NEWMARKET COURT FILE NO. CR-19-11054-00
DATE: 20211101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Respondent
– and –
Bradley Phan
Applicant
Ian Bell and Kelvin Ramchand, for the Crown
Deepak Paradkar and Ravin Pillay, for the Applicant
HEARD: October 14, 2021 - via Videoconference
DECISION ON EXCLUSION OF EVIDENCE-SECTION 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS
Delivered Orally
SUTHERLAND j.:
Introduction
[1] On September 27, 2021, I released my Decision on the application concerning the general warrant and sections 8 and 9 of the Charter of Rights and Freedoms[^1] (the Charter Decision).
[2] In the Charter Decision, I determined that the applicant’s Charter rights have been breached and that Mr. Phan (the applicant)’s request to exclude the evidence found by York Region Police (YRP) will be heard later. I have heard the submission of the applicant and the Crown.
[3] The applicant stands charged with numerous drug-related and firearm offences from the investigation and the search and seizures resulting from the execution of the General Warrant. The applicant was arrested as part of YRP Project Zen.
[4] As stated in the Charter decision, YRP through the execution of the General Warrant seized five kilograms of cocaine, 124 pounds of marihuana, 2 grams of fentanyl, 1 gram of MDMA, $120,000 in Canadian currency and a Glock pistol (the Evidence) and on the arrest of the applicant YRP seized a Sig Sauer pistol (the Sig).
[5] The applicant seeks that the Evidence and the Sig be excluded per section 24(2) of the Charter.
[6] Below is my decision on whether the Evidence and the Sig should or should not be excluded.
Position of the Applicant and Crown
[7] The applicant submits that the police conduct is serious and weighs heavily in favour of exclusion. The impact on the Charter protected interests of the applicant are significant given that there were multiple breaches and that the search of the applicant’s residence was unlawful, and his arrest was unlawful. Lastly, the applicant submits that notwithstanding the evidence is “real”, exclusion is required to maintain the repute of the administration of justice.
[8] The Crown disagrees. The Crown submits that the actions of YRP was not the result of negligence or bad faith. Had the investigating officers requested a search warrant from the issuing justice in the form that this Court has held they should have, it is highly likely that a search warrant would have been issued for the applicant’s residence. These factors reduce the seriousness of the breach and the impact of the breach upon the applicant’s Charter protected interests. Additionally, the Crown submits that the evidence seized is reliable and real and is essential to the prosecution of the serious charges against the applicant. The Crown contends that: “[t]o exclude this evidence on the facts of this case would be to put form over substance and bring the administration of justice into disrepute.”
Legal Framework
[9] The Supreme Court of Canada in R. v. Grant[^2] set the governing framework in determining whether evidence obtained due to a Charter breach should be excluded pursuant to section 24 (2). The Court stated:
[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.[^3]
[10] The Supreme Court of Canada in R. v. Reilly[^4] made it clear that in an analysis under section 24(2) of the Charter, it is an error to consider Charter compliant police behaviour as mitigating. [^5] The unanimous Court further stated:
We also agree that the trial judge erred by improperly conducting the overall balancing—whether including the evidence would bring the administration of justice into disrepute—within the first two factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The language of Grant is clear: this overall balancing occurs at the end (para. 85). Judges must first consider whether each of the three factors weigh in favour of inclusion or exclusion of the evidence before asking whether—having regard to all the factors—inclusion of the evidence would bring the administration of justice into disrepute. Conducting overall balancing within the two Grant factors waters down any exclusionary power these factors may have. This type of analysis undermines the purpose and application of s. 24(2).[^6]
[11] Thus, the Court is to individually assess under each of the three lines of inquiry. In assessing the three lines of inquiry, the Court must consider all of the circumstances. It is at the end of the analysis when the Court is to conduct an overall balancing to determine whether admitting the evidence would bring the administration of justice into disrepute. If the inclusion of the evidence would bring the administration of justice into disrepute, the Court is compelled to exclude the evidence.
[12] The general principles applicable to the analytical framework of section 24(2) was set out in R. v. Le.[^7] These principles were summarized in R. v. Reilly.[^8] In dealing with the three lines of inquiry, the British Colombia Court of Appeal, which was later affirmed by the Supreme Court of Canada, summarized Le as follows:
• The first two lines of inquiry typically work together to pull towards exclusion of the evidence. However, they do not need to pull with identical degrees of force to justify exclusion of the evidence. It is the sum, not the average, of the first two lines of inquiry that determines the pull towards exclusion.
