R. v. Kalsatos, 2016 ONCJ 353

Citation: R. v. Kalsatos , 2016 ONCJ 353 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent - and – ALEX KALSATOS; CENTER CITY SPORTS INC. Applicants RULING ON APPLICATION TO EXCLUDE EVIDENCE Justice B. Knazan June 15, 2016 Damien R. Frost for the Crown Alex Kalsatos on his own behalf Regis Jogendra agent for Center City Sports Inc.

Table of Contents INTRODUCTION...................................................................................... 1 The Searches and Seizures.................................................................................... 2 THE FACTS............................................................................................. 2 December 9, 2009...................................................................................................... 2 The June 8, 2010, Inspection.................................................................................. 5 Investigation subsequent to the June 8 inspection and seizure...................................... 6 The Information to Obtain a Search Warrant........................................................ 7 THE REASONABLENESS OF THE SEARCHES...................................... 10 The Relevant Legislation....................................................................................... 10

Unreasonable Search and Seizure...................................................................... 13 Method of proceeding.............................................................................................. 16 Onuses.................................................................................................................... 17 The first inspection .................................................................................................. 17 The December 9, 2009, seizure.................................................................................. 20 The written order....................................................................................................... 23 The June 8, , 2010, inspection and seizure................................................................... 25 The Information to Obtain and the search warrant....................................................... 27 Do the Breaches warrant exclusion?...................................... 35 Section 24(2) of the Charter....................................................................................... 36 The Computer Search……………………………………………………………………………37 The unreasonable December 2009 seizure.................................................................. 40 The June 8, 2010, unreasonable seizure – the re-seizure of the equipment seized in December................................................. 42

Summary............................................................................................. 43 INTRODUCTION This is an application by the defendant Alex Kalsatos and his company, Center City Sports Inc. (CCS), brought under section 24(2) of the Canadian Charter of Rights and Freedoms , to exclude evidence that was seized under the authority of the Canadian Environmental Protection Act (CEPA) . Mr. Kalsatos represents himself and Regis Jogendra, an agent, represents CCS.

CEPA mandates environmental protection officers to protect the environment by ensuring that equipment, including gasoline and diesel engines, comply with Canadian emission standards. The Act further requires anyone importing such engines to provide proof of that conformity, and it is an offence to import these items without proof of conformity; this gives rise to the offences that Mr. Kalsatos and CCS are charged with. The Act provides varied and wide powers of inspection, search, seizure and investigation to enable the officers to fulfill their mandate.

In 2009 and 2010, environmental protection officers conducted inspections, investigations and a search pursuant to warrant at CCS’s premises that resulted in the prosecution obtaining tractors and small engines. The applicants apply to exclude items obtained as a result of the search with a warrant on the grounds that the search violated their right to be free from unreasonable search and seizure, specifically:

a) There were no reasonable grounds to believe that an offence had been committed, so the search warrant should not have been issued.

b) The Information to Obtain (ITO) the search warrant did not provide grounds to believe that relevant documents would be found in a computer.

c) The grounds in the ITO were obtained from the prior searches and seizures that were themselves unreasonable.

d) The manner of the search pursuant to the warrant rendered the search unreasonable. The applicants also seek to exclude all the items seized pursuant to the inspections that preceded the search pursuant to the search warrant, on the grounds that those seizures were unreasonable and violated their rights under s. 8 of the Charter . The Searches and Seizures There are three important dates in the investigation during which searches and seizures occurred: • December 9, 2009. On this date officers of Environment Canada inspected the premises of CCS under the authority of CEPA .

They seized equipment in situ by ordering Mr. Kalsatos not to sell it. • June 8, 2010. Officers searched the CCS premises thoroughly and further seized equipment by affixing seals to prevent the equipment from being moved or sold.

• September 9, 2010. Officers searched the CCS premises pursuant to a search warrant issued on September 7, 2010, and seized the contents of a computer. Officers of the Canadian Environmental Protection Agency (the Agency) attended at the CCS on other occasions, and the lead officer and the informant in the Information to Obtain, Officer Luke Cayley, had contact with Mr. Kalsatos at other times between December 9, 2009, and the search.

But the entrances and seizures that the Agency carried out under the Act and its regulations on December 9, 2009, and June 8, 2010, formed the main basis for Officer Cayley’s reasonable grounds to believe that offences had been committed, which he in turn put before a justice of the peace on September 7, 2010. THE FACTS December 9, 2009 Acting on information that they had received, Canadian Environmental Protection Agency Officers Luke Cayley, Matt Lauzon and Simone Larouch went to Center City Sports in uniform and advised Alex Kalsatos (Mr. Kalsatos) of who they were and the reason for the visit.

They entered a portable trailer serving as an office, where they met Mr. Kalsatos and his son Anthony Kalsatos (Anthony). They then conducted an inspection and photographed several tractors, including their information plates and under the engine hoods. Officer Cayley explained that he needed to obtain four items as evidence of conformity with the regulations. He told Mr. Kalsatos that he would be issued an order to cease selling the tractors and engines until he could obtain the specified items, at which time the order would be lifted.

Officer Cayley testified that he did not have grounds or the need for an investigation or a search warrant because all he knew was that a regulated activity, sale of engines, was taking place on the premises. Before he could have reasonable grounds to believe that an offence was being committed, he would need to know when the tractors and engines were manufactured, that they were imported and that they were actually required to bear labels of certification. There was a desk on each side of the trailer, one belonging to Mr. Kalsatos and one occupied by Anthony, and a “computer and so on”, Officer Cayley testified.

Asked whether there was any discussion between himself and Mr. Kalsatos or Anthony as to the use of the various portions of the portable trailer, Officer Cayley answered that he did not believe that there was any exclusive discussion. Officer Cayley orally issued an Environmental Protection Compliance Order (EPCO). He testified that he thought he said that he would follow up as soon as possible in writing. Officer Cayley said he did not believe that Mr. Kalsatos asked many questions but qualified that by pointing out that he was testifying six years after the event.

Although Officer Cayley had notes to refresh his memory and specifically made notes to record information in order to determine appropriate enforcement, and was aware that the matter might come to court several years later, as is the case, he did not have a note of what he said to Mr. Kalsatos regarding when he would provide the order in writing. Officer Cayley determined from Mr. Kalsatos that he did not have evidence of conformity as required by the regulations.

He formed the view that there were diesel tractor engines, small bicycle engines and diesel-powered water pumps and generators that had been imported from China during the years for which evidence of conformity was required, and that an enforcement order was the only way to prevent non-conforming engines from being sold and having a negative impact on the environment. His first priority was to prevent that. Officer Cayley testified that he issued an EPCO to Mr. Kalsatos on December 9, 2009. In court he identified what he called the written version that he prepared.

This is an unsigned copy of an order dated December 9. Officer Cayley testified that the date on the written order was the date of applicability. He described it as simply a written copy of the order that had been issued verbally on December 9. In reference to the date that the written copy “would have been issued”, Officer Cayley testified that it was “approximately a week later”. He explained that he stated the date on the written order, which he signed, as the applicable date, which was December 9, the date of the inspection.

Asked by Crown counsel if he was able to tell the day when he actually issued the written copy, he replied, “Sure. Yeah. I seem to be missing notes here. Approximately a week later, I believe, I went back to Center City Sports and provided Mr. Kalsatos with a written copy of the order as I had said that I would.” He described issuing an order to correct non-compliance, his standard way of doing things. Officer Cayley’s understanding of his powers was that an order could be issued verbally to begin with as long as it was followed up in writing. He made no reference to exigent circumstances.

