COURT FILE NO.: 818/17
DATE: 2019 08 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Stackhouse, for the Crown
- and -
DEMETRE HIBBERT AND RAQUEL WILLIAMS
M. Luft, for Demetre Hibbert M. Salih, for Raquel Williams
HEARD: July 4, 2019
RULING RE: Section 24(2) of the Charter
Dennison J.
A. Introduction
[1] Police believed Mr. Hibbert was involved in a drive-by shooting on December 2, 2016. On January 11, 2017, police obtained a warrant to search his BMW, that he was believed to be driving at the time of the shooting, and a residence he was associated to. Police chose not to execute the warrants because Mr. Hibbert left the country for two weeks. Police returned to the investigation in March. Police arrested Mr. Hibbert and searched his BMW pursuant to the search warrant on March 10, 2017. After searching the BMW for almost two hours, police located a loaded handgun behind a fan/air conditioner control panel.
[2] Police also executed a search warrant at Ms. Williams’ residence because they believed that Mr. Hibbert was staying at that address. During the execution of the search warrant police discovered a variety of drugs.
[3] Mr. Hibbert was charged with a number of firearm offences and Ms. Williams was charged with a number of narcotic offences.
[4] Mr. Hibbert and Ms. Williams brought an application asserting that their s. 8 Charter rights were violated and that the handgun and drugs should be excluded as evidence at their trials. I found that Mr. Hibbert’s and Ms. Williams’ s. 8 Charter rights were violated because the information to obtain (ITO) did not contain reasonable and probable grounds to support the belief that Mr. Hibbert would be in possession of the handgun three months after the shooting. The warrant, therefore, could not have been issued. That decision can be found at 2019 ONSC 3219.
[5] The issue to be determined now is whether the handgun and drug evidence should be excluded pursuant to s. 24(2) of the Charter.
B. Background
i. Obtaining the Search Warrants
[6] A drive-by shooting occurred on December 2, 2016 on Goreway Drive, Brampton. Police received information from Ms. Lewis, who was a passenger in the vehicle that was shot. She described the shooter’s vehicle as a silver four-door vehicle she believed was a BMW. She believed the shooting was in relation to a feud between two gangs, the “Ave boys” and the “MBG.” She heard the shooter say “Are you repping the Ave boys?” at the time of the shooting. Ms. Lewis believed the suspect’s nickname was “Meechie.” Ms. Lewis knew that the “MBG” group lived in the high-rise building at the corner of Derry Road and Goreway. Her boyfriend attended the Goreway address and saw the shooter’s vehicle.
[7] The police believed that Mr. Hibbert was the shooter. Police determined that Mr. Hibbert went by the nickname “Meechie” and used the name “Meech” on his Facebook page. Mr. Hibbert also drove a silver BMW, which had a distinctive skirting around the bottom of the vehicle. Police observed Mr. Hibbert driving the BMW during surveillance of the Goreway address. There was also surveillance footage from a Tim Horton’s directly before the shooting. The video shows the victim’s vehicle driving on Derry Road, and beside it, a second vehicle with the passenger window open. The second vehicle was silver with skirting and had dark wheels and rims. The affiant believed that car depicted in the video surveillance was Mr. Hibbert’s BMW.
[8] On January 11, 2017, police obtained search warrants for the BMW used by Mr. Hibbert and 107-7340 Goreway Drive (Goreway address). That address was believed to be Mr. Hibbert’s residence. The police were searching for the handgun, ammunition and a white spring jacket with dark designs on it, as well as a blue hooded sweatshirt.
[9] Police did not execute the search warrants because they learned that Mr. Hibbert had left the country for approximately two weeks. Police believed that there was a reduced likelihood that the handgun, ammunition and clothing would be located in Mr. Hibbert’s absence. Police confirmed that Mr. Hibbert returned to Canada on January 21, 2017. Police still did not execute the search warrant.
[10] Police returned to their investigation in March 2017. They believed that Mr. Hibbert was residing at the Goreway address and at Ms. Williams’ apartment at 201-8 Newhaven Manor, in Brampton (Newhaven address).
