R. v. Baird, 2014 MBPC 1

CITATION: R. v. Baird , 2014 MBPC 1 Date: 20140105 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Sholdice and K. Sharma, ) for the Crown ) and ) ) Marcus Baird ) ) E. Roitenberg and L. Robinson, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) January 5, 2014 ) Heinrichs P.J.

DECISION ON SECOND WARRANT INTRODUCTION [ 1 ] On July 15, 2011, Detective Richard Arndt swore an Information to Obtain a Search Warrant (or “application” or “ITO”, as it will be referred to from time to time), asking that the Winnipeg Police Service be allowed perform a second search of Marcus Baird’s 2002 Chev Cavalier. This vehicle had been seized and searched, pursuant to a Search Warrant, on April 16, 2011. A voir dire was held with respect to that first search and the Court ruled on September 20, 2013 that it was not an unreasonable search and seizure.

As a result, the Crown was able to file the exhibits seized, as evidence. [ 2 ] With respect to the second search, counsel for Marcus Baird sought leave of the Court to be allowed to cross-examine Detective Arndt, the affiant of that ITO. This Court ruled, on November 28, 2013, that Counsel would be allowed to cross-examine, and in that decision, set out what areas and what paragraphs of the ITO could be cross-examined on.

That cross-examination took place on December 5, 2013, and except for the filing of some exhibits, no other evidence on the second search was presented by counsel for Marcus Baird or by the Crown. [ 3 ] Counsel for Marcus Baird has argued that the evidence on this Information to Obtain a Search Warrant is so fraught with a multitude of inaccuracies and misleading information that in the totality of the circumstances, as the reviewing judge, I should set aside the warrant in its entirety.

In the alternative, counsel argued that after I conduct the necessary excising of the sworn evidence contained in the ITO, the Court will find that there is not sufficient evidence from which the authorizing justice could have granted the Search

Warrant. [ 4 ] The Crown’s position is that when I, as the reviewing judge, edit, excise or amplify the errors, which the Crown suggested were honest mistakes, what does remain will still be ample evidence from which the authorizing justice could have signed the search warrant. HOW DETECTIVE ARNDT PUT TOGETHER THE SWORN INFORMATION TO OBTAIN A SEARCH WARRANT [ 5 ] Detective Arndt testified that he became involved in this investigation in the beginning of May, 2011. He was transferred into the sex crimes unit and partnered up with Constable McLean, as Detective Sergeant Stephenson had been transferred out.

He took his time in familiarizing himself with the file, reviewing the narratives, reports and correspondence that already existed. At some point in time he was tasked with putting together the application for the second search warrant. He testified that he drafted the information over a period of time; it was not a rush job.

He had the time to review reports, going back to them if necessary; he watched the complainant’s video statement; he spoke directly with some of the other officers that had been involved in the investigation; he spoke to staff at the Headingly Correctional Centre, getting them to look at and describe an item contained in Marcus Baird’s personal property; and he attended to Dr. Hook Towing to take a look at Marcus Baird’s vehicle. Detective Arndt had unfettered access to all of the information pertaining to the investigation.

He chose what to include and what not to include in the application; he chose how he put together the paragraphs in the application. [ 6 ] Detective Arndt had taken a search warrant drafting course and he agreed that what was expected in preparing an application for a search warrant was full, fair, and frank disclosure, “warts and all”, as it is an ex-parte application. He testified that he was aware of the necessity of providing reasonable grounds for the issuing of the search warrant.

The authorizing justice would need to be satisfied that this individual or this location was sufficiently tied to the allegations such that reasonable grounds existed that some evidence of the offence would be able to be located at the place being searched. The goal was to satisfy the authorizing justice that Marcus Baird was linked to the April 5, 2011 allegations, resulting in the second search warrant being granted. He testified that after he had put it all together, he swore the document to be true and accurate.

THE PURPOSE OF THE SECOND SEARCH [ 7 ] On the front page of the July 15, 2011, Information to Obtain a Search Warrant and as explained in more detail in paragraph 29 of the attached Exhibit “A”, Detective Arndt sets out what he would like to searched for, seized, and examined during a second search of Marcus Baird’s vehicle: 1. He would like to seize the black jeans and black cotton hoody which he had seen on the front passenger seat of the vehicle, when he observed the vehicle at Dr.

