Court File and Parties
COURT FILE NO.: 20-19 DATE: 2021/12/02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Tammy Roberts, Jeremy Roberts, Christopher O’Toole and Joseph O’Toole Applicant
Counsel: A. McAllister, for the Federal Crown Ian Paul, for the Applicant
HEARD: September 9, 2021
Lacelle, J.
[1] Tammy Roberts and others are charged with various offences, including charges under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Those charges were laid following the execution of a search warrant in relation to Ms. Roberts’ residence.
[2] Ms. Roberts brings an application under s. 8 of the Canadian Charter of Rights and Freedoms and alleges that her rights were violated because the warrant was issued after the justice of the peace received unsworn submissions in support of the warrant application. While the application was more broadly framed when it was filed, this is the only basis upon which Ms. Roberts now claims a violation of her s. 8 Charter rights. She seeks an order under s. 24(2) of the Charter excluding the evidence obtained pursuant to the search warrant.
[3] Counsel have been advised that I have determined that the application should be dismissed. These are my reasons for that decision.
Factual overview
[4] The following facts are established by the evidence and form the foundation for my analysis.
[5] On June 19, 2019, an application was made for a search warrant in relation to Ms. Roberts’ residence. Ms. Roberts’ residence was at 312 Walton Street and this is described as the location to be searched in the ITO. The ITO states that “This address is located south of First Street East and located between Alice Street and Guy Street. The Residence is a Semi-Detached residence with clear marking of either unit #310 or #312 Walton Street, of the city of Cornwall. The premise is located next to an alleyway that allows access to the rear parking”.
[6] Throughout the ITO, there are several references to 312 Walton Street. The ITO also contains a colour photograph of the dwelling in which 312 Walton Street is contained, with an arrow pointing to the front door of that residence. The photo is attached as Appendix D, and is identified as “a photograph of the premise of 312 Walston Street, Cornwall, Ontario”.
[7] The justice of the peace who was considering the application contacted the affiant and sought clarification about which of the residences was to be searched. The conversation was neither sworn nor recorded.
[8] Following this discussion with the affiant, the justice of the peace signed the search warrant.
[9] The affiant made notes about the conversation and has testified before me. He testified that at the time he received the call from the justice of the peace, he did not know if the justice of the peace had granted or refused the warrant. He had submitted his affidavit at 11:22 a.m. that day. He received the call from the justice of the peace at 12:08 p.m. and noted at 12:40 p.m. that the warrant was granted. His first indication that the warrant was granted came at 12:40 p.m.
[10] The affiant was not expecting the call from the justice of the peace. To the affiant’s knowledge, the phone call was not recorded. His recollection is that he spoke with the justice of the peace for approximately 30 seconds.
[11] The affiant recalled advising the justice of the peace that there were two separate residences at 310 and 312 Walton Street and that they were not seeking to enter 310 Walton. He told the justice of the peace there were two units in the dwelling that were not connected, and they had separate entrances. The affiant did not make notes of the exact wording of what the justice of the peace said, he just noted what would refresh his memory. His note “re property descriptors” reflects that intention. The affiant testified he provided no supplementary information to what was already in the ITO to the justice of the peace during the call.
The positions of the parties
[12] Ms. Roberts says her s. 8 Charter rights have been breached because the search warrant was issued on the basis of unsworn evidence that was not recorded. She argues that the justice of the peace seemed to have some reservations about granting the warrant and that these were alleviated on the basis of unsworn and unrecorded evidence. Since that unsworn and unrecorded evidence was necessary to satisfy the justice of the peace to issue the warrant, the failure to have followed proper procedures in obtaining clarification from the affiant has resulted in a breach of her s. 8 rights.
