COURT FILE NO.: CR-18-228
DATE: 2019-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Cheryl Gzik, for the Respondent
Respondent
- and -
Giovanni Corda
Charles Spettigue, for the Applicant
Applicant
HEARD: September 11, 12, 23 and 24, 2019
SKARICA J.
RULING ON PRE-TRIAL MOTIONS
[1] The accused, an elderly gentleman, is charged with attempt abduction regarding an incident involving 13-year-old Selena Roque on May 3, 2017. The accused is also charged with the abduction of 5-year-old Zita Peters on May 24, 2017. Both complainants were unharmed. On June 5, 2017 a search warrant was issued to search the accused’s home. The wrong address was on the warrant. A new warrant was issued for June 6, 2017 at a different address and a search took place. The accused was arrested on June 6, 2017 and made a video statement to the police. The Crown seeks to have this video statement and a previous oral statement made by the accused on May 3, 2017 admitted into evidence. The accused raises Charter concerns regarding these statements and seeks to have them excluded.
[2] Similarly, the accused alleges that the search warrant is not valid, and any evidence gained from the execution of the search warrant should be excluded as evidence at a trial pursuant to s. 24 of the Charter.
ISSUES
[3] Pre-trial motions were heard regarding:
the admissibility of the accused’s oral statements on May 3;
the admissibility of the accused’s police video statement, dated June 6, 2017; and
the validity of a search warrant and admissibility of items seized from the accused’s apartment.
FACTS
THE ATTEMPT ABDUCTION – SELENA ROQUE – MAY 3, 2017
MAY 3, 2017 STATEMENTS BY ACCUSED AND POLICE “INVESTIGATION”
OFFICER BALON – IN-CHIEF
[4] Officer Balon testified at the pre-trial motion. She indicated that she was dispatched on May 3, 2017 to 657 King Street East, Hamilton at about 6:13 p.m.
[5] Upon arriving at 657 King Street East, Apt. 2E, Officer Balon, who had a partner, spoke to 13-year-old Selena Roque and her mother Helena Roque. Selena provided Officer Balon details about her complaint:
Selena indicated that she had been locked out of her apartment. Selena waited for her mother to return in the Carlton Tavern located beneath her residence. Her neighbour, an older male who she knows as John, approached Selena and told her she was beautiful and had a nice body. He asked if he could take pictures of Selena. A couple of weeks earlier, this same “John” had asked if he could teach her how to sing. Selena point to John’s apartment.
[6] Officer Balon decided, with her partner, to speak to “John” to get his side of the story. At that time, Officer Balon felt she had no grounds for an arrest. Officer Balon was not given a number for the accused’s apartment. It was pointed out by Selena that the apartment could be seen from where the officers were stationed.
[7] The officers went up to the apartment – apartment “A”. They knocked on the door or pressed a door bell.
[8] The accused, an older 70-year-old male, answered the door. The officers were in full uniform. He allowed them to go inside. They went in the front door. Officer Balon could see into the kitchen and living room. Officer Balon told him about Selena’s complaint and their concern. Mr. Corda stated he never spoke to Selena that day. Mr. Corda admitted to talking to Selena previously. Mr. Corda was advised that Selena did not want to talk to him anymore. He was further advised that a criminal harassment charge could be laid if he continued to tell Selena “she had a nice body”, etc.
[9] Officer Balon observed posters on the wall of Elsa from the movie “Frozen”. There were also more than five Barbie dolls in the living room. When questioned about the dolls, the accused stated he was a collector. The accused stated he never had children in his apartment. Mr. Corda was very cooperative and he provided information freely. Officer Nelsy Armstrong was Ms. Balon’s partner.
OFFICER BALON – CROSS-EXAMINATION
[10] In cross-examination, Officer Balon indicated she had no notes of the exact request but she would have asked him if she could come in and he said yes. She would not have gone in without his express consent. People allow police into their homes all the time. The Selena incident was strange but it was not criminal and the accused was not a suspect. She did not caution the accused and did not tell him he did not have to speak or that he did not have to let the police into his apartment. The accused was very cooperative. She did not go into the bedroom.
[11] In the photos, taken by the police during the execution of the warrant on June 6, 2017 and entered into as exhibits, there are no Disney posters or characters on the wall in the living room/kitchen. Photo 157 is a photo of Elsa and her sister Anna from “Frozen”. The officer cannot say if it is the same photo.
OFFICER ARMSTRONG – IN-CHIEF
[12] Officer Armstrong currently works for the Toronto Police Service (TPS). In May of 2017, she worked for the Hamilton Police Service (HPS), and on May 3, 2017 was working the 4:00 p.m. – 4:00 a.m. shift with Officer Stephanie Balon.
[13] At 6:13 p.m. she responded to a dispatch call to attend 657 King Street East regarding a complaint from a female involving her 13-year-old daughter and a neighbour. They received information from Helen, the mother, and the 13-year-old daughter Selena, that the neighbour had said to Selena that she “had a nice body” and was “beautiful”. These remarks made Selena uneasy. Helen said that the neighbour, Mr. Corda, lived at apartment 2B.
[14] The officers went to Corda’s apartment at 2B. Corda came to the door. They asked if “we” could speak to him. He agreed. He invited them in. He was questioned regarding Selena’s allegations and he denied them. Corda denied saying anything to Selena. There were lots of toys in the apartment, radio-controlled cars and numerous Barbie dolls. He was asked about why he had the toys. Corda said, “I’m a collector”.
[15] They asked him if they could come into the apartment and he agreed. He had no difficulty understanding English. He was cautioned about staying away from Selena and about criminal harassment. Officer Armstrong had checked with NICHE and noted two other incidents. He was told it was in his best interest to stay away from Selena. He agreed and was not charged.
[16] There were a lot of Barbie dolls – approximately 10 were in the living room – they were out of the box and had clothes on.
OFFICER ARMSTRONG – CROSS-EXAMINATION
[17] In cross-examination, Officer Armstrong indicated the NICHE check, which showed two previous incidents, was done prior to arriving at 657 King Street East. Previous Incident #66377 dealt with the accused exposing himself.
[18] The tenants in the building told them where to go to Corda’s door. She recalls his door having 2B on it.
[19] When Corda opened the door, he was not cautioned about his right to silence. He was not informed of rights to counsel. They asked if they could speak to him and if they could come in. He said okay. Specifically, they asked him if he was G. Corda. They told him they wanted to talk about Selena Roque and asked “Can we come in?”
[20] Between May 3, 2017 and June 6, 2017, she had no communication with the OIC. She was available for questions during that time.
THE ABDUCTION – ZITA PETERS – MAY 24, 2017
OFFICER DRUMM – EXAMINATION IN-CHIEF
[21] On May 24, 2017, at 6:37 p.m. Officer Drumm attended at 657 King Street East. He spoke to five-year-old Zita Peters and her family – her older sister and a family friend.
