COURT FILE NO.: CrimJ(P) 1359/18
DATE: 2019 12 19
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Crown/Respondent
v.
CHAVES PATTEN
Defendant/Applicant
BEFORE: Ricchetti, J.
COUNSEL: A. Fedak-Tarnopolsky for the Crown/Respondent
M. Mattis for the Defendant/Applicant
HEARD: December 9 - 13, 2019
RULING ON PRE-TRIAL APPLICATIONS
THE APPLICATIONS
[1] There were a number of applications to be dealt with by the court. Essentially, the evidence heard was common and applied to all applications.
[2] The Crown sought a ruling that any utterances made by Mr. Patten during his arrest were voluntary. After the evidence and during submissions, the Defence conceded that any utterances made by Mr. Patten's during his arrest were voluntary. A ruling is hereby made that Mr. Patten's utterances referred to below in the facts, during his arrest, were voluntarily made.
[3] The Defence applications consisted of:
i. Leave to cross-examine Officers Westlake and Mukhi (the affiant and sub-affiants in the Information to Obtain (ITO);
ii. An alleged breach of Mr. Patten's ss. 7, 8, 9, and 15 rights under the Charter as a result of racial profiling resulting in the exclusion of Mr. Patten's utterances, evidence found at the scene of his arrest and in Mr. Patten's vehicle;
iii. An alleged breach of Mr. Patten’s section 10(b) rights under the Charter as a result of the failure to provide Mr. Patten with his rights to counsel (“RTC”) and caution; and
iv. A ruling that the search warrant of Mr. Patten's vehicle be quashed;
ANALYSIS ON THE LEAVE TO CROSS-EXAMINE ITO AFFIANT/SUB-AFFIANT
[4] The first issue dealt with was an application by the Defence to cross-examine Officers Westlake and Mukhi (ITO affiant and sub-affiant respectively) on the application to quash the search warrant of Mr. Patten’s vehicle.
[5] After submissions on this issue, the court advised that leave would not be granted to cross-examine Officer Westlake with reasons to follow. These are those reasons.
[6] As for leave to cross-examine Officer Mukhi, Officer Mukhi testified at the voir dire in these applications. During submissions at the conclusion of the hearing, the Defence advised it would not pursue leave to cross-examine Officer Mukhi as a sub-affiant on the ITO. Essentially, the Defence had obtained the evidence he required to attack the validity of the search warrant during Officer Mukhi's testimony on the applications generally.
[7] In many ways, the evidence of Officer Westlake, who eventually testified during the voir dire, was unexpectedly later called as a witness and was cross-examined by the Defence. However, since the court ruled on this issue before Officer Westlake was expected to testify at the voir dire, let me provide my reasons for dismissing this part of the Defence application.
[8] Officer Westlake was the affiant of the Information to Obtain (“ITO”) on January 21, 2018 to obtain judicial authorization for the search of the vehicle Mr. Patten was driving that day, a BMW (“BMW”). As is common, Officer Westlake was provided with information regarding the investigation from other police officers, including Officer Mukhi, the arresting officer and routine police searches.
[9] Leave must be obtained to cross-examine affiants and/or sub-affiants to an ITO. The Supreme Court in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, explained, at p. 1465:
Leave must be obtained to cross-examine. The granting of leave must be left to the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.
[10] The grounds for granting leave to cross-examine ITO affiants or sub-affiants is narrow. The requirement for leave to cross-examine an affiant to challenge the issuance of a search warrant is to ensure that the cross-examination will be relevant to the issue to be decided, to preclude unnecessary delays and to avoid a waste of court resources. The Supreme Court in R. v. Pires; R. v. Lising, 2005 SCC 65, [2005] 3 S.C.R. 343, 2005 SCC 66 stated at para 40:
As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous — it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.
[11] Bald assertions that the cross-examination sought will or might illicit helpful information to the Defence is not enough. The applicants must establish a “reasonable possibility” or “reasonable likelihood” that the cross-examination would assist the court’s determination on the validity of the search warrant.
[12] The fact that the cross-examination might show that some of the information relied on by the affiant is erroneous or false is generally not a ground to grant leave for cross-examination since a reasonable belief by the affiant as to the accuracy of the information will permit the issuance of the search warrant. It is only if the Defence has shown that the cross-examination has a reasonable possibility of establishing the affiant knew or ought to have known the information was erroneous or false in a material respect that cross examination will be permitted. In Pires & Lising, the Supreme Court, at para. 41, stated that:
...cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false.
[13] The Court of Appeal for Ontario reiterated this point in R. v. Victoria, 2018 ONCA 69, at para. 85, that:
Complaints about an affiant's inferences, like claims of omissions, inconsistencies, or conclusory or inaccurate statements afford no basis for cross-examination.
[14] However, there is a caveat. Where the Defence establishes some basis that there are "material" omissions or inaccuracies in the ITO, such evidence may well constitute grounds to grant leave for the cross-examination of an affiant or sub-affiant. See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58. The reason for this is simple: the court must remain vigilant to ensure that the judicial process of obtaining search warrants on an ex parte basis are not subverted by the police. As a result, the authorities have established that courts have a residual discretion to quash a search warrant where the affiant or sub-affiant have subverted or attempted to subvert the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. See R. v. Paryniuk, 2017 ONCA 87, at para. 70 (leave to appeal refused [2017] S.C.C.A. No. 81), where the Court of Appeal stated that there is:
…a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like.
[15] Let me now turn to the issues identified by the Defence as the basis for seeking leave to cross-examine Officer Westlake. I should point out that the Defence did not lead an evidentiary basis to find that Officer Westlake knew the information he swore to in the ITO was erroneous, false or misleading. Essentially, the Defence position was that the ITO contained unnecessary and irrelevant information so as to be misleading to the issuing justice. As will be seen below, the issues raised by the Defence did not establish that cross examination of Officer Westlake was necessary because the information (or lack thereof) at issue was available for a facial attack on the ITO and would not assist on the fundamental issue to be decided - whether the issuing judge could have issued the search warrant.
