Court File and Parties
COURT FILE NO.: 17-RA19538 DATE: 2020/02/10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
MARWAN AHMAD Applicant/Defendant
Counsel: Malcom Savage, for the Crown Kevin Weinstein, for the Applicant
HEARD: January 21, 2020
REASONS FOR DECISION ON s. 8 charter motion
LABROSSE J.
Overview
[1] The Applicant, Marwan Ahmad, seeks to exclude evidence as a result of certain alleged breaches of the Applicant’s rights which are protected pursuant to s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). The matter proceeded as what is commonly known as a Garofoli Application to determine if there were reasonable and probable grounds for the issuance of a search warrant dated March 5, 2019 used to search the Applicant’s cell phones. As part of the Garofoli Application, the Applicant seeks an order excluding the Applicant’s cell phones, the contents (and data) therein and any reports generated as a result, as well as any observations made of the contents contained on those cell phones.
[2] The impugned searches were conducted pursuant to a Warrant to Search obtained on March 5, 2019 by the Ottawa Police Service (“OPS”) on the strength of the Information To Obtain a Search Warrant of Constable Adam Grundy (“ITO”). The ITO relied upon the information obtained from French police advising that the Applicant’s phones had been searched and that one contained videos of the complainant that were consistent with the events reported by the complainant to the OPS.
[3] The Applicant has raised a number of issues surrounding the ITO. These issues focus primarily on the Affiant’s failure to satisfy himself that the search of the Applicant’s phones in France was conducted lawfully by the French police and that the Affiant failed to inform himself of the French and/or International laws with respect to searching cell phones.
[4] At the commencement of the Application on September 23, 2019, the Applicant sought leave to cross-examine the Affiant of the ITO. For oral reasons given, leave to cross-examine was granted for limited purposes. That evidence was presented to the Court by way of Agreed Statement of Facts.
Factual Background
[5] As the Crown adopts the Applicant’s facts as reasonably stated, I will also do so for the purposes of this decision.
[6] The Applicant was charged with assault, forcible confinement, assault with a weapon, sexual assault, mischief under $5000, uttering threats and assault causing bodily harm.
[7] After the alleged offences occurred in Ottawa, Ontario, the Applicant travelled to Nice, France.
[8] Cst. Grundy of the OPS received information on October 5, 2017 from Interpol and Europol that the Applicant was taken into custody in France due to an unrelated arrest.
[9] The next day, Det. Martin of the OPS received an email from French police advising that a search of the Applicant’s phone contained videos of the Applicant mistreating the complainant, including clips of the Applicant exposing his genitals to the complainant, masturbating in front of the complainant, shaving the complainant’s head and throwing feces and urine at the complainant.
[10] The French police indicated that two cell phones were seized (iPhone and another cell phone not described) and that they were to be held as evidence. The Applicant was extradited to Ottawa from France.
[11] On August 23, 2018, Cst. Grundy received via mail two cell phones from the French police. A warrant to search the phones was granted on December 10, 2018 by Justice of the Peace L. Pearson. The search of the phones did not yield any evidence that the French police reportedly found when they searched the Applicant’s phone.
[12] Cst. Grundy noted that due to the absence of the videos that the French police stated would be on the phones, he began to question whether there were other phones in custody and also questioned if the phones were given back to the Applicant, which would explain the missing evidence.
[13] On February 11, 2019, Sgt. Beaurivage of the OPS was advised by French police officer Adrien Dhennin that three more phones were at the French police station under a wrong case number. Officer Dhennin was not sure how the initial two phones came to be seized, but noted that the video evidence was located on the iPhone 6 and that this device was still in the possession of the French police.
[14] On February 26, 2019, three cell phones (including the iPhone 6) were received by OPS by mail.
[15] A second search warrant for the iPhone 6 was granted on March 5, 2019 by Justice of the Peace K. Baum.
[16] The Affiant relied on the video clips observed by the French police as a basis to have reasonable grounds to believe that a search of the cell phone will afford evidence of the offences under investigation.
