R. v. Burkoski, 2017 ONSC 7399

CITATION: R. v. Burkoski, 2017 ONSC 7399

COURT FILE NO.: CR-17-3861

RELEASED ORALLY DATE: 20171212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Charles Michael Burkoski,

Tracy Jane MacDonald, and

Jeremy Paul Thoman

Richard Pollock, for the Federal Crown

Maria Carroccia, Counsel for Mr. Burkoski

John Sitter, Counsel for Ms. MacDonald

Neil Rooke, Counsel for Mr. Thoman

HEARD: November 14, 2017

RULING ON Charter APPLICATION

(Section 8 and Section 24(2))

Hebner j.

[1] Mr. Burkoski, Ms. MacDonald and Mr. Thoman are charged in the same indictment, dated January 5, 2017, as follows:

Count 1: Mr. Burkoski and Ms. MacDonald are charged with possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

Count 2: Mr. Burkoski and Ms. MacDonald are charged with possession of hydromorphone for the purpose of trafficking, contrary to s. 5(2) of the CDSA.

Count 3: Mr. Burkoski and Ms. MacDonald are charged with possession of oxycodone for the purpose of trafficking, contrary to s. 5(2) of the CDSA.

Count 4: Mr. Burkoski and Ms. MacDonald are charged with possession of cannabis marihuana, contrary to s. 4(1) of the CDSA.

Count 5: Mr. Burkoski and Ms. MacDonald are charged with possession of methamphetamine, contrary to s. 4(1) of the CDSA.

Count 6: Mr. Burkoski and Mr. Thoman are charged with possession of an expandable baton, of a value not exceeding $5,000, being the property of Windsor Police Service, knowing that the baton had been obtained by an offense punishable by indictment, contrary to s. 354(1) of the Criminal Code of Canada.

Count 7: Mr. Burkoski and Ms. MacDonald are charged with possession of nabilone, contrary to section 4(1) of the CDSA.

Count 8: Mr. Thoman is charged with possession of methamphetamine, contrary to s. 4(1) of the CDSA.

Count 9: Mr. Burkoski is charged with possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA.

[2] All of the offences are alleged to have occurred on October 29, 2015. The controlled substances were found following the execution of a CDSA search warrant issued on October 29, 2015. The warrant granted peace officers in the Southwest Region the right to enter Mr. Burkoski’s residence at 24 Bonita Street, Windsor, Ontario, (“24 Bonita”), between 12:15 p.m. and 8:00 p.m. on October 29, 2015 to search for fentanyl.

[3] The address known as 24 Bonita is situated in a trailer park. At that address there is a residential trailer and an outdoor shed located behind the trailer. Officers executed the warrant at 24 Bonita and seized the following evidence from inside the trailer:

• 5 fentanyl patches, strength of 10 mcg/h (micrograms per hour);

• 1 fentanyl patch, strength of 75 mcg/h cut in half and clear Ziploc packaging;

• 63.7 g of cannabis marihuana;

• 1 hydromorphone capsule, 20 mg;

• 8 Percocet tablets, 5 mg;

• 22 nabilone capsules, 1 mg;

• 2 ml syringe of liquid fentanyl, strength of 100 mcg/h;

• 1.7 g of crystal methamphetamine;

• Digital scale;

• 12 strips of paper containing Mr. Burkoski’s phone number in an empty hydromorphone pill bottle;

• Correspondence addressed to Charles Burkoski at 24 Bonita; and

• Correspondence addressed to Tracy MacDonald at O[…] Avenue.

[4] The officers searched inside the shed located behind the trailer and seized the following items:

• 40 fentanyl patches , strength of 100 mcg/h;

• 20 fentanyl patches, strength of 75 mcg/h;

• 30 fentanyl patches, strength of 50 mcg/h;

• 24 hydromorphone capsules, 30 mg; and

• 73 Percocet tablets, 5 mg.