[16] It is useful to keep in mind that, upon a review of the entire ITO, the key facts for the search warrant sought by the police were that:
i. Mr. Patten was seen arriving in a BMW, the vehicle sought to be searched;
ii. Mr. Patten was allegedly in breach of his bail conditions, including a driving prohibition;
iii. When approached by the police, Mr. Patten immediately ran from the police;
iv. When caught, Mr. Patten was arrested;
v. Apparently on Mr. Patten was a large quantity of cash, the BMW key and a bag(s) of drugs;
vi. During Mr. Patten’s arrest, Mr. Patten said to the police that there was a firearm in the BMW; and
vii. The police seized the BMW and sought the subject search warrant.
[17] Key is the utterance regarding the existence of a firearm in the BMW. There is no suggestion that Officer Westlake knew or ought to have known that the utterance regarding the firearm was false. As set out below, I find for the purpose of these applications that Mr. Patten did make such statements to a number of police officers including this key utterance. As a result, on these facts alone in the ITO, there existed reasonable and probable grounds that the issuing justice could have issued the search warrant.
[18] None of the issues raised by the Defence, upon which he sought to cross-examine Officer Westlake, went to the issue to be decided in the application to quash the search warrant.
[19] The Crown agreed to the excision of certain portions of the ITO objected to by the Defence. However, the Crown did not admit that any of these portions were deliberately erroneous or misleading to the issuing justice.
[20] Nevertheless, let me go through the specific issues raised by the Defence.
i) Contradict the information in the "Background"
[21] The Defence submitted that cross-examination might result in the contradiction of some information in the "Background" section.
[22] There is no merit to this submission. A reading of the entire ITO shows that the basis for Officer Westlake's "Background" was essentially a summary of the information he had obtained from the briefing officers and his NICHE search.
[23] There is no real dispute that this information included in the ITO was imparted to Officer Westlake or was obtained from the NICHE search. There is no evidence that Officer Westlake had any reason to believe the information was false.
[24] This submission has no merit.
ii) Youth Record
[25] The Defence points to items 3(b) (i) and (ii), which are Mr. Patten’s convictions for Robbery and Failing to Comply as Mr. Patten's youth record. The Defence submits that the cross-examination would seek to uncover "how his youth record made it into the ITO".
[26] The Crown agrees that these are Mr. Patten’s "youth" convictions and should have been identified as such.
[27] In addition, the Crown conceded that the items in paragraph 3 (c) xix, xx and xxi are a repetition of Mr. Patten's youth record at paragraph 3(b)(i) and (ii) and should be excised.
[28] Given the concession of the Crown and the statement that the information was obtained by Officer Westlake from his NICHE search, it remains available for the Defence to a facial attack on the validity of the search warrant based on the inclusion of Mr. Patten's youth record.
[29] Cross examination of Officer Westlake on this issue is not necessary.
iii) Lack of dates for Mr. Patten's prior convictions and charges
[30] The Defence points to paragraphs 3 (b) and (c) of the ITO as failing to have dates of the convictions and various other charges. It is clear on the face of the ITO that dates were not included. The Defence can attack the validity of the search warrant simply from the obvious and facial apparent omission of those dates.
iv) Withdrawn and Dismissed Charges
[31] The Defence submits that the items in 3(c) which were “withdrawn” or “dismissed” should not have been included in the ITO.
[32] The Crown conceded that the "withdrawn" and the "dismissed" charges should be excised as not being relevant. Given the Crown concession, the proposed cross examination would not assist the Defence in this attack on the ITO.
Conclusion
[33] I am not satisfied that the Defence has established a “reasonable possibility” or “reasonable likelihood” that the cross-examination of Officer Westlake would assist in challenging the validity of the search warrant.
[34] This part of the Defence application is dismissed.
THE EVIDENTIARY PORTION OF THE APPLICATIONS
[35] Viva voce evidence was then called. Officers Tingle, Elliott, Mukhi, D’Souza, Bansal, Barden, McConkey and Westlake testified. Mr. Patten testified.
THE FACTS
[36] I make the following findings of fact from the evidence, based on this record, solely for the purpose of disposing of these applications.
[37] In January 2018, Mr. Patten was 21 years old.
[38] Mr. Patten has a number of prior convictions; some as a youth in 2011 and 2013. Some were as a youth.
[39] In January 2018, Mr. Patten had outstanding numerous charges, dating back to April 2016, in relation to a firearm and other alleged offences. Mr. Patten's bail release conditions included not possess firearms, house arrest, not operate or have care and control of a vehicle, and not possess a cell phone. These bail conditions existed in January 2018.
[40] In the latter part of 2017 and early 2018, there had been several shootings in the Peel Region. As a result, there was a police "project" (an investigation) by Peel's Criminal Investigation Bureau (“CIB”) into the shootings. One such shooting took place on January 1, 2018 where Mr. Patten had been shot in the hand. Mr. Patten did not cooperate with the police regarding this shooting. Mr. Patten was a person of interest to the police regarding the shooting investigation.
[41] As part of this investigation, at the police station, there was displayed on a "board" (and possibly on TV's) photographs of persons, vehicles and other items relevant to the ongoing investigation. Included as part of this was a Peel Regional Police Poster of Mr. Patten including Mr. Patten's name, photo and the vehicle he had access to.
[42] Officers Mukhi and D’Souza (the “Officers”) were from that same police station. Officer Mukhi had access to and testified that had seen the “poster” or board with Mr. Patten’s photo and name. The investigation was of some interest to Officer Mukhi.
[43] On January 21, 2018, the Officers were on patrol. This was Officer D’Souza's second day as a trainee officer.
[44] The Officers had spent the morning running a number of license plates. The Officers had just completed an unrelated police call. Their police cruiser was parked in a plaza parking lot near 51 McMurchy Avenue South, Brampton ("Plaza"). There is a Circle K convenience store at the Plaza.
[45] At 1:36 pm, as the Officers were about to leave, the Officers observed a BMW turn into the Plaza and park immediately near the entrance to the Plaza.
