COURT FILE NO.: CR-10-0024-00/CR-12-0024-00
DATE: 2021-11-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Jones and D. Hayton, for the Crown
- and -
Marcel Breton
M. Johnston and J. Coulter, for Marcel Breton
Applicant
HEARD: September 13, 14, 15, 16, 17, 20 and 21, 2021 at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Interim Decision on Application to Exclude Evidence
[1] Marcel Breton is charged with a variety of offences ranging from possession of narcotics for the purposes of trafficking to possession of property obtained through crime. He has pleaded not guilty to all charges. The Crown evidence against Mr. Breton was obtained as the result of a search of his rural residence and adjacent outbuildings in December 2009. Marcel Breton applies pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding all evidence obtained by the Crown as the result of these searches from his trial. This matter proceeded before me as a blended voir dire.
Background
[2] On the morning of December 1, 2009, police from three services, the RCMP, the OPP and the Thunder Bay police attended at a rural property on the outskirts of Thunder Bay. They had a warrant (“Warrant 1”) to search the 17-acre property for a .22 caliber handgun, ammunition, spent casings, firearms licence and firearms registration. They found a great deal more. The police got a second warrant on December 2, 2009 (“Warrant 2”) and continued searching the property on that day. Ultimately as the result of the evidence obtained from the searches, Mr. Breton was charged with 21 separate offences.
Procedural Background
[3] A brief explanation is required to explain how a search in December 2009 is being considered at a trial in the Fall of 2021.
[4] Mr. Breton went to trial on his charges in 2014. A verdict was returned. An appeal occurred. The Ontario Court of Appeal returned the matter to be retried.
[5] The trial was originally scheduled to proceed in early 2019. Mr. Breton was not prepared to proceed at that time. A further trial date was scheduled for July 29, 2019. The trial did not proceed at that time as Mr. Breton had just retained a new lawyer. The new lawyer wanted to bring motions to exclude evidence. A pretrial application was held on October 22, 2019. A consent order was obtained on that date. A further trial date was contemplated for the spring of 2020. Two things intervened. First, Mr. Breton determined to again dismiss his counsel. Second the pandemic struck.
[6] Further trial management conferences were held in 2020 and in early 2021 with new counsel subsequently retained by Mr. Breton. These dates for trial before me were agreed after consultation with counsel for both parties. The matter proceeded as a blended voir dire before the Court for the seven days noted above.
[7] The inquiry at this stage will not include an analysis under 24(2) of the Charter as to whether or not any improperly obtained evidence should otherwise be formally admitted for the purposes of the trial. Counsel agreed to argue this aspect of the matter following release of this preliminary decision.
Issues
[8] In my view, resolution of this application requires adjudication of three issues. First, was Warrant 1 a legally valid warrant? Second, did the manner of search conducted further to Warrant 1 breach Mr. Breton’s Charter rights? Third, was Warrant 2 a legally valid warrant?
[9] The facts related to the issues occurred chronologically by which I mean the facts related to issue 1 occurred first in time, followed by the facts for issue 2 and then the facts relating to issue 3. I say this based on the submissions of the parties and my understanding of the evidence from the testimony of the 15 police officers whom I heard from on this blended voir dire. Overall, the facts occurred over a relatively short period of time, 11 years and 8 month ago.
[10] At the outset, my observation of the manner in which all the officers testified at this trial leads me to a conclusion that the passage of time did affect their memories. I do not think any of the officers actively attempted to mislead the court or gave their evidence in any way except to the best of their recollection. However, the passage of 11 years and 8 months forced the officers to rely heavily on their notes and the photographs that were shown to them to allow them to refresh their memories.
[11] When referring to the evidence of the officers in these reasons, I will refer to them using what I noted to be their present rank. I apologize if I miss noted any of the current ranks of the various witnesses.
Issue 1
Was Warrant 1 a legally valid warrant?
[12] The evidence in respect of this issue consisted mainly of documents filed by the parties on this application. The main document was the information to obtain the warrant (the “ITO”). The deponent of the affidavit, Detective Sergeant Roger Gagne testified at this trial. The applicant did not expressly apply to cross examine Detective Sergeant Gagne on his affidavit. I did not consider any of his vive voce evidence or the cross examination of his evidence as being in any way relevant to a decision on this first discrete issue save and except in one small respect. I will explain this first. In my view, this evidence did not touch on any information contained in the application for Warrant 1.
[13] Detective Sergeant Gagne obtained a section 487 warrant from Justice of the Peace Bannon on November 30, 2009. When Detective Sergeant Gagne returned to his detachment office that day, he noticed that the warrant he had in his hand did not specify a date upon which it could be executed. Detective Sergeant Gagne returned before Justice of the Peace Bannon in the morning of December 1, 2009. He obtained a new warrant, Warrant 1, from Justice of the Peace Bannon at that time. Warrant 1 had a date for execution of December 1, 2009 listed on its face.
[14] The intake sheets for the justice of the peace assigned to deal with warrant applications at Thunder Bay for November 30, 2009 and December 1, 2009 were filed on this application. Detective Sergeant Gagne signed in on November 30, 2009. Detective Sergeant Gagne’s name does not appear on the sign in sheet for the justice of the peace intake court for December 1, 2009. Nevertheless, I accept his vive voce evidence that indeed he attended before Justice of the Peace Bannon on December 1, 2009 and obtained Warrant 1. This procedure was irregular. However, in respect of Warrant 1 only, I find this sequence of events was not fatal to the legality and validity of the warrant. This discrete act of getting a date “fixed” did not have the effect of breaching Mr. Breton’s section 8 Charter right to be free from unreasonable search and seizure.
[15] I will have more to say about the procedure for obtaining Warrant 2 elsewhere in these reasons. In my view, correcting the absence of a date on the face of a warrant, which date is consistent with the information contained in the ITO, is an inconsequential occurrence of an inadvertent nature. This is to be contrasted with changing a date or seeking authorization for another date not consistent with the ITO which I do view as consequential. This did not occur here.
[16] I move now to the substantive consideration of Issue 1.
