Court File and Parties

COURT FILE NO.: CR-18-700003890000 DATE: 20190531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – QUINTIN RICHARDS Defendant

Counsel: Margo MacKinnon, for the Crown Michael Ellison, for the Defendant

HEARD: February 11, 13 and 15, 2019

BEFORE: T. Ducharme J.

REASONS FOR JUDGMENT

[1] Mr. Richards is before the court on four charges all stemming from the seizure of a rifle in his residence following a police search of his residence at 11A-4 Vendome Place in the City of Toronto on November 17, 2017. The search was conducted pursuant to a telewarrant to search. The applicant challenges the telewarrant in this case and alleges that the police violated his s. 8 Charter rights and he seeks exclusion of the products of the search pursuant to s. 24(2) of the Charter.

[2] The applicant challenges the telewarrant on both facial and sub-facial grounds. The basis for the attack on the facial validity of the telewarrant is that it does not properly identify the place to be searched and cannot therefore validly authorize the search conducted in this case.

[3] The sub-facial attack is based on the applicant’s contention that the ITO as edited fails to set out the requisite grounds to justify the issuance of the warrant. The applicant seeks to have the Court review the editing of the ITO and to provide a judicial summary of any of the redacted portions of the ITO. The applicant also seeks leave to cross-examine the affiant. Finally, if the Court is not satisfied that the ITO, as edited, provides sufficient grounds for the issuance of the telewarrant, the Crown requests a review of the redacted portions of the ITO under step 6 of Garofoli (1990), 60 C.C.C. (3d) 161 at para. 79 (S.C.C.).

THE FACIAL ATTACK ON THE TELEWARRANT

The Telewarrant to Search

[4] The first page of the telewarrant to search reads as follows:

Whereas it appears upon the sworn information of Detective Constable Corey Dunk #9043 that there are reasonable grounds for dispensing with an information presented personally and in writing, and that there are reasonable grounds to believe that there are to be found in Dwelling unit at 11A-4 Vandome Place (and any associated storage locker) in The City of Toronto, hereinafter called the premises, certain things namely: See Appendix “A”. [Emphasis added.]

[5] This is clearly an error as the street address for Mr. Richard’s residence, the place to be searched, is 11A-4 Vendome Place not 11A-4 Vandome Place.

[6] After indicating that the foregoing items are being sought as evidence with respect to indictable offences outlined in Appendix B, the second page of the telewarrant reads:

Therefore, this is to authorize and require you to enter into the said premises and to search for and seize the above things between the hours of 7:45 p.m. on the 17th day of November, 2017 and the hour of 9 p.m. on the 20th day of November, 2017 and to report thereon as soon as practicable but within a period not exceeding seven (7) days after the execution of the warrant to the Clerk of the Court for 11A-4 Vendome Place. [Emphasis added.]

[7] The pre-printed part of the telewarrant describes the address highlighted above as the “location where the warrant is to be executed.”

[8] Throughout the Information to Obtain [“ITO”] the address is set out correctly as 11A-4 Vendome Place with the exception of the last reference in Appendix C where it is listed as “11! - Vendome Place.”

The Position of the Parties

[9] The Crown admits that the telewarrant contains an error. However, she submits that this is a “mere typo” akin to a technical defect. She submits as this did not cause any confusion with respect to the execution of the warrant and should not therefore undermine the validity of this presumptively valid warrant. The defence submits that this warrant is facially invalid as it failed to properly, sufficiently and precisely describe the premises to be searched.

The Law

[10] In 1976, in R. v. Atkinson, [1976] Criminal Law Review 307 the English Court of Appeal (Criminal Division) allowed the appeal where a search was conducted of Flat 30 in certain premises pursuant to a warrant that specified Flat 45 as the target flat. The Court rejected the Crown’s description of this error as a misdescription saying “it was not so much a misdescription of premises as a description of other premises.” [1] They concluded that:

It seemed to the court that the police did not act in the exercise of their powers under the section. [2] The warrant authorized them to enter Flat 45, which was named in the warrant, but not Flat 30.