[11] On March 6, 2017, Police Constable (PC) Sherwin applied for search warrants for the BMW, the Goreway address and the Newhaven address to search for the handgun, ammunition and clothing. Justice of the Peace Florence granted the search warrant for the BMW but denied the search warrants for the residences. She found that there was an insufficient description of the Goreway address and insufficient evidence to justify entry into the Newhaven address.
[12] PC Sherwin prepared a new ITO for the two addresses. In the new ITO, he stated that he addressed Justice of the Peace Florence’s concerns. On March 9, 2017, Justice of the Peace Morin granted search warrants for the BMW, the Goreway address and the Newhaven address.
ii. Executing the Search Warrants
[13] On March 10, 2017 police observed Mr. Hibbert leave the Newhaven address, enter the BMW and drive away. Police arrested Mr. Hibbert at approximately 11:21 a.m. and executed the warrant on the BMW.
[14] The BMW was towed to 21 Division in Brampton. At approximately 1:35, PC Oxley began to search the vehicle. At 3:23 p.m., PC Oxley found the handgun concealed behind the fan/air conditioner and heat control panel.
[15] After Mr. Hibbert was arrested, officers executed the search warrant at the Goreway address. Police ordered everyone out of the apartment, including Shareek Brown, her partner Derrick Munroe, and their two-year-old son. They were detained while officers searched the apartment for one hour and fifteen minutes. Mr. Munroe was handcuffed.
[16] Police also executed the search warrant at the Newhaven address. PC Sherwin could hear someone inside the residence. He knocked, but no one answered. He knocked a second time and announced “Police,” but no one answered. He knocked a third time and announced “Police,” but no one answered. The decision was made to force entry into the residence due to the concern that the handgun may be in the residence.
[17] The door was kicked open. Ms. Williams and her four-year-old son were inside. Ms. Williams, who was on her cell phone at the time, was detained. A relative came and took her son.
[18] Six officers entered the residence and thoroughly searched the apartment for one and a half hours. The police arrested Ms. Williams after discovering drugs in the apartment. Police found 30.4 grams of heroin and 8.6 grams of crystal meth in a safe in the washroom. Police also located 14.55 grams of marijuana in the nightstand drawer. Ms. Williams was evicted from her apartment because drugs were discovered in the apartment.
iii. Findings from the Charter Application
[19] I found that Mr. Hibbert and Ms. Williams’ s. 8 Charter rights were violated because the ITO lacked reasonable and probable grounds on which to issue search warrants for any of the locations at the time the warrants were issued. The key findings relevant to the s. 24(2) Charter analysis are briefly summarized below.
[20] First, the evidence of PC Brozny was excised from paragraph 20 of the ITO. I found the evidence stated in that paragraph was obtained in violation of s. 9 of the Charter. PC Brozny, a York Regional Police officer, did not have a legitimate Highway Traffic Act purpose when he stopped Mr. Hibbert’s vehicle. PC Brozny stopped the vehicle because he saw that Mr. Hibbert was flagged as a surveillance person in a shooting. This was an arbitrary detention. There were two passengers in the car, Khadeem Brown-Ramkissoon and Jahlani Brown-Ramkissoon. They resided at Victory Crescent in Brampton. PC Brozny did not search the vehicle because, in his own words, “no one was breaching and nothing criminal [had occurred], so [I] wasn’t able to get into the vehicle unfortunately.”
[21] Second, there were reasonable grounds to believe that Mr. Hibbert was the shooter, such that the warrant could be issued. Ms. Lewis was present in the other vehicle during the shooting. Her description of the vehicle was consistent with Mr. Hibbert’s BMW. Her description of the shooter was also consistent with Mr. Hibbert in some respects but inconsistent in others. She believed the shooting was in relation to a feud between the Ave boys and the MBG. During the confrontation she heard the shooter say, “Are you reppin the Ave boys”? There was also videotape taken from a Tim Hortons at the time of the shooting. The affiant believed that the vehicle in the Tim Hortons video was the same vehicle driven by Mr. Hibbert.
