OSHAWA COURT FILE NO.: CR-17-14650
DATE: 20181114
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER LEE ALLAN
Defendant/Applicant
COUNSEL:
Nicholas Frid, for the Crown
Jacquelin McLaughlin, for the Defendant/Applicant
HEARD: October 29-31, 2018
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Applicant has brought a s. 8 application seeking to exclude drugs seized in a knapsack at the time of his arrest. The grounds for his arrest flow from a warrant executed at what was believed to be the Applicant’s apartment on June 25, 2017.
[2] It is the Applicant’s position that the redacted Information to Obtain (ITO) in support of the warrants lacked the requisite grounds. The Applicant also argues that the affiant omitted relevant information necessary for the issuing justice to assess the sufficiency of the grounds. According to the Applicant, these deficiencies taken together require exclusion of the evidence pursuant to s. 24(2).
[3] The application proceeded on the basis of the materials filed. No viva voce evidence was called. After reviewing the record and hearing submissions, I dismissed the application. Below are the reasons for my decision.
The Facts
[4] From the beginning of May 2017, 18 reports of stolen e-bikes had been made throughout the Central East Division (Oshawa).
[5] In June 2017, police received information from a confidential informant (“CI”) that Christopher Allan was selling controlled substances at 308 Montrave Avenue, Oshawa. The CI also indicated that Mr. Allan had two stolen e-bikes at the back door of the building and keeps stolen e-bikes at this address.
[6] Police commenced an investigation with a view to corroborating the information provided by the informant.
Surveillance
[7] On June 22, 2017, Detective Constable MacKinnon and Detective Sitaram attended the area of 308 Montrave Avenue to conduct surveillance. As they drove by the address, they observed Mr. Allan in the window of unit 4. Located at the rear of unit 4 were what officers believed to be e-bikes, which were partially covered by a tarp.
[8] Detective Constable MacKinnon and Detective Constable Sitaram were both cross-examined at the preliminary hearing. In his evidence, DC MacKinnon testified that these observations of Mr. Allan through the window were very brief (a second or two while driving by). The fleeting nature of the observations were not referenced in the ITO.
[9] On June 27, 2017, DC MacKinnon and DC MacArthur again attended at the address of 308 Montrave Avenue and this time observed two e-bikes next to the window of 4-308 Montrave Avenue. The blue tarp had been removed and the e-bikes were now clearly visible.
Other Checks referenced in the ITO
[10] Checks revealed that in March 2017, Mr. Allan was associated with a residential break and enter in which 16 guitars were stolen. Upon execution of a search warrant at 116 Centre Street North, police located three stolen guitars and a small quantity of fentanyl in Christopher Allan’s room.
[11] On May 30, 2017, an e-bike that had been reported stolen two weeks earlier was located on the south east corner of King Street and Simcoe Street in Oshawa, Ontario. In the rear compartment of the e-bike, police located documentation in the name of Christopher Allan.
Warrant Execution and Arrest
[12] On the basis of the above information, police obtained and executed a Criminal Code search warrant for 4-308 Montrave Avenue in Oshawa. Nobody was present at the time of the search, however, police located recent medication in Mr. Allan’s name, pictures of Mr. Allan and numerous items with the initials “C.A.”
[13] Upon further search of the address, police located a large quantity of stolen bicycles, tools, an e-bike that was located outside of the unit window but chained to the window frame, e-bike parts, brass knuckles, bear spray, a quantity of marijuana and a bottle of unknown liquid inside the residence. Also located in the residence was a large commercial teeth whitener.
[14] Detective Sitaram was involved in a previous investigation wherein a large commercial teeth whitener was reported stolen from a dental office. Det. Sitaram was aware that Mr. Allan was at one point a subject of that investigation, and at the time of the theft was living above the dental office.
[15] Due to the items located in the residence, a warrant was issued for Mr. Allan’s arrest for FTC recognizance and possession of stolen property.
Arrest of Christopher Allan and Seizures
[16] On June 30, 2017, members of the Durham Regional Police Service, Offender Management Unit attended the area of 308 Montrave Avenue in Oshawa to locate Christopher Allan as he was wanted for the above offences. While on scene, Christopher Allan was observed arriving in a vehicle which had pulled into the rear parking lot. Officers approached the passenger side of the vehicle where Mr. Allan was seated and advised him that he was under arrest.
[17] Mr. Allan was removed from the vehicle, placed under arrest, given rights to counsel and a secondary caution. A knapsack was located where Mr. Allan had been sitting near his feet. Officers searched the bag incident to arrest and located the following:
• Ziploc baggies;
• 4.1 grams of fentanyl;
• Digital scale;
• 16 grams of crystal methamphetamine; and
• 32 pills of OxyContin.
