COURT FILE NO.: CR-19-1863-00
DATE: 2020 11 12
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: November 5, 2020 by Video Conference
RULING ON APPLICATION TO EXCLUDE EVIDENCE UNDER SECTION 24(2) OF THE CHARTER
D.E HARRIS J.
[1] These are my reasons on an application to exclude evidence under Section 24(2) of the Charter. It was previously decided that Section 8 had been breached. There were insufficient grounds set out in the Information to Obtain (ITO) for the warrant to be issued: see R v. Wilson, 2020 ONSC 6522 (Ont. S.C.J.).
[2] There are three categories to be explored derived from the leading case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.): 1. Seriousness of the Charter-Infringing State Conduct; 2. Impact on the Charter-Protected Interests of the Accused; and 3. Society's Interest in an Adjudication on the Merits.
I. Seriousness of the Charter-Infringing State Conduct
[3] The purpose of the first factor is to preserve public confidence in the courts and ensure adherence by law enforcement to the rule of law. The court must disassociate itself from state misconduct in order to maintain the respect for and integrity of the judicial system. A judge evaluating the first factor must situate state misconduct on a spectrum beginning with inadvertent, technical errors extending all the way to wilful or flagrant disregard for individual rights and interests: Grant, paras. 72-75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para. 23.
[4] As to reasonable reliance by the police on previous legal authority, this will equate with good faith and reduce the seriousness of state misconduct. However, ignorance of Charter standards is not equivalent to good faith: see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 43-44; R. v. Grant para. 75; R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, 1990 CarswellOnt 77, at para. 65 per LaForest J. (Carswell).
[5] In this instance, the police applied for and obtained a search warrant, a process which is “the antithesis of wilful disregard of Charter rights.” R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (Ont. C.A.) at para. 28. This is a somewhat limited factor as rarely do the police search a home without a warrant. Applying for a search warrant for a home is the bare minimum. While this is not of enormous weight in the analysis, the jurisprudence requires it be taken into account. The analysis must then continue on to examine the ITO and determine whether there were misleading statements or negligence in drafting: R. v. Rocha, paras. 29-37; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.) at paras. 100-102; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721 (Ont. C.A.), at paras. 64, 74; R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281 (Ont. C.A.) at paras. 122-125; R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700 (Ont. C.A.) at paras. 54-57.
[6] Counsel for the Applicant argues bad faith arising out of two circumstances. First, as recounted in the Section 8 ruling, the affiant stated in the ITO that on August 26, 2017 he saw the Applicant and Chaves Patten go into 14 Chamney, the residence which was the subject of the search warrant. At the discovery, the officer admitted that he did not actually see them go into the residence but they were close to and headed for the door. Second, in several places in the ITO, the affiant says that the parties associated with 48 and 9 Chamney also associate with parties from 14. More specifically, the ITO notes that police have observed individuals from all three townhouses on Chamney move freely from one unit to another on “multiple occasions.” (see p. 3, also see p. 6, 14, 16). This statement was repeated at total of four times in the ITO but only this one time included the “multiple occasions” modifier. In fact, it is accepted that there was only the one entrance by Patten into 14 Chamney with the Applicant as noted above.
[7] With respect to the first accusation of bad faith, the affiant essentially volunteered that his statement in the ITO that he saw Patten and Wilson go into the residence was based on an inference he was making and was not strictly accurate. If he had not admitted this, no one would have been the wiser. Furthermore, as held in the Section 8 ruling, there was a negligible difference between the two versions. This is not an example of bad faith nor does it reflect negatively on the affiant.
[8] In reference to the moving freely between the three townhouses, I agree that this significantly misstated the evidence. Whether it was stated to be on multiple occasions or not, the implication was that this was a relatively common occurrence.
[9] The three specific incidents with respect to 14 Chamney on August 25 and 26 were accurate as described in the ITO. The relationship between the specific observations and the “moving freely between” statements was unclear. Were the general “moving between” statements a summary of the specific observations or did they stand as independent evidence? It became clear upon this review that the statements were intended to be a summary of the three incidents.