[22] Third, the main failing of the ITO was that there were not reasonable and probable grounds to believe that Mr. Hibbert still had the handgun, ammunition and clothing at the locations when the warrants were issued on March 9, 2017. I found there were insufficient grounds to believe that Mr. Hibbert would still be in possession of the items to be searched for such that the warrant could not have been issued. The affiant used conclusory language and speculated about a shooting at Victory Crescent in Brampton to try and bridge the inferential gap that Mr. Hibbert would still possess the handgun and other items three months after the drive-by shooting.
[23] There was no basis for the affiant’s assertion in the ITO that the “criminal lifestyle that [Mr. Hibbert] lives requires him to carry a handgun for protection.” There was very little suggestion in the ITO that Mr. Hibbert was engaged in a criminal lifestyle, aside from Ms. Lewis’ statement that she believed the shooting was in relation to a gang feud and that the shooter said “you repping the Ave boys”? There was no evidence of an ongoing gang feud or the nature of the feud. There was no evidence in the ITO that Mr. Hibbert continued to be involved in any gang or criminal activity after December 2, 2016. The ITO did not contain any information that Mr. Hibbert was a known gang member or associated with gang members. None of the residences he associated with were connected to criminal or gang activity.
[24] In March 2017, there were not credible grounds to support the affiant’s assertion in the ITO that Mr. Hibbert “is believed to be involved in a violent feud between street gangs” that would require him to have a handgun. While there were grounds to believe that the initial shooting may have been gang-related, there was no evidence in the ITO that there was an ongoing violent gang feud.
[25] The affiant stated that he believed Mr. Hibbert was the target of the Victory Crescent shooting on February 25, 2017, and that this shooting was in retaliation for the drive-by shooting in December. Based on this shooting, the affiant believed the gang feud was ongoing and, therefore, Mr. Hibbert would have the handgun for protection.
[26] There was no credible evidence from which to infer that Mr. Hibbert was the intended target of the Victory Crescent shooting. The affiant’s belief was based on speculation. The affiant was cross-examined about his belief that Mr. Hibbert was the target of the shooting and agreed that the lead investigator of the Victory Crescent shooting told him on March 4, 2017, that he did not know who was responsible for the shooting. Mr. Hibbert did not live at the residence where the shooting occurred and was not there at the time of the shooting. Khadeem Brown-Ramkissoon lived at the residence, along with three other persons. There was no evidence that the residents were associated to a gang, nor was the address associated to gang or criminal activity.
[27] Fourth, the fact that the victim group knew Mr. Hibbert was the shooter did not provide a sufficient basis to believe that Mr. Hibbert would still posses the handgun three months later where there was no evidence of continued gang involvement or criminal activity.
[28] Fifth, despite the fatal flaw in the search warrant, I was not satisfied that the affiant deliberately tried to mislead the issuing justice. The ITO lacked sufficient grounds to be issued and parts of the ITO were sloppy. The ITO was inaccurate in stating that Ms. Lewis “saw the suspect vehicle at the address.” The affiant’s notes and evidence on cross-examination made it clear that it was Ms. Lewis that stated that her boyfriend attended at the Goreway address and saw the vehicle. The affiant was also sloppy in using the statement that Mr. Hibbert had “recently” been observed carrying a satchel to support his belief that Mr. Hibbert still had the handgun. Mr. Hibbert was only seen with the satchel on December 9 and 13, 2016. The warrant was issued in March 2017, so the term “recently” was misleading. It is likely that the affiant simply did not update the January affidavit when he reviewed it in March because the affiant refers to the paragraphs in the ITO that contain the date of the observations.
[29] Sixth, there were sufficient grounds to connect Mr. Hibbert to Ms. Williams’ Newhaven address. The warrant was insufficient in relation to that address, however, because there was no basis to believe that Mr. Hibbert would still possess the items to be searched for at the time the warrant was issued.
