COURT FILE NO.: CR-21-1132 (Walkerton)
DATE: 2023 12 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
Respondent
- and -
Randy Wrightson and Karen Bursey
Applicants
Brenda Lawson, for the Crown
Paul Lewin for Randy Wrightson Douglas Gosbee for Karen Bursey
HEARD: June 26, 27, 28, 29, October 31, and November 1, 2, 3, 2023
CHARTER - SECTIONS 7 and 8 APPLICATION TO EXCLUDE EVIDENCE
REASONS FOR DECISION
Sproat J.
OVERVIEW
[1] The following facts set out in the Applicants’ joint factum are either admitted or not contentious:
The Applicants, Randy Wrightson and Kelly Bursey, are charged with possession of cannabis for the purpose of distribution contrary to section 9(2) of the Cannabis Act, S.C. 2018, (the “Cannabis Act”) possession of cannabis for the purpose of selling contrary to section 10(2) of the Cannabis Act and possession of property obtained by crime contrary to section 354(1)(a) of the Criminal Code. The date of offence is April 24, 2020.
The Applicants, Randy Wrightson and Kelly Bursey, assert that their section 8 rights under the Charter of Rights and Freedoms (the “Charter”) were violated by the search of their residence (the “Applicants’ residence”) and the search of their bakery/coffee shop (the “Ashanti Coffee Shop”).
A Telewarrant to Search (the “Search Warrant”) was granted permitting the police to search the Applicants’ residence and the Ashanti Coffee Shop on April 24, 2020. The Search Warrant was granted on the basis of an April 23, 2024 Information to Obtain Search Telewarrant of DC Susan Briggs (the “ITO-SW”).
On April 24, 2020 the police searched 136 Breadalbane Street which is where Derek Wrightson resided with his two young children. Derek Wrightson was a single father after the mother to his child passed away. Derek Wrightson is Randy Wrightson’s nephew.
A large amount of cannabis products were found at 136 Breadalbane St. After the search of 136 Breadalbane St., the police searched the Applicants’ residence and the Ashanti Coffee Shop. The Applicants, Randy Wrightson and Kelly Bursey, live less than 10-minute drive (if no traffic) from 136 Breadalbane St. (maybe 8 kilometres away).
In the safe at the Ashanti Coffee Shop there was about $4,500 in cash.
The red Dodge Ram was tracked from April 1, 2020 to April 24, 2020. The Tracking Warrant data revealed that the red Dodge Ram attended Guelph on three occasions (April 4, 19 and 23, 2020). On each occasion on the return, when the red Dodge Ram returned to Saugeen Shores the vehicle attended at 136 Breadalbane St. The Tracking Warrant data also revealed that the red Dodge Ram usually attended at 136 Breadalbane St. in the morning and in the afternoon. Both Randy Wrightson and Derek Wrightson have been seen driving the red Dodge Ram.
[2] The Charter applications are as follows:
a) Section 8 - to exclude the evidence seized in a search of the Ashanti Coffee Shop and the apartment above the coffee shop on the basis that the ITO, as corrected or excised, failed to disclose reasonable and probable grounds to believe that an offence had been committed and that evidence of the offence would be found at the specified place and time.
b) Section 8 - to exclude the evidence seized on the basis that the search of the residence was conducted in an unreasonable manner including that the police broke the door down and entered on a “no knock” basis.
c) Section 7 – to exclude the evidence seized on the basis that the cannabis found in the Applicant’s apartment was planted there by the police.
[3] It was agreed that the police evidence given on the Charter application, with the exception of D.C. Briggs, would also be taken as evidence at trial. D.C. Briggs’ evidence from the preliminary hearing would, however, constitute evidence on the Charter applications. The evidence given at the preliminary hearing by P.C. Hartley, who suffered an injury and cannot testify, was agreed to be taken as evidence on the trial. Testimony by the Applicants and other evidence on the application, such as the preliminary inquiry transcripts, would not be taken as evidence on the trial.