[5] Mr. Burkoski and Ms. MacDonald brought applications at the commencement of the trial alleging that their rights under s. 8 of the Charter of Rights and Freedoms (“the Charter”) had been infringed. Specifically, Mr. Burkoski and Ms. MacDonald make the following submissions:

1. The information to obtain the search warrant (“ITO”) does not disclose reasonable and probable grounds to support the issuance of a search warrant and, accordingly, the search was unlawful, and the evidence obtained during the search should be excluded under s. 24(2) of the Charter; and alternatively

2. The police did not have lawful authority to search the shed, which was not specifically included in the search warrant and, accordingly, the search of the shed was unlawful and the evidence obtained during the search of the shed should be excluded under s. 24(2) of the Charter.

[6] The application was dealt with by way of a voir dire. The Crown conceded that Mr Burkoski and Ms. MacDonald have standing to assert a breach of their rights under s. 8 of the Charter insofar as the trailer is concerned. Mr. Burkoski gave evidence on the voir dire on the issue of his standing to assert a breach of his rights under s. 8 of the Charter insofar as the shed is concerned. Following that evidence, the Crown conceded that issue.

The Information To Obtain (ITO)

[7] On October 29, 2015, Constable Gendreau of the Windsor Police Services (“WPS”) applied for a CDSA warrant to search the “residence located at 24 Bonita, Windsor, Ontario”. The offence alleged in the application was that Mr. Burkoski was in possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA. The warrant was granted.

[8] The ITO was provided by Constable Gendreau. It included the following information (with the redacted information denoted by “X”):

1. Constable Gendreau received information from two confidential informants (“CI”) referred to as Source A and Source B. He received information from Source A directly, and from Source B through another police officer.

2. Constable Gendreau described Source A as “a past proven confidential source.” He said he had “an informant/handler relationship with Source A for a period greater than x year(s).”

3. The positive considerations supporting the reliability of Source A were stated as being:

a) Source A had provided Constable Gendreau with information regarding the local drug subculture and information in relation to criminal activity in the City of Windsor that he had been able to corroborate through investigative measures;

b) Source A had provided Constable Gendreau with information leading to the execution of one CDSA warrant in which a quantity of X were seized. As a result, charges were laid and a conviction registered;

c) Source A had provided information leading to the execution of a CDSA warrant in which quantities of X were seized. As a result, charges were laid. The charges are still before the court;

d) Source A had provided information leading to the execution of a CDSA warrant in which a quantity of X valued at over X was seized. As a result, charges were laid. The charges are still before the court; and

e) Source A advised their motivation for providing the information is X.

4. The negative considerations detracting from the reliability of Source A were stated as being:

a) Source A has a criminal record which may include crimes of dishonesty; and

b) Source A is an admitted recreational drug user.

5. On an unspecified day in September 2015, Source A provided Constable Gendreau with the following information:

a) Charlie Burkoski is selling fentanyl patches;

b) He just re-upped for a bunch of X more fentanyl patches (“re-upped” is a term used in the drug trade to reference the restocking of drugs ready for sale);

c) He is moving out of his place on O[…] into the trailer park next to Home Depot;

d) His place is a light brown trailer. He is framing a summer room on it. It is on the road closest to the Home Depot.

6. On an unspecified day in September 2015, Source A provided Constable Gendreau with information, including:

a) Charlie is still moving the patches;

b) He meets his customers around the area of the trailer park and in the Home Depot parking lot;

c) He drives a gold Dodge Journey SUV; and

d) He is an older guy, white or mixed race in his 50s. He is short, skinny, with short hair, and a goatee.

7. A Versadex query of Charlie Burkoski revealed the following information:

a) Mr. Burkoski was born on July 7, 1962 and is listed in the data base with the last known address of O[…] Avenue;

b) Mr Burkoski has 19 listed events with the WPS, two of which are listed as related to drug trafficking. These two events were described in the ITO; and

c) Mr. Burkoski was described as being 5’7” tall, 190 pounds, with short brown hair, and a salt-and-pepper moustache/goatee.

8. On an unspecified day in October 2015, Source A provided Constable Gendreau with information, including:

a) Charlie is “loaded up.” / “He re-upped again.”;

b) He picked up a bunch of new patches;

c) He sells from his trailer (address 24 Bonita) and in the parking lots nearby;

d) He will make deliveries in the Journey;

e) He will keep patches on him in his pocket and stashed at the trailer; and

f) Source A advised that they purchased a quantity of fentanyl from Mr. Burkoski in the area of his trailer.