He compared his inspection of CCS to others that he had conducted as an enforcement officer, and said that it was standard, “a very consistent way of doing business”. The officers found non-compliance and issued an order to correct that non-compliance. Officer Cayley did not state that he gave Mr. Kalsatos an opportunity to make oral submissions as contemplated by s. 237(1)(

b) of the Act . Officer Cayley testified that he had only one phone call with Mr. Kalsatos between the visit when he believed that he delivered the written order and the seizure, on June 8, 2010. He testified that he had no communication with Mr. Kalsatos between the phone call, which was in February, and the next inspection on June 8. The June 8, 2010, Inspection On June 7, Officer Cayley decided that the order of December 9 had expired. On June 8, he and four other officers attended at CCS without prior notice. He did not see any need to provide notice and did not think it appropriate.

Officers Cayley and Lauzon entered the office in the trailer while Officers Jeff Green, Irena Moiseenko and Dan Hatcher waited outside in the parking lot. Mr. Kalsatos asked for

another month to provide evidence of conformity, but Officer Cayley told him that he would not and could not extend it any further. Officer Cayley informed Mr. Kalsatos that they were seizing the items, presumably those named in the order, under the authority of

section 223 of CEPA . He advised Mr. Kalsatos that he was under investigation and that he did not have to talk to the officers. While Mr. Kalsatos dealt with a customer, he called in the other officers and they proceeded to take inventory throughout the site. According to Officer Cayley’s belief, they tagged tractors, and took photographs and videos. They did not view any documents at this time. The officers seized smaller engines but left the tractors in situ , seizing them by affixing labels and numbers on them. These contained notices that the items had been seized and could not be moved.

One officer videotaped the search. On this occasion as on December 9, Officer Cayley entered the trailer that contained the office and was able to distinguish between Mr. Kalsatos’s desk and Anthony’s desk based on where he had seen them working on the previous occasion. Officer Cayley seized the items because it had not worked to deal with the situation through an EPCO. Officer Cayley saw his options as giving the items back and letting Mr. Kalsatos sell them – which was not an acceptable option from an environmental protection standpoint – or seizing them.

He testified that returning them was not acceptable because there was no evidence to show that they were “compliant for the Canadian market”, that they were not high-emitting engines. He was required to seize to prevent the items from going out and causing a lot of excessive pollution. Therefore the only option was to seize the items and commence an investigation. At the conclusion of the June seizure, Officer Cayley told Mr. Kalsatos that although he was going ahead with an investigation, if he could still produce evidence of conformity within 90 days, he would not pursue charges.

He explained that the Agency had 90 days to either return the items or pursue the charges. Officer Cayley had no interest in laying charges against someone doing business on the scale that Mr. Kalsatos was doing it, if he had just been late in obtaining evidence of conformity. Officer Cayley testified that he seized the equipment on June 8 but that it had already been frozen in place by the EPCO, which accomplished the goal of not causing any harm to the environment. In answer to Crown counsel’s questions, he distinguished between the two seizures: the one on December 9, 2009 and the one on June 8, 2010.

Since seizing in the second sense that Officer Cayley used it, for June 8, created a 90-day time limit for laying charges, he used the option of the EPCO the first time to give extra time with the potential that Mr. Kalsatos could come back into compliance. Investigation subsequent to the June 8 inspection and seizure On June 21, Officers Cayley and Lauzon went to CCS and discussed the investigation with Mr. Kalsatos. They told him that he could be charged and that he had a right to speak to a lawyer.

They then continued their investigation by speaking to customs brokers, freight forwarders, the Canadian Border Services Agency (CBSA) and Mr. Kalsatos’s accountant. Mr. Kalsatos said that he was searching for invoices. On another occasion, while off duty, Officer Cayley drove by CCS and noticed that Mr. Kalsatos had covered up the seizure notices that the officers had put on the tractors on June 8. He telephoned Mr. Kalsatos and told him to uncover the seizure notices, and then visited CCS to see if he had. Mr. Kalsatos had not uncovered the notices, but did so when they attended.

Officer Cayley noticed that the tape was broken on one tractor door, so he attended the next day with another officer and re-taped that door. On July 23 Officer Cayley again visited Mr. Kalsatos with Officer Lauzon. In August, Officer Cayley asked Mr. Kalsatos to attend his Environment Canada office to make a statement. Mr. Kalsatos so attended on August 23, 2010, and gave an audiotaped statement in which he provided information about the tractors and the lack of conformity. Between then and September 3, there was no further contact between Environment Canada and CCS and Mr. Kalsatos.

On September 3, Officer Cayley affirmed an information before a justice of the peace charging Mr. Kalsatos with offences contrary to CEPA , and took a summons to serve on Mr. Kalsatos at CCS. At that time he released one tractor from seizure and indicated that he would be returning one water pump and one generator. Based on Mr. Kalsatos’s statement in August and information from CBSA, he had decided that there were no grounds to believe that the conformity requirements applied to those items.

The Information to Obtain a Search Warrant On September 7, 2010, Officer Cayley affirmed an Information to Obtain (ITO) a Search Warrant before a justice of the peace. Officer Cayley affirmed that he had reasonable grounds to believe that certain things would provide evidence of the charges that he had laid on September 3, and that those things were in a place. The things he listed were: 1.

Documentation relating to the import of generators and welder/generators by Center City Sports Inc. between January and June of 2005, including but not limited to Bills of Lading, packing lists, invoices, Canada Customs Coding Forms, Delivery Orders and Advice Notices; 2. Correspondence of records of communications between Alex Kalsatos of Center City Sports Inc. and any Chinese manufacturers or salespeople in regard to the purchase and importation of generators and welder/generators between January and June of 2005; 3.

Information plates from the engines of tractors imported by Center City Sports Inc. in 2008 and 2009; 4. Correspondence of records of communications between Alex Kalsatos of Center City Sports Inc. and any Chinese manufacturers or salespeople in regard to the purchase and importation of tractors during the years 2008 and 2009; 5. Correspondence of records and communications between Alex Kalsatos of Center City Sports. Inc. and any Chinese manufacturers or salespeople in regard to the purchase and importation of < 50cc bicycle engines during the year 2007; 6.

Items described in paragraphs 1 through 5 in electronic format, as well as documents/records that may be uniquely electronic

including but not limited to e-mail (received or sent or in draft form) and records of past instant messaging and online chat conversations, that are stored on or available to a computer system or other electronic device; this also includes any other device and associated software and manuals used or capable of being used to create, store, manipulate or reproduce the said items. Under the

section in which he stated that he had reasonable grounds for believing that these things were in a building, receptacle or place, Officer Cayley listed as the places: Office, storage trailers and red Ford vehicle located next to storage trailers of Center City Sports Inc. at 2382 Dundas Street West, Toronto, Ontario and dark green Chevrolet van (Ontario license plate: 903 6RS) parked in driveway at the residence of Alex Kalsatos, 15 Redtail Drive, Vaughan, Ontario. In his ITO, Officer Cayley recounted the history of his dealings with Mr.

Kalsatos and CCS and stated that he had reasonable grounds to believe that both had committed offences contrary to CEPA . He clearly and in detail set out the legislative and regulatory framework related to the requirements for tractors and small engines to conform with Canadian environmental standards, and for importers to provide evidence of conformity, in order for the justice to understand and evaluate his grounds. He recounted his attendances on December 9, 2009, and June 8, 2010, and his meeting with Mr. Kalsatos on August 23, 2010.

