Court File and Parties
COURT FILE NO.: 20-G20032
DATE: 2022-06-10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN
AND
CHRISTOPHER-MAIK BERNIER
BEFORE: The Honourable Mr. Justice Pierre E. Roger
COUNSEL: Samir Adam, Counsel for the Crown Christopher-Maik Bernier, Self-Represented, with some assistance from Craig Rogers
HEARD: April 28, 29, and May 6, by video conferencing, and additional written submissions by Mr. Adam on May 10 and by Mr. Bernier of May 11 and 12, 2022
REASONS FOR DECISION
Roger J.
[1] This decision concerns a Garofoli application brought by the accused, in which he asks the court to quash a search warrant and two production orders. The remedy portion of this application has not yet been argued, and whether it will be is conditional on the outcome of this application.
Background facts
[2] The accused is charged with forgery contrary to ss. 367 and 368(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. Count one alleges that between March 22 and October 1, 2018, the accused did knowingly make a false document, to wit fabricated meeting minutes, used incorrect names in a corporate document, and made a fraudulent notice, with intent that it be acted upon as genuine. Count two alleges that during those same dates, the accused knowingly used such a forged document as if it were genuine. It is essentially alleged that the accused attempted to mislead Corporations Canada over the course of an investigation into his business practices.
[3] The accused was investigated for tax fraud. During this investigation, his house was searched under a search warrant on March 21, 2018 with respect to the activities of Maple Names Inc. (“Maple Names”). Mr. Barski was the Canada Revenue Agency (“CRA”) criminal investigator team leader for the search and the affiant for the warrant. Another CRA investigator, Mr. McCurry, was on site during the search.
[4] It was discovered on July 13, 2018 that within days of his house being searched, the name of these two investigating officers appeared in corporate documents of Maple Names. A form was filed with Corporations Canada on March 22, 2018, on behalf of Maple Names, indicating that Mr. Barski and Mr. McCurry were directors of Maple Names since April 2015, along with a Mr. Harry Linn. Corporations Canada followed up by letter on August 1, 2018, requesting from Maple Names minutes of the relevant shareholders meeting and copies of relevant resolutions. By letter dated August 20, 2018, Corporations Canada received a letter apparently signed by Harry Linn, the purported chair of the board of directors of Maple Names. That letter enclosed a notarized copy of the minutes of a July 26, 2014 meeting of Maple Names that purported to elect Mr. Barski as chief financial officer and Mr. McCurry as chief operational officer. It also enclosed minutes of this meeting signed by Mr. Barski when both were apparently elected directors of Maple Names. As well, on November 5, 2018, an official from CRA notified the Royal Canadian Mounted Police (“RCMP”) that a fraudulent notice had been published on Maple Names’ website. On November 29, 2018, the CRA discovered a similar notice on the website of another company allegedly controlled by the accused, American Domain Names LLC. It is alleged that the above documents were prepared by the accused, and that they are forgeries. It is alleged that they were used by the accused submitting them to Corporations Canada and by publishing the notice on two websites to mislead the CRA’s investigation.
[5] The search warrant was signed by a justice of the peace on March 15, 2018, pursuant to s. 487 of the Criminal Code. That section authorizes a justice who is satisfied by information provided on oath, in the required form, that there are reasonable grounds to believe that there is in a building, receptacle or place anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, may issue a warrant authorizing the police to search the building, receptacle or place for any such thing and to seize it. It provides as well that a person authorized to search a computer system for data may cause to be used any computer system at the building or place to search any data contained in or available to the computer system.
[6] The warrant authorizes a search for the banking, accounting, incorporating and other records of Maple Names and American Domain Names relating to or necessary for the determination of the net Goods and Services Tax required to be reported and paid and to the alleged offence of making false or deceptive statements. It provides that the place to be searched is the residence of Mr. Bernier, provides the address of that residence, and provides that it may be searched between 6 a.m. and 9 p.m.It also authorizes a search of electronic documents by providing the following:
Electronic documents system containing computer programs or other data which may include storage device(s) or media capable of storing data, peripheral components and devices that may be reasonably necessary for the proper operation of the electronic documents system containing any data pertaining to the items described in paragraphs 1) and 2) above in digital or electronic format.
Documents/records that may be uniquely digital or electronic including but not limited to: e-mail (received or sent or in draft form); records (including deleted/hidden records, and metadata) content of past instant messaging or online chat conversations; internet artifacts or other electronic communication that are stored on or available to an electronic documents system or other digital device or storage media pertaining to the items described in paragraphs 1) and 2) above.