[17] In considering the issue of the validity of Warrant 1, I rely on the following legal principles. The applicant bears the onus of proving a breach of Mr. Breton’s Charter rights on the balance of probabilities. The standard of review is whether or not Justice of the Peace Bannon “could” have issued Warrant 1. In reviewing the ITO, I am to take a common sense, holistic approach. In respect of the information from the confidential informants, it is to be assessed through a lens of the so called “3 C’s”, compelling, credible and corroborated.
[18] Warrant 1 authorized a search of the address 9082 Mapleward Road, Gorham Township, Thunder Bay Ontario for:
.22 cal Handgun-Revolver, black with wooden handle, approximately 8” in length, ammunition, spent cartridges, firearms licence, and registration for handgun
[19] The area permitted to be search was described at Appendix A of Warrant 1 as:
• residence described as two-story brown house located on property
• outbuildings located on the property specifically two large garages with an attached shed
• vehicles that maybe parked on the property specifically a 1997 Ford EST 4D white car Ont BECX 318, a 1997 Chev LS 4D Blue car Ont ASPP 049, a 1996 Chevy P/K red Ont 187 2HR, and a 2008 GMC Sierra P/K Grey Ont 778 7WR
• property surrounding residence and outbuildings
[20] The Crown argues the ITO supports the warrant as issued. The applicant argues it does not.
[21] The ITO was heavily redacted. I discuss the ITO in these reasons in that context. The Crown claims confidential informer privilege in respect of the redactions. The ITO contained information from two confidential informants. Informant 1 will be hereinafter referred to as C1. Informant 2 will be hereinafter referred to as C2.
[22] The ITO contained subheadings which were instructive as to the nature of the evidence that Detective Sergeant Gagne wanted to place before the issuing Justice. In my view, some of the subheadings contained information that was “boilerplate”. The relevant subheadings and the associated paragraphs of the ITO that I did not see as boilerplate were as follows:
a) Confirmation of residence – para. 22;
b) Summary of occurrence – para. 23;
c) Grounds to believe an offence has been committed – para. 24;
d) Grounds to believe the items to be searched for are in the place to be searched – paras. 25, 26, 27 and 28
e) Investigation Conducted that corroborates Informant #1’s Information – paras. 29, 30 (completely redacted), 31, 32, 33, 34 and 35
f) Grounds to believe items to be searched for will afford evidence of the offence that has been committed – para. 36
g) Conclusion – paras. 37, 38, 39, 40, 41, 42 and 43.
[23] I take a wholistic and common-sense approach to this exercise and the assessment of the ITO. However, the process of judicial authorization is one that does have component parts which can separately bear analysis. Overall, I see the exercise as being akin to what is referred to as the “4 W’s”, who, why, where and what. I appreciate that this approach usually ends with a question about “how”, but I did not see this as being considered in the judicial authorization process at bar. This process is designed to provide and demonstrate the reasonable and probable grounds that gives the issuing justice confidence a warrant should issue. In my view, the ITO from Detective Sergeant Gange was organized to answer the “4W” questions in this order: “Who” is going to be searched; “Why” should the search be allowed; “What” is going to be searched for; and “Where” exactly is going to be permitted to be searched.
[24] As to the first general question of “who”, the applicant does not attack the evidence in the ITO that placed Mr. Breton at 9082 Mapleward Road. Detective Sergeant Gagne provided evidence at paragraph 29 of his investigation that demonstrated Mr. Breton was residing at 9082 Mapleward Road according to an OPP report from October 24, 2009. This was reasonably proximate to the date of the search.
[25] There was no issue that the property contained a two-storey residence. Detective Sergeant Gagne did a Google Earth search which identified an L shaped building on the property and other buildings. C1 stated that he/she was at Mr. Breton’s residence at 9082 Mapleward Road, that Mr. Breton does not work and usually stays at home.
[26] This evidence begins to, but does not completely answer, a question of “where” is going to be searched, but I have no issue that Warrant 1 provided reasonable and probable grounds of the prospect that Mr. Breton would be found at real property bearing a municipal address, 9082 Mapleward Road, Gorham Township.
[27] I turn next to the question of “what” will be searched for and “why”. I see these questions as running together. The applicant argues the ITO does not provide reasonable and probable grounds that Mr. Breton was in possession of an illegal firearm while at 9082 Mapleward Road. The applicant argues there is no answer to “what” and “why”. I disagree. “Where” the firearm might be located on this large rural property is a discrete and separate issue which will be discussed later.
[28] The issue of “what” and “why” is answered by information provided by C1 with respect to the existence of an illegal handgun. Reasonable and probable grounds as to a handgun, (the “what”) which was not allowed to be legally possessed by the target of a warrant (the “why”) is evident in the ITO in this matter. In my view, the ITO does provide reasonable and probable grounds from which it could be expected that an illegal firearm was in the possession of Mr. Breton at 9082 Mapleward Road. This evidence was contained at paragraphs 23, 25(c), and 27(k) of the ITO.
[29] Detective Sergeant Gagne deposed he considered C1 a proven reliable informant. I accept that was sufficient for the Issuing Justice’s purpose to be satisfied that C1 was giving credible and compelling statements.
[30] The evidence from C1 on the topic of the existence of the handgun, contained several clear statements that Mr. Breton was observed in possession of a .22 caliber revolver type handgun that was particularly described as being black in colour with a wooden handle, approximately eight inches in length and heavy. This answers the “what” question.
[31] Detective Sergeant Gagne provided evidence of Mr. Breton’s criminal record and prohibition on possessing firearms. This answers the question of “why” a search for this discrete item could be authorized.
[32] Based on the description of the gun, the fact that it was witnessed by C1 to be in the possession of Mr. Breton, and given Detective Sergeant Gagne’s reliability assessment, this indicates to me the Issuing Justice could have considered this evidence as compelling and credible. Further, Justice of the Peace Bannon could have considered these facts about the existence of an illegal handgun to be corroborated, but just barely, by the evidence from Detective Sergeant Gagne of Mr. Breton’s prior conviction for an illegal firearm.
[33] In my view, in considering an issue of “what” exactly was to be searched for, (a handgun) and “why” it should be permitted, (because Mr. Breton could not legally possess an item like this), Justice of the Peace Bannon had grounds to issue a warrant for a search of Mr. Breton if and when he was found at 9082 Mapleward Drive for a .22 caliber revolver.