[11] However, the Court continued that “The present decision did not apply to misspellings, or trivial errors in the description of the premises. Errors of that type would not necessarily invalidate the warrant.” [3]

[12] This leaves the question to be determined on this application. Is the misspelling of Vendome Place as Vandome Place on the warrant as a result of a typographical error merely a misspelling or trivial error in the description of the premises that would permit the telewarrant to stand or is it a description of other premises that means that the telewarrant in this case is invalid and the subsequent search is a warrantless search?

[13] In considering this question, it is helpful to return to first principles. In R. v. Caslake the Supreme Court stated at para. 12:

In order to be reasonable, searches and seizures must be authorized by law. The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someone's property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else. There are three ways in which a search can fail to meet this requirement. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C., 1985, c. C-46, authorizes searches, but only with a warrant issued by a justice on the basis of a sworn information setting out reasonable and probable grounds. A failure to meet one of these requirements will result in a search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law.

[14] A search warrant must list four things: (a) the place to be searched; (b) the items to be searched for; (c) what offences these items are evidence of; and (d) the time period in which the search is to occur. In Re McAvoy, [1970] N.W.T.J. No. 5 (Terr. Ct.), Morrow J. stated at para. 50,:

To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant fails to adequately describe the offence, fails to accurately describe the premises to be searched, or fails to give an accurate description of the articles to be seized then it will be invalid.

[15] The foregoing passage from McAvoy was cited with approval by Miller J.A. in R. v. Ting 2016 ONCA 57 where he said the following at paras. 47 to 50:

47 Broadly defined, a search warrant is an order issued by a justice of the peace that authorizes the police to enter a specified place to search for and seize specific property: see A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, at 179.

48 An adequate description of the place to be searched is a fundamental component of a search warrant. Its importance cannot be overstated: see R. v. Le, 2011 MBCA 83, 270 Man.R. (2d) 82, at para. 77; James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 8th ed (Markham: LexisNexis Canada Inc., 2010) at 87-92.

49 Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises.

50 Accordingly, a warrant that does not adequately describe the place to be searched is invalid. [Emphasis added.]

[16] In the subsequent case of R. v. Saint, 2017 ONCA 491 Miller J.A. stated in at para 6:

The function of a search warrant is to authorize police officers to enter a specified place they would otherwise have no authority to enter, in order to search for and seize specified property. Because forced entry into a private place, particularly a person's residence, is such an extraordinary exercise of executive power, it is subject to stringent juridical control: it must be judicially authorized ex ante and is subject to judicial scrutiny ex post. [Emphasis added.]

[17] Justice Miller continued at para. 7 that “the law is clear that a warrant must contain an adequate description of the place to be searched and the property to be searched for.” He then explained the “multiple reasons for this demand for specificity.”:

First, meaningful judicial pre-authorization requires specific details. It is crucial for effective judicial control of the search that the reviewing justice understand the parameters of the proposed search, and that the search conducted be the search that was in fact authorized: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 49. Second, by providing a precise description of the place to be searched, the warrant directs the actions of the executing officers, guiding them to the specific place to be searched and defining the boundaries of the search. An insufficiently specific warrant will fail to provide the requisite guidance to the executing officers, leaving them to fill in the blanks with their own knowledge, or to pursue attractive leads at their own discretion: Ting, at paras. 60-61. Third, specification of place in the warrant allows a person served with the warrant to readily apprehend that executing officers have legal authority to enter and conduct the search, reducing the risk of conflict and violent resistance to the search: Ting, at para. 49; Eccles v. Bourque, [1975] 2 S.C.R. 739. [Emphasis added.]

[18] The importance of a precise description of the place to be searched is further supported in Search and Seizure Law in Canada by Hutchinson Bury at Chapter 16(b)(x):

Warrants are issued with respect to particular places or premises and not individuals. If no place is outlined in the warrant, it is fatal. Further, the address or described place must be particular and accurate. For example, if the warrant outlines the wrong address, the search and seizure are viewed as warrantless. [Emphasis added.]

