Court File and Parties
COURT FILE NO.: CR-22-103-0000 DATE: 2024 01 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King A. Al Rohani, for the Respondent Respondent
- and -
Dakari Daniel Y. Eshetu, for the Applicant Applicant
HEARD: January 15 and 16, 2023 in-person
RULING ON CHARTER (GAROFOLI) APPLICATION
C. Chang J.
[1] The applicant brings this Garofoli application challenging the validity of the search warrant (the “Search Warrant”) issued by Justice of the Peace C. Noordegraaf (the “authorizing justice”) for the residence at 249 Hinton Terrace in Milton (“249 Hinton”). He also seeks an order excluding the evidence seized pursuant to the Search Warrant.
[2] The applicant submits that the Search Warrant is invalid because the information to obtain it (the “ITO”) failed to disclose reasonable and probable grounds to believe that evidence related to the offences with which he is charged could be found there. He further argues that, as a result, the search at 249 Hinton violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) and the evidence seized further to it should be excluded pursuant to s. 24(2).
[3] The respondent opposes the application and submits that the ITO contained sufficiently reasonable and probable grounds to believe that evidence related to the offences with which the applicant is charged could be found at 249 Hinton. It argues that the Search Warrant is therefore valid and, consequently, there was no violation of the applicant’s s. 8 rights and no basis for exclusion of the seized evidence under s. 24(2).
[4] The respondent initially contested the applicant’s standing to bring this application, but resiled from that position before the hearing on the merits. I accept that, for the purposes of this application, the applicant had a reasonable expectation of privacy in 249 Hinton and, as a result, has standing to bring this application.
[5] No viva voce evidence was tendered on the application.
FACTS
The Armed Robbery
[6] At approximately 6:50 p.m. on June 10, 2021, an unknown male suspect was observed by witnesses and captured on surveillance camera video footage entering the Pizza Nova restaurant at 6291 Derry Road in Milton brandishing a firearm. He was wearing a maroon hoodie, black jogging pants with a pink and blue check logo on the left leg, white running shoes, a red bandana with white design on his head, a white bandana with black design on his face and green rubber or latex gloves.
[7] The suspect discharged the firearm, pointed it at one of the workers and demanded cash. He also discharged the firearm at another worker who fled the restaurant to call 911. After receiving the cash, the suspect walked around the front counter and entered the food preparation area. Shortly after that, he left the restaurant, entered a black Mazda hatchback or sedan (estimated to be four to five years old) with Ontario licence plate no. CPXT 541 and discharged the firearm at another person before leaving the scene.
The Investigation
[8] A Plate And Registration Information System (PARIS) query by the Halton Regional Police Service (“HRPS”) disclosed that Ontario licence plate no. CPXT 541 is attached to a black 2018 Mazda 3TR. A Niche database query disclosed that the same motor vehicle was located in the driveway of 249 Hinton on May 14, 2021 during a police interaction with an occupant of that address respecting an animal complaint.
[9] At approximately 6:32 p.m. on June 10, 2021, doorbell camera video footage captured a person matching the description of the robbery suspect leaving 249 Hinton in a black Mazda that was parked in the driveway. He was the sole occupant of the vehicle.
[10] At approximately 6:59 p.m. on June 10, 2021, video footage from the same doorbell camera captured the apparently same person returning to 249 Hinton in the apparently same vehicle and reversing it into the garage. He was the sole occupant of the vehicle and made numerous attempts to back it into the garage.
[11] At approximately 8:30 p.m. on June 10, 2021, while HRPS was conducting surveillance on 249 Hinton, a person matching the description of the robbery suspect was observed exiting that address with two dogs. That person later returned to and entered 249 Hinton.
[12] At approximately 12:57 a.m. on June 11, 2021, during HRPS’s continuing surveillance on 249 Hinton, a BMW sport utility vehicle attended that address and a female occupant exited the vehicle and entered 249 Hinton. Approximately three minutes later, the female exited 249 Hinton together with a male person who was carrying a large black duffel bag and they both entered the BMW. Shortly afterward, the occupants of the BMW were arrested for possession of a firearm, which was located in the black duffel bag, together with boxes of ammunition. That firearm was similar to the one used in the robbery and some of the ammunition was similar to that of which casings were found at the scene of the robbery.
The Search Warrant
[13] The Search Warrant was issued at 9:51 a.m. on June 11, 2021 and authorized a search at 249 Hinton for, and the seizure of, a maroon hoodie, a white bandana with black design, a red bandana with white design, green rubber or latex gloves, black jogging pants with a pink and blue check logo on the left leg, white running shoes and a black 2018 Mazda 3 with Ontario licence plate no. CPXT 541.
