided by the Source was corroborated. His address and vehicle were confirmed as well as the description of Mr. Smith. It was disclosed that he had been convicted of a firearm offence. The police could not of course corroborate the possession of the gun or the interior location of the gun.
[85] With the exception to one glaring omission, the police corroborated what they could.
[86] The omission relied on by both defence counsel relates to the Source’s information, as noted, that when Mr. Smith is at work he leaves the handgun with an associate nearby. The police never corroborated this piece of information by following Mr. Smith when he drove to work to discover if and where he stopped on his way to work and on his return.
[87] Such corroboration could have been completed relatively easily and quickly.
[88] It is submitted that the failure to corroborate this information is fatal, especially in regards to the validity of the warrant authorizing a search of the premises of Mr. Wynter.
[89] It is submitted by the defence that this failure is so significant that it precludes the finding of reasonable grounds to issue the warrants. There is a lack of evidence which might reasonably be believed, to form the basis on which the authorizations could issue.
[90] It is submitted that the observations made by the police on September 21, 2014 fell well short of establishing the grounds necessary to conclude Mr. Wynter was the “associate”. The observations did not amount to corroboration. Their observations on that day, as noted above, lead Office Nasser to opine that Smith and an unknown male, who was identified as Mr. Wynter, were involved in the drug trade. No weapon was noted nor any activities suggesting any involvement with or possession of a firearm.
[91] It is submitted that there was a lack of reliable evidence which could reasonably be believed as to whether Mr. Wynter had possession of a firearm or kept a firearm at his home. It is submitted that the police assumed the first person they saw Mr. Smith came into contact with was “the associate nearby”.
[92] Further, the unknown male is described by the police as having black, short hair. At the police station Mr. Wynter was described as having a goatee and his hair being braided in cornrows.
[93] It is not conceded that the unknown male was, in fact, Mr. Wynter. The identification relied upon by the police is in respect to one officer looking at a picture and identifying the unknown male as Mr. Wynter, based on the picture.
[94] It is submitted that such evidence only establishes, at best, that the two accused had some association with each other.
[95] Counsel for both applicants submit that when the totality of the three C’s is considered, the threshold has not been reached and the warrants ought not to have been authorized. The evidence seized in the exercise of those warrants should be excluded.
[96] It is submitted that even if there was reliable, believable evidence of grounds to issue a warrant to search the Smith residence, no such evidence or information existed with respect to 7 Fairlawn where Mr. Wynter resided. As such the evidence relating to the discovery of the handgun ought to be excluded.
[97] The Crown submits that the applications ought to be dismissed. He submits that the information provided by the Source is compelling, credible and corroborated.
[98] In their totality the analysis of the three C’s rise to the level to issue the warrants.
[99] It is submitted that the information provided by the Source was significantly detailed and as such is compelling.
[100] In regards to the issue of credibility, the Crown argues the Source’s criminal record is not such that would reduce credibility and that past information provided lead to the seizure of contraband.
[101] With respect to corroboration the Crown submits that the investigation conducted by the police corroborated much of the information provided by the Source. The surveillance conducted on September 223, 2014 was sufficient to corroborate the information that Mr. Wynter was the associate that, at times, had possession of the handgun.
[102] It is submitted that certainly the investigation was sufficient for warrant purposes to identify Mr. Wynter as the associate and to conclude that both accused were involved in the drug trade.
ANALYSIS
[103] I concur with the defence argument that the police should have conducted further surveillance to corroborate the information provided by the Source in regards to the “associate nearby” and to whether Mr. Wynter was the associate. They were only a few days into the investigation and if they continued surveillance on Mr. Smith they could have very easily observed his travels to and from work and with whom he came into contact.
[104] This lack of corroboration is really only significant in regards to the warrant issued to search the Wynter residence. Was there reasonably reliable evidence upon which the JP could have issued a warrant on the basis that Mr. Wynter was the associate nearby?
[105] With respect to Mr. Smith, he was the specific subject of the information provided by the Source. A significant amount of detail was provided as was the source of this detail. It was compelling. The gun was described and the description proved to be accurate.
[106] The information was sufficiently corroborated. While the police never corroborated the information in relation to an associate keeping the handgun when Mr. Smith was at work, the corroboration that was done was sufficient in relation to the Smith home.