[46] The Officers observed a black man get out of the BMW. The man started to walk towards the Circle K convenience store.
[47] Officer Mukhi believed he recognized the male from the "project" photos at the police station. As a result, at approximately 1:36 pm, Officer Mukhi "ran" the license plate of the BMW on his cruiser's computer. The computer showed that the BMW was one of the vehicles identified in the police investigation and it was a vehicle accessible to Mr. Patten, who was subject to outstanding bail conditions, including not to drive.
[48] Officer Mukhi now associated the name “Patten” to the male who exited from the BMW to the police investigation and, without having seen a photo, recognized Mr. Patten or who he believed was Mr. Patten.
[49] Officer Mukhi had not run Mr. Patten's name or retrieved a photo of Mr. Patten from the cruiser's computer at that time.
[50] Officer Mukhi decided to investigate further by speaking with the male he believed was Mr. Patten. Officer Mukhi drove his cruiser towards the area in front of the Circle K store.
[51] Seeing the police cruiser come forward, Mr. Patten stopped walking towards the convenience store. At approximately the time the police cruiser arrived at the front of the convenience store, Mr. Patten ducked behind a parked car to avoid being seen.
[52] Officer D’Souza yelled out "hey" to Mr. Patten. Mr. Patten started to run. Officer Mukhi radioed for assistance that they were in pursuit of a male wanted for breach.
[53] The chase was on. It was brief - less than a minute. Other officers and cruisers came to the area to assist in the pursuit.
[54] At approximately 1:39 pm, the Officers apprehended Mr. Patten. Officer Mukhi arrested Mr. Patten for breach of bail conditions. Officer Mukhi told Mr. Patten the reason for his arrest.
[55] As Mr. Patten got up from the ground, there was located on the ground: money ($1763), a loonie, a BMW key and a blue bag or bags containing what appeared to be drugs. Whether these items fell from Mr. Patten's pocket or Mr. Patten threw them down (as he was seen fumbling through his pocket) makes no difference to these applications as there is no dispute that, at least the money and the BMW key were in Mr. Patten’s possession.
[56] Mr. Patten was yelling and screaming that he had been "setup". Mr. Patten was upset.
[57] Mr. Patten was placed in the rear of another police cruiser which had come to assist. Officer Mukhi and Officer D’Souza were in the front seat of the cruiser.
[58] At approximately 1:44 pm Officer Mukhi ran Mr. Patten through the cruiser's computer and obtained a photo of Mr. Patten. This confirmed it was Mr. Patten.
[59] At approximately 1:45 pm, Officer Mukhi read Mr. Patten his RTC and caution. Mr. Patten's responses, that he understood his RTC and caution, were recorded verbatim at that time by Officer Mukhi in his notes.
[60] Officer D’Souza recorded in his notes that, at 1:45 pm, Officer Mukhi had read Mr. Patten his RTC and caution but did not set out details in his notes other than Mr. Patten understood his RTC and caution.
[61] Mr. Patten waived his right to speak to counsel at that time. Mr. Patten understood that, what he said to the police, could be used against him.
[62] Although unnecessary in this case, there are other officers at the scene who provide some corroborating evidence that Officer Mukhi read Mr. Patten his RTC and caution at approximately that time.
[63] After the RTC and caution, Mr. Patten again began yelling and screaming. Officer Mukhi asked him what was wrong. At approximately 1:47 pm Mr. Patten 's response was that there was a firearm in the BMW. Officer Mukhi recorded this in his notes at the time.
[64] Mr. Patten continued to scream and bang his head in the cruiser. Mr. Patten suffered a cut to his forehead.
[65] At approximately 1:47 pm, Officer Tingle went to see whether Mr. Patten was hurt because he had seen Mr. Patten banging himself against the partition in the rear of the cruiser. Mr. Patten told him that he didn’t need medical assistance. Mr. Patten told Officer Tingle: "there's a gun in the car bro". In all likelihood, Mr. Patten's utterance to Officer Tingle appears to have been a separate subsequent utterance regarding the firearm but very close in time to the first utterance to Officer Mukhi and D’Souza. However, whether it is the same or a subsequent utterance, it makes no difference as the evidence establishes that Mr. Patten made at least one initial utterance that there was a firearm in the BMW and then, as described below, made a subsequent similar utterance at 1:51 pm.
[66] Several officers at the scene, checked with Mr. Patten to see if he was injured or required assistance. At approximately 1:46:45, an ambulance was called.
[67] At approximately 1:51 pm Officer Tingle returned to the cruiser and asked Mr. Patten if he had any other injuries. Mr. Patten answered no but told him that he had previously been shot in the hand. Officer Tingle decided to pursue Mr. Patten’s prior statement about a gun in the BMW. He asked Mr. Patten "what gun". Mr. Patten said that he needed a gun to protect himself and said that the gun was "a glock". Officer Tingle asked him where it was located. Mr. Patten didn't respond.
[68] Officer Mukhi decided he needed to advise his supervisors of the possible presence of a firearm. At 1:57 pm, Officer Mukhi spoke to Officer Barten at CIB advising that he had recognized Mr. Patten from the "project". Officer Barten recorded that Officer Mukhi told him that he had recognized Mr. Patten from "past dealings". I do not find the difference in terminology between Officer Mukhi and Officer Barton to be significant.
[69] At 2:01 pm, the ambulance arrived. Mr. Patten's cut was attended to.
[70] Mr. Patten was taken to the police station and charged.
[71] The BMW was not searched at the arrest scene but was transported to the police station pending the police obtaining a search warrant. The firearm in the BMW was first discovered during the search after the warrant was obtained.
THE CREDIBILITY AND RELIABILITY OF MR. PATTEN'S EVIDENCE
[72] I find that Mr. Patten has no credibility and his evidence has no reliability whatsoever. I reject his evidence in its entirely.
[73] Mr. Patten provided an affidavit denying much of what happened on January 21, 2018 including a denial that he was provided with his RTC and caution and a denial that he told any of the officers about a gun in the BMW.
