OSHAWA COURT FILE NO.: CR-20-15359
DATE: 20211125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DE’SHAWN DEANGELO CHIN
Defendant
Counsel:
Michael Hill, for the Crown
Erec Rolfe, for the Defendant
HEARD: November 22-24, 2021
REASONS FOR JUDGMENT
J. SPEYER J.
A. Introduction
[1] On May 30, 2019, officers of the Durham Regional Police Service obtained warrants that authorized searches of Mr. Chin’s car and home. The warrants authorized the police to search for a gun, drugs, and documents. The police seized a gun from Mr. Chin’s car and drugs and ammunition from his house. Mr. Chin applies pursuant to s. 24(2) of the Charter to have the seized items excluded from evidence at his trial.
[2] It is Mr. Chin’s position that the search warrants are invalid because the affiant misrepresented facts in the Information to Obtain the search warrants (“ITO”) and failed to include material information in the ITO. He submits that when the inaccurate information is excised from the ITO, what remains provides insufficient grounds to permit a Justice of the Peace to reasonably conclude that there were sufficient grounds to issue the search warrants. Mr. Chin also submits that the affiant failed to include in the ITO the details of a failed attempt by an undercover officer (“UC”) to buy drugs from Mr. Chin. That omission related to an event that undermined the strength of the grounds presented by the affiant in support of the warrant application and demonstrates a serious breach of Mr. Chin’s s. 8 Charter right to be free from unreasonable search or seizure. It is the position of the defence that the Charter breach was serious and that it had a significant impact on Mr. Chin’s Charter-protected rights. The defence argues that the seized evidence should be excluded.
[3] The Crown concedes that the ITO contains an inaccurate description of what happened in the driveway of a house at 23 Whitefoot Crescent (“Whitefoot”). That concession is amply supported by the evidence. The description in the ITO of that event is simply wrong. The Crown submits that the ITO should be amplified to incorporate the correct version of that event. The Crown also submits that the facts of the failed attempt by the UC to buy drugs from Mr. Chin should form a part of the amplified record. The Crown submits that if the proposed amplification is permitted, that the ITO would then provide sufficient grounds to permit the issuing justice to reasonably conclude that there were sufficient grounds to issue the search warrants, and that therefore there is no s. 8 breach. In the alternative, the Crown argues that the evidence should not be excluded because its admission would not bring the administration of justice into disrepute.
B. Background
[4] The police received a tip from a confidential informant (“CI”). The CI told police that someone that the police identified as Mr. Chin was operating a grey Ford vehicle, was in possession of a firearm, and was trafficking drugs. The CI told police the address at which Mr. Chin lived, the licence plate number of the vehicle he drove, his cell phone number, that he is selling fentanyl, heroin, and cocaine in the Durham and Scarborough areas, and that he is black and about 25 years of age.
[5] The tip was not sufficiently compelling to permit search warrants to issue without more. The tip needed to be corroborated to confirm its reliability. The police undertook surveillance of Mr. Chin. Surveillance was conducted on three days: May 28, 29 and 30, 2019. Sergeant Jeffrey Hoover, the affiant, was a member of the surveillance team. The police also implemented a plan to attempt to have an undercover officer buy drugs from Mr. Chin.
[6] The team met for a briefing on May 28, 2019. The briefing ended at 6:01 p.m. Sergeant Hoover was present, along with officers Wray (the central note taker on May 28 and 30), Westcott (the “road boss”, or officer in charge of the surveillance team), Obront (the undercover officer), and others.
C. The attempt to buy drugs from the accused
[7] At the briefing on May 28, a plan was made for officer Obront to attempt to contact Mr. Chin in an undercover capacity to attempt to buy drugs from him. She made that attempt the evening of May 28. Her attempt was unsuccessful. Mr. Chin, or the person who answered his cell phone number, rebuffed her approach in a text message exchange as follows:
DC Obront: Hiya :) You around?!