• The third line of inquiry typically pulls towards the admission of evidence, particularly where the evidence is reliable and critical to the Crown’s case.
• If the sum of the first and second inquiries pulls strongly towards exclusion of the evidence, the third inquiry will rarely tip the balance in favour of admissibility. On the other hand, if the first two inquiries make a weak case for exclusion, the third inquiry will often confirm that admitting the evidence will not bring into disrepute the administration of justice.^9
[13] I will now assess under the three lines of inquiry.
1. The Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) infringing State Conduct.
[14] In assessing the seriousness of the state conduct, the Court is tasked to situate the conduct on a “scale of culpability.”[^10] Inadvertent technical or otherwise minor infringements impact at a lesser degree upon the administration of justice than wilful or reckless disregard of Charter rights.[^11] The lesser the degree of culpability of the state, the lesser the seriousness of the infringing conduct of the state which translates to a lesser pull for exclusion.
[15] YRP had the applicant in its sights for investigation as a suspected drug trafficker. A general warrant was obtained to be used when the applicant resided at 89 South Town Centre Boulevard, Unit 210, Markham (“South Town”). As stated in the Charter decision, at paragraph 83, the ITO outlined known facts which included that the applicant delivered a kilo of cocaine to undercover officers and received $42, 500 in cash. After the transaction, the applicant returned to his residence after a brief stop at a gas station. The applicant’s residence at South Town was entered based on a general warrant issued and discovered in the vacated unit was a cocaine press and list of phone numbers, mainly from Alberta, that has nicknames referencing drugs. The Edmonton Police flagged the applicant as a person of interest after his brother was murdered and that he occupied the South Town unit with two individuals with criminal records for drug offences.
[16] The applicant was under police surveillance.
[17] After YRP obtained information from the Production Order and Assistance Order identifying the applicant’s unit number as 2206, they entered the unit based on the General Warrant. In searching, YRP found evidence of drugs and cash. The whole time of the entry, the applicant was under surveillance. YRP knew that the applicant was in Mississauga.
[18] YRP initially entered at 5:17 p.m. on July 10, 2019 then entered again at 6:45 p.m. and completed the search around 10:03 p.m. The applicant was arrested at 5:37 p.m. He and his vehicle were searched, and the Sig was discovered.
[19] In requesting the General Warrant, Constable Santos deposed:
(a) He has had general and specialized training which includes search warrant writing. (paragraph 5).
(b) During his career he has “authored affidavits and information to obtain in support of the following types of judicial authorizations: arrest warrants, Criminal Code search warrants, DNA Orders and production orders.” (paragraph 6)
(c) As ex-parte application he is required “to provide full, frank and fair disclosure of the information available to me.” (paragraph 9)
(d) He has read police reports and has spoken with persons directly involved with the investigation. (paragraph 10)
(e) The Lead Investigator, Detective Aaron Ladouceur “has reviewed this affidavit, supports the accuracy of the information presented within and believes that no other information exists to detract from my reasonable grounds.” (paragraph 11)
(f) He believed that there is no other provision in the Criminal Code or any other Act of Parliament that “would provide for a warrant, authorization or order permitting the particular police techniques and procedures sought herein.” (paragraph 54)
(g) The General Warrant sought is to provide investigators with an opportunity to collect information concerning the offences the applicant and a Mr. Nguyen are committing. (paragraph 56)
(h) “One of the goals to this investigation is to identity participants of this criminal organization and the source of the drugs. I believe that further investigation in PHAN will assist in achieving these goals.” (paragraph 69)
[20] Detective Sergeant Ladouceur (Det. Sgt. Ladouceur) testified in direct examination that he is an extensively experienced police officer that has been with YRP since 2004 He was promoted to Detective in 2019. He testified that he was the lead investigator of Project Zen and he was the decision maker. He was the one that decided to execute the General Warrant and to arrest the applicant.
[21] Det. Sgt. Ladouceur’s testimony was at times confusing, contradictory and misleading. He testified that he did not read the Affidavit of Constable Santos for the ITO but later he backtracked when it was pointed out to him that the Affidavit states otherwise by stating that he was mistaken- a pretty big mistake. Det. Sgt. Ladouceur also testified that he did not agree with the obtaining of General Warrant. He believed reasonable and probable grounds were obtained for a search warrant once the unit of the applicant was identified. The exchange with counsel was as follows:
Q. Right. And you’d agree with me that when this application was provided to Justice McPherson the police did not have reasonable and probable grounds to believe one, where Bradley Phan lived, correct?