[107] In regards to credibility, while the Source had a criminal record and sought consideration, he or she had provided information to the police previously which, as noted, resulted in the seizure of contraband. The criminal record is not such that it makes the issue of credibility one to be overly concerned about, and in regards to the totality of the three C’s, it not enough to negate reasonable and probable grounds.
[108] In regards to Mr. Smith I find that there was reliable evidence that might reasonably be believed to form the basis on which the warrant to search the premises where he resided, could have been issued.
[109] There was no breach of Mr. Smith’s section 8 Charter rights and accordingly the evidence seized during the search will not be excluded from evidence.
[110] Turning now to the circumstances surrounding the warrant to search the Wynter home, the information provided in the ITO was not sufficient enough to lead to the conclusion that a warrant could have been issued.
[111] In regards to corroboration, the evidence realized from four hours of surveillance, at best, supports a finding that the two accused were associates of some nature and that Mr. Wynter lived nearby. What it does not do is corroborate in any way information that Mr. Wynter at times would be in possession of the handgun. It does not help us to determine if he was the only associate nearby or that anything was ever dropped off at his house.
[112] While after the fact, in the recorded second interview (Exhibit 1) Mr. Smith told Officer Clarke that he grew up in the neighbourhood and knew many people in the neighbourhood.
[113] The Source provides no description of the associate and the police were premature in deciding that Mr. Wynter was the associate referenced by the Source.
[114] There was little compellable evidence in the ITO relating to the Mr. Wynter and where he resides. Certainly there was a lack of detailed information. The police failed in their effort to corroborate the information provided by the Source in regards to the associate.
[115] I find that there was not reliable evidence that might reasonably be believed on the basis of which of which the authorization could have issued to search the Wynter residence.
[116] Accordingly, the search of his home and the seizure of evidence resulted in a violation of Mr. Wynter’s section 8, Charter rights.
SECTION 24(2) ANALYSIS
[117] Turning now to the section 24(2) analysis, both defence counsel submit that the evidence located at the Wynter residence, being the 45 caliber gun, ought to be excluded.
[118] The parameters of a section 24(2) analysis and the factors to be considered are set out in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, paragraph 71:
“When faced with an application for exclusion under section 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) the seriousness of the Charter- infringing conduct,
(2) the impact of the breach on the Charter-protected interest of the accused, and
(3) society’s interest in the adjudication of the case on its merits.
The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admissions of the evidence would bring the administration of justice into disrepute.”
[119] In regards to the first consideration, counsel for Mr. Smith submits that while there is no bad faith on the part of the police, there was negligence. The police ought to have conducted further surveillance as discussed above, to corroborate the information provided by the Source connecting Mr. Smith and the associate. This negligence goes to the issue of the seriousness of the breach.
[120] The seriousness of the offences must be considered in all of the circumstances (R. v. Dunkley 2016 ONCA 597, [2016] O.J. No. 4112, ONCA, para. 51).
[121] One of the authorities brought to my attention is R. v. Rocha 2102 ONCA 707. At paragraph 27, Rosenberg J.A. states,
“The key finding by the trial judge on the first Grant inquiry was that the breach was not technical or inadvertent [at para. 67] “as it was deliberate in the sense it was planned in advance and obtained through the warrant authorization process”. In my view this was not the correct approach. The touchstone of analysis of this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”: R. v. Grant, at para. 72. Police conduct that shows “wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: R. v. Grant, at para. 74.”
[122] Carrying on at paragraph 28,
“Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights…the obtaining of a warrant generally, as I explain below, tells in favour of admitting the evidence.”
[123] I doubt this dicta would apply however if the warrant was obtained through the use of false or misleading information.
[124] The more serious the breach, the greater the chance the admissions of the evidence would result in the administration of justice being brought into disrepute.
[125] The fact a warrant was issued, authorizing the search of the Wynter residence, as noted in the authorities, lends itself to the admission of the evidence.
[126] Counsel for Mr. Smith conceded that an analysis of the seriousness of the breach favours the inclusion of the evidence.
[127] Counsel for Mr. Wynter states otherwise submitting that the police conduct can be considered, high handed.
[128] The impact of the search on Mr. Wynter’s is significant. He is entitled to a high level of privacy in relation to his home. Both defence counsel submit that the impact on Mr. Wynter favours exclusion of the evidence of the handgun.
