REASONS FOR DECISION

(Application to Exclude Evidence: Search and Seizure)

A. INTRODUCTION

[1] In the early morning hours of March 21, 2015, 17-year-old Trevor Seraphine was approaching an apartment building in Toronto’s east end, where he had arranged to visit a friend. Previously, he had been visiting another friend at a different building within the same complex, but now he was on his way to 44 Willowridge Road. As he drew near to the front entrance, two men ran towards him from the side of the building and one of them started shooting at him. Trevor ran to the building and made it to the front entrance. However, he was then trapped in the foyer as the doors to the elevator lobby were locked. Not being a resident, he did not have a key. The gunman continued to shoot at him through the glass doors of the lobby entrance. The two assailants then entered the small foyer. As Trevor cowered in the corner, the gunman shot him a final time. This was the sixth shot fired, and the first one to actually hit Trevor. That shot injured Trevor, but it was not fatal. However, the second assailant then pulled a knife and stabbed Trevor a number of times, including a fatal wound through the heart. Both assailants fled. Trevor staggered outside, but collapsed a short distance away. A number of people heard the shots and called 911. Although emergency personnel arrived quickly, Trevor was already dead.

[2] Security surveillance cameras captured a portion of the shooting outside the building and the entire attack in the foyer. However, the faces of the attackers are never seen on the video.

[3] Curtis Murray and Corey Murray are charged with first degree murder in connection with this killing. They are brothers. The Crown’s theory is that this attack was part of a chain of escalating confrontations between Curtis Murray and a group of men associated with 44 Willowridge Road. Trevor did not live there and had nothing to do with the group involved in this dispute with Curtis Murray. The Crown contends that Trevor was targeted by mistake simply, and tragically, because he was in the wrong place at the wrong time.

[4] As noted, the faces of the two assailants cannot be seen on the video footage of the murder. The Crown seeks to prove that the Murray brothers were the perpetrators, at least in part, by a painstaking analysis of the clothing and shoes worn by the assailants and connecting each of those items to the two brothers. There is also video footage of the two accused in the days and hours leading up to the murder, through which the Crown seeks to establish, inter alia, motive and opportunity, as well as identifying some of the same clothing worn by two men who committed the murder.

B. NATURE OF THIS APPLICATION

[5] Warrants were issued for the arrest of Curtis and Corey Murray. On March 30, 2015, police released this information to the media, along with particulars of the murder and the names and photographs of the Murray brothers. Curtis Murray was arrested later that same day, March 30, 2015. Corey Murray could not be found in his usual place of residence. The police received information that Corey Murray was staying in Room 227 of a motel on Dundas Street in Mississauga. On April 3, 2015, officers attended at that address and knocked on the door, which was answered by a woman named Jenelle Small-Vincent. They saw a man lying on the bed, who they identified as Corey Murray, and he was immediately arrested. Ms. Small-Vincent was also arrested on a charge of being an accessory after the fact. Although the room was not registered in her name, Ms. Small-Vincent had been living there for approximately one year.

[6] The officers did not immediately search the room. After arresting the occupants, they sealed the room and guarded it until they could obtain a search warrant. Before applying for the warrant, they took a formal statement from Ms. Small-Vincent, and she was then released without charge.

[7] The search warrant was granted at 9:00 p.m. on April 3, 2015 and was executed shortly thereafter. A number of items were seized, including a cell phone belonging to Corey Murray, a pair of running shoes, a pair of beige pants, and a pair of blue boxer underwear. The Crown alleges that Corey Murray was wearing the seized shoes and clothing items while committing the murder.

[8] There is no challenge to the information to obtain the warrant. Rather, counsel for Mr. Murray argues that: (1) the information to obtain the search warrant misrepresented the statement of Jenelle Small-Vincent; (2) the list of items to be searched for was overly broad; (3) in addition to items listed in the warrant, the police seized other items without proper grounds; and (4) the police failed to make a report to the justice of the peace as to the items seized “as soon as is practicable” as required by the Criminal Code.[^1]

[9] The Crown challenges the standing of Corey Murray to object to the search of the motel room. Even if Mr. Murray has standing, the Crown argues that there was no breach of his Charter[^2] rights as a result of the search and alternatively, that the evidence is admissible in any event under s. 24(2) of the Charter.

