CITATION: R. v. Woo, 2017 ONSC 7655
COURT FILE NO.: CR-17-10000-401
DATE: 20171221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
WING WAYNE WOO Applicant
P. Tsui, for the Respondent
J. Kaldas, for Applicant
HEARD: September 11-15, 25-26, 2017
RULING ON CHARTER APPLICATION
SCHRECK J.:
Table of Contents
I. OVERVIEW OF THE INVESTIGATION.. 3
II. SECTION 8 OF THE CHARTER.. 4
A. The “Step Six” Application. 4
B. The Evidentiary Record. 6
(i) The Structure of the Information to Obtain. 6
(a) Introduction and Background. 6
(b) The June 24, 2015 Interaction Between the Applicant and Mr. Civil 6
(c) The June 26, 2015 Interaction Between the Applicant and Mr. Mogent 7
(d) Later Observations of the Applicant 7
(e) “Reasonable Ground to Believe Items to be Seized Are in Said Places”. 7
(f) “Storage Lockers”. 8
(g) “How Current Are the Grounds”. 8
(h) Appendix E – Information From Confidential Sources. 9
(ii) Cross-Examination of the Affiant 9
(a) Areas in Which Cross-Examination Was Permitted. 9
(b) Wayne Lam and Wayne Woo. 10
(c) Identification of the Applicant on the Videos. 11
(d) Gun or Drug Pick Ups. 11
C. Analysis. 12
(i) Overview.. 12
(ii) The Step-Six Application. 12
(iii) The Debot Criteria. 14
(a) Was the Information Credible?. 14
(b) Was the Information Compelling?. 14
(c) Was the Information Corroborated?. 15
(iv) Currency. 17
(v) Conclusion Respecting the Sufficiency of the Grounds. 20
III. SECTION 10(b) OF THE CHARTER.. 20
A. Evidence. 20
(i) The Executions of the Search Warrants. 20
(ii) The Applicant’s Arrest and Timing of the Right to Counsel 20
(iii) The Reasons for Delaying Implementation of the Right to Counsel 22
(iv) Implementation of the Right to Counsel 22
B. Analysis. 23
(i) Delay in the Informational Component 23
(ii) Lack of Opportunity to Invoke the Right to Counsel 23
(iii) Delay in the Implementational Component 23
(iv) The Duty to “Hold Off”. 24
IV. SECTION 24(2) OF THE CHARTER.. 24
A. Overview.. 24
B. The Seriousness of the Violations. 25
(i) Section 8. 25
(ii) Section 10(b) 27
C. The Impact of the Breach. 27
(i) Section 8. 27
(ii) Section 10(b) 27
D. Society’s Interest in an Adjudication on the Merits. 28
E. Balancing. 28
V. DISPOSITION.. 29
[1] On the evening of October 24, 2015, Wing Wayne Woo was sitting in the living room of his condominium when a number of armed police officers suddenly entered. They had a Controlled Drugs and Substances Act (“CDSA”) search warrant to search for cocaine and, after arresting Mr. Woo, searched the premises. They found no cocaine. What they did find was a number of semi-automatic firearms, ammunition, dynamite, marijuana and GHB. Mr. Woo is charged with numerous offences relating to the possession of these items.
[2] Mr. Woo has challenged the warrant that permitted the search of his residence. The warrant was based on information from confidential informants. As a result, much of the material in the Information to Obtain (“ITO”) the warrant was redacted before being provided to defence counsel, who was also provided with a summary of the redacted material. In what is often referred to as a “step six application”, the Crown has asked this court to consider the redacted portions in assessing Mr. Woo’s challenge to the warrant. Counsel for Mr. Woo submits that the procedure suggested by the Crown does not allow him to meaningfully challenge the search, and even if it does, there were insufficient grounds to justify the warrant. As a result, he alleges that the search violated his s. 8 Charter rights.
[3] Mr. Woo also claims that when he was first detained, the police did not advise him of his right to counsel. After he was advised of his right to counsel and indicated that he wished to speak to a lawyer, he was not given an opportunity to do so until over 12 hours later. The police asked him questions during this period, which he answered. Mr. Woo alleges that as a result, his 10(b) Charter rights were violated.
[4] For the reasons that follow, I have concluded that the Crown’s “step six” application should be granted and I have therefore considered the unredacted ITO in assessing the validity of the search. Having done so, I have concluded that there were insufficient grounds to justify the warrant and the search therefore resulted in a violation of s. 8 of the Charter. I also find that there were violations of s. 10(b) of the Charter. The Charter violations were serious and had a significant impact on Mr. Woo. As a result, notwithstanding that much of the evidence that was obtained was reliable and indispensable to the Crown’s case and notwithstanding the gravely serious nature of the charges, I have concluded that the evidence must be excluded.
I. OVERVIEW OF THE INVESTIGATION
[5] In the latter half of 2014, the Toronto police received several Crime Stopper’s tips respecting an individual named Avery Civil. The tipster provided detailed information about Mr. Civil, including a physical description and details about his employment and other personal circumstances. He or she alleged that Mr. Civil was involved in drug trafficking and possessed firearms. The tipster also provided information about an association between Mr. Civil and an individual named Wayne Lam.
[6] In the middle of 2015, the police received information about Mr. Civil from a confidential informant (“CI #1”). CI #1 told the police that he or she knew Mr. Civil and provided information about him, including that he was involved in drug trafficking and possessed a firearm.
[7] Also in the middle of 2015, the police received information from a second confidential informant (“CI #2”) about the applicant. CI #2 described the applicant as a “major cocaine supplier and ‘back-end’” and stated that he had been in possession of and had distributed multiple kilograms of cocaine on a specific date in the recent past. CI #2 also stated that there was some association between the applicant and a person called Avery.
[8] Having received this information, the police began an investigation. In addition to the applicant and Mr. Civil, the police also investigated Kristen Ramos, Mr. Civil’s girlfriend, and Howard Mogent, whom the police believed to be an associate of Mr. Civil’s and involved in drug trafficking. Background checks revealed that the applicant had been charged with Liquor Licence Act offences on more than one occasion in 2013 in relation to the operation of after-hours clubs. On one occasion, he was charged together with Mr. Civil and on another, with Mr. Mogent. The police obtained security camera footage from the condominium building where the applicant resided in June 2015 which showed that he had met with both Mr. Civil and Mr. Mogent.
[9] The investigation ended on October 25, 2015 when search warrants were executed at the residences of all four targets. At the applicant’s residence, the police located two loaded handguns, four semi-automatic rifles, hundreds of rounds of ammunition, a number of gun parts, three sticks of dynamite, 218.52 grams of marijuana, a digital scale, and 500 ml of GHB. Controlled substances were found at Mr. Civil’s residence and prohibited and restricted firearms were found at Ms. Ramos’s. Nothing was found at Mr. Mogent’s residence.
II. SECTION 8 OF THE CHARTER
A. The “Step Six” Application
[10] The warrant to search the applicant’s residence was issued on October 24, 2015 by Zuker J. of the Ontario Court of Justice based on an ITO sworn by Det. Cst. Randeep Chhinzer. Because portions of the ITO referred to information from confidential sources, the six-step procedure set out in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 was followed. The Crown conceded at the outset that the redacted version of the ITO did not set out sufficient grounds to justify the issuance of the warrant. As a result, the Crown brought what is commonly referred to as a “step six” application, named for the sixth step in the procedure set out in Garofoli, which was described in that judgment as follows (at p. 1461):
If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
[11] Initially, the defence was provided with a heavily redacted version of the ITO, together with a proposed judicial summary prepared by the Crown summarizing the contents of the redacted portions. In accordance with the second and third step of the Garofoli procedure, I heard submissions from both counsel with respect to the necessity for the redactions and the adequacy of the judicial summary.