[129] In regards to the third point, generally society expects that criminal allegations will be tried (R. v. Dunkley par. 60), particularly allegations involving illegal guns.
[130] The third area of inquiry becomes important when one, not both of the first two considerations, pushes strongly toward the exclusion of the evidence. If the first two areas of inquiry provide weaker support for the exclusion of the evidence, the third inquiry will almost always confirm the admissibility of the evidence (R. v. Dunkely, para. 63).
[131] With respect to the third point defence counsel submit that if the evidence is not excluded the administration of justice will be brought into disrepute.
[132] Crown counsel submits that the police acted in good faith and obtained warrants to search. Obtaining of the warrants is a relevant factor in assessing the seriousness of the breach (R. v. Dhillon 2010 ONCA 582).
[133] The Crown submits that I need to look at the totality of the factors and notes that a weakness in one factor can be compensated by strength in others.
[134] The Crown submits that the s. 24(2) analysis leads to the conclusion that the evidence of the handgun ought not to be excluded.
[135] In regards to the seriousness of the breach, everyone’s Charter rights are to be protected. But while I concur the police could have conducted further surveillance, as noted above, and by not doing so can be considered negligent, they did apply for and obtained a warrant. There are no mistruths or misleading information in the ITO. The argument is that the information supplied in the ITO was insufficient. While the breach can be considered serious, it is not significantly so.
[136] In regards to the impact of the search on the accused, clearly when it comes to a private residence, such search is profoundly intrusive. As a result there is a significant impact on Mr. Wynter.
[137] Society has an interest in seeing all allegations tried. In regards to the tertiary consideration, to exclude the evidence of the gun would likely bring an end to the Crown’s case. The importance of the evidence to the Crown case is a factor (R. v. Dunkley, para.60). The charges faced by both accused are related to the discovered firearm, what was discovered with it and where it was discovered.
[138] In assessing this area, there is no doubt that firearm offences are extremely serious. The use of illegal handguns in the commissions of crime has reached epidemic proportions. It seems we receive daily news of persons injured or killed by such weapons. We are a nation of strict gun laws and control, so the use of such a weapon has a much more significant impact.
[139] On this point it is in the interests of society to have the case adjudicated on it merits with the handgun admitted as evidence.
[140] Considering the section 24(2) considerations in their totality, I find that the inclusion of the handgun into evidence would not bring the administration of justice into disrepute.
[141] The handgun and its discovery are not to be excluded from evidence.
ANALYSIS - CELL PHONE CONTENTS
[142] The onus is on the Crown, on a balance of probabilities, to prove that Mr. Smith gave his informed consent to a search of his cell phone.
[143] R. v. Bergauer-Free 2009 ONCA 610, 2009 O.J. No. 3340, is a decision of the Ontario Court of Appeal. At issue was the admissibility of a loaded handgun found in the trunk of the accused’s car. Further to a traffic stop the accused’s consent was sought to open the trunk. At some point the accused was told if he did not consent to a trunk search he would be detained there until a canine unit arrived.
[144] From paragraphs 56 and 57 I quote,
“How, in these circumstances, the appellant’s purported consent could be said to be “fully informed” escapes me. Telling the appellant that the canine unit could be called in carried with it the connotation that he could be lawfully kept there until it arrived. That was misinformation, hardly the stuff that makes for a finding of “fully informed’ consent. Standing alone, that would be sufficient to vitiate the appellant’s purported consent.
On the facts of this case, however, the misinformation had the further effect of eviscerating any meaningful choice the appellant had available to him. Translated, the message he received form Officer Yousif was: - you can refuse to consent but it will do you no good because I will bring in the canine unit regardless. That amounts to what the United States Supreme Court referred to in Bumper v. North Carolina, 391 U.S. 543 (1968), as “colorably lawful coercion”. And, as Stewart J. for the majority observed at p. 550: “Where there is coercion, there cannot be consent.” I agree.”
[145] Counsel for Mr. Smith submits that the facts of the matter before me analogous to the facts of the Bergauer-Free case.
[146] R. v. Moore-McFarlane et al. 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737 is also a decision of the Ontario Court of Appeal. At issue in the trial was the voluntariness of a statement which the police failed to record. At paragraph 65 Charron J., who delivered the judgment of the court stated,
“However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non- recorded interrogation suspect.”