[4] The following police witnesses testified:
a) Cst. Sachs
b) Cst. Potter
c) Cst. Luscombe
d) Insp. Mighton
e) Cst. Duffy
f) Sgt. Fletcher
g) D.C. Briggs
h) D.C. Down
i) Sgt. Matheson
[5] Mr. Wrightson and Ms. Bursey testified on the application.
The ITOs
[6] D.C. Briggs, of the Saugeen Shores Police Service (SSPS) was the affiant of the April 23, 2020 ITO to search the Applicants’ residence and the Ashanti Coffee Shop. I summarize the ITO as follows:
a) in February, 2020 she received a Crime Stoppers tip that Randy Wrightson was trafficking a large quantity of cocaine and cannabis and using a website to sell cannabis.
b) a website weedmaps420.com provided a link to Bruce County Bud offering cannabis for sale, with free delivery, in Saugeen Shores.
c) on March 3, 2020 she received a report regarding an anonymous tip that on February 29, 2020 a person driving a red Dodge Ram registered to Randy Wrightson approached the tipster and asked if he was there for the pickup which the tipster interpreted related to drugs.
d) CI #1, proven to be reliable on more than one occasion, in a July 2019 statement, advised that Randy Wrightson had been at a Port Elgin residence with what appeared to be more than a pound of marihuana.
e) on March 13, 2020 Waterloo police advised her that, based upon a telecommunication data recorder, Randy Wrightson and Matthew Wrightson had been in frequent communication with Neil Mallaley, a drug target they were investigating. Mallaley had 74 criminal convictions 1994 including possession for the purpose of trafficking in 2019.
f) on March 18, 2020 she observed a vehicle parked outside 402 Wellington Street which is the residence of Randy Wrightson’s son Matthew. The vehicle departed and was then stopped. The driver was Jayden Clayton and after being stopped he was observed texting. The Applicants soon arrived and wanted to know what was going on. Further investigation revealed that a backpack in the vehicle contained a March 17, 2020 handwritten note listing telephone numbers, addresses and descriptions of marihuana that corresponded to types of marihuana listed on the Bruce Bud website such as Durban and Mango Platinum. Clayton was arrested and charged and found to have $925 in cash in his wallet.
g) she also received information that the vehicle Clayton had been driving had, on March 9, 2020, been observed at 250 Elgin St., at which the driver went to the door and remained far less than a minute. This was an address listed on documents seized from Clayton on March 18, 2020.
[7] D.C. Briggs was also the affiant on the ITO the tracking warrant. This ITO largely duplicated the search warrant ITO.
APPLICATION FOR LEAVE TO CROSS-EXAMINE AFFIANT OF ITO
Correct Address of the Premises to be Searched
[8] Mr. Lewin sought to cross-examine concerning the confusion with respect to the address of the Applicants’ residence.
[9] In so far as it relates to the Applicants, the search warrant authorized the entry and search of premises described as:
a) apartment of Randy Wrightson and Kelly Bursey – 672 Goderich Street, Unit #5, Port Elgin (Town of Saugeen Shores).
b) Ashanti Coffee Shop owned and operated by Randy Wrightson and Kelly Bursey – 672 Goderich Street (store front address of 676 Goderich Street) Port Elgin, ON.
[10] The Applicants’ factum states:
The Search Warrant and the ITO-SW describe the Applicants’ residence as “672 Goderich Street unit #5 Port Elgin” and the Ashanti Coffee Shop as “672 Goderich Street (store front address of 676 Goderich Street) Port Elgin, ON.”
If one were facing the building on the right would be Ashanti Coffee Shop at the corner of Mill Street and Goderich Street. To the left of Ashanti Coffee Shop is the unit that leads up to the Applicants’ residence. To the left of the Applicants’ residence is Chester’s Bar and Grill.
DC Briggs reviewed Bruce County Maps website which indicated that the building that contains the Applicants’ residence and the Ashanti Coffee Shop was 672 Goderich Street.
Documents obtained from the Land Registry Office #3 (Bruce) seem to suggest that the address that DC Briggs describes as 672 Goderich Street is in fact three addresses, namely, 672, 674 and 676 Goderich Street, Port Elgin. This would tend to suggest that Ashanti Coffee Shop has an address of 676 Goderich Street, the Applicants’ residence has an address of 674 Goderich Street and Chester’s Bar and Grill has an address of 672 Goderich Street.