[74] Mr. Patten testified at the voir dire.
[75] Mr. Patten’s evidence was inconsistent. It was contradictory. It was self serving. The difficulties with Mr. Patten’s evidence were obvious. The Defence did not refer to Mr. Patten's evidence once during his submissions or urge the court to find any part of Mr. Patten's evidence as credible or reliable to support the Defence applications.
[76] Let me provide a few examples to demonstrate the fundamental problem with Mr. Patten's evidence:
i. Mr. Patten stated in his affidavit that when he got close to the convenience store, he stopped and was returning to the BMW because he had “forgot something” in the BMW. Mr. Patten denied it was because he saw the police (despite admitting that he knew he was breaching his bail conditions when he saw the police). Mr. Patten was asked in cross-examination what he had forgotten. Mr. Patten said he had forgotten his money and then added a coat from the BMW. Later in the cross examination, Mr. Patten admitted that he had approximately $1,700 on him (more than enough to buy diapers!). Eventually, Mr. Patten admitted he didn't go back to the BMW for money. After further cross-examination, Mr. Patten agreed he didn't know whether he had a coat in the BMW. It was obvious that Mr. Patten had not turned back because he had forgotten something in the BMW. Eventually, Mr. Patten admitted he turned back because he saw the police. Despite this clear admission, when it was finally suggested to him that his sworn statement was a lie, Mr. Patten denied this and again repeated that he had gone back for money or a coat;
ii. In his affidavit and his testimony, Mr. Patten denied he was given his RTC and caution at the cruiser. Mr. Patten denied he ever declined to speak with a lawyer. Mr. Patten said there was no possibility he had forgotten declining to speak with a lawyer. At one point, after a number of ambiguous answers by Mr. Patten, the court asked Mr. Patten whether he had ever asked to speak to a lawyer. Mr. Patten answered no. Then Mr. Patten’s police station interview was played. The interviewing officer read Mr. Patten his RTC and caution. At the end of the RTC and caution Mr. Patten was asked if he wanted to speak with counsel. Mr. Patten said no. Mr. Patten’s answers now became evasive. After further questioning, Mr. Patten reluctantly agreed that he had declined to speak with counsel at the beginning of the police interview;
iii. Mr. Patten testified that he couldn’t remember what happened during the police interview on the night of January 21, 2018 because “it was a long time ago”. However, Mr. Patten was adamant that he "remembers everything" during the arrest earlier on the same day. These two events occurred within hours of each other. It makes no sense that Mr. Patten would remember everything when arrested (and while upset, yelling and screaming) but couldn't remember what happened a few hours later when he appeared to be calm and was interviewed; and
iv. Mr. Patten denied he told anyone there was a "glock" in the BMW and said he didn't know there was a glock in the BMW. The evidence is overwhelming that three officers heard Mr. Patten say there was a gun/glock in the BMW, record it in their contemporaneous notes and a gun was found in the BMW. There is no suggestion by the Defence that the BMW was searched prior to the execution of the warrant. What was found in the BMW during the authorized search warrant and many hours after the arrest – a glock!.
[77] I repeat, I reject the entirety of Mr. Patten's evidence.
ANALYSIS ON THE ALLEGED RACIAL PROFILING (Sections 7, 8, 9 and 15 of the Charter)
[78] Mr. Patten’s Charter applications allege that his ss. 7, 8, 9, and 15 Charter rights had been violated and that all the evidence, subsequent to Officer Mukhi running the license plate of the BMW, be excluded.
[79] The relevant sections of the Charter provide as follows:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[80] The Defence submits that Officer Mukhi engaged in racial profiling when Mr. Patten exited the BMW, saw that it was a black male and consequently, in whole or in part because Mr. Patten was a black male, Officer Mukhi "ran" the license plate of the BMW. According to the Defence, this racial profiling led Officer Mukhi to learn that the black male was Mr. Patten which led to his arrest, his utterances and the discovery of the firearm.
[81] At the heart of this issue is whether Officer Mukhi's decision to "run" the BMW license plate was based, in whole or in part, because he had seen a black male exit a BMW.
[82] Officer Mukhi denies he did so. Officer Mukhi testified that he ran the license plate of the BMW solely because he believed he recognized the male from the photos in the investigation of the recent Peel shootings.
[83] Mr. Patten states in his affidavit that he "believes" the only reason the police investigated him was because he was a black male exiting from an expensive vehicle like a BMW. For the reasons set out above, I reject this evidence as I reject the entirety of Mr. Patten's evidence. More importantly, Mr. Patten makes this bald statement without stating or suggesting any factual basis for this belief.
[84] The law in this area was recently canvassed in R. v. Dudhi, 2019 ONCA 665:
[54] Racial profiling has two components: (1) an attitudinal component; and (2) a causation component. As Brown and Martin JJ. explained in R. v. Le, 2019 SCC 34 , at para. 76, for the majority of the Court:
[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. [Citations omitted.]
[55] The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.
[62] In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.
[66] In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.
[85] The onus is on the Defence to establish, on a balance of probabilities, that Officer Mukhi’s decision to "run" the BMW plate was, in whole or in any part, due to the fact Mr. Patten is a black man. In Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), 2006 217 OAC 269 (Ont. C.A.), the Court of Appeal dealt with the onus where allegations of racial profiling are made:
[147] In R. v. Brown, supra, at para. 45, this court rejected the argument, which was also advanced by the ACLC as intervenor, that the Crown should bear the onus of disproving racial profiling. The court held that a properly informed consideration of the relevant circumstantial evidence – indicators of racial profiling – combined with maintaining the traditional burden of proof on the party alleging racial profiling achieved a proper balancing of the respective interests of the parties. I see no reason to depart from the analysis in R. v. Brown. I would add that a sensitive appreciation of the relevant social context in which racial profiling claims must be assessed provides further protection against the failure of meritorious claims as a result of the allocation of the burden of proof.