[10] Police officers are not expected to be experts in drafting legal documents: R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont.Gen.Div.) pp. 364-65. But the problem here was not primarily a drafting problem at all. The moving between townhouses statements had no legitimate evidentiary foundation. Whether evidence itself or a summary of evidence, these statements were false. Furthermore, the issuing justice would have been likely to rely on these statements as they were repeated several times in the ITO. A simple and general statement may often be more digestible and occupy a more prominent position in memory than a detailed observation. The statement made it sound like all three townhouses were used by the suspects more or less interchangeably. The evidence did not support this; it directly contradicted it. There was only one time that Patten went inside of 14 Chamney. No one else was seen going in. In no instance did the Applicant himself go into either 9 or 48 Chamney. This was the sum total of the pertinent engagement with 14 Chamney.
[11] Excision of the freely moving statements from the ITO would have been warranted but Mr. Renwick agreed and I found that because they were conclusory, the statements were devoid of evidentiary value: Wilson, paras. 15, 16, 28. It came to the same thing. That, however, does not mean that the statement ought not to be carefully scrutinized in the Section 24(2) analysis.
[12] The conceptual theme, the “glue” of the application to bring 14 Chamney into the criminality loop, was this interchangeability of the three townhouses. There were a plethora of grounds with respect to 48 Chamney. If the people associated with 48 could be connected to 14 Chamney, the 48 Chamney grounds would apply equally to 14. It would be reasonable to conclude, particularly with the eyewitness evidence as construed by the affiant, that there would be evidence of the August 22, 2017 shooting to be found at 14 Chamney. But this interchangeable access was false.
[13] This leads to a further finding. There is a realistic apprehension that the police decided that when requesting a search of 48 it would be expedient to request a search of 14 as well. The police had suspicions that the people who lived there, namely the Applicant, associated with Patten and Revay and that the Applicant was a member of a gang. A search might turn up some evidence of criminality. The lumping of the addresses in together would make a search of 14 appear more reasonable than it would on its own.
[14] From the total lack of a factual underpinning for the moving freely between statements, I must conclude that this falsehood was intentional and deliberate or, at the least, the affiant was wilfully blind with respect to its truth. But whether it be characterized as intended to mislead or merely seriously negligent is not crucially important: R. v. Morelli, at para. 59. This misstatement was at the core of the case for issuance.. The drafting was beyond mere carelessness. The officer fell into the temptation of bending the true evidence on the ex parte search warrant application. He violated his solemn obligation to make full and frank disclosure: R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65 (S.CC.) at para. 46; United States of America v. Friedland, [1996] O.J. No. 4399 (QL) (Gen. Div.), at paras. 26-29. In my view, on its own, it rendered the police conduct in this case serious and leaned heavily towards exclusion on the first Grant factor.
[15] Examining the eyewitness evidence of suspects running into the garage at 16 Chamney, this added nothing of substance, despite its outward appearance. The affiant’s attempts to rehabilitate this evidence to support the warrant are telling. The affiant expressed his view that the eyewitness did not mean what she said; she was mistaken. It was the garage of 14 Chamney into which the suspects ran, not 16 Chamney. The police deduced this because the suspects in the shooting were associated with 14 not 16. This was a superficially appealing but ultimately dangerous and illogical mode of reasoning. At bottom, vague and unsupported police suspicions were used to attempt to reconfigure the eyewitness evidence. Evidence with no value was combined with other evidence of no value to produce evidence incriminating 14 Chamney.
[16] The affiant ought not to receive a gold star for his effort in attempting to stretch the evidence beyond its natural tendency. I do not think the officer necessarily meant to mislead because he fully explained his reasoning in the ITO. But nonetheless, it had a misleading and deceptive effect. It was an attempt at a magic trick, making something out of nothing by sleight of hand. It required focused scrutiny on this review application to expose the flawed deductive path the ITO suggested be followed. It is pertinent to note that at the time of issuance, a justice does not get the help from counsel and the luxury of time that a judge on review is fortunate enough to have.