[10] I dismissed this application prior to the commencement of the trial, indicating that written reasons for my decision would follow. In my view, Corey Murray lacks standing to bring this application. Even if he did have standing, I would have found the search to be lawful. Further, even if there had been a Charter breach, I would admit the evidence under s. 24(2) of the Charter. My detailed reasons follow.

C. STANDING

[11] Jenelle Small-Vincent told the police that Corey Murray simply showed up at her motel room on either Tuesday, March 31 or Wednesday April 1, 2015. She invited him in. Ms. Small-Vincent knew Corey Murray because he was a friend of her boyfriend. She and Mr. Murray were not close friends. They were not in a romantic relationship of any kind. She said Mr. Murray told her that he was waiting for someone to pick him up. However, nobody arrived to get him and he spent the night there. After that, Mr. Murray simply did not leave. Ms. Small-Vincent did not have any conversation with him about when he was leaving and he did not raise it with her. He was not registered as a guest with the motel and was never given a key. For the two or three days he was there, he stayed inside the room. To Ms. Small-Vincent’s knowledge, he never left the room during that whole time. However, she left a number of times and she could not say what he was doing in her absence. One evening he had a female friend drop by for a visit. Sometimes, he spoke on his cell phone, but he went into the washroom with the phone when he did that, so she did not hear what was discussed.

[12] Ms. Small-Vincent told the police that when Mr. Murray arrived, he was wearing blue jeans, a yellow jacket, a white shirt, a black and white baseball cap, and black and yellow running shoes. She also said he was carrying a white plastic bag, like you would get from a grocery store. She could see that there were shoes in the bag and thought there might be something else, perhaps a shirt, but was not sure. She also saw Mr. Corey using a white Blackberry cell phone, which she described as being a newer model and larger than hers.

[13] The defence asserts that Corey Murray had a reasonable expectation of privacy in the hotel room and therefore has standing under s. 8 of the Charter to challenge the validity of the search. The onus is on the defence to establish the reasonable expectation of privacy on a balance or probabilities.[^3]

[14] To meet the test for standing, the accused must show: (1) that he had a subjective expectation of privacy; and (2) that his subjective expectation was a reasonable one in all the circumstances.

[15] The subjective expectation of privacy is not a “high hurdle” and requires only a “modest evidentiary foundation.” It can be presumed or inferred from the surrounding circumstances.[^4]

[16] I accept that Corey Murray had a subjective expectation of privacy in that motel room. Given the timing of his arrival and his conduct while there, it is a reasonable inference that he was hiding out from the police and believed he was safe there. He had the permission, or at least the acquiescence of Ms. Smith-Vincent to be there. Those circumstances, in my view, are sufficient to clear this low threshold.

[17] However, I do not agree that Mr. Murray’s expectation was a reasonable one.

[18] In my view, the decision of the Supreme Court of Canada in R. v. Edwards[^5] is directly relevant and dispositive. In that case, the Court held that Mr. Edwards did not have a reasonable expectation of privacy that would give him standing to challenge the constitutionality of a police search of his girlfriend’s apartment. He was there only as a visitor and occasionally stayed overnight. He kept some personal belongings there, but he did not have a key and did not contribute to the rent or household expenses. I note that Mr. Murray’s rights with respect to Ms. Smith-Vincent’s room were even more tenuous. He was only a casual friend of Ms. Small-Vincent; they were not in a relationship. He had only been visiting there for two or three days. Like Mr. Edwards, he did not have a key and did not contribute to any of the expenses.

[19] In Edwards, the Court held that the assessment of the reasonable expectation of privacy must be made “in light of the totality of the circumstances of the particular case”[^6] and that relevant factors to consider included (but were not restricted to):[^7]

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place .

[20] Mr. Murray was not present at the time of the search, but was arrested while in the motel room. He had no control over the place searched at any time. He had no ownership interest or right to occupy the room in his own right. He was merely there as a guest. He had no ability or right to regulate access to the room, and in particular no right to admit or exclude anyone.