[86] To determine whether an officer has engaged in racial profiling, it is necessary for the judge to consider all the evidence and surrounding circumstances. In most cases, such as in this case, there is no direct evidence of racial profiling. As a result, courts are usually required to determine whether racial profiling played any part in the “suspect selection or subject treatment” based upon whether an inference of racial profiling can or should be drawn from all the surrounding circumstances. As Doherty J.A. recognized in Peart, at para. 95:
Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling.
[87] Where "a man of colour who was driving an expensive car” is a “well-known risk factor for racial profiling”. See R. v. Smith, 2015 ONSC 3548 , 338 C.R.R. (2d) 1, at paras. 182-183; R. v. Khan (2004), 2004 CanLII 66305 (ON SC), 189 C.C.C. (3d) 49 (Ont. S.C.), at para. 68." (See Drudhi at para 79).
[88] However, even where there are some identifiable factor(s) consistent with racial profiling, there is no resulting presumption of racial profiling. Whether to draw the inference of racial profiling is dependent on the all evidence from all the surrounding circumstances. Drawing an inference is not the product of speculation or making an assumption that racial profiling occurred. In Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), 2006 217 OAC 269 (Ont. C.A.) the Court of Appeal described drawing an inference of racial profiling from all the evidence:
[133] This court’s reasons in R. v. Brown, supra, were released while the trial judge had his decision under reserve. He referred to R. v. Brown in footnote 8 of his reasons.
[T]he court [in Brown] accepts that one way of proof of racial profiling is to compare the facts with the indicia of racial profiling to provide a basis for an inference that the officer is untruthful as to why the plaintiff was singled out. The record is then “capable of supporting” a finding of racial profiling.
[135] ........ The passage from R. v. Brown, supra, quoted in para. 130, above, describes a permissive and not a mandatory inference. The inference described in R. v. Brown may be drawn if certain indicators of racial profiling are present. Those indicators do not demand a finding of racial profiling.
[89] As noted by Morden J.A. in R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (Ont. C.A.), at para. 45:
Where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that a police officer is lying about why he or she singled out the accused person for attention, the record is then capable of support a finding that the stop was based on racial profiling.
[90] In this case, there is no direct evidence of racial profiling.
[91] The issue is: Should this court, upon considering all of the evidence and circumstances prior to, during and after the event, infer, on a balance of probabilities, that Officer Mukhi was engaged in racial profiling when he made his decision to run the license plate of the BMW?
[92] Officer Mukhi testified he recognized the male, when he exited the BMW, as a person associated with the police shooting investigation at his station. The Defence seeks that I reject Officer Mukhi's evidence on this point.
[93] There is no evidence of any general racial attitudinal or motivation by Officer Mukhi.
[94] The Defence submits that this court should conclude the Officer Mukhi lied to this court in a number of areas, thereby submitting that this court reject Officer Mukhi's recognition evidence, leaving the logical inference that Officer Mukhi was racially profiling the black male who exited the BMW.
[95] I reject the Defence submission and accept Officer Mukhi’s recognition evidence.
[96] Let me deal with the main reasons why the Defence submits I should come to this conclusion:
Officer Mukhi lied about when he ran the BMW license plate
[97] I agree that Officer Mukhi stated in his evidence in chief at the voir dire that he had run the plate when the BMW first pulled into the plaza parking lot and before Mr. Patten got out of the vehicle. In cross-examination Officer Mukhi, upon reviewing his preliminary evidence, agreed that the license plate search took place after Mr. Patten had got out of the BMW. However, to be fair, Officer Mukhi stated that the two events happened within moments of each other.
[98] I am not persuaded that this ambiguity during Officer Mukhi’s evidence on the voir dire establishes that he lied to conceal his racial. First, Officer Mukhi notes clearly showed that the license plate was run after Mr. Patten had exited the BMW. Second, Officer Mukhi’s evidence at the preliminary was clear – Officer Mukhi ran the BMW plate after Mr. Patten got out of the BMW. Third, the events of Mr. Patten getting out the BMW and the BMW license plate being “run” were as stated by Officer Mukhi occurring within moments of each other.
[99] The Defence itself points yo evidence that the Officers "watched the BMW the entire time" from the "moment it entered" and chose not to leave "once the BMW entered the shopping plaza". Officer Mukhi said the BMW was driving a little fast pulling into the Plaza and parked near the entrance rather than other parking spots much closer to the convenience store. The BMW windows were tinted. There is no evidence that the Officers could tell a black person was driving the BMW when it drove into the plaza. The Defence did not suggest this. In my view, this evidence that the Officers focused on the BMW before the black male exited the vehicles adds to Officer Mukhi’s recognition evidence that he looked at the male and appeared to recognize him.
[100] With this evidentiary background, I cannot and do not conclude that Officer Mukhi lied to this court in an attempt to cover up racial profiling.
[101] This evidence is does not support an inference of racial profiling by itself or with the balance of the evidence.
ii) Mr. Patten's skin colour
[102] The Defence makes much of the fact that Officers Mukhi and D'Souza were able to see that Mr. Patten was a black male before Officer Mukhi ran the license plate of the BMW. This alone cannot be a basis for inferring racial profiling.
[103] Mr. Patten was a black male getting out of a BMW. One possible reason is that Officer Mukhi engaged in racial profiling. The mere possibility does not discharge the onus on the Defence. However, most importantly, having considered all the evidence in this case, it discloses and I find that Officer Mukhi recognized the black male as someone relating to a current police investigation into a number of recent Peel shootings.
Officer Mukhi is on suspension
[104] Officer Mukhi is currently on suspension for an alleged assault. The charges are outstanding. The details of the allegations are not known.
[105] Officer Mukhi is presumed innocent. An outstanding charge is not a basis to discount the evidence of any witness, whether it be Officer Mukhi or Mr. Patten.
Officer Mukhi’s notes
[106] The Defence submits that the only mention of this “recognition” of Mr. Patten is on the last page of Officer Mukhi’s notes made after the arrest and at the station. Essentially, the Defence is alleging that Officer Mukhi fabricated this portion of his notes to “bootstrap” his earlier running of the license plate and identification of Mr. Patten.
