ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN (Respondent)
– and –
ADAM DRUMMOND and SHANNON DRUMMOND (Applicants)
Andrea Levans and Moray Welch, for Her Majesty the Queen
Natasha Calvinho, for the Accused
HEARD: November 23, 25 and 26, 2020 and February 9, 2021 (By Zoom)
AMENDED RULING ON PRE-TRIAL APPLICATION
The text of the original Ruling on Pre-Trial Application, of October 8, 2021, was amended on February 24, 2022 and a description of the amendment is appended.
Overview
1The Drummonds are each charged with (a) possession of property obtained by crime, and (b) laundering the proceeds of crime (ss. 354(1)(a) and 462.31(2) respectively, of the Criminal Code, R.S.C. 1985, c. C-46). The monetary amount alleged to be involved is approximately $329,000. These charges are collectively referred to in this ruling as "the 2017 Charges".
2In August 2017, the information with respect to the 2017 Charges was sworn and both accused were arrested. The indictment was laid on October 17, 2018 – approximately two weeks after the accused were committed to trial.
3The 2017 Charges are the third set of charges against Adam Drummond and the second set of charges against Shannon Drummond.1 Adam was first charged in 2013, including with possession of property obtained by crime (s. 354(1)(a) and "the 2013 Charges"). The monetary amount involved at that time was slightly in excess of $900.
4Adam and Shannon were both charged with offences in March 2016 ("the 2016 Charges"). Those offences did not include possession of property obtained by crime. It was not until 2017 that Adam was charged a second time (2013 being the first), and Shannon was charged the first and only time, with the offence of possession of property obtained by crime.
5The Drummonds bring this application for the exclusion of evidence at trial.2 They seek an order,
a) excluding from evidence at trial the documents provided to the investigating officer in 2016 and 2017 by the Canada Revenue Agency ("the CRA Documents" and "CRA", respectively);
b) for the excision of evidence from Informations to Obtain ("ITOs") prepared subsequent to the provision of the CRA Documents; and
c) excluding information and documents obtained in 2016 and 2017 through search warrants granted and other investigative steps judicially authorized on the basis of the ITOs.
6Commencing in February 2016, the investigating officer, Det. Oickle, sent three letters to CRA requesting taxpayer information related to both accused ("the Letters"). The Letters are dated February 2016, May 2016, and June 2017. Each of the Letters pre-dates the 2017 Charges.
7In sending the Letters, Det. Oickle relied on s. 241(3) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) ("ITA"). Section 241 of the ITA sets out prohibitions against the provision of taxpayer information by an "official or other representative of a government entity" except in limited circumstances. Section 241(3) identifies one of the limited circumstances in which the provision of taxpayer information is permitted. The marginal note for s. 241(3) is, "Communication where proceedings have been commenced".
8Specifically, s. 241(3)(a) provides that the prohibitions against the provision of taxpayer information "do not apply in respect of … criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament". Section 241(3)(b) deals with the administration or enforcement of two specifically named statutes as well as other federal or provincial statutes providing for the imposition or collection of a tax/duty.
9In the Letters, Det. Oickle referred initially to the 2013 Charges and thereafter to the 2016 Charges. To further her investigation, Det. Oickle relied on the CRA Documents in the ITOs she prepared in support of applications for search warrants and judicial authorization of other investigative steps.
10The outcome of the application now before the court turns in part on whether the taxpayer information upon which the Crown seeks to rely at the trials of the 2017 Charges was obtained in accordance with the disclosure provisions of the ITA.
11The Drummonds submit that the Letters were part of an investigation unrelated to either the 2013 Charges or the 2016 Charges. The Drummonds ask the court to conclude that the Letters were part of an investigation commenced by Det. Oickle in early 2016 and which led to the 2017 Charges. As such, the Drummonds submit that the Letters fall outside the scope of s. 241(3)(a).
12The Drummonds submit that for the purpose of the investigation that led to the 2017 Charges, Det. Oickle was required to follow the procedure under s. 241(4)(e)(v). Pursuant to that section, the Detective had to obtain an order under s. 462.48(3) of the Code and provide that order to CRA in support of the requests for taxpayer information.
13Section 462.48(3) falls within Part XII.2 of the Code titled, "Proceeds of Crime" and, specifically, the portion therein titled "Disclosure Provisions". Subsections 462.48(1)-(3) set out the procedure to be followed by the Attorney General when making an application to a judge for an order for disclosure of information related to certain offences. Those offences include offences under Part I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") and possession of property obtained by crime (s. 354 of the Code).
14It is undisputed that Det. Oickle never made an application for an order under s. 462.48(3) of the Code.
15The Drummonds ask the court to conclude that their respective s. 8 rights under the Canadian Charter of Rights and Freedoms, protecting them against unreasonable search and seizure, have been breached. The Drummonds request relief pursuant to s. 24(2) of the Charter – namely, the exclusion from evidence at trial of the CRA Documents. The Drummonds also ask the court to excise references to the CRA Documents from the ITOs when the court considers the validity of the search warrants granted and investigative steps authorized.
16Regardless of the outcome with respect to the CRA Documents, the Drummonds ask the court to consider whether the search warrants and other judicial authorizations were properly granted. The Drummonds rely on s. 24(2) of the Charter and request that evidence obtained pursuant to those warrants and authorizations be excluded from evidence at trial.
17The Crown's position is that the Letters were sent in respect of criminal proceedings that had been commenced. With respect to the first such letter, the Crown relies on the 2013 Charges. With respect to the second and third such letters, the Crown relies on the 2016 Charges. The Crown's position is that it is entitled, at the Drummonds' respective trials on the 2017 Charges, to rely on the CRA Documents as taxpayer information obtained in compliance with the disclosure provisions of the ITA.
18With respect to the search warrants granted and investigative steps authorized, the Crown submits that the positions taken by the Drummonds create a "house of cards". Regardless of the outcome with respect to s. 241(3) of the ITA, the Crown asks the court not to allow the entire house of cards to crumble. The Crown's position is that the ITOs set out reasonable and probable grounds in support of the warrants and orders requested. The Crown asks that this aspect of the application be dismissed.
The Issues
19The issues to be determined on this application are as follows:
At the trials with respect to the 2017 Charges, is the Crown entitled to rely on the CRA Documents provided to Det. Oickle in response to the Letters?
What portions, if any, of the ITOs are to be amplified or excised?
Based on a review of the ITOs, what evidence, if any, is to be excluded?
The Evidentiary Record
20In support of this application, the Drummonds rely on the transcript from the October 2018 discovery of Det. Oickle, copies of the Letters, copies of the three responding letters from CRA (including the CRA Documents), and the ITOs.
21The only affidavit filed by the Drummonds in support of the application is from a law clerk in Defence Counsel's office. In her affidavit, the law clerk summarizes and provides citations for portions of Det. Oickle's discovery evidence. The transcript from that discovery is attached as an exhibit to the law clerk's affidavit.
22In response to the application, the Crown relies on an affidavit sworn by Det. Oickle on October 9, 2020 ("the Oickle Affidavit"). In that affidavit, the Detective elaborates on her discovery testimony and corrects errors made on discovery with respect to the dates of certain events. Attached as an exhibit to the Oickle Affidavit is a chronology of "Major Events" in Project OTWIG, the name assigned to the investigation of the Drummonds ("the Chronology"). The Chronology sets out events related to the Drummonds commencing on August 22, 2013 and ending on September 7, 2017.
23The Crown also relies on an affidavit sworn by a CRA employee, Bruce Pettipas, on October 8, 2020. There are no exhibits to his affidavit.
24On the return of this application, the Crown called Det. Oickle and Mr. Pettipas to give evidence and to have their respective affidavits entered as exhibits. The Crown did so specifically in response to the application for the CRA Documents to be excluded from evidence. The Crown does not rely on the affidavit or oral evidence of either individual in response to the balance of the application (i.e., Issue Nos. 2 and 3).
25The Drummonds did not call any evidence on the return of the application.
Background
26During the relevant years, the Drummonds resided at a home in Oxford Mills, Ontario. They also owned or worked at several businesses located in Kemptville, Ontario. The summary information of the Drummonds' businesses, that follows below, is based on the contents of the ITOs. This information is provided for background purposes only and does not constitute findings of fact.
The 2013 Charges
27As of the summer of 2013, Adam was the sole owner of DOA Apparel, a store located in Kemptville. Items available for sale at the store included clothing, skateboards, and drug paraphernalia (i.e., marijuana bongs). Shannon worked at the store.
28In August 2013, Det. Oickle was a member of the Grenville County detachment of the OPP. She was assigned to the Community Drug Action Team ("CDAT"). Det. Oickle obtained a warrant for a search of the premises at DOA Apparel. She was also involved in the execution of the search warrant.
29The items seized when that search warrant was executed included bongs, grinders, and other drug paraphernalia. A quantity of cocaine was also observed; as a result, the officers requested and obtained a telewarrant under the CDSA. The officers returned to DOA Apparel to seize the cocaine initially found at the store. On their return, the officers observed and seized cocaine in addition to that which they had originally observed.
30During one of the two searches of DOA Apparel, cash in the amount of $910 was seized. The cash was seized from Adam personally, not from the store's cash register.
31Following the August 2013 searches at DOA Apparel, Adam was charged with the following offences: possession for the purpose of trafficking (s. 5(2) of the CDSA); two counts of selling illicit instruments (s. 462.2 of the Code); and possession of property obtained by crime (s. 354(1)(a) of the Code).
August 2013 to January 2016
32One of Adam's conditions for release following the 2013 Charges was to report any out-of-country travel. Adam reported at least two out-of-country trips to Det. Oickle.
33Following his arrest on the 2013 Charges, Adam closed DOA Apparel and opened a store called "Kemptville Clothing and Convenience". Adam was the sole proprietor of that business. Both Adam and Shannon worked at the store.
34Kemptville Clothing and Convenience was closed in 2015. Thereafter, Adam operated at least one, and possibly two, tanning salons under the name of Du Soleil Tanning Studio. Adam was the sole owner of that business. Shannon did not work at the tanning studio.
35Det. Oickle lived and worked in the Kemptville area. As a result, she became aware of the changes to the businesses in which one or both of the Drummonds were involved. She was also aware of the house in which they lived and that the Drummonds possessed several vehicles.
36In June 2015, Det. Oickle left her position with CDAT in Grenville County. She was seconded to the Financial Crime Section of the Royal Canadian Mounted Police ("RCMP"). Det. Oickle worked with the RCMP under the umbrella of the OPP Provincial Asset Forfeiture Unit. She was no longer a drug investigator and no longer employed by the Grenville County detachment of the OPP. Her position at the detachment was filled in her absence.
January 2016 to August 2017
37In January 2016, and in the context of her secondment to the RCMP, Det. Oickle took a continuing education course related to asset forfeiture. She learned about investigative methods of which she had not previously been aware. After taking the course, Det. Oickle approached both the OPP Grenville County detachment and the RCMP regarding investigation of the Drummonds with respect to a financial crime.