[17] Lastly, the weakness of the total grounds in this case is worthy of comment. Adding up the specific, non-conclusory grounds to search 14 Chamney, the evidence was vaporous. There was the attendance of Revay, a suspect in the shooting, in a taxi in the driveway of the 14 Chamney residence but this was two years before. It had virtually no value. Patten parking his car in front of 14 Chamney a few days after the shooting was similar. The only piece of evidence of real value in the ITO with respect to 14 Chamney was the observation of Patten and the Applicant going into the residence on August 26, 2017. This showed some, albeit limited one-time association between the suspected perpetrator of the shooting and the address but failed to demonstrate the type of connection which could lead to a conclusion that evidence of the shooting would be found in the residence.
[18] Based on the collective force of the evidence in the ITO, in my view, the police had a mere suspicion that 14 Chamney would yield evidence with respect to the shooting. This of course falls not only below the reasonable grounds required on the original application to the justice. It also falls below the threshold of reasonable suspicion: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 (S.C.C.)
[19] I conclude that the police probably knew but if not, certainly ought to have known, that they did not have sufficient evidence to apply to search 14 Chamney: Morelli at para. 101. The legal thresholds for the interdiction of individual privacy and autonomy from state intrusion are vital to liberty. The proposed intrusion into personal privacy requires great care and full and frank disclosure. The standard for issuance of a search warrant is relatively low. There are comparatively few cases in which the grounds are later found insufficient. When the police intrude on personal privacy and their grounds for doing so as set out in the request are woefully insufficient, as they were here, the Charter violation is serious.
[20] In summary, these are the conclusions with reference to the first subject matter of the Grant inquiry: 1. The moving freely between the three Chamney addresses was the catalyst for the warrant issuing for 14 Chamney. It was fundamentally false and misleading. Furthermore, looked at side by side, the disparate grounds to search 48 as opposed to 14 leads to the impression that 14 was an afterthought and a matter of expedience rather than justified by sufficient grounds; 2. The attempt to reconfigure the eyewitness evidence to police advantage superficially and unfairly increased the value of this evidence. In fact, it was worthless. The effect was deceptive; and 3. The true grounds behind the search of 14 fell well below the relatively modest threshold for reasonable grounds.
[21] In my view, the first Grant factor, the seriousness of the Charter infringing conduct, should be fixed well along the fault spectrum towards the most serious end. I conclude that the first factor tends substantially and persuasively towards exclusion.
II. Impact on the Charter-Protected Interests of the Accused
[22] For the Crown, Mr. Renwick wisely bowed to the weight of jurisprudential authority in conceding that this second Grant factor also tends towards exclusion of the evidence.
[23] The Applicant and other members of his family lived at 14 Chamney. He was in his bed in the basement when the police entered to search. The two guns found were concealed in the basement area. The degree of protection of individual privacy in the home is at the pinnacle of individual rights. This has been recognized for centuries: Semayne's Case (1604), 5 Co. Rep. 91a, 77 E.R. 194; Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739 (S.C.C.) at para. 4. It has been emphasized repeatedly in the Charter context as well: Grant at paras. 78, 113; Morelli at para. 104; Paterson at paras. 48-50; R. v. Silveira (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.) at para. 148; Booth at paras. 125-127.
[24] The impact of this Charter violation was at the most serious end of the scale on the second Grant inquiry.
III. Society's Interest in an Adjudication on the Merits
[25] The third factor always leans against exclusion, particularly here where the evidence is reliable and exclusion would require the acquittal of the accused. However, it has been held by Justice Doherty in R. v. McGuffie, 2016 ONCA 365, (2016) 131 O.R. (3d) 643 (Ont. C.A.) at para. 63 that, “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”
[26] Mr. Renwick takes aim at this holding, arguing that it was disapproved of in R. v. Omar 2019 SCC 32, 435 D.L.R. (4th) 270 (S.C.C.). He says that it also contradicts the binding statement in Grant at paragraphs 86 and 127 that all three factors must be examined together.
