Court File and Parties

COURT FILE NO.: 18-117

DATE: 2019-10-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON CAMPBELL

Defendant

Amber Meiners for the Crown

Kevin Kaczmara for Mr. Campbell

HEARD: October 21-24, 2019

ruling No. 3 on pre-trial applications

boswell j.

INTRODUCTION

[1] These reasons are provided to explain a ruling I made on October 25, 2019 dismissing a Garofoli application brought by Mr. Campbell. A Garofoli application involves a challenge to the validity of a judicial authorization; in this case, a warrant to search the contents of a number of cellular telephones. The name of the application reflects the name of a Supreme Court case that defines the legal principles that govern applications of this nature: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.

[2] I will provide an overview of the background to the warrant application, then I will set out the general principles that govern applications of this nature as well as the parties’ positions. Finally, I discuss why I decided to dismiss the application.

OVERVIEW

[3] October 4, 2016 was not Mr. Campbell’s lucky day.

[4] That morning, he awoke as a guest in room 315 at the Super 8 Hotel in the south end of Barrie. There is nothing inherently unlucky about that fact. By all accounts the Super 8 is a decent hotel.

[5] To the north of the hotel, however, across a good-sized parking lot, is a large LCBO outlet. It opens at 10:00 a.m. every day but Sundays. October 4, 2016 was not a Sunday. About an hour or so after opening, one shopper left the store with a basketful of products that he had not paid for. Mr. Campbell did not realize it at the time, but the theft was the first piece of bad luck to happen to him that day.

[6] An employee of the LCBO called the police to report the theft. A call went out over the police radio that officers in the area of the LCBO should be on the lookout for a black male, aged 40 to 50, about 5’9” in height and wearing a Captain America t-shirt. The suspect was last seen running away from the LCBO in a southerly direction.

[7] Mr. Campbell’s second bit of bad luck was that October 4 was not an overly busy morning for police patrolling in the south end of Barrie. Four officers separately responded to the LCBO call. They converged on the Super 8 Hotel, which was immediately south of the LCBO in the very direction that the suspect was last seen headed.

[8] One officer checked with the front desk to see if anyone fitting the description of the suspect had been seen in the hotel. I understand that the “description” provided to the clerk was “male, black”. The clerk apparently told the officer that there was a person staying in room 315 who matched that description. Mr. Campbell’s third stroke of bad luck was that he happened to be the one black man staying at the Super 8 at the time.

[9] To be clear, Mr. Campbell had nothing to do with the theft at the LCBO and did not match the description of the suspect.

[10] The police attended at room 315 and knocked on the door. A female answered it. She swung the door open wide as she did. The lead officer immediately spotted a set of brass knuckles on a tv stand in the room. Brass knuckles are a prohibited weapon in Canada. At the same time the officer saw Mr. Campbell make a quick move behind a wall. The officer immediately formed the view that the situation was becoming dangerous and he entered the room to secure the safety of the officers and the general public.

[11] Upon entering the room, the lead officer saw that Mr. Campbell had grabbed for a clear plastic bag containing marijuana and cocaine, which was on a night table. The officer seized the bag and arrested Mr. Campbell for possession of controlled substances.

[12] Mr. Campbell was subsequently charged with possession of cocaine for the purpose of trafficking, possession of a prohibited weapon and breach of recognizance.

[13] The police seized five cell phones from room 315. On January 8, 2017 they applied for, and were granted, a warrant to conduct broad searches of the contents of the cell phones.

THE GOVERNING PRINCIPLES

[14] The warrant was granted under the provisions of s. 487(1) of the Criminal Code. That section provides that before a search warrant may be issued, the issuing justice must be satisfied that there are reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence will be found in the place proposed to be searched. See R. v. Morelli, 2010 SCC 8, at para. 39.

[15] The evidence filed by the police to support their warrant application consisted of the sworn statement of PC Jason Breedon (now DC Breedon). His sworn statement is known as an Information to Obtain (“ITO”).

[16] There are a number of requirements that apply generally to the drafting of an ITO. These requirements were recently summarized by DiLuca J. in R. v. Ricciardi, 2017 ONSC 2788 at paras. 14 to 17. They include:

(a) The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable;

(b) An affiant is entitled to rely on training and experience in assessing grounds but must be careful to consider both evidence that supports grounds and evidence that detracts from grounds;

(c) An affiant should only ignore what is believed to be irrelevant or unreliable;

(d) An affiant has an obligation to make full, fair and frank disclosure;

(e) An ITO must contain a reasonable degree of precision about the items being searched for, assessed within the context of the case;

(f) The ITO must establish a basis for the reasonable belief that those items will afford evidence in respect of an offence under investigation;

(g) The ITO must provide grounds supporting the belief that the listed offence or offences have been committed though exact precision is not required; and,

(h) The issuing justice must determine, based on the facts conveyed in the ITO, whether sufficient grounds exist for issuance of the warrant. An issuing justice is permitted to draw reasonable inferences from stated facts.

[17] A judicially authorized warrant is presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid search warrant. The determinative question is whether the issuing judge could (not should) have granted the warrant. Sopinka J. outlined the test clearly in R v. Garofoli, as above, at para. 56:

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.

[18] The onus is on the applicant to demonstrate that there was no basis upon which the issuing justice could have granted the warrant in issue. To discharge that onus, the applicant must generally attack the preconditions to the warrant, i.e. the existence of reasonable and probable grounds. Alternatively, as Justice Doherty observed in R. v. Sivrattan, 2017 ONCA 23, at para 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rending the entire ITO unreliable as a basis on which to issue the warrant.”