[21] The fact that this was a motel room as opposed to an apartment is irrelevant to the analysis. It is well-established that there can be a reasonable expectation of privacy in a hotel or motel room, in the same manner as an apartment or house.[^8] I do not accept the argument of the defence that an occupant of a hotel room has an enhanced right of privacy beyond an occupant of any other private dwelling. I agree that the name in which the hotel room is registered is not determinative; the same applies to whose name is on the lease or who holds title to a house. However, mere presence in a motel room with the consent of the person who actually lives in that room is not sufficient to create a reasonable expectation of privacy, any more than being a visitor in a private home or apartment is sufficient.[^9]

[22] Mr. Bytensky submitted that the Supreme Court of Canada’s decision in Edwards is from a “bygone era” and has been effectively overruled by the Court’s more recent articulation of the expectation of privacy test in R. v. Marakah.[^10] I do not see the decision in Marakah as having completely changed the law of search and seizure, nor do I see it as overruling Edwards. The issue in Marakah was whether a person who had sent a text message had standing to challenge a police search of the phone of the person who received that message. The majority of the Court held that Mr. Marakah had a reasonable expectation of privacy in the text message, even after it had been sent and received by another person, and that he therefore had standing to challenge the constitutionality of the search of the other person’s phone. In her analysis, the Chief Justice (writing for the majority) referred to a number of factors that courts had referred to over the years to assist in determining whether it was reasonable to expect privacy in particular circumstances, Edwards being one of the cases cited.[^11] The Chief Justice then went on to explore the concept of the place of the search as a helpful factor in determining the right to privacy. She noted that this factor was largely developed in the context of territorial privacy interests and that digital subject matter did not fit easily within those strictures. It is difficult to determine what is the “place” of a digital conversation. The Chief Justice specifically held that “control or regulation of access to a place is relevant to a reasonable expectation of privacy,” again citing Edwards.[^12] She then went on to note that the place of the search is merely one of several factors and not necessarily determinative, which is not new law. Likewise, the Chief Justice held that the factor of control is not always dispositive of whether there is a reasonable expectation of privacy. Applying the same principles established in Edwards, the majority concluded that when seen in context and bearing in mind the idiosyncrasies of digital messages, a person has a reasonable expectation of privacy in respect of the text messages on the recipient’s phone. At no point in this analysis did the Court determine that it had now established an entirely new test for dealing with the principle of reasonable expectation of privacy, nor did the Court seek to reverse, or even modify, the application of Edwards in the traditional contexts in which it has historically been applied.

[23] I do not agree with the submission of the defence that the application of the Marakah decision requires a consideration of the subject matter of the search, rather than the place of the search and that if the subject matter of the search is the personal property of the accused, then he has a reasonable expectation of privacy in it. Taking the line of analysis suggested by defence counsel here, would completely emasculate the existing jurisprudence and essentially eliminate all consideration of standing. Upon establishing ownership in the property, a reasonable expectation of privacy would be established, and the owner of the property would have standing to challenge its seizure no matter where the property was located. Such an interpretation would reverse decades of jurisprudence. If that had been the intention of the Court in Marakah, I would have expected a clear direction to that effect. In my opinion, that decision is applicable to electronic messages, and not to tangible personal property.

[24] Applying the established case law, Mr. Murray was a mere visitor to the motel room. He had no control over the premises, and no ability to admit or exclude other persons from entering. He owned the personal property involved, but that is the entire extent of his privacy interest. He arrived without invitation, and he stayed without express permission. He was hardly more than an interloper. Accordingly, I find that he has no standing to challenge the search of the motel room.

[25] However, in the event I have erred on the issue of standing, I have considered the application on its merits, as set out below.

D. CONSTITUTIONALITY OF THE SEARCH AND SEIZURE

Misrepresentation in the Information to Obtain

[26] Defence counsel submits that the Information to Obtain (“ITO”) misrepresented what Ms. Small-Vincent said to the police in three respects: (1) what Corey Murray was wearing when he arrived at her motel room; (2) what was in the bag he had with him; and (3) the description of his phone. I find no misrepresentation.

[27] The affiant in the ITO is entitled, indeed often required, to summarize the evidence relied upon, rather than providing a verbatim transcript. It would not be feasible for justices issuing warrants to review hundreds or thousands of pages of material before making a decision. Provided the summary given in the ITO is fair and accurate, it is expedient to have that summary.

[28] In this case, the ITO stated that when Mr. Murray arrived, he was wearing “a yellow jacket, black and yellow shoes, blue jeans, a white shirt and a baseball cap.” All of that information was conveyed by Ms. Small-Vincent. She also provided a little more detail: e.g. the black and yellow shoes were running shoes that were neither predominately black nor yellow; the blue jeans he was wearing when he arrived were the same as he was wearing at the time he was arrested; the white shirt was a “plain white shirt;” and, the baseball cap was black and white. It would not have been wrong to include these extra details in the ITO, but neither was it wrong to exclude them. There is no actual misrepresentation. Everything in the ITO is correct. The failure to include the extra information does not change the character of what was included. Nothing important was omitted.