Data stored on any network, including the internet, and available to the electronic documents system(s) that pertains to the items described in paragraphs 1) and 2) above.
Data relating to: a) Ownership, possession, access, use, or control of the electronic documents system and/or its data; and b) The configuration of the electronic documents systems and programs.
Items required to access, make intelligible, reproduce, transfer, communicate or receive items described in paragraphs 3) to 6) above, including: a) Electronic documents system and computer components including hardware, equipment, peripheral components and devices; b) Computer programs including operating systems and software; c) Documentation and data, including manuals, operating instructions, licensing and operating data, encryption keys, whether preserved, stored or retained on any type of support, intelligible or not, inscribed by a person or an electronic documents system; d) Documentation including written memory aids containing computer access information such as user identification and passwords, which may include but is not limited to, memos, sticky notes, address books and notepads; and e) Power adapters, chargers, cables, manuals, connectors and any other device or software designated to facilitate the functioning of an electronic documents system including subscriber identity modules (SIM cards) and other flash memory devices capable of storing data, documentation or data that may provide an indication of ownership, use, control, access and configuration of items described in paragraphs 7) a) and b) above.
[7] The information to obtain the above search warrant is 44 pages, excluding its Appendix A. It appears to have been sworn by Mr. Barski, on March 15, 2018, before an Ontario Commissioner. It is detailed, describes the things to be searched for, provides particulars of his reasonable grounds, and addresses electronic documents systems and data. Mr. Barski is the lead investigator, and he outlines his information.
[8] In addition, two production and non-disclosure orders were obtained in relation to this investigation. The first production and non-disclosure orders are dated January 30, 2020 and are directed to any of the employees of fraud intelligence unit at Capital One Bank. The second are dated January 27, 2021 and are directed to any of the employees of Global Security at Amex Canada Inc. and Amex Bank of Canada. The information to obtain these documents was prepared by constable Crousset of the RCMP. The production orders were made under s. 487.014(3) of the Criminal Code.
Issues
[9] Are the search warrant and production orders valid?
General Principles
[10] Judicial authorizations are presumptively valid. When bringing such an application, the applicant bears the onus of demonstrating invalidity: see R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83.
[11] There are generally two ways to challenge a warrant.
[12] One way to challenge a warrant is to show that the record before the authorizing justice was insufficient to make out the statutory preconditions (a “facial challenge”). A facial validity challenge requires the reviewing judge to examine the information to obtain (ITO) and to determine whether, on the face of the information disclosed, the justice could have issued the warrant. The record examined on a facial review is fixed: it is the ITO, not amplified or excised.
[13] The other way to challenge a warrant is to show that the record before the authorizing justice did not accurately reflect what the affiant knew or ought to have known, and that if it had, the authorization could not have issued (a “sub-facial challenge”). Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content. Sub-facial challenges involve an amplified or excised record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified or excised on the review, the authorizing justice could have issued the warrant: see World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 120-23; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 38.
[14] The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. As indicated at para. 81 of Sadikov, the statutory standard of reasonable grounds to believe “does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability. . . If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued”.
[15] The scope of warrant review is narrow. The review is not a de novo hearing. The standard is whether there was sufficient credible and reliable evidence to allow a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search or whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: see Sadikov, at para. 84; R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 40; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54; and R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1452.
Analysis
[16] For the following reasons, I find that the search warrant and the production orders are invalid.
[17] Dealing first with the search warrant of March 15, 2018, I find that it is invalid because the information to obtain this warrant was not sworn under oath.
[18] The requirement that an ITO be sworn under oath is not a technicality or a minor point that can be overlooked. Section 487 of the Criminal Code requires that the information be provided on oath in the required form. As Pomerance J. indicates in R. v. Quesnel, 2016 ONSC 4111, at p. 7:
The requirement of the oath is a longstanding and elementary feature of warrants. The solemnity of the oath or affirmation, as the case may be, is required to ensure that the officer is attesting to his or her sincere information and belief before a warrant is acted upon to invade a citizen’s right of privacy. That critical element is missing in this case. Officer Burany never swore the first ITO. He signed it and it was signed by the clerk the next day. The absence of an oath or affirmation would render the first ITO, and if a warrant had issued, the warrant to be fatally defective.