[17] The Affiant is anglophone and relied on other Ottawa police officers to liaise with the French police.
[18] At no time did the Affiant make inquiries about the process that the French police undertook to search these cell phones. At no time did the Affiant make inquiries about why the search of these cell phones was required by French police. However, Officer Beaurivage did inquire with the French police as to how the video was obtained and if it was by warrant or a special program and sought justification.
[19] At no time did the Affiant make inquiries about whether the search of the cell phones by French police was conducted lawfully by French legal standards, or whether the search was conducted in accordance with French and/or international human rights standards.
[20] The Crown also seeks to emphasise the following additional facts:
a. There is no evidence of any wrongdoing by the French authorities such as torture or other human rights violations against the Applicant;
b. The French police searched the Applicant’s phones for their own investigative purposes and not at the request of the OPS. The French police also contacted the OPS to disclose the existence of videos on their own initiative and not at the request of the OPS.
Positions of the Parties
[21] The Applicant submits that the Affiant failed to take any steps to satisfy himself that the search of the Applicant’s phones in France were conducted lawfully by the French police. The Affiant then relied on this search in his ITO which led to the issuance of the search warrant and ultimately, to the search of the Applicant’s cell phones, contrary to s.8 of the Charter. Consequently, the evidence should be excluded pursuant to s. 24(2) of the Charter.
[22] The Applicant contends that the Canadian public would expect that there would be safeguards in place to prevent an Affiant from using information obtained illegally abroad and failing to inquire as to how the information was obtained. The Applicant contends that the OPS was willfully blind as to how the information from the Applicant’s cell phones was obtained. He also states that the Affiant had no knowledge of French law and should have informed himself beyond obtaining rough translations of the e-mail exchanges.
[23] In addition, the Applicant contends that the Affiant failed to make full and frank disclosure of the details of the e-mail as summarized in para. 6 of the Agreed Statement of Fact.
[24] Finally, the Applicant contends that the Court has a residual discretion to exclude the evidence even where there is full and frank disclosure and where there are reasonable and probable grounds to issue the warrant. Here, the Applicant relies on the Ontario Court of Appeal’s decision in R. v. Booth, 2019 ONCA 970, at para. 65, but has miss-stated the direction of the Court of Appeal in Booth. While the Applicant contends that para. 65 of Booth stands for the proposition that even where there has been full and frank disclosure and reasonable and probable grounds, the residual discretion applies. However, it is clear in para. 65 of Booth that the reference to the residual discretion applied in a circumstance where the Affiant officer’s failure to make full and frank disclosure is egregious enough to subvert the pre-authorization process through deliberate non-disclosure. The factual circumstances of this matter do not warrant such a finding.
[25] The Crown responds by highlighting the well-known test for reviewing the sufficiency of warrant applications being whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
[26] In addition, the Crown states that the duty to full, fair and frank disclosure of all material facts relevant to the inquiry into whether the preconditions for issuance have been met: see R. v. Bogiatzis, 2003 O.J. No. 335.
[27] Finally, the Crown also highlights the fact that both excision and amplification remains available to the Court.
Analysis
[28] Section 8 of the Charter protects all persons from unreasonable search and seizure. Furthermore, there is a presumption that a search conducted pursuant to a judicially authorized warrant, issued on the basis of information provided under oath, is valid and reasonable (R. v. Garofoli, [1990] 2 S.C.J. 115).
[29] In Morelli, the approach of the reviewing court was set out as follows:
[…] The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[30] Furthermore, the role of the reviewing judge is not to parse apart the document with a fine-toothed comb. The reviewing judge should consider if all data within the four corners of the information provides the fair and reasonable context for the assertions in question (R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260, at para. 20).
[31] The test for issuance of a search warrant under s. 487 of the Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”) are reasonable and probable grounds to believe that that an offence has been committed and if there are reasonable and probable grounds to believe that evidence will be discovered as a result of the authorization: see R. v. Iman, [2012] O.J. No. 6543.