[30] Given the lack of grounds to believe that Mr. Hibbert possessed the handgun and other items at the time the warrants were obtained, I found that Mr. Hibbert’s and Ms. Williams’ s. 8 Charter rights were violated.
C. Issue #1: Should the Evidence of the Firearm and Drugs be Excluded Pursuant to s. 24(2) of the Charter?
[31] Section 24(2) of the Charter provides that where “evidence was obtained in a manner” that infringes a Charter right, “the evidence shall be excluded if it is established that, having regard to all of the circumstances, that the admission of the evidence in the proceedings would bring the administration of justice into disrepute.”
[32] In considering whether the evidence “was obtained in a manner” that infringes the Charter, the court applies a generous approach and considers the entire “chain of events” between the police and the accused. The connection between the evidence and the breach may be “causal, temporal or contextual, or any combination of these three connections,” but it cannot be tenuous: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.
[33] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, held that the court must assess the effect of admitting the evidence on society’s confidence in the administration of justice having regard to:
a) The seriousness of the Charter-infringed state conduct;
b) The impact of the breach on the Charter-protected interests of the accused; and
c) Society’s interest in the adjudication of the case on its merits.
[34] In determining whether evidence obtained in violation of the Charter should be admitted, the court considers whether, having regard to all of the circumstances, the admission of the evidence “would bring the administration of justice into disrepute.” This must be viewed through “the eyes of a reasonable [person], dispassionate and fully apprised of the circumstances of the case.” The exercise of discretion must focus on the “long term community values” so that a decision of the trial judge does “not render a decision that would be unacceptable to the community when that community is not being wrought by passion or otherwise under passing stress due to current events:” see R. v. Omar 2018 ONCA 975, per Brown, J., at para. 127, citing R. v. Collins, [1987] 1 S.C.R., at pp. 283-84.
[35] The tension between the three Grant factors, particularly in relation to gun cases, was discussed by Doherty J.A. in in R. v. Le, 2018 ONCA 56, at para. 151:
What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct. For instance, in Grant, the Supreme Court of Canada admitted a firearm. In Paterson, the majority excluded one. As it excluded the conversations in Marakah. [Emphasis added]
[36] After giving careful consideration to the facts in the case, the Charter breach involved and the principles set out in the jurisprudence, I am satisfied that a proper balancing of the Grant factors requires that the handgun and drugs be excluded as evidence at Mr. Hibbert’s and Ms. Williams’ trials for the reasons set out below.
1. Seriousness of State Misconduct
[37] The first factor to consider is the seriousness of the state’s misconduct. As noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 23:
“[p]olice conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights… What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.”
[38] The applicants submit that the Charter breach is at the serious end of the spectrum. The applicants point to a pattern of police misconduct including the illegal traffic stop, the sloppiness of the ITO, the lack of evidence to bridge the inferential gap from the staleness of the information to believe Mr. Hibbert would still possess the firearm and conclusory language in the ITO that is misleading. Whether the misconduct was intentional or not, it had the effect of misleading the issuing justice which renders the Charter breach extremely serious.
[39] The Crown submits that there is no basis to find that the affiant acted in bad faith or that he was not full, fair and frank in the ITO. The affiant subjectively believed that Mr. Hibbert would still have the handgun. Two different Justices of the Peace agreed that there were sufficient grounds to believe that Mr. Hibbert would still possess the handgun and other items. The affiant did not disobey a clear line in the law but rather drew an inference where there may not have been a sufficient basis to do so.
[40] The police’s conduct was grossly negligent. The conduct falls at the serious end of the spectrum.
[41] The police deliberately chose not to execute the warrant in January 2017. They had information to believe that Mr. Hibbert was still in possession of the handgun and this information was not stale at that time. Police made a conscious decision not to execute the warrant in January 2017 because Mr. Hibbert left the country for two weeks. Police could have executed the warrant in January, or immediately upon Mr. Hibbert’s return, but they decided to wait a further six weeks before applying for new search warrants. The police provided no reason for why they waited so long to obtain new search warrants.