[19] In this instance, I granted defence counsel leave to conduct a focused cross-examination of the affiant. In the result, I must consider the fruits of that cross-examination when I consider the sufficiency of the ITO. As Fish, J. said in R. v. Morelli, as above, at para. 41:

The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (R.v Araujo, (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[20] In this case there was no amplification evidence tendered by the Crown.

THE POSITIONS OF THE PARTIES

[21] Defence counsel’s position is that the ITO sworn by PC Breedon is rife with errors and would have recklessly misled the issuing justice. It is so unreliable that it should be disregarded in its entirety.

[22] Defence counsel focused on the following aspects of the ITO as being particularly misleading:

(a) Paragraph 10, where the affiant said that PC Ford and PC Brown received information that a male fitting the description of the LCBO theft suspect was currently renting room 315;

(b) Paragraph 11, where the affiant said that when police officers attended at room 315, “a male matching the suspect description immediately conceals himself behind a wall and between two beds to avoid police detection”; and,

(c) The affiant’s failure to speak to PC Lamont before completing the ITO. PC Lamont was one of the four officers who attended at the Super 8 and is the one who spoke to the desk clerk about whether anyone matching the suspect’s description had been seen in the hotel.

[23] The Crown’s position is that the ITO was not misleading, let alone intentionally or recklessly misleading. The Crown submitted, correctly, that the ITO must be considered as a whole. When considered as such, the picture presented was fair and accurate and more than adequately supported the issuance of the warrant.

[24] The Crown further submitted that the impugned paragraphs of the ITO can be excised if the court considers them inaccurate. They were, in any event, only background narrative. Their excision will make no difference to the existence of the reasonable and probable grounds that supported the issuance of the warrant.

DISCUSSION

[25] I agree with the Crown’s submissions.

[26] PC Breedon was relatively inexperienced in the preparation of warrant applications and, more specifically, the drafting of ITOs. He testified that he had authored four or five prior to this one. Some of the paragraphs are sloppy and somewhat inaccurate.

[27] For instance, it was PC Lamont who received information that a male matching the description of the LCBO suspect was staying in the hotel, not PC Ford and/or PC Brown. Moreover, it was not made clear to the issuing justice that the only characteristics that matched between Mr. Campbell and the LCBO suspect were gender and skin colour.

[28] While there is evidence that Mr. Campbell ducked out of sight when the police came to the door of room 315, it was not accurate to say that “a male matching the suspect description immediately conceals himself behind a wall…” In fact, it was immediately apparent to the officers who attended at room 315 that Mr. Campbell did not match the LCBO suspect’s description. That fact was never made clear to the issuing justice.

[29] The portions of the ITO that defence counsel points to as inaccurate or misleading, have little to do with the actual grounds to support the warrant. They may have something to do with the merits, however, of the police justification for knocking on the door to room 315, or their purported justification for entering room 315. But it is the evidence the police found in room 315 that informed their reasonable and probable grounds for seeking the warrant to search the cell phones.

[30] Mr. Campbell brought a companion application seeking to exclude evidence obtained by the police from room 315 on the basis that the evidence was obtained in a manner that infringed a number of his Charter protected rights, specifically under ss. 8, 9, 10(a) and 10(b).

[31] Although there is some debate in the literature on the point, the law in Canada appears to remain that unconstitutionally obtained evidence should be excised from an ITO. See R. v. Jaser, 2014 ONSC 6052, at paras. 26-34 for a helpful overview of the rule of automatic excision and the surrounding debate.

[32] Had Mr. Campbell been successful in his companion application, the core of the ITO would have been gutted by virtue of the automatic excision of any reference to the evidence obtained by the police from inside room 315.

[33] Mr. Campbell was not, however, successful in his companion application. As it stands, the ITO made reference to the fact that when officers entered room 315 they observed Mr. Campbell in possession of a plastic bag containing cocaine and marijuana. They found multiple cell phones and weigh scales in the room as well – items that are both well-known indicia of drug trafficking. It is this evidence that supports the issuance of the warrant to search the cell phones.

[34] I note that there are references in the ITO to other items seized by the police during a search incident to arrest. These items include, for instance, quantities of other illicit drugs, bear spray, a second set of brass knuckles, a bundle of currency and a black balaclava. Crown counsel conceded during argument of the companion application that the search incident to arrest was overly broad and that any items seized during that search would be voluntarily excluded.

[35] Defence counsel did not advance an argument that references to evidence seized as part of the search incident to arrest should be automatically excised from the ITO. That said, it is appropriate that I nevertheless excise these references as they involve evidence that is conceded to have been obtained unconstitutionally.

[36] Having said that, even if I excise the paragraphs impugned by defence counsel, as well as any references to evidence admittedly seized unlawfully, there will be virtually no impact on the sufficiency of the ITO. The presence of drugs, scales, a prohibited weapon and multiple cell phones is enough to provide the reasonable and probable grounds needed to support the issuance of the warrant. Only if I were satisfied that the ITO was entirely unreliable, due to intentional or reckless misleading on the part of the affiant, could I find in Mr. Campbell’s favour on this application.

[37] Considering the ITO as a whole, I find that it could have been drafted more carefully and accurately. But in its present form it would not have misled the issuing justice. Any drafting deficiencies are the result of inexperience and inadvertence and do not reflect recklessness. They certainly do not reflect, in my view, an intention to mislead the court.

[38] The ITO, even in its excised form, could clearly have supported the issuance of the warrant.

[39] In the result, the Garofoli application is dismissed.

Boswell J.

Released: October 29, 2019