Hook’s compound, as he believes these items match the clothing description given by the complainant in the April 5, 2011 sexual assault. 2. He would like to search for a Samsung C20 memory card camcorder and 4GB Lexar SDHC memory card. 3.

He would like the Forensic Identification Unit to take photographs and tire impressions of the tires on the vehicle. [ 8 ] Detective Arndt’s explanation for why a second search was necessary was that he believed that the first search on April 16 was not extensive enough; at that time the primary focus of the police was to look for a knife allegedly used during the incidents from the night before. In other words, the police were not looking for any evidence concerning the April 5 allegations.

THE CONTENTS OF DETECTIVE ARNDT’S APPLICATION [ 9 ] There are a number of areas of concern which counsel for Marcus Baird cross-examined on. The Crown agreed that there are some inaccuracies in Detective Arndt’s sworn application, but disagreed on how they should be characterized. The Court will divide the areas of concern up as follows, and then discuss them in detail: 1. The information which Detective Arndt did not include in his application. 2.

The complainant’s description of the assailant in the April 5, 2011 incident and how Detective Arndt summarized this evidence in his application, including how it was tied to Marcus Baird. 3. Detective Arndt’s

summary of the April 16, 2011 incidents and what he stated with respect to Marcus Baird being in custody on these charges. 4. Detective Arndt’s evidence concerning the “black cotton hoody” and “black jeans” which he swore he saw in Marcus Baird’s impounded vehicle. 5. Detective Arndt’s statements concerning DNA evidence found at the scene of an alleged sexual assault on February 26, 2011, and whether or not it was Marcus Baird’s DNA. 6. Detective Arndt’s

summary of Detective Bevan’s notes and observations of Marcus Baird’s vehicle on the morning of April 5, 2011. 7. Detective Arndt’s evidence concerning the tire treads on Marcus Baird’s vehicle. WHAT WAS NOT INCLUDED IN CONSTABLE ARNDT’S APPLICATION [ 10 ] The purpose of the second search warrant for Marcus Baird’s vehicle, as was noted earlier, was threefold. One specific purpose was to search for and seize a video camera and memory card. Detective Arndt’s application, in paragraph 12, summarized Detective Sergeant Keen’s report, noting that she had recorded that Detective Sergeant Chalmers, in requesting a search warrant, was specifically

looking for a knife allegedly used by Marcus Baird on April 15, 2011. As well, Detective Arndt spoke with Detective Keith on July 6, 2011. Detective Keith had been assisting Detective Sergeant Keen in that first search. Detective Arndt quoted Detective Keith as having told him that it was not an extensive search. Therefore, in paragraphs 26 and 29, Detective Arndt emphasized that the memory card may still be hidden inside the vehicle, as it is very small. [ 11 ] The problem with all of this, as counsel for Marcus Baird pointed out, is that Detective Arndt made no mention of the following: 1.

Detective Arndt had never reviewed Detective Sergeant Chalmers’ information to obtain a search warrant concerning the first search of the vehicle, or spoke to him, to find out what the breadth of the warrant was or to see if a complete search of the vehicle had been sought. 2. Detective Arndt had not checked to see if there was a Report to a Justice sworn at the conclusion of the search.

He agreed that there would likely be a report of this sort filed after the search, however, as he did not check, he also did not read Detective Sergeant Keen’s Report to a Justice to see what she swore to with respect to the extent of the first search. 3. Detective Arndt had read Detective Sergeant Stevenson’s narrative which included a statement that they had seized and towed Marcus Baird’s vehicle to the Public Safety Building in order to have it “secured until a search warrant is obtained in order to have it thoroughly searched and processed by Ident.” 4.

There was a request for a second search warrant immediately following the April 16 search of Marcus Baird’s vehicle. That information to obtain a search warrant was for Marcus Baird’s residence, and was sworn by Detective Keith. That warrant was not granted.

Detective Arndt testified that he had tried to read Detective Keith’s ITO, but as he testified, “it was very long, and was hard to review and make sense of what was in that ITO.” However, Detective Arndt did acknowledge that the reason for requesting the search warrant was that they had just searched Marcus Baird’s vehicle and found a manual for a camcorder and packaging for a memory card in the car, but no camera or memory card. Thus, they now wanted to search Marcus Baird’s residence, believing that they would find these items there.