[42] While I did not find that the affiant deliberately tried to mislead the issuing justice in the ITO, the way in which he drafted the ITO had the effect of misleading the issuing justice into granting search warrants when there were no grounds to do so. Police cannot rely on good faith to explain the lack of grounds to obtain the warrant. Good faith errors must be reasonable: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para 69. Negligence in meeting Charter standards cannot be equated to good faith: see Grant, at para. 75.
[43] There is more than just careless wording or an innocent mistake in this ITO. The use of language throughout the ITO had the effect of misleading the issuing justice to believe that there was more evidence linking Mr. Hibbert to ongoing gang activity than there actually was. This created a misleading impression that Mr. Hibbert would still be in possession of the handgun and other items more than three months after police believed he used the handgun. This is a serious Charter breach as demonstrated in the jurisprudence: see R. v. Morrelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 99-101; R. v. Rocha, 2012 ONCA 707, at para. 32; R. v. James, 2019 ONCA 288, per Pardu J.A., at para. 39: R. v. Szilagyi 2018 ONCA 695, at paras. 47-48 and 77.
[44] In Morelli, the Supreme Court held that even if the affiant did not deliberately attempt to mislead the issuing justice, if the ITO is drafted in a misleading manner that is a serious Charter breach. The Court noted, at para. 102, that when seeking search warrants, police officers have “special duties of candour and full disclosure,” given the nature of ex parte proceedings. In discharging these duties officers “must guard against making statements that are likely to mislead the justice of the peace. They must refrain from omitting relevant facts” and must not exaggerate the information they rely upon to establish reasonable and probable grounds.
[45] The language chosen by the affiant throughout the ITO had the effect of misleading the issuing justice into believing that Mr. Hibbert was a longstanding gang member and involved in an ongoing gang feud that would require him to possess a handgun. The affiant used conclusory language stating that Mr. Hibbert lived a criminal lifestyle that requires him to carry a handgun. The only information that linked Mr. Hibbert to a criminal lifestyle was that he allegedly said “are you repping the Ave boys?” during the shooting. There was no other evidence to suggest that Mr. Hibbert had an ongoing association with a gang, other gang members or with persons engaged in criminal activity. Police surveillance of Mr. Hibbert did not observe him involved in any criminal activity. None of the residences he was associated to were connected to criminal or gang activity. His criminal record did not suggest that he led a criminal lifestyle. There was one conviction for possession for the purpose of trafficking an unknown drug.
[46] The affiant’s statement that “investigators believe that this gun violence (at Victory Crescent) was directed to Demetre Hibbert and is retaliation for his shooting at Brandon Bunbury’s vehicle” also had the effect of misleading the issuing justice.
[47] The ITO was misleading because it suggested that there was a basis for investigators to believe that Mr. Hibbert was the target of a retaliatory gang shooting. In reality, this was the affiant’s belief, alone, as he admitted during cross-examination. The officer-in-charge of investigating the Victory Crescent shooting did not have a suspect when the affiant swore the ITO. This fact was not disclosed in the ITO leaving the misleading impression that police, as opposed to just the affiant, believed that Mr Hibbert was the target of the shooting. There were no credible grounds to believe that Mr. Hibbert was the target of the shooting. He did not live at Victory Crescent and was not there at the time of the shooting. Two of his friends resided there but there was no evidence that they, or the other two residents, were part of a gang or involved in criminal activity.
[48] The ITO was also sloppy in some respects. The ITO mistakenly stated that Ms. Lewis attended at the Goreway address and saw Mr. Hibbert’s vehicle. It was not Ms. Lewis that attended but her boyfriend who attended and saw Mr. Hibbert’s vehicle.