[34] The issue of “where” the search could have been permitted on a large 17-acre rural property is another story. I understood the applicant to argue the area permitted to be searched in Warrant 1 was overbroad. I agree with that aspect of the applicant’s submissions.
[35] The ITO contained information that clearly identified 9082 Mapleward Road as being “in the country on 17 acres of property” at paragraph 27(d). Detective Constable Gagne fairly noted the property to be much larger than a city residential property. Mapleward Road is well known to the citizens of Thunder Bay. It is a relatively long road where the municipal dump is located.
[36] Mr. Breton’s legal status with regard to 9082 Mapleward Road is not expressly addressed in the ITO. This is significant for two reasons. First, because a 17-acre rural property with multiple outbuildings is at issue. This is a different case than an urban residential property that is typical for Thunder Bay. The majority of single-family dwellings in Thunder Bay do not sit on 17 acres of property.
[37] Second, the ITO expressly notes the existence of another person who may have some kind of title interest in the property. This person is Serge Gallant. This would alert the authorizing judicial officer to the possibility of different qualities of legal ownership and possession in a large rural property. I see this as an important consideration when the issue of one of the most intrusive forms of state action is at issue.
[38] The property had multiple buildings. It appears the garages on the property were large buildings. Detective Sergeant Gagne could not have known what was inside the buildings when presenting the information to obtain the warrant. However, he went to the trouble of doing a Google Earth search to demonstrate that the large buildings were there, as they could not be seen from a drive by of the property.
[39] In my view, the rural nature of the property is an important aspect of the facts of this case. The relative size of the respective buildings that the police proposed to search was a relevant fact. Also, the fact that someone else was somehow economically tied to the property was important context for considering the facts as laid out in the ITO.
[40] Serge Gallant was that “someone else”. The affidavit testifies to allegations that suggest Mr. Gallant was a member of the Hells Angels. The Hells Angels are known as a criminal organization. However, the affidavit does not present reasonable and probable grounds that Mr. Gallant has committed any crime. The affiant does not seek to search property that is owned or said to be owned by Mr. Gallant. It is silent on ownership of the lands at issue.
[41] I note that it seems a simple matter of pre investigation for a check on title to be performed on lands that are to be searched. This is particularly the case where someone other than a target of the search seems to have an interest in the lands. I say this as the affidavit explained Mr. Gallant was paying the hydro bills for the property. I think it is a common-sense assumption that if someone is paying hydro for a property, they have some title interest in the lands. It was not clear if there was electricity in the outbuildings. One would presume there was. One would presume there was hydro in the residence building.
[42] One would also presume the use or right to possess the outbuildings could have been distinct from the residence. I say this because of the size of the buildings. They were not garden sheds. I also say this because of the rural setting. Garage type buildings in rural settings can support business purposes that are independent of residential uses made by other buildings on the same large parcel of land.
[43] In my view, this evidence about Serge Gallant raises a question of who is in actual possession of the different buildings that were sought to have been searched. Justice of the Peace Bannon acceded to the tacit implication of the affidavit that Mr. Breton was in possession of the entirety of the property including the outbuildings. However, from my review of the ITO, there is nothing in the material that allows that assumption to be made. There is nothing that says C1 or C2 were present or saw Mr. Breton present anywhere other than in his residence or outside the residence building. In my view, the comments about “outside” would only suggest outdoors of his residence and not “inside” another building that was not his residence. In context, where another person is indicated to have a title interest, perhaps ownership, this creates an issue that does require careful assessment of the facts that are placed before an issuing justice.
[44] The ITO also sought permission to search vehicles parked on the property. It seems to me the assumption was made that the vehicles were parked outside of the outbuildings. The only express statement regarding the outbuildings was made in paragraph 40 of the ITO.
[45] This paragraph was entitled “conclusion”. The statement that bears on this issue was contained in the last sentence of the paragraph, but the entirety of the paragraph must be read for context.
- I am requesting to search the outbuildings on the property and vehicles parked on the property specifically a 1997 4D White Ford EST car Ont BECX 318 registered to Marcel BRETON, and the additional vehicles that Marcel is known to use such as 1997 4D Blue Chevy LS car Ont ASPP 049, a 1996 red Chevy P/K truck Ont 1872HR, and a 2008 Grey GMC P/K Grey Ont 7787WR only if they are parking on the property. Informant #1 stating Marcel BRETON may have the handgun hidden some where outside close to his residence which maybe an outbuilding or a nearby vehicle parked on the property
[46] This last sentence does not logically appear in a paragraph noted “conclusion” given the officer has determined to mark the other paragraphs with specifics like “grounds to believe the items to be searched for are in the place to be searched”. That section then contains four paragraphs but extends over approximately three pages of text in a 14-page ITO. In my view, this sentence is a conclusion drawn by the officer, not a fact that gives rise to a reasonable and probable ground. I conclude this by giving the paragraph a plain reading. The last sentence contains two “maybees” which in my view are evidence of qualification and lack specificity about a very important fact. While it is improper to parse out sentences when the totality of a document is being considered, this paragraph seems to me to be too much of an outlier. The sentence is not connected to any other evidence elsewhere as far as to the existence of reasonable and probable grounds that a handgun will be found in either the outbuildings or the vehicles.
[47] Even when the “conclusion” is considered with the other statements from C1, this particular statement in paragraph 40 is not credible as it is doubly qualified. It is also not corroborated with any other evidence in the ITO from either the police investigation, C1 or C2’s information.
[48] The information contained in the ITO from C2 did bear in some way on the “inside/outside” issue. In my view, it did not establish a connection to a handgun being plausibly located in the outbuildings. I pause to comment that I did not see the evidence of C2 as being demonstrably compelling, credible or corroborated. The description of C2’s information begins at paragraph 31. The source is Detective Constable Walsh. The information is set out to have been obtained in 2007. In any event, Detective Sergeant Gagne is fair when he discloses Detective Constable Walsh could not supply how C2 was proven reliable.