Mr. Chin: Who this
DC Obront: Michelle. Got ur num frm mel. [meaning, got your number from Mel]
Mr. Chin: Wrong number
D/C Obront: kk sry just tried callin. She said y could hook me up.
Guess she f’d up the num.
D/C Obront: U sure you can’t help me outs.
[8] The police made no further attempt to buy drugs from Mr. Chin.
[9] Nothing about the failed attempt to buy drugs was included in the ITO.
[10] Counsel for Mr. Chin was granted leave to cross-examine Sgt. Hoover in defined areas. Crown counsel agreed that the test for cross-examination of an affiant was met in relation to these areas.
[11] Sergeant Hoover did not include anything in the ITO about the UC’s attempt to buy drugs from Mr. Chin, and his rejection of her advance. In cross-examination Sergeant Hoover explained that he based his account of the investigation in the ITO entirely and exclusively on notes taken by the surveillance team’s central note-taker on each of the three days that surveillance was conducted. Those notes are in evidence. The notes in relation to officer Obront’s attempt to communicate with Mr. Chin record that at 6:40 p.m. “UC sent initial text” and at 6:51 p.m. “UC called went to voicemail”. According to the notes, that information was provided by officer Parker, who was officer Obront’s handler.
[12] The central note-taker’s notes record the substance of radio communications between the members of the surveillance team. Sergeant Hoover was part of the surveillance team and transmitted his observations by radio and heard the transmissions of other officers. He did not recall hearing on the radio that the undercover operation failed. When he drafted the ITO, he did not seek out any information other than that contained in the central notes. He did not speak with officer Obront. He did not speak with officer Parker. He explained that he relied on the central notes and did not attempt to get more information because he believed that if officer Obront had received a response to her text message it would have been documented in the central notes. He believed that there was no response to officer Obront’s text message. He testified that this belief was reasonable.
[13] Sergeant Hoover explained that he did not include anything in the ITO about the unsuccessful undercover operation because he believed that the fact that an unsuccessful attempt to buy drugs was made did not add to or subtract from his grounds to obtain the search warrants.
[14] Sergeant Hoover did agree with counsel for Mr. Chin that if the undercover officer had bought drugs from Mr. Chin that he would have included that information in the ITO.
D. The surveillance of Mr. Chin and the incident at Whitefoot
[15] Surveillance of Mr. Chin was conducted on May 28 from 6:30 to 11:00 p.m. That surveillance confirmed that he drove the grey Ford described by the CI, that he parked in the driveway of the residence identified by the CI as his place of residence and entered the house, and that he drove from his residence to Scarborough.
[16] Surveillance resumed on May 29. Mr. Chin was seen to arrive at his home and enter the residence. Nothing further was observed by the police on that day.
[17] On May 30, surveillance of Mr. Chin generated two observations by the police that were significant to their investigation.
[18] The central notes relate that at 2:27 p.m. Sergeant Hoover reported that Mr. Chin’s car (“V1”) proceeded into a driveway at 23 Whitefoot. Officer Wray reported that a white female wearing a grey tracksuit was seen in the driveway. Sergeant Hoover then reported that an unknown person in a red jacket got into the passenger side of V1. At 2:28 p.m., officer Westcott reported that the unknown person in the red jacket was out of the passenger side of V1 and proceeded into 23 Whitefoot. At 2:29 p.m., officer Westcott reported that the unknown person in the red jacket was out of the house and back in V1. Officer Westcott began to video-record his observations. He saw Mr. Chin reaching into the glove box area of V1. At 2:33 p.m., officer Westcott saw the unknown person in the red jacket pass an unknown item to the white female in the grey tracksuit. At 2:36 p.m., the unknown person in the red jacket got out of V1, and the vehicle drove away.
[19] After the incident in the driveway of Whitefoot, a call was made by police at 2:48 p.m. to the cell phone number attributed to Mr. Chin and Mr. Chin was seen to answer the phone. After the tip as to Mr. Chin’s cell phone number was corroborated, Sergeant Hoover went to the police station to begin writing the ITO. The ITO was sent to the issuing justice of the peace at 5:17 p.m., according to the central notes.