[22] He was informed that Zita left home to visit a friend. On the way, she met a stranger. He took her to the rear of the Carlton Tavern. He gave Zita, Barbies. Cst. Brown seized the Barbies. Officer Drumm spoke to two people who were witnesses. The description he got was of an older gentleman, Italian or Portuguese, with white hair, who was known as the “Tenor”. Officer Drumm had no interaction with the accused.
OFFICER DRUMM – CROSS-EXAMINATION
[23] In cross-examination, Officer Drumm indicated that one of the civilians, Shani Williams, a bartender, described Corda as “odd” and she believed he had mental health issues. The other waitress, one Laing, described him as the “Tenor” who exhibited odd behaviour.
[24] Officer Drumm could have spoken to Det. Cahill but does not recall speaking to him.
[25] Officer Brown obtained Mr. Corda’s identity and believes Officer Brown got it from NICHE. Carlos Pimentel provided the accused’s address. Mr. Pimentel said he was the landlord and that Mr. Corda resided at apartment 2A at 663 King Street East.
[26] Both Cst. Brown and Cst. Drumm went to the door at the rear of the Carlton Tavern, took the exterior stairs and knocked on the door. No one responded.
THE JUNE 6 VIDEO STATEMENT
OFFICER MICHAEL SCHATZ – IN-CHIEF
[27] On June 6, 2017 Officer Schatz attended a briefing with Officer Cahill. Officer Schatz had no prior involvement with the accused and saw a photo of Corda.
[28] Officer Schatz on June 6, 2017 was in a marked cruiser, in uniform, at 663 King Street East at 11:16 a.m. At that time, Officer Schatz observed Corda and exited the cruiser. Officer Schatz told Corda he was there to arrest Corda for Attempted Abduction of a Person Under 14, and Abduction of a Person Under 14.
[29] Officer Schatz began to read the accused his rights to counsel when the accused stated:
“I don’t understand. I did nothing wrong – the little girl was 5 years old and hungry and I gave her food.”
[30] Officer Schatz stopped him – he gave him the official caution that he did not have to say anything. Officer Schatz provided the following chronology of events on June 16, 2017:
11:17 a.m.
• Officer Schatz told Corda he was under arrest for Attempt Abduction Under 14 and Abduction Under 14. Officer Schatz read from the standard rights to counsel card regarding his right to counsel, legal aid and provided the 1-800 legal aid number.
11:18 a.m.
• Officer Schatz explained the charges and asked if Corda wanted legal aid assistance.
• Corda’s answer: “No. I did nothing wrong. I fed her and showed her my Barbies. I have a collection.”
11:19 a.m.
• Corda was handcuffed, searched and put in the cruiser.
11:23 a.m.
• Officer Cahill was advised of the arrest.
11:48 a.m.
• Corda was taken to the holding area.
11:50 a.m.
• Corda was given his rights – Corda said, “It’s no use. I’ve done nothing wrong.”
11:50 a.m. (approximately)
• Corda was turned over to Officer Cahill. Corda was put into an interview room.
OFFICER SCHATZ – CROSS-EXAMINATION
[31] In cross-examination, Officer Schatz was told at the briefing with Det. Cahill that Corda could be living at 663 King Street East, Apt. 2A or 637 King Street East, Apt. 1.
[32] The charges listed were Attempted Abduction of a Person Under 14 and Abduction of a Person Under 14. He was not given any dates of when these offences allegedly occurred.
[33] The briefing was regarding the plan involving the execution of the search warrant.
[34] At 10:02 a.m., Officer Schatz had taken his assigned spot near 663 King Street East.
[35] When Officer Schatz saw the accused at the front of the Carlton Tavern, the following occurred:
11:16 a.m.
• Officer: “I’m here to arrest you for abduction of a person under 14 and attempted abduction of a person under 14.”
• [Utterance 1] Corda responds: “I don’t understand. I’ve done nothing wrong. The little girl was hungry and I gave her some food.”
• The officer then read the accused the caution from para. 2 of his card – which is Exhibit 11 – which has 12 paragraphs. Officer Schatz did not record the accused’s response.
11:18 a.m.
• The accused was again told that he was charged with Abduction of a Person Under 14 and Attempted Abduction of a Person Under 14. The accused was then read his rights to counsel from para. 5 of Exhibit 11.
• Regarding Q1 of para. 5: “Do you understand?”; Officer Schatz made no notes of a reply.
• Regarding Q2: “Do you wish to call a lawyer?”
• [Utterance 2] Corda’s response: “No, I’ve done nothing wrong. It’s no use – the girl was hungry, I fed her, I showed her my Barbies – I have a collection.”
• Corda was searched and put in the Hamilton CID Units.
11:49 a.m.
• Additional jewelry was removed.
11:50 a.m.
• Accused is again asked if he wishes to contact counsel.
• [Utterance #3] Corda’s response: “It’s no use. I’ve done nothing wrong.”
OFFICER CAHILL – IN-CHIEF
[36] On June 6, 2017, Officer Cahill interviewed the accused on a police video. Officer Cahill testified the accused was able to speak English; it was broken but fluent. The accused was not threatened and was provided with no promises or inducements.
[37] As indicated on page three of the video transcript, Corda indicated he didn't want to talk to a lawyer. Mr. Corda mentions at page 12 of the statement that he told Zita Peters that maybe he is going to adopt Zita Peters – “Let me contact my lawyer Mr. Chrolavicius”.
OFFICER CAHILL – CROSS-EXAMINATION
[38] In cross-examination regarding this statement, Detective Cahill testified that Officer Schatz had advised he had provided the accused with rights to counsel.
[39] Officer Cahill indicated that the transcript displays that Corda knew why he was there. Despite Corda not being told the May 24 offence date, Officer Cahill testified that Corda knew exactly what incident they were talking about.
[40] It is to be noted that in the statement at page 5 the accused is asked what he thinks “...has brought us together today?”.
[41] The accused immediately replies at page 5 that he found a girl and continues to describe the Zita Peters incident where he gave her spaghetti, money and two dollars at pages 5-7.
[42] As page 18, the accused is given the details of Selena Roque complaint on May 3 and the accused denies ever speaking to her at pages 18-21.
[43] Despite references to bizarre behaviour in the Orangeville and other reports, on May 30, 2017, Officer Cahill had no concerns regarding the accused’s mental health. Officer Cahill interviewed Selena Roque on May 30, 2017. Selena Roque indicated that the accused was very different and that the accused told her he’s got billions. Roque indicated as well that a man staring at the accused “knows he is crazy”. Officer Cahill denied that this type of information from Carlton Tavern patrons put him on notice that Corda had mental problems.
SEARCH WARRANTS
EVIDENCE OF OFFICER CAHILL - Officer Cahill was permitted to be cross-examined on the (information to obtain) ITOs submitted to obtain the search warrants.
[44] Officer Cahill prepared an information to obtain (ITO) a search warrant which he signed on June 5, 2017. The ITO was entered as Exhibit 4.
