Court File and Parties
COURT FILE NO.: CR 22-0134 DATE: 2024/04/05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Respondent S. Hickingbottom, R. Morrow and R. Durward, on behalf of the Crown Attorney
- and -
MALIK MBUYI Applicant M. MacGregor, on behalf of the accused
HEARD: January 29, February 6, 8 and 9, 2024
Ruling on application to exclude dna evidence persuant to ss. 7, 8 and 24(2) of the charter
INTRODUCTION:
1The accused, Malik Mbuyi (“Mbuyi”) is charged with first degree murder in relation to the deaths of Lynn VanEvery (“Lynn), and Larry Reynolds (“Larry”), and conspiracy to commit murder, pursuant to their respective provisions in the Criminal Code, R.S.C. 1985 c. C-46.
2The charge relates to an incident that was alleged to have occurred on July 18, 2019, in the City of Brantford. The accused has pleaded not guilty.
3The applicant brings an application pursuant to ss. 7, 8 and 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. (“Charter”) There are two DNA warrants subject to this application. First is the DNA search warrant obtained by the Toronto Police Service (“TPS”) for offences arising in 2017 and 2018 wherein the applicant was thought to be involved in as a youth (“TPS warrant”). Second is the DNA search warrant sought for the herein offences (“Brantford warrant”).
4The applicant seeks to exclude the DNA evidence obtained by the Ontario Provincial Police (“OPP”) pursuant to the Brantford warrant.
5I note that the homicide investigation was started by the Brantford Police Service (“BPS”) but taken over by the OPP. For ease of reference, I may refer to them collectively as the “homicide investigators” because both services contributed to the investigation into the deaths of Larry and Lynn.
6The Charter voir dire was raised near the conclusion of the Crown’s case. As the trial was ongoing, and after hearing the evidence and submissions of counsel, I provided an oral ruling dismissing the Charter application and admitting the DNA evidence at trial, with written reasons to follow. These are my reasons.
Background:
7Lynn and Larry were shot to death within their home in Brantford, Ontario during the early morning hours of July 18, 2019. The Crown alleges that Mbuyi is the shooter. The ability to identify him is the fundamental issue at trial. One of the core pieces of evidence to support the Crown’s case is the DNA evidence found within a vehicle used during the homicide.
8The shooting was captured, in part, on home video surveillance, where one shooter, clad in mostly black clothing, approached the home and discharged a firearm, taking the lives of the two residents. An investigation conducted by the BPS and the OPP led to the determination that the actual target of these homicides was Lynn’s son Roger VanEvery (“Roger”).
9Two vehicles were observed in the area around 7:00 a.m., just prior to the shooting. A black Chrysler 300 (“Chrysler 300”) and a second vehicle that was described as a black four door vehicle (possibly a 2014 to 2016 Hyundai). Witnesses that resided in the area observed these two vehicles, and described their behaviour as being suspicious. The occupants of the vehicles seemed to be interacting with one another and circling the neighbourhood and around the location of the VanEvery residence.
10Video surveillance revealed that at approximately 6:47 a.m. on July 18, 2019, a slender black male approached the VanEvery residence after exiting the Chrysler 300. The slender black male was wearing black clothing with noticeable white stripes down the side. A second male that is heavier set was observed on video across the street standing outside of the parked Chrysler 300. A short time later at 7:31 a.m., a heavier set male wearing what appears to be all black is running across the front lawn of the residence with what appears to be a firearm in his hand, pointing it towards the residence with two noticeable discharges. That same individual returns to the driver seat of the Chrysler 300 and leaves the scene. These two individuals were in the Chrysler 300, where the DNA relevant to the police investigation of Mbuyi was discovered.
11The Chrysler 300 was a stolen vehicle. It was recovered by police on the same day of the shooting, after being abandoned within the city of Brantford. As a result of discovering the Chrysler 300, the police seized the vehicle and conducted a thorough search and forensic analysis of the interior and exterior, which included swabbing the inside for DNA. Forensic examination also uncovered the presence of gunshot residue in the front of the Chrysler 300.
12The Chrysler 300 was forensically examined at the Centre of Forensic Sciences (“CFS”). Technicians examined the vehicle and found several samples of genetic material, attributable to a small number of individuals. The most significant samples came from the blood stains found around the driver’s seat. Samples were taken from blood in the following locations: the dashboard centre control panel, just below the disc player; the gear shift button; the driver’s seatbelt buckle; the dashboard centre control panel, near the vehicle ignition button; the left side of the centre console storage compartment; and the lower portion of the driver’s seat backrest.
13The blood was properly swabbed and analyzed. On August 21, 2019, the CFS reported that the analysis of the swabs obtained from the seized Chrysler 300 included a single DNA profile of a male (“STR Profile 4”). That DNA was located in two locations inside the vehicle, on the dashboard beneath the CD player; and the buckle of the driver’s seatbelt.
14The CFS determined that STR Profile 4 generated from the DNA samples found within the Chrysler 300 was provided by an unknown donor, meaning that the samples did not attach to a specific individual registered on the DNA National Databank registry. Importantly, however, STR Profile 4 was the same DNA profile as one that had been previously registered on the Crime Scene Index databank. Specifically, STR Profile 4 had been discovered, collected and registered from crimes scenes in two separate unrelated TPS occurrences and investigations. The previously untested DNA samples from two other crime scenes, a glove found during a robbery on March 15, 2017, and from a cigarette located in a stolen vehicle on March 4, 2018, both in Toronto. The CFS forensic hit notification linked the DNA from the Brantford homicides to these two previously discovered samples.
15The homicide investigators were provided with the forensic hit notification from the CFS. that were identified in the TPS Occurrences. In response to the CFS notification, the OPP communicated with the TPS to obtain the case information relevant to the TPS occurrences.
16On December 16, 2019, Detective Constable Kimball Marshall (“Marshall”) signed an Information to Obtain (“ITO”) a warrant for the applicant’s DNA, in relation to the 2017 and 2018 TPS offences. The warrant was signed on December 17, 2019, enabling the TPS to obtain a DNA sample from Mbuyi in furtherance of the TPS occurrences.
17Within the TPS warrant, Marshall specified at page one of the ITO that:
The Informant has reasonable grounds to believe:
(a) That designated offences within the meaning of section 487.04 of the Criminal Code of Canada, have been committed, namely: i. Robbery (x2), contrary to section 344 of the Criminal Code; ii. Theft of a motor vehicle, contrary to section 333.1 of the Criminal Code; iii. Possession Over $5,000, contrary to section 354 of the Criminal Code; (b) That bodily substances have been found on or within the body of any person or thing or at any place associated with the commission of the offence, namely: i. On a cigarette butt found inside a stolen vehicle which was located on Kendleton Drive, in the City of Toronto on March 4th, 2018; and (Toronto Police Theft of Motor Vehicle Occurrence #18-300970) ii. On a black glove that was dropped by a suspect in a robbery was found in front of 44 McDonald Avenue, in the City of Toronto on March 15th, 2017; and (Toronto Police Hold Up Occurrence #17-467712); (c) That Malik MBUYI was a party to the offences; and (d) That the forensic DNA analysis of a bodily substance from Malik MBUYI will provide evidence about whether the bodily substances referred to in paragraph (b) is from Malik MBUYI.
18Marshall further describes in the ITO, at paras. 7-8, that:
- Brantford Police are investigating a Homicide where male DNA was located.
- The DNA is suitable for comparison and was cross-crime matched to the same DNA located at the two occurrences mentioned above. I am not seeking a DNA warrant in relation to the homicide. I am including this information in the interest of being full, fair and frank. [Emphasis added.]