[29] The ITO describes the bag Mr. Murray was carrying as being a “white plastic bag.” Ms. Small-Vincent had also provided the detail that it was a “regular grocery bag.” Again, this particular detail adds nothing of substance and the failure to include it does not constitute a misrepresentation.

[30] In the ITO, the affiant stated that Ms. Small-Vincent told police that Mr. Murray was carrying a white plastic bag containing “some shoes and other items.” At another point in the ITO, he stated that she said the bag contained “shoes and some unknown items.” Ms. Small-Vincent did tell the police that she knew there were shoes in the bag. However, her information about other items was more tentative. In this regard, what she said to police was, “There might – I think there might have been another like shirt or something but I’m not sure.”

[31] The ITO very slightly overstates what Ms. Small-Vincent said, only because of the failure to say that the bag “might” contain items other than shoes. However, at three other points in the ITO, the deponent stated his personal belief that it is reasonable to believe that the bag “may contain” clothing or weapons or items either listed in Appendix A or related to the offence of first degree murder. That belief is indeed a reasonable one, based on what Ms. Small-Vincent told the police. Therefore, although there was a very minor over-statement, I do not see it as amounting to a misrepresentation, nor do I consider it to have had any possibility of affecting the result.

[32] Ms. Small-Vincent told police that she had seen Mr. Murray using a cellphone and described it as a “big, long, white Blackberry.” In addition she told police that it was larger than her Blackberry and that it was a newer type. In the ITO, the deponent said that Corey Murray had a “large Blackberry cell phone which was white in colour.” That is completely accurate. There was no misrepresentation. Further, the officer’s statement that he believed the cell phone would still be in the motel room was entirely accurate given that Ms. Small-Vincent had seen him using it there and it was not on his person at the time he was arrested and removed from the room.

[33] None of the additional details not included in the ITO could have affected the result. When those details are added, the same search warrant would have issued.

Over-Breadth in List of Items Subject to Search

[34] The police sought multiple search warrants for various locations. Some of those locations involved Curtis Murray, rather than Corey Murray. The ITO in respect of the motel room search referred to an attached Appendix A containing the list of items to be searched for. All of the search warrants sought and obtained contained that same list of items to be searched for, as set out in Appendix A. Defence counsel submits that Appendix A is overly broad because it includes items that there was no reason to be believe would have been brought to the motel room by Corey Murray.

[35] Appendix A contains a list of 29 items and was the same list for all of the locations to be searched. In that sense, it did include items that might not have been expected to be in the motel room, and indeed, some items that had already been located under prior search warrants. However, from the way all the search warrants were structured, this would have been apparent to the issuing justice. The ITO for the motel room search included all of the material on the other search warrants. This included appendices that were particular to other searches and which had within them the specific items expected to be found in that location. The particulars for the motel search were in Appendix F, which included within it a specific statement of what was expected to be found in the motel room: shoes and other items worn at the time of the murder; weapons used at the time of the murder; and, a cell phone. Thus, although Appendix A listed all of the items sought in all of the locations, the particular items believed to be in each location were set out within the other appendices. The deponent expressly acknowledges this in Appendix A by stating in at least two places that he believed some of the items listed in Appendix A could be within the motel room. It would have been readily apparent to the issuing justice that this was the case.

[36] Unfortunately, it was Appendix A from the ITO which was then affixed to the search warrant for the motel room, and not a particularized list of what the motel room was reasonably believed to contain. I agree with counsel for the accused that this is problematic. Officers carrying out the particular search of the motel room would be guided by the list of items attached to the search warrant, which list included items for which there was no reasonable basis to believe would be found there. Having a broader list would entitle those officers to continue searching, even after all items actually believed to be in the motel room had already been located. As noted by Rahman J. in R. v. Owen, this has the effect of extending the search beyond what would appropriately have been authorized based on what the deponent believed would be found in the motel room, as opposed to other places searched.[^13]

[37] I also agree with defence counsel that some of the individual items listed in Appendix A are extremely vague, broad, and lacking in particularity. For example, one of the items on the list is “dark coloured shoes.” A review of the ITO demonstrates that the police had a much more specific type of shoes in mind, based on the video footage of the two assailants attacking the victim Trevor Seraphine. That video footage showed that one of the attackers was wearing black running shoes with red or orange lettering or logo of some sort at the back heel area. Similarly, Appendix A lists “utility type pants” and “light coloured track pants.” This was based on the video which showed one of the assailants wearing what could be described more particularly as “khaki” or “beige” pants.