[13] Ms. Roberts relies on cases that emphasize the proper procedures when a justice of the peace has concerns about the contents of an ITO. She relies in particular on R. v. Thurston, [1998] O.J. No. 1731 (C.J.) and R. v. Gray (1993), 1993 CanLII 3369 (MB CA), 81 C.C.C. (3d) 174 (Man. C.A.). Ms. Roberts submits that the justice of the peace may refuse the warrant and so endorse it, or, where the issue is minor, record any interaction with the affiant and attach the recording to the warrant to provide a record of what has occurred. Neither occurred here. Ms. Roberts submits that what information is available about what occurred is so vague that it cannot alleviate the concerns about the absence of properly recorded and sworn evidence. Given that what subsequently unfolded was a warrantless search of a residence, the evidence should be excluded. This is particularly so since she says there was a somewhat similar case in this jurisdiction (R. v. Poirier, 2016 ONSC 4010) and yet this problem has re-occurred.
[14] The Crown argues that while there was unrecorded and unsworn communication between the justice of the peace and the affiant, the evidence does not establish that this is one of those cases where the justice of the peace stepped outside the realm of judicial independence. The Crown argues the justice of the peace still remained independent in function and was able to perform an independent review of the search warrant application. The Crown highlights that in the cases relied upon by defence (Thurston, Gray and Poirier), the justice of the peace initially rejected the warrant and then unrecorded communications occurred. In this instance, the warrant was issued on the basis of information contained in an ITO that contained sworn evidence. The place to be searched was clear in the ITO. In these circumstances, no breach has been made out and the warrant should not be quashed.
[15] Following these submissions, at my invitation, counsel submitted further case law which bears on the issue, along with their comments about if and how the cases applied. The defence submitted the following additional cases: R. v. Pippin (1994), 1994 CanLII 4659 (SK CA), 27 C.R. (4th) 251 (Sask. C.A.); R. v. Chum Ltd. (1989), 1989 CanLII 3949 (NL CA), 74 Nfld. & P.E.I.R. 150 (Nfld. C.A.); Canada (Attorney General) (Re), [1999] O.J. No. 1314 (C.J.); R. v. Pedersen, 2004 BCCA 64, 193 B.C.A.C. 206; R. v. Locknick, 2019 ONCA 625, 379 C.C.C. (3d) 470; R. v. Lapple, 2016 ONCA 289; R. v. Krist (1998), 1998 CanLII 6105 (BC CA), 130 C.C.C. (3d) 347; and R. v. Clarke, 2015 BCCA 488, 330 C.C.C. (3d) 448. For its part, the Crown also directs the court’s attention to Pedersen, in addition to the following cases: R. v. Spackman, 2008 CanLII 34281 (ON SC), 234 C.C.C. (3d) 24 (Ont. S.C), rev’d on other grounds, 2012 ONCA 905, 295 C.C.C. (3d) 177; R. v. Valentine, 2009 CanLII 81006 (Ont. S.C.); and R. v. Beierback, 1996 ABCA 298, 187 A.R. 235.
[16] In her supplemental submissions, Ms. Roberts argues that it is not clear from Pedersen that there was ever a discussion about a material aspect of the case. Accordingly, the court should approach the analysis as the courts did in Thurston and Poirier and put the onus on the prosecution where the record is deficient. She observes that in the cases of Locknick, Lapple and Krist, there was some form of written record and so the record before the court was not unclear. She argues that in Clarke, there was also a record of what occurred during the interaction, and it was incorporated into the sworn ITO, which did not occur here.
[17] The Crown additionally submits that the cases demonstrate that unsworn communication between an authorizing justice and an affiant does not automatically vitiate the search warrant issued. This case is similar to the authorities cited by the Crown in that the affiant did not provide any information to the issuing justice that was not already contained in the sworn ITO. The cases are also clear that the onus in these circumstances remains with the defence – the warrant was authorized and carries a presumption of validity. Since the warrant did issue, the question is whether there was a basis upon which the warrant could issue once the unsworn evidence is excised and all that remains is the information contained in the sworn ITO. On this record, the Crown submits that test is easily met.
The legal principles
[18] It is not all that unusual for an issuing justice to seek clarification of an issue in determining whether to issue a warrant. That this is so is reflected in the comments of the trial court in Spackman and the jurisprudence generally.