19Homicide investigators first learned of the applicant through the scene-to-scene notification on August 20, 2019. This told the homicide investigators that the same profile from the Chrysler 300 was connected to ongoing, though dated, robbery and vehicle theft investigations in Toronto. Homicide investigators reviewed the theft file and learned that the DNA profile in question had been recovered from the stolen vehicle alongside two sets of fingerprints, attributable to the applicant and a second individual. 1
20Homicide investigators soon learned that Mbuyi had two sets of outstanding charges. He had been charged with driving offences after fleeing from a collision on August 26, 2019. Mbuyi was arrested on September 1, 2019 and was held pending a bail hearing. They also discovered that Kareem Zedan (“Zedan”), a co-accused, attended one of the applicant’s in-custody appearances and that Zedan’s girlfriend, Britney Lewis, had proposed herself as a potential surety for Mbuyi.
21As part of the investigation into the driving offences, TPS officers obtained surveillance video that captured the applicant’s flight. When homicide investigators reviewed this video, along with additional video depicting the applicant and Zedan visiting Bishop Tutu Boulevard in Toronto, they believed that the individual in the video, the applicant, and the gunman from the Brantford homicides had the same build and body-type.
22TPS sought a DNA warrant through the vehicle theft investigation. On September 23, 2019, Detective Bryanna Westenberg (“Westenberg”) spoke with a TPS supervisor about the robbery and theft investigations. TPS later decided to pursue a DNA warrant in relation to the theft investigation. On October 22, 2019, Westenberg spoke with Marshall, the officer leading the theft investigation, and provided details of the scene-to-scene notification linking the three open investigations. She confirmed that Marshall was in the process of seeking a warrant.
23Homicide investigators got records connecting the applicant to Zedan. On November 28, 2019, police obtained Zedan’s cellphone records, which revealed that he and the applicant had been in frequent contact around the time of the murders. Police later obtained cellphone records pertaining to the applicant’s cellphone number, which confirmed the extent of the contact between the two men around this time.
24On December 16, 2019, Marshall completed the supporting affidavit and the application package for the TPS warrant was submitted for judicial consideration. On January 30, 2020, homicide investigators learned from TPS officers that the applicant had matched the samples collected through the theft investigation.
25On March 24, 2020, Zedan was arrested and charged in relation to these murders. He was then interviewed by Detective Tom Henry, who asked about the applicant in relation to the killings. Zedan initially denied the applicant’s involvement and downplayed their relationship; however, he admitted that the applicant had been present for the shooting after the officer explained that Mbuyi’s blood had been found in the Chrysler 300.
26Homicide investigators also retained a forensic podiatrist, Dr. Michael Niremberg, specialized in comparing the physical mechanics of individuals as they walked or ran. He was provided with the surveillance video from the VanEvery residence, which showed the gunman, and other videos depicting the applicant. On July 10, 2020, he completed a report in which he identified the applicant as the gunman.
27On the date, the TPS DNA warrant was granted, Mbuyi was in custody at the Toronto South Detention Center, for a separate unrelated firearms possession offence. On January 23, 2020, the CFS reported that the DNA discovered and tested from the TPS occurrences matched the DNA for Mbuyi. This meant that the DNA samples obtained from within the Chrysler 300 in the VanEvery homicide also matched Mbuyi.
28On September 22, 2020, homicide investigators arrested the applicant before seeking a second DNA warrant. On September 29, 2020, Detective Paul Dobos swore a detailed affidavit in support of an application for a further DNA warrant to test samples taken from the applicant against the blood from the Chrysler 300. Within those grounds, was an inclusion of the information garnered as a result of the issuance of the TPS warrant.
Positions of the Parties:
29The applicant has three main submissions. Overall, his position is that the DNA evidence should be excluded because the police circumvented the proper pathway to obtain his DNA. The applicant questions the investigatory steps of the TPS and the homicide investigators with respect to collection of his DNA.
30First, the applicant questions the approach taken by the police. The applicant claims TPS sought a warrant on two separate dated youth matters from Toronto when there was never any intention to proceed with that prosecution. This is evidenced by the fact that no disclosure was provided, and no Crown attorney was assigned to the prosecution.
31At the time of the VanEvery homicide, Mbuyi had not been arrested, charged or prosecuted for either of the two Toronto youth offences.
32The applicant contends that the DNA from the 2017 robbery is cross-matched with the 2018 stolen vehicle once the 2018 sample is first analyzed by the CFS, yet the TPS did not act. The applicant says that TPS does not seek a warrant for a DNA sample from Mbuyi in relation to either of those investigations, even though the information relating to the separate TPS occurrences included his known identity as a possible suspect. The TPS only sought a confirmatory sample of DNA from Mbuyi after the homicide.
33Eventually, on November 4, 2020, TPS charged the applicant with one count of possession of stolen property obtained by crime, ten and a half months after the DNA confirmation was reported. Mbuyi appeared in court on November 5, 2020, a mere one day after being charged with the offence, and the Crown withdrew the charge. The applicant submits the timing of these events is suspicious and brings into questions the true intentions of the investigators.
34Second, the applicant contends that the police TPS instead misled the issuing justice of the TPS warrant and undertook an abuse of process to further their investigation. The applicant disputes Marshall’s assertion, including the statement “I am not seeking a DNA warrant in relation to the homicide” is solely in the interest of being full, fair and frank. Marshall failed to mention or link any knowledge of the Brantford homicides before October 22, 2019, yet coincidentally commenced an investigation into a two and a half year old robbery the day prior to being informed about the homicides, which seems either highly coincidental or entirely false.
35The applicant argues that the deliberate intention to mislead the issuing justice and obtain a sample of the Mbuyi’s DNA under false pretenses amounts to an abuse of process. The applicant says that Marshall bluntly and boldly lies to the issuing justice when asserting: “I am not seeking a DNA warrant in relation to the homicide.” The applicant says that this is a false assertion. The TPS warrant request contained untrue and misleading statements respecting the on-going murder investigation. The TPS warrant did not reveal the true purpose in obtaining Mbuyi’s DNA. The applicant argues that there was never an actual practical intention to prosecute him on either of the Toronto occurrences.
36Third, the applicant submits that the TPS warrant was an impermissible tool to use when the OPP was incapable within their own investigation or had insufficient grounds to obtain a valid warrant. The TPS manufactured the process of charging Mbuyi in a veiled artificial attempt to justify the their warrant. It is apparent that the OPP’s sole objective was to connect the applicant to the homicide and the TPS warrant was the abusive tool they exploited.
37In summary, the applicant submits that the DNA obtained pursuant to the TPS warrant violated his rights as protected by ss. 8 and 7 of the Charter, and, as a result, any evidence obtained from that search should be excluded under s. 24(2). The statements in the TPS ITO do not amount to full, fair and frank disclosure and the affiant was not honest about the purpose for invading the applicant’s privacy. Because of that, the fruits of the TPS warrant were poisoned, meaning the reasonable and probable grounds for the Brantford warrant are also poisoned, and any evidence collected thereby should be excluded.
38The Crown’s position is the applicant has grossly mischaracterized the diligent policework done in this case. The Crown submits the inaccuracies in the warrants are not sufficient to ground an intent to mislead. The affiant of the TPS warrant was unaware of extent of the homicide investigation. In the alternative, if the affiant of the TPS warrant was aware and did attempt to mislead the issuing justice, their attempt to mislead failed. The issuing justice was entitled to make reasonable inferences based on the ITO, and in the Crown’s submission, the issuing justice in this case did so. The Crown submits only the manifestation of the attempt to mislead can amount to a subversion of the search warrant process requiring a remedy, and in this case it did not manifest.
39The Crown submits that the applicant cannot demonstrate that his rights were violated through a subversion or abuse of the warrant authorization process, nor can he justify the exclusion of evidence. The applicant says that police colluded to fraudulently obtain a DNA warrant because homicide investigators lacked grounds, then concealed their ruse by laying spurious charges against him. This theory lacks any support in fact or law.
40The Crown asserts that there was no police misconduct; investigators were entitled to advance the homicide investigation by obtaining the impugned warrant and no attempt was made to conceal such a dual purpose, which was of liminal materiality in any event. Second, there was no subversion or abuse. The likelihood of advancing the homicide investigation was undoubtedly apparent to the authorizing justice and the authorization process itself functioned as intended. Third, the Crown says that the remedy sought is inappropriate; even if the applicant could substantiate his complaints, the interests of justice demand that this most serious of crimes be tried on its merits and the DNA evidence admitted at trial.