All of this information is not disclosed in Detective Arndt’s Information to Obtain a Search Warrant. DETECTIVE ARNDT’S

SUMMARY OF THE APRIL 5, 2011 COMPLAINANT’S DESCRIPTION OF HER ASSAILANT [ 12 ] In early May, Detective Arndt read Constable McLean’s report about his interview with Lynxleg, the complainant in the April 5, 2011 alleged sexual assault. The following day he watched Lynxleg’s video statement. In summarizing what Lynxleg was able to describe about the assailant, every detail was included except for one thing that Constable McLean was told: the description of ethnicity which Lynxleg gave - “Caucasian”.

Detective Arndt agreed, under cross-examination, that he had also seen Officer Robert’s report, in which Lynxleg described the assailant as “white”. When asked why he omitted this from his application, he stated, “I can’t explain it.” Earlier, in cross-examination, Detective Arndt had testified that he had reviewed the NICHE and other police information about Marcus Baird and the descriptors for him on his file included “aboriginal” and “African-Canadian”. Detective Arndt agreed that he would have been well aware of this information at the time he was preparing the Information to Obtain a Search Warrant.

DETECTIVE ARNDT’S REFERENCES TO THE APRIL 16, 2011 INCIDENTS [ 13 ] In paragraph 11, Detective Arndt summarized Detective Bramadat’s report concerning an incident or incidents on April 15, 2011. That

summary reads as if Marcus Baird is responsible for sexually assaulting both complainants, Parisian and Laporte, while holding a knife. It is not clearly stated, but it appears to be one incident; Detective Arndt concluded with a statement that Marcus Baird was charged with sexual assault with a weapon on both complainants. This is in fact not true. There were two separate incidents alleged and only one complainant mentioned a knife; there was only one charge of sexual assault with a weapon. [ 14 ] Additionally, counsel takes issue with how Detective Arndt characterized the charges and what he didn’t say with respect to Marcus Baird’s status on these charges. Paragraph 11(

b) reads as if Marcus Baird is guilty of the offences; paragraph 16 mentions that Marcus Baird is currently being held in custody in Headingly Correctional Centre; and paragraph 23(

d) states that, “Marcus Baird is currently incarcerated at Headingly Correctional Centre in regards to the sexual assaults against Parisian and Laporte.” Detective Arndt never mentioned that these were only allegations and that the charges were still pending in court. As counsel pointed out, Marcus Baird was later acquitted of these charges.

While these references to what happened on April 15 have nothing to do with the April 5 allegations, which is what this Information to Obtain a Search Warrant is about, counsel notes the impression Detective Arndt had left is that Marcus Baird is more likely to have committed the April 5, 2011 offence, because of what he did on April 15, 2011. Additionally, counsel contends, it is another example of Detective Arndt’s inaccurate

summary of another officer’s report. DETECTIVE ARNDT’S EVIDENCE ON THE BLACK COTTON HOODY AND BLACK JEANS [ 15 ] A second specific purpose for Detective Arndt obtaining a second search warrant for Marcus Baird’s vehicle was to seize a pair of black jeans and a black cotton hoody. Detective Arndt mentioned black jeans, a hoody, a navy blue hoody, a black hoody, or a black cotton hoody in a number of places in his application. The references are as follows: 1. In paragraph 3(d), Detective Arndt summarized Constable McLean’s report on what Lynxleg told him.

She described the suspect as wearing a black hoody and black jeans. 2. In paragraph 6, Detective Arndt summarized Lynxleg’s video statement. In 6(

d) she is noted to have seen a male wearing a hoody and having a cigarette in the parking lot. Then in 6(

g) she described the assailant as “wearing a black cotton pullover hoody (no zipper)” and black jeans. 3. In paragraph 15(e), Detective Arndt stated that he could see through the windows of Marcus Baird’s vehicle when he was at Dr. Hook’s compound. What he saw was on the passenger seat was a black cotton hoody, as well as black jeans and other clothing items. 4. In paragraph 15(e), Detective Arndt stated that the black jeans and black hoody match the description of clothing given by Lynxleg.