[12] At times during the hearing, Crown counsel and I communicated in writing where it was not possible for the Crown to make submissions supporting the redactions without divulging information that may have identified the confidential sources. Each time that occurred, the written communications were sealed and made part of the record. I am aware that some courts have instead heard ex parte submissions by the Crown in camera: e.g. R. v. Reid, 2017 ONSC 3234, at para. 12; R. v. Allen, [2017] O.J. No. 3707 (C.J.), at para. 12. In my view, while both procedures unavoidably compromise the appearance of fairness, resorting to written communications does so to a lesser extent as the accused is able to get a sense of at least the extent and general nature of the private communications between the judge and Crown counsel. For example, where written communications were exchanged in this case between the Crown and the court, the applicant knew which section of the ITO the exchanges were about and could see that the written communications never took more than a few minutes to produce.
[13] During the course of the submissions, I questioned the need for several of the redactions. In many cases, the Crown agreed to unredact the portion in question. On those occasions where the Crown did not, I ultimately accepted the Crown’s submissions about the need to maintain the redactions. I also made several suggestions about how greater detail could be provided in the proposed judicial summary. Again, Crown counsel agreed with most of my suggestions. Ultimately, the defence was provided with an ITO that contained substantially fewer redactions than it had and a judicial summary that contained greater detail. The defence nonetheless maintained that what was provided was insufficient to allow for a meaningful challenge. As I will explain later, I was satisfied that the summary was sufficient to allow a meaningful challenge.
[14] Because I have reviewed the unredacted ITO, I believe that it is necessary for me to refer to the redacted portions in these reasons in order to fully explain my conclusions. All such references are in the form of endnotes. A copy of these reasons with all of the endnotes redacted will be provided to the applicant and the public. An unredacted version will be sealed and placed in the court file so that it will be available to any reviewing court. An unredacted version will also be provided to Crown counsel.
B. The Evidentiary Record
(i) The Structure of the Information to Obtain
(a) Introduction and Background
[15] One ITO was used to obtain search warrants for the residences of Mr. Civil, Mr. Mogent and Ms. Ramos as well as the applicant. As a result, it contains information about all four targets. What follows is a summary of the information that relates to the applicant.
[16] The ITO has several appendices. Appendix A lists the items to be searched for, which were “cocaine, drug packaging, weighing equipment and/or paraphernalia and currency and/or debt lists” as well as various documents to show ownership or possession of the premises. Appendix B sets out the offence in relation to which the warrant was sought, which was possession of a Schedule I substance for the purpose of trafficking. Appendix C sets out the grounds relied on by the affiant. Appendix D relates to the installation of covert video surveillance equipment. Appendices E and F set out the information about the Crime Stoppers tips and the two confidential informers as well as information received from those sources.
[17] Appendix C begins by introducing the affiant, listing the targets, and outlining the various police databases that were relied on. There is then a section with the heading “Background and Investigative Queries on Persons of Interest”, which sets out information about the targets. With respect to the applicant, it states that he has no criminal record and that his driver’s licence listed a home address of XX Victoria Street in Toronto. Other information obtained by the police showed that in 2014, he lived in an apartment building at XX East Liberty Street in Toronto. Both Mr. Civil and Mr. Mogent had been seen at that building, but not together with the applicant. The police believed that at some time in 2015, the applicant began to reside in an apartment on the ninth floor of a condominium building at XXX King Street West. The ITO also outlines the 2013 Liquor Licence Act charges that associated the applicant with Mr. Civil and Mr. Mogent.
(b) The June 24, 2015 Interaction Between the Applicant and Mr. Civil
[18] The next section is entitled “Investigative Chronology” which describes surveillance that had been conducted on the targets. No surveillance had been conducted on the applicant. However, the police obtained security video footage of the common areas at XXX King Street West. On June 24, 2015, the video showed that at 12:30 a.m., a person said to be the applicant got into an elevator on the ninth floor. He got off on the first floor, where he met Mr. Civil in the lobby. Mr. Civil was carrying a satchel under his arm. At 12:31 a.m., both he and the applicant then entered the elevator and went down to level P4, where they got out of the elevator. At 12:35 a.m., they re-entered the elevator. The applicant was carrying what appeared to be several seat cushions. Mr. Civil still had his satchel, which the affiant said “appears to be full”. Mr. Civil got out on the first floor, where he “takes a moment to adjust himself and walks out of the front lobby while keeping his arm stiff on his satchel”. The applicant continued onto the ninth floor with the cushions.
(c) The June 26, 2015 Interaction Between the Applicant and Mr. Mogent
[19] The ITO states that on June 26, 2015, the security video showed that at 12:30 a.m., a person said to be the applicant entered the front lobby of XXX King Street West and spoke to a security guard. The guard then put one of the elevators on service. At 12:38 a.m., the applicant, Mr. Mogent and an unknown male entered the elevator. Mr. Mogent was carrying a satchel. They went to level P4 and got out of the elevator. At 12:46 a.m., the three men re-entered the elevator carrying a number of chairs. They took the elevator to the ground floor and took the chairs out of the elevator. At 12:48 a.m., they returned to P4 and loaded four large plastic boxes onto the elevator as well as some folding tables. They then went to the ground floor, where Mr. Mogent and the unknown male took the tables and one of the boxes out. The applicant continued to the ninth floor, where he unloaded the three remaining boxes.
(d) Later Observations of the Applicant
[20] Security camera footage from the same building from September and October 2015 was also obtained by the police. It showed that on September 11, 2015, the applicant entered unit 917 of the building using a key. He was carrying a bag at the time. He then left the unit about an hour later carrying the same bag. On September 16, 2015, he was seen leaving the same unit while carrying a bag and then returning later with a bag. On September 20, 2015, he was seen entering the unit using a key while carrying a duffle bag. On October 23, he was seen leaving the unit while carrying a package. The ITO does not appear to suggest that the police suspected that any of these bags or packages contained contraband. Rather, the information was included to confirm residency.
[21] Some portions of the “Investigative Chronology” are redacted because they outline information from a confidential source other than CI#1 and CI#2. None of that information relates to the applicant.
(e) “Reasonable Ground to Believe Items to be Seized Are in Said Places”
[22] The next section is entitled “Reasonable Ground to Believe Items to be Seized Are in Said Places”. With respect to the applicant, the affiant outlined information from the Crime Stoppers tips that related to Mr. Civil, most of which has been redacted.^1 He then stated (at p. 33):
The Crime Stopper Toronto REDACTED associate to Avery CIVIL is known as Wayne Lam. I believe this to be Wing “Wayne” Woo. All of which is described in Appendix E of this Application.
Appendix E outlines the information from the Crime Stoppers tip, CI#1 and CI#2. The judicial summary indicates that the Crime Stoppers tip includes information about Wayne Lam that is inconsistent with the applicant.^3
[23] The affiant then repeats the information respecting the 2013 Liquor Licence Act charges and the observations made on June 24, 2015, when the person said to be the applicant met with Mr. Civil, took the elevator to P4 and returned with some cushions. The affiant states that Mr. Civil was “holding onto his satchel bag tightly”. He also states: “I believe that this was a drug or firearm ‘pick-up’ between Avery Civil and Wing “Wayne” Woo”.