38The investigation carried out by Det. Oickle, throughout 2016 and 2017, includes PPSA searches, Business Name Reports, a Geowarehouse search with respect to the Drummonds' residence, the Letters, the ITOs, the search warrants, and other judicially authorized investigative steps.
39In March 2016, and independent of that investigation, the Drummonds were each charged with several offences. Adam was charged with possession for the purpose of trafficking (s. 5(2) of the CDSA), breach of recognizance (s. 145(3) of the Code – two charges), possession of a prohibited weapon in breach of an order under s. 109 (s. 117.01(1)), and possession of a prohibited weapon (s. 91(2)). Shannon was charged with possession for the purpose of trafficking (s. 5(2) of the CDSA), possession of a prohibited weapon (s. 91(2) of the Code) and obstructing justice (s. 129(a)).
40In August 2017, the Drummonds were both charged with the following offences:
a) Possession of property obtained by crime (s. 354(1)(a)); and
b) Laundering the proceeds of crime (s. 462.31(2)).
41I turn now to the issues and deal first with the CRA Documents.
Issue No. 1 - At the trials with respect to the 2017 Charges, is the Crown entitled to rely on the CRA Documents provided to Det. Oickle in response to the Letters?
a) Overview
42Section 241 of the ITA is titled "Provision of Information". It establishes a prohibition against an "official or other representative of a government entity" providing, allowing to be provided, granting access to, or using taxpayer information: s. 241(1). Section 241 identifies that there are limited exceptions to the general prohibition against disclosure of taxpayer information. The exceptions relevant to this application are found in ss. 241(3) and (4)(e)(v).
43Subsection 241(3)(a) states that the general prohibition under s. 241(1) does "not apply in respect of … criminal proceedings, either by indictment or on summary conviction that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament".
44Subsection 241(4)(e)(v) states that an official may "provide taxpayer information, or allow the inspection of or access to taxpayer information, as the case may be, under, and solely for the purposes of … (v) an order made under subsection 462.48(3) of the Criminal Code". Section 462.48 sets out a procedure in support of a request for the disclosure of taxpayer information with respect to certain offences related to controlled substances under either the CDSA or the Code.
b) The Positions of the Parties
The Drummonds
45The Drummonds highlight that, in support of her requests for disclosure of taxpayer information, Det. Oickle initially relied only on the 2013 Charges as the "criminal proceedings … that have been commenced" within the meaning of s. 241(3). Thereafter, in the second letter (May 2016) and the third letter (June 2017), Det. Oickle relied on the March 2016 Charges as the "criminal proceedings … that have been commenced" within the meaning of s. 241(3).
46The Drummonds' position is that s. 241(3) cannot be used as an investigative tool to determine whether charges will be laid. The Drummonds submit that, for the purpose of the 2017 Charges, Det. Oickle was required to follow the procedure set out in s. 241(4)(e)(v). Under that exception to the general prohibition, taxpayer information may only be provided by CRA if the provision of that information is judicially authorized pursuant to s. 462.48(3) of the Code.
47The Drummonds emphasize the gatekeeper function of the judicial officer who considers a request for an order under s. 462.48(3). To obtain such an order, Det. Oickle would have to satisfy the presiding judge that there are reasonable and probable grounds to believe that information relevant to an investigation is available from CRA.
48The Drummonds submit that because Det. Oickle failed to follow the requisite procedure for a search of taxpayer information in the context of her investigation, the CRA Documents are to be excluded from evidence at the trials.
The Crown
49The Crown's position is that the "criminal proceedings … that have been commenced" and that were relevant to the provision of taxpayer information were, initially, the 2013 Charges. Those charges were commenced prior to 2016; they were still pending as of early 2016 when Det. Oickle sent the first letter to CRA.
50The Crown's position with respect to the second and third letters is the same; as of May 2016 and June 2017, Det. Oickle was entitled to rely on the 2016 Charges as the "criminal proceedings ... that have been commenced" in support of her request for taxpayer information to be provided pursuant to s. 241(3) of the ITA.
51The Crown acknowledges that a request made for documents pursuant to s. 241(3) is a warrantless search. The Crown describes a request under s. 241(3) as an administrative search, authorized in law.
52The Crown identifies two pre-requisites to the provision of taxpayer information under s. 241(3). The first pre-requisite is that criminal proceedings have been commenced. The Crown submits that there is nothing in the language of s. 241(3) to suggest that remoteness in time of the criminal proceedings is in any way relevant. Therefore, as of February 2016, when the first letter was sent, the 2013 Charges were sufficient for the purpose of s. 241(3) because those charges remained unresolved as of the date of the letter. Similarly, when the second and third letters were sent, the 2016 Charges were sufficient for the purpose of s. 241(3) because they remained unresolved as of the respective dates of those letters.
53The second pre-requisite is that the taxpayer information is relevant to the proceedings commenced. With respect to this pre-requisite, the Crown advances alternative arguments. First, the Crown asks the court to find that the taxpayer information requested relates to the 2013 Charges and/or to the 2016 Charges.
54In the alternative, the Crown submits that even if the court finds that the taxpayer information is related to the 2017 Charges, then it is still open to the court to conclude that the taxpayer information requested is "in respect of" the 2013 Charges. The Crown submits that the investigation of money laundering, in 2016 and 2017, was an investigation of an enterprise crime that stemmed from the 2013 charge against Adam of possession for the purpose and from the same charge in 2016 against both Adam and Shannon.
55In summary, the Crown submits that the information sought under s. 241(3) need only be relevant in a broad sense. The Crown's position is that the taxpayer information requested in the Letters was relevant, in a broad sense, to the 2017 Charges.
56Before providing my analysis, I will set out the relevant sections of the ITA.
c) Subsections 241(1), (2), (3), and 4(e)(v) of the ITA
57For ease of reference, ss. 241 (1), (2), (3) and 4(e)(v), and the related marginal notes, appear below in their entirety:
(1) Except as authorized by this section, no official or other representative of a government entity shall
(a) knowingly provide, or knowingly allow to be provided, to any person and any taxpayer information;
(b) knowingly allow any person to have access to any taxpayer information; or
(c) knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or for the purpose for which it was provided under this section.
Marginal note: Evidence relating to taxpayer information
(2) Notwithstanding any other Act of Parliament or other law, no official or other representative of a government entity shall be required, in connection with any legal proceedings, to give or produce evidence relating to any taxpayer information.
Marginal note: Communication where proceedings have been commenced
(3) Subsections 241(1) and 241(2) do not apply in respect of
(a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament; or
(b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty.
Marginal Note: Where taxpayer information may be disclosed
(4) An official may
(e) provide taxpayer information, or allow the inspection of or access to taxpayer information, as the case may be, under, and solely for the purposes of …
(v) an order made under subsection 462.48(3) of the Criminal Code …
58Section 468.42 of the Code is discussed in greater detail below.
d) Interpretation of s. 241(3) of the ITA
59The first step in the analysis under Issue No. 1 is to determine what is meant by the phrase "criminal proceedings … that have been commenced" as it appears in s. 241(3).
60The Drummonds rely on the decision of W. Jenkins, J. in R. v. Campbell, [1993] O.J. No. 4503 (Ont. Ct. Gen. Div.). Campbell was charged with several narcotics offences (ss. 3, 4(2), and 19.1 of the CDSA). The decision is a typed version of oral reasons given on an application for a declaration that s. 241(3) is unconstitutional. The decision is only ten paragraphs long.
61The grounds for Campbell's application were that s. 241(3) violates both ss. 8 and 11(c) of the Charter. The application was unsuccessful. At para. 5, and addressing the argument under s. 8 of the Charter, W. Jenkins J. said the following:
It is clear that Section 241(3) of the Income Tax Act does not require the accused to provide any information to the police, nor does it permit any invasion of the accused's home or business. In addition, it does not permit the Department of National Revenue to disclose the accused's financial information until after criminal charges have been laid. It follows that the accused's financial information cannot be used during an investigation that might lead to criminal charges. As a result, the extent of the intrusion into the accused's financial affairs which is permitted by this section is minimal. In addition, I don't believe the public has an expectation that an accused's income tax records will be protected where criminal charges have been laid.
62Justice W. Jenkins was clear in identifying that s. 241(3) does not apply to a request made of CRA for taxpayer information for the purpose of an investigation that might lead to criminal charges.
63Campbell was considered in R. v. Perello, 2003 SKQB 425, 239 Sask. R. 86, but only with respect to the outcome on the issue of the constitutionality of s. 241(3). I note, however, that in Perello, the presiding judge also considered when the charges were laid in relation to when the request was made of CRA for taxpayer information. At paras. 3 and 4, Pritchard J. said:
3 When it comes to income tax records, [Canadians] have a high expectation of privacy. The confidentiality of income tax records is specifically provided for in s. 241 of the Income Tax Act. This statutory protection is subject only to the exceptions set forth in s. 241(3) …
4 Mr. Perello was charged with an offence under the Criminal Code, an Act of Parliament, on February 12, 2001. He was charged with additional offences under the Criminal Code on April 25, 2001. There has been no evidence to suggest that his income tax records were obtained prior to those dates and accordingly, they have prima facie been lawfully obtained.
64Both W. Jenkins and Pritchard JJ. took what I would describe as a very cut and dried approach to the interpretation of s. 241(3)(a) of the ITA. Was the request for taxpayer information made after the charges, for which the information was sought, were laid? If so, then the taxpayer information was obtained in accordance with s. 241(3)(a) for the purpose of the charges that had already been laid.
65For the purpose of the application before this court, the Crown asks the court to interpret s. 241(3) broadly. The Crown submits that a broad interpretation of the subsection entitles the Crown, at the trials of the 2017 Charges, to rely on taxpayer information produced in response to requests made on the basis of either the 2013 Charges or the 2016 Charges.
66In support of its position, the Crown relies on the decision of the Supreme Court of Canada in Slattery (Trustee of) v. Slattery, [1993] 3. S.C.R. 430. The Court concluded that connecting phrases such as "relating to" and "in respect of", as they appear in s. 241(3), are to be given a broad meaning: pp. 445, 446.
67For several reasons, the majority decision in Slattery is of limited assistance. First, the version of s. 241(3) considered in Slattery is different from the version of that subsection before this court. In Slattery, the Supreme Court considered s. 241(3) of the Income Tax Act, S.C. 1970-71-72, c. 63. It read as follows: "Subsections (1) and (2) do not apply in respect of criminal proceedings, either by indictment or summary conviction, that have been commenced by the laying of an information, under an Act of the Parliament of Canada, or in respect of proceedings relating to the administration or enforcement of this Act or the Petroleum and Gas Revenue Tax Act."