9. On an unspecified day in October 2015, Source A provided Constable Gendreau with information, including:

a) Charlie got some more patches; and

b) Source A advised that they purchased a quantity of fentanyl from Burkoski in the area of his trailer.

10. On October 27, 2015, Constable Gendreau attended the area of 24 Bonita for surveillance purposes and noted the following:

a) 24 Bonita is a beige trailer with reddish or brown wood stairs leading to a porch area and a north-facing front door;

b) There is an add-on/sun room located on the northeast side of the trailer;

c) 24 Bonita is a trailer located on the far east of a small three street trailer park to the south of Division Road. The trailer park is to the immediate west of the Home Depot located at 1925 Division Road; and

d) Bonita is a very small and narrow street with multiple trailers located on both the east and west sides of the road. The only available parking is directly in front of individual trailers. 24 Bonita cannot be observed from any other cross-streets in the area. Due to the physical layout of the trailer park and lack of public parking, surveillance on the trailer at 24 Bonita cannot be conducted without compromising the integrity of the investigation.

11. On an unspecified day in October 2015, Constable Nurmi advised Constable Gendreau that he had received information from Source B in relation to Mr. Burkoski. Constable Nurmi advised he had had a handler/informant relationship with Source B for X months.

12. Positive considerations supporting the reliability of Source B were stated as:

a) Source B is providing first-hand information based on direct contact with Charlie Burkoski;

b) Source B has provided information that has been corroborated through investigative measures; and

c) Source B advised of their motivation for providing this information is X.

13. Negative considerations detracting from the reliability of Source B were stated as:

a) Source B is an admitted recreational drug user; and

b) Source B has a criminal record which may include crimes of dishonesty.

14. On an unspecified day in October 2015, Constable Nurmi provided Constable Gendreau with information obtained from Source B, including:

a) Charlie Burkoski is selling patches;

b) He is staying in a nice trailer by the Home Depot. It is the last street before the Home Depot and the number is 24;

c) He lives with his girlfriend Tracy;

d) He is driving a gold Dodge Journey;

e) Source B purchased X fentanyl patches from Mr. Burkoski for X at his trailer; and

f) Charlie was “good” to go for cheque week (“good” is a term used by those involved in the drug trade to reference having product ready for sale – “cheque week” is a term used to reference the last week of the month when social assistance and disability cheques are distributed).

15. On October 28, 2015, police officers attended the surrounding area of 24 Bonita and noted the following:

a) At 2:38 p.m., a gold Dodge Journey bearing Ontario licence plate BYCC 455 pulled into the entrance at the trailer park and parked directly in front of 24 Bonita. (A CPIC query revealed the plate to be registered to Elaine Lufti, born June 17, 1950. A Versadex query of Elaine Lufti shows her to have a former name of Elaine Burkoski);

b) At 2:45 p.m., the gold Dodge Journey left the trailer park with two occupants. Mr. Burkoski was the driver and the passenger was an unknown older male. Mr. Burkoski drove to the area of 1036 Mercer Street, pulled to the curb, and dropped off the passenger;

c) At 3:02 p.m., Mr. Burkoski drove to the area of Lillian and Erie Street and entered the Dante Travel Agency. At 3:07 p.m., Mr. Burkoski returned to the vehicle and drove away;

d) At 3:15 p.m., Mr. Burkoski drove to the 1300 block of Gladstone Avenue and pulled to the curb in front of 1341 Gladstone. An unknown male, white with scraggly hair and a ball cap, approached the vehicle and leaned into the driver’s side window. Two minutes later, Mr. Burkoski drove away;

e) At 3:21 p.m., Mr. Burkoski drove to the area of Elsmere and Ottawa Street where he entered the apartment building at 871 Ottawa Street. At 3:30 p.m., he returned to the vehicle with a bag in hand and drove away; and

f) Police officers tried to maintain surveillance of Mr. Burkoski but he drove extremely slowly and well below the posted speed limit. At 3:40 p.m., officers terminated surveillance.