[24] The affiant also repeats the information respecting the observations made on June 26, 2015, when the applicant, Mr. Mogent and an unknown male were seen putting chairs, large plastic boxes and folding tables onto the elevator. Mr. Mogent and the unknown male left with the chairs, tables and one box while the applicant took the other three boxes to the ninth floor. The affiant states:
I believe this to be the large drug possession and distribution of multiple kilograms of cocaine that Confidential Source #2 stated, as described in Appendix E of this Application.
Appendix E states that on a specific date (described in the judicial summary as being in the middle of 2015), CI#2 provided the following information^4:
The Confidential Source knows of a major cocaine supplier and ‘back-end’ by the name of Wayne Woo.
[REDACTED].^5
[REDACTED] Wayne Woo was in possession and distributed multiple kilograms of cocaine.^6
Wayne Woo is the ‘right-hand man’ [REDACTED] ‘Avery’.^7
[25] The affiant then outlines the observations made in September and October 2015, which he believes “confirms the occupancy and residency” of the applicant at Unit 917 of XXX King Street West.
(f) “Storage Lockers”
[26] The next section of the ITO is entitled “Storage Lockers”. The affiant again describes the events of June 24 and June 26, when the applicant had been seen travelling to level P4 of the building and which the affiant believed involved guns or drugs being picked up. In the next paragraph, the affiant then states that he believes on reasonable grounds that storage lockers associated to Mr. Mogent, Mr. Civil and Ms. Ramos may also be used to store contraband, but that it was difficult to determine which locker was associated to which individual. The applicant is not mentioned in this paragraph.
[27] The next few sections contain general information about the investigation of sophisticated drug trafficking activities.
(g) “How Current Are the Grounds”
[28] The next section is entitled “How Current Are the Grounds”. The entirety of the contents of this section are as follows:
I understand from my training, and from the experience of the Integrated Gun & Gang Task Force officers and other officers who deal with armed offenders of which I am aware, that those who choose to arm themselves with illegal firearms consistently choose to do so because they perceive both the need to protect themselves and their property from other offenders, often in the course of drug dealing or other criminal offences, and the need to be violent or threaten violence, including for extortion, debt collection and robberies.
Illegal firearms and ammunition for such firearms can be expensive and relatively difficult to acquire, as there are relatively fewer dealers in illegal firearms compared to other contraband such as drugs. I believe that, as a general matter, those criminals who put out the effort and expense to arm themselves with illegal firearms do so because they are repeatedly involved in the types of criminal activities where they perceive a continuing need for a firearm. I understand that police observations are that illegal firearms and ammunition for those guns are treated and preserved and kept as relatively precious commodities. While police experience has shown that there are criminals who trade, loan, and borrow firearms, police experience also supports the observation that those criminals who go to the efforts and expense of acquiring access to an illegal firearm are seldom without one.
The warrant obtained in relation to the applicant’s residence was a CDSA warrant. The items to be searched for are listed as “cocaine, drug packaging, weighing equipment and/or paraphernalia and currency and/or debt lists”.
[29] The remainder of Appendix C deals with the need to execute the warrants at night and the need for a sealing order.
(h) Appendix E – Information From Confidential Sources
[30] Appendix E to the ITO summarizes the information received from the Crime Stoppers tip, CI#1 and CI#2. Only CI#2 provided information about the applicant. According to the judicial summary, the ITO discloses whether or not CI#2 was facing outstanding charges and whether or not he or she had a criminal record.^8 It also states whether or not CI#2 has been proven reliable in the past.^9 Although it is not stated in the judicial summary, the defence was advised that CI#2 was motived by self-interest.^10 The basis for his or her information is also described in the ITO.^11
(ii) Cross-Examination of the Affiant
(a) Areas in Which Cross-Examination Was Permitted
[31] The defence sought leave to cross-examine the affiant in a large number of areas. Much of the proposed cross-examination was, in my view, irrelevant. Other areas related to matters that were more properly the subject of argument. Counsel did not press any of these areas in argument.
[32] Ultimately, the Crown consented to and I permitted cross-examination in four areas: (1) the affiant’s basis for believing that the applicant and Wayne Lam were the same person; (2) the affiant’s basis for identifying the individual in the video taken at XXX King Street West as the applicant; (3) the affiant’s basis for concluding that the meetings with Mr. Civil and Mr. Mogent involved gun or drug pick-ups; and (4) the affiant’s basis for believing that cocaine would be found at the applicant’s residence at the time the warrant was sought. Counsel for the applicant ultimately chose not to cross-examine the affiant in relation to (4).
(b) Wayne Lam and Wayne Woo
[33] The affiant testified that after receiving information from CI#1 about Wayne Lam, he conducted background queries on Mr. Civil and came across the name Wayne Woo. As this was the only person named Wayne he came across, he began to suspect that the applicant and Wayne Lam were the same person:
…I then deduced that this in fact could possibly be Mr. Lam. As the investigation conducted [sic] and we began to do surveillance, Mr. Woo became more apparent and more evident in our surveillance. He started to become a key person of contact for Mr. Civil – and then furthering my belief that in fact Wayne Lam was Wayne Woo and that the information that was provided may have been done so in a way to create a barrier for Mr. Woo in terms of not having a criminal record. Again we conducted surveillance … that had to do with our person of interest number one, being … Mr. Civil, as well as with Mr. Woo. They had direct contact on at least one occasion and in which I believe that to be a drug or firearm pickup, and they had a context in the past through police records; and during our surveillance Mr. Woo was also with our third person of interest, Mr. Howard Mogent.
The affiant testified that it was not until he began preparing the ITO in October 2015 that he finally concluded that the applicant and Wayne Lam were the same person, although he had suspected it earlier.
[34] The affiant acknowledged that the Crime Stoppers tip had included information about Wayne Lam that was inconsistent with the applicant.^12 He testified that he could not recall whether he had done any searches of Wayne Lam on any police databases.
[35] After the search warrants were executed, the police discovered that Mr. Civil did in fact know a person named Wayne Lam. Mr. Lam had come to Mr. Civil’s apartment while the search was being conducted in order to take Mr. Civil’s dog. At the request of the defence, the officer-in-charge conducted a police database search on the name Wayne Lam. Among other things, the search revealed two occurrence reports prepared by the Repeat Offender Parole Enforcement unit of the Ontario Provincial Police. The first, dated May 13, 2014, indicates that Wayne Lam had been arrested in Toronto after having been released on parole in relation to a two-year sentence for a drug offence committed in Nova Scotia.^13 The second, dated July 7, 2014, related to a second arrest after Mr. Lam was released again in relation to the same sentence.
[36] It was an agreed fact that a Google search conducted on September 25, 2017 using the search terms “Wayne Lam Toronto” returned an article from August 26, 2011 on the website for the Truro Daily News entitled “Toronto man charged after cocaine seized at train station”. The article stated that a 31-year-old man from Toronto named Wayne Lam had been charged with possession of cocaine for the purpose of trafficking after a quantity of cocaine and cash had been seized at a train station in Truro, Nova Scotia.
(c) Identification of the Applicant on the Videos
[37] The affiant testified that he was able to identify the applicant on the videos by comparing them to a Ministry of Transportation driver’s licence photograph he had obtained. The height and weight appeared to correspond to the information on the licence.