[11] At the preliminary hearing (October 18, 2021, pp. 19 – 24) the affiant testified:
a) that she looked at Bruce County mapping online which gave the entire building address of 672 Goderich St.;
b) the police database had a different address for the storefront;
c) she does not recall there being any physical numbers attached to the building;
d) in making her observations she did not want to be observed and so it wouldn’t surprise her if there was a small number 674 next to the door that leads to the Wrightson-Bursey residence;
e) “It appears that 676 Goderich Street address was being used for the Ashanti storefront” (in fact, a sign on the building indicates Ashanti is 676);
f) she doesn’t know if the land registry office would provide municipal addresses. For confidentiality reasons she did not want to attend a town office and ask questions.
[12] The Bruce County mapping website includes various disclaimers including that it does not constitute a legal survey document; there is no warranty that is accurate; and that it is strongly recommended that, before acting on information on the site, users should independently verify the data.
[13] The Applicants filed an affidavit from a real estate lawyer retained to search the land registry office. He learned that, according to the last registered transfer of the property and the tax assessment roll, the building included 672, 674 and 676 Goderich Street. He also indicated that the land registry information could be obtained online which would negate any concern about in person inquiries causing suspicion and compromising the investigation.
[14] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 Sopinka J. stated:
112 With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds.
[15] In R. v. Lising, 2005 SCC 55 Charron J. stated:
[40] As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.
[41] In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization.
[42] The fact situation in Garofoli itself provides a good example of a situation where the proposed cross-examination was directed not only at the lack of credibility of the informant but at the affiant’s likely awareness of that fact. The informant alleged that he had been approached by Garofoli and another individual in Hamilton with an offer to supply him with two kilograms of cocaine. In his affidavit, Garofoli stated that he lived in Florida at the relevant time. He further stated that the officer in charge of the case was well aware that he was living in Florida and that he only travelled back to Hamilton in connection with his court appearances. Furthermore, information from the informant person was critical to establishing the requisite reasonable grounds. Sopinka J., for the majority, found that the appellant had shown a basis for the cross-examination:
In my opinion, the appellant has shown a basis for the cross-examination here. In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined. If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied. If the police were not warranted in their belief that the information was true, then the basis for the belief that a crime was to be committed disappears. Accordingly, the appellant should have been permitted to cross-examine. Cross-examination having been denied, there must be a new trial [p. 1466]
[16] In argument I indicated to Mr. Lewin that I was having some difficulty in seeing what cross-examination could accomplish. I pointed out that the Notice of Application did not allege that D.C. Briggs intentionally misled the issuing justice. Mr. Lewin responded that his position was that D.C. Briggs had been reckless in identifying the address and that this was tantamount to acting intentionally to mislead.
[17] I do not see any reasonable inference that D.C. Briggs was attempting to mislead the issuing justice as to the correct address. She would derive no benefit from doing so. How the error came about was explored in detail at the preliminary hearing and that evidence is before the court on the Charter applications. As such, I denied leave to cross-examine on this issue.
Discrepancy Between the Crime Stoppers Tip and the ITO
[18] In addition, Mr. Gosbee initially sought to cross-examine on the particulars of the ITO relating to information from Crime Stoppers. The ITO indicated that a Crime Stoppers tip had been received which indicated that:
a) Wrightson was trafficking a large quantity of cocaine and illicit cannabis in the Guelph and Saugeen Shores area;
b) Wrightson bought a website “Weedmaps 420” which he used to sell and deliver the cannabis; and
c) a majority of the tip had been corroborated through police investigations and occurrences.
[19] At the preliminary hearing the affiant testified that when she swore the ITO she was aware that:
a) the police investigation failed to find evidence of cocaine trafficking; and
b) Weedmaps420.com provided links to persons supplying cannabis including Bruce County Bud. There was, however, no evidence that Wrightson bought or owned the website.
[20] In argument Mr. Gosbee indicated that, after further consideration, he was satisfied that he could make the arguments that he wished to make without the necessity of cross-examining the Applicant.