He did not include his return to CCS “about a week later”, he believed, than the December 9, 2009 inspection, nor his June 21, 2010, visit (though he referred to a phone call on that day), nor his off-duty observations of the site. He neglected to include the information that he had returned one tractor and intended to return one generator and one water pump, with the result that some of his numbers were off.

His only reference to the issuance of the EPCO was contained in the statement referring to the December 9, 2009, attendance and inspection: At the conclusion of the inspection, I issued an Environmental Protection Compliance Order (“EPCO”). There is no reference to whether it was a verbal order, whether there were exigent circumstances, or whether a written order followed the verbal order. Officer Cayley did not inform the justice of any attendance at CCS “approximately a week later”. There was no reference to further contact with Mr. Kalsatos between December 9 and June 8, 2010.

Officer Cayley’s ITO referred in detail to a discussion with Mr. Kalsatos on July 23, 2010, when he attended at CCS with Officer Lauzon. He stated that Mr. Kalsatos said he believed that most of the documentation related to the engines would be on-site, either in his office or in the trailers he used for storage. Officer Cayley did not mention that he saw a computer. Officer Cayley also referred to photos of the tractors with date stamps, which Mr. Kalsatos had shown him and that he had requested copies of with Mr. Kalsatos’s informed consent. He further affirmed that on August 12 he received an email from Mr.

Kalsatos with the pictures that he requested on July 23 attached. In setting out his grounds, Officer Cayley referred to the statement by Mr. Kalsatos taped on August 23, 2010, at the offices of Environment Canada. Officer Cayley advised the justice that Mr. Kalsatos said he keeps information in his office, his storage trailers, a red Ford vehicle next to the storage trailers and the van parked in his driveway. He did not mention a computer, even though during the interview Mr.

Kalsatos had said both that he had sent emails and “…. didn’t contact China with email or any phone calls or nothing because they were bought in 2005 or backwards”. Officer Cayley’s ITO stated that he knew that Jeremy Fernando, a forensic computer expert and member of the CBSA’s Computer Search and Evidence Recovery (CSER) Program, was able to search any computers for relevant information. (This information came in an email to Officer Lauzon from Mr.

Fernando.) Officer Cayley affirmed that he believed that there were things at CCS that would afford evidence of the offences that he had reasonable grounds to believe that Mr. Kalsatos and CCS had committed. He did not refer to any computer being at the CCS premises, or belonging to Mr. Kalsatos or Anthony or to CCS. On September 7, the justice of the peace authorized the search of CCS and a vehicle at Mr. Kalsatos’s home. The search warrant, following the description of things and places in the Information to Obtain, authorized the search for any documents that were electronically stored.

On September 9, the officers first attended Mr. Kalsatos’s residence some ways to the north of CCS in order to search the truck mentioned in the warrant. According to the officers, they then attended at CCS, where a team of officers was waiting to conduct the search. Officer Lauzon testified that they showed the original warrant to Anthony, who gave it to his father. Mr. Kalsatos and Anthony dispute this. During the course of the search, Mr. Fernando took a copy of the hard drive of a computer that was on one of the desks in the trailer office, the desk that Officer Cayley described as Mr. Kalsatos’s.

Because of a power failure at CCS during his search, Mr. Fernando took the hard drive to a nearby police station to complete making the copy. THE REASONABLENESS OF THE SEARCHES The Relevant Legislation The Canadian Environmental Protection Act provides powers to enforcement officers to inspect, issue orders and search premises. The applicable sections are attached as an appendix, and I will refer to specific provisions as they become relevant. Generally,

section 153 requires evidence of conformity to prescribed standards, and sets out the requirement for obtaining evidence of conformity.

Section 154 prohibits importation of vehicles, engines or equipment if the requirements of

section 153 are not met.

Section 218 governs inspections,

section 220 covers search powers, and

section 223 creates a power to seize and detain during an inspection. Sections 234 through 242 govern Environmental Protection Compliance Orders.

Section 272 of the Act makes it an offence to contravene a provision of the Act or regulations.

More specifically, under subsection 218(1)(g), an officer who has reasonable grounds to believe that any vehicle, engine or equipment of a class for which standards for emissions have been prescribed that is owned by or is on the premises of a company or a consignee of imported vehicles or engines or imported equipment can be found in a place is permitted to enter and inspect the place.

Subsection 218(2) excludes a private dwelling-place or any part of a place that is designed to be used and is being used as a permanent or temporary private dwelling-place from the power of inspection unless the officer has consent or a search warrant. Subsection 218(10) vests an enforcement officer with further powers for the purpose of carrying out an inspection. This includes a power under s. 218(10)(

c) to examine any books, records, electronic data or other documents that the enforcement officer believes on reasonable grounds contain any information relevant to the administration of this Act and to make copies of them or take extracts from them. Other wide search powers in subsection 10 include opening and examining any receptacle or package found that the enforcement officer believes on reasonable grounds contains any substance, product, air contaminant, fuel, cleaning product or water conditioner, engine, equipment or component.

Further, subsection 218(13) entitles an enforcement officer to use or cause to be used any computer system at the place to examine any data contained in or available to the computer system, reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output, and to take a printout or other output and use or cause to be used copying equipment at the place to make copies of the record. Subsection (14) requires the person who is in possession or control of a place being inspected to permit the officer to do anything referred to in subsection (13).

Section 220 authorizes a justice to grant a search warrant to enter premises and search and seize anything by means of or in relation to which any provision of the Act or regulations have been contravened. Under subsection 220(3)(c), the power to search under the warrant refers back to the inspection powers granted in s. 218, including the power to search a computer in s. 218(13). Then s. 220(6) repeats the identical powers set out in s. 218(13) and authorizes the person acting under the warrant to use or cause to be used any computer system at the place to search any data contained in or available to the computer system. Subsection 223(1)(

a) permits an enforcement officer to seize and detain anything during a search or inspection if the enforcement officer has reasonable grounds to believe that a provision of the Act has been contravened and the officer has reasonable grounds to believe that the contravention occurred by means of or in relation to the thing.

Section 235 authorizes an officer to issue an Environmental Protection Compliance Order (EPCO) if during the course of an inspection or a search, the officer has reasonable grounds to believe that any provision of the Act or the regulations has been contravened by a person who is continuing to commit the offence, or has reasonable grounds to believe that any provisions will be contravened. However, not all contraventions or possibilities of contraventions justify the issuance of an EPCO, but only those covered by the circumstances listed in subsection (2). These are: (2) (

a) the exportation, importation, manufacture, transportation, processing or distribution of a substance or product containing a substance; (

b) the possession, storage, use, sale, offering for sale, advertisement or disposal of a substance or product containing a substance; (

c) the use of a substance or product containing a substance in a commercial manufacturing or processing activity; or (

d) an act or omission in relation to or in the absence of a notice, permit, approval, license, certificate, allowance or other authorization or condition thereof. “Substance” is defined in

section 3 of the Act and is set out in the appendix. For the most

part it refers to organic or inorganic matter that would be captured by the ordinary English word “substance”. (No such substances under the Act were found at CCS.) The definition also includes: (

f) any manufactured item that is formed into a specific physical shape or design during manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design. Subsection 234(6)(

a) empowers the enforcement officer to direct the recipient of an order to do anything to comply with the Act or the regulations. Subsection 236(

c) authorizes directing the ceasing of any operation or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with the Act and the regulations. Unreasonable Search and Seizure A search is reasonable if it is authorized by law, if the law authorizing the search is reasonable, and if the search is carried out in a reasonable manner. [1] This application engages two of the requirements for a reasonable search: whether it is authorized by law, and whether it was carried out in a reasonable manner.

