COURT FILE NO.: CR-19-1863-00

DATE: 2020 10 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Paul Renwick for the Crown Respondent

• and –

MARCUS WILSON

Sharon Jeethan for the Applicant Marcus Wilson

HEARD: October 19-20, 2020

RULING ON SECTION 8 CHARTER APPLICATION

D.E HARRIS J.

1A shooting took place August 22, 2017 at 6:45 p.m. outside a townhouse complex on Chamney Court in Brampton. Police found 30-40 shell casings believed to come from four different firearms. A 9 mm firearm was recovered close-by. Two days later another shooting allegedly involving the same parties occurred at 66 Malta Avenue in Brampton.

2After police investigation and information received from a confidential informant (CI), the police obtained three search warrants for residences on Chamney Court in Brampton: numbers 9, 14, and 48. They were executed simultaneously on August 29, 2017 at 6:00 a.m. Two firearms--a silver revolver and a long-barrelled shogun--were found in the basement of 14 Chamney. Mr. Wilson is charged with their possession.

3Mr. Wilson applies under Section 8 of the Charter of Rights and Freedoms for a declaration that the police search of 14 Chamney Court was unreasonable and, if successful, argues that the firearms should be excluded from evidence under Section 24(2) of the Charter.

THE GAROFOLI APPLICATION

4During this application, leave was granted to cross-examine the officer who authored and swore the Information to Obtain the search warrant (ITO) in several relatively narrow areas: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 1990 CarswellOnt 119 (S.C.C.) at paras. 107-114 (Carswell); R. v. Pires, R. v. Lising, 2005 SCC 66 (S.C.C.) at para. 3; World Bank Group v. Wallace, 2016 SCC 15 at para.126.

5The application continued with argument regarding the facial sufficiency of the ITO. The CI information was almost completely redacted and thus, in conformance with what is commonly referred to as step 5 of the Garofoli procedure, it was not taken into account in the preliminary analysis: Garofoli at para. 102.

6At the conclusion of argument, I concluded that there was a viable question whether the warrant could be sustained based on the edited information in the ITO. We then embarked on the Garofoli step 6 procedure. It was held in camera as is the usual practice in this jurisdiction. I was given the unredacted ITO and a draft summary of what the Crown proposed to disclose to the defence. We went through the ITO discussing possible areas to “unredact” and additional information which could be disclosed to the defence in the summary. Mr. Renwick then had a further discussion with the CI’s handler to confirm what could and could not be disclosed. After the process was complete and the summary was amended, it was released to defence counsel.

7Counsel did not complain that the summaries were insufficient to allow her an effective challenge to the ITO in argument or evidence. I am satisfied that the summary was sufficient for this purpose: Garofoli at para. 103; R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (Ont. C.A.) at para. 90. I can therefore make use of the CI information in reviewing the ITO.

8The argument mounted was principally a facial attack on the ITO, it being contended that the warrant could not have issued for 14 Chamney even with the CI information being taken into account.

THE LEGAL STANDARD UPON REVIEW

9For the applicant to succeed with a search warrant facial attack, a reviewing judge must be satisfied that there was no basis upon which the authorizing judge could be satisfied that the pre-conditions for granting the warrant were present: Garofoli, at paras. 67-68; R. v. Araujo, 2000 SCC 65 (S.C.C.) at paras. 51, 54; R. v. Morelli, 2010 SCC 8 (S.C.C.) at para. 40; Pires at para. 8; R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757 (Ont. C.A.) at para. 11. The warrant is presumed to be valid, the onus to demonstrate otherwise being on the defendant applicant. If the warrant could have issued, the application should be dismissed. In evaluating the ITO, the allegations must be taken at their highest. If an inference is reasonably available, it ought to be drawn: R. v. Nero, 2016 ONCA 160 (Ont.C.A.) at paras. 66-72; R. v. Ngo, 2011 ONSC 6676 (Ont.S.C.J.) at paras. 34-35.

10The issuing judicial officer and the reviewing judge are both entitled to draw reasonable inferences: Nero, at para. 71. Deciding whether an inference can be drawn involves an evaluative process. This is an intrinsic feature of circumstantial evidence: Finkelstein v. Ontario (Securities Commission) (2016), 135 O.R. (3d) 590, 2016 ONSC 7508 (Ont. Div. Ct.) at para. 19. As Chief Justice McLachlin said about circumstantial evidence in the different context of the more rigorous standard for committal to trial from the preliminary hearing:

The question [is whether the element of the offence] may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at § 9.01 … The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.) at para. 23

11Examining this ITO in totality, including the information offered by the CI, there was no doubt that there were reasonable grounds with respect to the culpability of two individuals named Chaves Patten and Devone Revay who were both directly implicated in the August 22, 2017 shooting. The ITO was built around implicating these men in the shooting. There was plentiful evidence that they were responsible for it. The ITO also supplied more than sufficient evidence to believe on reasonable grounds that 48 Chamney was the residence of these two men.