LEGAL PRINCIPLES:
41Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.”
42The purpose of s. 8 is to protect an individual’s reasonable expectation of privacy. This purpose is heightened when it comes to search and seizure of an individual’s DNA. The privacy interests engaged in obtaining one’s DNA profile through a DNA warrant pursuant to s. 487.05(1) of the Criminal Code, and the broader legislative framework in the DNA Identification Act, S.C. 1998, c. 37, cannot be understated.
43The party challenging the validity of the warrant has the onus of showing the warrant is invalid: R. v. Downes, 2022 ONSC 4308, at para. 37.
44To obtain a search warrant, the police must first draft an ITO setting out the reasons they believe the grounds in s. 487.05(1) of the Criminal Code are present. The ITO is supported by affidavit evidence of police officers disclosing an objective basis for the subjective belief of reasonable grounds. The ITO and supporting affidavits are submitted to a judge who then issues the search warrant if reasonable grounds are established.
45It is paramount that the affiant provide full, fair and frank disclosure in the ITO, especially when seeking a DNA warrant. This necessity has been reiterated by the courts. For example, in R. v. Auclair, [2003] O.J. No. 2461, 2003 CarswellOnt 4635 (S.C.), at para. 16, Gordon J. stated,
Care must be taken to comply with the statutory requirements in applying for such a warrant, the execution thereof, and the use of the profile generated. The application is done "ex parte". There is no opportunity for submissions as to content or lack thereof in the sworn information to obtain and this accentuates the need for a full, fair and frank disclosure by the informant.
46It is also important to remember that the affiant need not include every piece of information connected to the investigation in the supporting affidavit: R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 51.
47Rather, the affiant must outline all material facts necessary for the issuing judge to properly assess the application: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. The affiant must not overstate relevant facts, omit important information or otherwise mislead the jurist in order to obtain authorization: Araujo, at para. 47.
48Yet, s. 8 does not protect individuals against any search and seizure. Section 8 of the Charter only confers protection against unreasonable searches and seizures to the extent that an individual establishes a reasonable expectation of privacy. Where a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search via search warrant before it is carried out, the search is lawful and is not a breach of the individual’s s.8 Charter rights: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 72.
49The reasonable grounds requirement does not impose an onerous burden. The standard of credibly based probability exceeds mere suspicion, but does not rise to the level of proof on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.
50The test created by the Supreme Court of Canada for challenging the validity of a warrant is “whether the issuing justice could have issued the warrant.” It invites the reviewing justice to ask whether there was a reliable foundation to permit the issuing justice to grant the authorization. The reviewing justice must consider if there was sufficient, credible and reliable evidence in the ITO to establish reasonable and probable grounds leading the issuing justice to believe the offence had been committed and evidence of the offence would be found at the specified time and place. See R. v. Garofoli, [1990] 2 S.C.R. 1421, at 1452; Araujo, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
51There are two types of challenges to the validity of a warrant: facial challenges and sub-facial challenges. Facial challenges are when the applicant argues the ITO, on its face, does not provide a sufficient basis for the issuing justice to have issued the warrant: See R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d), 299 at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 93.
52On the other hand, sub-facial challenges are when the applicant provides materials to the reviewing justice that were not before the issuing justice, and argues based on that material, parts of the ITO were misleading or inaccurate. In the case of a sub-facial challenges, the validity of the warrant is determined based on what remains of the ITO after the misleading or inaccurate parts are excised: See Shivrattan, at para. 26.
53When assessing the validity of the warrant, other factors may be considered, such as whether the misleading statements were made deliberately or recklessly, or whether the affiant failed to provide full, fair and frank disclosure in the ITO: Nguyen, at para. 23. At the same time, the review of the search warrant is “not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: Nguyen, at para. 57.
DNA Warrant:
54The authorization process created by s. 487.05(1) of the Criminal Code is part of a wider legislative framework that also encompasses the DNA Identification Act. The legislative intent behind the scheme is readily apparent; it is meant to assist law enforcement efforts to identify and apprehend the perpetrators of designated offences via reliable DNA evidence. As noted in a legislative review of the statute, the ability to match DNA profiles between crime scenes” serves as one of the most “invaluable tools in the investigation and prosecution of criminal offences.
55The legislative scheme limits the use of DNA profiles resulting from a warrant. These limits are expressed in s. 487.08 of the Criminal Code. The jurisprudence confirms that analysis or comparison cannot exceed the terms of the authorizing warrant. The DNA profile generated through the execution of a DNA warrant cannot be compared with profiles or samples that were not specifically contemplated by the warrant: Auclair, at paras. 20-21; R. v. Paul, [2004] O.J. No. 1333 (S.C.), at paras. 61-69, appeal dismissed, 2009 ONCA 443, 249 O.A.C. 200, leave to appeal refused, [2009] S.C.C.A. No. 450.
Subversion Doctrine:
56The subversion doctrine principally relates to the search warrant authorization process. The Ontario Court of Appeal defined subversion as “undermining, corrupting, weakening, destroying or disrupting a system or process”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 74, leave to appeal refused, [2017] S.C.C.A. No. 81. In other words, subversion is “an abuse of the pre-authorization process by non-disclosure or misleading disclosure or their like”: Paryniuk, at para. 74.
57The court may exercise its residual discretion to set aside an otherwise valid search warrant where the affiant has subverted the search warrant process and the issuing justice has been misled. The court will only exercise this discretion in rare circumstances, such as where the affiant deliberately provided false statements or deliberately omitted material facts with the intention of misleading the issuing justice: See R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, at para. 162.
58The threshold for setting aside a warrant is high: Paryniuk, at paras. 62, 70. To justify exercising this discretion, the conduct of the police must be so subversive of the search warrant process that it amounts to an abuse of process requiring the warrant to be quashed. Determining whether the subversion meets this threshold is an inherently contextual analysis and all the circumstances must be considered: Dosanjh, at para. 164.
59The police conduct necessary to engage the residual discretion of the court must be “so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed”: R. v. Vivar, 2009 ONCA 433, at para. 2. See also Araujo, at para. 54, citing R. v. Morris (1998), 1998 NSCA 229, 173 N.S.R. (2d) 1 (C.A.). The governing authorities suggests that it will be more difficult to justify an exercise of the residual discretion in cases where the misconduct is more detached from the authorization process.
60A circumstance to consider in determining whether to exercise residual discretion is the reasonableness of the affiant’s belief as to the existence of the requisite grounds: Dosanjh, at para. 168. Where the affiant’s omissions in the ITO were inadvertent, they cannot amount to a subversion of the pre-authorization process: R. v. Kerr, 2022 ONCA 530, at para. 22.
61Similarly, if an affiant relies on grounds that later prove to be false, that does not automatically invalidate the otherwise valid warrant: Dosanjh, at para. 168. For example, in R. v. Nguyen, 2023 ONCA 291, at para. 37, the Ontario Court of Appeal upheld the reviewing judge’s refusal to invalidate a warrant where the evidence demonstrated the affiant of the warrant was unaware of the misconduct by the police and there was nothing to alert the affiant of the possibility that there was misconduct.
THE EVIDENCE:
62For the purposes of the voir dire, the application for leave to cross-examine the affiant and other witnesses was waived by the parties.
63While the parties provided a number of Agreed Statements of Facts (“ASF”), this was a hard-fought trial. Extensive details about the principal parties and the related events surrounding the murders were presented.
64There are several facts that have been established or are not in dispute: The elements leading up to this murder – the parties, their relationships - have all been proven.
