COURT FILE NO.: 20-G20032
DATE: 2022-08-29
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: July 13, 14, and 26, 2022, by video conferencing
REASONS FOR DECISION
Roger J.
[1] This decision should be read with my earlier decision of June 10, 2022, reported at R. v. Bernier, 2022 ONSC 3524. The background facts are sufficiently outlined in that decision.
[2] In that earlier decision, I found the applicable search warrant and two production orders invalid. The resulting remedy was undecided at that time.
[3] I concluded that the search warrant of March 15, 2018, was invalid because I found that the information to obtain this warrant (the “ITO”) was not sworn under oath. I found that the affiant and the commissioner signed the ITO in the presence of one another, but that an oath was not administered.
[4] I concluded that the production order of January 30, 2020, was invalid because I found that the affiant police officer simply swore the ITO without knowledge of its content. The affiant police officer has no notes pre-dating the swearing of the ITO. In the absence of evidence explaining how a police officer who allegedly prepared a detailed ITO did not have notes about writing the ITO, I found that the officer was probably not the person who prepared the ITO. As a result, the officer 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.
[5] Finally, I concluded that the production order of January 27, 2021, was invalid for two reasons. I found, for the same reasons as above, because the affiant police officer did not have notes of working on the ITO, that he signed this ITO without knowledge of its content. I also found that the ITO was not taken under oath because it was signed in Ontario before a person authorized to commission affidavits in the province of Québec.
[6] Dates were set in July 2022 for the parties to argue the appropriate remedy, particularly whether the resulting evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. However, while hearing arguments on the remedy portion of this Garofoli application, I decided that the police officer who had sworn the two ITOs, resulting in the production orders of January 30, 2020, and of January 27, 2021, should be recalled to address whether he had prepared these two ITOs and explain why he has no notes relating to his alleged efforts.
[7] My earlier findings, that the absence of notes meant that the officer had probably not prepared these two ITOs, were made on a limited evidentiary record. Indeed, because of how the evidence had been presented and because of an earlier finding limiting cross-examination, Mr. Bernier’s argument that the officer had not prepared the ITOs could not have been put to the officer during the initial cross-examination. I decided to recall the officer because I became concerned that hearing from the officer about the lack of notes was required to ensure that this application be decided fairly and on its merits.
[8] The affiant, Constable Crousset, was therefore produced again on July 26, 2022. He testified in chief that he prepared the two ITOs. He explained the process that he followed and what he reviewed. He said that it took him over one and a half weeks to write each ITO. With regards to the complete absence of notes, he explained that his notes about writing each of the ITOs are found in the ITOs. Cst. Crousset said that the content of the ITOs includes what he reviews and who he speaks to and, therefore, he does not make separate notes about writing an ITO. During his cross-examination, Cst. Crousset was unshaken that his notes about writing the ITOs are in the ITOs. He explained that he has no separate notes about working on the ITOs because he took no investigative step apart from preparing the ITOs and was not otherwise involved in the investigation.
[9] It would have been preferable for the officer to have made separate notes about these tasks, including when he was assigned to write each of the two ITOs, what he reviewed and who he spoke to because notes assist the purpose of disclosure. However, after hearing from Cst. Crousset, I am nonetheless now satisfied that Cst. Crousset prepared the two relevant ITOs.
[10] I therefore reverse my earlier findings that Cst. Crousset had not prepared the two relevant ITOs.
[11] Consequently, my earlier decision of June 10, 2022, reported at R. v. Bernier, 2022 ONSC 3524, is accordingly varied and now provides:
a) the search warrant of March 15, 2018, is invalid because the information to obtain this warrant was not sworn under oath - this finding remains unchanged because the above correction that Cst. Crousset prepared the two relevant ITOs does not impact this finding;
b) the production order of January 30, 2020, is valid – this correction to my earlier decision is required because, on the expanded record generated after hearing from Cst. Crousset, I find that Cst. Crousset prepared the supporting ITO; and
c) the production order of January 27, 2021, is invalid, but only on the ground that the information to obtain this production order was not under oath – this correction to my earlier decision is required because on the expanded record I corrected my earlier finding and find that Cst. Crousset prepared the relevant supporting ITO.
Issues
[12] Whether the evidence resulting from the search warrant of March 15, 2018, and from the production order of January 27, 2021, should be excluded.
Applicable Principles
[13] Evidence must be excluded under s. 24(2) of the Charter when its admission would bring the administration of justice into disrepute.
[14] Assessing whether a reasonable person would conclude that the admission of evidence would bring the administration of justice into disrepute requires the court, taking into account all relevant circumstances, to consider (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353.
Analysis
[15] Dealing first with the search warrant of March 15, 2018, I find that the state conduct was moderately serious, which militates in favour of exclusion.
[16] Although it is the commissioner of oaths’ responsibility to ensure that the swearing process follows the correct procedure, failing to properly administer the oath cannot be trivialized; it is an integral part of the warrant issuing process. The absence of a valid oath is impossible to detect by the signing justice. The requirement of a valid oath should be well known to the police and its commissioners of oaths. Moreover, although this case is factually different from the circumstances in R. v. Quesnel, 2016 ONSC 4111, 357 C.R.R. (2d) 284, this was nonetheless likely a recurrent shortcoming of this commissioner. As well, the facts of this case may be distinguished from the cases relied upon by the Crown in support of its arguments that such a breach is not serious. For example, in R. v. Chen, 2016 BCCA 506, 372 C.R.R. (2d) 1, the breach did not impact the authority of the warrant. In R. v. Jordan, 2011 ABQB 105, 506 A.R. 163, the warrants were granted on ITOs that were subsequently sworn. In Williams v. R., 2018 NBCA 70, 367 C.C.C. (3d) 263, although the jurat was missing, the ITO had been sworn. The facts in R. v. Blake, 2010 ONCA 1, 204 C.R.R. (2d) 156, are different.