[19] In Spackman, at paras. 92-94, Ducharme J. provided the following summary of how such a scenario should be handled:
[92] In the course of reviewing an affidavit and making a judicial determination as to whether an authorization should issue, an issuing justice may seek to clarify information contained in the affidavit or may wish to obtain more information from the affiant about particular issues. This type of judicial inquiry was affirmed by the Supreme Court of Canada in Araujo, supra, where Lebel J. noted at para. 29 that in the context of determining whether an authorization should issue, an issuing justice:
…should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems too wide or too vague…
However, any inquiry or any request to clarify or otherwise expand on the grounds in support of the authorization must be done by having the affiant attest to such matters under oath or affirmation. Otherwise, the process would circumvent the statutory requirements [of the applicable legislation].
[93] Thus, where a Judge hearing an ex parte application for a Part VI application wishes to make the sort of inquiries discussed by LeBel J. in Araujo, the affiant should first be sworn or affirmed and, ideally, the questions and answers should be recorded in the same way as any viva voce evidence at a trial. If this is not possible, due to the exigencies of the matter, the issuing Justice would be well advised to make an audiotape of the discussion or, at the very least, take careful notes which could be placed in the sealed court file.
[94] Where it is established that the issuing Justice did rely on unsworn evidence, both parties agree that any information obtained therefrom must be excised from the evidentiary basis for the authorization. Beyond that initial step, the appropriate remedy will depend on the significance of the evidence. If the requirements [to issue the warrant] are satisfied without the unsworn evidence, then the authorization should be upheld. On the other hand, if these prerequisites cannot be satisfied without reliance on the unsworn evidence then the authorization must be quashed.
[20] Spackman also involved an affiant having a discussion with an issuing justice that was neither recorded nor sworn: see para. 90. Ducharme J. found this had not given rise to a basis to a quash the warrant. He held at para. 95 that “while it was unfortunate that the authorizing Justice proceeded in this fashion, it does not provide any basis for challenge to the authorization …. [E]ven if one ignored all of the answers provided [by the affiant], the affidavit provides a complete answer to the questions posed by the authorizing Justice”. While the case was overturned for other reasons, this conclusion was noted with seeming approval by the Court of Appeal for Ontario: see R. v. Spackman, 2012 ONCA 905, at para. 208, per Watt J.A.
[21] There is also case law from the Court of Appeal for British Columbia that is very helpful in guiding the analysis here. In Pedersen, there was a telephone conversation between the affiant and the authorizing justice of the peace prior to the warrant being issued. The content of the question posed by the issuing justice and the answer given by the affiant were unknown on the record before the court. I take from the court’s characterization of the evidence as “unknown” that it was neither recorded nor sworn: see Pedersen, at para. 11. The accused, Mr. Pedersen, argued that this gap in evidence called into question the fairness and impartiality of the procedure of issuing the warrant and relied upon Thurston and Gray.
[22] In dismissing this ground of appeal, the court noted the importance of the fact that in Gray, the trial judge assumed that the ITO had been changed as a result of the interaction between the justice of the peace and the affiant: see Pedersen, at paras. 11, 13. In Pedersen, the trial judge found that the ITO was not changed as a result of the unknown question and answer, and further, that all of the evidence on which the warrant was obtained was set out in the ITO: at para. 13. In the circumstances, the interaction between the justice of the peace and the affiant did not give rise to a s. 8 Charter breach. The ratio of the court highlights the difference between scenarios such as the one before it, and the evidence led in Gray, where there was evidence that “it was common practice for justices of the peace to review the information to obtain a search warrant, make recommendations for change, sometimes dictating or typing the document, and review the information again before issuing the warrant”: Pedersen, at para. 11.