[49] In addition, the ITO described Mr. Hibbert as “recently” carrying a satchel when in fact that information was three months old. The affiant stated that Mr. Hibbert was recently seen carrying a satchel and, in the affiant’s experience, persons who carry satchels may be carrying a handgun. He relied on this fact to support his belief that Mr. Hibbert would still have the handgun. The last observation of Mr. Hibbert carrying the satchel was in December 2016. I did not find that the affiant deliberately tried to mislead the issuing justice because the affiant, after making this statement, referred to an earlier paragraph in the ITO that contained the December date when Mr. Hibbert was observed with the satchel.
[50] The ITO also used conclusory language, including the statement that “people entrenched in gang culture will often stay and use family members’ residences to hide weapons so they will be easily accessible and hidden from rival gang members and police.” The Crown did not place much reliance on these statements in arguing that the warrant was sufficient because other evidence provided grounds that Mr. Hibbert was associated to the addresses. The language was nonetheless conclusory. There was no evidence that Mr. Hibbert was associated with ongoing criminal or gang activity. Nor was there evidence to support the opinion that members engaged in this type of behaviour: see Morelli, at paras. 81, 82 and 85.
[51] The ITO in this case was seriously deficient. The ITO was worded in a way to leave the issuing justice with the impression that Mr. Hibbert was actively involved in gang activity and the target of a recent gang shooting when there was no credible evidence to support that inference. This is a serious Charter breach that weighs heavily in favour of exclusion. As the Supreme Court explained in Grant, the more severe or deliberate the state conduct that resulted in the Charter violation, “the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence and ensure state adherence to the rule of law”: para. 72.
[52] The applicants also submit that PC Brozny’s illegal traffic stop makes the Charter breach in this case more serious. As noted by Laskin J.A. in Pino, evidence obtained by a Charter breach may be considered in the s. 24(2) analysis if there is a causal, temporal or contextual connection that “is neither too tenuous nor too remote”: para. 74
[53] The s. 9 Charter breach is remote and too tenuous to be considered in the s. 24(2) analysis. There is a lack of temporal connection; the s. 9 Charter violation occurred in December 2016 and the warrants were obtained in March 2017. There is also no causal connection; PC Brozny learned that Mr. Hibbert was associated to Khadeem Brown-Ramkissoon through the traffic stop on December 22, 2016 but police had already observed Mr. Hibbert at the Victory Crescent address where Mr. Ramkissoon resided on December 16, 2017.
[54] There is only a contextual connection between the s. 9 Charter breaches and the discovery of the handgun because the information PC Brozny obtained from the illegal traffic stop was originally contained in the ITO. I subsequently excluded this information after finding that it was obtained in violation of s. 9 of the Charter.
[55] The contextual connection between the information obtained by PC Brozny and the s. 9 Charter breach is too tenuous to be considered in the s. 24(2) Charter analysis. PC Brozny had no connection to this investigation or in obtaining the search warrant. He was not a member of the team investigating the shooting, nor was he even a member of the Peel Regional Police. PC Brozny saw a caution on the vehicle and thought he could assist the investigation. The s. 9 Charter breach does not add to the seriousness of the s. 8 Charter breach.
2. Impact of the Charter Breach
[56] The second stage of the Grant analysis focuses on “whether and to what extent, in the totality of circumstances, the Charter breach actually undermined the interests protected by the right infringed”: R. v. Lee, 2019 SCC 34, per Brown and Martin JJ., at para. 151. The more serious the impact on the applicant’s constitutionally protected interest, “the greater risk that the admission of the evidence may signal to the public that Charter rights, however high sounding, are of little actual avail to the citizen,” bringing the administration into disrepute: Grant, at para. 76.
[57] At first glance, the Charter breach may not be considered very impactful on Mr. Hibbert’s expectation of privacy in the motor vehicle. Although a motorist enjoys a reasonable expectation of privacy in a vehicle, it is a diminished expectation, given the highly regulatory nature of operating a motor vehicle: see R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at para. 19; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615.
[58] The Crown submits that Mr. Hibbert’s expectation of privacy is further diminished because Mr. Hibbert made a conscious decision to register the vehicle in another person’s name to distance himself from illegal activity. Crown counsel concedes that Mr. Hibbert had constructive possession of the vehicle, which is necessary to find that he possessed the handgun discovered in the car.