16. On October 29, 2015, Constable Gendreau drove by 24 Bonita and saw the gold Dodge Journey parked in front of the trailer.

17. On October 29, 2015, Source A provided information to Constable Gendreau including:

a) Charlie is good. He re-upped for cheque week. He said he was going through the weekend. He picked up X patches;

b) Source A advised that they purchased a quantity of fentanyl from Burkoski in the area of his residence within the last X hours; and

c) Source A advised that they observed Mr. Burkoski in possession of an additional quantity of fentanyl ready for sale.

[9] The ITO does not mention the shed located immediately behind the trailer. Neither Mr. Burkoski nor Ms. MacDonald elected to cross-examine Constable Gendreau on the ITO. Similarly, no amplification evidence was provided by the Crown.

Mr. Burkoski’s Evidence

[10] Mr. Burkoski gave evidence on the issue of his standing to challenge the warrant. Prior to the evidence, the Crown had acknowledged that both Mr. Burkoski and Ms. MacDonald had a privacy interest in the trailer itself.

[11] Mr. Burkoski was residing in the trailer by way of a lease agreement. He signed an acknowledgement of tenancy dated September 23, 2015 acknowledging that his monthly lot rent was due on the first day of each month effective October 1, 2015 in the amount of $424. Mr. Burkoski also signed a credit application for 24 Bonita with the date of occupancy stated as October 1, 2015.

[12] Photos of the residence were identified by Mr. Burkoski. The residence is a permanent trailer type residence with what appears to be a new porch added to it. It is apparent from the photographs that the trailer is at the back of the trailer park, immediately adjacent to an industrial area. Mr. Burkoski’s evidence was that the Home Depot parking lot is adjacent to his trailer with a fence in between.

[13] Behind and to the left of the new porch (as depicted in the photograph taken from the street) is the shed. The shed clearly matches the trailer and is made of the same siding. Mr. Burkoski’s evidence is that he expected, when he rented the trailer, that he would also have use of the shed. There was no one else that had use of the shed and, according to Mr. Burkoski, he would not have given permission for anyone else to use it. However, when Mr. Burkoski moved in, a padlock was on the shed doors and he was not provided with the key. Mr. Burkoski’s evidence was that he called the owner of the trailer to inquire after the key, but had not reached the owner by the time of his arrest. As a result, Mr. Burkoski said that he did not use the shed and had never been inside of it.

[14] Following the evidence of Mr. Burkoski, the Crown conceded that Mr. Burkoski had an expectation of privacy in respect of the shed and therefore had standing to challenge the search warrant.

Analysis

[15] Section 8 of the Charter reads:

Everyone has the right to be secure against unreasonable search or seizure.

[16] An issued warrant is presumptively valid. In the case of a search pursuant to a warrant, the accused has the burden of proving, on a balance of probabilities, that their Charter rights have been violated: R. v. McGean, 2016 ONSC 3541.

[17] The three issues arising under s. 8 of the Charter are as follows:

1. Does the ITO contain sufficient reasonable and probable grounds to support the issuance of the search warrant?

2. Did the police have lawful authority to search the shed?

3. If the answer to question #1 or question #2 is “no”, having regard to all of the circumstances, would the admission of the evidence obtained on the search bring the administration of justice into disrepute?

Does the ITO contain sufficient reasonable and probable grounds to support the issuance of the search warrant?

[18] The warrant was issued primarily on the basis of the information from the two CIs, Source A and Source B. There was also limited evidence from the results of the surveillance.

[19] My review of the warrant is a narrow one. This review is not a de novo hearing of the application. I am not to substitute my view for that of the issuing judge. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed, and that evidence of that offence would be found at the specified time and place of search: R. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 84.

[20] In order to assess the reasonableness of the grounds to search based on information from an informant, Wilson J in R v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, provided the following guidance at p. 1168:

First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that it is the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[21] On a review of the ITO in this case, I conclude the following:

1. The information provided by both CIs was compelling. Source A had significant detail of Mr. Burkoski’s whereabouts, circumstances and activities. They knew Mr. Burkoski personally. They knew where Mr. Burkoski was meeting his customers. They had purchased drugs from Mr. Burkoski on two stated occasions. Similarly, Source B provided compelling information. Source B provided detail of Mr. Burkoski’s whereabouts and living circumstances. Source B also had purchased drugs from Mr. Burkoski personally on at least one occasion.

