R. v. Adjei and Cromwell, 2019 ONSC 5699

OSHAWA COURT FILE NO.: CR-18-14938

DATE: 20191004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Colin Adjei and Gauri Cromwell

Defendants

Michael Newell, for the Crown

Jeff Rybak, for Colin Adjei and Taro Inoue, for Gauri Cromwell

HEARD: September 25, 2019

RULING ON SECTION 8

LEIBOVICH, J.

Overview

1The accused are charged with various counts of ammunition and drug-related offences. They seek to have the evidence obtained from the search of Ms. Cromwell’s basement apartment after her arrest excluded on the basis that Ms. Cromwell’s section 8 rights were breached in two respects: 1) the police, on the pretense of getting items for Ms. Cromwell’s baby, entered the apartment before the search warrant was authorized in the hopes of obtaining incriminating information to buttress their grounds for a search warrant. The thrust of the defence’s submissions is that the police knew Ms. Cromwell had an infant child and instead of taking proactive steps to ensure for the baby’s care, they used the baby as an opportunity to flagrantly violate Ms. Cromwell’s rights; and 2) the information to obtain contained misleading and inaccurate information regarding why a night time search was required.

2The Crown opposes the application and submits that the police acted professionally and reasonably throughout the entire arrest of Ms. Cromwell and search of her apartment. The Crown submits that these were exigent circumstances and the police needed to obtain food, diapers, and a crib to ensure the baby’s safety. If the criteria for exigent circumstances was not met, then the Crown submits that the actions of the police were still understandable and not a ruse. If the impugned observation is excised from the information to obtain there are still more than sufficient grounds to grant the warrant. With respect to the night time search, there were some mistakes in the information to obtain, but there was still a sufficient and logical basis to have the search conducted at night. In the alternative, a section 24(2) analysis supports the inclusion of the evidence.

The Facts on the Application

3The parties did not call evidence at the motion but relied on the evidence called at the preliminary inquiry. The defence did not seek to cross-examine the affiant. There is little dispute regarding the underlying facts.

4The police believed that Ms. Cromwell was using her valid license to obtain ammunition so that she and Mr. Adjei could traffic that ammunition. On April 12, 2018, the police had both accused under surveillance. The accused attended the Cdn Gun Worx in Oshawa at 6:34 p.m. Ms. Cromwell purchased a box of 50 rounds of 9mm ammunition, and a box of 50 rounds of .40 calibre ammunition. The ammunition was placed in a grey bag. They left the store. Ms. Cromwell placed the grey bag in the trunk and entered the front passenger seat. An infant was in the back seat. Mr. Adjei entered the driver seat and they drove off. The car was a BMW. They then drove to a parking lot. At the parking lot, Ms. Cromwell was observed exiting the BMW and entering a Yaris. She stayed in the Yaris for two minutes and then returned to the BMW. Both cars then drove off.

5Mr. Adjei then drove to 599 Gibbons Street. Ms. Cromwell exited the car and went inside. Mr. Adjei was seen to go to the trunk of the car and appeared to be moving things around. Mr. Adjei took the baby inside. At 9:37 p.m., Mr. Adjei went to the trunk of the car and it appeared that he was again moving things around. He had a grey-coloured bag. Mr. Adjei then walked to the driver’s seat and drove away.

6The surveillance team continued to follow Mr. Adjei to a plaza parking. Another person entered Mr. Adjei’s car. At 9:54 p.m., one of the officers walked by the car and observed both men and a grey plastic bag with loose ammunition on the centre console. Shortly after 10:00 p.m., both men were arrested. The grey plastic bag was still in the front seat. Mr. Adjei had $929 in his right pocket and the other man had $690 on him.

7The police then tried to locate Ms. Cromwell to affect her arrest. They returned to 599 Gibbons Street, and, at approximately 12:19 a.m., they saw Ms. Cromwell leave the residence with her baby. Ms. Cromwell and her baby were driven to 959 Coyston Drive and arrived at approximately 12:25 a.m. Ms. Cromwell and the baby entered the residence through the front door. The police knocked on the door. Ms. Cromwell answered, and she was arrested at 12:36 a.m. for trafficking ammunition.