[49] C2 stated that Marcel Breton had underground hiding compartments on his property. This does logically tie to the comments of C1 that Mr. Breton could be expected to have hidden the handgun close to his person. Underground hiding compartments suggest some relatively easily and quickly accessible place that is nonetheless not plain and obvious to a casual observer. It does not suggest to me buried under a dirt floor in a garage.
[50] To me “underground” means a place on the outside of an enclosed structure. It suggests a place coved with dirt, or ground cover. It describes a place that is under the outside turf but not otherwise physically located under a building. If the police wanted to begin to excavate the basement of the residence or under the floors of the outbuildings, those actions would require discreet and specific reasonable and probable grounds as well as express disclosure to the Issuing Justice that this was part of the plan to execute the warrant. It is my view that the “plain view doctrine” does not give licence to dig inside a building.
[51] I find that the ITO established that if Mr. Breton was found in his residence, his person could be searched as well as the residence, and the environs immediately outside of his residence. These are places that a gun might be hidden. Detective Sergeant Gagne describes for the Issuing Justice at paragraph 41 of the ITO his experience and knowledge of the role handguns play within criminal subculture (his words). He notes:
My experience in these investigations leads me to believe that firearms are not valued as a commodity like drugs, money or stolen property. Firearms are not consumable like drugs are. Firearms are not easily bought and sold with the criminal subculture like property obtained by crime for profit. Persons in possession of firearms have them in order to increase the status and respect firearms bring from others. Persons will also have firearms in order to protect themselves from violence brought on by other people involved in the criminal subculture. Firearms owners tend to retain their firearms for long periods of time. They are not easily bought and sold but when they are the transactions are controlled. They are a commodity that is hidden from others but hidden to be made readily available to the possessor in case they need to use it. If a firearm is well maintained and hidden from others that would take it from the possessor, it can serve its function for many years. The firearm is not for resale and is believed to be hidden for future use.
[52] I note the last sentence is not supported by any other statements in the ITO. It strikes me to be a conclusion of Detective Sergeant Gagne based on speculation. I appreciate an affiant can offer their own conclusions or opinions if there is no direct evidence on a particular point. But in this case, there was other evidence which does not support the conclusion that there was evidence that the .22 revolver could possibly be found in the outbuildings. The observations were confined to the residence and “outside” the residence. In my view, Detective Sergeant Gagne was making something up about the outbuildings. This was insufficient to support his conclusion.
[53] The comments about firearms being “hidden to be readily available” are instructive and important to assess the issue of “where” should be permitted to be searched. Reading all the other comments about the handgun in the ITO, common sense would tell me the handgun was either in the possession of Mr. Breton or was in his residence so that he could get it quickly if he was being attacked or expected he would need it during the course of an illegal transaction. It also could be hidden on the grounds immediately in the environment of the house, the so called “curtilage” in the submissions of counsel for the applicant. I understood this to mean an open space within any enclosures that demarked the immediate grounds of a dwelling. It would not include outbuildings that were not connected to domestic uses of the residence.
[54] This differentiation about “where” could be searched is important because of the possibility that Serge Gallant may have owned or controlled the outbuildings to the exclusion of Mr. Breton. Detective Sergeant Gagne could not have known about the garages being secured. But he did know someone else was paying hydro for possibly three large buildings. This could have caused the Issuing Justice to question the scope of the search areas.
[55] This differentiation of residence from outbuildings is a distinction with a difference from what was permitted in Warrant 1. This is because of what C1 said specifically and did not say about the handgun. The evidence from C1 does not place the handgun in the outbuildings or in the possession of Mr. Breton while in the outbuildings. At best, the only statements in the ITO about the handgun are qualified and uncertain about anything to do with the outbuildings.
[56] A search of a residence and outbuildings is a significant intrusion of the state into a place where Canadians have a high reasonable expectation of privacy. That expectation is not a shield against criminal activity. It is however something that must be only carefully breached.
[57] I do not think that the reasonable and probable grounds in an ITO have to be tied to each and every possible different place that the police seek to search. The Issuing Justice must consider the evidence in totality. However, if the nature of the property seems expansive, large and complex, with perhaps multiple persons who are in control of the environment, one of whom is not suspected of any crime, this creates an occasion of caution. In this circumstance, as the one here, I see it as necessary that an ITO provides a degree of specificity that would prevent the “throwing of the net” over the entirety of the area in the hopes of finding a relatively small, albeit dangerous, item.
[58] In my view, the ITO did not provide reasonable and probable grounds for a search of the outbuildings on the property. I find that there is no basis on the totality of the ITO to issue a warrant that permits a search of any place other than the residence and its immediate environs, which are physically outside the residential building structure. The portion of Warrant 1 allowing a search of “outbuildings located on the property specifically two large garages with an attached shed” should be excised from the warrant.
[59] I also was concerned about how Warrant 1 permitted a search for documents namely the “firearms licence, and registration for handgun.”
[60] The investigation conducted by Detective Sergeant Gagne prior to the application for the warrant indicated Mr. Breton was not registered to possess a handgun. He had a conviction for a weapons offence that included a weapons prohibition. On those facts, one would not expect to find a “firearms licence or a registration for handgun” in his residence or anywhere because Mr. Breton was prohibited from having such item in the first place.
[61] There is nothing from the confidential informants about Mr. Breton possessing documents related to the handgun.
[62] In my view there was no reasonable and probable grounds to allow a search for these documents.
[63] The Crown argues that on other evidence in the ITO it is reasonable to suspect Mr. Breton may be in possession of a firearms registration for another person. This is because there is evidence of Mr. Breton driving vehicles registered to other people.
[64] I found this argument unpersuasive. It is certainly not a logical jump I would have made on a review of the ITO. I appreciate that is not the test. The issue is whether or not the Issuing Justice could have made that conclusion. I just see that particular argument as lacking in sufficient logical basis. I am not persuaded that on the face of the affidavit it was a reasonable conclusion the Issuing Justice could have made despite the ability of able counsel to make such an argument 12 years or so after the fact.
[65] In my view, a person who is prohibited from possessing a firearm would get zero cover, comfort, or alibi strength from having a firearms licence or registration bearing someone else’s name. If Mr. Breton was prohibited from possessing a firearm, a licence to someone else could not protect him from prosecution. It makes no sense for him to have such a thing. Even if it was forged. Despite having a registration, if police found Mr. Breton with this alleged pistol it would not exculpate him on a common-sense basis from possessing that firearm, legal or not.