68Second, the emphasis of Iacobucci J., writing for the majority, was the interpretation of the phrase "proceedings relating to the administration or enforcement of this Act". The exception for the purpose of criminal proceedings was given passing mention at para. 19. Therein, Iacobucci J. said that the "necessity" of disclosure of taxpayer information "is authorized in criminal proceedings and other proceedings as set out in s. 241(3)." In the same paragraph, he also referred to the exceptions in s. 241(4) which, at the time, had been described by the Court of Appeal for Ontario as "largely administrative in nature" (citing Glover v. Glover (No. 1), 1980 CanLII 63 (ON CA), 29 O.R. (2d) 392, at p. 397).
69Third, the issue on the appeal to the Supreme Court of Canada was whether bankruptcy proceedings fell within the scope of "proceedings relating to the administration or enforcement of" the ITA, within the meaning of s. 241(3). The Court was not dealing with a criminal matter.
70Turning to the substance of the decision in Slattery, Iacobucci J. considered the two connecting phrases used in s. 241(3): "in respect of" and "in relation to". He relied on the earlier decision of the Supreme Court in Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29. In Nowegijick, the Court was required to interpret the phrase "in respect of" in the context of a section of the Indian Act.
71At para. 22, Iacobucci J. relied on the following passage from page 39 of Nowegijick: "The words 'in respect of' are, in my opinion, words of the widest possible scope. They import such meanings as 'in relation to', 'with reference to' or 'in connection with'. The phrase 'in respect of' is probably the widest of any expression intended to convey some connection between two related subject matters." Justice Iacobucci concluded that those comments were equally applicable to "in relation to": Slattery, p. 446.
72Justice Iacobucci concluded that "both the connecting phrases of s. 241(3) suggest that a wide rather than a narrow view should be taken when considering whether a proposed disclosure is in respect of proceedings relating to the administration or the enforcement of the Income Tax Act": p. 446. With respect to the issue on the appeal, Iacobucci J. concluded that the subject of bankruptcy proceedings fell within the scope of s. 241(3).
73I agree with the Crown that, for the purpose of this application, the court is to give the phrase "in respect of", as it appears in s. 241(3) of the ITA, a broad interpretation.
74Such an interpretation supports the Crown's submission that the remoteness in time of the "criminal proceedings … that have been commenced" is not a relevant consideration. I agree with the Crown and find that Det. Oickle was entitled, as of early 2016, to rely on the 2013 Charges in support of the first letter sent to CRA. As of the date of that letter, the 2013 Charges remained unresolved. It was therefore open to the Crown to rely at the trial of the 2013 Charges on the taxpayer information provided in response to the first letter.
75I also find that Det. Oickle was entitled, as of May 2016 and June 2017, when the second and third letters were sent, to rely on any of the 2013 Charges and 2016 Charges which remained unresolved as against one or both of Adam and Shannon. It was therefore open to the Crown to rely at the trial(s) of those charges on the taxpayer information provided in response to those letters.
76My findings in that regard do not, however, determine whether the Crown is entitled, at the trials of the 2017 Charges, to rely on the taxpayer information provided in response to the Letters.
77The Crown submits that it is entitled to rely on the taxpayer information provided in response to the Letters, for charges not yet laid when the Letters were sent (i.e., the 2017 Charges). I reject that submission because it runs contrary to (a) the balancing required of taxpayer privacy interests and the interest of the state, and (b) an interpretation of s. 241(3) based on the language and structure of s. 241 as a whole.
78For the reasons that follow immediately below, I conclude that the fact that Det. Oickle was entitled to rely on the 2013 Charges and the 2016 Charges in support of requests made under s. 241(3) in relation to those charges does not give the Crown carte blanche in its use of the taxpayer information provided in response to the Letters.
Balancing Privacy Interests and the Interests of the State
79At page 444 in Slattery, Iacobucci J. reviewed the balancing of interests required and emphasized the importance of the privacy interests of taxpayers:
Section 241 reflects the importance of ensuring respect for a taxpayer's privacy interests, particularly as that interest relates to a taxpayer's finances. Therefore, access to financial and related information about taxpayers is to be taken seriously, and such information can only be disclosed in prescribed situations. Only in those exceptional circumstances does the privacy interest give way to the interest of the state.
80The importance of taxpayers' privacy interests was also emphasized in the decisions in Campbell and Perello: see paras. 61 and 63, respectively, above.
81McLachlin J. wrote the dissenting decision in Slattery. She concluded that (a) taxpayer privacy rights are of such significance that a narrow interpretation of s. 241(3) was required, and (b) the bankruptcy proceedings at issue on the appeal did not fall within the scope of s. 241(3).
82McLachlin J. considered the "structure" of s. 241 as it evolved over time: pp. 457-458. She highlighted that, after amendments were made to the ITA in 1966, the exemptions to the general prohibition of the disclosure of taxpayer information are few: p. 458. McLachlin J. described the disclosure of taxpayer information as being "permitted in specific criminal proceedings" and in proceedings relating to the enforcement of the ITA.
83I mention the dissenting decision of McLachlin J., not for the narrow approach taken to s. 241(3), but for the importance placed on the "structure" of s. 241. Reference to the "structure" of s. 241 is in keeping with the requirement to interpret and apply s. 241(3) based on the language and structure of the section and the ITA as a whole: Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at p. 49.
The Language and Structure of Section 241
84Section 241 is found in Part XV of the ITA, which is titled "Administration and Enforcement".
85Subsection 241(3) is the first of several subsections in which exceptions to the general prohibition against the provision of taxpayer information are set out. Subsections 241(3.1)-(3.5) establish specific, purposeful exceptions to that general prohibition. In summary, those exceptions are as follows:
s. 241(3.1) - The provision of "any taxpayer information related to imminent danger of death or physical injury to any individual";
s. 241(3.2) - The provision of taxpayer information related to "a registered charity, a registered Canadian amateur athletic association or a registered journalism organization";
s. 241(3.3) - The provision of taxpayer information, by the Minister of Canadian Heritage, "in respect of a Canadian film or video production certificate … that has been issued or revoked";
s. 241(3.4) - The provision of taxpayer information related to the digital news subscription tax credit (s. 118.02(2)); and
s. 241(3.5) - The provision to the public of "the name of any person or partnership that makes an application under s. 125.7" (which relates to remuneration of eligible employees and others within the film and video industry).
86While none of those exceptions are relevant to this application, they serve to highlight the approach taken in the Act to exceptions to the general rule. The degree of specificity found in the subsections described above is also found in s. 241(4).
87Subsection 241(4) includes the marginal note, "Where taxpayer information may be disclosed". The subsection is lettered from (a) to (t), with several of the lettered subsections including further subsections bearing Roman numerals. The subject matters covered in ss. 241(4)(a)-(t) include, for example,
the administration or enforcement of the ITA, the Canada Pension Plan, the Unemployment Insurance Act, or the Employment Insurance Act (s. 241(4)(a));
disclosure to an official within the Department of Finance for the formulation, evaluation, or administration of fiscal policy (ss. 241(4)(d)(i)-(ii));
disclosure to an official of the Canada Radio-television and Telecommunications Commission with respect to the enforcement or administration of a regulatory function of that commission (s. 241(4)(d)(xvii)); and
disclosure to any person for the purpose of administration and enforcement of a provincial law related to workers' compensation benefits (s. 241(4)(n)).
88The exceptions to the general prohibition are numerous, but specific. To a large extent, they relate to the administration or enforcement of federal and provincial statutes, the operation of government programs, and the functions of regulatory bodies.
89It is significant that the version of s. 241(4) considered in Slattery (a) was limited to three subsections, and (b) made no reference to an order under the Code. As of the early 1990's, both the Court of Appeal for Ontario (Glover) and the Supreme Court of Canada (Slattery) considered the exceptions set out in s. 241(4) to be "largely administrative in nature": see para. 68, above.
90Subsection 241(4)(e)(v) was added to the ITA by way of amendments made in 1993: Income Tax Act, R.S.C. 1985, c. 1 as amended by Income Tax Amendments Revisions – Schedule VIII, c. 7, s. 137(1).
91For ease of reference, I repeat that s. 241(4)(e)(v) states that an official may "provide taxpayer information, or allow the inspection of or access to taxpayer information, as the case may be, under, and solely for the purposes of … an order made under subsection 462.48(3) of the Criminal Code".
92Subsections 462.48(1)-(3) set out the procedure to be followed by the Attorney General when making an application to a judge for an order for disclosure of information "for the purpose of an investigation in relation to" certain offences, including possession of property obtained by crime (s. 354).
93In the context of an investigation of that kind, balancing between taxpayer privacy interests and the interest of the state is addressed by the combination of the evidentiary requirements and the substantive criteria to be met on such an application (ss. 462.48(2) and (3), respectively):
(2) An application under subsection (1.1) shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or a person specially designated by the Attorney General for that purpose deposing to the following matters, namely,
(a) the offence or matter under investigation;
(b) the person in relation to whom the information or documents referred to in paragraph (c) are required;
(c) the type of information or book, record, writing, return or other document obtained by or on behalf of the Minister of National Revenue for the purposes of the Income Tax Act, Part IX of the Excise Tax Act or the Excise Act, 2001 to which access is sought or that is proposed to be examined or communicated; and
(d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of any of the offences referred to in subsection (1.1) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to the investigation for the purposes of which the application is made.
Marginal note: Order for disclosure of information
(3) Where the judge to whom an application under subsection (1.1) is made is satisfied
(a) of the matters referred to in paragraph (2)(d), and
(b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents to which the application relates, having regard to the benefit likely to accrue to the investigation if the access is obtained,
the judge may, subject to any conditions that the judge considers advisable in the public interest, order the Commissioner of Revenue or any person specially designated in writing by the Commissioner for the purposes of this section
(c) to allow a police officer named in the order access to all such information and documents and to examine them, or
(d) where the judge considers it necessary in the circumstances, to produce all such information and documents to the police officer and allow the police officer to remove the information and documents,
within such period after the expiration of seven clear days following the service of the order pursuant to subsection (4) as the judge may specify.
94I consider s. 241(4)(e)(v) of the ITA in the context of s. 241 as a whole and in light of the requirements under s. 462.48(1)-(3) of the Code. I find that for the purpose of an investigation of potential charges, taxpayer information must be requested under s. 241(4)(e)(v) of the ITA and supported by an order made under s. 462.48(3) of the Code.
95I turn next to the practical implications of that interpretation and determine (a) whether the Drummonds' respective s. 8 Charter rights have been infringed and, if so (b) the remedies, if any, to which they are entitled under s. 24(2).
e) The Drummonds' Section 8 Charter Rights
96In light of the finding that Det. Oickle failed to follow the requisite procedure, have the Drummonds' s. 8 Charter rights been infringed?
97The analysis to be followed in answering that question was summarized by the Supreme Court of Canada in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 277-278. First, the court must determine whether the evidence establishes that the accused's Charter rights were infringed. At this stage of the analysis, the civil burden of proof (a balance of probabilities) applies.