[107] I do not accept this submission. The events happened quickly. When the police officers sought to investigate Mr. Patten, he bolted. A foot chase ensued. Notes were the last thing that the Officers needed to deal with.
[108] The fact that the RTC and caution notes and the gun utterance notes by Officer Mukhi were contemporaneous simply demonstrates the importance of recording these highly material events at the scene and recording verbatim answers/utterances from the detained person.
[109] I am not persuaded that the sequence of Officer Mukhi’s notes assist the Defence to establish racial profiling or that Officer Mukhi was lying.
iv) The lack of notes of other officers at the scene
[110] The Defence submits there are many gaps in the notes of the other officers at the scene. The Defence suggests that the mere fact that these officers didn't make the notes is evidence that all of them were lying about what happened at the arrest scene or that Officer Mukhi was lying. For example, virtually all of the officers did not note the exact whereabouts of all the other officers during and after the arrest.
[111] What is clear is that officers, such as Officer Tingle, who were involved in material aspects of the post arrest (such as Mr. Patten's utterance about the gun) did in fact record such events at the time.
[112] It is unreasonable to believe that other officers, not involved in the arrest or the RTC or material aspects involving Mr. Patten, would record such trivial matters such as the location of each officer or who was in the cruiser, in which seat, or how close they were to the cruiser when Mr. Patten was in it.
[113] The Defence also points to the fact that there no notes that other license plates had been “run” by the Officers at that Plaza. The Officers testified that they had been running plates all morning (a fact not challenged by the Defence) but couldn't remember whether they had run any license plates in the Plaza before running the BMW’s plates. The Defence points to this as evidence of racial profiling or lying to the court. The problem with this Defence submission is that, while both officers agreed they had run license plates that morning, neither of then noted any of the license plates because nothing significant arose leading to an investigation or an arrest warranting a notation.
[114] As a result, the lack of notes regarding whether and which plates were run is not indicative of anything.
v) Fabrication of Mr. Patten's reaction to the police cruiser
[115] The Defence submits that the Officers "completely fabricated their evidence about how the Applicant was acting after exiting the BMW."
[116] I have reviewed the video carefully. It is clear that the Officers' description of Mr. Patten “ducking” to avoid the police is accurate.
[117] This reaction by Mr. Patten was reported to Officer Westlake and included in the ITO. This description by the Officers was confirmed from the subsequently obtained video at the Plaza. At 14:06:06 of the video, Mr. Patten can be seen crouching near other vehicles to avoid being seen by the police.
[118] I do not find that the Officers fabricated this evidence but rather it provided an accurate description of Mr. Patten's actions when the police cruiser drove up to the front of the Plaza.
Recent Shooting Investigations support recognition
[119] Equally important, there are good reasons to accept the evidence of Officer Mukhi that he recognized the male when he exited the BMW.
[120] There was a recent and ongoing police investigation in the same police station including one just three weeks earlier where Mr. Patten was involved - he got shot in the hand and was refusing to cooperate with the police.
[121] It is not surprising that the persons and the vehicles involved in the shooting investigation (whether as shooters, victims or observers) would have their photos and vehicles associated with the shootings on a bulletin board for all officers to view. This is consistent with normal police investigation into the shootings.
[122] Officer Mukhi knew about the investigation. Officer Mukhi paid "close attention" to the investigation poster board that he walked past each day which contained the photo of Mr. Patten.
[123] I accept Officer Mukhi’s evidence that he had seen the photos for the shooting investigations and when the male exited the BMW, he believed he recognized him as one of the males in the police investigation. Hence, Officer Mukhi ran the plate of the BMW. I am not persuaded that Officer Mukhi had any other motivation for running the license plate of the BMW.
Surrounding circumstances of recognition support recognition
[124] When the license plate was run, only a name (Chaves Patten) was generated by the cruiser computer - no photo. Yet, Officer Mukhi recognized the male he believed was one of the males in the police investigation into the shootings from the photos he had seen at the police station. Officer Mukhi was unshaken on this point during his testimony.
[125] When Officer Mukhi ran the BMW’s plate, all he obtained was a name – no photo of Mr. Patten. Notwithstanding that he didn’t have a photo of Mr. Patten, when the report on the BMW license plate came back, Mr. Patten's name was associated with that vehicle. The name solidified Officer Mukhi’s recognition that the male who exited the BMW was Mr. Patten and that Mr. Patten was on bail conditions not to drive.
[126] Consistent with this recognition by Officer Mukhi is that he immediately announced over the police radio that the male running away was in breach of his bail conditions – consistent with the recognition that it was Mr. Patten. It is hard to imagine how Officer Mukhi would conclude this unless, without a photo, he had recognized that the male who exited the BMW as Mr. Patten.
[127] Further, and also consistent with that, within a minute later, Officer Mukhi arrested Mr. Patten for breach of his bail conditions. Again, this is prior to Officer Mukhi having seen any photo of Mr. Patten.
[128] Clearly, it is more than a mere coincidence that the black male happened to be Mr. Patten. This evidence is consistent with Officer Mukhi’s recognition of the male and that, after the running of the license plate, he connected the recognized male and name - Mr. Patten.
[129] The Defence submits that despite Officer Mukhi's evidence that he paid attention to the investigation photos and it is "completely unlikely" that Officer Mukhi recognized the black male that exited the BMW. The Defence would have this court conclude that because Officer Mukhi didn't know Mr. Patten's name when he exited the BMW, he could not have recognized him as a person of interest in the police investigation. In the alternative, the Defence submits that if Officer Mukhi had paid close attention to the poster board, he should have known Mr. Patten's name and therefore, since Officer Mukhi didn't, it is evidence he did not recognize Mr. Patten. The Defence seems to argue this point both ways. Either way, the Defence seeks to have this court engage in speculation rather than weighing the evidence and determining facts from that evidence.