Execution of the Search Warrants
Chronology – April 24, 2020
[22] A brief chronology will assist in putting individual pieces of evidence in context. While there was some slight variation in the times given by various officers, the following is precise enough for that purpose.
[23] On April 24, 2020:
a) 8:36 a.m. – police briefing
b) 12:56 p.m. – Derek Wrightson’s vehicle stopped and he is arrested
c) 12:38 p.m. – police briefings at the firehall
d) 1:50 p.m. – warrant executed at 136 Breadalbane St.
e) 2:17 p.m. – Matthew Wrightson’s vehicle is stopped and he is arrested
f) 3:00 – 3:13 p.m. – police briefing concerning execution of search warrant at Goderich St. building
g) 3:26 p.m. – search warrant executed at Goderich St. apartment and Applicant’s found in apartment and arrested
h) 3:46 p.m. – 1:41 minute entry video at Goderich St apartment recorded by Insp. Mighton
i) 3:59 p.m. – search of Goderich apartment begins. Insp. Mighton is the scene of crime officer (“SOCO”). Officers Down, Hartley and Matheson conduct the search of 136 Breadalbane St.
Search of 136 Breadalbane St.
[24] D.C. Sachs testified that he was the SOCO, and that Sgt. Fletcher was the exhibits officer, for the execution of the search warrant at 136 Breadalbane. He approached the property from the rear and he and Sgt. Fletcher went to a trailer parked behind the house. They forced the door to the trailer open and no persons were inside. Approximately 9,000 g of cannabis and edibles was seized from the trailer. $9,972 in cash, and scales with 50 g. and 100 g. weights, was seized from the house.
[25] While he did not make a note of it, D.C. Sachs testified that he and Sgt. Fletcher discussed the fact that one of them would at all times have eyes on the trailer to ensure that no one entered.
[26] As the SOCO, D.C. Sachs recorded an entrance video showing how the house looked when entered. This included filming the front door of the house. As such, he was away from, and out of sight of, the trailer for some period of time.
[27] Sgt. Fletcher testified that he arrived on scene shortly after 1:20 p.m. and by 1:46 p.m. he was standing by the trailer and securing it. He acknowledged that he moved his police vehicle to the front driveway of the residence. He testified that he would have instructed another officer to watch over and secure the trailer.
[28] Insp. Mighton testified that he was present for the execution of the search warrant at 136 Breadalbane and later attended the Goderich St. apartment when the search warrant was executed there.
[29] Insp. Mighton testified that Sgt. Fletcher asked him to look in the trailer. D.C. Sachs was also present. He went into the trailer briefly. He understood Sgt. Fletcher wanted him to see the magnitude of what needed to be done to process the amount of cannabis.
[30] Insp. Mighton testified that he was alone in the apartment while recording the entrance video because it is standard practice to ask officers to not be present as that blocks the view of the camera.
[31] It was suggested in cross-examination that Insp. Mighton took two fairly large bags of marijuana from the trailer behind 136 Breadalbane and planted those bags in the lining to a futon couch when he was alone in the Goderich St. apartment filming the entrance video prior to a search of the apartment.
[32] Insp. Mighton vehemently denied having planted cannabis bags in the futon. In addition to his denial, he pointed to a number of factors that in his view would make it absurd to plant evidence as was suggested to him. He pointed to the difficulty of taking the two large bags of cannabis from the trailer without detection and the fact that he would have cannabis, with a potentially pungent odour, in his police vehicle when he went out to do a traffic stop on Matthew Wrightson. There would be the same risk of detection if he then took the cannabis into the Goderich Street apartment. He also pointed to the limited time he would have to plant evidence because the other officers were only being excluded from the apartment while he did what all concerned would realize would be a very short entrance video. In fact, the video was less than two minutes.
[33] Mr. Wrightson testified. In chief Mr. Wrightson acknowledged that on two occasions in April 2020, on behalf of his nephew Derek, he went to Guelph to pick up cannabis which he then dropped off at 136 Breadalbane St.