5. In paragraph 19, Detective Arndt writes that Detective Keith told him there was a pair of black jeans that was moved to the front passenger seat of Marcus Baird’s vehicle during the first search. 6. In paragraph 20, Detective Arndt wrote that he had viewed Constable Aessie’s Ident. photos, taken on April 16, during the first search. He stated that the black cotton hoody and black jeans which he had observed inside the front of Marcus Baird’s vehicle at the compound could be seen in the back seat of the car in these photos.

These photos were not attached as an Exhibit to his ITO, but are now filed as Exhibit #1 in these proceedings. 7. In paragraph 21, Detective Arndt summarized Detective Bambrick’s report about an incident on February 26, 2011. In that incident the assailant was described as wearing a dark hoody when first seen by the complainant. Later she described the male as wearing a navy blue hoody and black pants. Detective Arndt pointed out that a hoody, blue in colour with “Athletic Works” written on it, was found near the scene by a police service dog. It was later sent away for DNA analysis. 8.

In paragraph 24, Detective Arndt stated the following: “Baird was wearing the black cotton hoody and black jeans that were described by Lynxleg in paragraph 6(

g) of this exhibit and observed by myself. . . “ 9. In paragraph 29, Detective Arndt explained that if the warrant was granted, he would be seizing the black jeans and black cotton hoody in order to send them away for DNA analysis. [ 16 ] When Constable Aessie’s photos were shown to Detective Arndt during cross-examination, he testified that in photo 22, underneath the corner of a jacket appeared to be a black piece of clothing that he believed to be a cotton hoody.

Detective Arndt admitted that this is not how he phrased it in his ITO. [ 17 ] However, when the second search of Marcus Baird’s vehicle was granted, no black jeans or black cotton hoody were found in it. What was found were a dark pair of blue jeans and a black “Echo” t-shirt. DETECTIVE ARNDT’S STATEMENTS CONCERNING THE DNA EVIDENCE [ 18 ] In paragraph 4, Detective Arndt summarized Detective Sergeant Stevenson’s report. This is the officer he replaced in the ongoing Baird investigation; his report was read by him on the first day he became involved, May 3, 2011.

In paragraph 4(g), Detective Arndt wrote that a suspect was developed from the February 26, 2011 incident through DNA analysis of a seized hoody: Marcus Baird. [ 19 ] In paragraph 21, Detective Arndt summarized a conversation he had with Detective Bambrick on July 9, 2011. In paragraph 21(j), Detective Arndt wrote the following: Det.

Bambrick also told me that on April 8, 2011 he received a report from Greg Litzenberger of the RCMP Forensic Biology Lab stating that male DNA was found on the blue “Athletic Works” hoody from the incident at 526 Perth Avenue was confirmed to be from Marcus Baird born November 27, 1985. [ 20 ] During cross-examination, Detective Arndt admitted to the following: 1. He made notes of his conversation with Detective Bambrick on July 9, 2011; however, there are no notes about discussing the DNA report. 2. Constable Bambrick has nothing in his notes about ever receiving this DNA report. 3.

Detective Arndt had continuous discussions with his partner, Constable McLean during this investigation and he was aware of the fact that all reports, including DNA reports, were to go to Constable McLean as the point person. 4. Detective Arndt only saw only one DNA report from Greg Litzenberger, dated April 8, 2011. He agreed that at the end of that report it stated, “Conclusion: The DNA typing profile obtained from exhibit 1, hooded sweater, area AA, back neck from the seam, is of mixed origin consistent with having originated from at least three individuals, at least one of which is male.” 5.

Detective Arndt knew that Constable McLean had been in conversation with Greg Litzenberger and other members of his lab. 6. Detective Arndt had previously seen an email from Greg Litzenberger to Detective Keith and Constable McLean, sent on April 13, 2011. This email was in response to Constable McLean’s question earlier that day, “Can I swear in a search warrant that one of the three contributors is, in fact, that of Marcus Baird?” Greg Litzenberger’s response was: As for conclusively saying that Baird is one of the contributors to that mixture, I won’t be able to say that.

What I can say is that he’s a potential contributor to this mixture and do a statistical assessment indicating what proportion of the population is expected to be a possible contributor to the mixture. I reran the test this morning and in that result, one in 64,000 people from the Canadian Caucasian population is expected to be a possible contributor to this profile. 7. After his conversation with Detective Bambrick on July 9, 2011, Detective Arndt never went back and reviewed the April 8, 2011 DNA report from Greg Litzenberger. 8.