[32] The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient, credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[33] The Crown has highlighted that both excision and amplification are available to the Court.
[34] Excision is not a factor as the Applicant has not raised any erroneous information that forms part of the ITO. Here, the issue would apply to amplification of the content of the facts at para. 6 of the Agreed Statement of Facts. However, to amplify the ITO with the information from para. 6 of the Agreed Statement of Facts would be to include information that could advance the warrant application. This is only permissible in the case of minor, technical errors or errors made in good faith: see R. v. Booth, at para. 59.
[35] When considering the evidence from para. 6 of the Agreed Statement of Facts that was omitted from the ITO, I conclude that the omission of this information was intentional. I am not persuaded that it was either a technical error or an error made in good faith. I infer that the information was intentionally omitted as the Affiant likely did not deem it necessary to include. As such, amplification of that evidence is not available and the Court is limited to considering the facial validity of the ITO. To be clear, there is no doubt that the information set out in para. 6 was material and relevant to the issue of reliability of the information obtained from the French authorities. It should have been included in the ITO but the evidence before the Court on this Application does not meet the criteria for amplification.
[36] The ITO provided the Justice of the Peace with the information that the French authorities had viewed videos on one of the Applicant’s phones that substantially corroborated the allegations made by the complainant. This was an important element of the reasonable and probable grounds that an offence had been committed and that material evidence would be found on one of the cell phones.
[37] I am of the view that the methods used by the French authorities to gain access to the phones or the information as to if the search of the phone was conducted in accordance with French law was not necessary to the issuance of the warrant. While that information may have reassured the issuing justice if it was favourable to the police, its absence did not change the fact that the corroborative evidence was sufficient to establish the necessary reasonable and probable grounds for issuance of the warrant and thus, the warrant could have issued.
[38] It should also be noted that the ITO also contained evidence of other witnesses about the Applicant’s involvement in the alleged offences and that the description of the videos was not the only evidence available to the issuing justice that made the cell phones relevant. The complainant made reference to photographs taken of him by the Applicant and the Applicant was involved in a confrontation with the property manager about a cell phone that was misplaced.
[39] Our law does not require an Affiant to establish foreign law as a precondition to the issuance of a s. 487 of the Criminal Code warrant. While every situation will turn on its specific facts, the evidence in the ITO would not have warranted a denial of the warrant pending a determination of compliance or not with foreign laws. Here, the issuing justice was aware that the Applicant had been arrested in France and that the phone was searched following the arrest. In Canada, a search incident to arrest may have been available and there was no indication that the French authorities abused of their authority. As such, no red flags would have been raised. Further, the corroborative information which formed the basis for the reasonable and probable grounds was coming from a French police force and this would have also provided a measure of comfort on the source of the information. Finally, and as previously stated, the fact that the cell phones may contain evidence about the alleged offences was known from sources other than the French authorities.
[40] While there may be circumstances where evidence obtained from a foreign police investigation may raise red flags and may warrant further evidence of how that information was obtained, no such red flags existed in these circumstances. I am of the view that the more appropriate way of assessing Charter rights resulting from a foreign investigation is to proceed as set out in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R.292, and R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, and consider the matter in the context of an application under s. 7 of the Charter to consider if the evidence would render the accused’s trial unfair.
[41] My analysis of the facial validity of the ITO leads me to conclude that there was reliable evidence put before the issuing justice, particularly the evidence that corroborated the complaint, but also the information from the complainant and the property manager upon which the warrant could issue. As a result of this conclusion, I need not proceed with an analysis pursuant to s. 24(2) of the Charter.
[42] Consequently, the Application pursuant to s. 8 of the Charter relating to the issuance of the search warrants is dismissed.
Justice Marc R. Labrosse
Released: February 10, 2020
COURT FILE NO.: 17-RA19538 DATE: 2020/02/10
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
MARWAN AHMAD Applicant/Defendant
REASONS FOR DECISION ON s.8 charter motion
Justice M. Labrosse
Released: February 10, 2020