65Westenberg testified. She was an intelligence officer who was assigned to the homicide investigation. Surprisingly, Westenberg had very little information about the nature of the case and the issues that befell this court. Rather than acting as an intelligence officer, it seems to me that she was merely a conduit for passing along information. On cross-examination, she often deferred her responses to the investigators in the homicide or robbery case and was neither insightful nor helpful with her evidence. She did not know the relevant details of the investigation and distanced herself from any discussions regarding the ITO results obtained, or the actions of the TPS. She testified that, with respect to the warrant, it was not her task to address any issues that may be arising. In cross-examination, she denied trying to obtain any details or DNA from Toronto. Thus, despite her contacts with the TPS where she was requesting the reports, she denied directing the TPS with respect to their investigations. Clearly, she limited her role in the scope of duties in response to questions posed by applicant’s counsel.
66Marshall testified that he was the case manager of the Toronto files but his caseload at 43 Division of the TPS was extensive. The theft of the motor vehicle had a low priority. The only person he had contact with was Westenberg. He did not know anything about the Brantford investigation and the relation of Mbuyi to the homicide.
67Marshall testified that the homicide investigators in Brantford did not direct or dictate to him in respect to the ITO or the investigation. No grounds regarding the Brantford investigation were provided to him for the TPS DNA warrant. He did not give them a copy of the ITO. The ITO was in fact reviewed by a Crown attorney on December 15, 2019, and no changes were made.
68On cross-examination, Marshall conceded that he had limited notes with respect to the TPS investigations and agreed that he only had one page of police notes with respect to his entire involvement with the investigation He did not know how many times he spoke to Westenberg. The robbery investigation in Toronto was from a March 15, 2017, occurrence and the vehicle matter was from February 16, 2018.
69He did acknowledge that there were fingerprints from the vehicle investigation belonging to Mbuyi, which could have been followed up. He reiterated that he was very busy at 43 Division and would not necessarily have been interested in pursuing it at the time.
70Marshall testified that on October 21, 2019, he reviewed the TPS occurrence in relation to the 2017 robbery wherein the glove with unknown DNA was located. One day later, on October 22, 2019, he was informed about the Brantford double homicide. Marshall did acknowledge that the TPS charges, were brought to court November 4, 2020, and withdrawn the next day. He testified that when the results from the DNA warrant were obtained, he did not call the investigators at 43 Division, but instead called the Brantford homicide investigators.
71Detective Gary Swift (“Swift) is with the BPS. He was a primary investigator in the homicide. He testified that it was a complex investigation involving other police organizations and multiple resources. There was cooperation with other agencies and information sharing between the OPP and the TPS. He advised that the accused’s name came up from Detective Sargoo (“Sargoo”) from the TPS regarding a scene-to-scene match identified on August 21, 2019.
72Swift testified that he believes there were grounds for the DNA warrant back on August 27, 2019. However, Swift testified that it was a strategic decision not to alert the applicant at that point. He testified that he had no knowledge of the contents of the ITO from the TPS DNA warrant until January 30, 2020. There was an eight-month delay with respect to the investigation. On cross-examination he admitted that back in September 2019, he believed he had reasonable and probable (“RPG”) grounds to obtain a warrant or the DNA of the accused. I take note that this testimony is somewhat self-serving as it appeared that the police did not take any steps to obtain a DNA warrant or arrest the applicant on or near that earlier date.
73On August 27, 2019, there was a briefing report. Swift reiterated that there were strategic reasons why he did not get a warrant at that time: he did not want to alert the suspects at that time as there was a potential for destruction of evidence.
74Swift was challenged in cross-examination with respect to whether Mbuyi was a “suspect” versus a “person of interest”. He testified that this was merely a term used by investigators and had no other significance. He was challenged with regards to the steps taken, or not taken, earlier in the investigation. He was questioned about the applicant’s relationship with Zedan. Questions were posed about seizing the applicant’s clothing and other investigative steps that were neither undertaken nor fruitful prior to the obtaining the results of the TPS DNA warrant. For example:
Q. On January 30th, 2020, the one piece of information that changes is you now have a positive DNA hit from the Toronto Police Services DNA warrant, right? A. Sorry, that's the one thing that changes it? Q. On January 30th, 2020, that's the piece of information that you obtain on that day? A. That's the day that he's made a suspect and that, as I recall, was part of that consideration, yes. Q. Right. And I'm going to suggest to you that it's that point that you qualify him as being arrestable? A. That is the day, as far as I can recall, that he's identified as being arrestable, yes. Q. When you testified, you indicated that you felt you had R-P-G to get the DNA warrant for Mr. Mbuyi in September of 2019? A. That's right. Q. I just want to understand, was it your intention to let the T-P-S follow through their process and get the answer for you? A. At that point? Q. Yes. A. No, that was not my intention at all. When I first read that case-to-case report on - I believe it was late July, it was not my intention at all. It was my intention to have somebody from within our team author that warrant at that point. Q. You did not do that? A. No, that was not done. Q. You did not have reasonable and probable grounds for Mr. Mbuyi to obtain that warrant until January 30th, 2020? A. I disagree with that, sir. I disagree with that. Q. Sergeant Swift, I believe your team directed the Toronto Police Service to get this warrant for the Van Every homicide in relation to Mr. Mbuyi's DNA, am I right? A. No, sir. Q. Yes. There were two investigations that were still open and ongoing in Toronto that developed crime scene matches to a significant DNA hit in the Chrysler 300 in the Van Every homicide? A. That's correct. Q. Yeah. And so the information and the DNA that matched was essential to moving forward on the investigation, right? A. Essential in moving forward from the vehicle to the - yeah, it was, I would agree with that, sir. Q. Right. To identify potential suspects? A. Yes. Q. And so, when it was learned that the Toronto Police Service had two ongoing investigations, the reason you reached out to them is to try and get that answer as soon as possible to help identify a suspect in the Van Every homicide? A. It was partially that, yes, to seek their assistance with it, yes. A. I don't think that the belief was that we were getting them to do anything. I think the belief was that it was a case-to-case hit where both agencies are made aware and continue their investigations with them. Q. I'm going to say this again. I think I've asked you already, but I just want to be clear. You've told this Court that you felt you had reasonable and probable grounds to get a warrant for Mr. Mbuyi... A. And other individuals. Q. ...in September and other individuals, I think you're saying, in September of 2019? A. I did. Q. I'm suggesting that you did not have reasonable and probable grounds to get that DNA warrant at that time, and that's why you relied on the Toronto Police Service to do it for you? A. We did not rely on the Toronto Police Service to do it for us. My opinion at that time was that I had grounds to seek a warrant, sir. A. We don't, you know, call people and ask them to send us reports. We go through their records department. As I spoke earlier, there were some records that we weren't able to receive from Toronto Records. They wouldn't allow them to have us or wouldn't allow us to have them, sir.
75Sargoo explained his involvement and interaction with the homicide investigators. On cross-examination, Sarjoo testified that he did not provide Marshall with anything. “It's just the fact that two cases were connected. I just went and spoke to the supervisor and as I mentioned, there's two Toronto cases that were outstanding. Brought it to Detective Parrot's attention and I was like, I mentioned that hold-up is not going to write their warrant and if we're going to do it, and he says, yes, they will take care of it.” On cross-examination, he testified that:
Q. ... There is no note anywhere about that interaction that you had, is there? A. No, there isn't. Q. Brantford called you and told you they needed to get this warrant, and you told them you'd help them do it? A. Brantford did not call me. O-P-P Detective Constable Brianna Westenberg called me and brought this DNA hit document to my attention and asked, what's the status of those warrants and I was like, I did not know about them and I was like, I'll inquire. Hence why I called Detective Choffie from hold-up because I explained there's a priority that has to be looked at. Hold-up takes first preference. I spoke to him, like I said, on Friday. I was told they cannot - they don't have time to deal with it right now and then I went and spoke to Detective Parrot and DC Kimball Marshall. Q. No written notes of any of those conversations? A. No, there isn't. Q. The other big piece of information there that you took, sir, is that the O-P-P is investigating a double homicide of an elderly couple in Brantford and they have a crime scene match? A. Right. Q. You took that to them as the basis to get the DNA warrant for Mr. Mbuyi? A. I just took what I was told in the sense of our investigation. I don't know where O-P-P was with their investigation. Q. They contacted you to ask you for the status of their investigation because from your investigations because they couldn't proceed, that's what they conveyed to you on there? A. That's not what was conveyed to me. They had their investigation going. I've learned, based on my experience being a police officer, I do not and I've seen it where I used to get upset with my supervisor or unit commander, but I understand it now. If you have the ability to lay a charge on somebody in your service, you do it. Don't wait for another service because I'm still waiting on certain services to lay charges on investigations because - and there's an overlap on investigations in Toronto and we're still waiting. In this case that did not happen because we had an opening, which was our DNA hit. They went with it, that's it.