98If the accused meets that onus, then the burden shifts to the Crown to establish, on a balance of probabilities, that (i) the search was authorized by law; (ii) the law itself was reasonable; and (iii) the manner in which the search was carried out was reasonable: Collins, at p. 278.
The Evidence Establishes that the Drummonds' Charter Rights Were Infringed
99For the reasons set out in the previous section of this ruling, I find that for the purpose of the investigation that led to the 2017 Charges, Det. Oickle was required to follow the procedure under s. 241(4)(e)(v) of the ITA. She was required to obtain an order under s. 462.48(3) of the Code for presentation to CRA in support of requests, pursuant to s. 241(4)(e)(v) of the ITA, for taxpayer information in the course of an investigation with respect to charges not yet laid.
100From the outset, Det. Oickle understood the difference between (a) investigation of drug-related (and other) charges already laid, and (b) a "financial investigation" of Adam and/or Shannon in relation to potential charges. When giving evidence in chief on the return of the application, Det. Oickle described herself as the lead on the file from the beginning of the drug investigation through the financial investigation.
101In each of the Letters, Det. Oickle identified charges that had been laid. With the first and second letters, she included copies of an Information related to charges already laid against Adam and/or Shannon. Det. Oickle relied in sequence on the 2013 Charges, the 2016 Charges, and charges laid against Shannon in March 2017 (not the 2017 Charges). In each of the Letters, Det. Oickle also referred to a "financial investigation … currently under way" of both Adam and Shannon to "determine the nature of their funds both personal and business."
102The relevance of the taxpayer information requested to the charges already laid was also made clear by CRA's responses over time. For example, in response to the first letter, CRA refused to produce the taxpayer information requested in relation to Shannon. The reason given by CRA for that refusal was that Shannon "has not been charged in this case and the information provided to support her involvement in the drug trafficking [i.e., the 2013 Charges] doesn't clearly show the relevancy". As another example, CRA twice refused to produce information related to Du Soleil Tanning because Det. Oickle failed to satisfy CRA of the relevance of that information to the charges already laid.
103Det. Oickle was blatant in her failure to follow the requisite procedure. In her third letter, sent in June 2017, the Detective informed CRA that Adam had pleaded guilty "to his previous charges" and was incarcerated. Assuming that statement to be correct (and even if it was not), Det. Oickle was not relying on any outstanding charges against Adam as of the date of the third letter. Yet, she continued to rely on s. 241(3) in support of her request for Adam's taxpayer information.
104In each of their three responses to the Letters, CRA was specific in identifying the purpose for which it was providing, and the use that could be made of, the taxpayer information. CRA also clearly identified the potential consequences of unauthorized use of that information. Each of the three CRA responding letters includes the following paragraph:
The taxpayer information provided is to be used only in the legal proceedings related to the Criminal Code charges which have been laid. It is not to be shared with any other parties or for any other purpose. The taxpayer information is confidential information and if a person contravenes s. 241(1) or knowingly contravenes an order made under subsection 241(4.1), that person is guilty of an offence under subsection 239(2.2) and liable on summary conviction to the following:
to a fine not exceeding $5,000, or
jail not exceeding 12 months, or
both.
105For the reasons set out above, I am satisfied on a balance of probabilities that, for the purpose of the 2017 Charges, the Drummonds' respective s. 8 Charter rights to protection from an unreasonable search were infringed.
The Search of the Taxpayer Information was not Otherwise Reasonable
106The burden shifts to the Crown to establish each of the three Collins factors in support of the Crown's request that the court conclude that the search of the Drummonds' taxpayer information was otherwise reasonable. In that regard, I make the following findings:
i) For the reasons already provided, the search of the Drummonds' taxpayer information for the purpose of investigation of charges yet to be laid was not authorized by law;
ii) The Drummonds do not challenge the constitutionality of s. 241(3) of the ITA. The law itself is reasonable; and
iii) For the reasons already provided in this section of the ruling, I find that the search of the Drummonds' taxpayer information – as it relates to the 2017 Charges – was unreasonable.
107The Crown has not discharged its burden. I find that the Drummonds' respective s. 8 Charter rights were infringed. Adam and Shannon were each the subject of an unreasonable search. To what relief, if any, are they entitled because of the infringement of their Charter rights?
f) Remedy Under s. 24(2) of the Charter
108The Drummonds rely on the remedy provided in s. 24(2) of the Charter:
Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
109There are two elements to the relief requested by the Drummonds based on the finding that their respective s. 8 Charter rights were infringed by the search of their taxpayer information. First, the Drummonds request an order under s. 24(2) of the Charter excluding the CRA Documents from evidence at trial.
110Second, the Drummonds request that references to the CRA Documents be excised from the ITOs upon which Det. Oickle relied in support of the applications for search warrants and for judicial authorization of investigative steps.
111The Drummonds also submit that they are, even without the benefit of a remedy under s. 24(2), entitled to the excision requested in the ITOs. That aspect of the Drummonds' submissions is dealt with in section (g) of this ruling immediately below and under Issue No. 2.
112I deal here with the request for the exclusion of the Documents from evidence at the trials on the 2017 Charges. The approach to be taken when determining a request of this kind was established by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 72. Three issues must be considered:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society's interest in the adjudication of the case on its merits.
113The court must then balance the assessments made with respect to each issue and determine whether the unlawfully obtained evidence will be admitted or excluded.
114In summary, the Drummonds submit that the balancing exercise required pursuant to s. 24(2) supports excluding the CRA Documents from evidence at trial. The Crown argues that the balancing exercise favours dismissing this aspect of the application.
115I consider each of the three factors listed in para. 111, above. I turn first to the seriousness of the Charter breach.
1. Seriousness of Charter-infringing State Conduct
116I find that Det. Oickle's failure to follow the requisite procedure falls at the more serious end of the spectrum of Charter breaches. Det. Oickle's choice to rely on s. 241(3) instead of s. 241(4)(e)(v) of the ITA is more than a technical shortcoming.
117Even disregarding the Detective's original reasons for proceeding as she did in early 2016, it was entirely unreasonable for her not to modify and correct her approach over time. Det. Oickle was cautioned three times by CRA about the use that could be made of the taxpayer information provided in response to the Letters. Det. Oickle's failure to respond to the cautions she received places her conduct at the more serious end of the spectrum of Charter breaches.
118This factor favours the exclusion of the CRA Documents from evidence at trial.
2. Impact of Breach on Accused's Charter-protected Interests
119Det. Oickle did not simply fall short of the statutory requirements for an investigation of the kind that led to the 2017 Charges. She completely missed the mark. I also consider that the Detective's failure to follow the requisite procedure spans a period of approximately 1.5 years – from February 2016 (first letter) to June 2017 (third letter) – and pervades the entire investigative process.
120The search of the Drummonds' taxpayer information, for the purpose of the 2017 Charges, was carried out without any of the judicial oversight to which the Drummonds were entitled.
121This factor favours the exclusion of the CRA Documents from evidence at trial.
3. Society's Interest in Adjudication of Case on its Merits
122With the first two Grant factors favouring exclusion of the CRA Documents from evidence at trial, it is unlikely that the third factor would tip the balance in favour of the admission of evidence: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.
123It is not known whether the Crown's case against Adam and/or Shannon will fail because of the exclusion of the CRA Documents from evidence at trial and/or the excision of references to them from the ITOs. Even if granting one or both of those remedies were to gut the Crown's case against Adam and/or Shannon, then that is the result of the manner in which Det. Oickle chose to conduct a search of taxpayer information.
124In any event, I find that the third Grant factor also favours the exclusion of the CRA Documents from evidence at trial. Individual privacy rights must be taken seriously. Det. Oickle's serious Charter-infringing state conduct with respect to the search of taxpayer information is not condoned. These factors outweigh the impact that excluding the CRA Documents from evidence at trial will have on the strength of the Crown's case.
125I am satisfied that, when the prospective view is taken of state conduct in this case, to permit the Crown to rely on the CRA Documents at Adam and Shannon's respective trials on the 2017 Charges would adversely affect the overall reputation of the justice system.
Summary
126The CRA Documents are excluded from evidence at Adam and Shannon's respective trials on the 2017 Charges. I deal next with the request for excision of information from the five ITOs sworn by Det. Oickle between July 2016 and May 2017.
g) Excision of ITOs
127The Drummonds submit that the excision from the ITOs of information based on the CRA Documents is relief that may be granted without recourse to s. 24(2) of the Charter. Support for that submission is found in R. v. Morelli, 2010 SCC 8, 2010 S.C.C. 8, [2010] Q S.C.R. 253, at para. 44. In addition, information obtained in breach of an accused person's Charter rights is to be excised from an ITO: R. v. Mahmood, 2011 ONCA 693, (2011) 107 O.R. (3d) 641, at para. 115.
128For the same reasons that the CRA Documents are excluded from evidence at trial, references to or paragraphs based on the contents of those documents are excised from the ITOs as a remedy granted to the Drummonds under s. 24(2) of the Charter. As a result, it is not necessary for me to consider whether those references and paragraphs would be excised without resort to s. 24(2).
129The paragraphs based on the taxpayer information provided by CRA in response to the Letters are to be excised from the ITOs. Those paragraphs are identified under Issue No. 2.
Issue No. 2 - What portions, if any, of the ITOs are to be amplified or excised?
130The Drummonds ask the court to review the five ITOs sworn by Det. Oickle in support of her requests for production orders and search warrants. Based on the ITOs, 16 production orders and three search warrants of physical premises were granted.
131The Drummonds ask the court to excise from the ITOs (a) information based on the CRA Documents; (b) information based on any illegally obtained evidence; and (c) other irrelevant, inflammatory, or prejudicial information. For two reasons, the Drummonds submit that this exercise must be done in sequence. First, information excised from one ITO and repeated in a subsequent ITO must be excised from the latter. Second, references to evidence excluded based on a sub-facial review of one ITO must be excised from subsequent ITOs.
132I agree with the Drummonds that a sequential approach is required. I start with the first ITO, sworn on July 12, 2016 ("ITO No. 1").
133Det. Oickle relied on ITO No. 1 in support of an application under s. 487.014 of the Code for six General Production Orders ("the Production Orders"). Before dealing specifically with ITO No. 1, I review s. 487.014 of the Code and the framework for challenging a General Production Order.
a) General Production Orders
Section 487.014 of the Code
134An application for a General Production Order may be made to a justice of the peace or a judge. To grant a General Production Order, the justice of the peace or judge must be satisfied "that there are reasonable grounds to believe that (a) an offence has been or will be committed under this or another act of Parliament; and (b) the document or data is in the person's possession or control and will afford evidence respecting the commission of the offence": s. 487.014(2).