[38] In R. v. Church of Scientology, the Ontario Court of Appeal held that the list of items to be searched for should contain particulars of those items, and that a failure to provide specificity results in the officers conducting the search being given a discretion more appropriately exercised by the issuing justice.[^14] The Court also held that each case turns on its own facts and that the degree of specificity depends on the nature of the things to be searched for and seized.

[39] I agree with defence counsel that more specificity could have been provided in many of the items listed in Schedule A. However, I also note that the video of the murder itself is not of the highest quality, such that colours and details of clothing might not be accurately depicted and the police had not by this stage viewed all of the video seized from multiple sources.

[40] Appendix A to the search warrant authorizes the seizure of a mobile device or tablet. Defence counsel submits that this is overly broad given that the police had specific information with respect to Corey Murray having a newer model, large, white Blackberry. I have no difficulty with this aspect of the list of items to be searched for. Ms. Small-Vincent described only one cell phone that she saw, but there could easily have been other cell phones in the bag Mr. Murray brought with him, or elsewhere on his person. Any cell phones he had would and should be appropriately seized as police had information, disclosed in the ITO, that Corey and Curtis Murray had been communicating with each other by cell phone.

[41] While I agree that the list in Appendix A could have been more particularized, and I also agree that it should have listed only those items that could be expected to be in the motel room, I find that in the particular circumstances of this case, there was no breach. The Crown relies on four items listed on Appendix A that were seized from the motel room: a pair of running shoes, blue boxer underwear and a pair of khaki pants (all of which appear to match items worn by one of the assailants) and a white Blackberry belonging to Corey Murray.[^15] If the items on Appendix A corresponding to these items had been more particularized, the seizure of these items would still be authorized.

[42] Further, with respect to the extra items on the list (e.g. things like Curtis Murray’s identification), this would have no impact on the nature and extent of the search or the items seized. Therefore, if I excise those items, there would be no effect on anything.

Things Improperly Seized Outside the Warrant

[43] Section 489(1)(c) of the Criminal Code provides:

489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

[44] The officers conducting the search seized a baseball cap and white shirt. These are not listed in Appendix A. However, in my view these items were appropriately seized as they corroborated Ms. Smith-Vincent’s statement to police about what Mr. Murray was wearing when he arrived. Given that she had other important evidence to provide (e.g. in relation to Mr. Murray being on the run from the police), corroborating her testimony on this point would be important to the prosecution. In my view, this falls within the meaning of s. 489(1).

[45] If the shoes, khaki pants and underwear were not properly seized as being listed in Appendix A, they would have been properly seized under s. 489(1). The faces of the assailants cannot be seen on the video of the murder. The police were intent on finding the clothing worn by the assailants so that this could be linked to the video footage. If clothing matching the appearance of clothing worn by either of the assailants was found in the possession of Corey Murray, there would be reasonable grounds to believe that this “will afford” evidence of the offence. The officer who was the deponent on the ITO and present at the time of the search testified that that was the basis for seizing the clothing taken from the motel room. I accept he had that subjective belief and find it to have been reasonable.

Report to the Justice of the Peace

[46] Section 489.1(1) of the Criminal Code requires the police to prepare a report to the justice who issued the warrant (or some other justice in the same territorial division) as to what was seized under the warrant or pursuant to s. 489 of the Criminal Code, what items seized are being held, or have been returned to their lawful owners; and what items are being detained in police custody. The Code requires that this report be filed “as soon as is practicable.” A failure to make a required report in a timely manner makes the continued detention of the seized property unlawful and may breach s. 8 Charter rights.[^16]

[47] The search in this case started on the night of April 3, 2015 and continued into April 4, 2015. The report to the issuing justice was made on April 22, 2015, a delay of 18 days. The officer acknowledged that there was a “bit of a delay” in submitting the report. He explained that he was busy, both on this case and also in preparing a triple murder/suicide for a coroner’s inquest. He had not brought his notebooks for other cases he was working on to court with him and was therefore unable to provide specifics of other cases he was working on during those two weeks in 2015.

[48] Counsel for the defence submits that a delay of this length is a breach of the officer’s duty to report, particularly as there were only 33 items seized and the delay is not adequately explained.