12The search of 48 Chamney to discover evidence of the crime on August 22, 2017 was therefore well-supported by the evidence in the ITO. But the question for decision is this: Did the ITO contain sufficient grounds such that it could be concluded by the issuing justice that a search of 14 Chamney Court would afford evidence of the crime being investigated? R. v. Finlay and Grillette (1985), 52 O.R. (2d) 682 (C.A.), at paras. 67-71, leave refused [1985] S.C.C.A. No. 46.

THE INFORMATION TO OBTAIN

13The ITO specified that the police were looking for several different guns, ammunition and specific clothing observed being worn by the suspects from the August 22, 2017 crime scene and “documentation” associated with Revay and Patten. The offence being investigated was the shooting on Chamney Court on August 22, 2017, particularized as an attempt by Revay and Patten to murder a person by the name of David Griffith.

14The ITO states, and it is repeated several times in slightly different language: “[T]he parties associated to units 48 and 9 also associate with parties from unit 14. Police have observed individuals from all 3 of these residences moving freely from one unit to the other on multiple occasions.”

15This “moving freely from one unit to the other” is the glue that the officer relies on in the ITO to connect the Chamney addresses and to justify searching all three. If this was substantiated, it would likely justify a search of all three. It would follow that sufficient grounds to search 48 Chamney would be sufficient grounds to search 14 Chamney. But a conclusory statement of this nature not backed up by reference to specific evidence has no substantial weight: Garofoli at paras. 79-86; R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (Ont. C.A) at paras. 18-26; R. v. Merritt, 2017 ONSC 80, [2017] O.J. No. 6924 (Ont.S.C.J.) at para. 279; R. v. Lal, 1998 CanLII 4393 (BC CA), [1998] B.C.J. No. 2446, 113 B.C.A.C. 47, 130 C.C.C. (3d) 413 (B.C.C.A.) at paras. 20-23; R. v. Russell, 2013 BCSC 37, [2013] B.C.J. No. 3126 (B.C.S.C.) at para. 15; Illinois v. Gates 462 U.S. 213 (1983) at pp. 238-239.

16An assertion must be differentiated from evidence. An assertion tells; evidence shows. While an assertion lies in the realm of theory, evidence is required for proof. If reliance can be placed on a conclusory statement, the police have been permitted to arrogate to themselves the assessment of evidence, frustrating independent judicial review. Given this long-standing Canadian position, one would imagine that if the police had details supporting their “moving freely between all three” premise, it would be summarized in the ITO. Scrutiny of the ITO is required to determine whether the affiant’s bald assertion is properly supported by evidence.

17The Crown relies primarily on four areas in the ITO to support the issuance of the 14 Chamney warrant in this case. First, Mr. Renwick argues that some weight should be given to the summary in the ITO of an occurrence report relating to June 15, 2015, more than 2 years before the shooting. Police attended at 14 Chamney in relation to an assault allegation. A taxi driver had dropped Revay off at 14 Chamney and there was a dispute about the fare. Police found that there were no grounds for an arrest (paragraph 8a).

18In my view, this is far too dated to have any significant weight for the purpose of connecting Revay to 14 Chamney. Even if it were close in time to the August 22, 2017 shooting, attending in the driveway of 14 Chamney would only be a small step towards an inference that Revay was so closely associated with the residence at 14 that evidence with respect to the shooting could reasonably be expected to be found there.

19Second, Chaves Patten’s BMW was observed by surveillance officers on August 25, 2017--3 days after the shooting--to be parked in front of 14 Chamney. Patten was later observed leaving 48 Chamney, getting in his car in front of 14 and driving from the area (pp. 4-5).

20Parking in front of a neighbour’s house is by itself of only minimal assistance in demonstrating an association with the address. Furthermore, there were unanswered questions which further reduce the strength of this evidence. For example, were there parking spots available closer to Patten’s residence at 48 Chamney? If this possibility had been foreclosed, it would have somewhat increased the value of the police observation. But it still would have been of minimal importance.

21Third, the next day, August 26, 2017, Patten “driving his BMW … attends 14 Chamney with two other parties, one of whom resides at 14 [later specified in the ITO to be Wilson, the applicant], and parks in the driveway before entering the residence.” (p. 5). The officer, Cst. Mcaulay later clarified at the preliminary inquiry that although he saw the men go towards the residence, he did not actually see them enter the residence. I do not think the discrepancy is of much moment as a compelling circumstantial inference from the officer’s corrected evidence is that the two men did in fact go into the residence. When he last saw them, they were only steps away from the door. I do not agree with the applicant that this minor, inconsequential good faith error in the ITO requires excision. In any case, if it were to be excised, amplification would permit the ITO statement to be replaced by the almost identical correct statement: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 (S.C.C.) at para. 38.

22Later in the ITO it states that Davin Sutherland of 9 Chamney and Marcus Wilson of 14 Chamney are members of the street gang “Money Motivated.” Sutherland was witnessed at the scene of the shooting and moves between 9 Chamney and 48 (para. 26).

23The evidence that Patten entered 14 Chamney associates a target of the ITO with that residence. But the fact that a suspect in the shooting went into a neighbour’s home, even a person who may be part of a gang, is not of any real assistance towards demonstrating that there are reasonable grounds that a search of that home—14 Chamney--will turn up evidence of a shooting committed a few days previously.