[45] On May 24, 2017 Officer Cahill became aware of Corda’s involvement in the Zita Peters matter. On May 30, 2017, Officer Cahill became aware of the Roque matter and started looking into the abduction aspect of the Roque matter. There was no urgency to the Zita Peters matter as it was determined there was no sexual complaint involved.
[46] On May 30, 2017, Officer Cahill reviewed the law on abduction and read the leading case of R. v. Chartrand. Officer Cahill felt Chartrand was applicable and discussed it with his superior, S/Sgt. Hrab, who agreed.
[47] On May 31, 2017, Officer Cahill requested occurrence reports from different agencies, including occurrence reports generated from Orangeville. On June 1, Officer Cahill met Officer Hoder from Orangeville who provided 3-4 occurrence reports from Orangeville.
[48] Between June 1, 2017 and June 5, 2017, Officer Cahill worked on the ITO and finished it on June 5, 2017. On June 2, 2017, Office Cahill went to Corda’s address to look at it.
[49] Officer Cahill took the ITO to Justice of the Peace Woloschuk who issued the warrant allowing the police to execute the warrant on June 6, 2017 between 8:00 a.m. until 9:00 p.m. However, Justice of the Peace Woloschuk only granted the police the authority to seize two items out of the ten requested – see Exhibit #3 cover sheet for the first warrant. Justice of the Peace Woloschuk only granted the search warrant to seize electronic items (VIII) and (IX) only. The items that Officer Balon had observed on May 3 were not allowed. Officer Balon’s evidence had been summarized at paras. 14-17 and later at para. 26 of the ITO. Officer Balon, after May 30, had provided him with her notes but gave him nothing new.
[50] Officer Balon had been invited into the accused’s apartment, as indicated at para. 17 of the ITO, and what she saw was fair game. Officer Cahill testified that there was no reference to consent in Officer Balon’s will-say or notes.
[51] Regarding Justice of the Peace Woloschuk’s refusal for not allowing any items to be seized other than electronic items, His Worship endorsed on the Exhibit #3 cover sheet that there was “no rationale for the clothing and non-clothing items.”
[52] The original search warrant signed by Justice of the Peace Woloschuk allowed for the search of Mr. Corda’s residence at 663 King Street East, Apt. 2A, Hamilton.
[53] On June 6, 2017, between 8:00 a.m. and 9:45 a.m., administrative matters and briefings took place. The officers involved then left the police station to execute the warrant. When the police tried to execute the warrant, they learned the accused did not reside at Apt. 2A.
[54] As outlined at paras. 47-49 of the second ITO, after speaking to the landlord Carlos Pimentel and a man named Hernandes, it was established that Corda did not live at Apt. 2A but Apt. 2B, which was marked as 3A.
[55] Officer Cahill left at 10:35 a.m. to get a new application.
[56] Shortly after, Officer Schatz called in and advised the accused had been arrested at 11:20 a.m. on June 6, 2017.
[57] On June 6, at 2:56 p.m., Officer Cahill submitted the ITO that is included in the Application Record in Exhibit #2.
[58] At page 18, the new address for the accused is listed as Apt. 2B. There was additional information included regarding this address but no new facts were introduced regarding items 1-7 that were sought to be seized.
[59] As indicated by the cover sheet entered as Exhibit #5, a second warrant was issued.
[60] The changes in ITO #2 from ITO #1 are as follows:
• Affiant’s notes at pages 18, 19, 23, 24 and 25; page 28, para. 26; pages 29-30, para. 28
• Paras. 47-51 from ITO #1 were deleted – there was no reference to para. 48 regarding the conversation with Officer Drumm with reference to conversation with landlord Pimentel and Apt. 2A.
• The application for a sealing order was deleted.
[61] The endorsement of Justice of the Peace Woloschuk denying most of the items sought in ITO #1 was included in ITO#2 but the Exhibit #3 cover sheet was not added.
[62] The landlord Pimentel has a criminal record – 2019 – Assault – that was not included in the warrant. Officer Cahill was not aware of this record at the time of signing the ITO.
ANALYSIS
ISSUE #1 – ADMISSIBILITY OF MAY 3, 2017 ORAL STATEMENTS BY ACCUSED
1. FACTS
[63] I find that both Officer Balon and Officer Armstrong gave credible and reliable evidence.
[64] The gist of their evidence is that they responded to a complaint by 13-year-old Selena Roque (Selena) regarding inappropriate comments made to her.
[65] Officer Balon felt she had no grounds for arrest. Officer Balon indicated the incident was strange and the accused was not a suspect.
[66] The officers knocked on the accused’s door and asked if “we” could speak to him. The accused agreed and invited them in. As Officer Balon stated, “People allow police into their homes all the time.” The accused was very cooperative and denied speaking to Selena. He was not arrested or detained. The accused was told to stay away from Selena. He agreed and was not charged. The officers were in full uniform and did not enter any areas they were not invited into. From the doorway area, the officers observed Barbie dolls and the “Elsa” poster. The accused was cooperative, spoke and understood English well. The uniformed officers asked, “Can we come in?”
[67] After warning the accused to stay away from Selena (to which he agreed) the officers left the accused’s apartment. At no time was the accused detained or arrested. The officers did not advise him of his right not to speak to them or of his right not to consent to police officers entering his home.
2. LAW
[68] Justice Goodman in R. v. Millard, 2015 ONSC 6633, [2015] O.J. No. 7324 (S.C.J.) indicated at para. 110:
[110] In R. v. Godoy, 1999 CanLII 709 (SCC), [1998] S.C.J. No. 85, the Supreme Court of Canada affirmed the importance of the police duty to protect life and the safety of the public. The case stands for the proposition that in interfering with the liberty and privacy interests of citizens the police, it is necessary that the police provide assistance provided that when carrying out their function, it is reasonable in the circumstances. Although the case and its prodigy tended to focus on the police response to 911 calls, and most of the cases refer to entry into dwelling houses, I am persuaded that this authority can be extended to this situation. There were exigent circumstances that arose while police were lawfully situated at the barn. I am persuaded that the police were acting legally within their statutory mandate as provided by the Police Services Act and common law authority to preserve life and to render assistance. It is the latter point that was foremost in the officers’ minds and I accept their evidence in that regard.
[69] In R. v. Oickle, 2000 SCC 38, [2002] 2 S.C.R. 3, the Supreme Court of Canada made numerous definitive declarations regarding the confession rule. The prosecution must establish beyond a reasonable doubt that a statement is made voluntarily: Oickle at para. 68. The Crown must prove beyond a reasonable doubt that the confession was not the result of fear of prejudice or hope of advantage: Oickle at para. 49. The analysis regarding voluntariness is a contextual one: Oickle at paras. 47, 71. The rationale of the confession rule concerns the reliability of the accused’s statement, including the right to freely choose whether to speak to the authorities or not and the repute or integrity of the criminal justice system itself: R. v. Martin, 2018 ONSC 1677, [2018] O.J. No. 5381 (S.C.J.) at para. 15.