[59] The fact that the vehicle was registered to another person, does not significantly diminish Mr. Hibbert’s reasonable expectation of privacy. While ownership of the vehicle is a factor to consider, it is but one factor. People often rent vehicles for extended periods of times and cars may be owned by a corporation or a parent. This does not mean that the driver of such a vehicle does not have a legitimate expectation of privacy. The totality of the circumstances must be considered. In this case, Mr. Hibbert regularly drove the BMW over a four-month period. The Crown conceded he was in constructive possession of the BMW. In the circumstances, I find Mr. Hibbert had a reasonable expectation of privacy similar to the owner of the vehicle.
[60] The nature of the search must also be considered in assessing the impact of the breach. This was a more intrusive search of a motor vehicle.
[61] Police had grounds to arrest Mr. Hibbert for the drive-by shooting. Police may have searched the vehicle for evidence or weapons incidental to that arrest: see generally R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51. Police may also have had a basis to conduct an inventory search if the vehicle was lawfully seized: see R. v. Ellis, 2016 ONCA 598, at para. 56. However, based on where the handgun was located, it would not have been discoverable through either a search incident to arrest or an inventory search. It is unlikely that the handgun would have been located without the search warrant. Police searched the vehicle for almost two hours and only found the handgun after removing the fan and air conditioning control panel.
[62] In all of the circumstances, I find that the Charter breach had at least a moderate impact on Mr. Hibbert’s Charter-protected interests. This is a factor that weighs slightly in favour of excluding the handgun.
[63] The impact of the Charter breach on Ms. Williams, however, is serious. Ms. Williams had a strong expectation of privacy in her residence. She invited Mr. Hibbert into her home and it was through her association with Mr. Hibbert that her home was searched: see Grant, at para. 131.
[64] The search itself was also intrusive. Ms. Williams did not answer the door, so police broke the door to enter the apartment. Ms. Williams and her son were initially detained in the hallway. Ms. Williams called someone to take her son. She was detained throughout the search. The police searched her residence for one and a half hours, leaving it in a state of disarray. The impact of the Charter breaches on Ms. Williams’ Charter-protected interests is significant. This factor favours exclusion of the drugs.
3. Society’s Interest in Adjudication on the Merits
[65] The final factor to consider is society’s interest in having the case adjudicated on its merits. This question asks whether the truth-seeking function of the criminal trial would be better served by admission of the evidence or by its exclusion: see Grant, at para. 79.
[66] As noted by a majority of the Supreme Court in Lee, at para. 142, society’s interest in adjudication of the case on the merits typically pulls in favour of admitting the evidence, “particularly where the evidence is reliable and critical to the Crown’s case.” The Supreme Court noted that this does not mean that all reliable and critical evidence should be admitted. The Supreme Court noted that the third inquiry becomes particularly important “where one, but not both of the first two inquiries pull towards the exclusion of the evidence.” Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom tip the balance in favour of admissibility.
[67] The handgun is reliable evidence. So too are the drugs that were found in Ms. Williams’ residence: Grant, at para. 81. The exclusion of the handgun and the drugs in these cases will undoubtedly gut the prosecutions given the offences charged: Grant, at para. 83. These factors weigh heavily in favour of admitting the handgun and the drugs at Mr. Hibbert’s and Ms. Williams’ trials.
Conclusion with Respect to the Admission of the Handgun
[68] The s. 24(2) Charter analysis requires balancing the three lines of inquiry to determine whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: see Grant, at paras 85-86.
[69] This balancing exercise requires a qualitative assessment that does not lend itself to “mathematical precision”: Grant, at para. 140; R. v. Herta, 2018 ONCA 927, at para. 73.
[70] In balancing the seriousness of the Charter breach, the moderate impact on Mr. Hibbert’s privacy interests, and society’s interest in adjudicating the case on the merits, I am satisfied that the handgun should nonetheless be excluded. The admission of the handgun in all of the circumstances would bring the administration of justice into disrepute.
