Case Name:

R. v. A. L.

Between

Her Majesty the Queen, and A. L.

[2014] O.J. No. 3432

2014 ONSC 3612

Court File No. CR2-14

 Ontario Superior Court of Justice

 North Bay, Ontario

N.M. Karam J.

Oral judgment: June 9, 2014.

(20 paras.)

Counsel:

E. Lainevool, Agent for the Public Prosecution Service of Canada.

G. T. Clark, Counsel for A. L..

REASONS FOR RULING

1     N.M. KARAM J. (orally):– You will recall that we adjourned to this date so that I could consider the application brought by the accused for the purpose of quashing the search warrant and excluding the evidence obtained as a result. I have now had an opportunity to review the arguments and the case law that was provided.

2     The accused applicant is charged in a six count indictment with possession for the purpose of trafficking of various drugs and of possession of the proceeds of crime. These charges arose as a result of the execution of a search warrant on July 24th, 2013.

3     This is a pre-trial application seeking an order to exclude evidence obtained pursuant to a search warrant because of a violation of the accused’s rights under Section 8 of the Charter. Earlier I made a ruling with respect to another pre-trial motion brought by the accused seeking to cross-examine the affiant of the information to obtain. As a result, a ruling was made allowing the motion to permit limited cross-examination which the accused declined. Counsel then proceeded with this motion to quash the warrant.

4     A search warrant was applied for on the basis of information to obtain sworn by Detective Constable Brad Reaume on July 24th, 2013 at 5:45 p.m. The search warrant was granted on the same date at 6:00 p.m., and authorized police to conduct the search at 1260 Copeland Street in North Bay, the residence of the accused. The search was carried out shortly thereafter.

5     As I pointed out in my earlier ruling, I’m satisfied that paragraphs 8 through 20 of the ITO have no probative value. The remainder of the affidavit consists of the information provided by an individual described as confidential Informant #4 as well as a description of surveillance undertaken by police as part of their investigation. Paragraphs 8 through 20 of the ITO contain information from three other confidential informants described as #1, #2, and #3. As pointed out in my earlier ruling, none of their information, although pertaining to drug trafficking, is attached to any timeframe and, as such, has no probative value other than as evidence of previous bad character.

6     More specifically, there is a serious inconsistency in establishing that the accused is a resident of 1260 Copeland Street on July 24th, 2013 for the purposes of the search warrant. In that respect, confidential Informant #4 has indicated that at some point in time, without indicating when, the accused moved to that address. However, in paragraph 13 of the ITO, confidential Informant #2, speaking in the present tense, is quoted as saying, “A male named Al lives on Athlone Street and deals in lots of pills and cocaine.” In paragraph 14 the affiant, as a result of a police database search states, ” A. L. has a current address of 1130 Athlone Street.” In paragraph 16 he notes that these two pieces of information are consistent. Finally, in paragraph 20, reporting information received from confidential Informant #3, he states, “Informant #3 attended  A. L.’s residence on Athlone Street and observed a bag containing cocaine.” The obvious conclusion to be reached is that Mr. L. resides at 1130 Athlone Street. On the other hand, the information provided by confidential Informant #4 is that the accused had changed his residence to 1260 Copeland Street, although there is no indication as to when such a move may have occurred, and that the informant had an opportunity to witness the accused in possession of drugs at that address in quantities large enough for sale. This informant has a criminal record and although he has acted as an informer in the past, his information has never been acted upon. Therefore, as an untested confidential informer with a criminal record, as Detective Constable Reaume concedes, that information must be regarded with caution and corroborated, if possible, by police investigation. Accordingly, surveillance was carried out. Since the information of Informants #2 and #3 and that obtained from the police database is inconsistent with Informant #4’s information as to Mr. L.’s current address on that date, and since it is information that would likely be easily available to members of the public, the surveillance evidence purporting to substantiate that information is extremely important. In that respect, over the three or four different days upon which surveillance was conducted during the week preceding the application for the search warrant, the accused was seen only briefly. On July 23rd he was seen re-entering the east door of the residence after he opened a screen door and entered the residence and, then again, 20 minutes later he was seen leaving the residence and being picked up in a vehicle driven by someone else which had just arrived. On July 24th he was observed talking in the doorway of 1260 Copeland Street for an unspecified time to two men who were leaving the residence. In my view, this is certainly not sufficient information to establish that he resided there. There is no information as to ownership of the property or any interest that the accused might have in the property or, for that matter, any attempt to obtain that information. Furthermore, there is no suggestion of urgency or some other explanation as to why surveillance was not enlarged or extended to obtain better information. I find the ITO deficient in what is probably the most important issue to be determined when seeking a search warrant in this case; the accused’s place of residence and who may have had ownership or exclusive possession of 1260 Copeland Street. Informant #4’s description of the doors in the residence, the apartment upstairs and a For Sale sign on the property next door offer some evidence of his having been there. However, taken as a whole, with the remaining information of the other informants, and regarding Informant #4’s information, having to be viewed with caution, I find the evidence to be inadequate on the issue of whether the accused resided at that address.