Application of Legal Principles - Section 8 of the Charter:
76The applicant contends that based on a review of the case information from the TPS occurrences, he became of person of interest in the homicide investigation. As a result, the OPP – who did not have reasonable and probable grounds to obtain a DNA warrant in furtherance of the murder investigation - communicated with the TPS and requested that they seek a warrant for Mbuyi’s DNA in relation to the stale-dated and defunct TPS occurrences.
77The law does not demand a standard of perfection from the supporting affidavit. The presence of defects, such as inaccuracies and omissions, is not dispositive of validity: Sadikov, at para 87. The grounds review is not an exercise in fault-finding and nit-picking; the focus must remain on assessing the sufficiency of grounds: Nguyen, at para. 57.
78This remains true even where the defects are negligent or fraudulent in nature. In R. v. Prosser, 2016 ONCA 467, at para. 22, leave to appeal refused, [2016] S.C.C.A. No. 327, the Court of Appeal explained that:
The existence of fraud, non-disclosure, and misleading evidence are neither conditions precedent to review nor dispositive of whether the enabling authority could have been granted. Each is a factor to consider. Nothing more and nothing less.
79In the proper case, excision and remedial editing are common remedies for misconduct that preceded the impugned warrant. Remedial editing will sufficiently account for state misconduct in the vast majority of cases. Amplification may also be a remedy and refers to the inclusion of information with a view to supporting the issuance of the warrant.
80Certain officers’ testimony before me does not assist me in this case. For example, Westenberg’s evidence was somewhat troubling in that in her role, she was merely a conduit for information and nothing more. Some of the other officers’ dearth of notes or reports is also concerning.
81However, upon review, I do not agree that Marshall misled the issuing justice regarding the true reason and purpose for the warrant, which was to obtain an identification of the DNA for the TPS occurrences. Merely referencing the VanEvery homicide within the TPS ITO, “to be full fair and frank,” does not neutralize the concern nor the obligations of the TPS affiant to be honest about the purpose of invading someone’s privacy.
82I observe that Di Luca J. faced an application like the one before me in the case of R. v. Ricciardi, 2017 ONSC 2788. There, the accused brought an application challenging the validity of six judicial authorizations on the basis that the police infringed his s. 8 rights and argued the evidence should be excluded. At the time the ITOs were authored, the police believed there were more offences committed by the accused and that the accused’s offences may have been serial in nature. The affiant was aware of the operational plan to investigate accused but did not mention that plan in the ITO.
83The accused in Ricciardi argued the ITOs for six search warrants were drafted in a way that did not contain full, fair and frank disclosure. The accused alleged that the purpose set out in the ITO was too narrow, and that the true purpose was to investigate the accused in relation to a broader range of known and unknown offences for which the police did not have sufficient grounds to investigate. In his reasons, Di Luca J. summarized, at para. 33:
In order to succeed on this argument, the Applicant would need to demonstrate that the police hid the true purpose of the search warrants from the issuing justice and that if the true purpose had been disclosed, no issuing justice could have issued the warrants. Alternatively, the Applicant would need to establish that even if a warrant could have issued on the basis of the ITO, the non-disclosure of the true purpose for the warrants was so serious that the Court should nonetheless quash the search warrants. This latter argument is, in effect, an argument that the warrant is vitiated by fraud/non-disclosure; see R. v. Morris, supra, at p. 553 and R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.) at para. 40.
84Ultimately, Di Luca J. found that the affiant could have provided more details in the ITO about the other offences the police suspected the applicant was involved in, but the failure to do so was not fatal and did not amount to a failure to make full, fair and frank disclosure: Ricciardi, at para. 39.
85I agree with my colleague’s sage analysis and find that it is applicable in the case at bar.
86I do not agree with the applicant that the TPS warrant was an impermissible tool used to assist the homicide investigators in their investigation. While the timing may raise a question, on the four corners of the warrant as it pertained to the search therein, I am not persuaded by the applicant’s argument. I accept that the issuing justice would have been aware of the scope and nature for the issuance of the warrant, including Marshall’s reference to the fact that he “[was] not seeking a DNA warrant in relation to the homicide,” but rather included that information “in the interest of being full, fair and frank”.
87True, akin to Ricciardi, Marshall could have provided more details about the homicide investigation and the likelihood that the DNA results from the TPS warrant would be shared with the homicide investigators. However, the failure to do so does not amount to a failure to make full, fair and frank disclosure.
88With respect, the applicant misapplies the affiant’s assertion that he was “not seeking a DNA warrant in relation to the homicide.” This language merely confirms the scope of the authorization being sought; samples collected pursuant to the first warrant would be compared with those recovered from the robbery and theft, but not the samples recovered from the homicide. This language does not forswear a dual purpose, nor does it guarantee that analysis of the sample authorized by the first warrant would not ultimately advance the homicide investigation by providing further support for the second warrant request. The phrase was included as a legally correct assurance that a second warrant would be required before any comparison with samples recovered from the homicide could be conducted.
89Even if I accept that the police attempted to mislead the authorizing justice, the supposed misconduct could not have sabotaged or frustrated the authorization process. First, the potential for the first warrant to advance the homicide investigation was undoubtedly apparent to the authorizing justice. Second, the authorization process and broader statutory scheme operated as legislators had intended. Third, the supposed misconduct is too remote from the second DNA warrant to justify an exercise of the residual discretion to quash it.
90I accept that the first warrant would remain valid after remedial additions. This would involve the inclusion of two points: that the warrant was being sought with a view to advancing the homicide investigation; and, that any information gleaned through the first warrant would subsequently be shared with homicide investigators. Had these points been more overtly stated in the supporting affidavit, there would nevertheless have been a sufficient basis for the authorizing justice to issue the first warrant. This is supported by those same considerations that indicate limited materiality; that the information was not germane to the factual prerequisites for its issuance and had little bearing on whether the first warrant was in the “best interests of the administration of justice.”
91It is trite law that the issuing justice is entitled to draw reasonable inferences from the contents of the ITO: Sadikov, at para. 82; R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at paras. 25-26, leave to appeal refused.
92While it is arguable that the homicide investigators did not have reasonable and probable grounds to obtain a DNA warrant at the earlier stage of the investigation, the issuing justice was not misled as to the basis for the warrant- specifically for the TPS occurrences. In sum, I find it was a reasonable for the issuing justice to infer that the results of the TPS warrant would be shared with the homicide investigators.
93I find the applicant’s s. 8 Charter rights were not breached by the conduct of the police in DNA search warrant process.
Application of Legal Principles - Section 7 of the Charter:
94The applicant poses some interesting and challenging arguments with regards to the obtaining of his DNA and the interaction between various policing agencies in relation to his s. 7 Charter rights. This application raises novel issues that have not previously been litigated in this jurisdiction. The analytical framework relied upon to resolve the present controversy should draw on both the subversion and abuse doctrines.
95Section 7 of the Charter is engaged when there are allegations that an abuse of process has taken place such that the accused is prejudiced or the integrity of the justice system itself is affected.
96Section 7 of the Charter provides for the residual judicial discretion to exclude evidence. If a search warrant, which yielded evidence useful to the prosecution is challenged in a Charter application, survives the standard of review, it can be ruled invalid through the exercise of a trial judge’s residual discretion to address deliberate police misconduct in the search warrant application process.