[70] The application of the confession rule is contextual and all relevant circumstances must be examined: Oickle at para. 47, 71, 79, and 83. The courts are to be alert for quid pro quo offers: Oickle at para. 57 and R. v. Worrall, [2002] O.J. No. 2711 (S.C.J.) at para. 96. Threats or inducements made to obtain a confession become improper where a reasonable doubt exists as to whether the will of the subject has been overborne: Oickle at para. 57.
3. APPLICATION OF LAW OF VOLUNTARINESS TO MAY 3, 2017 ORAL STATEMENT
[71] The evidence is overwhelming that the accused freely and voluntarily spoke to the police. There was no quid pro quo. There were no inducements, threats, or oppression of any kind. The accused had an operating mind.
4. LAW – CHARTER CONSIDERATIONS
[72] For section 10 of the Charter to apply, there must be either an arrest or a detention – see Worrall at para. 108. The meaning of detention was canvassed in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, 18 CCC 3d 48; R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 SCR 640, 40 CCC 3d 411, and R. v. Moran, 1987 CanLII 124 (ON CA), [1987] 36 CCC 3d 225 (Ont. C.A.). These cases indicate that detention connotes “some form of compulsory” constraint. These cases also outline the factors and essentials of what a detention is or is not.
5. APPLICATION OF LAW TO FACTS
[73] The police attended at the accused’s apartment and asked to speak to him. He readily invited them in and freely spoke to the officers. They advised him to not contact Selena and then left. There was no arrest and Officer Balon indicated there was no intention to arrest the accused as there were no grounds to do so. Accordingly, I find that the accused made voluntary statements to the police when the accused was neither under arrest or being detained. The words of Watt J. in Worrall at para. 115 are apropo to the case at bar:
115 The preponderance of the evidence supports the conclusion that Joseph Worrall was not detained when Detective Scott and Detective Constable Chiasson came to 50 Gerrard Street East. There is no constitutional barrier to the introduction of the evidence that the common law rule permits.
6. CONCLUSION REGARDING MAY 3, 2017 ORAL STATEMENT
[74] The evidence at the voir dire establishes that the police acted reasonably in dealing with Selena’s complaint. Further, the accused’s statements have been established to be voluntary beyond any reasonable doubt. Further still, the accused was not under arrest or detained and there has been no breach of the accused’s Charter rights. Accordingly, the May 3, 2017 oral statement is admissible in evidence at this trial.
ISSUE #2 – ADMISSIBILITY OF JUNE 6, 2017 VIDEO STATEMENT
1. FACTS
[75] Officer Drumm, who spoke to the 5-year-old complainant Zita Peters, also spoke to other witnesses. Officer Drumm spoke to two civilian witnesses who described the accused, Mr. Corda as odd and having mental health issues. Officer Drumm never spoke to the accused.
[76] Officer Schatz, who was to assist in the execution of the search warrant, saw the accused at 11:16 a.m. and arrested him. Officer Schatz gave the accused his rights to counsel after advising Mr. Corda he was there to arrest Mr. Corda for Attempt Abduction of a Person Under 14 and Abduction of a Person Under 14. As Officer Schatz began to read the accused his rights to counsel, the accused almost immediately blurted out: “I don’t understand. I did nothing wrong – the little girl was 5 years old and hungry and I gave her food.”
[77] As previously summarized, when asked if he wished to contact counsel, Mr. Corda repeatedly advised that he did not want legal assistance as, in Mr. Corda’s words, 1) “No, I did nothing wrong, it's no use, the girl was hungry. I fed her. I showed her my Barbies – I have a collection" and 2) “It’s no use. I’ve done nothing wrong". Officer Schatz was not given any dates of when the offences occurred.
[78] Officer Cahill conducted the interview of Mr. Corda on a police video. Officer Cahill testified that the accused was able to speak English; Mr. Corda’s English was broken but fluent. The accused was not threatened and was not provided with promises or inducements. The video transcript confirms this evidence.
[79] As previously summarized, Mr. Corda, at page 5-7 of the transcript, was aware that one of the charges involved the Zita Peters incident. Further, at page 18 of the transcript, the accused is told, “I have another report. Why you’re charged with Attempt Abduction the young girl... May 3, Selena Roque is at the Carlton Tavern.” Accordingly, Mr. Corda is given details of the Selena Roque complaint on May 3, 2017 and the accused denies ever speaking to her at pages 18-21 of the transcript. This is consistent with what he previously told Officers Balon and Armstrong on May 3, 2017. In fact, at page 19, the accused is reminded that the officer spoke to him at his apartment the night of the complaint. Unlike the situation in Worrall, Mr. Corda was given his rights to counsel, cautioned (see pages 2, 3 of the transcript) and was aware of what was at stake: see Worrall at para. 106.
2. APPLICATION OF LAW OF VOLUNTARINESS TO JUNE 6, 2017 STATEMENT
[80] The law regarding voluntariness was canvassed in the previous discussion regarding the May 3, 2017 oral statement. I find Officers Drumm, Schatz and Cahill to be credible witnesses. There were no inducements or threats provided to the accused. There were no quid pro quo offers. The video reveals that the accused understood and responded quite well in English.
[81] Notwithstanding the evidence of Mr. Corda being “strange,” “crazy” or possibly mentally ill, the evidence and the video establishes an accused who understood exactly what he was being charged with and exactly what his jeopardy was; i.e. charges of Abduction and Attempt Abduction. The evidence at the voir dire establishes that the accused spoke freely and voluntarily. There is absolutely no evidence that the accused’s will was overborne by threats, promises, that he lacked an operating mind, or that there was police trickery or oppression – see Oickle at paras. 69-71.
[82] Accordingly, I conclude that the Crown has proven beyond a reasonable doubt the voluntariness of the accused’s statements on the police video.
3. CHARTER CONSIDERATIONS
FACTS
[83] As the accused was both arrested and detained, section 10 Charter considerations come into play. The police are obligated to caution the accused about his right to silence. That was done. The police are obligated upon arrest/detention to inform the accused of his right to retain and instruct counsel without delay. That was done (see for example, pages 2 and 3 of the video statement). It is clear that the accused repeatedly declined his right to contact counsel – see Officer Schatz’ evidence and page 3 of the video statement wherein the accused is asked, “So you don’t want to call a lawyer?” The accused responds, “No, I don’t want to speak to a lawyer.”
[84] The defence contends the informational component of section 10(a) was violated.
