Reasons for Decision
(On admissibility s. 24(2) of the Charter of Rights)
COURT FILE NO.: CR-19-90000890-0000 DATE: 20191213 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – FADHAL AL-MOLATI AND SHANNON MACDONALD Accused
Counsel: Geoffrey Roy, for the Crown I. Loui Dallas, for Fadhal Al-Molati Frederick J. Shanahan for Shannon MacDonald
HEARD: October 17, 2019
B.A. ALLEN J.
Background
[1] On June 21, 2017 the accused Fadhal Al-Molati and Shannon MacDonald were jointly charged with possession of cocaine for the purpose of trafficking (x2), possession of heroin for the purpose of trafficking, possession of hydromorphone for the purpose of trafficking, possession of marijuana for the purpose of trafficking and possession of proceeds of crime. The charges arise from search warrants executed on June 21st, 2017 at 285 Shuter St., Apt. 518, Toronto, 720 Trethewey Rd., Apt. 1804, Toronto and on a Toyota Matrix.
[2] At 285 Shuter St. the police seized powder cocaine, crack cocaine, heroin, marijuana, tablets of hydromorphone, phenacetin and Canadian and U.S., currency and drug paraphernalia. Mr. Al-Molati was a target of the investigation. He was arrested at 285 Shuter St., Apt. 518. Ms. MacDonald, not a target, was arrested about two hours later when she arrived at the apartment. The other target, Samuel Haile, was arrested and released unconditionally.
[3] In Reasons for Decision on a Garofoli application, R. v. Al-Molati, 2019 ONSC 6035, released on September 17, 2019 I found the police had breached Mr. Al-Molati's and Ms. MacDonald's rights under s. 8 of the Charter of Rights by entering and searching 285 Shuter St., Apt. 518 without having formed reasonable and probable grounds to do so. Now to be decided is whether in face of the violation of rights it would serve the interests of justice to admit the seized drugs.
Analysis Under Section 24(2) of the Charter
The Legal Framework
[4] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. The Supreme Court of Canada establishes three inquiries to govern the determination on whether to exclude evidence: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[5] The seriousness of the breach on the first inquiry falls along a spectrum. On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights R. v. Grant, supra, at paras. 72 and 74.
The First Inquiry
[6] I find the police failed to conduct a sufficient period of surveillance. They surveilled Mr. Al-Molati and Mr. Haile on three days. Most of their sightings were unconnected to the target address. The extent of pertinent observations of Mr. Al-Molati are few.
[7] On June 7th, Mr. Al-Molati is seen leaving the building at 275 Shuter St. On June 17th, Mr. Al-Molati is observed conducting what police believed to be a hand-to-hand drug transaction not in the neighbourhood of 285 Shuter St. Later, on June 17th, Mr. Al-Molati is observed boarding the passenger's side of the target Toyota and later that day walking with Mr. Haile on the fifth floor of 285 Shuter St. where Apt. 518 is located. I found the information from the informants did not sufficiently satisfy the location and temporal factors required to establish reasonable and probable grounds in relation to the target residence.
[8] Determinations on the seriousness of the breach as with the other inquiries turn on the particular facts of the case.
[9] Mr. Al-Molati was known by the police to be a longstanding, current and prolific drug trafficker in the area of 285 Shuter St. and in other downtown neighbourhoods. The police did not seem to have difficulty locating Mr. Al-Molati to observe him. Under these circumstances, I find it would have been more reasonable and prudent had the police exercised more patience and waited for more probative actions by Mr. Al-Molati, more temporally and geographically proximate to the target premises.
[10] I do not find that the police engaged in intentional misconduct or that they were motivated by bad faith. The police had a legitimate concern about drug crime in the neighbourhood they were investigating. What the police did was to act prematurely in circumstances that did not involve any urgency to enter the premises when they did.
[11] In the context of this case, where the police had little to no evidence that would corroborate the reasonable possibility that drug crime was unfolding in Apt. 518, I find the violation cannot be regarded as simply technical or neutral. But it was rather on the more careless and serious end of the spectrum. I believe the impatience by the police led to careless inattention to the fact that they had not garnered sufficient reasonable grounds to believe criminality would be uncovered in Apt. 518.
[12] This is in no way to under-estimate the fact that the police recovered relatively large quantities of highly addictive and dangerous substances. But justification for the search cannot, after-the-fact of the search, be founded on the dangerous nature of the items seized. The information available to the police at the time of the application for a search warrant is the basis on which reasonable grounds are to be formulated: R. v. Morelli, 2010 SCC 8, 2010 CarswellSask 15, at para. 43 and R. v. Araujo, 2000 SCC 65, 2000 CarswellBC 2440, at para. 59. Further, the computer checks on Mr. Al-Molati disclosed nothing of use to bolster reasonable grounds to believe drugs would be associated with the target address.
[13] The circumstance with Ms. MacDonald is even more concerning. The police were at the target address when she arrived two hours after Mr. Al-Molati was arrested. The police arrested her with negligible information about her. There was one sighting of her leaving the target building and walking to another address. There are no criminal implications apparent in that action by Ms. MacDonald.
[14] The police computer checks indicated Ms. MacDonald was the registered tenant of the apartment. There is no information indicating that she actually lived there or had anything to do with what the police found there. There is information from CS2 that Ms. MacDonald is the girlfriend of Mr. Haile. Were this information established as true, which it was not, perhaps its only value would be in connecting her to Mr. Al-Molati’s associate drug trafficker. However, as it stands, that information has no more value than mere gossip as it is an unsupported conclusory remark by CS2.
[15] The police arrested Ms. MacDonald on serious drug charges with no evidence of her connection to a crime being committed in the target address.