[66] This is an important aspect of the application by the police because it does indicate the overbroad approach taken by the affiant. In seeking permission for a search of a property for paper items, as contrasted with very defined item like a pistol, it creates an opportunity to appear to be reasonably searching a wider scope of areas. This is consistent with a later theme of the applicant’s – that the warrant was really a Trojan Horse. The police really wanted to search for drugs and proceeds of crime but did not have reasonable and probable grounds to do so. So, they expanded the scope as best they could using the handgun as the lever to metaphorically and then literally open the door of Mr. Breton’s property to search for other things they expected but did not have reasonable and probable grounds to disclose to the Issuing Justice.
[67] I was also concerned that Warrant 1 permitted a search for “spent cartridges.”
[68] I agree with the submissions of the applicant that there is nothing in the ITO indicating anything about Mr. Breton firing the pistol. This is significant for me in terms of the permission to search for “spent cartridges”. I understand the possession of spent cartridges by themselves are not prohibited by the Criminal Code. They are evidence of the use of a weapon. The weapon at issue was a revolver type pistol. It is my understanding (from popular culture and not personal experience) that when one fires a revolver pistol type handgun the spent shells are not ejected from the chamber of the gun. They have to be physically removed and replaced with new ammunition. I make this observation as it strikes me unlikely that such evidence would be kept around a residence even if the gun was fired on or off the premises. Such evidence would be disposed of.
[69] I do not see the possession of spent cartridges by themselves as providing evidence that a firearm has been unlawfully possessed or even lawfully possessed. It would create a suspicion only. Seeking permission to search for items that raise a suspicion but do not directly evidence a crime seems to me to be overbroad. It would be different if the suspect crime arose from the use of the firearm, like murder. However here the crime was possession of an illegal firearm.
[70] Also, I think this is different from a drug search warrant where “regular” items like baggies or cutting agents or scales that by themselves are legal, are nevertheless regularly included in such warrants. In my view this is because these items logically connect to the offence of trafficking or possession. Spent cartridges do not have the same quality in a charge of illegal possession of a handgun.
[71] I would therefore excise the portion of Warrant 1 that permitted a search for spent cartridges.
[72] In conclusion, for Issue 1, I find Justice of the Peace Bannon could have issued Warrant 1 for a December 1, 2009, 9:00 a.m. to 9:00 p.m. search for a .22 caliber handgun. The search could be of Mr. Breton’s person, a two-story brown building located at 9082 Mapleward Road together with its curtilage, and the four cars noted so long as they were parked outside of any buildings. I find the warrant could not have been issued for “firearms licence, firearms registration or spend cartridges”. I find the warrant could not have issued for the outbuildings and attached shed at 9082 Mapleward Road.
[73] I find any evidence located and seized by the police in the outbuildings on December 1, 2009 was done without the lawful authority granted by Warrant 1. I find any evidence physically smaller than a .22 caliber handgun that were located and seized on the basis of the plain view doctrine, where the police looked inside items (like an aspirin bottle) that were themselves physically incapable of hiding such a handgun, were seized without the lawful authority granted by Warrant 1. I find that any documents located and seized by the police on December 1, 2009 were done so without lawful authority.
Issue 2
Was the manner of search unreasonable such that it breached Mr. Breton’s section 8 Charter right?
[74] In determining this issue, I am guided by the comments made by Mr. Justice Cromwell in R v. Cornell, 2010 SCC 31. While the focus of that decision was whether the police had reasonable grounds to justify use of an unannounced forced entry into a home, it speaks to the kind of “lens” by which actions of the police should be judged in cases concerning search conduct. At paragraphs 23 – 24 of the Cornell decision Cromwell J. said:
First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: [citation omitted]. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed "through the 'lens of hindsight'": [citation omitted].
Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: [citation omitted]. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
[75] It seems to me, now reviewing the actions of some 12 years ago, that even on the most generous assessment of the evidence, the police were not really searching for a gun on December 1, 2009. They had a preconceived idea that Mr. Breton was a drug dealer. They were looking for drugs and proceeds of crime. Mr. Breton’s alleged activities in dealing drugs were discussed with all the officers who were going to do the search. This occurred at a briefing at the OPP station the morning of December 1, 2009. It also occurred at a rally point close to 9082 Mapleward Road immediately before all the officers involved went to the target location at about 10:00 a.m. that day.
[76] I consider the first few minutes of the entry to Mr. Breton’s residence at about 9:58 a.m. on December 1, 2009.
[77] A redacted Situation, Mission, Execution, Administration and Logistics, and Command and Signal plan (“SMEAC”) for the police operation on December 1, 2009 at 9082 Mapleward Road was placed in evidence before me. Importantly, it set out what the police intended to do once they gained entry to the residence.
[78] Under the title “Main Action Plan” it is stated:
On Tuesday the 1st of December 2009 DC Veillieux and DC Gagne will approach the target residence in a fully marked OPP cruisier and will be wearing full OPP uniforms. The officers will knock at the door and wait for a response, if the subject attends the door he will be advised of the warrant, shown the original and provided a true copy. The subject will be arrested and transported by the uniform officers (to be determined) to Thunder Bay OPP detachment. If any other persons are in the residence they will be detained until investigation reveals they are not involved in any criminal activity.
Once the residence is secured a search will initiate of the residence, outbuildings and property. The search will be broken up into 3 searches. Team 1 will search the residence, Team 2 will search the outbuildings and Team 3 will search the property. Team 3 will be comprised of OPP ERT members and FIU officer(s) who will search with metal detectors. An exhibit officer will be identified and will make all seizures as pointed out by the locating officer. If resources are available residence will be videotaped and photographed upon entry and again upon exit.