Challenging a General Production Order
135The evaluation of the validity of a production order is based on the same principles that are applied when determining the validity of a search warrant: R. v. Clarke, 2016 ONSC 351, at para. 21 and citing Woodroffe v. (Peel Regional Municipal) Police, [2006] O.J. No. 1175 (S.C.J.). The principles to be applied include the following:
The affiant has an obligation to be full, frank, and fair in their disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46;
The obligation to be full, frank, and fair "is not a licence to include irrelevant information; invite propensity reasoning; … or offer opinions unsupported by essential factual underpinnings": R. v. Tran, 2019 ONCA 1011, at para. 18;
Police officers are not lawyers and are not expected to draft with perfection: Clarke, at para. 25;
Information that is misleading, is erroneous, is not sufficiently reliable, involves a strategic omission, or involves nondisclosure must be excised: Araujo, at para. 54.
Where the supporting ITO contains incomplete, misleading or misrepresentations of information with respect to the investigation, the production order may be held to be improper: Clarke, at para. 25.
136I turn, then, to the specific requests made by the Drummonds with respect to excision or amplification of the contents of ITO No. 1.
b) ITO No. 1 - Background
137Set out below is a summary of the investigative steps that preceded Det. Oickle swearing ITO No. 1:
February 1, 2016 - Det. Oickle receives the results of a search under the Personal Property Security Act ("PPSA") for Adam.
February 2, 2016 - Det. Oickle receives the results of a business name search for each of two Du Soleil Tanning locations, documents from Geowarehouse, and documents from the Land Registry Office.
February 19, 2016 - Det. Oickle sends her first letter to CRA.
March 8, 2016 - CRA responds to the first letter.
March 23, 2016 - Det. Oickle receives information from a colleague about a search being conducted at the Drummonds' home on that date. Det. Oickle ultimately learns that three credit card numbers and one bank card number are obtained from Adam's wallet during that search.
May 4, 2016 - Det. Oickle sends her second letter to CRA.
May 25, 2016 - CRA responds to the second letter.
June 2016 - Det. Oickle requests and receives information regarding the municipal property tax assessment for the Drummonds' home.
138On July 13, 2016, a justice of the peace granted the Production Orders with respect to Adam and Shannon. In summary, the orders provided for the production of the following documents:
From the Bank of Nova Scotia, for the period January 1, 2010 to July 31, 2016, copies of signature cards, customer client profiles, monthly statements (bank account and credit card), cheques, deposit slips, electronic transfers, mortgage applications and documents (related to the Drummonds' home), and any other financial instrument such as an RRSP, Mutual Funds, etc.;
From the National Bank of Canada, for the period January 1, 2010 to July 31, 2016, copies of documents related to a loan in the amount of $26,449 made to Adam with respect to the purchase of a Harley Davidson motorcycle;
From the Canadian Imperial Bank of Commerce, for the period January 1, 2010 to July 31, 2016, copies of documents – similar to those requested from the Bank of Nova Scotia – related not only to Adam and Shannon, but also to Du Soleil Tanning, Kemptville Convenience and Clothing, and DOA Apparel, with reference by number to three credit cards and a bank card;
From Equifax, consumer credit reports, profiles, and scores;
From Trans Union, consumer credit reports, profiles, and scores; and
From Evalon, a credit check on both Adam and DOA Apparel, proof of existence, application forms, and monthly statements for the period February 1, 2013 to April 30, 2014.
139I turn to the requests made by the Drummonds for excision and/or amplification of the contents of ITO No. 1.
c) ITO No. 1 - Excision and/or Amplification of Contents
140ITO No. 1 is 63 pages long and includes 179 paragraphs. The Drummonds identify three general categories of problematic paragraphs. The first category is paragraphs based on the CRA Documents; the second is paragraphs based on the contents of Adam's wallet as found on March 23, 2016; and the third is paragraphs which include irrelevant, prejudicial, and otherwise inappropriate information.
Paragraphs Based on CRA Documents
141For the reasons discussed in the concluding section under Issue No. 1 above, the paragraphs based in whole or in part on the CRA Documents are excised from ITO No. 1.
142In paras. 41 and 81 of ITO No. 1, Det. Oickle refers to her requests made under s. 241(3) of the ITA. These two paragraphs were not the subject of Defence Counsel's submissions on this application. Given the manner in which the Detective describes those requests, however, I find that paras. 41 and 81 are misleading and must be excised.
143In para. 41 Det. Oickle says "… I made a request pursuant to s. 241 of the Income Tax Act for the income tax records of Adam and Shannon Drummond that covered a five-year period prior to his most recent arrest." In para. 81, Det. Oickle explains that she relied on s. 241(3) of the ITA and identifies the income tax returns provided by CRA for each of Adam and Shannon.
144It would be misleading to leave the justice of the peace with the impression that Det. Oickle's requests of CRA for taxpayer information were made in compliance with the disclosure provisions under the ITA, when my finding is that they were not. For that reason, paras. 41 and 81 are excised.
145I deal next with the specific paragraphs raised on this application. I find that the following paragraphs of ITO No. 1 are based on the CRA Documents and, as a result, are excised in their entirety:
Para. 42 - Det. Oickle sets out the total income and the average income for each of Adam and Shannon over a five-year period;
Para. 82 - Det. Oickle explains that she provided the Drummonds' tax returns to a forensic accountant within the RCMP, who in turn prepared charts of the information from the returns. The charts are included in the ITO; they provide both individual and collective information regarding the Drummonds' income as reported to CRA; and
Para. 83 - Det. Oickle relied on the CRA documents to prepare an employment history for each of Adam and Shannon on a year-by-year basis. Also problematic is the "Affiant Note" that follows para. 83. Det. Oickle therein questions the fact that Adam, as the sole proprietor of several businesses, did not file any income tax returns for those businesses. I find that the note is misleading. Det. Oickle provides no basis for her suggestion that there was something inappropriate or wrong with the manner in which Adam reported income from these businesses; and
Para. 136 - Based on the CRA Documents, Det. Oickle learned that Adam had Mutual Funds with the Canadian Imperial Bank of Commerce ("CIBC") for investment purposes.
146I deal next with another paragraph not identified by Defence Counsel as based on the CRA Documents. In para. 141, Det. Oickle refers to a loan taken out by Adam with the National Bank of Canada in relation to a Harley Davidson motorcycle. Det. Oickle concludes that paragraph by expressing her belief that information about payments made and the balance remaining on the loan "is important in relation to Adam Drummond['s] financial situation, specifically his ability to pay a loan when he has very low reported annual income."
147I find that the reference to "very low reported annual income" could only be based on the CRA Documents. As a result, the final sentence in para. 141 is excised.
148The Drummonds originally requested that paras. 170-175 be excised in their entirety. On the return of the application, the Drummonds abandoned their request that para. 171 be excised.
149In para. 170, Det. Oickle states that Adam has a "long history involving the police". She refers to the prior conviction for drug trafficking (without identifying the year) and the charges Adam was facing as of the date of the ITO. The descriptor "long history" is excised as irrelevant and opinion. The reference to the prior conviction for drug trafficking is also excised (for the reasons given in paras. 198-200, below). The charges that Adam was facing as of the date of the ITO would be relevant; the reference to them remains.
150Det. Oickle begins para. 172 by referring to the Drummonds' total income in each of "the last five years". She identifies that the Drummonds' total income never exceeded $50,000 and had, in at least three of those years, been $25,000 or less.
151Thereafter, Det. Oickle expresses her belief or opinion that the Drummonds have "an unreported source of income" (para. 172), "their assets far outweigh their income" (para. 173), and they purchased two businesses "without the income to support it" (para. 174). In para. 175, Det. Oickle expresses her belief that "income declared by Adam and Shannon and the money they are spending don't support the lifestyle they are living … [and] they are supplementing their income through the sale of cocaine."
152I find that without the benefit of the CRA Documents about the Drummonds' income, Det. Oickle does not otherwise provide a basis for the beliefs and opinions set out in paras. 172-175. Those paragraphs are excised in their entirety.
Paragraphs Based on Information from Adam's Wallet
153The Drummonds request that paragraphs 43(h) and 123 be excised, because they are based on information obtained from an allegedly warrantless search of Adam's wallet (i.e., the search executed on March 23, 2016 at the Drummonds' home).
154In paras. 43(h) and 123 of ITO No. 1, Det. Oickle refers to four "bank cards located in Adam Drummond's wallet located in the master bedroom". In para. 123, Det. Oickle explains that she learned about the bank cards sometime after the date of the search, when reading the notes made by a detective involved in the search. Det. Oickle describes each of the four cards by the name of the financial institution and the number on the card. Three cards are from CIBC and one is from Scotia Bank. Det. Oickle also refers to the Scotia Bank card in para. 134 and to the three CIBC cards in para. 138.
155The Drummonds submit that the search of Adam's wallet was an infringement of his right, under s. 8 of the Charter, to protection against an unreasonable search. In support of that submission, the Drummonds rely on Det. Oickle's discovery evidence with respect to the events of March 23, 2016.
156The Crown's position is that there is insufficient evidence to support a conclusion that the search of the wallet was unreasonable. I agree with the Crown.
157When cross-examined at discovery in October 2018, Det. Oickle explained how she became aware that the search was being conducted at the Drummonds' residence. Det. Oickle testified that, upon learning of the search, she attended at the Kemptville detachment of the OPP that morning in an effort to further her financial investigation of the Drummonds.
158The Drummonds rely on one or two exchanges between Det. Oickle and O.P.P. Detective Currie regarding (a) the nature of the search authorized by the warrant executed on March 2016, and (b) what assistance, if any, Det. Currie would give Det. Oickle. It is unclear from Det. Oickle's discovery evidence whether there was a single exchange by telephone, before Det. Oickle attended at the detachment, or a telephone exchange and a second exchange once Det. Oickle arrived at the detachment. The number of such exchanges is not, in any event, relevant.
159Based on the transcript from Det. Oickle's discovery, I find that the evidence with respect to the exchange between Detectives Oickle and Currie is limited to the following. Det. Oickle made an inquiry of Det. Currie as to whether the search, as authorized, included "any financials". Det. Currie responded that it did not include "financials".
160For several reasons, that evidence is insufficient to support a conclusion that the search of Adam's wallet on March 23, 2016 was unauthorized. First, the information from Det. Currie is hearsay; the Drummonds rely on it for the truth of its contents.
161Second, even if the evidence as to Det. Currie's response were admissible (which it is not), the generic reference by both detectives to the term "financials" is insufficient to support a conclusion that the search of Adam's wallet was warrantless or otherwise unreasonable.
162Third, Det. Oickle acknowledges that she has never read the ITO filed in support of the request for the search warrant. She is unable to confirm whether Det. Currie's summary description of the requests made is accurate.
163The request for paras. 43(h) and 123 to be excised is denied.
Other Paragraphs
164The Drummonds submit that other paragraphs must be excised from ITO No. 1 because they include one or more of opinion, unrelated criminal history, inflammatory information, misleading information, unsourced information, irrelevant information, and prejudicial information. They also request that a small number of the paragraphs be amplified.