2. Both Source A and Source B were somewhat credible. They both provided information based on direct personal knowledge. Source A has a track record for providing reliable information. Source B is stated to have a track record, but the particulars provided are vague. There are factors that would detract from the reliability of both sources. Source A and Source B both have criminal records that may include crimes of dishonesty. The motivation for providing information was redacted for both sources.

3. The information provided by both Source A and Source B was corroborated to some extent. The information that Mr. Burkoski had recently moved from his place on O[…] into the trailer park was corroborated. The information that Mr. Burkoski was building a summer room on his trailer was corroborated. The information as to the location of the trailer, namely that it was next to the Home Depot parking lot, was corroborated. The information that Mr. Burkoski drove a gold Dodge Journey SUV was corroborated. The physical description of Mr. Burkoski was accurate. The information provided by Source B was consistent with the information provided by Source A.

[22] In my view, the information obtained from the two CIs meets the standard of reasonable grounds as set out in Debot. In addition, evidence was provided by Constable Gendreau regarding the actions of Mr. Burkoski on October 28, 2015. In the course of surveillance, Mr. Burkoski was observed to make two short stops. In addition, there was one short visit by a pedestrian. The evidence of Constable Gendreau was that, in his experience as a drug investigator, a short stop or a short visit is consistent with a drug trafficking transaction. Thereafter, Mr. Burkoski was able to elude surveillance by driving extremely slowly. Given the small number of such encounters, this information alone would not have been sufficient. However, this information coupled with the information obtained from the CIs is sufficient to meet the test in Sadikov. Namely, there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence had been committed, and that evidence of that offence would be found at the trailer.

[23] Given the foregoing, I find that the ITO did contain sufficient grounds for the warrant to be issued.

Did the police have lawful authority to search the shed?

[24] The warrant authorized a search of “the residence located at 24 Bonita, Windsor, Ontario.” The term “residence” is defined at dictionary.com as:

• the place, especially the house, in which a person lives or resides; dwelling place; home; or

• a structure serving as a dwelling or home, especially one of large proportion and superior quality.

[25] Clearly the trailer is Mr. Burkoski’s residence and the search of the trailer was therefore lawful. The question is whether the “residence” included the outdoor shed such that the search of said shed was lawful. The outdoor shed was not referred to in the warrant nor mentioned at any point in the ITO.

[26] It is clear from the picture of the trailer taken from the street that the outdoor shed matches the trailer. It is immediately behind and to the left of the trailer. It is visible from the street. It is made of the same material as the trailer. It is significant to note that the outdoor shed was locked with a padlock requiring a key. Although no evidence was led on how the officers gained entry, it is reasonable to assume they cut the padlock.

[27] In order to determine whether the police have lawful authority to search the shed, one must consider the curtilage principle. The principle is described by James A. Fontana and David Keeshan in The Law of Search and Seizure in Canada, 8th ed, (Toronto: LexisNexis, 2010), at p. 92, as follows:

The power to conduct an entry and search has, by tradition and common law, been limited to the place described in the instrument of search, making necessary a very precise description. Warrants have been struck down for lack of precision in the description of the place to be searched, since the search was to be limited to such place and the warrant gave no power to search out buildings or conveyances at the place described unless specifically set out therein.

[28] In R. v. Le, 2011 MBCA 83, 275 C.C.C. (3d) 427, the Manitoba Court of Appeal dealt with the curtilage principle. The case dealt with a murder involving the use of a firearm. A search warrant was sought and obtained for “the premises ... at 39 Southlawn Stroll.” The warrant was executed and, while waiting for a locksmith to gain entry to the home, a police officer went into the backyard. He noticed a large granite rock near the rear fence. Using a pitchfork that was nearby, he turned the rock over. He found the gun underneath the rock. After some discussion, the police eventually concluded that the warrant included the yard and decided to seize the gun. A police officer ran his fingers through the soil and found the clip about four inches or so below the surface of the ground and less than a foot away from where the gun was found. The trial judge concluded that the scope of the warrant permitted the police to search the flower bed, and rejected the argument that the police required a second warrant to disturb the soil. As such, the trial judge concluded that no Charter breach under s. 8 was established, and the evidence was not excluded.