(d) Gun or Drug Pick Ups
[38] The affiant testified that the reason he believed that Mr. Civil had picked up firearms or drugs was that Mr. Civil was “clenching very tightly to his satchel” when he returned to P4 and had been “walking very differently” when he had first entered the lobby. Another reason the affiant believed this to be a drug or gun pick up was that Mr. Civil had a criminal history involving drug possession.
[39] The affiant acknowledged that he never went to level P4 to make observations and was unable to say whether there were lockers there.
[40] The affiant testified that he believed there to be multiple kilograms in the plastic boxes the applicant moved together with Mr. Mogent:
… I also believe that to be drugs is that type of drugs, in that kilograms, they don’t sell very quickly unless you have buyers lined up. A lot of times they’re distributed on the consignment level. I don’t believe that Mr. Woo or Mr. Avery operate on that. I believe they deal larger than that. And in that I believe that first Tupperware container was being used for distribution and the other three are being stored for distribution at a later time.
The affiant testified that he had seen such boxes being used to store cocaine in other investigations. The ITO states that Mr. Mogent was observed engaging in what the police believed to be a hand-to-hand drug transaction on June 22, 2015.
C. Analysis
(i) Overview
[41] In reviewing the search warrant in this case, there are certain legal principles I must bear in mind. The first is that the warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established in the ITO: R. v. Crevier, 2015 ONCA 619, at para. 66. That standard is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168. “Reasonable and probable grounds” means a “credibly based probability” and does not mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, at paras. 127-128; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166.
[42] In making this assessment, I must keep in mind that I am not to substitute my view for that of the issuing justice. My task is to determine whether, based on the record that was before the issuing justice as amplified by the evidence adduced at the hearing of the application, the issuing justice could have issued the warrant. If I conclude that he could have, then I am not to interfere, even if I would have come to a different conclusion had I been the authorizing judge: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, at para. 51.
(ii) The Step-Six Application
[43] As discussed earlier, on a “step six” application, the Crown is entitled to have the reviewing judge review the unredacted ITO only if the judicial summary provides the applicant with a meaningful basis upon which to challenge the warrant. This was explained in Crevier, at paras. 83-84:
… [T]he trial judge must be satisfied that the summary includes as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained. This means the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips, as required by Debot. The context, however, will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege.
In carrying out this review, the judge should keep in mind that the right of full answer and defence includes the right to know the basis on which the search warrant was granted, as this is needed to challenge the admissibility of the seized evidence: see Durette, [1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469] at para. 41. The judicial summary should, therefore, provide the accused with sufficient information to evaluate whether the preconditions for issuing the warrant were met. Since confidential informers are involved, this would naturally include information that speaks to the three Debot factors: whether the information was compelling and corroborated, and whether the informer was credible.
The Court went to provide a non-exhaustive list of the types of information that the judicial summary may indicate is or is not present in the redacted portions of the ITO, such as the source of the informant’s knowledge, whether or not the informant has a criminal record, whether or not the informant has previously provided information to the police, and the informant’s motivation. Most of the types of information on that list are included in the judicial summary in this case.
[44] As was observed by Code J. in R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, there are ways that counsel can make meaningful submissions without being fully aware of the redacted information (at para. 17):
I also ruled that defence counsel could make his closing submissions in the alternative, and on the basis of hypotheticals, as counsel often do. For example, counsel could argue the sufficiency of the grounds on the hypothetical basis that the informant's means of knowledge was mere second-hand hearsay, gossip, or rumour. Then, in the alternative, counsel could argue the sufficiency of the grounds on the hypothetical basis that the informant's means of knowledge was detailed, first-hand observation. In that way, I would have the benefit of full argument on the s.8 issue without any violation of informant privilege.
Counsel for the applicant made such submissions in this case.
[45] While the “step six” procedure can never be a full substitute for submissions by counsel who is fully apprised of all of the relevant information, the final determination as to the validity of the warrant is made by an impartial arbiter who is. Furthermore, as observed in Crevier, the fact that counsel’s ability to challenge the ITO is compromised will be taken into account when assessing the ITO (at para. 88):
Once the reviewing judge has determined that the accused is sufficiently aware of the nature of some or all of the redacted information, he or she can then assess the adequacy of the ITO with the help of that information. This assessment must be made in context. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant's issuance. The judge will consider the extent to which the accused's inability to directly challenge the redacted portions should affect the weight to be given to those portions. The exercise here is somewhat akin to the admission of testimony that is not subject to complete and full cross-examination because of a witness’s intervening illness or death (R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.), at paras. 36-37). In those cases, the lack of testing by cross-examination is taken into account in weighing what is otherwise admissible evidence. Similarly, in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross-examination or otherwise.
I have taken these factors into account in this case.
[46] Based on the foregoing, I am satisfied that the judicial summary is sufficient to allow the applicant to mount a meaningful challenge to the sufficiency of the ITO. As a result, I have considered the full unredacted ITO.
(iii) The Debot Criteria
(a) Was the Information Credible?
[47] It is now well established that a determination of whether information from a confidential source provides the reasonable and probable grounds necessary to justify the issuance of the warrant requires a consideration of the “three Cs” discussed in Debot, that is, whether the tip was credible, whether it was compelling and whether it was corroborated. In making this assessment, the totality of the circumstances must be considered and weaknesses in one area may be compensated for by strength in the other areas.
[48] The credibility assessment relates to the trustworthiness of the source of the information in the ITO and will involve considerations such as the informer’s motivation, his or her criminal history and any past history in providing information to the police: Greaves-Bissesarsingh, at para. 35. No one factor is determinative: R. v. Basset, [2008] O.J. No. 3456 (S.C.J.), at para. 20. In this case, some factors favour credibility while others detract from it. However, after considering all of the factors, I am satisfied that there is some level of credibility to the information provided by CI#2.^14
(b) Was the Information Compelling?
[49] This aspect of the Debot analysis relates not to the source of the information, but rather the information itself and whether it has the characteristics that lead to the conclusion that it is reliable. A tip can be said to be compelling if it is detailed and based on first hand observations that are reasonably current: Greaves-Bissesarsingh, at para. 40. An example of a compelling tip can be found in R. v. Rocha, 2012 ONCA 707, at para. 28:
Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent’s brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip: R. v. Debot, at 1168-69.
See also R. v. Nguyen, 2015 ONCA 753, at para. 18; R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.), at para. 9-11.
[50] The information provided in this case was significantly less compelling than in Rocha. In particular, although CI#2 provided information that the applicant was in possession and distributed multiple kilograms of cocaine on a specific date, there were very few details respecting the circumstances in which he did so. Most significantly, the location at which the possession and distribution took place is not identified, nor are there any details of how the applicant distributed the cocaine or to whom. While it cannot be said that there was a complete absence of any compelling features, the information was, in my view, no more than minimally compelling.^15
(c) Was the Information Corroborated?