4. LAW
[85] In R. v. Nguyen, 2008 ONCA 49, the Ontario Court of Appeal outlined the parameters of the informational component of section 10(a) at paras. 16-20:
The Informational Requirement of s. 10(a)
16 The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.
17 Canadian jurisprudence has since generally affirmed that s. 10(a) of the Charter captures that common law definition. In R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419, this court had occasion to comment on s. 10(a) and its relationship to s. 10(b). At p. 424 this court noted that:
The interest protected by paras. (a) and (b) are not the same. With respect to para. (a), a person is not obliged to submit to an arrest if he does not know the reason for it: Christie et al. v. Leachinsky, [1947] A.C. 573 at pp. 587-8. It is, accordingly, essential that he be informed promptly or immediately of the reasons. On the other hand, the relevant interest protected by para. (b) … is that of not prejudicing one’s legal position by something said or done without, at least, the benefit of legal advice. … While there may be good reasons why an arrested person’s right to be informed of his right to counsel should be “without delay”, there is no essential reason why it has to be part and parcel of the s. 10(a) statement, which is really part of the arresting process itself.
18 This court’s pronouncement in Kelly was later affirmed and expanded by the Supreme Court of Canada in R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289. McLachlin J. stated at p. 302:
The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly … A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J stated for the court in R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) 1 at p. 12, … “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.
19 Most recently, Iacobucci J. made it clear in Mann, supra at para. 21, that detention, for purposes of s. 10(a) of the Charter, includes individuals who are detained for investigative purposes:
Section 10(a) of the Charter provides that “[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor”. At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.
20 It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.). As to the difference in language between s. 10(a) and 10(b), I return to this court’s holding in Kelly at p. 424:
First, it may be noted that s. 10(a) uses the word “promptly” and s. 10(b) does not. While semantically there may appear to be little difference between “promptly” and “without delay” I think there is a subtle difference between them. The former is a positive term and, I think, does mean “immediately” while the latter does not quite have this connotation. The injunction of the latter is expressed in negative terms – not to delay, or postpone, which does not necessarily convey the notion of immediacy. Further, if the same temporal requirement was intended to be equally applicable to each clause then it is reasonable to think that the same word or words would have been used in each.
5. APPLICATION OF LAW TO FACTS
[86] The evidence before me is that the accused was arrested for abduction of a child under 14 and attempt abduction of a child under 14 – see p. 2 of the video statement and Officer Schatz’ evidence. It would have been better for the accused to have been given more details as to time, place and names of the complainants. However, it is clear from the discussions (already summarized) at pages 5-7 and pages 18-21 of the video statement, that the accused was in fact aware of the circumstances of the alleged offences and accordingly, was aware of the reasons for his arrest and extent of his jeopardy.
[87] I conclude that the accused was arrested for abduction of a person under 14 and attempt abduction of a person under 14, and the accused, as confirmed by the video statement, was fully aware of the circumstances regarding why he was being restrained. As indicated by the case law, while the reasons were not expressed in technical or precise language, in substance, Mr. Corda was informed on why he was being arrested and detained.
[88] Accordingly, I find that there were no Charter violations regarding the June 6, 2017 video statement.
ISSUE #2 – CONCLUSION REGARDING ADMISSIBILITY OF JUNE 6, 2017 VIDEO STATEMENT
[89] The evidence before me establishes beyond a reasonable doubt that Mr. Corda voluntarily made the June 6, 2017 video statement. Further, I find that there were no Charter violations regarding the June 6, 2017 video statement.
[90] In the result, the June 6, 2017 video statement is admissible at Mr. Corda’s trial on the charges of Abduction and Attempt Abduction of persons under 14.
ISSUE #3 – VALIDITY OF SEARCH WARRANTS AND ADMISSIBILITY OF ITEMS SEIZED FROM ACCUSED’S APARTMENT
1. FACTS
[91] As summarized, the police prepared two informations to obtain. Search warrant #1 based on ITO #1, signed by Justice of the Peace Woloschuk, refused any items to be seized other than electronic items. Justice of the Peace Woloschuk on the Exhibit #3 cover sheet endorsed that there was “no rationale for the clothing and non-clothing items.” Both ITO #1 and search warrant #1 mistakenly allowed for the search of Mr. Corda’s residence at 663 King Street East, Apt. 2A. The police, when executing Warrant #1, on June 6, 2017, learned the accused did not reside at Apt. 2A but resided at Apt. 2B which was marked as 3A. Accordingly, ITO #2 was drawn up and ITO #2 (included in the Exhibit #2 application record) was submitted. Search warrant #2 was issued by a Justice of the Peace. Search warrant #2 did not limit seizure of items as indicated by Search Warrant #1 but allowed for seizure of all items as requested by ITO #1. This second warrant obviously allowed for seizures of evidence greater in scope than what Justice of the Peace Woloschuk had ordered previously in Exhibit #3.
2. LAW
[92] In R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, the Supreme Court of Canada set out the limits of my authority to review Search Warrant #1 and Search Warrant #2 at paras. 51-55:
51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [Emphasis added.]
As I noted as a judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even a basis that is schematic in nature may suffice. However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098, the requirement was described as “sufficient reliable information to support an authorization” (emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.
52 In oral argument, counsel for the appellant Grandmaison made much of a passage in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251, where Sopinka J. explained the test applicable on a review of a search warrant when some of the information supporting the warrant had been obtained in violation of the Constitution. Sopinka J. wrote that “it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra” (emphasis added). In using the word “would”, Sopinka J. did not set out to alter the test that comes from Garofoli, given that he cited this judgment in the same sentence. I take the word in this context not as setting a different standard of review but simply as suggesting the sincerity of the inquiry that a reviewing judge should undertake. As this Court confirmed in Bisson, supra, the reviewing judge must carefully consider the existence of sufficient reliable information, that is, information that may reasonably be believed on the basis of which the authorization could have issued.
53 Other appellate court jurisprudence confirms this understanding. In the context of reviewing a search warrant, appellate courts have looked to whether the authorization could have issued: e.g., Mitton v. British Columbia Securities Commission (1999), 1999 BCCA 186, 123 B.C.A.C. 263; R. v. Allain (1998), 1998 CanLII 12250 (NB CA), 205 N.B.R. (2d) 201 (C.A.), at p. 217; and R. v. Krist (1998), 1998 CanLII 6105 (BC CA), 113 B.C.A.C. 176, at p. 179. But they look at this in context. For example, in R. v. Monroe (1997), 1997 CanLII 3034 (BC CA), 8 C.R. (5th) 324 (B.C.C.A.), at p. 333, Esson J.A. stated that, after looking for whether there was sufficient grounds on which the judge could have authorized a warrant, “The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant” (emphasis added).
54 The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:
These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.
This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves. [Emphasis added.]
(R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 553)
An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.
55 Of course, this statement of the test does not fully explain the matter of which evidence the reviewing judge should consider in a situation where some of the original information was erroneous and there is an attempt to amplify it on review, a possibility which Sopinka J. in Garofoli, supra, at p. 1452, but briefly mentioned. The Nova Scotia Court of Appeal in Morris, supra, at pp. 555-69, undertakes a careful examination of these questions based on our Court’s analyses in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, and Bisson, supra.