97To repeat, the alleged impugned state conduct is the TPS seeking a warrant without any intention to prosecute the applicant for those offences and/or at the behest of the homicide investigators. The applicant submits that the TPS warrant was an impermissible tool used to assist the homicide investigators in their investigation, which amounts to a subversion of the search warrant process, and further, an abuse of process. The court should address the abuse of the search warrant application process by using its residual discretion to invalidate the search warrant.
98The Crown responds that there was no misconduct by the police. Even so, the TPS were justified in seeking the DNA warrant for a dual purpose as long as both purposes were lawful. The resumption of a dormant investigation was lawful and furthering the homicide investigation is a lawful purpose also not indicative of abuse.
Abuse of Process Doctrine:
99The abuse of process doctrine falls under s. 7 of the Charter. The rationale behind the doctrine is to ensure the integrity of the court’s process and to protect the administration of justice from disrepute: R. v. Campbell, [1999] 1 S.C.R. 565, at para. 43.
100Like the subversion doctrine, successful invocation of the abuse of process doctrine is rare: R. v. Currado, 2023 ONCA 274, 426 C.C.C. (3d) 6, at para. 17, leave to appeal refused, [2023] S.C.C.A. No. 258. This is because “[t]here is a significant difference between state conduct which is unwise, unnecessary, inappropriate, or even improper, and state conduct that goes so far as to be properly characterized as ‘offensive to societal norms of fair play and decency’": Currado, at para. 17. The latter is a high threshold, and it is what must be established to demonstrate an abuse of process has occurred.
101The Supreme Court of Canada reviewed the doctrine of abuse of process in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 33-42, summarized as follows:
i. The common law abuse of process doctrine was merged under s.7 of the Charter in R. v. O’Connor, [1995] 2 S.C.R. 411. ii. There are two categories of abuse of process: prosecutorial conduct affecting the fairness of trial (“main category”) and prosecutorial conduct that contravenes fundamental notions of justice thereby undermining the integrity of the judicial process (“residual category”). iii. The main category is concerned with fairness of the accused’s trial and whether the impugned conduct impaired trial fairness. Under this category, the court’s focus is on the impact of the impugned conduct and if the requisite degree of prejudice has arisen. The severity or character of the misconduct alone is not determinative. iv. The residual category is concerned with whether the impugned conduct defies societal notions of justice to an extent that it undermines the integrity of the judicial process. At this stage, the applicant must show they have suffered significant prejudice to rise to the level of abuse of process. v. Where an abuse of process is established, the next step is to determine the available remedy. A stay of proceedings will only be granted for abuse of process when the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome, and no other remedy is reasonable capable of removing that prejudice.
102The subversion analysis bridges ss. 7 and 8 of the Charter. It focuses specifically on the judicial pre-authorization process. In contrast, the abuse doctrine focuses generally on abuses of the judicial process.
103The Supreme Court of Canada in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, outlined a three-stage analysis under the abuse of process doctrine.
104First, it must be determined whether an abuse of process occurred: Babos, at para. 32. The abuse of process may have occurred under the main category or the residual category.
105Second, the available remedies must be considered. What remedy should be invoked depends on whether the prejudice to the accused occurred in the main category or the residual category: Babos, at para. 39.
106Third, there must be a balancing of competing interests: Babos, at para. 32. How this third stage unfolds depends on the category the prejudice falls into. Less weight is placed on the balancing when the prejudice has taken place in the main category because it will often be clear by this point that there is a remedy available to address the concern: Babos, at para. 40. In contrast, the balancing takes on extra significance where the prejudice falls under the residual category because the court is forced to consider the integrity of the justice system versus the rights of the accused to have a fair trial in the face of the impugned conduct: Babos, at para. 41.
107Different remedies may apply depending on whether the abuse of process arises from the trial fairness category or the residual category. If the abuse emanates from the main category, the question is whether a lesser remedy adequately restores the right to procedural fairness. If the abuse emanates from the residual category, the question is whether an alternate remedy could adequately dissociate the justice system from the misconduct. The exclusion of evidence is a remedy to be considered for both species of abuse. This remedy is generally reserved for situations where the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated by continuing the proceedings.
108Recall that in Ricciardi, Di Luca J. applied this framework to scrutinize a similar complaint that the preauthorization process had been used as a ruse to advance an investigation into offences for which police lacked reasonable grounds.
109To reiterate, it is rare for the abuse of process doctrine to be successfully invoked. It applies in the clearest of cases, with the most egregious state conduct: Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 91.
110The subversion and abuse doctrines are largely coextensive. The governing authorities have repeatedly equated subversion with abusive misconduct: for example, See Vivar, at para. 2. As such, the issues being raised here are amenable to an abuse of process analysis. Indeed, there are two compelling reasons for applying the abuse doctrine in this case. First, the abuse of process doctrine would better accommodate the remoteness of the supposed misconduct. Second, the societal focus associated with the residual category of the abuse doctrine may better account for the public policy considerations.
111I agree with the applicant that DNA profiles created through the execution of a DNA warrant cannot be utilized for means not contemplated by the warrant: Auclair, at paras. 20 and 21. Because the collection of DNA is one of the most invasive forms of search and seizure, the individual is entitled to heightened protections and the actions of the police are subject to heightened scrutiny.
112However, a distinction must be made between comparisons of DNA profiles and information sharing between police organizations during ongoing investigations.
113In Canada Revenue Agency v. Royal Canadian Mounted Police, 2016 BCSC 2275, the court dealt with an application by the Canada Revenue Agency, under s. 490(15) of the Criminal Code, to examine and make copies of items seized by the RCMP pursuant to several search warrants. In discussing the issue, the court stated at paras. 30-31:
[30] …. there is nothing inherently wrong with cooperation between police forces, even without a court order, and also the sharing of legally‑obtained information. [31] In R. v. Quesnelle, 2014 SCC 46, in the context of sexual assault reports, Justice Karakatsanis said this at para. 39: . . . it is reasonable to expect individual police officers to share lawfully gathered information with other law enforcement officials, provided the use is consistent with the purposes for which it was gathered.
114I agree with the Crown that we expect that our police forces work together to ensure public safety. In fact, we know the horrific consequences that can arise when police forces fail to share information amongst themselves. We need not look any further than the crimes committed by Paul Bernardo between May 1987 and December 1992.
115Part of the reason this offender was able to elude police for as long as he did was due to a failure of police communication. As aptly noted by Campbell J. in The Bernardo Investigation Review Summary, June 1996),
…the Bernardo case, like every similar investigation, had its share of human error. But this is not a story of human error or lack of dedication or investigative skill. It is a story of systemic failure… Because of the systemic weaknesses and the inability of the different law enforcement agencies to pool their information and co-operate effectively, Bernardo fell through the cracks. .. A case management system is needed that is based on cooperation, rather than rivalry, among law enforcement agencies. A case management system is needed that depends on specialized training, early recognition of linked offences, co-ordination of interdisciplinary and forensic resources, and some simple mechanisms to ensure unified management, accountability and co-ordination when serial predators cross police borders.
116I accept that the intention behind the legislative scheme would be undermined if limitations were interpreted so broadly that they precluded coordination or information sharing between investigations. Can it not be said that the DNA legislation is meant to facilitate such cooperation and information sharing? If so, then it is not surprising that province-wide police protocols mandate the pursuit of such case-to-case linkages in the context of major crime investigations.
117The applicant argues that the timing of the TPS investigation charges and their immediate withdrawal is suspect. The applicant was charged with two counts of first-degree murder on September 22, 2020. Two weeks later, the applicant was also charged for possession of stolen property for the 2018 vehicle theft. One day after laying the charge for possession of stolen property, the Toronto Crown attorney’s office abandoned the prosecution.
118It may be that the withdrawal of charges suggests that there was “no intention of ever pursuing or prosecuting the applicant in relation to the vehicle theft represents an error of law. However, the legitimate exercise of prosecutorial discretion is not controlled by police nor is it indicative of bad faith on their part.