Detective Arndt agreed that the April 8, 2011 report does not say what Detective Bambrick told him it said. DETECTIVE ARNDT’S

SUMMARY OF DETECTIVE BEVAN’S NOTES CONCERNING HIS OBSERVATIONS OF MARCUS BAIRD’S VEHICLE [ 21 ] In paragraph 10, Detective Arndt summarized Detective Bevan’s report about what he had done the morning of April 5, 2011. On that date, Detective Bevan had been asked to attend to the area of Marcus Baird’s apartment on Main Street. He had been advised that Marcus Baird owned and drove a 2002, two door grey Chev Cavalier. Detective Arndt wrote that Detective Bevan had driven to the

apartment building that Marcus Baird lived in and found his vehicle in the parking lot.

He had felt the hood of the vehicle and in paragraph 10(d), Detective Arndt stated the following: “Detective Bevan described that the hood felt hot and there were wet tire tracks leading up to it as though the vehicle had recently been driven.” [ 22 ] Later, in paragraph 25, as part of his conclusions, Detective Arndt wrote, “Detective Bevan attended to Baird’s residence a short time after the sexual assault occurred and found Baird’s vehicle to be hot to the touch and a set of fresh wet tire tracks leading up to it as though it had recently been driven.” [ 23 ] Detective Arndt, during cross-examination, admitted that he had never spoken with Detective Bevan about this; all Detective Arndt knew about Detective Bevan’s observations that morning was from reading his report.

Detective Arndt had even scanned this narrative into his own notes. [ 24 ] Detective Arndt admitted, during cross-examination, that Detective Bevan had written that he had “found car still warm to touch”. Detective Arndt chose to write “hot to the touch” two times, instead, as he believed that Constable Bevan had located a vehicle that had recently been driven. DETECTIVE ARNDT’S EVIDENCE CONCERNING THE TIRE TREADS ON MARCUS BAIRD’S VEHICLE [ 25 ] In paragraph 15, Detective Arndt wrote about his attendance at Dr. Hook Towing. After finding Marcus Baird’s vehicle in the compound, he stated, in paragraph 15(

d) that all four tires have the same tread pattern. He then went on to explain that he had compared these tires to Constable Lisi’s photos taken of tire tracks left at the scene of the April 5, 2011 incident. Detective Arndt concluded that they appeared to match. Detective Arndt did not attach the photos as an exhibit to his application; they have been filed as Exhibit #2 in these proceedings.

At no time in his application did Detective Arndt explain that he had no particular training in tire tread comparisons; that he was not an expert in this area. [ 26 ] During cross-examination, counsel showed Detective Arndt the report of Officer Singleton, the expert who did examine the tires and tire tread impressions. In that report, Officer Singleton noted that on a preliminary visual inspection of the vehicle he saw that the rear passenger tire was not the same make, model or tread pattern as the other three tires.

As well, after a more thorough comparison, Officer Singleton was able to conclude that the tires then on the Marcus Baird vehicle could not have made any of the tire tread impressions photographed by Constable Lisi. ANALYSIS OF DETECTIVE ARNDT’S ITO AND TESTIMONY [ 27 ] Detective Arndt was cross-examined at length with respect to why and how he put together his application and what he wrote in the Information to Obtain a Search Warrant, which he swore on April 16, 2011. At times his testimony was clear and concise. However, this was not true of all of his evidence.

There were times when he became argumentative with counsel for Marcus Baird and times when he would not answer the question put to him, attempting to justify something he had said or done, rather than answering the question. [ 28 ] Additionally, there were times when Detective Arndt’s answers were simply not believable. When asked if he had quoted Detective Bevan correctly in using “hot to the touch” instead of “warm to the touch”, he immediately stated that it was unfortunately an inappropriate word used by him, but that it didn’t change anything. However, this was not simply an inappropriate word used by him.

What Detective Arndt did was deliberately exaggerate what he had read in Detective Bevan’s narrative.