The Applicant’s Position
[18] The Applicant takes the position that the warrant lacks the requisite grounds. According to the Applicant, there is no reference in the edited warrant to the CI’s past performance or history of reliability. It is unclear whether the CI has a criminal record of any sort, or has entries for crimes of dishonesty. The tip is hardly compelling. It does not even reference the specific unit number, nor does it reference whether the information is first hand or second hand.
[19] The Applicant also argues that the affiant included “bad character” information about the accused from unrelated investigations that could have no possible bearing on whether or not there was evidence of the offence at the address.
[20] On the basis of the information disclosed in the edited ITO, the Applicant argues that a warrant could not have issued. Accordingly, the Applicant seeks that the evidence be excluded under s. 24(2).
Analysis
Standing to raise the Challenge
[21] On the basis of the Supreme Court’s decision in R. v. Jones, [2017] 2 S.C.R. 696, 2017 SCC 60, the accused relied on the “Crown theory” to assert standing. The Crown initially opposed standing on the basis of some uncertainty with the accused’s connection to the address. Ultimately, the Crown conceded that the accused was entitled to rely on Jones given that the ITO itself asserted that the accused was “residing” at the address. Moreover, the police had charged the accused with breaching his recognizance by residing at the subject address.
[22] After I dismissed the application, the matter proceeded to trial. During the course of trial, it was revealed that the accused did not pay rent for the apartment, nor did he reside there. Apart from briefly staying at the apartment for a few days, the accused testified that he was living at a different address.
[23] I do not impute any wrongdoing on the part of the accused or his counsel with respect to their position on the motion. I take their inconsistent position to simply reflect a misunderstanding of the Supreme Court’s comments in Jones.
[24] Jones acknowledged that the accused could rely on the Crown theory as a basis to assert standing. The Crown should not insist that the accused provide evidence or testify where the accused’s standing is evident.
[25] However, while the accused can rely on the Crown theory without having to call evidence, it is still the accused’s assertion of privacy that is the underlying basis for the Charter claim. Absent that assertion, there is no Charter claim to be adjudicated. As Finlayson J.A. in R. v. Pugliese (1992), 1992 CanLII 2781 (ON CA), at pp. 301‑2 (cited in Edwards) explained at 301-2:
When an accused, such as the appellant, asserts at his trial that there has been a breach of his s. 8 Charter right to be secure from unreasonable search or seizure, he is asserting a particular right to privacy which may, on occasion, be unrelated to any recognized proprietary or possessory right. Section 8 of the Charter is directed to the protection of the security of the person, not the protection of his property, and it is the appellant's personal exposure to the consequences of the search and seizure that gives him the right to challenge, not the search warrant itself, but the admission into evidence at his trial of the fact of the search and the account of what was seized.
This is not to say that property rights do not confer privacy rights in a given case. They obviously do. But the appellant must assert a personal privacy right, whatever be the foundation of his assertion. And, since this reasonable expectation of privacy is a Charter protected right, the burden of providing an evidentiary basis for any violation rests with the appellant. . . [Emphasis added]
[26] The assertion of privacy is based on facts held out by the accused to be true. The assertion is not just a means to raise a challenge that has no basis in fact. If the accused’s position at trial will be that he was merely visiting the address, he is not entitled to suggest otherwise on the application. If the accused has no connection to the address, he should not be relying on the Crown theory of residency to advance a claim.
[27] Indeed, if the Crown is aware that the defence position at trial is contrary, or if the accused’s connection to the address may be in dispute at trial, the Crown would be well within its rights to require the accused to establish standing. The accused cannot rely on the Crown theory of residency if he/she disputes it.
[28] An accused assertion of privacy does not mean that the accused must admit the offence or concede the Crown has established residency at trial. The Crown must discharge its onus at trial without the assistance of the accused. However, the accused is not entitled to knowingly advance a false position on the application.
[29] In R. v. Farrah (D.), 2011 MBCA 49, the Manitoba Court of Appeal dealt with a similar situation where the accused claimed privacy in an address which he later disavowed at trial. In reviewing the factual record, the Court of Appeal commented on the impropriety of such a practice at paras. 20 and 21:
An accused should not be able to successfully argue a position at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial based upon a change in his evidence. Here, the position he took regarding a privacy interest at the voir dire allowed him to obtain a favourable Charter breach ruling. How can he then be allowed to withdraw from his earlier position and argue that he had no privacy interest in suite 16 and thus cannot be linked to the shotgun found in that suite? The maxim quod approbo non reprobo comes to mind: one cannot approbate and reprobate at the same time.