[51] As observed in Rocha, at para. 22, “[t]he police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required”. See also R. v. Caissey, 2008 SCC 65, aff’g 2007 ABCA 380, at paras. 22-24. On the other hand, meaningful corroboration requires more than confirmation of neutral or easily discernible facts, as was explained by Pomerance J. in R. v. Muller, 2011 ONSC 4892 (rev’d on other grounds 2014 ONCA 780), at para. 48:
The third inquiry is concerned with independent confirmation of the tipster’s information. This will often prove a powerful means of buttressing reliability. The analysis here is similar to that which applies to the testimony of accomplice witnesses. We look for confirmation because if the speaker is proven to be correct about certain details, it might be safe to rely on other items of information that he or she has provided. There must be a meaningful assessment of the quality of the apparent confirmation. Confirmation of neutral and readily discernable facts - such as the suspect’s address, and the type of car he drives - may not imbue a tip with the requisite degree of reliability. For example, in R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 38 O.R. (3d) 540, the police at the airport received an anonymous telephone call alleging that a passenger who was travelling the next day would be carrying cocaine with him. The police confirmed several details of the tip, including the passenger’s identity, his flight plans, and the fact that he was accompanied by a young boy. However, this did not satisfy the reasonable grounds standard, as the confirmed details did not relate to the alleged criminality. They concerned only innocent facts, which could have been known by any number of the suspect’s acquaintances. This is not to say that there must be actual confirmation of the very offence alleged. The police need not prove the crime before they investigate the tip. However, the confirmation must be capable of supporting the allegation of criminality: see e.g. Illinois v. Gates, 462 U.S. 213 (1983). There must be some reasonable basis for believing that the suspect is engaged in conduct that is distinguishable from that of a law abiding citizen.
Although Muller was reversed on other grounds, this aspect of the judgment was expressly approved of by the Court of Appeal: Muller (C.A.), at para. 40.
[52] In this case, the corroboration relied on by the affiant was based on the observations made on the building security video June 24 and 26, 2015, which the affiant believed were of the transfer of drugs or firearms. With respect to June 24, 2015, the applicant met with Mr. Civil in the lobby, went with him to level P4, and returned about four minutes later carrying cushions. Mr. Civil then left and the applicant took the cushions to his apartment. The affiant testified that he believed that Mr. Civil had picked up either drugs or firearms because Mr. Civil was “clenching very tightly to his satchel” when he left and was “walking very differently” than when he first arrived.
[53] The police did not conduct any live surveillance of the applicant and all of the observations are based on the video. I watched the video several times. Mr. Civil is carrying a small satchel on a strap which is over his left shoulder such that the bag is just above his right hip. Unless he is raising his arms, his right hand rests on top of the satchel. The camera angles make it difficult to see the satchel when Mr. Civil first gets into the elevator and then gets out at level P4. When he returns to the elevator from P4, the satchel is more visible. It appears to be full, but it is not at all clear that it was not full earlier. With respect to Mr. Civil “clenching” the satchel, he holds the bottom of it with his right hand for approximately 20 seconds after re-entering the elevator. He then lets it go before leaving the elevator and is not holding it as he leaves the building. I noticed no difference in the way he walks before and after visiting level P4.
[54] As noted earlier, the police do not appear to have bothered to go to level P4 to make observations, and the affiant was unable to say whether there were any lockers on that level. The purpose of the trip appears to have been to retrieve cushions from somewhere, possibly a locker but equally possibly a vehicle parked on level P4. There is nothing in the way that Mr. Civil walks or holds his bag that supports any other inference. In my view, the affiant’s belief that Mr. Civil was picking up drugs or a gun is entirely speculative.
[55] I also watched the June 26 video. In it, the applicant speaks to a security guard who puts the elevator on service. The applicant, Mr. Mogent and a third man travel to level P4 and leave the elevator. They return seven minutes later and load five dining chairs onto the elevator, as well as several long objects that appear to be table legs. They unload these items on the ground level and return to P4. They again exit the elevator and return two minutes later with four large plastic boxes of varying sizes and two table tops. They return to the ground level and unload the table tops and one of the plastic boxes. The applicant then goes by himself to the ninth floor, where he unloads the remaining three boxes. Almost immediately after, he returns to the ground floor and exits the elevator. The security guard then enters the elevator and appears to take if off service.
[56] The affiant’s conclusion that the plastic boxes contained drugs, as explained in his testimony, appears to be based on the fact that he had seen similar boxes used to store cocaine in during other investigations and his belief that the applicant and Mr. Mogent were large-scale drug traffickers. This reasoning is circular. If the conclusion that the boxes contained cocaine rests on the premise that the applicant is a drug trafficker, then it cannot corroborate CI#2’s information that the applicant is a drug trafficker. Absent that premise, there is no basis to conclude that the boxes contained cocaine. The fact that they were being moved together with tables and chairs suggests that they were related to moving the contents of somebody’s home.^16 At its highest, this evidence shows only an association between the applicant and Mr. Mogent.
[57] The only significant part of the information provided by CI#2 that is confirmed is that the applicant knew Mr. Civil. However, the investigation revealed that they had known each other for at least two years and may have resided in the same building, making it likely that their association was “readily discernible” by any number of people.
[58] If there was any basis for the affiant’s conclusion that the applicant and Wayne Lam were the same person, then information in the Crime Stopper’s tip could be confirmatory of CI#2’s information. However, there was no such basis. There was information in the Crime Stopper’s tip about Wayne Lam that was inconsistent with what the police knew about the applicant. Furthermore, I have considerable difficulty accepting the affiant’s contention that he could not recall whether he had conducted a background check on Wayne Lam. Background checks were conducted on numerous other individuals. I find it difficult to accept that faced with information from the Crime Stoppers tip of an association between Mr. Civil and Wayne Lam, the affiant made absolutely no effort to discover information about Mr. Lam.^17 When the officer-in-charge conducted the searches, he discovered information confirming not only that Mr. Lam exists, but that he has a history of cocaine trafficking. While these searches were conducted in 2017, the information about Mr. Lam was from 2014, well before the ITO was sworn, and it is reasonable to infer that it would have been available had searches been conducted in the latter part of 2015.
[59] Based on the foregoing, I conclude that there was only minimal corroboration of the information from CI#2.
(iv) Currency
[60] In addition to being sufficiently reliable to establish reasonable and probable grounds that the target committed an offence, information relied upon in an ITO must establish that there is reason to believe that evidence will be found at the time the warrant is executed. This was explained by Trotter J. (as he then was) in R. v. Chen, 2007 ONCJ 177, at para. 18:
In determining whether reasonable grounds exist to search a location, the currency or freshness of the evidence is important. Numerous courts have held that an Information to Obtain a search warrant must contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location, and not that it is merely possible that they are still there: Regina v. Turcotte (1988), 1987 CanLII 984 (SK CA), 39 C.C.C. (3d) 193 (Sask. C.A.), Regina v. Adams, 2004 CanLII 12093 (NL PC), [2004] N.J. No. 105 (Prov. Ct.). and Regina v. Jamieson (1989), 1989 CanLII 202 (NS CA), 48 C.C.C. (3d) 287 (N.S.C.A.).
See also R. v. Herdsman, 2012 ONCJ 739, at paras. 67-70; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 20 O.R. (3d) 468 (Gen. Div.), at paras. 41-42.
[61] In this case, the judicial summary states that the police received “recent” information from CI#2 in the middle of 2015.^18 The observations of the applicant interacting with Mr. Civil and Mr. Mogent were made at the end of June 2015. The ITO was sworn on October 24, 2015, approximately four months later. While observations had been made of the applicant in September and October, they served only to confirm that he continued to reside at the address. Given the length of time between when the information was received and when the ITO was sworn, I have significant concerns about the currency of the information. My concerns relate to both the facial and sub-facial validity of the ITO.