Paragraph 27
165I start with para. 27, in which Det. Oickle states the following:
I conducted a background check regarding Adam Drummond where I learned that he had an extensive criminal record and that he was believed to be a member of the Outlaw Motorcycle Gang known as "the Outlaws". I believe this to be an organized crime group that is a rival to the Hell[s] Angels Motorcycle Club.
166I agree with the Drummonds that the reference to an "extensive criminal record" is inappropriate. An affiant must take care to include only criminal history that is "unquestionably relevant": R. v. Perkins, 2013 ONSC 1807, 279 C.R.R. (2d) 224, at para. 79. Including information about a criminal record for an offence similar to the one at issue on the application would, however, be appropriate: Perkins, at para. 80.
167I also find that the use of the descriptor, "extensive" is a matter of Det. Oickle's opinion and therefore not properly part of the ITO. For those reasons, the first portion of para. 27 is excised.
168In support of the request for excision of matters of opinion, the Drummonds rely on the Supreme Court of Canada decision in R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469. That case does not, however, provide support for this proposition. In that case the Supreme Court of Canada considered the editing process in which a trial judge engaged prior to disclosing to defence counsel the contents of an ITO with respect to a wiretap authorization. Support for the submission is, however, found in Tran, at para. 18.
169In a later section of the ITO, Det. Oickle repeats her stated belief that Adam is a member of the Outlaws and provides, in detail, the basis for that belief: see paras. 51-54 of ITO No. 1. I consider the balance of para. 27 when dealing with those paragraphs below.
Paragraph 31
170This is the first of several paragraphs that the Drummonds ask to be amplified. It says, "On August 24th, 2013, Adam Drummond was released on bail with his mother and wife as his sureties. Adam Drummond was given release conditions. He is currently awaiting trial on this matter." The Drummonds request that the paragraph be amplified to reflect that the matter had yet to be set for a trial or a plea. They submit that without the requested amplification the paragraph is misleading.
171I find that the amplification requested places too fine a point on the circumstances. The phrase "awaiting trial" does not negate a possible plea. It was not necessary for the Detective to be any more specific than she was. In any event, there is no evidence before the court to support the amplification requested by the Drummonds. There is no evidence as to the status of the 2013 Charges as of July 2016 when ITO No. 1 was sworn by Det. Oickle.
Paragraph 38
172I next consider para. 38, in which Det. Oickle makes the following statement about her observations of the Drummonds:
While working as a drug investigator in Grenville County, I observed that Adam Drummond and his wife Shannon were living an extravagant [lifestyle] and had acquired numerous assets including vehicles and property that I suspected were purchased with the proceeds obtained from the commission of criminal offences namely the trafficking of controlled drugs and substances.
173The Drummonds request that the paragraph be excised, because the opinions expressed are not substantiated. The Crown's position is that the opinion is substantiated by the contents of paras. 39-43.
174I note, however, that para. 42 includes the CRA information – regarding the Drummonds' total and annual income over a five-year period. That paragraph is excised from the ITO: see para. 145, above.
175In paras. 43(a)-(f), Det. Oickle reviews the Drummonds' ownership of a home, Adam's ownership of two motorcycles (one of them a 1984 model), Adam's ownership of a 2014 motorcycle trailer, and Shannon's ownership of two vehicles (2009 and 2010 models).
176I find that the information with respect to the Drummonds' assets is not sufficient to support either an opinion or a belief that the Drummonds were leading an "extravagant lifestyle": Tran, at para. 18.
The information with respect to the home is that the Drummonds purchased it for $235,000 with a mortgage of $221,546 – meaning that as of the date of purchase, the equity in the home was at most $13,000 (para. 43(a));
The newest of the assets listed is Adam's Harley Davidson. The value of the lien on the motorcycle is almost equivalent to its present value (para. 43(b)). I draw an inference and find that the purchase of the motorcycle was almost fully-financed;
The fact that Adam owns a 32-year old motorcycle (the 1984 Yamaha) on which there are no liens, is not indicative of an "extravagant" lifestyle (para. 43(c)); and
The vehicles that Shannon owned are the only two vehicles owned by the couple. The vehicles were six and seven years old when ITO No. 1 was sworn (para. 43(f)).
177I find that the use of the descriptor, "numerous" in reference to two motorcycles, two vehicles, and a motorcycle trailer is unfair. In summary, Det. Oickle's description of the Drummonds' assets is subjective and unsupported by any other information in the ITO.
178For those reasons, para. 38 is excised.
Paragraphs 43(a)-(f)
179In paras. 43(a)-(f), Det. Oickle sets out information regarding the Drummonds' home, the two motorcycles, the motorcycle trailer, and the two vehicles. The information in those paragraphs is summarized in para. 176, above. The Drummonds ask that all of that information be excised as "unsourced".
180That request is denied. In paras. 93-121, Det. Oickle explains how she gathered the information with respect to the Drummonds' assets. She describes the various searches she conducted (PPSA, Land Registry Office, etc.). The information set out in paras. 43(a)-(f) is based on the results of searches conducted of publicly available information. Those searches did not engage any privacy interests.
181The only problematic portion of paras. 93-121 is the Affiant Note that appears at the end of para. 121. In that note, Det. Oickle addresses when the Harley-Davidson, motorcycle trailer, and one of Shannon's vehicles were purchased:
The Audi, the Harley Davison and the Trailer were all purchased in the last 3 years. The Harley Davidson is the only asset that has a lien. The lien on the Harley is for $26,449. [Adam] was able to obtain a loan for more than their combined income last year which makes [me] question if he lied to obtain the loan or was he able to provide another source of income which was not reported to CRA.
182The Detective does not provide any information as to the cost of the motorcycle trailer. The purchase of the Harley-Davidson was almost fully-financed. The 2009 Audi was anywhere between four and six years old when purchased.
183With Det. Oickle unable to rely on information from the CRA documents, the final sentence of that note is excised. I would, in any event, excise the final sentence of that note because there is no objective foundation for it.
Paragraph 43(g)
184In this paragraph, Det. Oickle refers to cash, in the amount of $4,882.25 seized from the Drummonds' home during the March 23, 2016 search. She describes the cash as "packaged suspiciously". The Drummonds ask that the paragraph be amplified to explain that neither of them was charged with a proceeds of crime offence following that search. Alternatively, the Drummonds ask that the paragraph be excised.
185The Crown opposes both requests. The Crown emphasizes that nowhere in the ITO does Det. Oickle state that the March 2016 search resulted in a charge related to proceeds of crime. The Crown also points to the more detailed description of the packaging, set out in para. 124. In that paragraph, Det. Oickle explains that the money was found in the kitchen and in the master bedroom. Some of the money was wrapped, some was in an envelope, and some was found loose on a bedside table.
186I agree with the Crown that nowhere in the ITO does Det. Oickle connect the March 2016 search to a proceeds of crime charge. That does not mean, however, that the reader is or may not be left with the impression that the seizure of that amount of cash, packaged as described by Det. Oickle, did not lead to a proceeds of crime charge.
187In paragraph 2, Det. Oickle lists the charges that each of Adam and Shannon were facing as of July 2016, when ITO No. 1 was sworn. The charges against Adam include possession of property obtained by crime (s. 354(1)(a) of the Code). Det. Oickle does not set out when that charge was laid.
188In a later section of the ITO, detailing the August 2013 search at DOA Apparel, Det. Oickle lists the items seized on that day, including $910 in Canadian Currency: see para. 67, item b of the ITO. She does not therein identify that the charge against Adam under s. 354(1)(a) stems from the August 2013 search and not from the March 2016 search.
189A charge based on $910 in cash creates a different impression than one based on $4,880 in cash. I find that the reader could be left with the impression that the charge under s. 354(1)(a) was laid subsequent to the March 2016 search and not subsequent to the August 2013 search.
190I agree with the Drummonds that it is misleading not to identify somewhere in the ITO that the charge of possession of property obtained by crime stems from the August 2013 search of DOA Apparel and not from the March 2016 search of the Drummonds' home. The paragraph is therefore amplified to include a statement that the Drummonds were not charged in relation to the money found on March 2016: Araujo, at paras. 51-53.
191I also find that it is both inaccurate and misleading to describe all of the cash found on March 23, 2016 as packaged "suspiciously". For example, two packets of money were wrapped in paper, one packet was in protective plastic, some money was found in a bank envelope, and some was found loose on a bedside table.
192The descriptive portion of para. 43(g) is therefore excised.
Paragraph 43(i)
193Det. Oickle states in this paragraph that "Adam and Shannon Drummond have taken international vacations during the months of January-February in 2013, 2014, and 2015 respectively." The Drummonds ask that this paragraph be excised as irrelevant. The Crown's position is that the travel is relevant to the couple's spending habits and, in turn, the investigation of financial crimes.
194I agree with the Crown that the extent of a person's travel is relevant to the financial crimes being investigated. If anything, I might be concerned with the use of the term "international" without more specific information. For example, a road trip to the United States would be an international trip; but it is different in character than a trip, by air, to another continent. To require that the descriptor "international" be excised would be to hold Det. Oickle to a standard above that which she was required to meet.
195The request for para. 43(i) to be excised is denied.
Paragraph 45
196In this paragraph, Det. Oickle expresses the following belief: "Based on the information I have gathered so far, I believe that the income declared by the Drummonds and their spending habits do not support their lifestyle. I believe that they are supplementing their income through the proceeds from the trafficking of illicit substances namely cocaine." I find that one of the bases for the belief expressed is the Drummonds' income as reported to CRA and the other information available to the Detective from the CRA Documents. Without the taxpayer information, Det. Oickle would not have been in a position to formulate that opinion.
197For those reasons, para. 45 is excised.
Paragraph 48
198In this paragraph, Det. Oickle lists the offences for which Adam was convicted in 2001, 2002, and 2007. The two offences for which Adam was convicted in 2001 were failure to comply with a recognizance (s. 145(3) of the Code). In 2002, Adam was convicted of two offences under the CDSA (ss. 4(1) and 5(4)). The convictions in 2007 were for assault, uttering threats, and mischief (ss. 266, 264.1(1)(a), and 430(1)(a), respectively, of the Code).
199Only criminal history that is "unquestionably relevant" is to be included in the ITO: Perkins, at para. 79. I find that the 2001 offences are in no way relevant; the 2002 offences are too remote to be relevant (14 years later); and the 2007 offences, while potentially relevant, are not "unquestionably relevant".
200As a result, paragraph 48 is excised.
Paragraphs 49-50
201In paragraph 49, Det. Oickle lists charges laid against Adam in 2006 or 2007 and which were withdrawn. In paragraph 50, she refers to "over 150 entries under Adam's name" which include "numerous entries of interest". Det. Oickle lists five such entries, some of which include references to potential "drug activity". Another entry refers to the receipt of an anonymous tip that an individual might be picking up cocaine from "Dough boy" (a nickname by which Adam was said to be known).