[23] In addition to the principles derived from Pedersen and Spackman, the following additional directions in the case law are instructive:
a. An issuing justice may make inquiries in relation to an ITO and need not be reluctant to ask questions or to require information (in accordance with the principles articulated in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992), provided the justice does not insert themselves into the ITO drafting process: see Spackman, at para. 92; Locknick, at paras. 37, 39.
b. Gray does not stand for the proposition that any communication with respect to a material aspect of an ITO (or wiretap affidavit) is improper. Rather, it rests on the fact that magistrates in Winnipeg had become involved in the warrant-application process to the point where they had taken on the role of legal advisors to the police: see Clark, at para. 58. The court is not to be co-opted into partnership with the government in the drafting of further and better materials, because that approach oversteps the confines of judicial neutrality: see Canada (Attorney General) (Re), at para. 5, citing Criminal Code (Re), [1997] O.J. No. 4393, at para. 13, per Hill J.
c. Where information is provided to the authorizing justice outside the scope of the affidavit, it is “of no moment where the affidavit did provide a basis for the authorization”: Valentine, at para. 24, per Pardu J. (as she then was), citing Spackman, at para. 95.
d. The cases do not support the view that a conversation with a justice of the peace on a relevant topic prior to the warrant being issued is an independent ground to quash a warrant. While the Crown cannot rely on what was said in such a conversation to justify the warrant, the remedy is simply to excise the inadmissible evidence. Where the oral statements are nowhere recorded, the excision is easy, indeed automatic. If there is otherwise adequate written sworn evidence to support the warrant, then it should not be quashed: see Beirerback, at paras. 2-3.
e. Where the reviewing judge is satisfied that the unsworn answers provided by the affiant to the authorizing justice are repeated in the information contained in the affidavit itself, the authorization is not vitiated: see Spackman (2012), at para. 208.
Analysis
[24] For the purposes of my analysis, I make the following findings.
[25] First, I accept the affiant’s evidence that no additional topics were discussed during the telephone call and the affiant only provided clarification about which residence was to be searched. I find that the information that was provided to the justice of the peace involved only the repetition by the affiant of information that was contained in the ITO.
[26] I find that the ITO was not modified or otherwise changed as a result of this interaction between the justice of the peace and the affiant. There is no evidence to this effect, unlike in Poirier. I find that the evidence upon which the warrant was obtained was set out in the ITO. This is not a case where a judicial officer was “co-opted into partnership with the government in the drafting of further and better materials”: Canada (Attorney General) (Re), at para. 5, citing Criminal Code (Re), at para. 13.
[27] In these circumstances, I am not persuaded there should be any shift in the onus on this application. I am not persuaded by Ms. Roberts’ attempt to distinguish Pedersen. There, the record before the court was that there was communication between the affiant and the issuing justice during a telephone conversation “in the context of obtaining the warrant”. The content of the question and response during the communication were “unknown”. Even in these circumstances, the onus on the application did not shift to the prosecution. I see no reason why it should in this instance where the contents of the communication are known and where it is clear that the communication involved only the repetition of information that was already in the ITO.
[28] I find that the information regarding the premises to be searched was stated with sufficient particularity in the ITO to enable a justice to judicially decide that the warrant could be issued. The additional information sought by the justice of the peace to answer his questions reiterated nothing more than what was already contained in the ITO. The warrant could have issued regardless. In these circumstances, Ms. Roberts’ has not proven a breach of her s. 8 Charter rights.
Conclusion
[29] In the circumstances, I agree with the comments of the court in R. v. Chum Ltd., at para. 4: “It is inconceivable that the taking of additional evidence could have the effect of destroying a perfectly valid and satisfactory information, even if the Justice had no jurisdiction to take that additional evidence.”
[30] While it is always preferable that all efforts be made to follow the procedures described above in Spackman, for the reasons I have given, the fact that these procedures were not followed here does not result in a breach of Ms. Roberts’ s. 8 Charter rights. The Application is dismissed.
The Honourable Justice Laurie Lacelle
Released: December 3, 2021
COURT FILE NO.: 20-19 DATE: 2021/12/02
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Tammy Roberts, Jeremy Roberts, Christopher O’Toole and Joseph O’Toole
REASONS FOR RULING ON THE S. 8 APPLICATION
The Honourable Justice Laurie Lacelle
Released: December 3, 2021