[14] HRPS executed the Search Warrant at 249 Hinton later the same day and located a maroon hoodie, green latex gloves, black jogging pants with a pink and blue check logo on the left leg, white running shoes and a black 2018 Mazda 3 with Ontario licence plate no. CPXT 541. The applicant was also located at 249 Hinton and was arrested.
ISSUES
[15] The issues to be determined on this application are as follows:
a. Did the June 11, 2021 search at 249 Hinton violate the applicant’s rights under s. 8 of the Charter?
b. If the search violated the applicant’s rights under s. 8 of the Charter, should the evidence obtained by police during it be excluded pursuant to s. 24(2)?
ANALYSIS
Issue: Did the June 11, 2021 search at 249 Hinton violate the applicant’s rights under s. 8 of the Charter?
Parties’ Positions
[16] The applicant submits that the Search Warrant was not validly issued, as the ITO fails to disclose reasonable and probable grounds to believe that relevant evidence could be found at 249 Hinton. He further argues that the ITO’s references to a “black Mazda”, the timing of its arrival at 249 Hinton after the robbery and the “erratic” way it was driven at that time are misleading and should be excluded. Therefore, the applicant submits, the June 11, 2021 search at 249 Hinton violated his rights under s. 8 of the Charter.
[17] I note that the applicant’s argument under s. 8 of the Charter is premised exclusively on his claim that the Search Warrant could not have been authorized based on the ITO. He advances no other violation of his s. 8 rights.
[18] The respondent submits that the ITO sufficiently sets out reasonable and probable grounds to believe that relevant evidence could be found at 249 Hinton. It also argues that the applicant’s claims that the impugned references in the ITO are misleading is unsupported and meritless. Therefore, the respondent submits, the Search Warrant is valid and the application should be dismissed accordingly.
Law
[19] Section 8 of the Charter constitutionally enshrines the right of individuals to be secure against unreasonable search or seizure by the state. That right is balanced against the state’s legitimate interest in investigating crimes by, among other things, the requirement for police to obtain judicial authorization (usually a search warrant) before conducting searches (see: R. v Vu, 2013 SCC 60, at para. 22). The predicate for such judicial authorization is assessed on a standard of credibly-based probability and, at a minimum, must establish “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (see: R. v Sadikov, 2014 ONCA 72, at para. 81; R. v Morelli, 2010 SCC 8, at para. 39).
[20] Once issued, a search warrant is presumptively valid and a party challenging it bears the burden of demonstrating that it was not validly issued (see: R. v Brown, 2021 ONCA 119, at para. 33). On such a challenge, a party has two possible attacks against the information to obtain: 1) facial – on the face of the information to obtain as written, the search warrant could not have been issued; and 2) sub-facial – undertaking a contextual analysis and as amplified on review, there is insufficient reliable information that might reasonably be believed upon which the search warrant could have been issued (see: R. v Boussoulas, 2014 ONSC 5542, at paras. 9-10).
[21] A court reviewing the issuance of a search warrant is not to conduct a rehearing of the application for its issuance or substitute its own opinion for that of the authorizing justice (see: Brown, at para. 34). The review process is not to be “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” (see: R. v Nguyen, 2011 ONCA 465, at para. 57).
[22] The question for the reviewing court is whether there is reliable evidence that might reasonably be believed upon which the search warrant could have been issued (see: R. v El-Azrak, 2023 ONCA 440, at para. 95). Per Strathy C.J.O. in Brown, at para. 34, citing R. v Garofoli, [1990] 2 S.C.R. 1421, “[i]f, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere”.
Decision
[23] I find that the June 11, 2021 search at 249 Hinton did not violate the applicant’s rights under s. 8 of the Charter. That search was judicially authorized by way of the Search Warrant. Furthermore, the ITO sets out sufficiently reasonable and probable grounds to believe that an offence had been committed and that there was relevant evidence that could be found at 249 Hinton such that the Search Warrant could have been issued.
[24] Among the other information set out in it, the ITO:
a. directly connects 249 Hinton with: i. a person matching the description (including gender, height, build, complexion and red bandana) of the armed robbery suspect, j. a vehicle matching the description (make, style, approximate age and licence plate number) of the one used in the armed robbery, and k. a firearm; b. sets out that video footage showed a person matching the robbery suspect and a vehicle matching the suspect vehicle (except the licence plate number, which is indiscernible in the video footage) leaving from 249 Hinton shortly before the robbery and returning to it shortly after; and c. discloses that, during surveillance conducted the same evening as the robbery, HRPS observed and photographed a person matching the description of the robbery suspect exit 249 Hinton to walk two dogs and return to it afterward.