[16] I find the arrest of Ms. MacDonald is further along the spectrum of seriousness. It must have been apparent to the police that they had a paucity of information connecting Ms. MacDonald to criminality and the target address. But they went ahead, entered the apartment and, after arresting Mr. Al-Molati, ultimately arrested her without a sound foundation to do so.
[17] I find the court is obligated to dissociate from this conduct by the police in relation to both Mr. Al-Molati and Ms. MacDonald.
The Second Inquiry
[18] The second inquiry into the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused requires an assessment of the extent to which the breach actually undermined the interests protected by the right infringed.
[19] At this stage the court again considers whether the breach was merely technical or profoundly intrusive.
[20] The more serious the impact on the person’s rights the greater the risk that admission of the evidence may signal to the public their Charter-protected rights are of little avail to them.
[21] The risk of not excluding evidence under these circumstances is that the administration of justice is brought into disrepute: R. v. Grant, at para. 76. State inference is more serious the more it invades the most private spheres of a person’s life where there is a greater expectation of privacy: R. v. Grant, at para. 78.
[22] Police interference in this case was into the private sphere of a home. The only more invasive search is a search of a person’s body. However, in entering into a home the police necessarily intrude into the inner sanctity of a person’s most private life.
[23] When Mr. Al-Molati was arrested he seemed to have been intimately connected to Apt. 518 in the early morning. He was wearing his underwear when the police entered in the early hours of the morning June 21st.
[24] Ms. MacDonald was, on paper at least, the registered tenant of the apartment. If she in fact lived there as a tenant this would be a more serious case of the police violating her rights by entering and arresting her in her home on virtually no meaningful information. The state action is aggravated by the fact that the intrusion was founded on scant information that a crime was being committed in the target address. The breach was all the more unreasonable because of the very real possibility that with more effort the entry might have been justified.
[25] I find the breach, by reason of its invasiveness, is on the serious end of the spectrum and adds to the reason the court should not condone the police action.
The Third Inquiry
[26] The Supreme Court of Canada in R. v. Harrison held the review court must engage in a qualitative exercise of balancing the three lines of inquiry. It is a fact-driven exercise based on the particular facts of each case. It is not to be approached as a formulaic determination of whether the majority of the factors favour exclusion. The balancing must consider the effect admitting the evidence would have on the long-term repute of the administration of justice: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36.
[27] Similar to the case before me, a significant quantity of drugs was seized by the police in R. v. Harrison. The court in that case found the police’s violation of the accused’s rights sufficiently serious to exclude the drugs from trial. The seriousness of the offence is the focus of the third inquiry. A distinguishing feature in R. v. Harrison is that the drugs were found in a rental vehicle on the highway and not in the private sphere of the accused’s home. The concerns of the third inquiry apply with more strength in the circumstances of a search of a private home.
[28] A balance must be struck between two interests. Serious consequences to our justice system can result from a failure on one hand to prosecute a serious crime due to excluded evidence. On the other hand, there is the longer-term effect on the justice system of prosecuting a crime where the evidence was procured through a serious violation of an accused’s rights: R. v. Harrison, at para. 34.
[29] The seriousness of the offence is a valid concern in a case where large quantities of a variety of highly addictive drugs are involved. R. v. Harrison, however, cautions against putting inordinate emphasis on the seriousness of the offence. The court observed that the seriousness of the offence can cut both ways.
[30] Failure to prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. But it is the long-term repute of the justice system that is s. 24(2) of the Charter’s focus: R. v. Harrison, at para. 84. A determination on a s. 24(2) application should not focus on the immediate effect of exclusion on the justice system at the expense of failing to consider the long-term repute of the justice system if the evidence is admitted.
[31] The Crown argues the crimes before the court are very serious and should be prosecuted. The Crown points to the serious social problems of widespread addiction to drugs like heroin and cocaine and the other offences associated with drug crime. That evidence is the substance of the Crown’s case and constitutes strong proof for the Crown. There is no question that the presence of a substantial quantity of very addictive drugs are a dangerous scourge on many communities. Drugs breed guns, violence and death. This cannot be overlooked.
[32] But I am required to balance the three inquiries. On the first inquiry, the state conduct is on the moderate to more serious end of the spectrum of conduct by officers engaged in a search of a private residence. I find from this, on the impact of the breach under the second inquiry, that the court surely should not leave uncriticised the officers’ entry into a private home and their arrest of occupants with a scant basis to do so. Again, there is no evidence of exigency. The circumstances are accentuated by the fact that it was within police resources to take more time to conduct a more fulsome investigation and make a lawful entry. There is no evidence otherwise. Again, Mr. Al-Molati was a known prolific drug dealer in the target neighbourhood. The outcome on this application would likely have been different had the police exercised more forbearance.
[33] The prospect of the police using their authority to enter a home in the early morning hours and intrude upon the most intimate spaces and private activities of the occupants without a viable legal basis to do so is truly unnerving. Whether the home under investigation is in a more crime-vulnerable public housing complex or in a more materially lavish residential setting, the law is in place to protect everyone from unreasonable state action no matter how modest their abode. As the Supreme Court of Canada aptly observed:
Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.
[34] I find on the facts before me that the long-term repute of the justice system would not be served by admitting the drugs. This is a case in which admitting the evidence would surely erode public confidence that their rights are valued by state authorities. Members of the public would scarcely approve of police entering homes with a weak foundation to do so. The balance of the three inquiries tips in favour of exclusion of the evidence.
Disposition
[35] The cocaine, heroin, marijuana, hydromorphone and proceeds of crime are not admitted as evidence at trial.
B.A. Allen J. Released: December 13, 2019