After the trial had begun and the defendants brought a motion to exclude the evidence obtained as a result of the search warrant, they sought to expand their motion by seeking a determination that the provisions of CEPA that authorized inspections and seizures were not reasonable laws. The prosecution opposed the Court entertaining a constitutional challenge to the legislation so late in the proceedings, as it had not conducted the trial or called evidence with that in mind. I agreed with the prosecution and did not permit any constitutional challenge to the legislation.

Therefore I proceed on the basis that the law authorizing the actions of the officers in inspecting and seizing on December 9, 2009, and inspecting and seizing on June 8, 2010, is reasonable. There is no doubt that

section 218, which authorizes an inspection, also authorizes a seizure. That is what occurred on December 9, 2009, when the officers directed Mr. Kalsatos not to move any items that were the subject of an EPCO. The same occurred on June 8, 2010.

The prosecution agrees that seizures occurred on both occasions. Under s. 218 no warrant was necessary on either occasion, although the

section contains its own standards for authorizing inspection, which includes having reasonable grounds to believe that an offence has been committed before an officer can detain or obtain or seize. The power to inspect in a regulatory context is constitutional. [2] Whether or not the provisions of CEPA are vulnerable to a constitutional challenge, as there is no motion to challenge the constitutionality of any of the laws under which the officers exercised their power, I will consider whether the searches were authorized by law and whether the searches were carried out in a reasonable manner.

However, the power to seize, as well as to inspect and search without a warrant, are not irrelevant to the reasonableness analysis even though I proceed on the basis that the law is reasonable. Searches without prior judicial authorization are presumptively unreasonable. [3] So when, as here, a law authorizes them, the restrictions in the law that make the law reasonable are important. As Chief Justice Lamer said in his concurring judgment in Comité paritaire , “What matters in the end are that the powers to inspect are sufficiently prescribed to attain their purpose”. And further, that law must be complied with.

In the majority judgment in Comité paritaire , Justice L’Heureux-Dubé said the obvious at paragraph 66: “Inspectors are required to exercise their powers in accordance with the purpose of the ACAD (The act respecting collective decrees (Que) that was in issue in Comité Paritaire ).” Mr. Kalsatos, unrepresented, and Center City Sports, represented by an unpaid, uncertified paralegal agent with extensive legal training as a lawyer in another country and a justice of the peace in Canada, seek to exclude all the evidence obtained in the search of CCS on September 9, 2010.

This includes documents found in a computer in the CCS office. All the tractors and engines on which the Crown relies had previously been seized. The seizures under the previous inspections had a time limit if charges were not laid, but charges were laid, and indeed the tractors and the engines have been seized until now. Effectively then, the application is to exclude all the documents found in the computer and elsewhere during the search as well as engines and tractors that the officers seized in all the inspections and searches. The applicants also attacked the manner of the searches.

In the first inspection, they complain, the officers were not authorized to take photographs as they did. In the search with the search warrant, they complain, the officers took the computer hard drive from the premises when the warrant did not authorize them to do so. These attacks form a minor part of the application. The principal attack on the search warrant is against the lawfulness of the search and the fundamental and familiar argument that the Information to Obtain the search warrant did not provide grounds for the justice to issue a warrant to search.

The factual history, though somewhat complicated because of the three seizures and searches at different times under different purported authorities, does reduce to a familiar situation, that is, a final search based on information and reasonable grounds that have been obtained as a result of prior searches that are alleged to be themselves unreasonable. [4] In this case the first two inspections and seizures are the prior searches that contributed to the grounds put before the justice.

Should I find that either of the prior searches (insofar as the inspections were searches) and admitted seizures were unreasonable, then any information obtained as a result must be excised from the Information to Obtain that the justice used to issue the search warrant. This would not mean that the search pursuant to the search warrant would also be unreasonable. In R. v.

Garofoli , [5] the Supreme Court concluded that a search warrant issued in reliance, in part, on facts that are found to be inadmissible on review will continue to be valid if it can be shown that the warrant would have issued even if the inadmissible facts had been excised from the information affirmed to obtain the warrant. Well-established principles also govern the determination of whether the warrant would have been issued after inadmissible facts were excised from the Information to Obtain.

The test is not whether I would have issued the warrant to search, but whether the justice could have issued the search warrant based on the Information to Obtain, as stated in Garofoli : [6] If 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. Method of proceeding I will consider the two inspections and seizures in order to determine if the applicants have met their burden to show that they were unreasonable.

I will then consider the Information to Obtain with reference to the inspections, and determine if the justice could have issued the warrant based on the information that was properly before him. That determination, along with a review of the manner of the search with the warrant, will resolve whether there was a violation of

section 8 of the Charter . Should I find one or more violations, I will determine whether admitting the evidence obtained as a result would bring the administration of justice into disrepute. Onuses The number of searches and seizures and the fact that one is with a warrant, as well as the requirement that the applicants show that admission of any evidence that they seek to exclude would bring the administration of justice into disrepute, engages numerous and shifting onuses.

The onus is on the applicants on a balance of probabilities throughout, and particularly at the final stage to demonstrate that the admission of any evidence would bring the administration of justice into disrepute. The onus is also on the applicants to show that the final search with a warrant was unreasonable. However, with respect to all of what I will refer to as the internal searches and seizures, once the applicants meet the onus of demonstrating that they were without warrant, the onus passes to the responding prosecutor to show that what is presumptively unreasonable is reasonable.

The first inspection Although referred to as an inspection in the legislation and by Officer Cayley, the officers’ December 9, 2009, visit to CCS based on a tip

was a search, though one authorized under s. 218(1) of CEPA . The French version grants the right to “inspecter”. In Comité paritaire , supra , the Supreme Court was dealing with a

section of the Quebec Act Respecting Collective Agreement Decrees that empowered any inspector to examine the entire pay system of an enterprise that the Act governed. Although the word “examine” was used, the Court treated examination by an inspector, which presupposed a visit to the premises, as a search for the purposes of s. 8 of the Charter . At paragraph 7, Justice La Forest concluded that “the inspection powers set out in paragraph 22(

e) of the Act may be assimilated to a search within the meaning of s. 8 of the Charter . Naturally, the scope of the constitutional guarantee may vary depending on whether a search or inspection is involved.” Justice L’Heureux-Dubé held that inspectors’ right of access to work premises was a power of inspection that may be termed a “perquisition” (search of a place) within the meaning of s. 8 . Quite apart from the powers to examine any data in a computer system that the Act grants in s. 218(13), an inspection under the Act is thus a search.

As the search in this case was without warrant, it was prima facie unreasonable, and the prosecution has the burden of proving that it was reasonable. As it was authorized by a law that is constitutional, it was reasonable if carried out in compliance with that law and in a reasonable manner. In order to comply with the law when he inspected on December 9, 2009, Officer Cayley, under s. 218(1), had to have reasonable grounds to believe that one or more of the requirements is set out in the

section obtained. In this case it was “(

g) any vehicle, engine or equipment of a class for which standards for emissions have been prescribed that is owned by or is on the premises of a company…” Officer Cayley’s grounds came from a call – effectively a tip. Nothing apart from the inspection itself was used to investigate the tip. The tip came to his office and funneled down to him through his manager. He put it on his to-do list and then about one and a half months later went to CCS to do an inspection.