[79] The police did knock. The door was opened by an adult male. It was not Mr. Breton. The male, Mr. T. was immediately arrested. Not detained. Arrested. According to the evidence of Detective Sergeant Gagne he was arrested for the possession of an illegal handgun. This was an immediate deviation from the plan. In my view, it was a very significant deviation from plan. It indicates to me the police were concerned about things other than the danger to themselves that would be expected for a search for a single .22 handgun. Logically I assume if the police are looking for one gun, they expect to find it present on one person only. The handgun was not immediately located on the person of Mr. T.. At that point the officers inside the residence outnumbered the occupants. Mr. T. was not in possession of the handgun. He was under control. Yet he was arrested and not just detained.
[80] This act of arresting a person who was not the described target of the warrant indicates to me the police were interested in a much broader search than what they had indicated to the issuing justice in the ITO.
[81] Mr. T. was immediately searched incident to arrest. He was not found to be in possession of a handgun. He was advised of his right to counsel.
[82] At the same time, Mr. Breton came downstairs from the upper floor. He advanced toward officers Gagne and Veillieux who were now inside the residence near the front door. Another officer, Detective Sergeant Ladoceur, had also entered the residence at this time. He commanded Mr. Breton to get on the ground. Detective Sergeant Ladoceur “grabbed” Mr. Breton and put him on the ground. Detective Sergeant Ladoceur placed Mr. Breton under arrest. Mr. Breton was handcuffed.
[83] Mr. Breton was searched incident to arrest. He was found to have cash on his person. It was in his pants pocket. It amounted to $755. Detective Sergeant Gagne testified it was bundled in a manner that appeared to him was consistent with proceeds of crime. A photograph of these particular monies, photos 222 and 223, were placed in evidence before me in Exhibit 1. In my view, the photograph shows the monies were not bundled. It was just cash. It was in a variety of denominations. It was not organized. He had some change as well. Nothing really out of the ordinary in my view.
[84] Detective Sergeant Gagne took possession of the cash. Ultimately the plan was for an exhibits officer to do the physical seizure of any exhibits. I can understand why practically this could not happen in the very first minutes of the entry. However, it was not adequately explained in the evidence why Mr. Breton was not given the cash back immediately. At that point in the investigation he was under the control of the police. There was no need to take control of the cash except on the theory that it represented proceeds of crime. This theory was untenable at that point in time based on the evidence of what occurred in the first minutes of the search of the residence. In my view, it did not get any better on any measure until actual bundled cash was found elsewhere in the residence, and in the outbuildings at a much later time in the day. The bundles of cash were found at a time that Mr. Breton and Mr. T. had long been removed from the property and were in police custody at the Thunder Bay OPP detachment. Also, in my view, the $755 in cash was benign by any measure to the issue of possession of a handgun. There was no logical connection to any crime for which the police had been authorized to search. There was no reason to seize the money except to exert some extra degree of power over Mr. Breton.
[85] Very soon thereafter, when it became apparent that Mr. Breton was to be removed from the residence, the police found his jacket. It was December in Thunder Bay. It seemed reasonable for the police to find Mr. Breton’s jacket so he would not be cold while being transported to the police station. However, additional cash was found in his jacket in the amount of $1,515. Again, the testimony of Detective Constable Veilleux was that the cash was bundled in a manner that suggested it was evidence of a criminal offence. A photo of that particular amount of cash was entered as photos 224, 225 and 226 in Exhibit 1. Looking at the photo, the money does not appear to be bundled. A large group of twenties seem to be bent over but that does not suggest an act of creating a bundle to me. Some of the bills are folded over like they would be if a person just randomly stuffed them in a jacket pocket. In my view the monies were, like the first amount found on Mr. Breton’s person, just cash. Not anything illegal per se. Yet the police seized these monies.
[86] In my view this indicates a predisposition of the police to search Mr. Breton’s place of residence and property for drugs and proceeds of crime. At that point in time there was no reasonable and probable grounds to deduce that finding that amount of cash was evidence that a crime had been committed. Logically that conclusion could only have been reached on the basis of a precondition. A precondition unrelated to a search for a .22 caliber pistol.
[87] The Exhibit register from the search of December 1 and December 2, 2009 was entered as an Exhibit on this voir dire. The first two entries were for “Cdn currency”, in “Breton’s pants pocket” and in “Breton’s jacket pocket” respectively. The time seized is noted as 10:30 a.m.. This time is about 30 minutes after Mr. T. and Mr. Breton were arrested.
[88] The next time for which an exhibit was seized was 13:09. In between, the Exhibit register notes the seizure of “Cdn currency” by Detective Constable Steele. He testified he started his search of the living room area of the residence at 11:20 a.m.. Detective Constable Steele immediately found “bundles” of cash in the floor heating ducts register. He had to use a flashlight to look down the register once he found the first bundle. The time of this seizure was not noted on the Exhibit register. The exhibit officer, Detective Constable Veilleux testified it was an oversight by him not to have noted the time. I find from the evidence that the bundles of cash in the registers were found at approximately 11:20 a.m..
[89] Photos of these amounts of cash were entered into evidence as photos 227 and 228 in Exhibit 1. Detective Sergeant Steele did not testify if the monies had elastic bands around them. It appears the two bundles had both one hundred dollar bills and twenty dollar bills in the same bundle. I note that when the police found other amounts later in the day, in the outbuildings they were careful to take up close photographs of the elastic bands that were around the cash. Those bundles contained only the same denominations in a bundle. These separate cash seizure photos are shown at photos 281 and 282. The elastic bands are quite evident for these amounts of seized cash. I cannot say the same for the cash found in the ducts at 11:20 a.m..
[90] In my view, based on the evidence I heard, at that time, about an hour and a half after the police had first entered the residence there were no reasonable and probable grounds to seize money or bundles of money found in the residence. Once Mr. Breton was removed from the residence but before Detective Sergeant Steele searched the heat duct register, another officer video-taped the residence. Sergeant Cunningham took the video.
[91] The video tape was not particularly useful. It was clearly edited in the sense that it was not a continuous roll from when the officer stepped on the property from the road and then walked up and through to the residence. There was no video of the outbuildings despite the permission of the warrant to search those areas. Different rooms are videoed and there are clear “cuts” between room shots. This is important only to comment that as a viewer, it was difficult to make much sense of the video as a probative piece of evidence. Only one thing stood out. There was video of what appears to be unprocessed marijuana hanging in the basement. There is a photo of raw marijuana hanging in the furnace room at photos 252 and 255 of Exhibit 1. Other photos of raw marijuana appear at photos 253, 254, 255, 256, 257, 258 and 259. It is impossible to tell from the video or the photo exactly what quantity of raw marijuana was present in the basement. There was no evidence given before me from which I could ascertain if the amount would have qualified it for an offence of possession for the purposes of trafficking.