[34] On April 24 at approximately 1:00 – 1:30 p.m. Mr. Wrightson learned that Derek Wrightson had been arrested. Mr. Wrightson then believed that the police would be coming to talk to him or arrest him given that he had picked up cannabis in Guelph and delivered it to Derek’s residence.
[35] Mr. Wrightson denied any knowledge of the two bags of cannabis found in the futon in his living room. He referred to the fact that the photo of the futon in evidence has a pole sticking out of the back. He described this as an additional support which would only be used if you wanted to lay down on the futon. He said his dog typically slept behind the futon and the pole was not sticking out ordinarily. Mr. Wrightson was also directed to a photo showing a black object on the bathroom counter which he said was a massager left by a prior tenant that had always been kept in the closet.
[36] Mr. Wrightson testified that if he wanted to store cannabis in the building there was a vacant space which had a lot of junk inside and he also had access to an old basement that had empty freezers and other unused material. He could have stored cannabis there and not in his residence.
[37] He also testified that the way the cannabis was stored in the futon it would hit you in the back and you would feel it if you were sitting on the futon. The smell might also be detected. He also made reference to the fact that his dog sleeps behind the futon and his dog commonly eats things it shouldn’t. This was an additional reason why he would not have stored cannabis there.
[38] In cross-examination Mr. Wrightson testified that he knew that his nephew Derek was involved in selling cannabis products and that he had a lot of friends working for him.
[39] Ms. Bursey testified that she had a criminal record consisting of two convictions in 2004 for theft under and failing to comply with an undertaking; theft under in 2016 and impaired driving in 2021.
[40] She was aware of the fact that Mr. Wrightson had picked up cannabis in Guelph and delivered it to 136 Breadalbane.
[41] Ms. Bursey testified that she would regularly lay down on the futon and that she would have noticed if the cannabis was there. It was not her cannabis and to the best of her knowledge it was not Mr. Wrightson’s.
[42] Mr. Wrightson told her that he had received a call that Derek Wrightson had been arrested by police. They both thought that the police would soon be coming so she closed the coffee shop early. From the apartment she could see 5 – 6 officers so they knew the police were coming.
[43] In cross-examination Ms. Bursey denied hiding the bags of cannabis in the futon.
Entry and search of Goderich St. Residence and Ashanti Coffee Shop
[45] D.C. Briggs testified that she did not provide any guidance at the briefings as to whether or not there should be a “no knock” entry to the Applicant’s Goderich Street residence. She indicated that the Owen Sound officers, as well as Insp. Mighton, had a great deal of experience in executing drug warrants so she expected them to proceed appropriately.
[46] Cst. Potter testified that, with a battering ram in hand, he was first in a line-up of officers who went to the front door to the Applicants’ apartment on Goderich St. He stood aside and another officer announced “police – search warrant”. That officer may also have knocked or rang a bell. Cst. Potter testified that he had been, in essence, instructed, “when we announce you hit the door”.
[47] In chief Cst. Potter indicated that he waited about 10 seconds from the announcement until he hit the door. In cross-examination he said it could have been only 2 seconds. He also agreed that there was not enough time to allow any occupant to answer the door as opposed to having it rammed in. When he entered, within seconds, he observed the Applicants seated on a couch.
[48] Insp. Mighton testified that he was unaware of any particular safety concern officers had apart from the fact there was a large dog in the premises. As to possible destruction of evidence he noted there is always a concern about destruction of documents. He acknowledged that marijuana is difficult to dispose of by flushing down the toilet.
S.8 Charter BreachES
Error as to Correct Address – Warrantless Search
[49] In R. v. Pampena, 2022 ONCA 668, the ITO mistakenly listed the street as address, 1105, when it was, in fact, 1015. The court stated:
[24] To be valid, a search warrant must authorize a search of a specified place: A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 179. Accordingly, “if the warrant outlines the wrong address, the search and seizure are viewed as warrantless”: Scott C. Hutchinson et al., Search and Seizure Law in Canada, loose-leaf, (Toronto: Thomson Reuters Canada Ltd., 2022), at para. 16:18. An accurate description of the premises to be searched is necessary to “avoid search warrants becoming an instrument of abuse”: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 50.