When legislation requires reasonable grounds to take action, and officers act on a tip, there must be support for the tip in order for the action to be reasonable. [7] In particular, the tip must be credible, the source must be reliable and it must be confirmed by investigation by the police. The evidence of Officer Cayley was that he and his colleagues went down to CCS to do an inspection. No evidence was adduced as to any investigation into the tip or its credibility, or even anything remotely related to the reliability of the informant.

At an establishment that sells tractors, one might expect they could be seen before entering the premises, but Officer Cayley testified that he and the other officers could not see the equipment until they entered the premises. It was an outdoor location with various pieces of equipment and truck trailers, but before entering the office he “couldn’t see this at the time”. The officers entered the office, where they met Mr. Kalsatos and introduced themselves as there to do an inspection.

Once they began to walk around the grounds they immediately saw the tractors without labels, and of course had their reasonable grounds to inspect and take subsequent steps. Officer Cayley described his power to enter and inspect places where there are reasonable grounds to believe that a regulated activity is taking place. The record is lacking on what these reasonable grounds were. All he needed was reasonable grounds to believe that tractors or engines were in the place. If that was not apparent from the outside, then the tip had to be reasonable.

Officer Cayley testified that the only information he had at that time was that the person who supplied the tip had seen tractors, which he believed should have had labels. The evidence is that the tipster had observed that CCS was selling tractors without the certification from the United States Environmental Protection Agency that is required evidence of conformity under the Canadian Environmental Protection Act . If steps were taken to confirm the tip during the month and a half while the case remained on his to-do list, Officer Cayley was not asked about them and he did not testify about them.

And if the tipster was reliable for any reason, he was not asked and did not testify that that was the case. As the CCS office in the trailer that the officers entered seemed to be a public place, they did not need permission to enter as members of the public. And once they walked around the grounds with Mr. Kalsatos after identifying themselves and their purpose, they clearly had all the grounds. However, with the onus on the prosecution to show that the search was reasonable, there is not sufficient evidence to conclude that the officers had reasonable grounds to rely on the tip.

Thus the whole proceeding began with an unreasonable search, albeit a minor and momentary violation of s. 8 of the Charter . The officers then thoroughly searched the premises. With Mr. Kalsatos’s help they inspected tractors and engines, took photographs and recorded model names, and made an inventory of items to which the Act applied. I reject the applicants’ argument that the officers required a warrant because the office trailer was being used or was designed to be used as a temporary dwelling place. The only evidence is that Mr.

Kalsatos had a home – the location of the vehicle that the search warrant specifies – that he drove from his home to his office on the day of the search, and that the office was indeed an office. There was no kitchen. Sleeping overnight in one’s office does not make it a temporary dwelling place within the meaning of s. 218(2) of CEPA. I also reject the submission that the legislation did not authorize taking photographs at the initial inspection. Once an inspection is taking place, taking photographs is no different from taking notes, which are necessary for any meaningful inspection.

The December 9, 2009, seizure During the inspection, Mr. Kalsatos advised the officers that the tractors and engines were imported from China and that he did not then have evidence of their conformity to the regulations. He claimed that the generators and water pumps were not covered by the regulations as they were imported prior to the regulations. At the conclusion of the inspection, Officer Cayley purported to issue an Environmental Protection Compliance Order, which he testified that he issued orally. In doing so, he did not comply with CEPA .

Section 235(6) of the Act sets out what an order must contain and provides that it must be in writing subject only to s. 236. Section 236(1) reads:

In the case of exigent circumstances, an order may be given orally, but within the period of seven days immediately after it is so given, a written order must be in issued in accordance with s. 235. There is no reference to exigent circumstances in the evidence that the prosecution submitted to demonstrate that the warrantless seizure was reasonable. Officer Cayley testified that he told Mr. Kalsatos “he would be issued an order to cease the sale of his tractors, wheelers, generators, water pumps and small bicycle engines until he could obtain and produce to me the court-required pieces of evidence”.

Officer Cayley then told Mr. Kalsatos that he would follow up as soon as possible in writing. He thought that he said probably within a week or so. He provided Mr. Kalsatos with a copy of both applicable regulations and contact information for a ministry expert who could explain anything he didn’t understand. The only reference that could possibly relate to exigency is Officer Cayley’s answer to a question of whether issuing the order was the only option. He was not asked about why he issued it orally, and he never referred to exigent circumstances.

He testified that in his opinion the only option was to issue the order to prevent the items from being sold and put on to the market. He testified that the only option was to freeze them. After the inspection, his conversation with an expert in the Agency’s transportation division and Mr. Kalsatos’s answers, Officer Cayley believed that he had reasonable grounds to believe that an offence was ongoing and therefore grounds to issue the order.

Although he stressed that he was only at the inspection stage, and had no reasonable grounds to believe that an offence had been committed that would have justified a search warrant, he testified that after the inspection he felt he had grounds to issue an order and no other choice. The offence on which he based his order appears to be that referred to in s. 235(2)(

d) of the Act , which covers “an act or omission in relation to or in the absence of a notice, permit, approval, licence, certificate, allowance or other authorization or a term or condition thereof”. Nowhere did his evidence refer to the obligation to provide the order in writing apart from what is set out above, that is, that he would “follow up in writing probably within a week or so”. Crown counsel submitted that the Act permits an oral order in order to prevent damage to the environment.

The Act is clear that orders must be in writing and can only be oral in exigent circumstances. “Exigent” means necessary, pressing or demanding and requiring immediate attention. The French version, which governs equally with the English, is “en cas d’urgence”. Exigent circumstances cannot mean simply the halting of an ongoing offence, particularly the one of importing without obtaining evidence of conformity. This is because all the offences listed in s. 235(2) for which an order can be issued have a potential for impact on the environment if they do not cease.

Exigent must mean something more, on the principle that Parliament does not legislate redundancies. In addition to the word itself, s. 236(2) provides some guidance for what is meant by exigent circumstances:

(2) For greater certainty, “exigent circumstances” includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 235(6) would result in danger to human life or the environment. “Would” does not mean “might”, and Officer Cayley could not have known that delaying an order until he prepared it in writing would result in danger to the environment. Exigent circumstances may have existed, but there is no evidence of any. December 9 was a Wednesday, so there were two business days to prepare a written order before the weekend.

Officer Cayley was at the preliminary stages of his investigation; he did not even know if the regulations in fact applied and that the equipment did not conform. But the strongest and only evidence regarding exigent circumstances is that the complaint remained on Officer Cayley’s to-do list for one month and a half, after some time during which it had funneled down to him. There were obviously no exigent circumstances arising from the perceived situation before the officers arrived on December 9, or they would have been there a lot earlier.

And nothing changed after Officer Cayley walked around the CCS grounds with Mr. Kalsatos. The oral order did not comply with the legislation and was not legal. Thus the admitted seizure accomplished by the order to cease selling the items was not authorized by law and was unreasonable. The written order About a week after the December 9 visit, Officer Cayley returned to CCS with the written order that in his view followed up on his oral order.

But the unsatisfactory state of the evidence here further complicates any effort to determine the officers’ compliance with the Act . “About a week” is all that Officer Cayley could testify to. Even assuming that whatever he told Mr. Kalsatos on December 9 amounted to an order as he perceived, he would have had to comply with the clear mandatory provision of s. 236(1) to provide a written order within seven days. But there is no evidence that he did. Officer Cayley lost some notes and could not give the date on which he provided the written order.