[25] I do not accept the applicant’s argument that the ITO’s references to a “black Mazda”, the timing of its arrival at 249 Hinton after the robbery and the way it was driven at that time are misleading.
[26] There is no evidence to support the applicant’s contention that it would be impossible for a reasonable observer to discern from the doorbell camera video footage that the subject vehicle was a black Mazda. That footage provides the viewer with a complete view of the vehicle’s colour and its front grill, including the brand logo. In my view therefore, it was open to the affiant of the ITO to reasonably believe the vehicle to be a black Mazda and to refer to it as such in the ITO.
[27] In addition, I accept the respondent’s argument that the inclusion of still images from the video footage showing the subject vehicle provided the authorizing justice with the applicable context within which to consider and assess the affiant’s description of it as a “black Mazda”.
[28] Similarly, there is no evidence to support the applicant’s contention that the ITO’s reference to the timing of the black Mazda’s arrival at 249 Hinton after the robbery is false or misleading.
[29] Based on the evidence, I do not accept the applicant’s argument that it was impossible for the black Mazda to have been involved in the robbery and return to 249 Hinton eight minutes after it. The Google Maps evidence indicates that, depending on the specific route taken, the “typical” estimated driving time between the robbery location and 249 Hinton ranges between five and ten minutes. These “typical” driving time estimates are clearly subject to, among other things, traffic conditions, traffic control measures (e.g., traffic lights, stop signs and speed limits) and driving behaviour, including speed and compliance with traffic control measures. Therefore, as a matter of common sense, a driver who exceeds the posted speed limit(s), disregards traffic control measures and otherwise drives aggressively could cover the distance between the robbery location and 249 Hinton in less time than the “typical” driving time estimates proffered by Google Maps.
[30] In my view therefore, it is not impossible for the black Mazda to have traversed the distance between the robbery location and 249 Hinton in the timeframe set out in the ITO and it was neither misleading nor unreasonable for the affiant to have specified an applicable eight-minute timeframe in the ITO.
[31] There is also no evidence to support the applicant’s contention that it would be impossible for a reasonable observer of the applicable video footage to characterize the way the black Mazda was being driven as “erratic”. The applicant admits that the video footage clearly shows, in counsel’s words, “someone having difficulty backing into their garage”. Indeed, the footage shows the driver making multiple unsuccessful attempts at backing into the garage, including making contact with the building structure and the garage’s contents on multiple occasions, before successfully parking. In my view therefore, it was open to the affiant of the ITO to characterize the manner of driving as “erratic” and to refer to it as such in the ITO.
[32] In addition, I accept the respondent’s argument that the reference to the black Mazda’s “erratic” operation is a subjective characterization on which reasonable people can disagree and the affiant’s use of that characterization was reasonable based on his review of the video footage.
[33] I am also mindful of the Court of Appeal’s admonition in R. v Green, 2015 ONCA 579, at para. 18, that “the ITO must be read as a whole in a common sense manner and having regard to its author. Police officers are not wordsmiths and the ITO is not to be parsed as though produced by a meticulous solicitor”. With that direction in mind, I find that the ITO’s description of the way that the black Mazda was being driven when it returned to 249 Hinton after the robbery is reasonable.
[34] Furthermore, I do not see that anything material turns on the affiant’s use of the word “erratic” in the applicable context. He neither explicitly nor implicitly ties the driving behaviour shown in the applicable video footage to the likelihood that evidence connected to the armed robbery could be found at 249 Hinton. Therefore, even were I to accede to the applicant’s request to exclude the references to “erratic” driving, my finding that the Search Warrant could properly have been issued would be unaffected.
[35] I therefore conclude that the ITO discloses sufficiently reasonable and probable grounds upon which the authorizing justice could have authorized the Search Warrant. As such, I am not satisfied that the June 11, 2021 search at 249 Hinton violated the applicant’s right against unreasonable search or seizure under s. 8 of the Charter.
Issue: If the search violated the applicant’s rights under s. 8 of the Charter, should the evidence obtained by police during it be excluded pursuant to s. 24(2)?
Parties’ Positions
[36] The applicant and the respondent devoted very little of their written submissions and none of their oral submissions to the issue of s. 24(2) of the Charter. However, the applicant seeks exclusion of the subject evidence and the respondent opposes that request.
Law
[37] Where evidence was obtained in a manner that infringes or denies any rights or freedoms enshrined in the Charter, s. 24(2) mandates its exclusion if, having regard to all of the circumstances, its admission would bring the administration of justice into disrepute. The tripartite framework in R. v Grant, 2009 SCC 32, structures the answer to the determinative question of whether admitting the subject evidence would bring the administration of justice into disrepute (see: R. v Zacharias, 2023 SCC 30, at para. 113).