[49] The term “as soon as is practicable” is a flexible one and its interpretation depends on the surrounding circumstances. Clearly the police have a duty to make the report, and compliance is important to ensure judicial oversight for the protection, not only of the accused, but other members of the public. I agree that the volume of the seizure is a relevant factor in determining the precise parameters of “as soon as practicable.” The seizure of thousands of items will clearly take longer to itemize in a report than the seizure of 33 items. The nature of the items seized would also be relevant. Here, however, the nature of the items is a neutral factor. They were not of a nature that took a considerable time to examine and list, so as to warrant a longer period of time for filing. On the other hand, they were not perishable, nor were they items whose ownership would likely be challenged by persons other than the accused, which would warrant a shorter period of time for filing. Finally, some allowances must be made for the usual exigencies. If an officer is busy with other more pressing matters and there is nothing about the nature of the seizure that mandates an early filing of the report, then there can be more flexibility.

[50] There is a reason that this section does not require a specific period of time for a report to be made. There are simply too many variables to impose a rigid time requirement. In this case, the report was relatively straightforward. It would have taken some period of time for the forensic team to review the items seized and for the investigative team to determine whether those items were relevant to the offence. I would not have expected that to take more than a week, given the small number of items seized. On the other hand, there was nothing particularly time-sensitive about the nature of the items seized or the ownership rights of anybody connected to them. Officers busy with other high-priority matters cannot be expected to drop everything to file a report. The delay here was only a matter of 18 days – less than three weeks.

[51] I was not referred to any case dealing with a delay of this limited magnitude. In R. v. Garcia-Machado, the Ontario Court of Appeal dealt with the seizure of a blood sample pursuant to a warrant and the failure of the police to make a report to the issuing justice for more than three months. The trial judge found this to be a breach of s. 8 of the Charter and excluded the results of the analysis of the blood sample from the evidence at trial, resulting in the accused being acquitted of impaired driving. The Ontario Court of Appeal ordered a new trial. The Court agreed with the trial judge that the more than three month delay was a breach of the reporting requirement (without any analysis of when it would have been required to be filed) and also that it breached s. 8 of the Charter. However, the Court of Appeal held that the evidence should still have been admissible by operation of s. 24(2) of the Charter, based on the following factors:

(1) the initial search had been pursuant to a warrant, such that there had already been some balancing of the accused’s privacy interest;

(2) the accused had only a minimal residual privacy interest in the blood sample, once it had been seized;

(3) the property was only used for the precise purpose for which it had been obtained;

(4) if the report had been made as soon as practicable, the justice would undoubtedly have ordered detention of the evidence;

(5) the nature of the items seized was such that the accused was not deprived of his enjoyment of it; and,

(6) this was a case of delayed compliance, not complete non-compliance.

[52] In all the circumstances of this case, and in particular the absence of any impact from the delay on the accused or anyone else and the officer’s time commitments to other pressing work, I do not find the delay of 18 days to be a breach of s. 489.1.

[53] If I have erred on this point, the breach was a mere technical one. There was no bad faith on the part of the officer or officers involved and no impact on the rights of the accused, or anyone else. When the report was filed on April 22, 2015, the justice ordered the detention of all items seized until the completion of all proceedings. Corey Murray has been in custody this entire time and has not been deprived of any of his property by virtue of any delay in reporting. Accordingly, even if there was a breach of the reporting requirement and a breach of s. 8 of the Charter, I would admit the evidence seized under s. 24(2) of the Charter. On this point, in addition to the factors in my overall s. 24(2) analysis below, I rely on the Court of Appeal’s decision in Garcia-Machado, which involved a far longer delay, with the reason for the delay being systemic ignorance of the time requirement. Both of those factors make the breach in that case more serious than the case before me, while many of the other factors cited in support of the admission of the evidence apply equally to this case.

Conclusion: There Was No Charter Breach

[54] Accordingly, I find that there was no breach of Corey Murray’s s. 8 rights under the Charter in relation to the search of the motel room because:

(1) there was no misrepresentation of evidence in the ITO;

(2) to the extent there was any overbreadth in the list of items to be searched for, those items could be excised without any impact on the warrant, or the extent of the search or the items seized;

(3) the items seized outside the warrant were authorized by s. 489(1) of the Criminal Code as providing circumstantial evidence relevant to the charge of first degree murder against Corey Murray; and,

(4) the report of the seizure was made within a time period that complied with the requirements of s. 489.1 of the Criminal Code.