The date on the written order does not help because it is December 9, an impossibility. Officer Cayley testified that he gave a signed order to Mr. Kalsatos, which Mr. Kalsatos denies. I accept Officer Cayley’s evidence that he signed the order, but he did not make a photocopy of the signed order that he served but kept only an unsigned order dated December 9. Section 27(5) of the

Interpretation Act provides that

(5) Where anything is to be done within a time after, from, of or before a specified day, the time does not include that day. Therefore the seven days referred to in s. 236(1) did not include December 9 but did include December 16 by virtue of s. 27(3) of the

Interpretation Act, which provides that where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day. Even if there had been exigent circumstances and a legal oral order made on December 9, the written order had to be delivered by December 16. Yet Officer Cayley did not note or have notes of the date of the written order. The order purported to order CCS and Mr. Kalsatos to cease sales, amounting to a seizure. Although the overall onus is on the applicants,

this seizure on some unknown day about a week after December 9 is warrantless. The applicants having shown that, the onus passes to the respondent. There is no evidence that supports a finding that a written order was served within seven days. Crown counsel, ever fair, in argument acknowledged that it could have been eight days, which would have implications as to whether there was even an order. Counsel then went on to submit that the June 8, 2010, inspection and seizure was reasonable without any reference to what happened in December and the EPCO.

The problem with dating the written order as if it were delivered on the day of the inspection would not matter if there had been evidence of exigent circumstances and if there was evidence that the written order had been served within seven days. But the whole record is so deficient that there is no evidence of a valid EPCO stemming from the December 9 inspection. This means that for at least about a week there was an unreasonable seizure of CCS’s motors and tractors, which Mr. Kalsatos was not permitted to move.

Nowhere does the order say that it is a written copy of a previous order delivered orally on December 9, 2009. Stretching the facts in a manner most favourable to the prosecution by treating the written order as the first and only order creates its own problems. Crown counsel did not attempt to so present the facts. First of all it does not reflect the true state of what occurred; this was not an original written order complying with s. 236(2) but a written order following an oral order. And it is backdated.

There is no evidence that Officer Cayley corrected the date or crossed out the date on the signed copy that he gave Mr. Kalsatos because he didn’t take a copy. And he thought he was actually issuing a December 9 order. He described the written order dated December 9 as “simply the written copy of the verbal order issued on December 9.” But there is a reason why documents are dated, and persons signing them – especially officers carrying out statutory duties under legislation providing far-ranging powers to inspect and seize – are expected to sign them on the date that the document is dated.

Officer Cayley’s approach to the date of this document reflects a casual approach to this part of his duties not reflected in his detailed attention to the applicability of the regulations to Mr. Kalsatos’s equipment and motors. It is similar to his understanding of the power to issue an oral order without noting the need for or existence of exigent circumstances. And it has consequences. For instance, the mandatory written notice must, pursuant to s. 235, set out the period within which a matter is to begin and to be carried out, and the period within which a request for a review may be made.

One consequence of the confusion around the date if the written order is treated as the only order, is that it would not be possible to determine the expiry date for the review, which is 30 days from delivery of the written order. Nor does the order comply with the requirement that is set out regarding the day on which it is to begin, because that date is unknown. Neither of these deficiencies results in major consequences here, but they could in other cases, which is one reason it is important to properly date and not backdate an order.

The seizure that the officers intended to accomplish by properly issuing an EPCO was not in accordance with the Act . The prosecution has not met the onus of establishing that the warrantless seizure was reasonable. The seizure accomplished by the direction not to sell or move the machinery was an unreasonable seizure and a violation of Mr. Kalsatos’s and CCS’s rights under s. 8 of the Charter . The June 8, , 2010, inspection and seizure The order that Officer Cayley issued expired on June 7, 2010, according to its terms – 179 days after December 9, 2009, not counting December 9.

On June 8, approximately 10 officers attended at CCS and seized all the tractors and engines that they had previously seized by virtue of the order the previous December. The seizure of the items this time, the prosecution contends, was under s. 223 of the Act , which authorizes the officer to seize and detain anything by means of or in relation to which the enforcement officer reasonably believes the contravention occurred. As of June 8 Officer Cayley had those reasonable grounds, independent of the unreasonable seizure that the deficient EPCO occasioned.

They consisted of what he had seen during the December 9 initial inspection, before he issued the oral EPCO. At that time he did not initially have reasonable grounds to inspect because he had done no investigation to confirm the tip’s credibility. However, once he saw the engines to which the tip referred, he believed the regulations applied. After he had had a conversation with his transportation expert while attending CCS on December 9 and had more specifications, he further formed that opinion. He had a visit and conversation with Mr.

Kalsatos in February that further confirmed the lack of conformity and that the items were imported. And he had not received evidence of conformity. So he had the grounds to re-inspect, independent of the unreasonable seizure on December 9. Although the grounds were independent of the unreasonable seizure that the EPCO occasioned, the existence of the items was not. It is not possible to determine the hypothetical: whether or not the items would still have been there to seize on June 8 if not for the earlier order purporting to seize them (which, except for the removal of some labels in February, Mr.

Kalsatos seems to have respected). Except for a reference in Mr. Kalsatos’s August 23 statement, there is no evidence of CCS’s sales or the likelihood that the tractors or the engines or water pumps at issue would have been sold. The most that can be said is that the officers preserved the evidence by virtue of the December 2009 order that I have found did not comply with the legislation. To that degree, the seizure of the items that had already been twice seized in 2009 – on December 9 and approximately a week later – was also unreasonable on June 8, 2010.

In Officer Cayley’s view there was no investigation until the June 8 inspection. This view is consistent with the evidence. In particular there is no evidence that Officer Cayley and his team “crossed the Rubicon” – as the Supreme Court put it in R. v. Jarvis [8] – and converted their inspection into an investigation before June 8. When the EPCO expired, he concluded that there was no evidence of conformity and decided to seize and detain on June 8 under s. 223. He then had reasonable grounds to believe that an offence had been committed, but told Mr.

Kalsatos that he would not lay charges if he could provide evidence of conformity within 90 days. The invalid EPCO resulted in Officer Cayley wrongly informing Mr. Kalsatos that it was not possible to give him more time to produce the evidence of conformity. The Information to Obtain and the search warrant I now proceed to the search warrant and the Information to Obtain put before the justice of the peace, in accordance with R. v. Garofoli

as described above. Before doing so I note that the cross-examination of Officer Cayley, whom the prosecution called to establish the reasonableness of all the searches, included cross-examination on his Information to Obtain a Search Warrant. The applicants made no application to cross-examine the person who prepared the ITO as required by Garofoli and R. v. Araujo , [9] the prosecution did not object, and I did not consider the issue at the time nor grant leave. The applicants are lay persons, including the agent for the company in this context.

Officer Cayley’s role as chief investigator and his presence at every stage of all inspections and the investigation blurred the lines between his affirming the ITO and his other evidence. But there ought to have been a leave application and ruling. In the result, there was no objection, and as will be seen, the sub-facial attack on the search warrant that depends on the cross- examination of Officer Cayley as the person who affirmed the Information to Obtain is not the major issue with the search warrant.

I now turn to the search with a warrant on September 9, what the warrant authorized and whether the ITO could support the issuing of the warrant. The test on review as set out in Garofoli and Araujo is whether there is sufficient basis in the Information to Obtain upon which the justice could have issued the search warrant. It is not a de novo assessment of whether I would have issued the search warrant. The warrant can be amplified on review, and amplification can result in the Information to Obtain being considered as if certain information were not before the justice.

This is referred to as a sub-facial review. [10] But apart from any amplification, the applicants also make a facial attack on the warrant: they say that an examination of the ITO as written demonstrates that the justice should not have issued the warrant. Although they needed some assistance in formulating this attack, it turns out that their facial attack on the warrant is correct.