7     The police surveillance which was conducted over parts of July 13th, July 23rd, and July 24th, were for brief periods of time with no explanation as to why it was so limited. Five separate individuals or pairs of individuals having drug affiliations known to the police attended 1260 Copeland Street over that period. A sixth was seen operating a vehicle owned by an individual with a drug affiliation. There is no description provided of the time periods that these people may have been involved in drugs, no indication of what type of drug involvement there was or, how the affiant acquired that information. It would have been a simple matter to elaborate. One individual was seen entering the premises carrying a shopping bag which appeared to be full. No one was seen leaving the premises with anything in their possession. Seeing six separate visitors for brief visits over three different dates, whether or not most had at one time been involved with the drug culture, is in my view, simply insufficient to corroborate Informant #4’s description of drug trafficking on the premises.

8     In determining whether the grounds for issuing the search warrant are sufficient, the onus rests with the applicant on the balance of probabilities and this Court must not substitute its own determination for the decision reached by the Justice who issued the warrant. I am satisfied that the failure to include timelines and the inadequacy of the surveillance evidence were not deliberate attempts to mislead on the part of the affiant. The Court recognizes that preparation of an ITO is not an exercise in perfection.

9     Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. In Hunter v. Southam, [1984] 2 S.C.R. 145, the Court stated that the standard to be met is reasonable and probable grounds that an offence has been committed and that there is evidence to be found at the place of the search. In R. v. Debot, [1989] 2 S.C.R. 1140, the Court stated that to establish reasonable and probable grounds the test is that of reasonable probability or credibly based probability. The Court must make its decision based on all of the circumstances.

10     While I am satisfied that the breach was not intentional nor was there bad faith on the part of Detective Constable Reaume, the failures and discrepancies to which I have alluded can only be described as the result of carelessness. Surely greater care is necessary in circumstances such as these when applying for a search warrant of a residence. In R. v. Sutherland [2000] O.J. No. 4704 , Carthy, J., in commenting on the same issue stated, “I would characterize the deficiencies in this case as a syndrome of lassitude, the product of a casual attitude towards a search warrant and a failure to be attentive to the public responsibility associated with ex parte permission to enter a building.” I find similar difficulties in this case. Accordingly, I find that in all of the circumstances of this case, the accused’s Section 8 Charter rights were breached and the search warrant will be quashed.

11     Having found a breach of the accused’s Section 8 Charter rights, I must consider whether the evidence seized by the police should be admitted into evidence despite the violation of those rights, whether the admission of the evidence would bring the administration of justice into disrepute having regard to all of the circumstances. In conducting a Section 24(2) analysis, applying R. v. Grant [2009] 2 S.C.R. 353 , I must balance the following factors:

 

  • the seriousness of the Charter infringing conduct;
  • the impact of the breach on the accused’s Charter protected interests, and
  • society’s interest in the adjudication of the case on its merits.

12     The Court in Sutherland stated, “A search of a dwelling house must be approached with a degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected.” That degree of responsibility does not appear to have existed here for the reasons I have already provided. Accordingly, I find the breach in this case to be very serious. For the same reason, I find that the impact of the breach and the Charter rights upon the accused is equally serious. Certainly it is important that cases involving real evidence, such as we have here, seized by police be adjudicated on their merits. The charges contained in the indictment before the Court are serious charges and without the evidence seized the Crown has no case. However, on balance, I am satisfied in view of the other two aspects of this test, on the totality of the circumstances, the evidence seized must be excluded. The applicant has satisfied me that to introduce the evidence would bring the administration of justice into disrepute and I have endorsed the record accordingly.

13     MS. LAINEVOOL: Thank you, sir. The Crown is seeking forfeiture of everything that was seized.

14     THE COURT: That’s fine. Is the Crown offering any evidence?

15     MS. LAINEVOOL: The Crown has no further evidence to offer.

16     THE COURT: Okay. So, in the absence of evidence of the Crown, I find the accused not guilty and I’ll order that all items seized will be forfeited to the Crown.

17     MS. LAINEVOOL: Thank you, sir.

18     THE COURT: So the accused can be released from custody.

19     MR. L.: Thank you very much, Your Honour.

20     MR. CLARK: Thank you, Your Honour.

N.M. KARAM J.