Conclusion
[130] The evidence establishes that Officer Mukhi, upon seeing Mr. Patten when he exited the BMW, recognized him as someone related to a police investigation, and therefore decided to run the license plate of the BMW. This resulted in the identification of Mr. Patten and that Mr. Patten was in breach of his bail conditions.
[131] Considering all the evidence in this case, there is no evidence of a motivational component in Officer Mukhi's actions nor is there evidence of a causal connection between Mr. Patten's race and Officer Mukhi's decision to run the BMW plates.
[132] There is simply no basis to draw the inference of racial profiling that Defence seeks to have this court draw from the evidence. Officer Mukhi was not motivated, in whole or in part, by the race of the person who exited the vehicle but rather the photos from the police investigation he had seen daily at the police division.
[133] The Defence application in this regard is dismissed.
ANALYSIS ON MR. PATTEN’s GUN UTTERANCE (Section 10(b) of the Charter)
[134] Mr. Patten alleges that he was deprived of his right to be informed of his RTC and thereby, deprived of his right to retain and instruct counsel immediately upon his arrest.
[135] The Charter provides:
- Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right; and
[136] The issue is: Whether the Defence has established, on a balance of probabilities, that Mr. Patten was not provided with his RTC and caution without delay upon his arrest?
[137] For the Defence to succeed in this application, the court must reject the evidence of Officer Mukhi and Officer D’Souza who were in the vehicle at the time the RTC and caution were read to Mr. Patten (and were contemporaneously recorded in their notes), as well as one officer who testified he was outside the cruiser and heard "snippets" of the RTC and caution being provided to Mr. Patten and another officer who saw Officer Mukhi referring or reading from his notebook as one would do when reading RTC and caution (although this officer testified that he only assumed it was Officer Mukhi reading the RTC).
[138] For the reasons above, I accept the evidence of Officer Mukhi and Officer D’Souza on this point.
[139] Officer Mukhi recorded the notes of the RTC and caution simultaneously and recorded Mr. Patten's responses verbatim. From a chronological perspective, these notes were where one would have expected them to be in the context of the events of that day. There is simply no reason to reject his evidence on this point.
[140] As for Officer D’Souza, he too records the RTC and caution in his notebook at the appropriate time. There is no basis to conclude that Officer D’Souza concocted or altered his notes to be consistent with Officer Mukhi's evidence on this point. I accept Officer D’Souza's evidence that the reason he didn't write down the details of the RTC and caution was because he was not the person informing Mr. Patten of those rights. To go from Officer D’Souza's failure to write down the details of the RTC and caution to, as is suggested by the Defence, a rejection of Officer D’Souza's evidence as being concocted, is simply not logical and invites speculation on many levels.
[141] Further, the only evidence that Mr. Patten was not provided with his RTC and caution is his evidence, which has been entirely rejected for the reasons above.
[142] This application is dismissed.
ANALYSIS ON THE VALIDITY OF THE SEARCH WARRANT
[143] On January 21, 2018 Officer Westlake sought a s. 487.1 Criminal Code telewarrant to search the BMW for firearms, ammunition and firearm registry documents.
[144] The warrant was issued at 11:50 pm on January 21, 2018.
[145] The BMW was searched in the early morning of January 22, 2018.
[146] The police found a loaded Glock handgun under the driver's seat of the BMW.
[147] In R. v. Ngo, 2011 ONSC 6676, at para. 34, Hill J. provided some helpful guidelines to apply when considering the validity of search warrants.
(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).
(2) “[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.
(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.)(QL), at para. 135:
The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 CanLII 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.
(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.
(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70, 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
[148] A reviewing justice has the authority to quash a search warrant where the reviewing judge finds the ITO contains erroneous or false information that is the result of intentional errors, fraudulent misrepresentations or deliberate attempts to mislead the issuing justice. In those circumstances, such a warrant cannot be corrected by amplification.
[149] Let me deal with the issues raised by the Defence.
Facial Validity - inclusion of other offences
[150] The Defence submits that by listing the other non-firearm offences that Mr. Patten faced upon his arrest somehow resulted in an ITO which was unfair and deliberate misleading to the issuing justice.
[151] The Defence provided no authority for this submission.
[152] I see no reason why the issuing justice should not be apprised of all the charges the accused is facing at the time the search warrant is sought. Some of the charges may be relevant to whether reasonable grounds exist. For example, if the accused is charged with Possession for the Purpose and a large quantity of drugs and money is found on him, this may be some evidence the accused possessed a firearm for protection in his drug trafficking.
[153] The Defence also alleges it is an error to fail to provide a date of the alleged offences by Mr. Patten. This submission has no merit. A simply reading of the "reasonable grounds to believe" portion of the ITO clearly shows that the alleged offences took place on January 21, 2018 - the same day the ITO was prepared.
Sub-Facial Validity
[154] The Defence submits there were a number of errors or false information which were an intentional and a deliberate attempt to mislead the issuing justice.
[155] As I review each of the issues raised by the Defence, what must be remembered is that the jurisdiction of this court is to determine whether the warrant could have issued or whether erroneous or false material statements were deliberately made to subvert the judicial authorization process.
[156] I can dispose of the submission that Officer Westlake sought to subvert the judicial authorization process. I do not find he did so. The material facts set out in the ITO (which I find were established as accurate on this voir dire) providing reasonable and probable grounds to search the BMW for a firearm were: Mr. Patten was seen driving the BMW; he was the only one in the BMW; he was immediately arrested after exiting the BMW; his bails conditions prohibited him from driving; money and drugs were found on him; and, when arrested, he told the police there was a firearm in the BMW.
[157] The issues raised by the Defence, by themselves and cumulatively do not amount to a deliberate attempt to mislead the issuing justice on the material facts which form the basis for the reasonable grounds.
[158] The Defence acknowledged that if paragraphs 1 (a) to (f) of the ITO were established as accurate in this voir dire, then there were sufficient reasonable and probable grounds for the issuing justice to grant the warrant. For the reasons set out above, I find that paragraph 1(a) through (f) were not erroneous or misleading. As such, I find that the warrant could have issued.