[147] R. v. Wills 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 is a further decision of the Ontario Court of Appeal. The accused was part of a motor vehicle collision and while the police did not have any grounds to require a breathalyser test it was suggested to the accused that he should take it as it might be helpful in any civil action. The test confirmed an over the legal limit amount of alcohol in the accused’s system.
[148] Commencing at the second last paragraph on page 11, I quote,
“Co-operation must, however, be distinguished from mere acquiescence in or compliance with a police request. True co-operation connotes a decision to allow the police to do something which they could not otherwise do. Acquiescence and compliance signal only a failure to object; they do not constitute consent.
The dynamics which operate when a police officer “requests” the assistance of an individual cannot be ignored. It would be naïve to equate most requests made by a police officer with similar requests made by one private individual to another. The very nature of the policing function and the circumstances which often bring the police in contact with individuals introduce an element of authority, if not compulsion, into a request made by a police officer. This is particularly true where the request is made of someone who is the target of an ongoing investigation.
The danger to constitutionally protected individual rights implicit in the equating of consent with acquiescence or compliance is self-evident and does not require detailed elaboration. When the police rely on the consent of an individual as their authority for taking something, care must be taken to ensure that the consent was real. Otherwise consent becomes a euphemism for failure to object or resist, and an inducement to the police to circumvent established limitations on their investigative powers by reliance on uninformed and sometimes situationally compelled acquiescence in or compliance with police requests.”
[149] The Crown submits that the consent provided was, indeed, “informed consent”. The court is asked to accept the testimony of Officer Clarke and find that the appropriate facts were provided to Mr. Smith to allow his consent to be informed.
[150] Counsel for Mr. Smith submits otherwise and argues the Crown has failed it onus of proving that his client provided the information necessary to make the consent, informed.
[151] It is submitted that the evidence of Mr. Smith ought to be accepted and that he was, in effect, told to sign as the police were getting a warrant. He submits that this is not informed consent but an element of coercion.
[152] And while it seems clear that Mr. Smith knew that anything found could be used against him, and if the testimony of Mr. Smith is to be believed, the officer did not tell Mr. Smith that he did not have to give his consent and that he could revoke it any time if he did give consent.
[153] The issue is not whether consent was given but was whether or not the consent was informed. In the Wills case supra, at page 16, the court sets out the factors that the Crown needs to establish for a finding of informed consent. I quote,
“In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on a balance of probabilities that;
(i) there was a consent express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of consent was aware of his or her right to refuse to permit the police to engage the conduct requested; and
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
[154] The Crown submits that counsel for Mr. Smith has conceded three of the five elements (1, 2, and 4).
[155] There was a consent and Mr. Smith had the authority to give it; it was his cell phone.
[156] Mr. Smith knew the nature of the police conduct was to search the contents of the cell phone.
[157] I also accept that Mr. Smith was aware of the potential consequences. He knew that anything found could be used against him, satisfying the sixth element.
[158] What is not conceded is that the search was voluntary (criteria no. (iii)). Counsel for Mr. Smith submits that there was an element of coercion. His client was told to consent to the search and unlock his phone and that the police were getting a warrant. The implication is there is no sense in not consenting as we will get a warrant anyways and it will allow us to search the cell phone contents. Further, Officer Clarke was a person in authority and the consent granted, it is submitted, can be said to be no more than acquiescence and/or simple compliance, especially if Mr. Smith was not told he could refuse to give consent.
[159] On that latter point, and in regards to the fifth Wills consideration, it is submitted that Mr. Smith was not told he could refuse to consent or that he could withdraw his consent at any time.
[160] In considering the circumstances of the consent I note the following.
[161] In his voir dire testimony Officer Clarke said that after seeing the incriminating pictures, he locked the phone and did not attempt to download any of the pictures. This is confirmed in the subsequent ITO filed as Exhibit 5. However, during the second interview, the officer told Mr. Smith that the phone locked up on its own, perhaps implying the reason for the second interview.
[162] The first interview was conducted in the same room as was the second and it was equipped with recording equipment. The failure to use such equipment, when available, can make the resulting information suspect.
[163] It was only at the second interview that Mr. Smith was told of the specific charges which were read out to him by Officer Clarke. His actual jeopardy was only made known to him after the pictures were discovered.
[164] In the second interview Officer Clarke, when referring to the first interview, noted that he told Mr. Smith the first time that they could get a warrant.