[19] In R. v. Silverstrone, [1991] B.C.J. No. 2259, the police had a warrant for 217 East 21st Avenue but proceeded to search 215 East 21st Avenue. Justice Toy for the majority concluded that:

the first search warrant only referred to a dwelling-house at 217 East 21st Avenue. That warrant could not authorize Constable Myatt, or his fellow officers, to enter and search the dwelling-house next door at 215 East 21st Avenue, or any other dwelling-house of that matter.

[20] The requirement that the warrant disclose what offences the items seized will be evidence of fulfills a similar purpose. Primarily this will assist in the conduct of the search by further defining the boundaries of the search as the officers conducting the search are entitled under s. 489(1) of the Criminal Code to seize items beyond those listed in the warrant. [4]

[21] The fourth requirement, the specification of the time for the search, also serves the purposes of the warrant requirement set out by Miller J.A., i.e. “facilitating meaningful judicial pre-authorization; directing and limiting the police in the execution of the search; and allowing occupants to understand the scope of their obligation to cooperate with the search.” [5]

[22] In this case, the defence concedes that the misspelling of 11A-4 Vandome Place is just a typographical error. But while the cause of this error is minor inadvertence that does not end the inquiry. The greater concern is the effect of this error. The effect is no different than a typographical error in which the numbers in the address 19 Carlaw Avenue are transposed as 91 Carlaw Avenue. The warrant does not provide an adequate description of the place to be searched, 11A-4 Vendome Place. Indeed, rather than properly describing that unit, the telewarrant authorized the search of an entirely different location on Vandome Place. Given that an adequate description of the place to be searched is such a fundamental component of a search warrant, the telewarrant in this case cannot be said to validly authorize the search conducted.

[23] In coming to this conclusion, it does not matter that the address of the target premises was accurately described in the ITO. As Justice Miller said in Ting at para 59:

It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it -- including police officers who are executing it and third parties whose cooperation is sought -- must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen (1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.

[24] The warrant also does not contain an Appendix B which is supposed to list the offences the items seized are to evidence of. There is an Appendix B in the ITO which lists the offence of unlawful possession of a firearm. The failure to include this with the warrant was also likely inadvertent. Importantly, the effect of this omission is not nearly as significant as the inaccurate address. Appendix A to the warrant listed the items to be seized as firearms, ammunition, magazines, firearms parts and paraphernalia and other documents in relation to firearms. From this one could readily infer that the items seized would be evidence with respect to the unlawful possession of a firearm or some related offence. Thus, while the failure to include Appendix B with the warrant is unfortunate, I would not rule that the telewarrant was invalid on this basis alone. But taken together with the improper description of the place to be searched this does support my conclusion that the telewarrant is invalid. Consequently, the search of the applicant’s residence at 11A-4 Vendome Place violated his rights under section 8 of the Charter.

SHOULD THE PRODUCTS OF THE SEARCH BE EXCLUDED PURSUANT TO SECTION 24(2) OF THE CHARTER?

[25] According to the governing three-part analysis set out by the Supreme Court of Canada in R. v. Grant, the 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; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

(1) Seriousness of the State Conduct

[26] In R. v. Grant the Supreme Court of Canada said the following about the first branch of the test:

With respect to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes.

Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum, while willful or reckless disregard of Charter rights is at the other. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct, but negligence or willful blindness is not good faith. Deliberate, willful, or flagrant disregard of Charter rights may require exclusion of the evidence. Further, if the police conduct that infringed the Charter was part of a pattern of abuse, such conduct would support the exclusion of the evidence. [6]

[27] Canadians rightly expect the police to recognize the significant privacy interests in their homes and in their computers. A valid search warrant is required to authorize such a search. While I have found that the telewarrant was invalid due to the error in the address. In the circumstances of the present case, I conclude that the police acted in good faith in relying on the telewarrant despite this error. Everything that was required to be done to obtain the warrant was done properly and the error in listing the address was an inadvertent error. Similarly, the failure to note this error on the face of the telewarrant was similarly inadvertent. Accordingly, this first prong of the governing s. 24(2) analysis, in my view, strongly favours the inclusion of the evidence.