202The inclusion of data from a police investigation that did not lead to criminal charges is rarely relevant and largely prejudicial: see Perkins, at para. 80. For that reason, paragraphs 49 and 50 are excised.
Paragraphs 51-54
203This section of ITO No. 1 is titled "Association with Outlaw Motorcycle Gangs". I deal with each of paras. 51-54 in sequence.
204Det. Oickle begins para. 51 with the following statement: "I have knowledge that Adam Drummond was a member of the Outlaw Motorcycle Gang and is currently a member of the Hells Angels Motorcycle Gang." The Detective does not, in that paragraph, state the source of that information. She does, however, in para. 54 list a series of incidents noted in "Niche RMS" in which Adam is observed with members of the Outlaw Motorcycle Club and/or wearing attire associated with that club, the Hells Angels, or the Nomads. Those incidents date from 2011 through 2015.
205Also in para. 51, Det. Oickle sets out her personal observations of Adam wearing an Outlaw Motorcycle Gang vest. She says that she has seen him wearing the vest on "numerous occasions". Det. Oickle also refers to what she describes as Adam's Hells Angels Motorcycle Gang vest, seized from the Drummonds' home during the March 2016 search.
206I am satisfied that the information set out in paras. 51 and 54 is objective foundation for Det. Oickle's "knowledge" of Adam's involvement with the Outlaw Motorcycle Gang and the Hells Angels. I find that it was reasonable for Det. Oickle to set out the extent to which she understood that Adam was or is associated with the Outlaw Motorcycle Gang and the Hells Angels: R. v. Clairoux, 2012 ONCJ 879, at para. 31. The descriptor "numerous", in terms of personal observations, would be troubling were it not for the six incidents listed in para. 54.
207In para. 52, Det. Oickle essentially summarizes the process, as she understands it, for membership in the Outlaw Motorcycle Gang. She introduces the summary with the following statement: "During the course of my organized crime investigation, I have learned the following from Bike Enforcement presentations conducted by experts in outlaw motorcycle gangs".
208I find that the information set out in para. 52 is not sufficiently supported. Det. Oickle does not describe in any way the nature or number of "organized crime investigation[s]" in which she has been involved. She does not identify the number of "Biker Enforcement presentations" which she has attended or in what years she attended them. She does not identify who the "experts" are who made the presentations. If she wanted to rely on expert opinion evidence in that regard, she had to go about it a different way: R. v. McGean, 2016 ONSC 3541, at paras. 45-51. For those reasons, para. 52 is excised.
209I return briefly to para. 27 (see paras. 165-169, above). In the final sentence of that paragraph, Det. Oickle makes the following statement about the Outlaw Motorcycle Gang: "I believe this to be an organized crime group that is a rival to the Hells Angels Motorcycle Club." I find that Det. Oickle did not provide an objective foundation for that belief. There is insufficient evidence to permit the court to conclude that Det. Oickle has the requisite expertise to express an opinion in that regard. The final sentence of para. 27 is therefore also excised. That leads to the result that para. 27 is excised in its entirety.
210In para. 53, Det. Oickle includes a photograph of what a Hells Angels Quebec insignia looks like. The Detective makes no mention of Adam being associated with a Quebec-based chapter of the Hells Angels. She provides no explanation as to whether there are any differences between insignias for chapters from one province to another. As a result, it is difficult to assess the relevance of the photograph. Given the lack of evidence to support the relevance of the photograph, that paragraph is excised.
211In summary, paras. 51 and 54 remain and paras. 27, 52, and 53 are excised.
Paragraph 64
212In this paragraph, Det. Oickle describes the execution of the search warrant at DOA Apparel in August 2013. Both Adam and Shannon were present during all or part of the search; both are said to have attempted to touch or move items that were under the counter below or near the cash register. The Drummonds submit that this paragraph should be excised because it contains irrelevant information. The Crown made no submissions specifically in relation to this paragraph.
213The evidence is that, during this search, cash of approximately $910 was seized from Adam personally and that no money was seized from the cash register. I find that the Detective's observations of the Drummonds' behaviour is irrelevant: Tran, at para. 18. As such, the fourth and sixth sentences of paragraph 64 are excised. The balance of the paragraph remains.
214The Drummonds ask that the paragraph be amplified to identify that the charges against Adam stemming from the August 2013 search had not yet been resolved. That issue is addressed in another paragraph (see para. 171, above). That information did not need to be repeated in paragraph 64.
Paragraph 85
215In the section of the ITO titled "Businesses", Det. Oickle provides background information about each of DOA Apparel, Kemptville Clothing and Convenience, and Du Soleil Tanning. In para. 85, the Detective describes DOA Apparel as a store with "a large inventory of urban clothing, skateboards, and drug paraphernalia." She concludes the paragraph by stating that when the search warrant was executed in August 2013, the "police seized a large quantity of drug paraphernalia which would have impacted [Adam and Shannon] financially."
216The Drummonds ask that the final sentence be excised because it is Det. Oickle's unsubstantiated opinion. The Crown submits that the sentence should remain, as it is based on a reasonable inference drawn by the Detective.
217I agree with the Drummonds. The final sentence is broad opinion. The reader cannot know what is meant by "a large quantity". The suggestion that the Drummonds were impacted financially following the seizure of those items is not objectively supported.
218The final sentence of paragraph 85 is excised.
Paragraph 92b
219Det. Oickle carried out a Facebook search for Du Soleil Tanning. In paras. 92a and 92b she quotes from some of the postings. Paragraph 92b describes a posting identifying that a tanning bed is for sale: "Our Smiths Falls location is selling one of our ergoline 600 classic beds if anyone is interested send us a message for price, must be picked up, we need space for our new sunboard bed."
220The Drummonds are not concerned about the inclusion of the Facebook post. Their concern is with respect to the Affiant Note that appears following the posting. The Drummonds ask that the note, quoted immediately below, be excised as unsourced opinion:
I believe that Adam and Shannon own their tanning beds as opposed to renting them based on this post. I did an internet search for a used Ergoline 600 Classic Tanning bed. On the website http://tanning bedcompany.com I found an ad for a used Ergoline 600 for $4,995 USD. I also did a search for a Sunboard tanning bed on the same site and found a used one selling for $12,995 USD. Tanning beds are quite expensive. I assume there would be a least 5 tanning beds per location. If all the tanning bed[s] cost around $5,000 CND [sic], that would be a $50,000 investment.
221I agree with the Crown that the first portion of the Affiant Note is sourced – ending with the price of a Sunboard tanning bed. I find, however, that the balance of the note is either opinion ("quite expensive") or not objectively supported (the number of tanning beds and their overall cost).
222The final three sentences of the Affiant Note that follows para. 92b are excised.
Paragraphs 100 and 101
223Det. Oickle conducted a variety of searches that were available to her – without judicial authorization – and garnered information related to Adam's driver's licence, home address, the motorcycles, and the motorcycle trailer. Det. Oickle set that information out in para. 100. I find no reason to excise this paragraph, or any portion of it, from the ITO. The assets possessed by Adam and Shannon are relevant to a proceeds of crime investigation.
224In paragraph 101, Det. Oickle says, "Several searches were conducted in regards to [the Harley Davidson motorcycle] including MTO, PPSA, and internet yielding the results listed below." I see no reason to excise this paragraph. It does nothing more than refer to the various searches conducted that were available to the Detective without a warrant.
Paragraphs 125b
225Shannon was interviewed by the police on March 23, 2016, in conjunction with the search carried out that day at the Drummonds' home. In paragraph 125b, Det. Oickle identifies that Shannon is reported to have said that "she had no idea that the Hell[s] Angels traffic drugs … her husband only just got involved in this."
226The Drummonds ask that para. 125b be excised as irrelevant, uncharged conduct, inflammatory, and prejudicial. They submit that there is no explanation as to what Shannon meant when she spoke of Adam's involvement in "this". Did she mean the Hells Angels or trafficking drugs? The Crown submits that the statement forms part of the Detective's reasonable and probable grounds for believing that the Drummonds committed proceeds of crime offences.
227I agree with the Drummonds that the ambiguity of the statement is such that it is misleading. Paragraph 125b is excised.
Paragraph 126
228Det. Oickle once again refers to the Drummonds' travel history. She states that she is aware that the Drummonds "have been on vacation the last two years". She identifies that she has that information because of Adam's reporting requirement. For the reasons set out above with respect to the Drummonds' "international trips", I find that this paragraph is relevant and there is no basis for it to be excised: see paras. 193-195, above.
d) ITO No. 1 – Summary
229More than 40 paragraphs, including sub-paragraphs, are addressed in this section of the ruling. For efficiency, I summarize the outcome of the review of the contents of ITO No. 1 in the chart attached as Schedule A to this ruling,
230The next step in the process is to consider the edited version of ITO No. 1 to determine whether that version of the document includes reliable evidence that might reasonably be believed and form the basis upon which the Production Orders could have issued.
Issue No. 3 - Based on a review of the ITOs, what evidence, if any, is to be excluded?
a) Test on Review of ITOs
231The editing of ITO No. 1 under Issue No. 1, above, was carried out in the context of a sub-facial review of the document. With the editing process complete, the next step in the analysis is for the court to determine whether the edited version of ITO No. 1 provides "reliable evidence that might reasonably be believed on the basis of which the [Production Orders] could have issued" (emphasis in original): Araujo, at para. 54.
232It is not a question of whether this reviewing court would, on the basis of the edited version of ITO No. 1, have granted the Production Orders requested. The question is whether there was sufficient credible evidence, in the edited version of ITO No. 1, to permit the justice of the peace to conclude "that there are reasonable grounds to believe that (a) an offence has been or will be committed under this or another Act of Parliament; and (b) the document or data is in the person's possession or control and will afford evidence respecting the commission of the offence": s. 487.14(2) and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
b) ITO No. 1 and the Production Orders
233As of July 2016, when ITO No. 1 was sworn, the 2013 and 2016 Charges remained unresolved and Adam remained incarcerated because he was not released on bail immediately following the 2016 Charges. Also, as of that date, only Adam was charged with possession of property obtained by crime (s. 354(1)(a) of the Code). That charge was based on the $910 seized from Adam personally during the August 2013 search of DOA Apparel.
234Det. Oickle begins ITO No. 1 by listing the 2013 Charges and 2016 Charges. With respect to each of the Production Orders, she states that she has "reason to believe that the [documents requested] will afford evidence respecting the commission of [the 2013 Charges and 2016 Charges]". In that regard, she means the charges as against each of Adam and Shannon.
235At para. 39, Det. Oickle says, "In January 2016, I initiated a financial investigation regarding the drug activities of Adam Drummond stemming from the OPP investigation in 2013." She does not identify Shannon as a subject of the financial investigation at that time.