The justice should not have issued a warrant as he did to search for the contents of the computer, because the ITO did not set out any reasonable grounds to believe that anything would be found in a computer; it did not even provide reasonable grounds to believe that there was a computer. Despite the skilled, fair attempt of Crown counsel to argue that the search warrant was valid, an analysis of the ITO and the warrant shows that the issuing justice could not have and should not have issued a warrant to search any computer.

This analysis necessitates detailed reference to the structure of the ITO as well as its contents. All of the ITO is under affirmation, of course, but what Officer Cayley said in the first

section is only that there were things that would provide evidence of the offences, and that he had reasonable grounds for believing that the things he wished to search for were in a certain place. This step, considering the form of the ITO, reveals a deficiency in the forms and the ITO itself. Whereas Officer Cayley said that he had reasonable grounds to believe that the things listed would be found at CCS and the specified vehicle, he only said that the things would afford evidence of the offences, simpliciter .

He did not say that he had reasonable grounds to believe that the things would afford evidence of the offences. But I am not dwelling on this point here. The things Officer Cayley was looking for that he said afforded evidence of the offences and he reasonably believed were at CCS and in the vehicle were documentation, correspondence between Mr. Kalsatos and Chinese manufacturers, and information plates from engines of tractors in various years. He then added the final things that he had reasonable grounds to believe would be found: 6.

Items described in paragraphs 1 through 5 in electronic format, as well as documents/records that may be uniquely electronic including but not limited to e-mail (received or sent in draft form) and records of past instant messaging and online chat conversations, that are stored on or available to a computer system or other electronic device; this also includes any other device and associated software and manuals used or capable of being used to create, store, manipulate or reproduce the said items.

Under the heading “My Grounds for Belief”, Officer Cayley provided a detailed and helpful overview of the regulations. Then he stated what he observed on December 9, 2009, during the inspection: the tractors, water pumps, generators and engines. Three paragraphs are dedicated to the observations on December 9. The ITO did not state that he saw a computer, although he testified that he saw a desk “with computer and so on”. The grounds

section omitted certain visits and contacts, but that is not relevant to the facial attack, apart from there still being no reference to any computer. A detailed paragraph described the June 8 inspection but similarly did not state that Officer Cayley saw any computer. He also described a June 21 phone call in which Mr. Kalsatos said that he was searching for invoices, but again there was no reference to any computer. He described a visit to CCS on July 23, 2010, at which time Mr. Kalsatos said that most of the documentation would be on site, either in the office or one of the trailers that he used for storage.

There was no reference to him saying anything was kept in a computer. Officer Cayley affirmed that he requested copies of photographs from Mr. Kalsatos and that he followed the request by email later in the same day. He also informed the justice that on August 12, 2010, he received an email from Mr. Kalsatos with the pictures originally requested on July 23 attached. Officer Cayley then set out an email that he had received on September 2, an email that another officer had received from Jeremy Fernando of the Criminal Investigation Division of the Canada Border Services Agency (CBSA). (Mr.

Fernando in the event accompanied the EPA officers on their search.) Mr. Fernando’s email describes how the CBSA’s Computer Search and Evidence Recovery program officers can forensically search a computer: make an exact copy, called an image, of an entire hard drive and then analyze that copy. He stated that deleted files can be retrieved if the area of the hard drive where they are stored has not been re-used. This part of the grounds

section is the ITO’s most extensive reference to computers. These were the entirety of Officer Cayley’s grounds. There was a statement that there were documents in computers and electronic devices. But it was only a statement that there were “things” as used in the ITO, and that he had reasonable grounds to believe they were there. Regarding what his reasonable grounds for his belief might have been, he said absolutely nothing.

In response to the Court’s question as to where in the entire ITO Officer Cayley provided any reasonable grounds to believe that the documents he sought were in a computer, Crown counsel answered only that Officer Cayley referred to sending and receiving an email from Mr. Kalsatos with copies of photographs that he asked for attached. With respect, this reply – given the complete absence in the ITO of any reference to reasonable grounds for believing that there were documents in a computer – makes the point. That Mr.

Kalsatos used email and had some device with photographs of generators and welder/generators does not logically lead to the conclusion that he

had documentation relating to their import and correspondence or records of communication with Chinese manufacturers. Reasonable grounds are variously defined in a circular fashion employing the word “reasonable”.

So Justice Cory stated in R. v.Storrey[11] “a reasonable person standing in the shoes of the police officer would believe.” Justice Lamer, as he then was, wrote in R. v.Roberge[12] that he did not disagree with this statement: [TRANSLATION] In order to constitute reasonable and probable grounds, it is not sufficient if the peace officer acts "in good faith"; hisbelief must be based on reasonable and probable grounds (Hopper v. Clark (1911), (NB KB), 40 N.B.R. 568, C.A.).

Amere suspicion or the desire to obtain information cannot be a basis, in the event the accused refuses to answer, for an arrest without awarrant (Koechlin v. Waugh and Hamilton (1957), (ON CA), 118 C.C.C. 24, C.A. Ont.). The peace officer must havecome to the conclusion that any ordinary person (the average man) would have made the same deduction in the same circumstances.

And, fundamentally, before a search can be conducted, the police must provide” 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.[13]. Whatever reasonable grounds may be, they certainly do not include speculation. The ITO here only says that every time Mr. Kalsatosreferred to documents, he referred to having them in his office. To rely on one email with photographs, with no indication of whether itwas sent from Mr.

Kalsatos’s home or mobile device or office, as providing reasonable grounds for believing that a computer at CCS hadspecific documents hardly even rises to speculation. It is unreasonable to conclude that there were documents in a computer as OfficerCayley stated. This deficiency is only exacerbated by Officer Cayley’s failure to even say that there was a computer at CCS. R. v. Morelli,[14]which happens to deal with the search of a computer, is also helpful in how a court should approach the reviewingfunction. In that case there was amplification and excision, so the attack was sub-facial.

However, once he had dealt with the excisions,Justice Fish at paragraph 63 stated, Essentially only two inferential paths could have led the justice to conclude that the warrant should issue: He then set out the two paths and concluded, In my view, both paths lead instead to an evidentiary dead end: they culminate in suspicion and conjecture, never reaching the mandatorythreshold of reasonable and probable grounds to believe.

Similarly here, the only information in the whole ITO on which the Crown relies to even suggest that there were reasonable grounds tobelieve that the listed documents would be in a computer or electronic device on the premises was that Mr. Kalsatos sent an email withattachments on August 12, in reply to a reminder request that Officer Cayley sent by email. It is somewhat difficult to articulate how deficient this warrant is with respect to the search of a computer, because in most cases there issome basis on which the justice could have acted to analyze. But here there is none.

One paragraph of the ITO under “Grounds” isrevealing in this regard. Officer Cayley stated in paragraph 16, Correspondence or records of communications in relation to the imports are required to determine whether the offences were committedknowingly or inadvertently, and to determine when any particular engine was ordered. To offer this as a ground reveals the application as, at least in reference to the computer, a fishing expedition. The grounds to believe thedocuments were in a computer or electronic form did not exist.

Officer Cayley did precisely what Roberge prohibits – he asked for asearch warrant out of a desire to obtain information. Nonetheless, the justice of the peace issued a warrant to search for the things at CCS including the paragraph referring to computers,which obviously, it can be seen, came straight from the Information to Obtain. Although section 218(13) of CEPA authorizes a search of a computer, Officer Cayley did not rely on it; he sought a warrant. Nor does s.220(b), which repeats s. 218(13), assist. Since R. v.