(2) The Impact of the Charter Violation

[28] As to the impact of the Charter violation, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. Section 8 recognizes and constitutionally protects every person's right to live his or her life free of government intrusion except to the extent that the intrusion is reasonable. Personal privacy includes control over one’s body and bodily substances (physical privacy), control over certain places such as one’s residence (territorial privacy), and control over information about the person and/or his activities (informational privacy). [7] The more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value. The courts are expected to look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. [8]

[29] There are few, if any, settings in which a person has a greater expectation of privacy than the sanctity of his or her own home. Accordingly, the police intrusion of this important personal space in the present case is a grave invasion of the personal privacy of the accused. Indeed, residential searches strike at the very core of an accused’s right to privacy. Similarly, a person has a great expectation of privacy with respect to the contents of their computers. Accordingly, any violation of s. 8 of the Charter in this factual context must almost invariably be viewed as a very serious breach of the accused's constitutional rights. But in this case, while I have ruled that the challenged search was not justified by the telewarrant, I cannot ignore that everything was done that was required to be done to make this a legal search. The only problem was the inadvertent error made in improperly listing the address of the place to be searched and the error in not catching this error when the telewarrant was executed. This makes the impact on the Charter-protected interests of the accused far less serious. Thus, the second factor in the governing s. 24(2) analysis favours the inclusion of the evidence seized on November 20, 2017.

(3) The Truth-Finding Function of the Trial

[30] As to the third prong of the Grant analysis, the Supreme Court of Canada said the following:

the court must inquire into whether the truth-seeking function of the trial is better served by admission of the evidence, or by exclusion. The court must consider not only the negative impact of the admission of the evidence, but also the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this stage of the analysis. If the Charter breach has undermined the reliability of the evidence, this will support the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may bring the administration of justice into disrepute. The importance of the evidence to the Crown's case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice if the remedy effectively terminates the prosecution. [9]

[31] In the present case, there is no question that the evidence seized by the police is an inherently reliable and objective piece of evidence that is critical to the merits of the case. If this evidence is excluded, the Crown’s case must fail. If the evidence is admitted, however, the Crown would appear to be able to establish that the accused is guilty of the offences charged. Society’s interest in the adjudication of a criminal trial on its merits would be seriously undercut if highly reliable and critical evidence, such as this evidence was excluded. Accordingly, this third aspect of the governing s. 24(2) analysis clearly favours the admission of this evidence.

(4) Conclusion

[32] For the foregoing reasons, while I have found that the search of the applicant’s residence at 11A-4 Vendome Place involved a violation of his rights under section 8 of the Charter, I would not exclude the products of this search under s. 24(2) of the Charter.

OTHER ISSUES

[33] As for the sub-facial attack on the warrant, I reject this as the ITO as redacted does support the issuance of the telewarrant. I am also satisfied that the applicant has been provided with an adequate judicial summary of any of the redacted portions of the ITO. Thus, I need do nothing further under step 6 of Garofoli.

[34] As for the application to cross-examine the affiant, I have granted partial leave to cross-examine the affiant, D.C. Dunk.

T. Ducharme J. Released: May 31, 2019

Footnotes

[1] R. v. Atkinson, at p. 308.

[2] Section 23(3) of the Misuse of Drugs Act, 1971 authorizing the issuance of a search warrant.

[3] Supra, at p. 308.

[4] Section 489(1) 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: (a) has been obtained by the commission of an offence against this or any other Act of Parliament; (b) has been used in the commission of an offence against this or any other Act of Parliament; or (c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[5] R. v. Saint, supra, at para. 9.

[6] R. v. Grant, at paras. 74-75.

[7] R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 20-24.

[8] R. v. Grant, supra note 6 at paras. 76-78.

[9] R. v. Grant, supra note 6 at paras. 79-84.