[20] Sergeant Hoover wrote in the ITO that on May 30, 2019:
CHIN exited 67 Cornwall Dr and entered the Grey Ford solo. CHIN drove to and parked in the driveway of 23 Whitefoot Crescent, Ajax at which time an unknown female entered the passenger seat of the Grey Ford at 2:27 pm. CHIN was observed passing an item to the unknown female before she exited the Grey Ford at 2:36 pm.
[21] The second observation was described in the ITO as follows:
At 2:48 pm a call was placed to cellular #289-200-8283 by an undercover officer identifying themselves as a duct cleaning provider. CHIN was observed answer the phone and conversing with the undercover officer.
[22] It is acknowledged by the Crown that the account contained in the ITO about what happened at Whitefoot does not accurately describe the observations made by the surveillance team as recorded in the central notes.
E. Analysis
[23] My task on this application is to decide whether the ITO presented sufficient credible and reliable evidence to permit the issuing justice to find that there were reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place of search: R. v. Sadikov, 2014 ONCA 72, at para. 84.
[24] A necessary first step to accomplish that task is to identify the contents of the ITO that may properly be considered in order to decide whether the necessary preconditions to issue the warrant could be found to have existed. Where full and frank disclosure was not made by the affiant, I should correct the ITO to achieve full and frank disclosure, and then analyze the corrected ITO to determine whether it contains sufficient reliable information to support the issuance of the warrants: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45; R. v. Booth, 2019 ONCA 970, at para. 57.
[25] Incorrect statements in an ITO may be excised, and the Crown in this case concedes that the paragraph that describes the events in the Lightfoot driveway should be excised. I agree and remove that paragraph from my consideration of whether the warrant could have issued.
[26] The contents of the ITO may also be amplified to achieve full and frank disclosure. But amplification is permissible only in limited circumstances. In Booth, at para. 59, the Court of Appeal described when amplification will be appropriate:
Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a “minor, technical error”; and (2) made in “good faith”: Araujo, at para. 59; Morelli, at para. 41.
See also: R. v. Gero, 2021 ONCA 50, leave to appeal dismissed 2021 94840 (SCC), at para. 36; R. v. Crevier, 2015 ONCA 619, at para. 74.
[27] The Crown reasonably concedes that the non-disclosure in the ITO of the failed attempt by the undercover officer to buy drugs from the accused was a failure of the affiant’s duty to provide full and frank disclosure, and that the ITO should be amplified on this review to include the information known to the police about that attempt.
[28] The requirement of full and frank disclosure obliges affiants to include in the ITO any information that detracts from the strength of their grounds. In this case, information that could undermine the reliability of the CI’s tip had to be communicated to the issuing justice in the ITO. Sergeant Hoover agreed that if the police had succeeded in their effort to buy drugs from Mr. Chin, he would have included that in the ITO. Necessarily, information that Mr. Chin rebuffed the undercover officer’s attempt to buy drugs from him was a material fact that should have been included in the ITO. Officer Hoover acknowledged when he testified that if the text message was returned and there was a conversation, he was obliged to report that as part of his duty of full disclosure. Officer Hoover’s position was that he was not aware that there had been any response to officer Obront’s text message. I will say more about that presently. For the moment, I find that the ITO must be amplified to include the details of the text message exchange between officer Obront and the person who responded.
[29] The Crown also submits that the ITO should be amplified to include the contents of the central notes relating to the incident in the driveway of Whitefoot. The Crown says that if I accept that it was Sergeant Hoover’s intention to incorporate the central notes into the ITO, then it may be possible to characterize the error in Sergeant Hoover’s description of that incident as a minor, technical error.
[30] The defence responds that Sergeant Hoover’s error in describing the incident at Whitefoot is neither a minor technical error, nor is it an error made in good faith. I agree.