A. Correct.
Q. Two, you did not have reasonable and probable grounds to believe that offence as set out, trafficking in cocaine and conspiracy to traffic, evidence of that would be found in Bradley Phan’s residence somewhere at 36 Parklawn, you did not have reasonable and probable grounds to believe that, correct?
A. Yes. I don’t agree with that statement, I did believe we had reasonable grounds to believe that Bradley Phan was involved in trafficking, and whoever’s address it would’ve been, there would be evidence to be found in that location.
Q. Okay. But you see how the application was framed?
A. I do see how it was framed.
Q. And, and your affiant, after your review, basically put in the fact that the implication is that you did not have reasonable and probable grounds to believe because you sought a covert entry warrant or general warrant that delegated the development of the reasonable and probable grounds to the police, remember that?
A. I remember that’s how it was framed, yes.[^12]
Q. All right. So you would agree with me when your affiant, after your review, submitted authorization for a search warrant, you did not, or he did not plead that he had reasonable and probable grounds to do any of those things, is that fair?
A. Right.
Q. You’d also agree with me that you have never seen such a search warrant in your entire career, right?
A. No, I have not.
Q. Right. Where the issuing justice, Justice McPherson, has delegated to the police the development of reasonable and probable grounds prior to the execution of a covert or general warrant, is that fair?
A. Right.
Q. It’s highly unusual, isn’t it?
A. Yes, it is.
Q. So then go back to my original question, which he disagreed with, if the police had reasonable and probable grounds to, pleaded that, you wouldn’t need such a clause, would you? Right?
A. I suppose not.
Q. Right.
A. But I feel that we did have the grounds, as I set out before in my examination in chief.[^13]
[22] The testimony of Det. Sgt. Ladouceur is in stark contrast to the ITO. The ITO clearly states that YRP did not have reasonable and probable grounds to search the residence of the applicant once the unit was identified. The ITO clearly states that the General Warrant was required for investigative measure to ascertain the “identity of participants of this criminal organization and the source of the drugs.” The testimony of Det. Sgt. Ladouceur does not support the evidence in the ITO. The lead investigator did not testify that further investigative measures were necessary. From the action, YRP entered the residence of the applicant and then discovered portions of the Evidence. YRP immediately arrested the applicant, searched him and his vehicle, and then went back into the applicant’s residence to search for an additional three and a half hours. No further investigation was conducted or intended to be conducted to identify the criminal organization or the participants.
[23] In addition, there is the significance of the weighted Goodlife gym bag. In chief, Det. Sgt. Ladouceur testified that Constable Woods advised him that the applicant was observed, from a video obtained from the condominium, entering the condominium with a weighted Goodlife gym bag. Det Sgt. Ladouceur testified that the observation of the red Goodlife gym bag did not affect his decision to enter the applicant’s residence.[^14] He then testified that the observation of the red Goodlife gym bag on the video and that it looked weighted provided further evidence, more than reasonable and probable grounds, which supported his decision to enter the applicant’s residence.^15
[24] From the evidence of Det. Sgt. Ladouceur, the lead investigator and decision maker, the evidence in the ITO that the issuing judge relied upon was misleading, less than candid and truthful.
[25] I do not accept the submission of the Crown that the issue is that of a technical nature of form over substance.
[26] We have two very experienced police officers whose sworn evidence are in contradiction on the essence and the purpose of the warrant requested. Is it for the means of an investigative tool that is a general warrant or is it a means to search the residence of an individual, that is a search warrant?
[27] Chief Justice McLachlin in R. v. Harrison[^16] noted that misleading testimony is a proper factor to be considered as part of the first inquiry under the section 24(2) analysis. Chief Justice McLachlin noted:
I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is proper factor to consider as part of the first inquiry under the s, 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under section 24(2) of the Charter. Few actions more directly undermine both of those goals than misleading testimony in court from persons in authority.
[28] In addition, the Ontario Court of Appeal in R. v. Christiansen[^17] discusses the improper use of a general warrant, namely to search a unit which is the same investigative technique permitted under section 11 of the Controlled Drugs and Substance Act (CDSA).[^18]
[29] From the testimony of Det. Sgt. Ladouceur, YRP had reasonable and probable grounds to search the unit of the applicant for an offence under the CDSA once the identity of his unit was determined. This belief of Det. Sgt. Ladouceur was not provided in the ITO and as such, was not provided to the issuing judge. This failure provided a misleading impression to the issuing judge when reviewing the evidence to ascertain if the requested general warrant should be granted. The lead investigator did not require investigative tools. All that was required was the identification of the applicant’s unit number. This fact is supported by the conduct after the initial entry into the applicant’s residence. Investigation was completed. Arrests were made and a three-and-a-half-hour search was conducted.