[55] In the event I have erred in respect of whether there was a breach of s. 8 of the Charter, I have gone on to consider whether the evidence should be excluded under s. 24(2) of the Charter.

E. SECTION 24(2) ANALYSIS

The Test

[56] The test for determining the exclusion/admission of evidence under s. 24(2) of the Charter is summarized in R. v. Grant[^17] at para. 71 as follows:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the Breach

[57] The police officers who arrived at the motel room in search of Corey Murray on April 3, 2015 had a warrant for his arrest. There was every reason to believe that Mr. Murray was on the run from the police and that he could be armed and dangerous. Nevertheless, they knocked on the door and spoke with Ms. Small-Vincent and then removed Mr. Murray from the room without incident.

[58] The officers who made the arrest did not seize anything from the room as an incident to that arrest. They also did not merely ask Ms. Small-Vincent for permission to search the room. They took the steps most deferential to Mr. Murray’s Charter rights – sealing the room, taking a full statement from Ms. Small-Vincent and then applying for a search warrant.

[59] To the extent there was any breach at all, it is merely because the appendix to the search warrant was overly broad, although the ITO made it clear what was actually expected to be in the motel room. The additional items in Appendix A had no practical impact on the search itself.

[60] The officers acted throughout in good faith.

[61] This factor supports admission of the evidence.

Impact of the Breach on the Rights of the Accused

[62] The impact of the breach on the rights of the accused is minimal. Even if Corey Murray had standing to challenge this search, those factors I referred to in my discussion of standing apply at this stage. His expectation of privacy was greatly reduced given that he was an uninvited visitor in someone else’s motel room. He was not a romantic partner, relative, or even a close friend of Ms. Small-Vincent. He was simply an acquaintance using her room to hide from the police. He arrived with a white plastic bag containing a pair of running shoes and not much else. He was clearly not expecting to stay for a lengthy period of time. This was just a stopover during his flight.

[63] Given that he was found hiding out in the motel room, and given the circumstantial nature of the Crown’s case, dependent upon the clothing worn by the assailants, a search for and seizure of any clothing Corey Murray brought with him was inevitable. The same items would have been seized even if the appendix to the warrant had been drafted with more specificity.

[64] Although Mr. Murray’s cell phone was seized, the search of the phone itself was the subject of a separate warrant, which is not challenged.

[65] There was very little impact on the rights of Mr. Murray. This factor favours admission of the evidence.

Society’s Interest in an Adjudication on the Merits

[66] In assessing the third of the Grant factors (society’s interest in an adjudication on the merits), it is relevant to consider the seriousness of the offence, the reliability of the evidence, and the importance of the evidence to the prosecution’s case.

[67] Corey Murray is charged, along with his brother, with first degree murder. The two people who committed this crime chased down a 17-year-old, shot at him five times as he ran for cover, shot him again when he was trapped in an apartment lobby cowering in the corner, and when that did not kill him, stabbed him multiple times, including in the heart. The assailants were attempting to hide their identity by covering up their faces and some identifying features of their clothing. This is most certainly a crime that society would want to see tried on its merits.

[68] The evidence is tangible property and completely reliable.

[69] The Crown’s case is dependent upon circumstantial evidence, and in particular to identifying the clothing worn by the assailants and connecting it to the two accused. The Crown still has a case without this tangible evidence seized from the motel room. It has photographs and video of clothing items associated with Corey Murray, which can be compared by the jury to the video of the murder. However, the comparison is significantly easier and more accurate when done with the actual items. I consider the actual pants, underwear and shoes to be important evidence for the Crown’s case. The cell phone is also relevant evidence, but not as pivotal.

[70] I would consider this factor to favour admission of the evidence.

Balancing of Factors

[71] All of the Grant factors support the admission of this evidence. The police officers acted professionally, in good faith, and sought to protect the Charter rights of the accused throughout. There was no egregious conduct of a type that calls out for a remedy or which requires a strong message to be sent that such conduct will not be tolerated by the courts. Further, any intrusion on the rights of the accused was minimal. There is a high interest in having this case tried on its merits and the evidence is important to the Crown’s ability to advance its case. In my view, excluding the evidence in all of the circumstances here would have the effect of bringing the administration of justice into disrepute, rather than the reverse. Accordingly, I find the evidence to be admissible.