In the end, the accused’s evidence at trial no longer supported the position advanced for the accused in the voir dire or the judge’s voir dire finding that the accused “had a reasonable expectation of privacy in both suites 12 and 16 (at para. 26).” Such a situation raises possibilities of mistrial when the matter is heard before a jury and puts a trial judge in a difficult, if not impossible, position with respect to the evidence before the court. It could also raise difficult ethical questions which were not fully before us and upon which we reach no conclusion (see for example, The Canadian Bar Association, CBA Code of Professional Conduct, Ottawa: CBA, 2009, ch. IX, commentary 11 which states that defence counsel must not “call any evidence that, by reason of the admissions [made by the accused], the lawyer believes to be false” and The Law Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society of Manitoba, 2010, ch. 4, Rule 4.01(1) and the commentary on the Duty of Defence Counsel). [Emphasis added]
[30] The comments in Farrah are equally applicable here. Indeed, to invite the accused to take an inconsistent position on a Charter application would undermine public confidence in the administration of justice. Such an approach would encourage litigants to mislead the court, and would invite counsel to make representations known to be false in breach of their ethical obligations. This is hardly what was contemplated by the Supreme Court in Jones.
[31] In this case, the motion was decided on the basis that the accused resided at the address and my reasons here reflect the same. Given that the application was dismissed, there is no basis to revisit the ruling here.
Was the Warrant Properly Issued?
Test on Review
[32] The test governing the review of a search warrant is clear. The reviewing judge is not entitled to substitute his or her view for that of the issuing judge. Rather, the reviewing judge is simply to determine whether the issuing judge could have granted the warrant on the basis of the reliable information contained in the affidavit, as amplified on review. The reviewing judge must not set aside the authorization unless he or she is satisfied on the whole of the material presented that there was no basis for it: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 26. As explained by the Supreme Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40:
The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[33] Where an affiant relies on information obtained from a police informer, the reliability of the information must be assessed in light of the “totality of the circumstances.” In R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.J. No. 118, the Supreme Court articulated 3 criteria to assist in reviewing and assessing the reliability of the information. The Court explained at para. 53:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Marin J.A.’s view that the totality of the circumstances must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [Emphasis added]
[34] Similarly, as Sopinka J. stated in R. v Garofoli at para. 68:
There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
a. The degree of detail of the “tip”;
b. The informer’s source of knowledge;
c. Indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
[35] Weaknesses in one area may be compensated by strengths in another. The particular circumstances must be examined in each case. The real question to be determined in each case is whether the information is sufficiently reliable to substantiate the search.
Application to the Facts of the Case
[36] The source information here is heavily redacted. Schedule D of the ITO which references the information relating to the source and the details of the tip has been entirely edited out.
[37] On the basis of what remains, I agree with the Applicant that the grounds for the warrant are extremely thin. The revealed source information is merely conclusory in nature. There is no indication of whether the information is first hand or second hand. There is no information pertaining to the informer’s prior performance, or his criminal antecedents. There is also no indication of possible motive.
[38] While the investigation does provide corroboration in terms of the observations of Mr. Allan at the building, the e-bikes at the rear of apartment 4 and Mr. Allan’s association with stolen e-bikes in the past, I agree with the Applicant that a warrant could not have issued in relation to unit 4 with such scant information. The revealed informant information does not even identify the specific unit where Mr. Allan was known to reside. If it did, this may have been sufficient to uphold the warrant under s. 8.
[39] Given the evidence remaining in the redacted ITO, however, I find there is a breach of s. 8.
Section 24(2) Analysis
[40] The Supreme Court elucidated the s. 24(2) analysis in its decisions of R. v. Grant, [2009] S.C.C. 32 and R. v. Harrison, [2009] S.C.C. 34. In Grant at para. 71, the court summarized the framework for determining whether exclusion of the evidence would bring the administration of justice into disrepute:
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.
The Seriousness of the Charter-Infringing Conduct
[41] In this case, the police applied for a warrant. In R. v. Rocha, 2012 ONCA 707, at para. 28, Rosenberg J.A. explained:
Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence. [Emphasis added]
[42] While the exposed grounds in the redacted ITO are deficient in this case, I have no basis to conclude that the actual “unedited” grounds are inadequate. I have not seen the unedited ITO nor has the defence asked for a review of the Crown edit. The defence has not asked me to review the unredacted warrant with a view to identifying deficiencies. Indeed, for the defence to simply point to a shortfall in the edited warrant does not establish state misconduct. It merely demonstrates a deficiency flowing from an edit which itself has not been impugned.