The only possible explanation is that Detective Arndt did it to bolster his case to get the warrant signed; but he would not readily admit to this when he testified. [ 29 ] When Detective Arndt was shown Exhibit #1, Constable Aessie’s photos from the first search, and asked to point out the black cotton hoody that he had stated in paragraph 20 could be seen in the back seat of the car, his answer was, “. . . photo 22, underneath the corner of the jacket appears to be what could be a cotton hoodie, what I believe to be a cotton hoodie . . .” Counsel then asked, “What you see on the bottom of that photograph is a black object, right?” Detective Arndt then answered, “A black piece of clothing that I believe to be a cotton hoodie.” [ 30 ] When Detective Arndt was confronted with the fact that the black jeans and black cotton hoody which he had sworn to seeing in the front of Marcus Baird’s vehicle, as well as in Constable Aessie’s photos, were in fact not there, Detective Arndt justified his choice of words by stating that: I phrased the entire document as I believe this is what I’ve seen and this is what I’ve learned and this is what I’ve done.

If I was to say “I Believe” at every paragraph, that would become quite redundant, wouldn’t it? [ 31 ] However, Detective Arndt’s choice of words in paragraphs 20 and 24, were in the first person and were stated with absolute certainty; when read by the authorizing justice, they would not have left any doubt about these two items in the reader’s mind. What Detective Arndt wrote was not accurate; it was a deliberate embellishment. There is no other explanation for what he wrote. [ 32 ] When it was put to Detective Arndt that his

summary of Lynxleg’s description of her assailant included every detail she gave, except for the one word, “Caucasian” which would have appeared to exclude Marcus Baird as a suspect, he stated that he didn’t choose to omit it, but also could not explain why it happened.

Given the concerns the Court with respect to Detective Arndt’s credibility, the Court must conclude that there was nothing accidental about this omission. [ 33 ] Detective Arndt chose not to mention that after the first search of Marcus Baird’s vehicle, there had been an unsuccessful attempt to get a search warrant for his residence, specifically to look for a video camera and memory card, which had not been found in the car. Detective Arndt made observations about the tire tread on Marcus Baird’s vehicle without disclosing that he had no training in this area.

Detective Arndt left the impression that Marcus Baird’s incarceration was due to being convicted of the April 16, 2011 sexual assault allegations. [ 34 ] Detective Arndt acknowledged that he drafted his application over a period of time; it was not rushed as Marcus Baird was in custody and his vehicle was impounded and not going anywhere. However, he did not take the time to read the contents of the first

Information to Obtain a Search Warrant, did not check to see if that search had been followed up with a Report to a Justice (and read it),did not go back to read the original DNA report after being given contradictory information by an officer who was not even responsiblefor receiving and cataloguing the reports, did not go back to re-read Detective Keith’s sworn Information to Obtain a Search Warrantwhen given contradictory information by him in a subsequent conversation, did not attach either of the photo books to his sworn ITO,after drawing conclusions from his viewing of the photographs, and did not take the time to speak to most of the officers whosenarratives or notes he relied on. [35] Detective Arndt did overstate how many complainants had mentioned their assailant using a knife during the April 16, 2011incidents.

Detective Arndt wrote that the DNA found on the hoody near the scene of the February 26, 2011 incident was definitelyMarcus Baird’s DNA, when that was not what the expert’s report or follow up email had stated. Detective Arndt, without any expertisein the area, stated that he believed that tire tread from Marcus Baird’s vehicle matched what he could see in Constable Lisi’s photos ofthe tire tread impressions left near the scene of the crime.

Detective Arndt was wrong; the expert from his own Police Service said sosubsequently. [36] What Detective Arndt did was to create a sworn document which painted a picture of Marcus Baird being a sexual offender whomust have committed the alleged sexual assault on April 5, 2011. However, the actual strength of the police evidence at the time of thesigning of the ITO was significantly less than what he would have the authorizing justice believe. All uncertainties or contradictions hadbeen removed from the picture Detective Arndt created.

This was a reckless disregard for the truth; it was simply not a case of full, fairand frank disclosure. When counsel for Marcus Baird concluded his lengthy cross-examination, he suggested to Detective Arndt that hehad not fulfilled his responsibility of providing full, fair and frank disclosure for the authorizing justice to review. It is telling that in spiteof all of the errors and omissions that Detective Arndt had just acknowledged in his testimony, he answered that he believed that he hadprovided full, fair and frank disclosure.