F. SUMMARY AND CONCLUSION

[72] In my opinion, Corey Murray had no reasonable expectation of privacy in the motel room that was the subject of the search and therefore no standing to challenge the constitutionality of the search. I would therefore dismiss his application. In the result, the evidence would be admissible.

[73] Alternatively, if Mr. Murray does have standing, I find no breach of his s. 8 rights. To the extent the list of items to be searched for appended to the warrant was overly broad, I would excise those superfluous items. Without those items, the search warrant would still have been issued and the same items would have been seized. Items seized outside the warrant were evidence of an offence and properly seized. The report was made to the issuing justice within the time required by the Criminal Code. Therefore, I find no breach of Mr. Murray’s Charter rights. His application is dismissed and the evidence is admissible.

[74] In the further alternative, if there was a breach of Mr. Murray’s Charter rights, the breach was a minor one with little impact on Mr. Murray’s rights. There is a strong societal interest in having this case decided on its merits. The evidence is reliable and important to the Crown’s case. It would not bring the administration of justice into disrepute if the evidence were admitted. Accordingly, even if I had found Mr. Murray had standing and that his Charter rights had been breached, I would have admitted the evidence under s. 24(2) of the Charter.

MOLLOY J.

Released: May 16, 2018

COURT FILE NO.: CR-16-50000631-0000

DATE: 20180516

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CURTIS MURRAY and COREY MURRAY

Defendants

REASONS FOR DECISION (Application to Exclude Evidence: Search and Seizure)

MOLLOY J.

Released: May 16, 2018

[^1]: Criminal Code of Canada, R.S.C., 1985, c. C-46. [^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [^3]: R. v. Mawat, 2013 ONSC 1011 at para. 16, [2013] O.J. No. 1214; R. v. Belnavis (1996), 29 (O.R.) (3d) 321 at paras. 25 - 33, [1996] O.J. No. 1853, (Ont C.A.); R. v. Pugliese (1992), 8 O.R. (3d) 259 at p. 267, [1992] O.J. No. 450, (Ont C.A.). [^4]: R. v. Jones, 2017 SCC 60 at paras. 19-22, [2017] 2 S.C.R. 696. [^5]: R. v. Edwards, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11, [Edwards]. [^6]: Ibid at para. 31. [^7]: Ibid at para. 45. [^8]: R. v. Wong, [1990] 3 S.C.R. 36, [1990] S.C.J. No. 118; R. v. Mercer (1992), 7 O.R. (3d) 9, [1992] O.J. No. 137 (C.A.); R. v. Ansine, [2007] O.J. No. 5840 (Sup. Ct.). [^9]: R. v. Edwards, supra note 5; R. v. Simmonds, [2005] O.J. No. 3615 (Sup. Ct.); R. v. Henry, 2014 ONSC 2739, [2014] O.J. No. 2436; R. v. Barton, 2016 ONSC 8003, [2016] O.J. No. 6756. [^10]: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, [Marakah]. [^11]: Ibid at para. 24. [^12]: Ibid at para. 29. [^13]: R. v. Owen, 2017 ONCJ 729 at paras.149-150, [2017] O.J. No. 5755. [^14]: R. v. Church of Scientology, [1987] O.J. No. 64 at p.29-30, 31 C.C.C. (3d) 449, (C.A.). [^15]: I note that this search warrant merely authorized the seizure of the cell phone. A subsequent warrant was obtained to search the contents of the cell phone and nothing relevant to the murder was found. [^16]: R. v. Garcia-Machado, 2015 ONCA 569 at paras.40-43, 126 O.R. (3d) 737, [Garcia-Machado]; R. v. Colarusso, [1994] 1 S.C.R. 20 at pp. 61, 63-64, [1994] S.C.J. No. 2. [^17]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [Grant].

R. v. Murray #1, 2018 ONSC 3053

Case Summary

REASONS FOR DECISION

A. INTRODUCTION

B. NATURE OF THIS APPLICATION

C. STANDING

D. CONSTITUTIONALITY OF THE SEARCH AND SEIZURE

Misrepresentation in the Information to Obtain

Over-Breadth in List of Items Subject to Search

Things Improperly Seized Outside the Warrant

Report to the Justice of the Peace

Conclusion: There Was No Charter Breach

E. SECTION 24(2) ANALYSIS

The Test

Seriousness of the Breach

Impact of the Breach on the Rights of the Accused

Society’s Interest in an Adjudication on the Merits

Balancing of Factors

F. SUMMARY AND CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 2