[92] The Exhibit register had a notation of Exhibit 11, “marijuana basement” being seized at 13.25. However this is after the cash was seized at 11:30. This was significant in that I am left to speculate about whether or not the fact of this hanging raw marijuana was made known to the various officers, and specifically Detective Constable Steele, who were about to commence a search of the residence at about 11:30. I had no express evidence that Sergeant Cunningham spoke to Detective Constable Steele about this raw marijuana find. Accordingly, as at 11:30 a.m., I cannot say that reasonable and probable grounds would exist to permit the police to start seizing bundles of cash on a theory that these were proceeds of crime. At that time the search that was authorized was for a handgun only.
[93] There is no doubt the drug trade at street level is a cash business. However, in 2009, and even in 2021, possession of large amounts of cash by citizens is not a crime without reasonable and probable grounds connecting the cash to a crime.
[94] I find that the decision to take Mr. Breton’s cash from him and not allow it to remain on his person when he was taken to the police station represented a breach of his section 8 Charter right to be free from an unreasonable seizure. There were no reasonable and probable grounds for the police to seize that cash from him at that time. It was only his personal property of the same quality as the clothes on his back. I see that particular seizure as an oppressive act as well. In my view, carrying cash in a world which is increasingly cashless, even in 2009, connotes a personal choice indicating a need for economic security and certainty. The cash was benign when Mr. Breton was arrested. In the circumstances of this case, I find that taking it away from Mr. Breton was an unnecessary act of control in the context of a search for an illegal handgun. The police did not take Mr. Breton’s shirt off his back on the basis that it might be a proceed of crime or a knock off item that was illegally obtained by him. That act would be viewed by anyone as prima facie unreasonable. In the same way, I see the act of taking the cash, in the context of everything that had happened to that point of the search that morning as being patently unreasonable. An assessment of what to do with this evidence in the context of the entirety of the events of December 1, 2009 and thereafter awaits the section 24(2) argument.
[95] I agree with the submission of the applicant that the evidence of the first interaction with both Mr. Breton and Mr. T. demonstrates an impermissible degree of overreach on the part of the police. It is consistent with the applicant’s theory that Warrant 1 was a kind of Trojan Horse, that is, a vehicle portrayed as one thing, but designed to hide other things to be used for a very different purpose. The use of a Trojan Horse was a legitimate tactic for warfare in Homer’s account of a mythical war waged near the Straight of the Dardanelles in the twelfth or thirteenth century BCE. It was not a legitimate tactic for police to use in Northwestern Ontario in 2009.
[96] I will leave the impact of that finding on the balance of what was seized following 11:30 a.m. on December 1, 2009 at 9082 Mapleward Road for the submissions of counsel on the consequent section 24(2) analysis which by agreement will be left for a later time.
Issue 3
Was Warrant 2 lawfully obtained?
[97] A narrative of what occurred after Detective Constable Steele found the cash in the heating ducts is necessary to understand the analysis of the third issue.
[98] After Detective Constable Steele’s find, the search continued. Using the Exhibit register as a guide to the order in which items were located, at 12:28 a box of .22 caliber ammunition was found in one of the outbuildings under a dirt floor. Inspector Graham located it and testified he was just kicking the ground and hit something. He was not using a metal detector to find this item. More about metal detectors later. For an unexplained reason, this item was not listed in chronological order in the Exhibit register.
[99] At about 13:07 a quantity of marijuana was found in the residence. At 13:09, a single .22 caliber bullet was found below a dresser drawer in a main floor bedroom. More drugs, cash and drug paraphernalia where located and seized in both the residence and the outbuildings between about 13:16 and 15:32.
[100] The item which, by any measure, would “raise eyebrows” was located at about 15:30. It was a plastic tub containing about a 1.2 million dollars in bundled cash.
[101] The 1.2 million was found buried under a dirt floor in a building the police described as a “garage”. It was found on the cold side of the garage. The police had to push back from a wall a vintage Z 28 Camaro in order to do the excavation. The rear trunk of the car and the area before excavation was shown in photo 314 of Exhibit 1. It was not entirely clear from the evidence why the police decided to dig where they did. Detective Sergeant Gagne testified about using a metal detector. How a metal detector would have found something located under a car, while the car was still sitting there, defies my understanding of how metal detectors work. How a metal detector located a plastic tub stuffed with paper money was also not explained in the evidence. How a tub buried in a floor under a car was in “plain view” was not explained. In any event, it was a significant find.
[102] The police realized finding this item went above and beyond a warrant for a .22 caliber handgun. Detective Sergeant Gagne got in touch with now retired Sergeant Quarell who was the proceeds of crime officer at the time for the Thunder Bay police. He came to 9082 Mapleward Road. The applicant characterizes this act as one of trespass as Sergeant Quarell admitted he was not searching for a handgun. At 6:30 p.m., Sergeant Quarell and other officers left the property. They took with them the tub of money and the other amounts of cash that had been located, including the funds taken from Mr. Breton’s person at about 10:00 that morning.
[103] Counsel for the applicant raised an issue of the status of the property overnight between December 1 and December 2 representing a Charter breach. I do not accept that argument. I accept the evidence of the various officers that the search for the .22 continued until dark on December 1 and was expected to continue in the daylight on December 2. Counsel for the Crown cites a decision of the Ontario Court in R v Woodall [1991] O.J. No. 3563 affirmed [1993] O.J. No. 4001(C.A.). Reviewing the trial decision, particularly at paragraphs 58 and 59, that case presented specific facts in that the circumstances the police were faced with when they executed the warrant represented a very complicated situation. The location being searched was in such disarray the police could not have reasonably catalogued the items allowed to be seized in the time contemplated by the warrant. As a result, the trial judge found it was reasonable for the police to “overhold” the property.