[62] With respect to the facial validity, on the first page of the ITO there is a pre-printed section that states that “[t]he informant says that he/she has reasonable and probable grounds to believe and does believe that there is a controlled substance [or related evidence] … and that said things, or some part of them, are in the…”, followed by a line on which the applicant’s address is written. This is the only portion of the ITO in which the affiant asserts that he believes that drugs will be found in the applicant’s residence. However, nowhere in the ITO does the affiant explain why he believes that cocaine will be found in the applicant’s residence at the end of October. While there is a section in the ITO entitled “How Current Are the Grounds”, it relates only to firearms, which were not among the items to be searched for, and makes no mention of drugs.
[63] Crown counsel submits that on this issue, I should consider the affiant’s testimony on the application that he believed there to be cocaine in the plastic boxes and “that quantity of drugs, in that kilograms, they don’t sell very quickly unless you have buyers lined up.” There are three reasons why I cannot accept that submission.
[64] First, for the reasons outlined earlier, it is my view that the affiant’s conclusion that the plastic boxes contained cocaine was speculative, particularly where the boxes were being moved together with tables and chairs.
[65] Second, the affiant’s opinion that the drugs he believed to be in the plastic boxes would not sell quickly unless there were buyers lined up did not appear in the ITO. The existence of the requisite reasonable and probable grounds must be established prior to the issuance of the warrant, not after, for the reasons explained in Araujo, at para. 59:
When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof. The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests, amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. [Citations omitted].
[66] The Court recognized an exception to this general principle where amplification is used to correct “minor, technical errors” in the drafting of the ITO: Araujo, at para. 59; Morelli, at para. 42. However, in my view the absence of grounds establishing one of the statutory prerequisites for the issuance of the warrant cannot be described as a “minor, technical error”. To allow the affiant to now fill that gap would circumvent the prior authorization requirement.
[67] The third reason I cannot accept the Crown’s submission is that on the affiant’s own evidence, he believed that the drugs were to be distributed. As a matter of common sense, a drug trafficker’s purpose in possessing drugs is not to retain them but, rather, to sell them for profit, presumably as quickly as possible. The gap in time in this case was even lengthier than in R. v. Berube, 2014 ONCJ 628, where a one-month gap was found to be significant (at para. 40):
The CI’s debriefing is sometime in the month of July 2012. The ITO in which the affiant asserts “there are grounds to believe the items to be searched for are in the place to be searched” is sworn on July 30th of the same month -- anytime within one to thirty days of the affiant’s meeting with the CI. Given the mobile, commercial and readily disposable nature of the targeted drugs, given the absence of any investigatory confirmation of trafficking or any other criminality, and given the three-year hiatus since the last allegation of drug-related misconduct (the status of which remained unknown or, at minimum, unreported), there are no reasonable grounds to infer the currency of the substance of the CI's claim (regular, and therefore present, trafficking at the applicant's house) or, as a result, draw the critical circumstantial inference (that the applicant presently maintains a stash of methamphetamine at that house from which he services his customers).
See also Chen, at para. 19; R. v. Henry, 2012 ONSC 251, at para. 39; R. v. Dhillon, 2010 ONCA 582, at paras. 29-30. My concerns are heightened by the fact that according to CI#2, the cocaine possessed by the applicant had been distributed.
[68] Crown counsel also submits that CI#2’s assertion that the applicant was a “major cocaine supplier” suggests that he was engaged in trafficking on an ongoing basis. Once again, however, this information is absent from the ITO.
[69] In any event, as outlined earlier, the information from CI#2 did not indicate where the applicant had possessed and distributed cocaine. No surveillance had been conducted on the applicant and the police had no knowledge as to what other locations, if any, he had access to.
(v) Conclusion Respecting the Sufficiency of the Grounds
[70] As observed by Nordheimer J. (as he then was) in R. v. Morse, [2006] O.J. No. 4396 (S.C.J.), at para. 32, “[t]he test for a search warrant is, of course, a credibly based probability, not a credibly based possibility.” In this case, while the information from the confidential source was somewhat credible, it was only minimally compelling and minimally corroborated. Furthermore, the confidential source did not provide any information that cocaine was likely to be found in the applicant’s residence and the ITO says nothing about why it would be expected to be found there four months after the source provided information to the police. Having carefully considered the entire ITO together with the amplification evidence, I have concluded that there was no basis upon which a conclusion could be reached that there was a credibly based probability that cocaine or other evidence would be in the applicant’s residence. At their highest, the grounds established only that the applicant had been in possession of and had distributed cocaine at some unspecified location in the middle of 2015.
[71] Based on the foregoing, I conclude that the warrant was not validly issued. Consequently, the search of the applicant’s residence violated his s. 8 Charter rights.
III. SECTION 10(b) OF THE CHARTER
A. Evidence
(i) The Executions of the Search Warrants
[72] The police decided to execute a number of search warrants on the evening of October 25, 2015. At approximately 7:30 p.m., they went to Mr. Civil’s residence, arrested him, and searched his premises. At approximately 8:10 p.m., they went to the applicant’s residence, arrested him and searched his premises. At some time after that (the record is unclear in this regard), the police attended the residence of Ms. Ramos. Finally, at 12:51 a.m. on October 26, they attended the residence of Mr. Mogent, arrested him, and searched his premises.
(ii) The Applicant’s Arrest and Timing of the Right to Counsel
[73] Det. Michael Balint of the Gun and Gang Task Force, who had been a police officer for 22 years, was in charge of the investigation. He testified that he obtained a key to the applicant’s apartment from the building management and used it to let himself and the other officers into the apartment. He testified that as he entered, he said “Toronto police search warrant, let me see your hands”. The applicant was sitting on the couch as the police entered.
[74] According to Det. Balint, the applicant was immediately handcuffed and the police walked through the apartment to ensure that nobody else was there. The applicant was then advised that he was under arrest for possession of a narcotic for the purpose of trafficking and the search warrant was shown to him. He was advised of his right to counsel, the availability of legal aid, and the 1-800 number which he could call to speak to duty counsel. The applicant said that he understood. Det. Balint then asked the applicant if he wished to call a lawyer, to which the response was “I don’t have one”. Det. Balint then re-advised him of the availability of duty counsel and cautioned him. The applicant indicated that he understood the caution. It does not appear that the applicant was asked whether he wished to speak to counsel after being re-advised of the availability of legal aid.
[75] Det. Balint testified that the following exchange then took place between himself, the applicant, and another officer, Det. Haines:
WOO: Are you here for drugs?
BALINT: Yes. Are there any?
WOO: No, none.
BALINT: How about weapons?
WOO: Yes.
BALINT: What kind of weapons?
WOO: Just weapons.
HAINES: Are there guns?
WOO: Yeah.
HAINES: What kind of guns?
WOO: Bad ones.
HAINES: What do you mean, like AK-47?
WOO: Yeah.
[76] Soon after, the police located a firearm. According to Det. Balint, he then re-arrested the applicant for possession of a loaded firearm and again advised him of his right to counsel. When asked whether he wanted to call a lawyer, the applicant said “I don’t have one but maybe I should.”
[77] The applicant testified to a different version of events. According to him, he was sitting on his couch when the police suddenly entered his apartment. Det. Balint said “Police, don’t move”, following which the applicant was handcuffed. Det. Balint then asked “Where is the cocaine and heroin? Where do you keep your cash?” The applicant asked him if he was there for drugs and Det. Balint replied that he was. One of the officers then asked if there were any weapons there. The applicant did not immediately answer. An officer then said “You might as well tell us where it is. We’re going to tear the place apart anyway.” The applicant co-operated with the police after that.