[165] Officer Clarke refers to two reasons why he wanted to seek the consent the second time. He wanted to get another consent and wanted to “repair” his attempt to seek consent the first time.
[166] Repair means to fix something that was broken. Was it simply because he should have recorded the first interview or was it because some other element necessary for informed consent was absent necessitating the repair?
[167] I also note there was no urgency in searching the cell phone. It was seized pursuant to a valid warrant. The evidence on the phone would not be lost and would not degrade. The phone was in the possession and control of the police and they had ample time to get an informed consent or a warrant.
[168] In regards to a warrant, the police did not seek to obtain one until almost two months after the arrest.
[169] After all of these considerations I have come to the conclusion that the Crown, on a balance of probabilities, has failed to prove the consent in issue was informed.
[170] The failure to record the first interview, as noted, makes the information obtained suspect. Taking this into account with the other points I have noted, I accept the evidence of Mr. Smith as to how the circumstances under which the consent was obtained.
[171] Mr. Smith was not told that he could refuse to consent and in fact by the way the request to consent was put to him bore an implied element of coercion in that the fact that a warrant could be obtained implied that Mr. Smith might as well consent.
[172] The consent obtained was not informed and as a result Officer Clarke’s initial search of the contents of the phone violated Mr. Smith’s section 8 Charter rights.
CELL PHONE CONTENTS, SECTION 24(2) ANALYSIS
[173] Counsel for Mr. Smith submits that the breach in issue was serious. It represents unauthorized state interference on the rights of his client. It is submitted that almost everyone has a cell phone and such a search potentially impacts us all.
[174] Officer Clarke was, at the least, negligent.
[175] In regards to Mr Smith’s rights, it is submitted that it had a significant impact in that there is a high expectation of privacy when it comes to cell phones, although not as high expectation as that of private residences.
[176] In regards to the tertiary consideration, it is submitted that the failure to exclude the evidence would bring the administration of justice into disrepute.
[177] The Crown argues that the warrant to search the contents of the cell phone was obtained in November, 2014, and that it represents a, “fresh start”. The authority relied upon for that statement is R. v. Manchulenko 2013 ONCA 543, para. 70.
[178] In regards to the fresh start argument, counsel for Mr. Smith submits that the second ITO (Exhibit 5) prepared by the police in an effort to get authorization to search the contents of the phone, makes reference to his initial search of the phone and the pictures discovered. To comply with the fresh start principle that information would have to be excised.
[179] The affiant of the second ITO is Officer Clarke. Under the sub-title, Surveillance, paragraph 17, he deposes in regards to the consent he obtained from Mr. Smith and the results of his search. He deposed that Mr. Smith appeared to have the handgun in issue in his pants pocket and to the fact that the location of the picture appears to be the same garage in which the gun was discovered.
[180] I agree with the comments of counsel for Mr. Smith. In my opinion the seriousness of the breach is not mitigated by the subsequent authorization of search the contents of the cell phone. The issuance of the warrant, to some degree, was grounded on information obtained from an illegal search.
[181] The breach of Mr. Smith’s rights would only be compounded if the warrant was utilized to mitigate the seriousness of the breach.
[182] While acknowledging there is a significant impact on Mr. Smith’s Charter rights, given the nature of the crimes and the subsequent warrant, the Crown submits that it is in the public’s interest to have the matter adjudicated on its merits. The administration of justice would only be brought into disrepute if the pictures were excluded from evidence.
[183] I find that the breach was serious and could have easily been avoided. It had a significant impact on the accused and, finally, taking into account those two considerations and the circumstances, the admission of this evidence would negatively impact on society’s view of the administration of justice.
[184] Accordingly, I am excluding as evidence any information or pictures obtained from the search of Mr. Smith’s cell phone by Officer Clarke.
FINAL ORDERS
[185] The application of both applicants to exclude the evidence obtained as a result of the searches of their homes are dismissed.
[186] The application of Mr. Smith to exclude from evidence the contents of his cell phone is granted.
Bielby J.
Released: August 2, 2017
CITATION: R. v. Smith, Wynter, 2017 ONSC 4683
COURT FILE NO.: CRIMJ(P) 1413/16
DATE: 2017 08 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
SABASTIAN ST. PATRICK SMITH and OWAYNE WYNTER
Applicants
REASONS FOR JUDGMENT
Bielby J.
Released: August 2, 2017