[25] In this case, the warrant was issued for the wrong address. Therefore, as conceded at trial, when the police searched the appellant’s residence, they conducted a warrantless search of his home. This was a serious breach of the appellant’s s. 8 Charter right, because of the high expectation of privacy in the home. This was confirmed most recently in R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, where Moldaver and Jamal JJ., writing for the majority, stated at paras. 49-50:
This Court has emphasized time and again that a person’s home attracts a high expectation of privacy. A fundamental and longstanding principle of a free society is that a person’s home is their castle (Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at pp. 742-43, per Dickson J. (as he then was), citing Semayne’s Case (1604), 5 Co. Rep. 91a 77 E.R. 194, at p. 195). The home is “where our most intimate and private activities are most likely to take place” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22). Moreover, this Court recognized in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, per Cory J., that “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”.
Given the privacy interests in the home, warrantless searches of the home are prima facie unreasonable. This was confirmed in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, where the Court held that even if the police have an arrest warrant, they are not generally permitted to make an arrest in a home without a specific warrant permitting entry. Parliament later codified the principles in Feeney by introducing ss. 529 to 529.5 into the Criminal Code to govern when police may enter dwelling-houses to carry out arrests.
[50] The correct address for the apartment, as discussed above, was 674 Goderich Street and not 672 Goderich Street. On the authority of Pampena, this was, therefore, a warrantless search in breach of s.8 of the Charter.
Grounds to Issue Search Warrants
[51] The ITO contains information that implicates Mr. Wrightson in cannabis trafficking, however, it says little to nothing to connect the cannabis or related evidence to his residence. The ITO does contain compelling information connecting the trafficking and cannabis to 136 Breadalbane.
[52] D.C. Briggs states in the ITO that based on her experience traffickers “tend to not store all of their product in one spot”. Based on that she believes there will be cannabis at his apartment or the coffee shop. This is a conclusory statement and there is no explanation as to why a person with a stash house at 136 Breadalbane would want to also store product or proceeds of crime at his apartment or business.
[53] In R. v. Aboukhamis, 2015 ONSC 2860 Grace J., in dealing with a somewhat similar scenario, stated:
[35] The first attempt at tying the residence to the suspected illegal activity is found at para. 37 of the ITO. D-C Bourdeau offered this comment:
In my experience investigating drug related offences, drug dealers often keep their drugs with them in their vehicles and their residences or the residences they use to sell the drugs.
[36] The paragraph contains a generalized statement about the propensity of those engaged in drug trafficking. Without some case-specific evidentiary support, it seems to me to be of little, if any, value: R. v. Morelli, supra at paras. 77-79.
[37] In the concluding section of the ITO, the affiant deposed that he had reasonable grounds to believe that the defendant did, without lawful excuse, possess a substance included in Schedule I to the CDSA, namely cocaine, for the purpose of trafficking. There was no mention of the residence until the next sentence. It read:
I therefore request authorization to enter and search the residence at 5-1430 Jalna Boulevard, London Ontario and the…Odyssey…in order to seize the listed items as evidence to assist in the prosecution of the listed offences.
[38] The ITO sought permission. Insofar as the residence is concerned it did not provide sufficient grounds. Suspecting someone of trafficking a Schedule I drug does not automatically justify the issuance of a search warrant with respect to their home: R. v. Rocha, supra at para. 26.
[39] The illegal activities disclosed by the CI did not occur at the residence or suggest any connection to it. The police investigation was limited both in time and result. The ITO did not establish reasonable grounds to believe that the residence contained anything mentioned in s. 11 of the CDSA. The totality of the circumstances did not support the issuance of a warrant in relation to that property.
[40] The warrant should not have included the residence. Consequently, the subsequent search and seizure violated s. 8 of the Charter.
[54] I find that the ITO failed to disclose reasonable grounds to search the Wrightson-Bursey apartment. As such that search and seizure violated s. 8 of the Charter.