236At para. 43, Det. Oickle describes her work on the financial investigation as including conducting "numerous indices checks to identify those assets that Adam and Shannon Drummond may have in their possession to assist in the analysis in the development of the Drummond family profile." Addressing the "reasonable grounds" criterion under s. 487.014, at para. 46, Det. Oickle makes the following statement: "I believe on reasonable grounds that Adam Drummond and Shannon Drummond are in possession of property obtained by crime." The Detective then indicates that she will, in the balance of the ITO, set out the grounds for this belief.
237Det. Oickle does not explicitly state that she is carrying out a financial investigation for the purpose of determining whether any additional charges may be laid against Adam and Shannon. A conclusion to that effect must be inferred from the contents of the ITO, specifically as they relate to Shannon because she had not yet been charged with the offence of possession of property obtained by crime.
238At paras. 74-80, Det. Oickle provides an overview of a proceeds of crime investigation. For example, she describes conducting a net worth analysis and a comparison of income and expenses. At paras. 129-131, Det. Oickle identifies that she is working with a forensic accountant ("Mr. Hicks"). She explains the type of information that Mr. Hicks requires to conduct his analysis of Adam's and Shannon's respective and collective financial situations. Det. Oickle understands that because of the potential for co-mingling of assets between spouses, financial records for both Adam and Shannon are relevant.
239In summary, Det. Oickle explains the relevance to the investigation of the records that are the subject of the Production Orders, as follows:
Bank of Nova Scotia: The mortgage for the Drummonds' residence (which is in Adam's name only) is with the Bank of Nova Scotia. In addition, a Scotiabank credit card (the name of the holder of the card is not provided) was found in Adam's wallet during the March 2016 search at the Drummonds' home. At para. 135, Det. Oickle says, "Accounts from the Bank of Nova Scotia will provide insight into the Drummond[s'] financial situation and will create a baseline for the Proceeds of Crime investigation. The accounts will show the balance and use of funds from the account."
"CIBC": Documents seized from DOA Apparel in August 2013 showed customer account information with CIBC. In addition, a CIBC credit card and convenience card, both in Adam's name, were found in Adam's wallet in March 2016. Last, a CIBC small business card was found in Adam's wallet in March 2016. At para. 139, Det. Oickle repeats the statement made at para. 135 (quoted above), in relation to CIBC. She adds that "[t]heir business account will provide information in relation to their employment income."
National Bank of Canada: The loan taken out by Adam to finance the purchase of the Harley-Davidson motorcycle is with this bank. Det. Oickle says that she believes that the information from this bank will show "the amount of money that has been paid on this loan and the current balance": para. 141.
Trans Union and Equifax: Both companies are credit bureaus and provide credit history information for individuals and others. Information is generally available to the police from these companies. However, with a General Production Order the police are able to obtain more information from these companies. At para. 157, Det. Oickle states that the credit reports "will show what creditors they have during the time period of criminality and will be the basis for deciding what accounts will be the subject of further Production Orders."
Evalon: From the August 2013 search at DOA Apparel, Det. Oickle identified that the business relied on "Evalon" for point-of-sale solutions – meaning debit and credit purchases processed at the store. Det. Oickle says, at para. 160, that the credit report information "will be compared to CRA filings and daily reports located inside the business to determine the profitability of the business."
240Does the edited version of ITO No. 1 provide reliable evidence that might reasonably be believed on the basis of which the Production Orders could have issued?
c) Analysis
241There are two criteria for a General Production Order to be granted. First, the justice of the peace or the judge must be satisfied that there are reasonable grounds to believe that an offence has been or will be committed under the Code or another Act of the Parliament of Canada. Second, the justice of the peace or the judge must be satisfied that there are reasonable grounds to believe that document or data is in the possession or control of the person who is the subject of the order requested and will afford evidence respecting the commission of the offence.
242Dealing with the first component, I am satisfied that the evidence as to the offences with which each of Adam and Shannon had been charged, and which remained unresolved, as of July 2016 constitutes "reliable evidence that might reasonably be believed on the basis of which [the Production Orders] could have issued": Araujo, at para. 54.
243In addition, ITO No. 1 addresses the potential for further charges to be laid on the basis of the financial investigation which Det. Oickle commenced in January 2016. I find that the evidence of the multiple charges of possession for the purpose of trafficking, the cash found in 2013, the cash found in 2016, and the observations made and knowledge of Adam's alleged involvement with the Outlaw Motorcycle Club and the Hells Angels constitute additional "reliable evidence that might reasonably be believed on the basis of which the [Production Orders] could have issued" for the purpose of additional charges: Araujo, at para. 54.
244Turning to the second component of the criteria for a General Production Order to be issued, I am satisfied that the explanations provided by Det. Oickle as to why she was seeking documents from each of the six institutions constitute the requisite evidence. I find that the justice of the peace might reasonably have believed that the document or data sought would afford evidence respecting either the commission of the historical offence (Adam's 2013 Charges) or potential future charges.
245ITO No. 1 was sworn, and the Production Orders were obtained as the first judicially authorized step in an investigation that lasted approximately 1.5 years. Det. Oickle explained the type of financial analysis that would be carried out and how the various documents sought would factor into that analysis. She also stated that she anticipated seeking other General Production Orders once she had the documents from the Bank of Nova Scotia, etc. The Production Orders were but one in a series of building blocks in the financial investigation.
246The fact that the CRA Documents are not available – as evidence of reported income – to support the request for the Production Orders does not detract from the balance of the information set out in ITO No. 1. Information about actual income was not required to support a reasonable belief that the document or data sought would afford evidence respecting either the commission of the historical offence or potential future charges.
d) Summary
247The request for the documents obtained pursuant to the Production Orders to be excluded from evidence at the trial of the 2017 Charges is dismissed.
Disposition
248For the reasons set out above, I make the following order:
The CRA Documents are excluded from evidence at Adam and Shannon's respective trials on the 2017 Charges.
The application to exclude the documents and data obtained pursuant to the six General Production Orders issued based on ITO No. 1 is dismissed.
Next Steps
249The next step in this process is for the court to repeat Issue Nos. 2 and 3 for each of ITO Nos. 2-5. Before continuing that process, however, the parties are to appear before me for the continuation of the application. They are required to do so for the following reasons.
250As I have already noted, it is not known whether the Crown's case against Adam and/or Shannon is essentially gutted because of the exclusion of the CRA Documents from evidence at their respective trials. If that is the case, then the outcome of this application as it relates to the remaining ITOs is moot.
251If that is not the case, then I wish to discuss with counsel the additional work required on their part to permit the court to efficiently determine the outcome of this application as it relates to ITO Nos. 2-5. That additional work includes the following:
To identify which paragraphs in ITO Nos. 2-5 are identical to those in ITO No. 1 which have been excised, in whole or in part, because they are based on the CRA Documents. Subject to what counsel have to say, presumably the outcome with respect to those paragraphs would be the same as they were in relation to ITO No. 1;
To identify other paragraphs in ITO Nos. 2-5 which are identical or reasonably similar to paragraphs in ITO No. 1 and for which the outcome (excision or amplification) would be the same as in this ruling; and
To consider the findings made in this ruling and the impact, if any, of those findings on the specific relief requested with respect to each of ITO Nos. 2-5.
252With respect to the final bullet point listed above, I note, for example, that the bases upon which the Drummonds request that ITO No. 2 be excised include that the subject paragraph is based on what Defence Counsel describes as "the fruits of ITO No. 1". Given that the request for exclusion from evidence at trial of the documents and data obtained pursuant to the Production Orders is dismissed, does that outcome impact the relief requested with respect to ITO No. 2?
253I also require the parties to appear before me again because, from my review to date of ITO Nos. 2 and 3, I note inconsistencies in Defence Counsel's submissions from one ITO to the next. For example, requests are made for the excision of paragraphs in ITO Nos. 2 and 3 which are identical to a paragraph in ITO No. 1 and for which no request for excision was made.
254The opposite is also true; there are some paragraphs from ITO No. 1 that were the subject of Defence Counsel's submissions, which are repeated in ITO Nos. 2 or 3 and yet they are not the subject of a request for excision or amplification.
255The inconsistencies need to be addressed before the court continues its analysis with respect to the remaining ITOs.
256In addition, I do not have submissions from the Crown in response to requests made for excision or amplification of the specific paragraphs that are included in Defence Counsel's submissions with respect to ITO Nos. 2-5. Once counsel have done the additional work set out above and narrowed down the paragraphs in ITO Nos. 2-5 that require a further ruling, they are to prepare a chart in the same or a similar format to the chart jointly prepared for ITO No. 1 (i.e., setting out their respective submissions on a paragraph-by-paragraph basis).
257Unless and until that additional work is done, the submissions are incomplete. Without the benefit of that additional work, the court is left to speculate, to some degree, as to which of the paragraphs in ITO Nos. 2-5 are the subject of this application.
258Assuming that rulings with respect to ITO Nos. 2-5 are required, it is not possible at this stage of the process to know whether that work can be completed without yet another break between ITOs. I appreciate that the end result may be a delay of the trials in these matters scheduled for 2022, with Adam's trial scheduled to commence first in February 2022.
259The Drummonds waived their rights pursuant to s. 11(b) of the Charter. Regardless, the 2017 Charges have been outstanding for four years. It will be almost five years, at a minimum, before either of the Drummonds is tried on those charges. For that reason, counsel are to take the steps necessary to arrange a date to appear before me as soon as practicably possible to address the next steps in this pre-trial application.
260Counsel attended before me on January 19, 2022. At that time, in consultation with counsel, it was agreed that this ruling would be amended to identify that on January 19, 2022, the accused were arraigned, the Crown chose not to call any evidence, the Crown invited the court to enter an acquittal for both accused, and the accused were acquitted.
261The original Ruling on Pre-Trial Application was not published because the matters were scheduled to proceed to trial in February 2022. In the circumstances, the publication ban is no longer required.
Madam Justice Sylvia Corthorn
Date: February 24, 2022
APPENDIX
February 24, 2022: Paragraphs [260] and [261] are added and confirm the outcome of the pre-trial application and of the proceeding in its entirety. The 2021 ruling is therefore published in its amended form (2021 ONSC 6724).
COURT FILE NO.: CR-17-1213
DATE: 2022/02/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN (Respondent)
– and –
ADAM DRUMMOND and SHANNON DRUMMOND (Applicants)
AMENDED RULING on PRE-TRIAL application
Madam Justice Sylvia Corthorn
Released: February 24, 2022
Footnotes
- For ease of reference and so as to avoid confusion as between the two accused persons, I refer to them by their respective first names throughout this ruling.
- In both the notice of application and factum filed on behalf of the Applicants, reference is made to this application as brought on behalf of "the Applicant" and on behalf of "the Applicants". On the return of the application, Defence Counsel confirmed that the application is brought on behalf of both Adam and Shannon.