[27] In Omar, the Supreme Court agreed with the dissenting judgment in the Court of Appeal, stating that the appeal was allowed “substantially” for the dissenting reasons. Justice Brown’s dissent upholding the trial judge’s decision not to exclude a firearm was based on several grounds, including: 1. The line when psychological detention begins is debatable and therefore the police conduct was, as the trial judge held, not on the serious side of the spectrum; 2. The facts of Omar should be distinguished from McGuffie as the case for exclusion in that case was overwhelming. Taken out of context, “courts risk turning [the statement] in McGuffie into a kind of ‘two-strikes-and-the-evidence-is-out’ rule... the s. 24(2) balancing exercise must remain open to the Supreme Court's direction to follow the constitutional text -- "in all the circumstances" -- and eschew any overarching rule” and; 3. Lethal firearms, because of the threat they pose, can have a powerful impact on the third factor in Grant: R.v. Omar, 2018 ONCA 975, 424 C.R.R. (2d) 199 (Ont. C.A.)
[28] Mr. Renwick relies on points 2. and 3. from the Omar dissent. Part of the difficulty in assessing this submission is that it is not easy to say what part of the judgment the Supreme Court approved of when they opined that they “substantially” agreed with the dissent. As a result, the precedential value of the Supreme Court’s ruling is diminished.
[29] In the final analysis, Omar cannot possibly assist the Crown in this case. Justice Doherty’s quote refers to there being a strong case for exclusion on factors 1 and 2. It was said in the Omar dissent that the case there was not nearly as strong a case for exclusion on the first two factors as in McGuffie: para. 118. This was a distinguishing feature. However, the present case is clearly much closer to McGuffie than to Omar. It is not a marginal case for exclusion; as concluded above, it is a strong case for exclusion on the first and second Grant inquiries.
[30] Furthermore, the Supreme Court in Omar could not have intended to disavow McGuffie. Both the Supreme Court and the Ontario Court of Appeal have since the time of Omar approved of Justice Doherty’s quote from McGuffie. One week after Omar was released, the Supreme Court of Canada specifically approved of the quote in R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 (S.C.C.) at para. 142. The Court of Appeal this year has approved of the McGuffie quote at least four times: R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265 (Ont.CA.) at para. 81; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 107; R. v. West, 2020 ONCA 473, [2020] O.J. No. 3151 (Ont.CA.) at para. 41; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114 (Ont. C.A.) at para. 46. McGuffie is good law and I am bound to follow it in this case.
[31] Mr. Renwick, referring to the Omar dissent, also emphasized the evil of firearms (see Omar paras. 122-137). I fully agree. Sadly, gun crime is a weekly if not daily staple of our dockets in Brampton. Mr. Renwick, to emphasize the anathema of guns in our community, referred to my recent sentencing reasons in a second degree murder case. In that tragic case, a 19 year-old boy died in a hail of 15 bullets fired from a semi-automatic military style assault weapon at a Popeyes Restaurant in the middle of the day. Those sentencing reasons, far from isolated in our jurisdiction, record the senseless and pointless murder of a teenager, the pathology led at trial charting the destruction on the human body caused by the bullets, the heartbreaking grief of the deceased’s boy’s mother, father and family and the urgent need to tackle the underlying social problems of gun crime: see R v. Chizanga and Meredith, 2020 ONSC 4647 (Ont. S.C.J.) at paras. 5-39. The explicit purpose of this extended part of the judgment was to chronicle the evils of gun violence.
[32] We also regularly see the horrors of gun violence in the context of bail hearings and other judicial proceedings: see e.g. R v. Ahmad, 2020 ONSC 5525 (Ont.S.C.J.); R. v. Williams, 2018 ONSC 5409, 151 W.C.B. (2d) 126 (Ont. S.C.J.) at paras. 33-40. There are countless rulings and judgments which demonstrate beyond peradventure the knowledge and understanding the Central West judiciary have of firearms’ crime. We do not sit in an ivory tower. Who else has the experience of observing over many days the inconsolable grief of a mother who has lost her son to the inanity of gun crime? It opens your eyes to the incalculable human cost and the loss to the community brought about by the lethality of illegal firearms.