[31] In the ITO, Sergeant Hoover attributes his information about what happened at 23 Whitefoot on May 30 to “Central Notes generated by DC Wray on May 29th 2019. Reviewed on May 30, 2019”. It is not contested that the reference to May 29 is a typographical error, and the defence acknowledges that it is of no moment, as it would have been readily apparent to the justice of the peace that it was a typographical error. There is a bigger problem with footnote 7.
[32] In cross-examination, Sergeant Hoover acknowledged that he did not “review” the central notes on May 30 in the same matter as he “reviewed” the central notes of May 28 and 29. He read actual copies of those notes. He did not have the central notes of May 30 when he wrote the ITO because those notes were still a work in progress, in the possession of officer Wray, who was still part of the team that was conducting surveillance as Sergeant Hoover prepared the warrant application at the station.
[33] Sergeant Hoover testified that he “reviewed” the central notes of May 30 with the central note taker, officer Wray, on the telephone. Sergeant Hoover testified that he has no present recollection of what officer Wray told him on the telephone, but that he put what officer Wray told him directly into the ITO. If that account is accurate, then officer Wray not only presented Sergeant Hoover with wrong information, but officer Wray misrepresented what was in the central notes to Sergeant Hoover.
[34] After Sergeant Hoover and officer Wray completed their evidence, Crown counsel provided counsel for Mr. Chin with records for the police issued cell phones used by Officers Hoover and Wray on May 30, 2019. The Crown obtained those records from the police forthwith upon receiving a disclosure request from defence counsel and provided them promptly to defence counsel. The Crown had no reason to request those records sooner and is in no way to blame for the fact that defence counsel received them only after officers Hoover and Wray testified. The defence agrees that this is so.
[35] The cell phone records contain no record of a telephone call between Sergeant Hoover and officer Wray on the afternoon of May 30, 2019 using their police issued cell phones.
[36] I granted leave to defence counsel to recall Sergeant Hoover and officer Wray to cross-examine them about their cell phone records. It was important, in my view, to permit those officers to provide any explanation that may exist for the recorded absence of any communication between them at the material time using their police issued cell phones.
[37] Both Sergeant Hoover and officer Wray agreed that police policy requires them to use their police issued cell phones for police business. Officer Wray was in possession of his police issued cell phone on May 30, 2019 and used it to make and to receive phone calls. Sergeant Hoover was also in possession of his police issued cell phone on May 30, 2019 and used it to make and to receive phone calls. But neither of them used their police issued cell phone to communicate with the other that day.
[38] Sergeant Hoover explained that he may have used a landline while he was at the police station writing the ITO to call officer Wray. That is so, but if he had done that officer Wray’s police issued cell phone would have recorded that incoming call, and it did not.
[39] Sergeant Hoover and officer Wray could not exclude the possibility that they used their personal cell phones to converse on May 30. While this is possible, I find it highly unlikely, given that they both knew that would violate police procedures.
[40] Sergeant Hoover testified that it was also possible that he and officer Wray used an app to communicate. He said that he sometimes used apps to communicate with other officers. He was asked what reason he could have had for choosing to use an app to communicate with officer Wray on May 30. He said that there could be an infinite number of reasons, which was an obvious exaggeration. When pressed, the only reason he provided was that he may have called officer Wray using an app if that was an option provided to him in his call records.
[41] Given that the description that Sergeant Hoover provided in the ITO about what happened at Whitefoot was significantly at variance with what was recorded by officer Wray in the central notes, I infer that Sergeant Hoover did not review those notes with officer Wray by telephone, and Sergeant Hoover’s evidence that he did so is wrong. That inference is supported by the absence of any record that they communicated on their police issued cell phones at the material time.
[42] The inference that Sergeant Hoover did not communicate with officer Wray about the contents of the central notes is also bolstered by the fact that Sergeant Hoover was part of the surveillance team and made some of the observations of what happened at Whitefoot that are included in the central notes, but not in the ITO. Those observations were made mere hours before he wrote the ITO. Had officer Wray provided Sergeant Hoover with an inaccurate account of the central notes, Sergeant Hoover was well-positioned to challenge officer Wray about that and to obtain any necessary clarification.