119In R. v. Thompson, 2015 ONCA 800, 343 O.A.C. 376, the Court of Appeal specifically rejected the inference being advanced by the applicant here. The trial judge in that case rejected the notion that the withdrawal of charges against an investigative source suggested that officers laid bogus charges to conceal having fabricated his statement. The Court of Appeal affirmed the trial judge’s ruling and stated at para. 50:
Drawing a negative inference from the withdrawal of charges […] would require this court to engage in speculation, because the Crown is not obliged to give reasons for the exercise of its prosecutorial discretion. Such speculation cannot establish arbitrary or improper motives.
120As to the applicable legal analysis, I agree with the Crown that the subversion analysis should be applied to scrutinize the preauthorization process relating to the first TPS warrant. This will assist in determining whether the applicant’s foundational complaint of police misconduct can be sustained. I have already determined that there was no subversion in that regard.
121I also agree with the Crown that the applicant’s complaint that police concealed their intent to advance the homicide investigation through the first warrant must fail. The first affiant made no attempt to conceal linkages to the homicide investigation. The likelihood of advancing the homicide investigation was of liminal materiality and the withdrawal of the vehicle theft charge is not suggestive of misconduct. Insofar as the first supporting affidavit can be criticized, it is vulnerable only to the criticism that it did not sufficiently emphasize the patently obvious fact that any information gleaned through the first warrant would be shared with homicide investigators. The police were entitled to act with a dual purpose. I find that this falls short of proving deliberate misconduct, bad faith, or fraudulent intent.
122If a subversion of the preauthorization process can be established, but the misconduct is too remote to engage the residual discretion to quash an otherwise valid warrant, the abuse of process doctrine should be considered. That said, the remoteness of the misconduct would be a relevant consideration under the abuse doctrine as well.
123It follows that the abuse doctrine should be considered next to determine whether the conduct of police nevertheless offends societal notions of justice for this inquiry.
124As noted previously, given the degree of conceptual overlap between the subversion and abuse doctrines, in this case, the abuse complaint is likely to fail in the same manner as does the subversion claim. The broader societal perspective better accounts for the considerations that extend beyond the confines of the preauthorization process. This analysis does not, however, weigh in the applicant’s favour for three reasons.
125First, I find that the resumption of the previously dormant TPS investigations was not abusive. That contention would run counter to binding appellate authorities. Much more problematic situations, including scenarios where the accused had been erroneously told that the investigation was being discontinued, have withstood challenges under both categories of the abuse of process doctrine: See, for example, R. v. G.W.R. (1996), 112 C.C.C. (3d) 178 (Ont. C.A.): R. v. Kenny (1996), 108 C.C.C. (3d) 349 (Nfld. C.A.); R. v. RG, 2018 ONSC 130, at para. 36.
126It bears repeating that the question before me is whether there was police misconduct in this case. Specifically, I must determine whether the officers misled the issuing justice by failing to accurately describe the connection to the Brantford homicides when obtaining a DNA warrant for the Toronto offences or whether the purpose was subterfuge because the intention was to provide the results of the DNA warrant to the homicide investigators.
127At stage one, the applicant alleges the abuse of process has occurred under the residual category. He says the investigatory conduct of the police in obtaining the search warrant contravenes fundamental notions of justice thereby undermining the integrity of the judicial process. I disagree. Like Ali, at para. 92, a series of mistakes were made by the police, such as poor notetaking, the suspicious timeline of events, and the lack of details in the ITO. I recognize that some of these mistakes are more serious than others.
128However, I do not see these mistakes as a deliberate attempt to subvert the search warrant process and cannot find the actions of the police arise to an abuse of process.
129At stage two, the applicant suggests the appropriate remedy is exclusion of the evidence. Since I find the abuse of process analysis fails at stage one, I elect not to address the requested remedy here. Instead, I will deal with the appropriate remedy, if any, in the analysis of s. 24(2) of the Charter.
130In this case, I find that the tactics employed by police were not objectionable or abusive. As noted, the way that police pursued the genetic evidence relating to the applicant meant that his privacy interests were doubly protected. To explain, investigators were essentially required to show reasonable grounds twice by going through the authorization process in Toronto and in Brantford. It should also be noted that police might have obtained this evidence through more ignoble avenues, requiring only reasonable suspicion. Police could have obtained a warrantless cast-off sample prior to the applicant’s detention.
131As mentioned, the public demands police cooperation and such coordination is not abusive. The applicant’s argument largely rests on the presumption that the collaboration between homicide investigators and TPS was somehow problematic. There is no indication that the TPS investigations were improperly subordinated to the homicide investigation. The applicant’s argument runs counter to the binding appellate authorities that favour the propriety of inter-agency coordination. The public interest strongly favours such coordination because the cost of non-cooperation is all too frequently paid in lives. Recall the conclusion of Campbell J.’s Bernardo Investigation Review, which stated that:
Because of the systemic weaknesses and the inability of the different law enforcement agencies to pool their information and co-operate effectively, Bernardo fell through the cracks... There must be a public recognition that these problems are not just problems for the police and law enforcement communities. They are problems for the community as a whole. A commitment to correct them is necessary in order to guard against another case like this.
132If there was any misconduct, it was too remote to have any effect on this case. Cooperation between police services in not abusive and it was not wrong to share the grounds for the search warrant within or across the services. Specifically, I find that the homicide investigators did neither direct nor implore the TPS to engage in the search warrant process for the applicant’s DNA.
133In fact, I agree entirely with the Crown attorney’s legal analysis and argument related to these issues. 2 I find that the conduct of the police in this case does not amount to an abuse of process or subversion of the judicial authorization process.
134This is not one of the “rare cases” where judicial discretion should be exercised to set aside the otherwise valid warrant or exclude the properly-obtained DNA evidence.
135However, if I am in error with respect to the s. 7 analysis, I would still admit the DNA evidence pursuant to s. 24(2) of the Charter.
SECTION 24(2) OF THE CHARTER:
136Section 24(2) of the Charter states:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
137In the seminal case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 535, the Supreme Court of Canada held, at para. 67, that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on the overall repute of the justice system. Section 24(2) requires an objective inquiry, and it asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 68.
138In Grant, at para. 75, the court stated that ignorance of Charter standards must not be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith. In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22, the Supreme Court of Canada pointed out that a reviewing court should be concerned about and disassociate itself from cases where the police knew or ought to have known that their conduct was not Charter-compliant. The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused, but rather is aimed at systemic concerns: Grant, at para. 70.
139At para. 71 of Grant, the Supreme Court of Canada outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are: (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.
140The abuse of process analysis has historically been fused with the stay of proceedings remedy under s. 24(1) of the Charter. However, the contemporary jurisprudence has evolved to a consideration of lesser remedies, such as the exclusion of evidence. If the abuse of process arises from how the impugned evidence was obtained, there is no reason why section 24(2) of the Charter should not apply.
141If a finding of subversion results in the warrant being quashed, the next analytical step would be to consider whether the impugned evidence should be excluded under s. 24(2) of the Charter. In contrast, if an abuse of process is found, the next stage in the analysis would involve considering whether the impugned evidence should be excluded under section 24(2) or by applying s. 24(1), then following a process that parallels the Grant analysis. 3
142In considering the seriousness of the Charter-infringing state conduct, the court must ensure that they are not in effect condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from willful or reckless disregard of Charter rights. The court should assess whether any breach, if there was one, was “fleeting or technical” as opposed to “profoundly intrusive”.
Application of These Legal Principles:
The Seriousness of the Charter-infringing State Conduct:
143The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that shows a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.
144In considering the seriousness of the Charter-infringing state conduct, the court must ensure that they are not in effect condoning state deviation from the law. The governing authorities envision a spectrum of culpability. At the least serious end are highly technical or inadvertent missteps taken in good faith. At the opposite end is conduct that evinces a contempt for constitutional standards or a systemic flouting of the law.