The Search of 959 Coyston Drive

8Ms. Cromwell lived in the basement apartment at 959 Coyston Drive, a detached house, in Oshawa. The Pauls owned the house and rented the apartment to Ms. Cromwell. The police accessed the basement apartment through stairs leading to it from inside the house. There was evidence that later on the police discovered a backdoor entrance to the house, but the record at the preliminary inquiry was unclear whether that was to the main house or the basement apartment.

9Ms. Cromwell asked the police if she could get some belongings from her apartment before she left to the police station. A police officer escorted her to her basement apartment, and she retrieved a jacket and shoes.

10Upon Ms. Cromwell’s arrest the Pauls agreed to watch Ms. Cromwell’s baby. Officer Campbell was asked if Ms. Cromwell was part of that decision. He said, “I know she was there, so probably part of the decision – yes.” Officer Wray testified that he spoke with the Pauls and gauged their suitability to watch the baby. Officer Campbell was asked in cross-examination at the preliminary inquiry:

Q: Okay. And did you do any criminal record checks on the Paul family before you gave them the baby?

A: We didn’t give them the baby. We were there while the baby was being looked after, to me it looked like a safe place for the child to be with us being there. So, I don’t remember doing any criminal checks in relation to them.

Q: Okay.

A: But I know CAS did attend and apprehend the child before we left.

11The police told the Pauls that they were seeking to obtain a search warrant. The Pauls realized that they did not have anything for the baby. They needed diapers, formula/food, and a crib. They asked if they could get those items. Officer Wray described them as being overwhelmed. Officers Campbell and Krivokapic went inside the basement apartment on their behalf to retrieve the items. The police did not ask Ms. Cromwell if they could enter the apartment. Officer Wray testified that Ms. Cromwell had already left the residence at this point and had been taken to the police station. Officer Campbell found the items and he testified that, “when I walked in to retrieve the diapers, I could see a box of what looked to me like ammunition, in the closet. The closet doors were wide open.” He did not retrieve or touch the item. He testified that he was not there to search for anything.

12Officer Campbell testified that with respect to obtaining items for the baby there was not necessarily a hurry, but he had concerns for the baby and he “didn’t feel right having a baby just sitting there”.

13The search warrant was obtained at 4:25 a.m. A search of the apartment revealed the following:

1. Men and women’s clothes and shoes;

2. Some documents;

3. A box of shotgun shells, and a gun case containing a 12-Gauge shotgun;

4. Four empty boxes of ammunition, including .410 ammunition, 10mm ammunition, .45 calibre ammunition, and 9mm ammunition;

5. Two adult toothbrushes, deodorant sticks for a man and woman;

6. A significant amount of .22 calibre ammunition;

7. Some marijuana;

8. A digital scale; and

9. Three wrapped packages of cocaine.

14The search ended at 6:41 a.m. [Redacted].

Issues

15This motion raises the following questions:

1. Was the search unreasonable because the police entered the apartment before the search warrant was issued?

2. Was the search unreasonable because it was executed at night?

3. Depending on the answers above should the evidence be excluded pursuant to s. 24(2) of the Charter?

1) Was the search unreasonable because the police entered the apartment before the search warrant was issued?

16There are some circumstances where the police are allowed to enter the home without a warrant for what has been termed “exigent circumstances”. Exigent circumstances tend to arise in two basic scenarios: 1) where prompt police action is necessary to protect human life or safety; and 2) where prompt police action is necessary to prevent the imminent loss, removal, destruction or disappearance of evidence. As summarised by Laskin J.A. in R. v. Davidson, 2017 ONCA 257 at paras. 21 and 22:

But exceptions exist, both by statute and at common law. For example, under s. 529.3 of the Criminal Code, R.S.C. 1985, c. C-46, the police may enter a home without a warrant to arrest or apprehend a person if the conditions for obtaining a warrant exist but “exigent circumstances” – that is, urgent or pressing circumstances – make it impractical to obtain one. The Code includes among exigent circumstances those where the police have reasonable grounds to suspect entry into the home is necessary to protect a person’s imminent harm or death, or to prevent the imminent loss or destruction of evidence.