[29] The Manitoba Court of Appeal agreed. In the course of its decision, the Court of Apeal discussed the curtilage principle. Firstly, the court referred to the decision in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, where the Supreme Court of Canada said, at para. 12:

[A]gents of the state can only enter onto or confiscate someone’s property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else.... [T]he scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law.

[30] The court then referenced the curtilage principle described in the 6th ed of The Law of Search and Seizure in Canada, as follows:

As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in the order (which would only include the curtilage [from the footnote: curtilage generally includes all lands immediately associated with the building identified in the warrant]), a search of a dwelling house does not import authority to search any outbuildings, garages, sheds, barns, receptacles, lockers, etc., at the same location as the principal residence[.]

Perimeter searches, unintrusive inspections around dwelling houses, are ordinarily caught by the curtilage rule – walking around in someone’s yard is usually the legal equivalent of walking around their home.

[31] In R. v. Hall, 2003 BCSC 1433, a case of the British Columbia Supreme Court, the police obtained a warrant for “the dwelling home and garage situated at 715 – 3rd Avenue” (para. 11). The police suspected the existence of a marihuana grow operation. The police searched the detached garage and located immature marihuana plants. The court found that the warrant authorized a search of a “dwelling house” at a civic address only and did not authorize the search of a detached garage on the same property.

[32] In R. v. N.M.), 2007 CanLII 31570, 223 C.C.C. (3d) 417 (Ont. S.C.), at paras. 371-76, Hill J. dealt with the issue of curtilage. He drew upon American authorities for guidance on factors to consider in determining the curtilage of the premises. The four factors identified are: the proximity of the area claimed to be curtilage to the home; whether the area is included within an enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observation by people passing by. I find these factors helpful.

[33] In this case, the shed was situated approximately eight to nine feet from the trailer. There was no fence or enclosure surrounding the home that included the shed. The shed was locked with a padlock. There was no indication as to the nature of the use of the shed at the time the police decided to break the padlock and search it.

[34] The facts in this case can be distinguished from the facts in R. v. Le. This was not a matter of looking under a rock or digging in a flower bed adjacent to a home. The police took active steps to break into a structure that was locked, that was a separate structure, and not attached to the residence identified in the warrant.

[35] In my view, given these factors, the shed is not included in the curtilage of “the residence located at 24 Bonita, Windsor, Ontario.” It therefore follows that the search of the shed was unlawful.

If the answer to question #1 or question #2 is “no”, having regard to all of the circumstances, would the admission of the evidence obtained on the search bring the administration of justice into disrepute?

[36] Section 24 of the Charter provides:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[37] The framework for the application of s. 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. Essentially, whether the admission of evidence obtained in the course of a Charter breach would bring the administration of justice into disrepute requires the court to consider three avenues of inquiry:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused; and

3. Society’s interest in the adjudication of the case on its merits.

[38] The court’s role is to balance the assessments under each of these lines of inquiry to determine whether, in all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

[39] I will address each of the lines of inquiry in turn.

1. The Seriousness of the Charter-Infringing State Conduct

[40] In Grant, the Supreme Court of Canada directed, at para. 72, that the first line of inquiry:

[R]equires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

[41] In this case, I conclude that the Charter-infringing state conduct is serious. The police officers had the accused in custody and they had control of the premises. After they searched the trailer and approached the shed, they had two choices: (i) they could have taken the time to obtain a new warrant to search the locked shed; or (ii) they could have forged ahead with the search without obtaining a warrant. If the police officers conducting the search had taken the time to apply for a new warrant, given the evidence that was found in the residence, certainly the warrant would have been issued. They chose not to take that step.