[93] Justice Watt in R. v. Atkinson, 2012 ONCA 380, [2012] 110 O.R. 3d 721 (C.A.) outlines the law regarding implied licence to knock, and plain view doctrine at paras. 45-58 as follows:
(i) Implied licence to knock
[45] The common law recognizes an implied licence for all members of the public, including police officers, to approach the door of a residence and to knock: [page730] R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, [1996] S.C.J. No. 1, at para. 13. Thus, an occupier is deemed to grant the public, including the police, permission to approach the door and to knock. Police who act in accordance with this implied invitation do not intrude on the occupant's privacy: Evans, at para. 13. Unless rebutted by some clear expression of intent, the implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling: Evans, at para. 13.
[46] This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence" to knock: Evans, at para. 15.
[47] Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceeded any authority implied by the invitation to knock and become engaged in a search of the occupant's home: Evans, at paras. 16, 18 and 21. Likewise, where police specifically advert to the possibility of securing evidence against an accused by "knocking on the door", they have exceeded the authority conferred on them by the implied licence to knock: Evans, at para. 20.
[48] In some circumstances, police officers lawfully present at the door of a residence may lawfully enter the premises. An invitation to enter may be implied from the circumstances, for example, from the words and conduct of a person in charge of the place. An implied invitation to enter furnishes lawful authority for the police to be in the residence or other place: R. v. Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825, 196 C.C.C. (3d) 426 (C.A.), at para. 28.
[49] When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337, [1992] O.J. No. 294 (C.A.), at p. 348 O.R.
(ii) Protected privacy interests
[50] The right to be secure from unreasonable search or seizure protects only a "reasonable expectation of privacy". The limiting term "reasonable" implies that, in each case, the court [page731] must assess whether, in the circumstances, the public's interest in being left alone by the state must give way to the state's interest in intruding on the individual's privacy to advance its goals, such as law enforcement: R. v. Edwards (1996), 1996 CanLII 255 (SCC), 26 O.R. (3d) 736, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11, at para. 30; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at pp. 159-60 S.C.R. The assessment must take into account all the circumstances of the case: Edwards, at paras. 31 and 45.
[51] Among the privacy interests that s. 8 protects are personal, territorial and informational privacy: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, at para. 20. Personal privacy protects bodily integrity. Territorial privacy protects privacy in the home, as well as other places, albeit without the same rigour: Tessling, at paras. 21 and 22. Informational privacy has to do with "the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others": Tessling, at para. 23.
[52] Not every scrap of information that an individual may wish to keep confidential falls within the sweep of s. 8. What is included is a biographical core of personal information that individuals in a free and democratic society might wish to maintain and control from dissemination to the state, such as information that tends to reveal intimate details about, and personal choices of, the individual: Tessling, at paras. 25-26; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97, at p. 293 S.C.R.
[53] The distinctions between personal, territorial and informational privacy provide useful analytical tools, but in many cases privacy interests may spill over from one category to another. In this case, for example, the privacy interest is informational. It concerns the appellant's activities to the extent revealed by the material adhering to her shoes. But the interest also implicates territorial privacy because police entered the appellant's home and observed the shoes there.
[54] Police conduct that interferes with a reasonable expectation of privacy constitutes a "search" for the purposes of s. 8 of the Charter: R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10, at para. 15; Tessling, at para. 18; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, [1992] S.C.J. No. 16, at p. 533 S.C.R. Police conduct that amounts to a search, but is not authorized by a warrant, is presumptively unreasonable and shifts the burden of establishing reasonableness to the Crown. In this case, the respondent relies on the appellant's consent to P.C. Van Dyke's entrance into her home, and on the operation of the "plain view" doctrine to establish that the search was reasonable. [page732]
(iii) Consent search
[55] A consent search is lawful, thus reasonable. A valid consent requires that the consenting party have the required informational foundation for a true relinquishment of the right: R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, [1994] S.C.J. No. 82, at p. 162 S.C.R.
[56] The consent must be voluntary and informed. To be voluntary, the consent, which may be express or implied, must not be the product of police oppression, coercion or other conduct that negates the consenting party's freedom to choose whether to allow police to pursue the course of conduct requested or to deny them that right: Wills, at p. 354 O.R. To be informed, the consenting party must be aware of:
(i) the nature of the police conduct to which the consent relates;
(ii) the right to refuse to permit the police to pursue the conduct; and
(iii) the potential consequences of giving consent.
Wills, at pp. 354-55 O.R.
(iv) The "plain view" doctrine
[57] The "plain view" doctrine is a common law doctrine that permits the warrantless seizure of things in plain view. To engage this doctrine requires the satisfaction of three conditions:
(i) the seizing officer must be lawfully in the place of seizure;
(ii) the evidentiary nature of the item must be immediately apparent to the officer through the unaided use of his or her senses; and
(iii) the evidence must be discovered inadvertently.
R. v. Jones (2011), 2011 ONCA 632, 107 O.R. (3d) 241, [2011] O.J. No. 4388, at para. 56; Law, at para. 27.
The Admissibility Issue
[58] Faced with an application under s. 24(2) of the Charter to exclude evidence obtained by constitutional infringement, a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system. The analysis involves three lines of inquiry: [page733] (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society's interest in the adjudication of the case on the merits. Under s. 24(2), a court must balance the assessments under each line of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
[94] More recently, Justice Goodman in R. v. Millard, 2015 ONSC 6704, [2015] O.J. No. 7205, outlined the doctrine of implied licence at paras. 71-76:
[71] The Charter does not protect individuals against any search. Section 8 of the Charter protects people and not places, and only confers protection against unreasonable searches and seizures to the extent that an individual establishes a reasonable expectation of privacy.
[72] A search that is conducted without a warrant is presumptively unreasonable. The applicant submits that the walk-around the hangar was clearly a warrantless search within the meaning of s. 8 of the Charter: R. v. Kokesch 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3 at paras. 18-19.
[73] In R. v. Le, 2014 ONSC 2033, [2014] O.J. No. 1515, Campbell J. discussed the doctrine of implied license, albeit in the distinct context of a residence at para. 69:
The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including police officers, who are on legitimate business, to come onto the property, even through an unlocked gate, and attend at a door of the dwelling. This implied licence applies to anyone who has a lawful reason to speak to the occupier of the dwelling. This implied licence ends, however, at the door to the dwelling. The purpose of this implied licence is to facilitate convenient communication between members of the public and the occupier of the dwelling. This implied licence may be rebutted by some express notice on the property itself, or revoked explicitly by the occupier of the dwelling. Once revoked by the occupier, the person who entered upon the property pursuant to this implied licence is obliged to leave with reasonable dispatch. Anyone who does not so leave becomes a trespasser. If a police officer enters property pursuant to this implied licence and, before the licence is withdrawn, develops the necessary grounds to detain or arrest a suspect, the police remain entitled to detain or arrest that person and use proportional and reasonable force to do so. (Citations omitted).
[74] The common law recognizes an implied licence for all members of the public, including police officers, to approach the door of a residence and to knock: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 13. Thus, an occupier is deemed to grant the public, including the police, permission to approach the door and to knock. Police who act in accordance with this implied invitation do not intrude on the occupant's privacy: Evans, at para. 13. Unless rebutted by some clear expression of intent, the implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling: Evans, at para. 13.