[30] It is also uncertain whether Det. Sgt. Ladouceur read the ITO before it was submitted to the issuing judge. He indicated that he did not read it. He was positive that he did not read it. He then backtracked saying he must have been mistaken once the contents of the ITO were pointed out to him that stated he did review it.
[30] This further brings into question whether Constable Santos did speak with Det. Sgt. Ladouceur before presenting the ITO to the issuing judge, as he deposed.
[31] I am of the view whether the misleading testimony is provided in Court testimony or through the sworn evidence in an ITO, the effect is the same. Misleading sworn evidence, either through sworn testimony or a sworn affidavit, directly affects the integrity of the judicial system. Whether this Court or the issuing judge was misled is difficult for this Court to determine.
[32] The conduct of YRP, as outlined above, pulls forcefully to exclusion of the Evidence and the Sig.
2. Impact of the Breaches
[33] It is not disputed that a warrantless search of a person’s home constitutes a serious violation of a person’s section 8 Charter right.[^19]
[35] A warrantless search of the applicant’s vehicle does not enjoin the same degree of seriousness as the warrantless search of the applicant’s residence.[^20]
[36] The search of the applicant’s residence was conducted when the applicant was not present in the unit. The search of the applicant and his vehicle was conducted after entry into his residence. There was no evidence presented detailing the search of the applicant or his vehicle concerning the length of time of the search or that the conduct of YRP during the search was egregious.
[37] Moreover, if YRP obtained a search warrant through the CDSA, they would have in all likelihood discovered the Evidence. YRP could have sought a search warrant under the CDSA and would have probably received such a warrant. There was ample evidence available for a Court to determine that the applicant has committed an offence under the CDSA or evidence of an offence under the CDSA would have been found at the residence of the applicant. In my Charter Decision, I listed some of this evidence at paragraph 83 which included the delivery of cocaine, the obtaining of proceeds from the sale and returning to his residence, after a brief stop at a gas station, with the proceeds from the drug transaction.
[38] In analyzing the second inquiry with the effect of discoverability, the Supreme Court of Canada in R. v. Cote[^21] stated:
[72] We come now to the effect of discoverability on the second branch of the Grant test — the impact on the Charter-protected interests of the accused. section 8 of the Charter protects an individual’s reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual’s reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused’s privacy and dignity interests protected by the Charter.
[38] Consequently, YRP could have satisfied a judicial officer that a search warrant be issued once the unit number of the applicant was determined. This lessens the severity of the warrantless search into the applicant’s residence. On the search of the vehicle and the applicant, the expectation of privacy is less.
[39] Taking all into consideration, I conclude that the impact on the applicant’s Charter rights is lessened and the pull to exclusion relating to the Evidence is not as forceful as with the first inquiry. Though the impact is significant, the impact deals with a heighten right of privacy in one’s residence. The police entered his residence on two separate occasions with the second time search lasting for three and a half hours.
[40] Concerning the Sig, the impact on the applicant’s Charter rights is less than the impact flowing from the breach of his right to privacy in his residence. The forcefulness of the pull to exclusion is significantly less.
3. Society’s Interest in Adjudication
[40] There is no question that society’s interest in the adjudication of the offences charged is high. The Evidence discovered was a significant quantity of an assortment of drugs including several kilos of cocaine. Two illegal handguns with ammunition were also discovered. One in the residence of the applicant and one on his person when he was arrested and searched. One of the handguns was loaded.
[41] There is no question that the drugs, cash, and firearms discovered by YRP are real and reliable. The exclusion of the Evidence and the Sig would have a significant detrimental affect on the Crown’s case. However, the evidence of the delivery and sale of a kilo of cocaine by the applicant to undercover officers is still present and not affected by the exclusion of the Evidence or the Sig.
[42] Given what was discovered, the reliability of what was discovered along with society’s interest to adjudicate illegal firearms and drug offences, I conclude that the third inquiry pulls forcefully to the inclusion of the Evidence and the Sig.
Balancing
[43] In assessing the overall balancing, the general rule as stated in Le and reiterated by the British Columbia Court of Appeal in Reilly, which was affirmed by the Supreme Court of Canada, is that where the first and second inquiries, together, make a strong case for exclusion, “the third inquiry will seldom if ever tip the balance in favour of admissibility.”[^22]
[44] The application of this general rule is not a rigid one to be followed as dogma. The overall circumstances of each case must be taken into consideration keeping in mind the general rule.