[38] In Grant, at para. 71, the Supreme Court of Canada enunciated the applicable analytical approach as follows,
a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.
[39] The first part of the Grant analysis involves the court’s determination of the seriousness of the applicable Charter breach, which lies on a spectrum: at one end are inadvertent or minor breaches and at the other end are wilful or reckless disregards of Charter rights (see: Grant, at para. 74). Breaches at the former end “may minimally undermine public confidence in the rule of law” and those at the latter end “will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute” (see: Grant, at para. 74). Extenuating circumstances (e.g., the need to prevent the disappearance of evidence) and good faith on the part of police may attenuate the seriousness of the Charter breach, but wilful or flagrant disregard of the Charter by police or deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence (see: Grant, at para. 75).
[40] The second part of the Grant analysis calls for the court to evaluate the extent to which the Charter breach actually undermined the interests protected by the applicable right, which “may range from fleeting to technical to profoundly intrusive” (see: Grant, at para. 76). The court must look to the interests engaged by the applicable Charter right and examine the degree to which the breach impacted those interests (see: Grant, at para. 77). The more seriously impacted the accused’s Charter rights are, the greater the risk to the public’s confidence in the administration of justice (see: Grant, at para. 76).
[41] The third part of the Grant analysis requires the court to determine “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (see: Grant, at para. 79). The court must “balance the interests of truth with the integrity of the justice system” and consider the potential impact of both the evidence’s admission and its exclusion (see: Grant, at paras. 82 and 79). It must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial” (see: Grant, at para. 82). The evidence’s importance to the prosecution’s case is also a factor to be considered, as the admission of evidence of questionable reliability and the exclusion of highly reliable evidence are both likely to bring the administration of justice into disrepute (see: Grant, at para. 83).
Decision
[42] If I am incorrect in finding that the June 11, 2021 search at 249 Hinton did not violate the applicant’s s. 8 rights, then I would decline to exclude the evidence obtained by police during that search.
[43] Turning to the applicable analytical approach mandated in Grant, I find that all three factors in the case-at-bar militate against exclusion of the evidence. Specifically: 1) the violation of the applicant’s s. 8 rights was not serious; 2) the impact on the applicant’s Charter-protected rights was not significant; and 3) society’s interest in the adjudication of the case on its merits is high.
[44] Firstly, although I found that, for the purposes of this application, the applicant had a reasonable expectation of privacy in 249 Hinton, the nature of his connection to that residential property is unclear. He was observed by HRPS officers coming and going from the residence and was located there when the Search Warrant was executed; however, there is no indication that he had any ownership, leasehold or possessory rights to any part of it. Just as there is no evidence as to the reason why he was driving a black Mazda that is not registered to him, there is also no evidence as to the reason why he was at 249 Hinton. I therefore find that the extent of the applicant’s reasonable expectation of privacy in 249 Hinton at the material time was not significant.
[45] The nature and scope of a person’s reasonable expectation of privacy is relevant to an assessment of state conduct that intrudes upon that expectation (see: R. v Orlandis-Habsburgo, 2017 ONCA 649, at para. 111). In my view therefore, as the extent of the applicant’s reasonable expectation of privacy in 249 Hinton was not significant, the applicable infringement of it by the June 11, 2021 search was similarly not significant. I am therefore unable to find the applicable police conduct to have been wilful, flagrant or in deliberate violation of established Charter standards. Rather, the applicable breach is at the lower end of the spectrum of seriousness.
[46] Secondly, the impact on the applicant’s right to privacy and dignity is also at the lower end of the applicable range. As outlined above, there is no evidence of the nature or scope of the applicant’s connection to 249 Hinton and I found that his privacy rights there are diminished. In addition, the June 11, 2021 search at that property was neither wide-ranging nor invasive, but, rather, was limited to seven specific items directly linked to the armed robbery.
[47] Finally, the search for those seven specific pieces of physical evidence resulted in the discovery of five of them, all five of which were directly connected to the armed robbery. Balancing the interests of truth with the integrity of the justice system, excluding that evidence would, in my view, pose a far greater risk to the public’s confidence in the administration of justice than would its admission in the face of a Charter breach that was minor in both seriousness and impact. Vindication of the breach of the applicant’s s. 8 rights through exclusion of the subject evidence would exact too great a toll on the truth-seeking goal of the criminal trial.
[48] Therefore, applying the tripartite Grant framework to the facts in the case-at-bar, I am unable to find that, having regard to all of the circumstances, admission of the evidence obtained by police during the June 11, 2021 search at 249 Hinton would bring the administration of justice into disrepute.
DISPOSITION
[49] For the reasons outlined above, the application is dismissed.
C. Chang J.
Released: January 29, 2024