[75] This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence" to knock: Evans, at para. 15. Where state agents approach a dwelling with the intention of gathering evidence against an occupant, they have exceeded any authority implied by the invitation to knock and become engaged in a search of the home: Evans, at paras. 16, 18, and 21.
[76] When determining whether to imply an invitation to enter a residence or business from the words and conduct of the occupant, in their likely brief interaction with police, the dynamics of the police-citizen relationship play a role. It is not contested that the very nature of policing places individuals on an uneven footing with police. Courts must be careful not to readily imply an invitation to enter from the absence of objection or mere acquiescence: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348.
[95] Search Warrant #2 was issued on basically the same factual grounds as Search Warrant #1, save and except for a correction of the accused’s apartment number in the same residential complex.
[96] Justice Goodman in R. v. Bui, 2014 ONSC 8, [2014] O.J. No. 16, canvassed the law regarding a second ITO, containing basically the same information as the first ITO being submitted to a different judicial officer, at paras. 99 – 108:
[99] The question of whether a second justice may consider an application for a search warrant based upon the same factual grounds already found to be deficient by another justice has been characterized as a jurisdictional question.
[100] In R. v. Eng, 1995 CanLII 1794 (BC CA), [1995] B.C.J. No. 329 (C.A.), the court held at para. 49:
It is perfectly proper to bring on a fresh application for a search warrant, after one has been refused, either when new evidence becomes available or when it is apparent that the previous unsuccessful application was based on a Form 1 information which omitted important evidence which was then available.
[101] Justice Wood of the Court of Appeal was of the view that a second justice would have no jurisdiction to consider a second application for a warrant in circumstances where the factual basis for the application had not changed:
It would, of course, be improper for successive applications, based upon the same Form 1 information, to be brought before different justices of the peace. One justice of the peace has no jurisdiction to review the exercise of discretion by another.
[102] In R. v. Chan, [2003] O.J. No. 188 (Sup. Ct.) Hennessy J. dealt with a case involving identical ITO's presented to two separate justices. The first justice of the peace refused to grant the warrant, on the ground that the Hydro employee had been trespassing when he observed the marijuana plants. The police officer amended his ITO by adding a legal argument in support of the application and there were no new facts alleged. The police officer put this second application before a different justice of the peace. He disclosed the prior refusal to the second justice and the reason therefore. The second justice advised the officer that he disagreed with the decision of the first justice and issued the search warrant. Justice Hennessy focused upon the negative view that a court takes with regards to the notice of judge-shopping.
[103] In Chan, Hennessy J. considered Eng and held that while she did not find that the officer was improperly motivated, held at paras. 57 to 59:
What was not considered was the finality of the prior judicial decision taken on the same facts, unless and until a higher court reviewed the matter. In this respect, the concerns expressed by McLachlin J., as she then was, apply in this case. If the first decision is not the final decision, where does the process end? What would stop a police officer from bringing the same application to successive justices, asking each to review the decision of the other on the same facts? Surely, this is at odds with the structure of our judicial system and would undermine the high level of confidence it enjoys, where the decision of a judicial officer from one court is final and binding unless and until it has been overturned by a higher court.
Justice of the Peace Forster exercised his discretion when Detective Constable Redmond presented him with the information in support of an application. He refused to issue the warrant. At that point, in the absence of new, different or additional information, the police had the option of making an application for certiorari or mandamus.
The decision of Justice of the Peace Forster was not reviewed and is therefore the last word on the issue. Justice of the Peace McQuarrie had no jurisdiction to review or overturn a judicial decision made by one of his colleagues on the same facts, and therefore, the warrant authorizing the search did not constitute lawful or valid authority.
[104] Justice Hennessy held that a refusal by a justice of the peace was final and could not be reviewed or overturned by another justice of the peace on the same facts. It appears that Hennessy J.’s finding was premised on the fact that the police were "engaged in judge shopping by applying for a warrant on second occasion.
[105] In R. v. Duchcherer, [2006] B.C.J. 733, the Court of Appeal was critical of Chan while addressing the issue of whether a judge of the Provincial Court could issue a search warrant on the same material that was before a justice of the peace. The court determined that s. 487(1) provides that section grants the power not to the “court”, rather to a “justice” and both justice of the peace and judges have equal jurisdiction. After having considered Eng and Colbourne, the court held that Hennessy J’.s review of McLachlin J.’s dissent in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979 may not have been properly distinguished and those concerns were not present in the case before the court. The court found that process of “applying successively for search warrant cannot reasonably be said, as such, to be an abuse of process or a subversion of the judicial system”. The court in Duchcherer goes on to state that “within the process there can, of course, be abuses that would lead to such a finding [of abuse of process]”.
[106] In R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620 (C.A.) the first application to a justice of the peace was refused but the second, based on substantially different information, before a different justice of the peace, was allowed. It was not revealed to the second justice of the peace that there had been an earlier refusal. Justice Doherty in his discussion of this issue noted that the reasons for non-disclosure are important considerations, if it was for an improper motive or was designed to mislead. The court considered that where the non-disclosure was not for an improper motive, and where there was new information presented, the second justice of the peace, acting judicially, could lawfully issue a warrant. As Doherty J.A. held at paras. 41& 42:
In these circumstances, disclosure of a prior refusal based on a consideration of an entirely different information would not have precluded the issuing of a warrant by the second justice of the peace. In fact, given the significant differences between the two informations, the first refusal would have little relevance to how the justice of the peace exercised his discretion on the second application.
I would observe that had the second information been the same as the first information, the initial refusal would have played a much more significant
role in how the second justice of the peace exercised his or her discretion. Indeed, in R. v. Eng, supra, at para. 49, Wood J.A. thought it improper to make successive applications based on the same information. As the informations in this case were very different, I need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made. I leave that question for a case where it arises on the facts.[16]
[107] Indeed, the guidance from the appellate jurisprudence regarding the procedure of applying successively for search warrants, as such, cannot be taken to be an abuse of process. As Doherty J.A. opined, each case must be decided on its own merits and will be a fact driven exercise in order to ascertain whether the circumstances amount to an abuse of process.
[108] I am mindful of the approach taken in R. v. Park, [2007] O.J. No. 3921, (Sup. Ct.) where Belobaba J. discussed successive applications based on the same material. At paras. 13 & 14, the judge held:
I agree with the applicants' submission that making successive applications for a search warrant on the same material to different judges, even with full disclosure of a previous refusal, is probably "judge shopping" and a breach of s. 8. I say "probably" because in Colbourne, the Court of Appeal noted that the question of making successive applications with full disclosure of prior refusals has not yet been decided at the appellate level in Ontario. Other courts, however, have expressed understandable concern about this practice and its impact on the integrity of the judicial process: see, for example, the comments of Wood J.A. in Eng2 and McLachlin J., as she then was, dissenting in Scott.3
In Eng, the B.C. Court of Appeal noted that "it would of course be improper" to bring successive applications for a search warrant based on the same material.4 In Scott, McLachlin J. related the underlying policy concerns to the dignity of the judiciary and the integrity of the judicial process:
The normal and proper operation of the judicial system contemplates that judicial errors are corrected through the appeal process. That process should not be subverted without good reason. From the point of view of theory, an order or ruling stands as valid until set aside on appeal. Any other assumption leads to uncertainty and confusion. It may, moreover, result in the "error" of one trial judge being implicitly "corrected" by another judge of the same level.