[19] As was the case in Quesnel, it is fortuitous that we discovered that the information to obtain was not sworn. It purports to be sworn and appears, on its face, to be properly sworn. It is only during the cross-examination of the affiant, Mr. Barski, that this came out, as follows:
Q. So, I’m just going to go through this and I’m just gonna ask, is this your signature here?
A. Yes, that is my signature.
Q. Okay. And is this the signature and a stamp of the – a commissioner of oaths?
A. Yes, that is. . .
Q. Okay. And so, you signed there, it said at the beginning you swear that this is true, and below that, I would assume that [the Commissioner], that this is her statement here sworn before me at this date? . . .
A. Yes, that is hers.
Q. Okay. Alright. And so, this is not your statement, this is – this is directly below your signature, she makes her own separate statement, and it’s clear that this is hers?
A. That’s correct.
Q. Okay. All right. Okay. So, when – when you got her to sign this, like, did – do – do you take the document?
Mr. Adam: Your Honour, I’m going to object.[^1]
Q. So, Mr. Barski, so, is – is it true that, like, you signed there and then the commissioner of oaths. . . signed below, and that’s all that happened? Is that correct?
A. Yes, I – I completed the document, and I took it to her before I had to go to the courthouse, and she witnessed the - my signature, and I witnessed hers, and she stamped it.
[20] I agree with Mr. Bernier that the above question was unambiguous; it asked if the signing of the document was all that happened in the presence of the commissioner. Mr. Barski provided a detailed response, explaining that he completed the information to obtain and before taking it to the courthouse he took it to the commissioner who witnesses his signature, and he witnessed her signature and then she placed her stamp.
[21] As indicated above, the Crown objected to further questions about the commissioning of the information. I overruled the objection and allowed Mr. Bernier’s final question on this topic. The Crown re-examined Mr. Barski but did not ask Mr. Barski any question about the jurat or any follow-up question whether an oath had been administered.
[22] I find from the evidence that no oath or affirmation was ever taken. If an oath or an affirmation had been taken, Mr. Barski would have said so when he explained what happened when he signed the ITO, or, alternatively, if he inadvertently omitted to mention the oath or affirmation ceremony during his cross-examination, when he was asked “… that’s all that happened?”, this would have been pursued by the Crown during Mr. Barski’s re-examination.
[23] Although Mr. Adam points to the wording on the ITO, the mere formality of a jurat on a document cannot replace the substance of an omitted oath or affirmation ceremony. This is not a case involving a missing signature or an incomplete jurat - nonetheless with evidence that the ITO was sworn or affirmed, as is the case in HMTQ v. Dixon, Nguyen and Westover, 2012 ONSC 181, at paras. 26-37, or as is the case in the two cases mentioned in that decision. In Dixon, the judge concluded that the officer “swore to the truth of the entire package” and the judge was “satisfied that. . . [the commissioner] administered an oath to the officer”: at paras. 31, 36.
[24] Here, the evidence is that they only witnessed each other’s signature. That is not sufficient. As indicated at p. 14 of Quesnel, “the requirement of an information on oath is not a novel proposition, it is fundamental.”
[25] The warrant could not have issued if the justice of the peace had been aware of the answer to the question quoted above. This deficiency is fatal to the information to obtain and to the warrant.
[26] Dealing next with the production order and non-disclosure order of January 30, 2020, I find that they are invalid because the affiant, Constable Crousset, simply swore the ITO without knowledge of its content.
[27] A sub-facial challenge turns on what an affiant knew or ought to have known when the information to obtain was sworn, and the accuracy of the information is tested against the affiant's reasonable belief at the time, not the ultimate truth of what is asserted. Affiants do not need to conduct their own investigation; they may rely on hearsay from informants or other officers. However, an information to obtain affiant must nonetheless personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable: see R. v. Coluccio, 2019 ONSC 4559, at para. 28, citing R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250. Indeed, an affiant who swears an information to obtain without any knowledge of the evidence underpinning that information would not be able to fulfill his or her duty as affiant – as explained in R. v. Nguyen, 2011 ONCA 465, at para. 48: “It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request: Araujo, at para. 46; Morelli, at paras. 44, 55 and 58-60; R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 31 O.R. (3d) 161 (C.A.), at p. 177.”
[28] In this case, I find that the affiant swore the information to obtain without having read the source documents, and without being briefed on the contents of those documents by another officer. As a result, the affiant could not have held the necessary personal belief in the existence of reasonable and probable grounds, nor could he have discharged his duty to make full and frank disclosure. The above is apparent from the notes of Cst. Crousset.
[29] Police officers are required to make full and complete notes of the events that occurred during their tour of duty. The importance of their notes to the criminal justice system cannot be overstated. They have a duty to prepare accurate, detailed, and comprehensive notes: see e.g., Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, at paras. 62-68.