[104] In this matter, by nightfall on December 1, the police had not found the .22 caliber handgun. They had found a tub with a million dollars. From their perspective, they believed the circumstances had changed. For reasons I have explained above I do not agree that what they seized after the immediate entry was done lawfully. However, at that time, in the face of all what was going on at the property, I agree the situation had become complicated from the police perspective such that it was not unreasonable for the police to remain in control of the property overnight. On that narrow issue alone, I do not see a Charter breach.
[105] Detective Sergeant Gagne then began the process of writing an application to obtain a second warrant.
[106] Detective Sergeant Gagne was cross examined on the process he undertook to obtain Warrant 2. I see this as different than being cross examined on the actual contents of the ITO.
[107] Detective Sergeant Gagne appears to have not done much editing from his ITO used for Warrant 1. Everything he wrote in the first ITO appeared in the second ITO. In my view, this meant that a great deal of unnecessary material was included. It also could be said to have been an attempt to piggyback the merits of the first ITO on to the second. This is unnecessary and unfair. I say this because at the time the ITO was prepared for Warrant 2, the .22 caliber handgun had not been located. In fact, it was never located.
[108] I do not think police should be held to the same drafting standards as are counsel when they prepare affidavits. Nevertheless, it was not efficient for Detective Sergeant Gagne to simply keep everything from the first ITO in the second ITO. For one, all the information about the firearm was irrelevant.
[109] The ITO waits until paragraph 22 to introduce what I perceive to have been very important information for the Issuing Justice, that is a statement by Mr. Breton upon his arrest that the property was owned by his mother. In my view, that changed the focus or the information about Serge Gallant. Yet the very same information about Serge Gallant from the ITO for Warrant 1 remained in the ITO for Warrant 2. It was superfluous and irrelevant at that point. It also was highly prejudicial.
[110] Detective Sergeant Gagne provided information he obtained from Detective Sergeant Currie who had an extensive experience investigating situations involving proceeds of crime. Detective Sergeant Gagne consulted with Detective Sergeant Currie late in the evening, of December 1, 2009 at 10:40 p.m. This is about four hours after Sergeant Quarrell and other left the property with the cash. Detective Sergeant Gagne says nothing about the involvement of Sergeant Quarrell. This is significant in my view because he appears to have been the first “expert” to be consulted.
[111] In any event, on its face, the ITO could have been used for a drug and proceeds of crime warrant if the Issuing Justice was able to wade through and discern away the overwhelming amount of irrelevant information contained therein. However, the manner in which the warrant was obtained was fatal in my view. I agree with the submission of the applicant that I maintain a “residual jurisdiction to set aside a warrant despite the presence of a proper evidentiary predicate” (R v. Paryniuk, ONCA 87 at para. 69). I say this for the following reasons.
[112] In my view, Detective Sergeant Gagne skipped the regular process to obtain Warrant 2. In the evening of December 1, 2009, he arranged to again meet with Justice of the Peace Bannon the next morning to consider the application for Warrant 2. This was improper. The warrant process is an ex-parte procedure. It requires the person seeking the warrant to be full, fair and frank. I accept the argument of the applicant that Detective Sergeant Gagne engaged in a process akin to “adjudicator shopping” by not submitting his warrant application to whatever justice of the peace was sitting in intake court on December 2, 2009. Justice of the Peace Bannon was sitting in Bail Court on December 2, 2009. Justice of the Peace Bannon signed Warrant 2.
[113] Processes are in place for a reason. The intake process as it was in Thunder Bay in December 2009 was important. It appears it required persons seeking to obtain warrants to sign in. It was a process that had a degree of randomness in that different justices of the peace would be sitting in different capacities on different days. In my view, this arrangement created confidence in the justice system because different people were doing different things every day. It also formally allowed confirmation of attendance, at least for intake court, if such was required at a later date. I suspect practices may have changed since 2009 at least as far as police conduct for obtaining warrants goes. However, even for that time, it was not appropriate for Detective Sergeant Gagne to go directly back to Justice of the Peace Bannon to attempt to obtain Warrant 2 if Justice of the Peace Bannon was not doing intake court that day.
[114] I do not see how Justice of the Peace Bannon could be said to have been given the opportunity to truly and independently consider the merits of the application for Warrant 2 in all these circumstances. There was no case management of warrant issuance at that time in Thunder Bay. It was not up to Detective Sargeant Gagne to decide who would consider his application to obtain Warrant 2. However, it happened that way. It was not proper or legal in my view.
[115] After the conclusion of the evidence and submissions, counsel for the applicant submitted a decision of the Ontario Court of Appeal R v. Bond [2021] O.J. No. 5345 released October 19, 2021. Counsel submitted that paragraphs 26 through 35 have bearing on the issue of the police obtaining both Warrants 1 and 2. The Crown was permitted to choose to reply either in person or in writing. In a written submission the Crown submitted the Bond decision dealt with a different fact scenario than the present case. I agree with that particular Crown submission. The facts were very different than what occurred here with respect to the process to obtain the warrants. The decision in Bond did not persuade me one way or the other with respect to my decision in this matter.
[116] I find any items seized at 9082 Mapleward Road on December 1 or 2 2009 pursuant to Warrant 2 were done on a warrantless basis.
[117] There were a number of other issues raised by the applicant. Sniffer dogs were used to search the property. Drugs were located. I find the evidence before me indicated both dogs used had training or capacity to be reliably used to search for firearms. Their use was reasonable in respect to Warrant 1. Their use was not an improper or unreasonable search tactic by the police on those two days.
[118] There was seizure of a “flick knife” and a pellet gun during the searches. The pellet gun has been returned. An officer with experience in weapons testified the knife seized was not a “butterfly knife”, the item expressly set out in Count 6 of the indictment of September 17, 2021 containing the lesser number of indictments. I trust counsel can deal with these discrete issues in the interim.
[119] The applicant also raised issues about the failure of the police to make a timely report to justice of the items seized on December 1 and 2. I was not persuaded by those arguments in regard to any alleged Charter breach that would bear on an issue of the exclusion of evidence in this matter.
[120] I leave it to the parties now to set a case conference with me to consider the next steps in this matter given the conclusions I have reached in these reasons.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: November 3, 2021