[97] When faced with an application for exclusion of evidence under Section 24(2) of the Charter, a Court must assess and balance the effect of admitting evidence on society’s confidence in the justice system having regard to:
(1) Seriousness of the Charter infringing state conduct;
(2) The impact of the breach on the Charter-protected interest of the accused;
(3) Society’s interest on the adjudication of the case on its merits.
See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67 – 86 and Atkinson, at para. 58.
3. APPLICATION OF LAW TO FACTS
A. THE GAROFOLI APPLICATION
[98] Based on the record, I have come to the conclusion that there was an ample evidentiary basis to grant both search warrants. On the basis of the evidence before me, there was no fraud, misleading evidence or non-disclosure. The only real error was the mistake made regarding the accused’s address which was corrected and explained in the second ITO. In fact, I disagree with Justice Woloschuk’s order granting the first search warrant for electronic items VIII and 1X only. I disagree that there was no rational basis for clothing and non-clothing items. For example, I would think that the Barbie doll “Collection” would be highly relevant given the evidence that
five-year-old, Zita peters, had Barbies in her possession given to her by Mr. Corda. (see paras. 19, 29, 31, 32, of Exhibit 4, ITO #1). However, as indicated in Araujo, it is not my role to conduct a rehearing of the application for the search warrants. I conclude that both search warrants were valid.
B. IMPLIED LICENCE TO KNOCK, IMPLIED LICENCE TO ATTEND PREMISES AND PLAIN VIEW DOCTRINE
[99] The defence contends that the warrantless search of Mr. Corda’s main living space by two officers constitutes an excess of the scope of their authority in the implied licence to knock.
[100] From my review of the evidence, the officers attended the accused’s apartment, to hear his side of the story and warn him to stay away from Selena Roque. The accused was not a suspect in any crime. The officers believed honestly that they had no reasonable grounds to arrest the accused. Their purpose was merely to speak to the accused in accordance with the general police duty to protect life and the safety to the public. The police purpose was not to surreptitiously gather evidence. The police carefully conducted a door knock. They asked if they could speak to the accused.
[101] The accused agreed to speak to the police. The police were invited in and had a discussion with the accused from just inside the doorway. The items they saw – the “Frozen” poster and the Barbie Dolls were in plain view. The officer did not conduct a search of any rooms or items not in plain view. After a very brief discussion, the officers left. The accused was neither detained or arrested. In these circumstances, I find that the officers conducted themselves reasonably and did not exceed their authority but in fact were in complete compliance with their general police powers and duties. I find that the Section 8 warrantless search was justified in the particular circumstances of this case. The three conditions of the plain view doctrine as outlined in Jones are borne out by the evidence of Officer Balon and Officer Armstrong. Accordingly, it was completely reasonable to include that evidence of Officer Balon in the ITO #1 and ITO #2.
C. THE WARRANTS – JUDGE SHOPPING
[102] The evidence is clear that an honest mistake was made by Officer Cahill regarding the accused’s address. Officer Cahill was relying on information provided by other police officers. However, ITO #2, while outlining the gist of Justice Woloschuk’s order as outlined in Exhibit 3, resulted in Search Warrant #2 being issued authorizing seizure of all the items included in ITO #2, including items that Justice Woloschik had ordered would not be seized. Search warrant #2 effectively overruled Justice Woloschuk’s Exhibit #3 order for search warrant #1. The result is that the Crown would benefit from Officer Cahill’s mistake regarding the accused's address. To allow Search Warrant #2 to effectively overrule Justice of the Peace Woloschuk’s Exhibit #3 order, would encourage in the future:
(1) sloppiness in drafting ITOs
(2) judge shopping in order to avoid a ruling without having to proceed to an appeal;
(3) encourage multiple search warrant applications based on virtually identical information.
[103] Accordingly, Search Warrant #2, authorizing the search of clothing and non-clothing items, authorized an unreasonable search and seizure for clothing and non-clothing items. Search Warrant #2 should have authorized a search for electronic items VIII and IX only and any authorization in excess of those items violates Section 8 of the Charter.
D. SECTION 24(2) REMEDY
[104] Considering the three Grant factors as previously outlined, I conclude;
(1) Seriousness of Charter breach – A person has an important expectation or privacy in their home residence. Any unreasonable search and seizure conducted in a private residence is a serious breach. Officer Cahill made an honest mistake regarding the accused’s address. In retrospect, perhaps Officer Cahill should have attended the premises to confirm the address. This factor is neutral.
(2) Impact of the breach on the Charter protected interest of the accused - Mr. Corda has a high expectation of privacy in his residential home (see Atkinson at para. 60). His home, in English and Canadian law and tradition, is his castle. Any unauthorized invasion of that castle is a serious matter. The courts, in my opinion, must be vigilant in protection of this important privacy interest. This inquiry favours exclusion of the evidence.
(3) Society’s interest in the adjudication of the case on it merits. The exclusion of evidence of all clothing and non-clothing items is not fatal to the Crown’s case. (see Atkinson at para. 61). The case can proceed on its merits and at the same time, the accused’s important privacy rights can be protected. This inquiry favours exclusion of the evidence.
ISSUE #3 – CONCLUSION REGARDING SEARCH WARRANTS AND SECTION 8 AND SECTION 24(2) EXCLUSION OF EVIDENCE
[105] Accordingly, on balance, the admission of any items, into this trial that are not authorized by Search Warrant #1, pursuant to Justice Woloschuk’s order, would bring the administration of justice into disrepute. Accordingly, pursuant to Section 24(2) of the Charter, those items will not be admissible at Mr. Corda’s trial.
ORDER
The accused’s oral statements made to Officer Balon and Officer Armstrong on May 3, 2017 are admissible at Mr. Corda’s trial.
The accused’s police video statement made on June 7, 2017 is admissible at Mr. Corda’s trial.
Search Warrant #1 is valid. Search Warrant #2 is only valid to the extent of the searches authorized by Search Warrant #1. Any items seized from Mr. Corda’s residence that are not authorized by Search Warrant #1, pursuant to Justice Woloschuk’s Exhibit 3 order, are not admissible at Mr. Corda’s trial.
Skarica J.
Released: October 16, 2019
COURT FILE NO.: CR-18-228
DATE: 2019-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Giovanni Corda
Applicant
RULING ON PRE-TRIAL MOTIONS
TS
Released: October 16, 2019