[43] The onus under s. 24(2) is on the accused to establish that the admission of the evidence would bring the administration of justice into disrepute. R. v. Duarte (1990), 1990 CanLII 150 (SCC), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, at p. 59. This is not immaterial where the nature of the breach is purely technical as it is in this case.
[44] In R. v. Blake, 2010 ONCA 1, Doherty J. was faced with a very similar situation. In confirming the admission of the evidence under s. 24(2), Doherty J. commented at paras. 32-33:
Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant.”[^1] [Emphasis added]
[45] The defence argues that this case is factually different than Blake in that there are clear instances of negligence on the part of the police.
[46] The first instance of negligence relied upon by defence is that the affiant did not disclose that the observation of Mr. Allan only lasted for a few seconds while officers drove by the residence. According to the Applicant, had these facts been included, they may have had an impact on the issuing justice’s assessment of the reliability of the observation.
[47] The defence also argues that the affiant’s decision to include references to unrelated investigations was simply an effort to blacken the character of the accused. According to the defence, this was misleading evidence that could have led to propensity based reasoning.
[48] I disagree with the Applicant that either of these examples can be characterized as police misconduct or even an inattention to constitutional standards.
[49] The officer who observed Mr. Allan had no concerns regarding his identification. The amplification evidence reveals that he knew Mr. Allan from prior investigations, and was able to immediately identify him when he saw him through the window. Given these circumstances, the facts surrounding the observation were sufficiently described. Additional details would have had no possible impact on the warrant’s issuance.
[50] Moreover, there is nothing to indicate the information related to the earlier investigations was inaccurate or mischaracterized in any way. The fact that the accused had been in possession of stolen property, including an e-bike in a recent prior investigation was clearly corroborative of the CI information, and relevant to the issues before the issuing justice.
[51] While the information may also reflect on the character and propensity of the accused, this should not be a concern in the context of a warrant application. An issuing justice is presumed to know the law, and give evidence the appropriate weight. R. v. Debot, [1989] 2 S.C.R. 1140, 1989 CanLII 13 (SCC). Indeed, apart from the clear relevance of the information, had the police not included it, the suggestion could be made that the police had alternate motives for obtaining the warrant.
[52] In this case, the information was fairly characterized and accurate. There was no risk that the information would mislead the issuing justice. In my view, it was proper for the affiant to include it.
[53] On the evidentiary record before me, I find no evidence of state misconduct which warrants consideration under the first branch.
Impact on the Charter Protected Interest
[54] In this case, the asserted privacy interest would be at the high end of the spectrum (as asserted on the motion). While the expectation of privacy is high, nothing in the police conduct would suggest that the Charter protected interest was disregarded.
Society’s Interest in the Adjudication of the Case on its Merits
[55] Finally, the state would have a strong interest in an adjudication on the merits. The nature of the alleged criminality is very serious. The trafficking of hard drugs for profit has been repeatedly emphasized to be an extremely serious offence. The evidence itself is necessary to the Crown’s case.
[56] Again, I find no evidence of state misconduct in the factual record before me. I note that neither the Crown nor the defence took steps to go behind the redacted ITO in this case. If there had been breaches even in the surrounding investigation, this may have been sufficient to tip the scales in favour of exclusion.[^2] I find no basis for exclusion here.
[57] Given the purely technical nature of the breach in this case, and the effect of excluding the drugs – reliable evidence that is essential to proof of the Crown’s case – at trial, the repute of the criminal justice system would be better served by admitting the evidence. In the circumstances of this case, I find that excluding the evidence would bring the administration of justice into disrepute.
[58] The application is dismissed.
Justice C.F. de Sa
Released: November 14, 2018
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER LEE ALLAN Defendant/Applicant
REASONS FOR DECISION
Justice C.F. de Sa
Released: November 14, 2018
[^1]: R. v. Blake, 2010 ONCA 1.
[^2]: In R. v. Plaha, 2004 CanLII 21043 (ONCA), Doherty J.A. stressed that the Court’s approach to the “obtained in a manner” requirement under 24(2) should be both “purposive” and “generous”, but at the same time, should not be “tenuous”:
The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous [Citations omitted].
See also R. v. Lau, 2018 ONSC 2550 at para. 74; R. v. Rover, 2018 ONCA 745; R. v. Szilagyi, 2018 ONCA 695: See also R. v. Boutros, 2018 ONCA 375 and R. v LAM, 2015 ONSC 2131; R. v. Pino, 2016 ONCA 389.