A common law exception to the presumed unreasonableness of warrantless entries into a home is at issue in this appeal. Godoy affirms the principle that the police have a common law duty to protect a person’s life or safety and that duty may, depending on the circumstances, justify a forced, warrantless entry into a home.

17The defence submit that the police were not entitled to enter Ms. Cromwell’s apartment before the warrant was issued to retrieve the items that were requested for Ms. Cromwell’s baby. The defence submit that the police should not have been surprised that Ms. Cromwell had a baby because that would have been obvious to them based on their surveillance of her. The defence state that the CAS should have been contacted in advance of the arrest. The defence further suggests that while they accept that a request was made by the Pauls for the items for the baby, the police latched on to this as a basis to get an early look into the apartment, knowing it was inappropriate of them to do so. Counsel submit that the police should have told the Pauls that they could not retrieve the items, or they should have obtained a written consent from Ms. Cromwell.

18In my view, the police acted appropriately in the arrest of Ms. Cromwell. The police had the accused under surveillance but the timing of an arrest, if any, was not settled until the police arrested Mr. Adjei. Mr. Adjei was arrested shortly after 10:00 p.m., at the point the police made the reasonable decision to arrest Ms. Cromwell. A delay in arresting Ms. Cromwell, coupled with Mr. Adjei’s absence, risked a potential loss in evidence.

19I have been provided with no authority that requires the police to have in place, at the time of the arrest, child care for an accused’s children. In any event, I do not see how calling CAS in advance, as suggested by counsel, was even possible. It was late and the police still had to track down Ms. Cromwell.

20The defence further submits that Ms. Cromwell’s baby was given to her landlords without her permission. The record does not support that assertion. Ms. Cromwell did not testify on this motion. The only evidence on this point was from Officer Campbell, who stated that Ms. Cromwell was present and did participate in the decision to have the Pauls watch her baby. Furthermore, the Pauls were not given the baby. They watched the baby while the police conducted the search, until the CAS arrived in the morning. The police were still there when CAS arrived.

21The record also does not support the assertion that the police used the request for the baby items as a pretense to enter the apartment. There is no dispute that the Pauls asked for the requested items. The police were seeking a search warrant and they told this to the Pauls. The police did not need any observations, whatever they were going to be, to build their case for a search warrant. At that time, they, as will be explained below, had ample grounds to obtain a warrant. The police did not seize the ammunition seen on the closet shelf and the police properly disclosed the entry into the apartment in the search warrant. The police did not ask Ms. Cromwell for permission but, according to Officer Wray, the request for the baby items occurred after Ms. Cromwell had already left the residence.

22I agree that, looking back, it would have made sense for the police when discussing or arranging the care of the baby with the Pauls to have thought of the items that the baby might need. But the Pauls did not initially consider this, nor, it appears, did Ms. Cromwell. Ms. Cromwell asked the officer to help get a coat for herself before she left for the police station, but there is no indication that she mentioned any items that the baby would need. I do not intend this as a critique of Ms. Cromwell, but rather as an indication that things were happening quickly, and people sometimes forget the obvious. It is also possible that Ms. Cromwell assumed that someone would retrieve those items from her apartment. In any event, a failure to perfectly plan for all matters did not make the police’s retrieval of the baby items a ruse. The police retrieved the items because they were concerned about the baby’s well being. This was not an attempt by the police to undermine the pre-authorization process; R. v. Strauss, 2017 ONCA 628 at para. 25 or, in R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66.

23However, it must still be determined if the police’s proper concern for the baby allowed them the right to access the basement apartment before the search warrant was issued. Put another way, the question is whether the police needed to enter the basement apartment to preserve the life or safety of the accused’s baby. In my view, a fair reading of the record shows that while the police were understandably concerned about the baby, the baby’s safety was not in jeopardy. The baby had to be properly cared for, but there was no evidence that the baby was in distress. Furthermore, the police could have attempted to obtain the necessary items from the drugstore, many of which are open 24 hours a day. While the circumstances were concerning, they do not meet the definition of exigent as contemplated in R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311.