[42] It is useful to consider police conduct resulting in a Charter breach along a spectrum, with inadvertent or reasonable mistakes at one end of the spectrum and deliberate or systemic actions at the other end of the spectrum. The midpoint might be negligent conduct. Counsel for the Crown suggested that the police chose not to obtain a second warrant for the shed because they thought the search of the shed was authorized by the warrant already obtained. There was no evidence to support that contention. There is no authority directly on point, and given the state of the law it is reasonable to assume that the police may have been unsure as to whether another warrant was required. However, in all of the circumstances, if there is any doubt at all, then the police had to err on the side of caution and obtain a warrant. Failure to do so is a deliberate choice to ask for forgiveness instead of permission. In making the other choice, in my view, the Charter-infringing conduct is at least negligent, and possibly further along the spectrum towards deliberate.

2. Impact on the Charter-Protected Interests of the Accused

[43] This line of inquiry is described in Grant, at para. 76, as follows:

This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[44] Mr. Burkoski’s evidence was that he had recently moved into the trailer. He had not yet taken possession of the shed. Indeed, his evidence was that he did not have a key to the shed, and had never been inside of the shed. In those circumstances, the impact of the Charter-infringing conduct is extremely minimal and at the far end of the spectrum towards fleeting and technical.

[45] The Crown suggests that in the event that the police had applied for a further warrant to search the shed, it would most certainly have been granted. I agree with that proposition. However, that fact cuts both ways. On the one hand, the shed would have been searched anyways. On the other hand, that fact makes the failure of the police to take the step of obtaining a warrant that much more egregious.

3. Society’s Interest in the Adjudication on the Merits

[46] This line of inquiry in the Grant analysis requires a consideration and weighing of society’s interest in the determination of the charges on their merits. The court must consider whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79.

[47] In considering this third line of inquiry, the court must consider the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence. The evidence found by the police in the shed is highly reliable. The evidence speaks for itself. Although the evidence is important to the Crown’s case, its exclusion would not gut the Crown’s case. The Crown still has the evidence found in the trailer. The third consideration is the most troubling: the offences are very serious. The trafficking and consumption of hydromorphone and fentanyl are alarming. The damage these drugs do to society as a whole cannot be underestimated. The risks to our young people as a result of these drugs sold on the street is high. However, given the very serious nature of the offence, and the need to effectively deal with the trafficking and consumption of such drugs, one would think that the police would have exercised extra vigilance in ensuring that the accused’s Charter rights were honoured. In R. v. Grant, the Court said, at para. 84:

[W]hile the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

Section 24(2)

[48] I am directed by the Supreme Court of Canada in Grant, after considering the three inquiries, to determine whether, on a balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. It is my task to weigh all of the factors. The factors in favour of admission are:

1. The impact of the Charter breach on the accused is nominal. The accused had, at best, a minimal expectation of privacy in the shed given his evidence.

2. The evidence is highly reliable on a very serious charge.

[49] The factors in favour of exclusion are:

1. The police conduct is at least negligent and at worst deliberate. The police officers could easily have applied for a new warrant to search the shed. Instead, they chose not to and broke the lock without a warrant.

2. The charges are very serious. Accordingly, the police must take extra care to ensure that their actions are above reproach.

[50] In determining whether the inclusion of the evidence would bring the administration of justice into disrepute, I must consider the long-term effect on the justice system. At para. 68 of R. v. Grant, McLachlin C.J.C. said:

But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[51] The balancing in this case is close. However, the minimal impact to the accused cannot tip the scales in favour of inclusion given the actions of the police in breaking into a locked structure without a sufficient warrant in circumstances where, if they had taken the steps to obtain a second warrant for the shed, the warrant would surely have been granted. The court must dissociate itself from such conduct. Accordingly, I conclude that, having regard to all of the circumstances, the admission of the evidence found in the shed would bring the administration of justice into disrepute.

[52] Accordingly, the application of Mr. Burkoski and Ms. MacDonald is allowed such that the evidence found in the shed is excluded.

“delivered orally – released as Exhibit”

Pamela L. Hebner

Justice

Released Orally: December 12, 2017

CITATION: R. v. Burkoski, 2017 ONSC 7399

COURT FILE NO.: CR-17-3861

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Charles Michael Burkoski,

Tracy Jane MacDonald, and

Jeremy Paul Thoman

RULING ON APPLICATION

Pamela L. Hebner

Justice

Released Orally: December 12, 2017