[159] The Defence applications fail.
[160] Nevertheless, let me deal with some of the main submissions by the Defence on this application.
i) Mr. Patten hiding behind the vehicles
[161] As I stated above, having reviewed the video, I am satisfied that this statement in the ITO accurately describes what occurred in the plaza parking lot.
ii) Inclusion of the Youth Conviction and Outstanding Charges
[162] The Defence submits that Mr. Patten's youth convictions should have not been included. Without more, it is difficult to determine whether the prior convictions are appropriately noted in the ITO. First, it is not known whether these records remained accessible under the Youth Criminal Justice Act. Secondly, I reject the Defence submission that youth records are, in all circumstances, not relevant to an ITO. Mr. Patten was 21 years old and a youth record would not necessarily have been a "dated" record. Further, the robbery conviction, when taken with some of the other facts like his outstanding firearm charges and the recent shooting he was involved in, may be a factor in determining whether there are reasonable and probable grounds that a firearm would be located in the BMW Mr. Patten was driving.
[163] The Defence submits that Mr. Patten's outstanding charges are improperly included in the ITO. In my view, given that Mr. Patten was arrested for a breach of bail conditions, the details of the outstanding charges could be relevant. In this case, given that Mr. Patten is on bail for firearm related charges might be a factor in whether reasonable grounds existed. I agree with Justice Hill in Criminal Code (re) [1997] O.J. NO. 4393 that there is no absolute prohibition to a prior criminal record as it may be of some relevance to the existence of reasonable grounds.
iii) Mr. Patten was not provided his RTC and caution/ Mr. Patten did not tell the police about the firearm
[164] For the reasons set out above, I am satisfied that Mr. Patten was provided with his RTC and caution.
[165] For the reasons set out above, I am satisfied that Mr. Patten made the utterance to several officers about there being a gun in the BMW.
iv) Set up for a gun
[166] The ITO states that Mr. Patten said that he had been "set up by the police to be arrested for a gun".
[167] It is true that the evidence simply describes Mr. Patten as yelling and screaming that he had been set up. The evidence did not disclose who he believed had set him up.
[168] There shall be excluded from Para 1(f): "...by police to be arrested with the firearm";
[169] In my view, with this reference to the police excised, it would not make a difference as to whether the warrant could have issued.
v) Paragraph 4 of the ITO
[170] The Crown concedes that this paragraph should be excised but does not agree that the paragraph was misleading or intentional misleading.
[171] As I stated above, I am not persuaded that the inclusion of this was intended to mislead or did mislead the issuing justice. Reference to the other shootings was not necessary or material to the ITO.
[172] I do not accept that by including such statements Officer Westlake was deliberately attempting to subvert the judicial authorization process.
[173] The Defence submits that this paragraph would have misled the issuing justice to believe that Mr. Patten was involved in the shootings. The ITO doesn't say that. If the police had believed that Mr. Patten was one of the shooters, no doubt the search warrant would have set out that belief and why the police had that belief. I do not accept that this paragraph would have misled the issuing justice.
vi) the withdrawn and dismissed charges
[174] I agree that Mr. Patten’s withdrawn and dismissed charges should not have been included in the ITO. The Crown concedes excision.
[175] Without repeating why, it would not have made any difference in this case as to whether the warrant could issue.
vii) Superfluous or Erroneous information
[176] The Defence alleges that there was considerable erroneous and irrelevant information in the ITO. The Defence points to several items such as the fact Mr. Patten was shot in the hand on January 1, 2018 and that Mr. Patten had entered into a recognizance in 2016 for firearm offences.
[177] In my view, this information was relevant as to whether there are reasonable grounds to believe there was a firearm in the BMW. Mr. Patten was shot in the hand during a shooting and would not cooperate with the police about the shooting. While not needed in this case and not prejudicial, it provides the issuing justice additional facts to conclude as to the likelihood of the existence of the firearm in the BMW. For example, the fact Mr. Patten was shot 3 weeks earlier, is uncooperative with the police regarding the shooting and is allegedly involved in the drug trade, may make it more likely Mr. Patten would have a firearm in the BMW for his protection.
[178] As for erroneous information, the Defence submits that the blue bag containing heroin was not found "on" Mr. Patten, but rather it was found on the ground when he was arrested. The evidence is that the blue bag, money and BMW key were found on the immediate ground when Mr. Patten got up from being cuffed and after he had been seen fumbling through his pocket. Mr. Patten admits the money and BMW key is his. In my view, this evidence in the ITO is a reasonable and fair interpretation by the officers as to the possession of the heroin.
Conclusion
[179] Whether the Officers could have searched the BMW at the scene as incident to Mr. Patten’s arrest for possession of the controlled substances is a question which does not have to be dealt with in these applications.
[180] This is not a situation whether there are errors and misleading statements in the ITO which, when considered as a whole, cause this court to conclude that this court should exercise its discretion to quash the warrant as being unreliable as an ex parte judicial process.
[181] Further, I do not find that the police attempted to subvert the ex parte judicial authorization process in this case.
[182] I find that the portions excised were neither intentionally misleading nor did they mislead the issuing justice in the review and determination whether the search warrant should issue.
[183] The remaining question for this court is whether the search warrant, having been excised as described above, could have issued. For the reasons set out above, I am satisfied that the search warrant could have issued given the remaining portions of the ITO. This Defence application is dismissed.
CONCLUSION
[184] The utterances made by Mr. Patten during his arrest are voluntary.
[185] This court has determined there were no Charter breaches as alleged by the Defence.
[186] As a result, it is not necessary to engage in a s. 24(2) analysis.
[187] The Defence applications are dismissed.
Ricchetti, J.
Date: December 19, 2019
COURT FILE NO.: CrimJ(P) 1359/18
DATE: 2019 12 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN, Crown/Respondent
- and -
CHAVES PATTEN, Defendant/Applicant
REASONS FOR JUDGMENT
Ricchetti J.
Released: December 19, 2019