[30] The information to obtain the production order and non-disclosure order is over nine pages long. It is a detailed document. It provides a thorough overview of the investigation and provides detailed information supporting the grounds for belief. The factual background is somewhat complicated, involving corporations allegedly controlled by the defendant, yet the information to obtain is concise, clear, and precise. It is a document that would have required more than one day to prepare or more than a few hours to be properly briefed upon.
[31] Yet, the relevant notes of Cst. Crousset, who was not involved in the investigation, are limited to two entries made on January 30 and 31, 2020:
- On January 30, 2020, at about 10:55 a.m., Cst. Mathieu Crousset gave his ITO, Production Order, ITO and Non-Disclosure Order to the Ottawa Court for review from Judge or Justice.
- At about 3:32 p.m., Cst. Crousset received a call from the Ottawa court letting them know that the orders were approved and ready.
- On January 31, 2020, at about 9:15 a.m., Cst. Crousset took possession of the signed and approved PO and Non-Disclosure Order.
- At about 9:57 a.m., Cst. Crousset served Fraud Intelligence Unit, Capital One the PO and Non-Disclosure Order.
[32] We can see from his notes that Cst. Crousset is quite a detailed note taker. He carefully notes when he brought these documents to court, when the documents were ready, when he picked them up, and when he served them. He is clearly aware of his obligation to prepare accurate, detailed, and comprehensive notes. However, despite this, he has no notes of reviewing the more than 23 documents referenced in his ITO and has no notes of working on and drafting these documents. As well, or alternatively, he has no notes of being briefed about this matter.
[33] During his cross-examination, Cst. Crousset agreed that he is aware that he is required to take detailed and accurate notes during an investigation. He also agreed that these are his notes and that he has no other notes. In an earlier endorsement, I had ordered the Crown to take steps to ensure that all relevant notes have been produced.
[34] From the evidence, I find that Cst. Crousset simply signed the information to obtain without knowledge of its content.
[35] As a result, for the reasons indicated above, the production order and non-disclosure order of January 30, 2020 are invalid.
[36] Finally, with regards to the production order and non-disclosure order of January 27, 2021, I find that they are invalid because (1) the affiant, Cst. Crousset, simply signed the information to obtain without knowledge of its content, or, in the alternative, (2) the information to obtain is not on oath as required by s. 487.014(2) of the Criminal Code.
[37] The same analysis is applicable to the first ground. The information to obtain of January 27, 2021 is a slightly updated document that references over 25 enclosures. Yet, again, the relevant notes of Cst. Crousset make no mention of any time spent preparing these documents or of being briefed. As indicated above, he was not involved in the investigation. His notes provide, quite similarly to the above:
- On January 27, 2021, at about 10:00 a.m., Cst. Mathieu Crousset gave his ITO, Production Order, ITO and Non-Disclosure Order to Ottawa Court for review from Judge or Justice.
- At about 12:01 p.m., Cst. Crousset received a call from Ottawa Court letting him know that the orders were approved and ready.
- At about 14:05 p.m., Cst. Crousset took possession of the signed and approved PO and Non-Disclosure Order. (Justice of the Peace T. PASCH)
- At about 14:45 p.m., Cst. Crousset served Global Security, Amex Canada lnc., Amex Bank of Canada the PO and Non-Disclosure Order.
[38] Therefore, as above, I find that Cst. Crousset swore the ITO of January 27, 2021 without having read the source documents, and without being briefed on the contents of those documents by another officer. As a result, constable Crousset could not have held the necessary personal belief in the existence of reasonable and probable grounds, nor could he have discharged his duty to make full and frank disclosure.
[39] Moreover, as indicated above, I find that the information to obtain was not sworn or under oath.
[40] From the Crown’s perspective, this application initially proceeded on the basis that the ITO of January 27, 2021 had been commissioned at Ottawa, in the province of Ontario, before an authorized person. Indeed, on its face, the information purports to have been sworn at Ottawa, in the province of Ontario, before a lawyer, a Mr. Mathieu Cloutier. The Crown filed no evidence on this application or on any of the many applications brought by the accused. At the conclusion of this application, the Crown argued that there was no evidence that Mr. Cloutier had not been authorized to accept the oath of Cst. Crousset – it was then assumed that this had happened at Ottawa, as stated in the jurat, and the Crown relied upon and argued the presumption of regularity.