[33] There are many different perspectives on gun violence: the victim and their family, the neighbour whose safety and that of their family is jeopardized, and those of medical doctors who see the destruction and carnage caused by guns. There are many other perspectives too. But a trial judge gains a good 360 degree survey of these different perspectives during trial and sentencing proceedings. The bona fides of the judicial understanding of the evil of firearm violence is not open to debate.
[34] A trial judge has a unique vantage point to take the full measure of the enormous toll of gun crime. But the fact is, based on the jurisprudence, as a matter of law, this has a limited role in Section 24(2) exclusion applications. The Supreme Court said in Grant,
In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly were the penal stakes for the accused are high.
[35] In other words, generally speaking the seriousness of the crime is offset by the seriousness and impact of the violation: it is a “wash.” This is not a rigid rule, seriousness may be a valid consideration, but the pertinent appellate authority demonstrates that this is more a matter of theory than of practice.
[36] It would have been open for the Supreme Court to enunciate a straight balancing test under Section 24(2) between the public interest in prosecution against the importance of protecting the integrity of the judicial process. A serious case would prevail over a serious violation of rights. This is what has been crafted under the doctrine of abuse of process: R. c. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.) at para. 41. Although the consequence of a stay for an abuse of process and the exclusion of evidence may be the same in a given case, this does not suggest that the approach should be the same. The theoretical foundations behind abuse of process diverge from Section 24(2) exclusion. Abuse of process concerns an offensive prosecutorial process itself; exclusion is consequent upon a violation of a Charter right and does not generally impugn the entire prosecution against the accused. A higher standard for abuse of process and a more rights based test for exclusion makes sense from a constitutional perspective.
[37] The companion case to Grant, the judgment in Harrison, is also of assistance on the issue of the seriousness of the crime. The Chief Justice said,
37 … the trial judge's reasoning in this case placed undue emphasis on the third line of inquiry [under Grant] while neglecting the importance of the other inquiries, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. Effectively, he transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence.
40 As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'" (para. 150).
[38] A premise of the Charter is that factual guilt may have to give way in order to protect and preserve individual rights. This is the real test of whether the right is truly important and vigilantly protected or whether mere lip service is being paid to it. If the importance of guilt and punishment supercedes individual rights because the case is very serious, individual rights are subject to the whims and vicissitudes of the day: McGuffie at paras. 72-74. The police misconduct is condoned and the court, rather than distancing itself from it, becomes associated with the misconduct.
[39] In this case, a message would be sent that a misleading and insufficient ex parte ITO will be forgiven as long as evidence of a serious crime is uncovered. In attempting to guarantee against misconduct in the future, this would be exceptionally poor management of the integrity of the court process and of police misconduct. Nor is it in keeping with our jurisprudence since Grant.
[40] This case does not embody as stark a juxtaposition as is sometimes seen. For example, the tendency towards inclusion would have been much stronger if the firearms seized from the Applicant’s home were matched to the firearms used August 22 and August 24, 2017 in an attempt to kill a man, the stated subject matter of the search warrants in this case. The temptation to favour truth over the vindication of individual rights is not overpowering in this case.
[41] In conclusion, the McGuffie dictum undoubtably applies in this case. A serious violation with a serious impact on the accused must lead to exclusion no matter the importance of this prosecution to the public. Excluding the evidence and acquitting Mr. Wilson is unpalatable, to say the least, but to avoid this short-term detriment, it would be necessary to condone police misconduct and the unjustified state intrusion into the Applicant’s home. In the long term, that would be improvident and, whatever harsh language is levelled to upbraid the police, it could not avoid implicitly rubber stamping a serious violation of Charter rights.
[42] For these reasons, the firearms must be excluded from evidence under Section 24(2) of the Charter. As the finding of the guns is the only evidence against the Applicant upon the two counts in the indictment, acquittals will be entered on both.
D.E HARRIS J.
Released: November 12, 2020
COURT FILE NO.: CR-19-1863-00
DATE: 2020 11 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MARKUS WILSON
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: November 12, 2020