Manner of Execution of the Warrants at Goderich St. Residence
[55] In Eccles v. Bourque, [1975] 25 C.R. 739 Dickson J. stated:
Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance. No precise form of words is necessary. In Semayne’s Case it was said he should “signify the cause of his coming, and to make request to open doors”. In Re Curtis[9], nine of the judges were of opinion that it was sufficient that the householder have notice that the officer came not as a mere trespasser but claiming to act under a proper authority, the other two judges being of opinion that the officers ought to have declared in an explicit manner what sort of warrant they had. In Burden v. Abbott[10], Bayley J. was content that the right to break the outer door should be preceded simply by a request for admission and a denial. The traditional demand was “Open in the name of the King”. In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry. Minimally they should request admission and have admission denied although it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or if in hot pursuit notice may not be required. (pp. 747-748)
[56] In R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 Cromwell J. stated:
[18] Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give: “(i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry”: Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 747.
[19] Neither the wisdom nor the vitality of the knock and announce principle is in issue on this appeal. Experience has shown that it not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public: Commission of Inquiry into Policing in British Columbia, Closing The Gap: Policing and the Community — The Report (1994), vol. 2, at pp. H-50 to H-53. However, the principle, while salutary and well established, is not absolute: Eccles v. Bourque, at pp. 743‑47.
[20] Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications: see R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, 1991 CanLII 24 (SCC), [1991] 3 S.C.R. 692, at p. 693. I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”: para. 24.
[57] D.C. Briggs took a cavalier attitude towards the execution of the search warrant on the Wrightson-Bursey residence. There was no discussion at the morning briefing respecting the procedure to be followed and the fact that the officers should knock, announce, state their purpose and allow a reasonable time for the occupants to open the door. She simply relied upon the fact that experienced officers would be present.
[58] Two of the officers, D.C. Down and Sgt. Matheson of the OSPS, testified that they were simply asked to assist in the execution of the search warrant and they followed direction from the SSPS officers. Insp. Mighton was the senior SSPS officer on scene. He did not provide any direction as to how the warrant should be executed and he was not part of the entry team. His role was to be the SOCO.
[59] I find that Cst. Potter, who wielded the ram, had the most accurate evidence. For practical purposes he viewed the announcement as the signal to break down the door. For all intents and purposes this was a no-knock entry. He testified that it may have been only, and I find as fact that it was only, two seconds between the announcement and breaking down the door. The result was a flagrant s.8 Charter breach of the police obligation to knock, announce, and state their purpose and allow the occupant a reasonable opportunity to open the door.
S.7 – THERE WAS NO CHARTER BREACH
[60] It makes no sense to me that Insp. Mighton would have planted the approximately 860 g. of cannabis found in the futon in the Wrightson-Bursey apartment for the following reasons:
a) if a police officer is going to commit a criminal office, and so risk ending his career, there would have to be a strong motive such as greed or animus. In this case there is no apparent greed or animus.
b) Insp. Mighton would have run a significant risk of detection in removing the cannabis from the Breadalbase trailer, keeping it in his vehicle while doing a traffic stop and then hiding the cannabis in the Wrightson-Bursey apartment.
[61] It is also hard to accept that under the time pressure of multiple officers waiting to commence a search of the apartment, following the recording of a brief entrance video, he would think to pull the futon couch away from the wall and then have the extraordinary good luck that the futon had a slit or gap which was about the right size to conceal two bags of marijuana.
[62] Insp. Mighton vehemently denied the suggestion that he planted evidence, and I accept his evidence. In reaching this conclusion I also take into account that:
a) Mr. Wrightson, on his own evidence, had easy access to large amounts of cannabis because he admitted having transporting cannabis from Guelph on behalf of his nephew.
b) This admission of criminality can also be taken into account in considering his credibility, although I appreciate that it is not a crime of dishonesty.
c) Ms. Bursey has a dated criminal record which includes theft, which is a crime of dishonesty.
[63] There was, therefore, no s.7 Charter breach.
S.24(2) – REMEDY FOR s.8 CHARTER BREACHES
[64] In Pampena which involved transposed numbers, as in our case, the police knew which address to search so there was no possibility of the police entering the wrong home. The court, however, made it clear that this must still be considered as a very serious Charter breach, stating:
[27] However, in other circumstances, the results of an incorrect address in the warrant can be far more detrimental. For example, if because of the error, the warrant had contained the address of another, unrelated person, and the police had conducted a dynamic entry there, that person would have been subjected to a frightening, illegal entry and search by police: see Grant at para. 75.