[17] However, both the impact of the breach and society’s interests militate in favour of admission.
[18] Mr. Bernier enjoyed a high expectation of privacy in his home and his computers. Mr. Bernier also had a high expectation of privacy in his personal financial records, including his bank statement. However, these impacts on the Charter-protected interests of Mr. Bernier are mitigated by the fact that the ITO contained sufficient grounds to justify the issuance of the search warrant, such that the seized documents would have been validly seized had the ITO been properly sworn. As well, Mr. Bernier’s use of his home to conduct the alleged business activities and Mr. Bernier’s steadfast denials of any proprietary or controlling interest in either of the corporations, mitigate his reasonable expectation of privacy. When all circumstances are considered, the second ground militates slightly in favour of admission.
[19] I agree with Mr. Bernier that a reasonable person might conclude that the facts of this forgery case, unlike those before the Ontario Court of Justice, are not serious. However, a reasonable person would nonetheless wish that this case be decided on its merits. On balance the third factor militates in favour of admission.
[20] Overall, when I balance the relevant circumstances, I find that a reasonable person would not conclude that admitting the evidence generated by this warrant would bring the administration of justice into disrepute.
[21] I arrive at the same result when I consider the production order of January 27, 2021.
[22] First, although I find this breach serious, it is much less serious than what occurred for the above March 15, 2018, warrant. Here, the failure to have the ITO properly sworn was likely an isolated error. It probably occurred at least in part due to the pandemic related lockdown. And this breach was likely unbeknownst to Cst. Crousset.
[23] Both the second and third Grant factors militate more strongly in favour of admission, such that on balance a reasonable person would not consider that admitting the resulting evidence would bring the administration of justice into disrepute.
[24] The above analysis for the second Grant factor is applicable to the January 27, 2021, production order. Further, Mr. Bernier’s reasonable expectation of privacy is diminished by the fact that the Amex bill generated by this order is a record of American Domain Name, and by the fact that this document does not reveal much about Mr. Bernier’s lifestyle and personal choices. Thus, the impact of the breach on Mr. Bernier’s Charter-protected interests are relatively minimal.
[25] The above analysis relating to the third Grant factor is applicable to this production order. As well, some of Mr. Bernier’s arguments seem to conflate ultimate admissibility with the question of exclusion or inclusion of the evidence.
Conclusion
[26] Mr. Bernier’s application to exclude the evidence generated by the search warrant of his residence and by the production orders relating to CapitalOne and Amex is dismissed.
Addendum
[27] Considering my revised decision that Cst. Crousset prepared the two relevant ITOs, I will provide brief additional reasons explaining why I dismissed the other grounds of invalidity argued by Mr. Bernier.
[28] As stated in my earlier decision, judicial authorizations are presumptively valid; the onus of demonstrating invalidity was on Mr. Bernier. The scope of a warrant review is narrow, it is not a de novo hearing. The applicable standard is whether there was reliable evidence that might reasonably be believed on which the warrant could – not would – have issued.
[29] Here, in all three cases, the record before the authorizing justice was sufficient. In other words, on the face of the information disclosed, a justice could have issued the warrant and the production orders.
[30] Even accepting some of the arguments of Mr. Bernier that the records before the authorizing justices did not accurately reflect what the affiants knew or ought to have known, I found that all three authorizations could nonetheless have issued. In that regard, I found that Mr. Barski provided accurate information about his site visits and about the offices being virtual offices.
[31] Mr. Bernier’s arguments that the production orders are invalid because the signature of the justice is not legible or is not clearly identified as that of a judge, were not accepted because they are not supported by the facts or by the authorities. The evidence establishes that Cst. Crousset delivered the ITOs and the production orders to the Court, to be reviewed by a judge, and Mr. Bernier did not rebut the presumption of regularity that the production orders were signed by a justice: see the decision of Watt J. in R. v. Kapoor, 1989 CanLII 7250 (ON SC), 52 C.C.C. (3d) 41 (Ont. H.C.J.).
[32] Mr. Bernier’s arguments that Cst. Crousset and the commissioners signed the ITOs in the wrong location were, for the same reasons, of no consequence. As well, I did not accept Mr. Bernier’s arguments that Amex Canada could not disclose the credit card information because these documents were included by the production order and were in the possession of Amex Canada.
[33] The ITO for the warrant of March 15, 2018, sufficiently describes electronic documents to include Mr. Bernier’s computers and electronic devices: see R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, paras. 128-133. I also found, considering the evidence, that the execution of this warrant was reasonable as I did not accept Mr. Bernier’s arguments. Similarly, I found that the report to the justice was reasonable.
Released: August 29, 2022 Mr. Justice Pierre E. Roger
COURT FILE NO.: 20-G20032
DATE: 2022-08-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER-MAIK BERNIER
REASONS FOR DECISION
Pierre E. Roger J.
Released: August 29, 2022