[45] The Court of Appeal in Reilly quoted from that Court’s Decision in R. v. Pawar regarding the general rule:
[98] Weighing the relevant factors in the context of an inquiry under section 24(2) is not an exercise that involves mathematical precision: Grant at para. 86. I do not understand the Court in Le to suggest otherwise. Section 24(2) requires a nuanced, case‑specific assessment of whether the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute. I agree with the view expressed by Brown J.A. in Omar CA that McGuffie did not purport to establish an inflexible “two‑strikes‑and‑the‑evidence‑is‑out” rule: at paras. 119, 121. Nevertheless, the predictive observation endorsed by the Supreme Court of Canada in Paterson and in Le is useful if regarded as a general analytical tool or rule of thumb.
[46] In the circumstances here, I have determined that the first inquiry results in a forceful pull to exclusion, the second inquiry not as forceful a pull to exclusion for the Evidence and a less forceful pull to exclusion for the Sig and the third inquiry a forceful pull for inclusion.
[47] Taking a nuanced assessment, I am troubled by what YRP discovered. The items discovered not only was a significant quantity of illegal drugs but also two guns with ammunition, one of which was loaded.
[48] The conduct of YRP is also troubling. YRP’s conduct up to obtaining the General Warrant was not concerning. YRP conducted an exemplary investigation by obtaining judicial authorization for surveillance and tracking along with the Production Order and Assistance Order, none of which was challenged by the applicant. YRP also obtained judicial authorization for a “sneak and peak” at the South Town Centre, the former unit shared by the applicant.
[49] Having said all this, these facts do not come into play in ascertaining the conduct of YRP concerning their entry into and search of Park Lawn. Compliant police conduct does not mitigate Charter breaches. The conduct of misleading testimony and by implication, affidavit evidence, when viewed together, provide a conclusion that YRP either mislead this Court or the issuing judge.
[50] YRP mislead the issuing judge in failing to advise that the lead investigating officer was of the view that once the unit was identified, reasonable and probable grounds existed to obtain a search warrant to search the unit. There did not exist an investigative purpose for the General Warrant. Again, once the unit was identified, YRP intended to enter the unit for the purpose to search the applicant’s residence.
[51] I am reminded by the statements of appellant courts of the importance of maintaining respect for Charter rights and that the justice system should not be tainted by improper conduct of the police. The justice system must remain above reproach. These factors, I conclude, outweigh any negative cost of not admitting the Evidence and the Sig.
[52] The conduct of the YRP along with the impact on the applicant’s Charter rights tilt the balancing against inclusion of the Evidence and the Sig. Notwithstanding the evidence discovered and its reliability, I grudgingly conclude to do otherwise would bring the administration of justice into disrepute.
[53] I therefore grant the application of the applicant and exclude the Evidence and the Sig per section 24(2).
Disposition
[52] For the reasons given, the Evidence and the Sig are excluded.
Released: November 1, 2021
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.
NEWMARKET COURT FILE NO.: CR-19-11054-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent/Crown
– and –
Bradley Phan
Applicant/Defendant
DECISION ON EXCLUSION OF EVIDENCE
Justice P.W. Sutherland
[^1]: 2021 ONSC 6312
[^2]: 2009 SCC 32, [2009] 2 SCR 353
[^3]: Ibid, at para. 71.
[^4]: 2021 SCC 38, affirming R v Reilly, 2020 BCCA 369.
[^5]: Ibid at para. 1.
[^6]: Ibid at para. 2.
[^7]: 2019 SCC 34
[^8]: Supra, note 4, BCCA at para. 88.
[^10]: Ibid, at para. 125.
[^11]: Ibid at para. 124; Supra, note 2 at para. 74 and R .v. Harrison, 2009 SCC 34 at para. 22.
[^12]: Transcript, p. 15, l.13 – p. 16, l.15
[^13]: Transcript, p. 17, 12-28
[^14]: Transcripts pp. 50 and 51
[^16]: Supra, note 11, at para. 26.
[^17]: 2017 ONCA 941
[^18]: S.C. 1996, c. 19
[^19]: See R. v. Reilly, supra, note 4, BCCA, at para 128. Also as referred to in Reilly: R. v. Silveira 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297 at para. 152, R. v. Paterson 2017 SCC 15 at para. 46. Also see R. v. Sutherland [2000] O.J. No. 4704, 2000 CanLII 17034 (Ont. C.A.) at para. 15
[^20]: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341 at paras. 38 and 39.
[^21]: 2011 SCC 46, [2011] 3 SCR 215.
[^22]: Supra, note 4, BCCA, at paragraph 148.