24Fourth, a statement of an eyewitness to the August 22, 2017 shooting is summarized by the officer in the ITO. In her statement, the eyewitness said that after the shooting she saw “possibly 2 or 3 suspects run into the garage of 16 Chamney Court and 1 male run into 9 Chamney Court.” The ITO continues, saying that 2 other possible suspects ran through a backyard and towards 195 Kennedy Road. One of the suspects identified as Davian Sutherland [assumedly one of those who ran through the backyard] was wearing burgundy track pants. This is one of the items the affiant lists he is seeking to search for in the three residences. The ITO says that the 9 mm gun referred to earlier was found in a dumpster at 165 Kennedy Road.

25The officer then editorializes in the ITO, suggesting that the eyewitness was mistaken and that it was not the garage at 16 Chamney which was entered but rather the garage at 14 Chamney. “This is because police have seen Chaves Patten at 14 Chamney on 2 separate days since the shooting. Police also know individuals who reside at 48 Chamney Court, 14 Chamney Court and 9 Chamney Court to run in the same circles and hang out with one another. During surveillance police have observed several of these parties come and go freely between all three units.”

26If a suspect from the shooting had run into the residence at 14 Chamney immediately after the incident that would go a long way to establishing that there were grounds to believe that there would be evidence of the shooting found at 14 Chamney. But that was not the evidence.

27It is important to appreciate that the raw evidence from the eyewitness, because it identified 16 Chamney Court, was on its face unhelpful in authorizing a search of 14 Chamney. The ITO officer faced an uphill battle to explain how the eyewitness evidence could be construed to justify the search of 14. The form of argument—a suggestion of what the eyewitness intended despite what she actually said—was not an easy row to hoe. A fuller explication of the eyewitness statement and its details may have helped or perhaps a visit to the scene with the eyewitness to clarify matters was called for. Instead, the officer attempted to reason through the discrepancy and by this means convert the eyewitness observation into evidence implicating 14 Chamney.

28In my view, the officer’s reasoning to “correct” the address from 16 Chamney to 14 Chamney was syllogistic. He deduced from the activity involving 14 Chamney that the witness meant this address, not 16 Chamney. But the evidence of the activity involving 14 Chamney, as shown above, was itself weak. Patten parked his car on the street in front of the address once and went into the residence once. Nor was anything of value added by the general conclusory statement that the men moved freely between 9, 14 and 48. With no evidentiary meat on the bones, this was a hollow assertion with very little weight.

29A frailty in the eyewitness evidence could not be rectified by an inference which itself was frail and lacked specific evidentiary support in the ITO. The officer’s deduction that 16 Chamney actually meant 14 Chamney was unpersuasive. In the end, the eyewitness evidence was not reasonably capable of implicating 14 Chamney as a place where the suspects ran or where evidence of the crime would be found.

30Further, there was one other problem. The summary of the eyewitness statement, set out in full above, had almost no detail. It is unclear whether the suspects ran through an open overhead door of the garage or whether they went in through a human door. Nor was it clear whether the garage was attached to the residence or detached. These matters were of some importance to clarify the inherent ambiguity arising from whether the suspects were merely taking refuge in a garage proximate to the shooting or were in fact associated with the residence itself. Only in the latter case could the eyewitness evidence contribute to the grounds justifying the search.

CONCLUSION

31In an application challenging a search warrant or wiretap authorization, analysis of each category and piece of evidence that supports the warrant or authorization as has been undertaken above is inescapable. Ultimately, however, it is the total cumulative weight of the supporting material which must be evaluated. Each piece of evidence constitutes part of the picture. It is the complete picture which determines whether the warrant could have issued or not: Nero, at para. 68; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280 (Ont. C.A.), at para. 85 Ngo, para. 35(3);.

32There was a natural danger in this case that grouping the addresses together in the bid to obtain search warrants for all three might obscure the necessity that an individual assessment of sufficiency had to be conducted for each. It would be speculation whether this is what led to the issuance of the warrant for 14 Chamney. But it is certainly possible. Whatever the underlying reason, in the circumstances, I conclude the warrant could not have issued to search 14 Chamney. In this case, there was a single entrance after-the-fact by the suspect Patten into the 14 Chamney address. He parked his car on the street outside the address once. Eyewitness evidence of the shooting was potentially powerful support for the warrant. But the fleeing into the garage of 16 Chamney, not 14, provided no real support for the issuance of the warrant in relation to 14.

33In conclusion, the cumulative grounds to believe that there was evidence which would be found in 14 Chamney Court with respect to the shooting and attempt murder on August 22, 2017 were not reasonable. The applicant has met his onus. The search was unlawful and therefore unreasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.) at p, 278. There was a violation of Section 8 of the Charter.

34It was agreed at the hearing that the Section 24(2) argument, if required, would await the conclusion on Section 8 of the Charter. Now that a breach of Section 8 has been found, I would ask counsel to communicate with the trial co-ordinators to schedule the Section 24(2) hearing as soon as possible.