[78] According to the applicant, at no time did Det. Balint or any other police officer advise him of his right to counsel while at the apartment. He was first advised of his right to counsel after he was brought to the police station. He was not given an opportunity to speak to counsel until several hours later. The applicant acknowledged in cross-examination that having the police enter his apartment suddenly was shocking.
(iii) The Reasons for Delaying Implementation of the Right to Counsel
[79] Det. Balint told the applicant that he would be put in touch with a lawyer once he was taken to the police station. He testified that he did not intend to allow the applicant to speak to a lawyer until all of the warrants had been executed because “the element of surprise is a great tool for us”. He believed that if he allowed the applicant to speak to a lawyer, the fact that warrants were being executed may become known to the targets who had not yet been arrested.
[80] Det. Balint acknowledged that the questions he had put to the applicant about whether there were drugs and guns in the apartment were related to the essential elements of the offences he was investigating. During his cross-examination, the following exchange took place:
Q. And so you are questioning him about an essential element of the offence knowing at the same time that you are not going to allow him to speak to counsel, correct?
A. He’s been explained his rights to counsel. He understands. He understands the caution. Right?
Q. That’s a yes, then, to what I put to you?
A. I’m going to talk to people, counsel, and you’re correct. I was not going to allow him to make a phone call until my investigation was complete for the day, but yes, I talk to people after I give them the rights to counsel. It’s natural.
According to Det. Balint, “every single time” he had executed a search warrant, he spoke to the individuals he was investigating after advising them of their right to counsel.
(iv) Implementation of the Right to Counsel
[81] The applicant was taken to the police station and arrived there at 9:47 p.m. He was searched and placed into a cell. Det. Balint, who had attended the search of Mr. Mogent’s home, arrived at the police station at 2:00 a.m. to participate in a debriefing. Det. Balint agreed that by this point, he no longer had any concerns about the integrity of the searches. After the debriefing, Det. Balint photographed some of the items that had been seized and did some paperwork, including writing out the charges that were to be laid against the individuals who had been arrested. He testified that “there would have been officers detailed to speak to Mr. Woo and allow him to make a phone call”, although he did not remember which officers were assigned that task. Det. Balint did not know if or when the applicant was given an opportunity to speak to counsel.
[82] The record is unclear as to exactly when the applicant was given an opportunity to speak to counsel, but counsel agree that it was some around 6:50 a.m.
B. Analysis
(i) Delay in the Informational Component
[83] I accept that Det. Balint advised the applicant of his right to counsel when he first arrested him and again after he re-arrested him for the firearms offence. While I do not find that the applicant was trying to mislead the court (nor did Crown counsel suggest that he was), his memory on this issue is not reliable. There was no s. 10(b) breach arising from a delay in advising the applicant of his right counsel.
(ii) Lack of Opportunity to Invoke the Right to Counsel
[84] The police have a duty to assist a detainee in implementing his right to counsel, but only if the detainee invokes the right: R. v. Owens, 2015 ONCA 652, at paras. 22-26; R. v. Fuller, 2012 ONCA 565, at para. 32. The onus is on the applicant to establish that he “asked for the right but it was denied or he was denied any opportunity to even ask for it”: R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, at p. 540; Owens, at para. 26. The latter situation occurred in this case.
[85] When first advised of his right to counsel, the applicant responded “I don’t have one”. Det. Balint then re-advised the applicant of the availability of duty counsel. It was quite proper for him to do so, as the applicant’s response suggested that he had not understood that immediate free advice was available to him. The applicant then asked “Are you here for drugs?”, after which Det. Balint and then Det. Haines began to question him without asking him whether he wished to speak to a lawyer. In these circumstances, I find that the applicant was not provided with an opportunity to invoke his right to counsel once the availability of duty counsel was re-explained to him. When given an opportunity to do so after being re-advised of his right to counsel after the discovery of the firearm, he clearly invoked his right. Crown counsel did not suggest that there was no invocation in this case.
(iii) Delay in the Implementational Component
[86] Crown counsel concedes that the applicant ought to have been provided with an opportunity to speak to counsel as soon as he was brought to the police station and the fact that he was not resulted in a violation of s. 10(b) of the Charter. The concession is well-founded. It is well established that the right to counsel can only be suspended in exigent circumstances, as was made clear in R. v. Suberu, 2009 SCC 33, at para. 42:
In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[87] In particular, the police were not entitled to delay implementation of the right to counsel on the basis of a speculative concern that allowing the applicant to speak to counsel may somehow result in the other targets learning about the impending warrants and destroying evidence. In this regard, I adopt what was said by DiLuca J. in R. v. Wu, 2017 ONSC 1003, at para. 91:
The concern raised regarding Duty Counsel inadvertently “tipping off” associates of the accused resulting in the destruction of evidence is problematic. While it is true that as a result of a call from Duty Counsel, an associate of a detainee may learn of a detainee's arrest and may take steps to destroy evidence, this concern is often general or categorical in nature and therefore, in the absence of case specific evidence, adds little to the justification for a suspension of s. 10(b). If it were otherwise, this concern would routinely justify the suspension of s. 10(b) rights.
See also R. v. Soto, a 2010 ONSC 1734, at para. 71; R. v. Patterson, 2006 BCCA 24, at para 41-42.
[88] In any event, by 12:51 a.m. the police had secured all of the premises they intended to search and the applicant was still not provided with an opportunity to speak to counsel until over five hours later.
(iv) The Duty to “Hold Off”
[89] It has been the law for three decades that the police have a “duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has a reasonable opportunity to retain and instruct counsel”: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, at p. 1242; R. v. Sinclair, 2010 SCC 35, at para. 27. The police did not do so in this case. During his testimony on the application, Det. Balint freely acknowledged that he usually asked detainees questions after they had been advised of their right to counsel because to do so is “natural”. The applicant’s question “Are you here for drugs?” did not amount to a waiver of s. 10(b), nor does the Crown suggest that it did. All of the applicant’s statements after that point were in response to direct questions by the police officers. I therefore find that the failure of the police to hold off questioning constituted a second breach of s. 10(b).
IV. SECTION 24(2) OF THE CHARTER
A. Overview
[90] The applicant seeks as a remedy for the Charter infringements exclusion of both the items seized during the search of his home as well as the utterances he made to the police while the search was ongoing. The Crown resists exclusion of both categories of evidence.
[91] Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. That determination requires the consideration of three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, at para. 71; Morelli, at para. 78.
[92] In considering these factors, I must remind myself that the focus here must be on the long-term and prospective effect of the remedy or lack of remedy, as was made clear in Grant, at paras. 68-70:
The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. 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.
Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
B. The Seriousness of the Violations
(i) Section 8
[93] Under this heading, the court must locate the conduct of the police on a “continuum of misconduct” or “spectrum of seriousness”: Grant, at para. 74; Rocha, at para. 15; R. v. Blake, 2010 ONCA 1, at para. 23. At one end of the continuum are minor, inadvertent or technical violations. At the other are breaches that are intentional or which result from a flagrant disregard for the Charter.
[94] This is not a case of flagrant disregard for the Charter. As in Morelli, at para. 99, “the search and seizure were unwarranted, but not warrantless”, and the fact that the police obtained a warrant is a factor that favours inclusion: Rocha, at para. 28.
[95] But nor was this a case of a minor, inadvertent or technical breach. As outlined earlier, there were significant deficiencies in the ITO. The police sought permission to search an individual’s private residence without setting out grounds for expecting to find evidence there. When the affiant did turn his mind to the issue of the currency of the grounds in the section entitled “How Current Are the Grounds”, he provided a detailed explanation about firearms, which he was not seeking a warrant to search for, and said nothing about cocaine, which was the evidence he was seeking permission to look for at the applicant’s home.