24However, a warrant is not automatically invalidated merely because the information to obtain contains errors, omissions, or misstatements of fact. Rather, the test is whether, after excising the erroneous information, and introducing the facts that were omitted, the remaining body of evidence could justify issuance of the warrant; R. v. Nguyen, 2011 ONCA 465 at para. 23, R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

25If the police have resorted to unlawful or unconstitutional conduct during the course of their investigation, such transgressions must be disclosed in the search warrant information to ensure full, fair, and frank disclosure. At the same time, Charter breaches should not serve as the sole foundation for further invasions of privacy. Where a warrant is based exclusively on the fruits of unconstitutional conduct it will likely be irrevocably tainted. On the other hand, where the police have also relied upon other sources of evidence, the warrant will survive if, after excising the offending material from the search warrant information, the remaining grounds are sufficient to justify issuance of the order; R. v. Grant 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; R. v. Orlandis-Habsburgo, 2017 ONCA 649 at para. 127. The Court also has a discretion to set aside a warrant – despite grounds for its issuance – when conduct leading up to its issuance has been subversive; R. v. Strauss, at para. 25.

26The defence does not take issue, apart from the grounds for the night time search, with respect to the rest of the information to obtain but made general submissions that the grounds were weak. In my view, excising the officer’s observation of the box of ammunition on the shelf closet, there were more than sufficient grounds to issue the warrant having regard to the following:

1. Information obtained from visits to different gun shops on February 10, 2018, April 5, 2018, and April 6, 2018, support the inference that Ms. Crowmell, who had a firearm license, was interested in purchasing ammunition not just for herself, but for Mr. Adjei who did not have license;

2. On April 12, 2018, Ms. Cromwell and Mr. Adjei attended a gun store and bought different types of ammunition and placed them in a grey plastic bag. The bag was placed in the trunk;

3. Shortly thereafter that night, Ms. Cromwell and Mr. Adjei met another car in a parking lot and a quick meeting, indicative of drug/ammunition trafficking, took place. The meeting lasted a minute and involved Ms. Cromwell exiting their car and entering the other car briefly before returning to their own car;

4. Mr. Adjei was then arrested that night for trafficking ammunition. Mr. Adjei and another individual were in a car. The police walked by the car and observed the grey plastic bag with ammunition. Upon their arrest, numerous rounds of ammunition were found, including some of the different calibres of ammunition that he and Ms. Cromwell had just bought that night; and

5. The information with respect to the above grounds were obtained before the unlawful entry into the apartment, in other words, they were not tainted by the entry into the apartment.

27Therefore, in my view, the entry to the apartment before the issuance of the search warrant did not render the search unreasonable.

2) Was the search unreasonable because it was executed at night?

28If the police want to conduct a search at night, s. 488 of the Criminal Code requires that the information to obtain specifically ask for such authorization from the justice and that the information to obtain include reasonable grounds for the search to be executed by night; R. v. Lowe, 2018 ONCA 110 at paras. 64-67. The defence claims that the information to obtain contained misleading and inaccurate information regarding the s. 488 request to execute the warrant at night, there was no basis for it to be executed at night, and therefore the search was unreasonable and violated s. 8 of the Charter. The Crown admits that the s. 488 grounds contain dated information, probably from an earlier draft, but there was no realistic possibility that the justice would have been misled by that information. Furthermore, the s. 488 grounds do provide a basis for the warrant to be executed at night, namely that Ms. Cromwell knew that the apartment was going to be searched, the delay in conducting the search was infringing on her landlord’s ability to use the residence, and there was no need, in these circumstances, to wait for daytime to conduct the search.