[43] Sergeant Hoover agreed in cross-examination that it may be that what he wrote in the ITO made the case against Mr. Chin stronger than it was in the central notes. This was a fair observation.
[44] Sergeant Hoover’s error in describing the incident at Whitefoot is neither a minor technical error, nor is it an error made in good faith. It is not possible for me to conclude with certainty what exactly happened, but there is not version of what happened that is available on the evidence that permits me to characterize the error as a minor technical error or an error made in good faith. The ITO will not be amplified to include an account of what happened at Whitefoot that accords with the contents of the central notes.
[45] It remains to determine whether the ITO, as excised and amplified, presented sufficient credible and reliable evidence to permit the issuing justice to find that there were reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place of search. I make this assessment based on a copy of the ITO that has been redacted by the Crown to protect confidential informer privilege. The Crown has decided not to engage Step 6 of the Garofoli procedure.
[46] The tip as set out in the redacted ITO in this case is not compelling. Apart from providing personal details about Mr. Chin that do not implicate him in criminal behaviour and that would be readily available to anyone who knew or observed him, the tip makes a bald allegation that he is selling drugs and has a gun. There is nothing in the ITO to indicate whether that allegation was based on firsthand observations, or some level of hearsay.
[47] There were some details provided in the redacted ITO that bear on and support the CI’s credibility. But those details are insufficient to support the issuance of the warrant. The police knew this. That is why they conducted surveillance and attempted to buy drugs from Mr. Chin. Corroboration of the tip was required before sufficient grounds to obtain a search warrant could exist.
[48] The tip was not meaningfully corroborated. Indeed, when the affiant’s inaccurate description of what happened at Whitefoot is excised, no meaningful corroboration of the tip remains. While the surveillance did confirm that Mr. Chin was driving a vehicle as described by the CI and had the cell phone number provided by the CI, and lived where the CI said he lived, those details provide no confirmation that Mr. Chin was engaged in any criminal activity. In addition, the failed undercover operation tends to undermine the grounds to believe that he was a drug dealer. Of course, there are other explanations for his rejection of the undercover officer’s overture, but this interaction forms part of the totality of the circumstances that must be examined when the adequacy of the grounds set out in the ITO are assessed.
[49] The ITO, as amplified and excised, does not present sufficient credible and reliable evidence to permit the issuing justice to have found that there were reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place of search. The search warrants are quashed.
[50] As the searches of Mr. Chin’s vehicle and residence were conducted without valid warrants, those searches were conducted in breach of Mr. Chin’s s. 8 Charter right to be free from unreasonable search and seizure.
E. Section 24(2)
[51] Section 24 (2) of the Charter provides that where “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.”
[52] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada mandated a balancing of the following factors in considering whether to exclude evidence connected to a Charter violation:
i. the seriousness of the Charter-infringing state conduct;
ii. the impact of the breach on the Charter-protected interests of the accused; and
iii. society’s interest in the adjudication of the case on its merits.
(i) The seriousness of the breach
[53] The duties of those who apply for judicial authorizations to infringe reasonable expectations of privacy are well known. In Gero, the Ontario Court Appeal described those duties at para. 49:
It is well established that an affiant seeking a judicial authorization has to make full, frank and fair disclosure and cannot mislead the issuing justice through the language used or strategic omissions: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 47. An affiant must also disclose details that are unfavourable to the CI: Crevier, at para. 68. Police officers who swear such affidavits are well aware that they are subject to professional and criminal sanctions if they mislead the court. Further, they know that the evidence they provide in affidavits will be closely scrutinized.
[54] There is nothing new in this. These principles have governed law enforcement authorities for decades. Sergeant Hoover testified that he knew he was required to make full and frank disclosure of the material facts in his ITO.
[55] Crown counsel fairly acknowledges that the Charter-infringing conduct in this case was serious. It is the position of the Crown that the errors in the ITO reflect a reckless approach by the affiant that the court would want to dissociate itself from.