[41] However, Mr. Bernier had put some information to Cst. Crousset during his cross-examination, the Law Society of Ontario website, which suggested that Mr. Cloutier might not be an Ontario lawyer, and therefore possibly not authorized to commission an oath in the province of Ontario. The Crown disputed this and agued that the electronic document presented by Mr. Bernier to Cst. Crousset was not admissible to prove the truth of the fact that Mr. Cloutier was not an Ontario lawyer and therefore argued that Mr. Bernier had not met his onus. I was troubled that the court did not know what, frankly, it should have: whether Mr. Cloutier was or was not authorized to take an oath in Ontario. I required the Crown to inquire and advise by email if Mr. Cloutier was or was not authorized to take an oath in Ontario, and, if he was, to provide a supporting affidavit from Mr. Cloutier.
[42] What I received from the Crown was an affidavit from Mr. Cloutier confirming that he is a Quebec lawyer, but also stating that the information to obtain, contrary to what is stated in the jurat, was actually sworn at Mr. Cloutier’s home in Chelsea, Quebec.
[43] On a balance of probabilities, I do not accept the evidence of Mr. Cloutier that the ITO was sworn in the province of Quebec because:
- It contradicts the jurat which provides “Sworn before me at Ottawa, in the province of Ontario…”.
- It contradicts the evidence of Cst. Crousset, given during his cross-examination (see pp. 10-12 of the transcript), that he met with Mr. Cloutier in Ontario:
Q. Okay. And – and to your knowledge, at least, he’s not a – a commissioner of oaths appointed by the province of Ontario. Correct?
A. To my knowledge, when I contacted him during COVID to be the commissioner of oaths of my production order, he told me that he was allowed to do it. So, I went to meet with him and that’s where he did the commission of oath for that production order … When I contacted him, all I can tell you, is when I contacted him, I asked him if [he] could do it. And he told me, “yes”. And that’s where we met up and then he did the commission of oath for my – for that document.
- It was clear from the questions that the ITO had been commissioned in Ontario, and that Cst. Crousset was referring to Ottawa, Ontario, when he twice mentioned “that’s where”.
[44] As well, I find unreliable the evidence of Mr. Cloutier that the ITO was sworn in the province of Quebec. Mr. Cloutier states that this happened at the start of the COVID pandemic, when this ITO had actually been sworn on January 27, 2021, more than ten months into the pandemic. Mr. Cloutier remembers a conversation with Cst. Crousset and remembers that they met at his Chelsea residence for what he describes as a non-event: a “process [that] lasted only a few seconds”. He states that he has “no recollection of the exact date or time that these events transpired” and that he has “no. . . notes in regards to the said affidavit”. Moreover, at the start of his affidavit, Mr. Cloutier states “Mathieu Cloutier, attorney, practicing at 219 Laurier Avenue West, Ottawa, Province of Ontario”, an address that coincides with Cst. Crousset’s recollection that the information was sworn at Ottawa. Finally, it seems more probable that if Mr. Cloutier had commissioned this ITO in the province of Quebec, he would have quickly corrected the jurat to indicate that it was being sworn in Chelsea, in the province of Quebec. Moreover, Mr. Cloutier does not say if this was the only time that he commissioned an affidavit for Cst. Crousset, and when I consider the evidence relating to this, what seems more probable is that what Mr. Cloutier remembers is another occasion of commissioning an affidavit for Cst. Crousset occurring “at the beginning of the COVID-19 pandemic”.
[45] Not being authorized to commission an affidavit in Ontario where it is sworn is not a technicality or some minor point that can be overlooked.
[46] As a result, for the reasons indicated above, the production order and non-disclosure order of January 27, 2021 are invalid.
[47] The above is sufficient to dispose of this application. Nonetheless, I will indicate that I would not have accepted the many other arguments raised by Mr. Bernier in support of this application.
Conclusion
[48] The accused’s application seeking to quash the warrant to search of March 15, 2018 and the production and non-disclosure orders dated January 30, 2020 and January 27, 2021, respectively, is granted. A time to argue the appropriate remedy will be scheduled at the next case conference.
Released: June 10, 2022 Justice Pierre E. Roger
COURT FILE NO.: 20-G20032
DATE: 2022-06-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
CHRISTOPHER-MAIK BERNIER
Respondent
REASONS FOR DECISION
Pierre E. Roger J.
Released: June 10, 2022
[^1]: The objection was over the scope of the allowed cross-examination. I allowed the question, but asked Mr. Bernier to quickly focus on the allowed areas of cross-examination.