29The police sought to search the residences of both Mr. Adjei and Ms. Cromwell. One information to obtain was written to justify the search of both residences. The s. 488 grounds related to both residences. The information to obtain states that a night time search was needed to catch Mr. Adjei by surprise, as he might have a firearm. In addition, the information to obtain states that the element of surprise was needed to ensure that evidence was not lost. However, all parties agree that these justifications for the night time search were wrong since at the time of the searches Mr. Adjei and Ms. Cromwell were already arrested. The defence submits that this was an attempt to deliberately mislead the issuing justice. The Crown submits that this was a mistake with no attempt to mislead.

30Having reviewed the information to obtain, in my view, the police were not attempting to mislead the issuing justice. Prior to setting out the reasons for the night time search, the warrant details the circumstances surrounding the arrest of both accused. The affiant was clearly not trying to hide the arrest of both accused. It would, in my view, be evident to the justice that this was a mistake. I agree with Crown counsel this was probably a leftover section from the April 6th search warrant request that was refused. The reference to Mr. Adjei having a firearm stems from the police observations of him on April 6, 2019.

31The request for a night time search does contain an additional reason for the night time search, which states:

Officers are currently at both residences holding them to preserve evidence at the cost of the occupants having normal use of the property. Night grounds will assist in completing the search with minimal displacement of the occupants. They have all been informed in the reasons as to why the police are holding the listing places.

32Once Mr. Adjei was arrested, it made sense for the police to arrest Ms. Cromwell as soon as possible to ensure that no evidence would be destroyed. Ms. Cromwell was not woken in the middle of the night. She was arrested minutes after she and her baby returned home. Ms. Cromwell lived in the basement apartment of the Pauls’ house. The police entered the Pauls’ house through their front door and were sitting at the bottom of their interior stairs in front of Ms. Cromwell’s apartment waiting for the search warrant. Because of the interior access to the apartment, the police were required to preserve the scene from inside the house, clearly interrupting the Pauls’ use of their home. In my view, it made sense for the search to be conducted as soon as possible, so it could be completed as soon as possible so that the Pauls could have their house back. Ms. Cromwell and the Pauls knew that the basement apartment was going to be searched. In addition, as it turns out, when Ms. Cromwell was released from custody the next day, she was able to return to her residence because the search had been concluded. Conducting the search at night after her arrest was, in these circumstances, less intrusive. A similar situation arose in R. v. Ricciardi, 2017 ONSC 2788 where Di Luca J found at para. 63:

In my view, the police provided the issuing justice with a sufficient basis upon which a night time entry could be authorized. At the time the police were applying for the warrant, the Applicant had been arrested and was in custody. The police had a legitimate concern regarding the destruction of evidence. They had secured the apartment and were holding his family members in the lobby area of the building pending the arrival of the warrant. The police wanted to conduct a quick search of the apartment and then allow the Applicant's family re-entry into the apartment. There was no plan to conduct a dynamic entry or wake or startle occupants of the apartment. Indeed, the occupants were awake and waiting to get back into their home, presumably to go to bed in view of the time. In these circumstances, I find that conducting the night time entry actually struck a less intrusive balance than keeping the Applicant's family out of the apartment until morning so that a warrant could be executed during daytime hours. The request was reasonable and appropriate in the circumstances and I am satisfied that the issuing justice could have made the order.

33Also as noted in R. v. Macdonald, 2012 ONCA 244 at para. 30:

Moreover, the following considerations mitigated the intrusiveness of the search: the police told the appellant about their proposed search before they carried it out; there is no evidence that they conducted a “no knock” entry, or that they had their guns drawn, or even that they frightened anyone. In the light of all these circumstances, the night time search was not unreasonable.

34In my view, the search was not unreasonable because it was executed at night. The request was reasonable and appropriate in the circumstances and I am satisfied that the issuing justice would have made the order.

Conclusion

35The accused’s s. 8 rights were not violated. Therefore, there is no need for me to conduct an analysis under s. 24(2) of the Charter. The application to exclude the evidence obtained from the search of Ms. Cromwell’s apartment is dismissed.

The Honourable Justice H. Leibovich