[96] While these deficiencies could be characterized as merely sloppiness, I believe that it is more likely that they were the result of the fact that the search of the applicant’s home appears to have been a decision that was make very late in the investigation and with little forethought. I draw this conclusion for a few reasons. First, while the other targets were subject to surveillance, no surveillance appears to have been done on the applicant. Second, the ITO, and in particular the repeated references to firearms, appears to have been drafted with a view to obtaining warrants to search the homes of the other targets. Finally, during the affiant’s testimony, he acknowledged that it was not until he began drafting the ITO that he finally concluded that the applicant and Wayne Lam were the same person. While the affiant did not set out to violate the applicant’s Charter rights, he demonstrated a “casual attitude” towards the protection of those rights: R. v. Côté, 2011 SCC 46, at para. 71. In any event, even if the affiant was merely careless, this nonetheless renders the breach serious and precludes a finding that the police acted in good faith: R. v. Paterson, 2017 SCC 15, at para. 44; Rocha, at para. 36.
[97] I am also troubled by the affiant’s apparent willingness to exaggerate and draw unwarranted conclusions. He did so on at least three occasions. First, his assertion that Wayne Lam and the applicant were the same person was not only made without any basis, it was contradicted by the information provided in the Crime Stoppers tip. As noted earlier, I have considerable difficulty in accepting the affiant’s claim that he could not recall whether he conducted any background checks on Wayne Lam. I also have difficulty with the affiant’s explanation for why he thought that the applicant was Wayne Lam. He testified that after the police began to do surveillance, the applicant “became more apparent and more evidence in our surveillance” and that he “started to become a key person of contact for Mr. Civil”. I heard no evidence of the applicant ever being observed during surveillance. The only time he was ever in contact with Mr. Civil during the investigation was when they took cushions into the elevator on June 24, 2015.
[98] Second, the affiant’s purported belief that Mr. Civil had picked up firearms or drugs from the applicant on June 24, 2015 was unsupported. During his testimony, he claimed that he drew this conclusion because of the way Mr. Civil held his satchel and because the way he walked before and after visiting level P4 was markedly different. As outlined earlier, I viewed the video several times and saw nothing unusual about how Mr. Civil walked or held his satchel. Finally, the affiant’s purported belief that the plastic boxes being moved by the applicant on June 26, 2015 contained multiple kilograms of cocaine was similarly unsupported.
[99] Police officers seeking judicial authorization for a search have an obligation to “take care not to … exaggerate the information upon which they rely to establish reasonable and probable grounds” or to make inaccurate assertions: Morelli, at para. 102; R. v. Boussoulas, 2014 ONSC 5542, at para. 12. The affiant failed to fulfill these obligations.
[100] For the foregoing reasons, I find the breach of the applicant’s s. 8 Charter rights to be on the more serious end of the continuum.
(ii) Section 10(b)
[101] The section 10(b) breaches were even more serious than those involving s. 8. With respect to the implementational component, the police deliberately prevented the applicant from having contact with counsel. While Det. Balint claimed he did so based on some concern for the integrity of the investigation, the caselaw respecting the narrow circumstances in which s. 10(b) can be justifiably suspended is very clear. Those circumstances did not exist in this case. In any event, even well after all of the warrants were executed, no effort was made to ensure that the applicant was given an opportunity to consult counsel. During his testimony on the application, not only was Det. Balint untroubled by the fact that the applicant’s s. 10(b) rights were violated, he smirked at defence counsel’s suggestion that he could have arranged to put the applicant in touch with counsel after his return to the police station and suggested that he was far too busy doing other things, such as photographing exhibits.
[102] Perhaps more troubling was the fact that Det. Balint, a police officer with 22 years of experience, appeared to be ignorant of the duty to hold off questioning a detainee until he has been given an opportunity to speak to counsel, despite Manninen having been decided 30 years ago. Ignorance of Charter standards does not equate to good faith: R. v. Gonzalez, 2017 ONCA 543 at para. 158. My overall impression of Det. Balint is that he either does not appreciate or does not care about the importance of s. 10(b) of the Charter.
[103] The fact that there were multiple Charter breaches tends to make both the s. 8 and the s. 10(b) breaches more serious: R. v. Davidson, 2017 ONCA 257, at para. 48.
C. The Impact of the Breach
(i) Section 8
[104] The search in this case was of the applicant’s dwelling and “[t]here is no place on earth where persons can have a greater expectation of privacy”: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, at para. 140; Paterson, at paras. 46, 50. The Crown accepts that if the search violated s. 8, the impact of the breach was significant.
(ii) Section 10(b)
[105] In R. v. Pino, 2016 ONCA 389, which also involved a delay in implementation of the right to counsel, the Court stated (at para. 105):
These breaches were neither technical nor fleeting. Being forced to sit alone in a jail cell for over five hours after her arrest without access to counsel undermined the very interests s. 10(b) seeks to protect: correct information about the right to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world. This second Grant factor also favours exclusion.
I draw a similar conclusion in this case, where the delay was even longer.
D. Society’s Interest in an Adjudication on the Merits
[106] The items seized from the applicant’s residence constitute reliable evidence that is very important or even indispensable to the Crown’s case. This factor favours admission. While the applicant’s utterances are not in the same category, there is no reason in the circumstances to doubt their reliability, although they are likely far less important to the Crown’s case: R. v. Fountain, 2017 ONCA 596, at para. 70.
E. Balancing
[107] The applicant is charged with very serious offences. It is alleged that he was in possession of a veritable arsenal of extremely dangerous weapons which were manufactured for the sole purpose of killing or seriously injuring human beings. Although I have not heard all of the evidence, it would appear that the Crown has a strong case and the applicant is likely to be convicted and sentenced to a very significant term of imprisonment. To exclude the evidence and allow the applicant to walk away is, at first glance, an unpalatable result.
[108] However, the appellate courts have repeatedly cautioned trial courts engaged in s. 24(2) analyses not to be overwhelmed by the seriousness of the offence. As was observed by the Supreme Court of Canada in Grant and more recently in Paterson, the seriousness of the offence can “cut both ways” because “while 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”: Grant, at para. 84; Paterson, at para. 55.
[109] In this case, the first two Grant factors favour admission while the third favours exclusion. In R. v. McGuffie, 2016 ONCA 365, the Court stated (at para. 63):
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].
See also Fountain, at para. 69.
[110] I have no great enthusiasm for excluding the evidence in this case. However, in my view that is what must occur in order to preserve the long-term reputation of the administration of justice.
V. DISPOSITION
[111] For the foregoing reasons, the application is granted and the items seized during the search of the applicant’s home on October 25, 2015 as well as the statements he made while the search was ongoing are excluded from evidence.
[112] I would be remiss if I did not comment on the manner in which this application was litigated. Both counsel were well-prepared, made helpful written and oral submissions, made reasonable concessions where appropriate while forcefully advancing their respective positions, and conducted themselves with civility throughout. Their efforts are greatly appreciated.
Justice P.A. Schreck
Released: December 21, 2017
ENDNOTES
CITATION: R. v. Woo, 2017 ONSC 7655
COURT FILE NO.: CR-17-10000-401
DATE: 20171221
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
WING WAYNE WOO Applicant
RULING
P.A. Schreck J.
Released: December 21, 2017