[56] In R. v. Rocha, 2012 ONCA 707, at para. 29, the Court of Appeal noted that if an ITO is misleading in any way, the court should consider where that defect lies on a “continuum from the intentional use of false and misleading information at one end to mere inadvertence on the other”. The more egregious the defect, the more serious the Charter-infringing conduct.
[57] Sergeant Hoover’s failure to include the facts of the unsuccessful attempt to buy drugs from Mr. Chin may simply reflect a lack of diligence. There is no evidence that he was informed of the outcome of that attempt, or that someone replied to officer Obront’s text message. But he took no steps to find out exactly what happened. That information was readily available to him. His obligation to make full disclosure requires him to learn the material facts of the investigation that he presents in the ITO. His failure to make the necessary inquiries is at least negligent.
[58] Sergeant Hoover’s misrepresentation of the events at Whitefoot is much more serious. He chose to write a version of those events that made the case that Mr. Chin was selling drugs stronger that it was. The evidence establishes that the version Sergeant Hoover presented was wrong. It is inconsistent with the central notes. It is inconsistent with the version described by officer Westcott in his evidence, after officer Westcott refreshed his memory by looking at a videorecording he made of the incident. It is inconsistent with Sergeant Hoover’s own observation as recorded in the central notes. Sergeant Hoover’s account of how he generated the version of events he presented in the ITO is undermined by the records of his and officer Wray’s police issued cell phones. I situate the misrepresentation of the events at Whitefoot at the egregious end of the continuum of Charter-infringing conduct.
[59] The seriousness of the Charter-infringing conduct in this case weighs heavily in favour of exclusion of the evidence.
(ii) The impact of the breach on Charter-protected interests
[60] The police searched Mr. Chin’s residence, including his bedroom, and his car on the authority of invalid search warrants. Their actions significantly encroached upon his right to privacy. The impact was not fleeting or technical. It was profoundly intrusive.
[61] The Crown urges me to find that as Mr. Chin had a lesser expectation of privacy in his vehicle than in his residence, that the impact of the breach on his privacy interests when the car was searched is less than the impact of the breach on his privacy interests that occurred when his residence was searched.
[62] The defence resists this approach and says that I must assess the impact of the breach holistically.
[63] Mr. Chin did have a lesser expectation of privacy in his vehicle than in his residence, in which he had a very high expectation of privacy. However, both intrusions were part and parcel of the same Charter infringing conduct. The impact of the breach on Charter-protected interests in this case was most significant, and this factor weighs heavily in favour of excluding the evidence.
(iii) Society’s interest in an adjudication of the case on the merits
[64] Society has a clear interest in adjudicating this case on the merits. Society expects that criminal allegations will be adjudicated on their merits. The public has an interest in discerning the truth of such allegations.
[65] The charges are very serious. The evidence sought to be excluded is real evidence that is reliable. Excluding the evidence would gut the Crown’s case, and that will adversely affect the repute of the administration of justice. This factor weighs in favour of inclusion of the evidence.
(iv) Balancing the Grant factors
[66] This is not a close call. The gravity of the Charter-infringing conduct is extremely serious. The impact of the breach is very significant. While the public interest in an adjudication of this case on the merits will be frustrated by exclusion of the evidence, it is necessary that the court distance itself from the police conduct in this case.
[67] Courts rely on affiants who seek warrants and authorizations that intrude on privacy interests to diligently work to honour their obligation to make full and frank disclosure of the material facts. That is also a truth-seeking exercise, albeit at an investigative stage that is concerned with reasonable grounds. Society has an interest in having judicial authorizations of police intrusions on privacy made on the basis of accurate information.
[68] The evidence must be excluded because the Grant factors, viewed in their totality, compel that result.
Justice J. Speyer
Released: November 25, 2021
OSHAWA COURT FILE NO.: CR-20-15359
DATE: 20211125
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DE’SHAWN DEANGELO CHIN
REASONS FOR JUDGMENT
Justice J. Speyer
Released: November 25, 2021