APPLICATION OF THE LAW [37] Counsel for Marcus Baird argues that his Charter right to protection from unreasonable search and seizure, as set out in section8, was breached in this particular case.

The accused bears the onus, on a balance of probabilities, of satisfying the reviewing judge that asearch warrant should not have been granted; his counsel has argued that there is not sufficiently reliable and believable evidence uponwhich a search warrant could have been issued. [38] The Crown has argued that the Court should simply fix the honest mistakes made by Detective Arndt by excising the errors orfaulty information from the sworn document, and inserting the correct word, if necessary.

What will be left in the end will still be ampleevidence upon which an authorizing justice could have issued the search warrant. As the Supreme Court of Canada has set out inR. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, this then answers the question, and the warrant and resulting seizureremain valid. If there had been a typographical error or two or a wrong word used in one or two places, this would have been the correctapproach for this Court to take and the correct conclusion for the Court to draw. [39] However, as the Court has found, there is something far more fundamentally wrong with this ITO.

The errors or inaccuraciespointed out pertain to crucial parts of this ITO, that is, the attempt to tie Marcus Baird and his vehicle to this particular alleged sexualassault. Simply amplifying the record or deleting a phrase or two will not adequately rectify the damage done in how those crucialparagraphs have been put together. The Court has found that there was a significant amount of misleading information and thosestatements or paragraphs must be excised in their entirety.

Without the description of the suspect from April 5, 2011 incident, no DNAlink to Marcus Baird, no evidence about matching tire treads or a vehicle that may have recently been used, and no reference to blackjeans or a hoody found in the car or seen in the Ident. photos, what is left is that: 1. The police, on April 5, 2011 received a complaint of a sexual assault having just occurred. Shortly thereafter, an officer went toMarcus Baird’s apartment and found wet tire tracks by his vehicle, without any indication of how much earlier they had been made. 2.

The police arrested Marcus Baird on April 16, 2011 as a result of some allegations concerning sexual assaults that had just takenplace a few hours earlier. 3. Marcus Baird’s vehicle was seized at that time and the police obtained a search warrant to search the car. The police found andseized a manual for a video camera and packaging for a memory card and would now like to search the car again for the camera andmemory card.

As well they would like to search for certain clothing items and take some tire tread impressions. [40] Are these reasonable and probable grounds upon which an authorizing justice could issue a search warrant?

This Court findsthat on a balance of probabilities, counsel for Marcus Baird has established that there would be no basis on which an authorizing justicecould have issued a warrant. [41] If the Court is wrong in this conclusion, there still remains the question of whether this finding of a reckless disregard for thetruth is such that this warrant should be set aside to protect the judicial process and what it seeks to prevent. The Supreme Court ofCanada, in R. v.

Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, stated that “The legal obligation on anyone seeking an ex parteauthorization is full and frank disclosure of material facts.”; and, “A corollary to the requirement of an affidavit being full and frank isthat it should never attempt to trick its readers.” [42] The Manitoba Court of Appeal, in R. v. Gordon, (1999), (MB CA), 139 C.C.C. (3d) 239, quoted withapproval the principles set out in a Nova Scotia Court of Appeal case called R. v. Morris, (1998), 1998 NSCA 229 , 134 C.C.C.(3d) 539.

Principle (3) is quoted as follows: Fraudulent or deliberately misleading material in the information does not automatically invalidate the warrant. However, it may havethis effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the priorauthorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleadingmaterial should be excised from consideration.

CONCLUSION [ 43 ] This Court has found that there was reckless disregard for the truth in Detective Arndt’s sworn application. The inaccuracies, misstatements, embellishments and exaggerations are such that they permeate the entirety of the document. It can be fairly characterized as an attempt to trick the reader into drawing a conclusion that simply would not have been there if there had been full, fair and frank disclosure. This Court, therefore, finds that this was an unreasonable search and seizure.

This was serious Charter -infringing state conduct and was a clear breach of Marcus Baird’s Charter -protected interests. As well, in considering society’s interests in an adjudication on the merits, in these circumstances the truth-seeking function of the criminal process would be better served by the exclusion of the evidence obtained in this search. [ 44 ] This Court finds, therefore, that the April 16, 2011 search warrant is invalid and anything seized as a result of this search is not to be admitted into evidence against Marcus Baird. Original signed by Judge R. Heinrichs P.J.