[71] The police actions were grossly negligent. As stated in Rocha, “the apparent good faith of the police in resorting to the warrant process is undermined by the misleading and careless wording in the ITO”: para. 42. Police failed to execute the warrant in a timely fashion. The affiant drafted the ITO exaggerating the extent of Mr. Hibbert’s involvement in a gang and his need to have a handgun that had the effect of misleading the issuing justice. This is a serious Charter breach. The search warrants should not have been issued. Without the search warrants, police would not have discovered the handgun or the drugs.
[72] The impact on Mr. Hibbert’s Charter-protected interest, as it related to his motor vehicle was moderate. However, in considering all of the circumstances, it should not be forgotten that other innocent persons’ Charter rights were impacted as a result of the improperly obtained search warrants. The occupants of the Goreway residence were ordered out of the apartment and detained for one hour and fifteen minutes while police searched the residence. One occupant was handcuffed. Ms. Williams’ residence was also improperly searched based on the improperly obtained search warrant.
[73] In balancing the Grant factors, I am also cognizant of the fact that the handgun is a weapon that may be used to kill people, as opposed to another type of evidence, such as stolen goods. I agree that this is a factor that must be considered “having regard to all of the circumstances” in the s. 24(2) Charter analysis: see R. v. Omar, 2018 ONCA 975, per Brown, J., in dissent, at para 123, affirmed 2019 SCC 32.
[74] I recognize the plague that persons who possess and use handguns have on communities in this region. Cases involving handguns are far too common in this court. Careful consideration must be given to the community’s views on whether the exclusion of a handgun would bring the administration of justice into disrepute in a given case, given the community’s right to live in a safe and secure neighbourhood.
[75] However, the fact that the evidence is a handgun cannot be the determinative factor in the s. 24(2) Charter analysis. As noted by the Supreme Court in Grant, failure to prosecute an offence involving a handgun may have an immediate effect on how people view the criminal justice system. However, it is the long-term repute of the justice system that is the focus of s. 24(2). The public “also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84.
[76] Courts should not be seen to condone police misleading issuing justices into granting search warrants that intrude on individuals’ privacy where there are no bases to grant such warrants. Particularly, where i) police original had grounds to obtain the warrant but chose not to execute the warrant, and ii) later relied on speculative and conclusory language that had the effect of misleading the issuing justice to believe that the accused would still have the items in his possession. A higher standard of conduct must be expected from police to reinforce the community’s commitment to the individual rights guaranteed by the Charter, particularly given that the warrant process is ex parte. There is a high duty on the police to be full, fair and frank in applying for search warrants in this ex parte process. Although I found the police were not deliberate in their actions, their conduct fell well below the standard that is expected in obtaining search warrants. Exclusion of the handgun in this case helps ensure the constitutional rights of all members of the community in the future and better serves the repute of the administration of justice in the long-term. The unpalatable result of excluding the handgun “is the direct product of the manner in which the police chose to conduct themselves,” not the court’s indifference towards handguns or community safety: see R. v. McGuffie, 2016 ONCA 365, at para. 83; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56.
Conclusion with Respect to the Admission of the Drugs
[77] The first two factors in the s. 24(2) Charter analysis strongly favour exclusion of the drugs that were seized from Ms. Williams’ residence. The Charter breach was serious for the reasons already outlined, and the impact of the search was also serious given that it was a search of her home. This is not one of the seldom cases where the importance of adjudicating the facts on the merits tips the scale in favour of admitting the evidence. It is in the long-term interest of the administration of justice that the court distance itself from police conduct that is grossly negligent and seriously impacts people’s right to privacy.
D. Conclusion
[78] The evidence of the handgun and drugs are excluded pursuant to s. 24(2) of the Charter.
Dennison J.
Released: August 22, 2019
COURT FILE NO.: 818/17
DATE: 2019 08 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEMETRE HIBBERT AND RAQUEL WILLIAMS
RULING
RE: Section 24(2) of the Charter
Dennison J.
Released: August 22, 2019