Vu,[15] it is accepted that a computer is a separate place and that a warrant isnecessary to search a computer. The prosecution accepted that proposition and there is a warrant here to search a computer, but nogrounds for it were provided to the justice. Other deficiencies in the warrant were disclosed during the examination of Officer Cayley,

part in examination-in-chief and

part in cross-examination. Officer Cayley did not advise the justice that after investigation, three of the engines that the officers seized on June 8 werereturned to Mr. Kalsatos as not being covered by the regulations. This was a serious omission because Officer Cayley did advert to theapplication of the regulations in paragraph 15, where he stated: Therefore, additional evidence is required to determine exactly which of the items seized on June 8, 2010 are captured by the ORSSIER. He ought to have included in his ITO that he had returned three items, as he conceded in cross-examination.

Further, Officer Cayley’s reference to the EPCO was sparse to the point of misleading. He stated that he issued the order at theconclusion of the December 9 inspection. He did not set out the requirement that the order be in writing or the circumstances that permitan oral order, or whether he had even issued a written or oral order. He did not advise that he returned approximately a week later. So hedid not provide the justice with the information to evaluate compliance with the issuance of orders under CEPA. Nor did he advise thejustice of his contact with Mr. Kalsatos in February 2010.

Serious as these omissions are, they do not rise to fraud or deliberate non-disclosure, and none of them have any effect on my review ofthe search warrant to determine reasonableness. The only material omission was the existence of a computer, even though Officer Cayley

had seen one on December 9. That omission, which I have dealt with, deprived the justice of a possible inferential path that would have risen above speculation with regard to the existence of the documents in the computer. The substantive excision of the information before the justice on this review is the information gleaned from the engines that were unlawfully seized because of the deficient EPCO. Much of the information on these engines’ specifications was gathered during the inspection phase between December and June while the items were illegally seized.

But some of it, according to Officer Cayley’s evidence and the ITO, was during the inspection itself on December 9, before the unlawful seizure. While the items remained unlawfully seized in situ for 180 days, the investigation continued without reference to them. Combining the answers that Mr.

Kalsatos gave about looking for physical documents that he kept in the office and the knowledge legally obtained at the first inspection – between the time that the officers entered the yard and the time of the oral EPOC – with the knowledge that no evidence of conformity had been produced, what remains in the ITO apart from the search of the computer could support the justice’s decision to issue the warrant to search the premises. So the overall search, apart from the computer search, was reasonable. DO THE BREACHES WARRANT EXCLUSION?

I now consider whether the admission of the evidence obtained as a result of the breaches of

section 8 of the Charter of Rights and Freedoms would bring the administration of justice into disrepute under s. 24(2) of the Charter . First I summarize my findings, again in order of the searches, with respect to the breaches of Mr. Kalsatos’s and CCS’s rights to be secure against unreasonable search and seizure.

The first entry into CCS on December 9, 2009, to conduct an inspection was a search under the authority of Comité paritaire . [16] Based on a tip for which there was no investigation or confirmation and no evidence presented about its compelling nature, this search was in a very technical sense, unreasonable. Once in the office of the business, which was open to the public, the officers could still not see the tractors but proceeded to walk around the grounds. Once they could see the tractors, the tip was confirmed and there were grounds to inspect them.

The seizure that the officers effected by the oral notice of December 9 followed by the written notice dated December 9 but delivered on some unknown date about a week later was not in accordance with the Act and was unreasonable. The June 8, 2010, inspection was based on expiry of the invalid order from December 2009. The officers had grounds to inspect as authorized by the Act , because they knew of the existence of the tractors and because Mr. Kalsatos had not produced any evidence of conformity with regulations in the almost six month since delivery of the written order.

The Act authorized them to seize the tractors and engine in the way that they did. However, the items were there to be seized in part because of the unreasonable seizure accomplished by the invalid December 2009 order, which Mr. Kalsatos and CCS respected. Therefore the June 8 seizure was also unreasonable. The September 9, 2010, search of the computer was based on a warrant that the justice should not have issued based on the Information to Obtain in support. No grounds whatsoever were set out for reasonably believing that there was a computer, or that relevant documents would be found in the computer.

There was only a request to search a computer and a warrant authorizing it. The search of the computer was unreasonable, based on a facial analysis of the Information to Obtain. The rest of the Information to Obtain was based in part but not entirely on the information obtained pursuant to the preceding unreasonable seizures. The ITO did have sufficient information on which the justice could have acted in authorizing the search of the other items sought. There were therefore three separate unreasonable searches and seizures – more precisely, two unreasonable seizures and one unreasonable search.

I now consider s. 24(2) of the Charter with respect to each. The analysis is straightforward with respect to the search of the computer with a warrant that should not have been issued, and more involved with respect to the two seizures that preceded it.

Section 24(2) of the Charter S. 24(2) reads as follows: 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.

The Supreme Court of Canada has developed an approach to analyzing whether the admission of evidence obtained in a manner that infringed or denied rights guaranteed by the Charter would bring the administration of justice into disrepute, using categories of factors in R. v. Grant . [17] The Court states at paragraph 67 that the words of s. 24(2) capture its purpose, to maintain the good repute of the administration of justice.

The Court also stresses that the assessment is not directed either toward punishing the police, here the environmental protection officers, or compensating the accused whose rights have been infringed, but is concerned with the impact of admitting the evidence on the long-term repute of the justice system. At paragraph 71, the Court set out three categories of factors to be determined, based on the facts underlying the infringement or denial of a right and then balanced and considered in order to determine whether admission would bring the administration of justice into disrepute.

They are the seriousness of the breach, the impact of the breach on the accused’s rights and society’s interest in having the case tried on its merits.

The Computer Search Applying these factors to the September 9 search of the computer yields a clear conclusion that admitting the documents that Mr. Fernando of the CBSA extracted from the computer on the desk at CCS would bring the administration of justice into disrepute. My finding that nothing in the ITO gave any grounds to believe that there was a computer or that any documents in the computer would afford evidence of the offences, and that there was therefore no basis for the justice to issue the warrant, makes the search a warrantless search of a computer.

And the computer, though it was in an office, did have information of a personal nature, according to Mr. Fernando. The breach was serious. There was no deliberate or willful attempt to disrespect Charter rights, but there was under the first category a flagrant disregard of those rights. The officers were aware of the need for a warrant to search a computer and for grounds to do so; much of the Information to Obtain was taken up with the contents of Mr. Fernando’s email about searching a computer.

However, Officer Cayley neglected in the ITO to advert to any grounds for believing that relevant documents would be found in the computer, the most basic step in obtaining a search warrant, and the justice issued the warrant notwithstanding the absence of a basis to do so. So while not deliberate, the breach was severe, to use the Supreme Court’s word in paragraph 72 of Grant. The requirement of a warrant to address the prima facie unreasonableness of a search is well established, and for good reason.

The individual’s right to privacy is so valued that the state must demonstrate that its interest in breaching that right is demonstrably superior to the individual’s interest. [18] Officer Cayley referred to records of communication in relation to the imports being “required to determine whether the offences were committed knowingly or inadvertently and to determine when any particular engine was ordered” without setting out any grounds to believe that there was a computer or that such records were in the computer.

I have found that to be fishing, precisely the type of unreasonable search that courts need to disassociate themselves from as contemplated by the Supreme Court in paragraph 73 of Grant. There is no valid e

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