[28] It is incumbent on police officers obtaining and executing a search warrant to be vigilant about the accuracy of the address to be searched, because the consequences of an error can be far-reaching. As a general matter, because of the importance of the accuracy of the address to the validity of the warrant, an error in the address should not be characterized as minor.
[29] The officer who prepares the ITO bears the responsibility to ensure the accuracy of the information that will justify the issuance of a search warrant. The judicial officer who authorizes the warrant relies on the accuracy of the ITO. The warrant’s authority depends on the accuracy of the information that supports it.
[30] Therefore, it is essential that the officer who prepares the ITO take steps to ensure the accuracy of the address, and for the officers executing the warrant to ensure, before they enter, that the warrant authorizes entry of the address they are about to search. In this case, the officers took the steps of reviewing the documents, but they did not catch the error. An additional step to ensure accuracy would be to specifically compare the address on the ITO and on the warrant with the actual address to be searched.
[65] In Pampena, the court went on to state:
[32] The second Grant factor focuses on the effect of the breach on the accused person and whether admitting the evidence in the face of that impact would bring the administration of justice into disrepute. In Grant, the court explained at para. 76:
The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[66] The court, however, concluded that the second Grant factor favoured the admission of the evidence. This was because, but for the error in transposing the numbers, the warrant would have been properly authorized and the accused persons would have been subjected to a search. Put differently, the impact on the accused person would have been exactly the same.
[67] Our case is, however, different. I have concluded that the search warrant could not have properly issued. There is also the breach of s. 8 related to the manner in which the search was conducted.
[68] Pampena and many other cases emphasize the sanctity of the home. In Cornell, Cromwell J. made the point that the knock and announce rule protects the dignity and privacy interests of the occupants of dwellings and it may also enhance the safety of the police and the public. What amounted to a no knock entry to the Wrightson – Bursey residence, therefore, impacted their dignity and privacy interests. It also created a risk to the safety of all concerned. To give an example, the Applicants’ large dog could have attacked an officer and others could have been injured as a result of the resultant chaos.
[69] Admitting evidence seized in this manner would tend to bring the administration of justice into disrepute. I find that the second Grant factor weighs in favour of exclusion.
[70] With respect to the third Grant factor, the evidence seized was physical evidence that is essential to the Crown case. In Pampena, the court commented on the fact that:
The societal interest in an adjudication on the merits was enhanced by the nature and quantity of the cocaine and its deleterious effects on the community.
[71] This consideration is obviously not applicable in the case of the Applicants. At the time cannabis was legal if purchased from a licenced dispensary. While the third factor weighs in favour of admissibility, the societal interest is attenuated given that cannabis was otherwise legal.
[72] In summary, the first two Grant factors favour exclusion while the third factor marginally favours inclusion. Weighing these factors, I conclude that admitting the cannabis and cash seized from the apartment and coffee shop would bring the administration of justice into disrepute. As such that evidence is excluded.
[73] For the sale of completeness I will add that ever if I had concluded that the search warrant could properly have been issued, the weighing of the Grant factors would still lead to the conclusion that it would bring the administration of evidence into disrepute to admit the evidence.
CONCLUSION
[74] Counsel should consult and advise the court as to the appropriate endorsement in light of this ruling. If the position of the Crown is that no further evidence is being introduced at trial, and that the accused should be found not guilty, I could simply make that endorsement and vacate the return date. If, however, counsel cannot agree on the appropriate disposition a 9:00 a.m. or 4:45 p.m. Zoom attendance can be arranged through the Trial Co-ordinator over the next several weeks.
___________________________
Justice J. Sproat
Released: December 4, 2023
COURT FILE NO.: CR-21-1132
DATE: 2023 12 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
- and -
Randy Wrightson and Karen Bursey
CHARTER - SECTIONS 7 and 8 APPLICATIONS TO EXCLUDE EVIDENCE
REASONS FOR DECISION
Sproat J.
Released: December 4, 2023