145This analysis calls for a holistic approach. The breach must be gauged in relation to the broader pattern of police conduct. An isolated misstep is less serious than a pattern of persistent misconduct. The seriousness of a breach will be further attenuated if the misstep came about as police were attempting to navigate an area of law that is unclear, unsettled or highly complex: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 84-87.
146“Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. It should be noted that the absence of bad faith does not equate to good faith. Moreover, ignorance of Charter standards must not be rewarded or encouraged, and wilful blindness cannot be equated with good faith: R. v. Kokesch, [1990] 3 S.C.R. 3, at 32-33; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.
147Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. In recognition of the need for courts to distance themselves from this behaviour, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
148The seriousness of the alleged breach is attenuated here because it was removed from the homicide investigation. The allegations of misconduct concern the first affiant, who was not directly involved in this case. The contents of the first affidavit were not dictated by or even available to homicide investigators. The supposed breach represents an isolated incident and not a broader pattern of misconduct; this indicates that good faith efforts were being made to adhere to constitutional requirements. The setting for the supposed breach is a particularly complex area of law. While this cannot excuse intentional misconduct or negligence, an earnest mistake about the materiality of certain considerations would nevertheless mitigate the seriousness of the breach.
149As stated, the main concern is to preserve public confidence in the rule of law and its processes, and not to punish the police. Any breach that was occasioned by the police conduct in this case was not serious. I do not find that the officers acted in bad faith. While the absence of bad faith is not dispositive, I cannot categorize the police actions as deliberate or adopting a cavalier attitude towards the applicant’s Charter rights.
150I find that the admission of this evidence would not send a message that the justice system is somehow condoning serious state misconduct and its admission would not greatly undermine public confidence in the justice system. In my view, this factor weighs in favour of inclusion.
The Impact of the Violation on the Charter-Protected Interests of the Accused:
151The second branch of the test outlined in Grant, at para. 76, focuses on the seriousness of the impact of the Charter breach on the interests of the accused. The court must evaluate the extent to which the Charter breach undermined the interests protected by the Charter right. This evaluation is done on a spectrum ranging from fleeting and technical breaches to profoundly intrusive breaches. The more serious the impact of the breach is on the protected interests of the accused, the more likely it is to bring the administration of justice into disrepute.
152The second branch of the test is outlined in Grant at para. 76, as follows:
153Discoverability retains a useful role in assessing the actual impact of the breach. Discoverability may weigh against a finding the breach has had a meaningful impact on the accused’s Charter-protected interests.
154As with the assessment of seriousness, the impact of a breach must be situated on a spectrum that ranges from fleeting and technical to profoundly intrusive. The degree of impact is determined by first identifying the interests protected by the infringed right and then measuring how significantly they were compromised. For example, the seriousness of a breach resulting from an unconstitutional search will reflect the level of privacy to which the individual was reasonably entitled in the circumstances. The impact of any breach will also be significantly amplified where the breach serves to prejudice fair trial rights. The impact of an unconstitutional search will therefore be attenuated where the police could have presented sufficient grounds to a jurist in order to conduct a valid search. The doctrine does not, however, permit speculation or revisionism about what police might have hypothetically done.
155The Crown submits the homicide investigators could have obtained the accused’s DNA through other, more intrusive means, such as cast-off samples. Instead, homicide investigators went through the judicial authorization process for a DNA warrant to collect DNA from the accused for a second time. This was required by the strict legislative scheme that limits on the use of DNA profiles resulting from a search warrant.
156The strict legislative scheme overseeing DNA warrants and the requirement on each police service, being TPS and the homicide investigators, to get their own DNA warrants led to the accused’s privacy rights being doubly protected since each police service had to establish the necessary components of the ITO before separate justices.
157I agree with the defence that an individual’s privacy interests in their own DNA is of paramount importance, and that entitles the actions of the police to be subject to heightened scrutiny. The collection of bodily samples is profoundly intrusive and when the collection of these samples is compromised by police misconduct, it seriously affects an accused’s rights.
158While I agree that the timing of the investigative steps is not optimal and calls into question the intentions of the homicide investigators, I do not believe it rises to the level of subversion or an abuse. The police conduct necessary to engage the residual discretion of the court must be “so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed”: Vivar, at para. 2. This has not occurred here.
159Even accepting the applicant’s argument regarding the inherent impact arising from the intrusive collection of bodily evidence, certain factors work to significantly attenuate the impact of the supposed breach. The practical result of police having obtained two warrants is that the applicant’s interests were doubly protected; investigators were required to justify the intrusion twice before his genetic samples were analyzed to generate evidence that implicated him in the homicides. The supposed breach has not prejudiced the fairness of these proceedings and the impugned evidence was also eminently discoverable. In fact, homicide investigators received such a notification.
160While not the sole factor, still, the impact on the applicant's Charter-protected interests was not significant. My consideration of the second factor weighs in favour of inclusion.
Society’s Interest in the Adjudication of the Case:
161In considering this third factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion?" The reliability of the evidence is an important consideration in this line of inquiry. In Grant, at paras, 83-84, the Supreme Court discussed how the importance of the evidence to the Crown's case is a relevant consideration.
162The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the applicant. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
163This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. The Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.
164Murder is one of the most heinous crimes in the Criminal Code. The facts of this case demonstrate an execution-style murder of two individuals who exited their home at the wrong time. I find the circumstances of this case are especially disturbing and I agree that society has a profound interest in seeing a finding of guilty or not guilty on these charges.
165Moreover, I consider the reliability of the evidence and its importance to the Crown’s case. DNA evidence is extremely reliable. It places the applicant in the driver’s seat of the Chrysler 300 that was used in committing the double homicide. The DNA evidence is crucially important and central to the Crown’s case on the issue of the identity of the shooter.
166In my view, the truth-seeking function of the criminal trial process would not be better served by the exclusion of evidence. In fact, the truth-seeking function of the criminal trial process would not be served at all by exclusion of the evidence. I conclude the third stage of this inquiry weighs in favour of inclusion of the evidence. Adjudication of this case on the merits is of the highest importance.
167While I must be cautious not to place too much emphasis on this latter point, in Grant, the Supreme Court offered that the seriousness of the offence may give rise to be a neutral consideration. In this case, I conclude that society's interest in the adjudication of the case on its merits militates in favour of admission of this evidence.
The Final Balancing of Factors:
168The final step is a balancing of all these factors. In Harrison, the Supreme Court provided some guidance to trial judges at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative exercise. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
169The police conduct in this case cannot be described as even close to a deliberate or flagrant disregard of the applicant’s Charter rights. The impact on the applicant’s Charter rights was not significant as the reliability and importance of the seized items to the prosecution’s case. I do not find that the actions of the police would invite a negative impact on the public confidence in the administration of justice and the rule of law.
170In my opinion, the balancing of all the s. 24(2) factors militate in favour of admission of the evidence, and I find that its exclusion would bring the administration of justice into greater disrepute.
CONCLUSION:
171The applicant has not his onus to establish a breach of his s. 8 Charter rights.
172With respect to s. 7, the applicant raises very important legal issues. While there is some merit to the concerns advanced by counsel, upon review of the relevant legal principles and the facts presented, the identification of the applicant’s DNA through the results of a warrant obtained and shared by inter-service police cooperation was not obtained in a manner that breached his ss. 7 Charter rights.
173Moreover, if I am in error with regards to my ss. 7 or 8 analysis, I would still admit the DNA evidence pursuant to s. 24(2) of the Charter. Therefore, the application to exclude evidence pursuant to the Charter is dismissed.
A.J. Goodman J.
Date: April 5, 2024
Footnotes
- DNA relating to a third individual was also located in the stolen vehicle, who could be excluded as the source of the blood in the Chrysler 300 because his profile was already on the National DNA Data Bank.
- I am grateful to Mr. Morrow for his extensive analysis and research of the relevant legal principles as outlined in his factum, to which I have referenced extensively in my reasons.
- In oral argument, counsel did not specifically seek a remedy under s. 24(1) of the Charter.