R. v. Kulathungam, 2021 MBPC 43

CITATION: R. v. Kulathungam, 2021 MBPC 43 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Michael Desautels, ) ) for the Crown - and – ) ) Shane Kulathungam Accused ) ) ) Edward L. Burlew, for the Accused ) ) ) Reasons for Decision ) Delivered: September 16, 2021 KRAHN, A.C.J. INTRODUCTION [ 1 ] Shane Kulathungam is charged with a number of offences related to the seizure of firearms from his residence. He challenges the warrant which authorized police to search his residence. In essence, he argues his

section 8 Charter right to be free from unreasonable search and seizure was breached because the grounds in the Information to Obtain (ITO) the search warrant did not meet the reasonable grounds standard. He raises additional arguments challenging the way in which the search and seizure proceeded. This is my decision on the voir dire on the search issues. THE FACTUAL CONTEXT [ 2 ] The factual context before me is not complex. The following is a

summary of the information in the ITO. [ 3 ] The Winnipeg Police Service was investigating a fatal shooting at a nightclub which occurred on November 2, 2019. On November 7, 2019 the police stopped and arrested a suspect. In searching a vehicle incident to that arrest, police located a handgun, a Magnum Research Desert Eagle Mark XIX. The serial number was not tampered with and was easily retrieved by police. They searched their records and found the handgun was registered to the accused, Shane Kulathungam. The registration and licence required the handgun be stored at Mr.

Kulathungam’s residence at 31 Marine Drive in Winnipeg, Manitoba. They conducted checks and determined the firearm had not been reported lost, missing or stolen. The police determined that Mr. Kulathungam had a total of 22 restricted firearms registered in his name at the same address on Marine Drive. [ 4 ] A Winnipeg Police Service Firearms Investigative Analysis officer said restricted firearms can only be used for target shooting or collecting. Police learned a person who possesses such a licence must take a specialized course before being granted the licence.

This course educates the licence holder, amongst other things, of the requirement to report any lost or stolen firearms. Police concluded, because the Magnum Research Desert Eagle handgun was not being properly stored in the home of the licence holder, they were concerned that his other firearms might also not be properly stored. They sought and were granted a public safety warrant pursuant to

section 117.04(1). It is this warrant that Mr. Kulathungam argues was issued without the requisite grounds being set out in the Information to Obtain the warrant. THE LEGAL CONTEXT [ 5 ]

Section 117.04 of the Criminal Code requires a justice to be satisfied there are reasonable grounds: i.) to believe a person possesses a weapon, which is defined as including a firearm in

section 2 of the Code, in a building, receptacle or place; and

ii.) it is not desirable in the interests of the safety of the person, or of any other person for the person to possess the weapon. [6] There is a presumption of validity when a warrant is authorized by a judicial officer based on a sworn Information to Obtainthe warrant, see R. v. Pilbeam, 2018 MBCA 128 at para. 6-8, R. v. Collins (1989), (ON CA), 48 CCC (3d) 343 (Ont.C.A.) at 356. This gives rise to a deferential standard that must be applied by a reviewing judge. The Supreme Court of Canada has setout the reviewing standard in R. v.

Garofoli, (1990) (SCC), 2 S.C.R. 1421 at 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [7] Mr. Kulathungam bears the burden to prove, on balance, that the grounds in the warrant were insufficient and did not amountto reasonable grounds, Pilbeam at para. 6, R. v. Campbell, 2011 SCC 32 (S.C.C.) at para. 14. Mr.

Kulathungam has sought to dischargethat burden by filing the Information to Obtain the warrant (with minor redactions), reports to justice and some police officers’ notes. No viva voce evidence was led on the voir dire. [8] As the reviewing judge, I am required to consider the totality of the circumstances and not engage in a piecemeal assessmentof individual pieces of information, Pilbeam at para. 7, R. v. Beauchamp, 2015 ONCA 260 (Ont. C.A.) at para. 85). So while I haveanalyzed the individual arguments raised by Mr.

Kulathungam, I have not lost sight of the requirement to make a “practical, non-technical, and common-sense” assessment of the totality of the circumstances, Pilbeam at para. 7, quoting R. v. Whitaker, 2008 BCCA174 (BC CA). [9] The reasonable grounds standard has been described as when “credibly based probability replaces suspicion”, Canada(Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., (SCC), [1984] 2 S.C.R. 145(S.C.C.) at 167).

It is a fact-specific assessment of the grounds relied on by police and whether those grounds could be found by ajudicial officer to be reasonable that must be made on the facts as presented before me. The standard of review is deferential to theauthorizing justice who issued the warrant. Did the information in the ITO not meet the reasonable grounds standard? [10] Mr. Kulathungam argues the grounds did not disclose any connection between him and the criminal activity police wereinvestigating. He says there must be such a connection for reasonable grounds to be established.

He says the police should haveexplicitly stated in the ITO there was no connection between the persons arrested in possession of the handgun and Mr. Kulathungam. He says there were no grounds to establish his other firearms were being stored unsafely. He says on an objective basis, it was possiblethat Mr. Kulathungam was the victim of theft, but was not yet aware the theft had occurred. He argues the ITO did not contain astatement that Mr. Kulathungam’s present possession constituted a danger to self or others. [11] I do not accept any of these arguments. It must be remembered this was a public safety warrant.

Section 117.04 does notrequire Mr. Kulathungam be connected to criminal activity – contrast this with a Criminal Code

section 487 search warrant, whichrequires there to be some connection between the items to be seized and a criminal offence. This was clearly held by the Ontario Courtof Appeal in R. v. Hurrell, (ON CA) at paragraph 31:

Section 117.04(1) is not offence-based legislation. It does not involve a search for evidence designed to show that a criminal offence hasbeen or is being committed, nor does it place the liberty interest of the subject at risk. Rather, s. 117.04(1) is preventative in nature. Itsprimary purpose is the prevention of serious injury and death resulting from the use of firearms and other dangerous objects. [12] There is no dispute the police had reasonable grounds to believe Mr.

Kulathungam was supposed to be in possession of 22restricted firearms because he was licenced to possess these at his residence – the first requirement for the public safety warrant. Thereal issue is whether there was sufficient information to conclude it was contrary to his or others’ safety for him to continue to be inpossession. Clearly, the one handgun that should have been locked in Mr. Kulathungam’s residence was not.

It is not disputed thehandgun was found in possession of those who appeared to be involved in a deadly, criminal conflict where there had already been a fatalshooting. [13] A judicial officer is entitled to make reasonable inferences based on the facts set out in an ITO; R. v. Vu, 2013 SCC 60 at para.16, “the informant need not underline the obvious: (citations omitted)”. In this ITO there is no suggestion Mr. Kulathungam wasinvolved in the criminal conflict or investigation. It did not need to be explicitly stated.

In my view, it was obvious there was no suchconnection because the affiant in no way suggested there was a connection. [14] Mr. Kulathungam says the police did not negate the possibility that he had been the unwitting victim of theft. I accept theassertion by the Alberta Court of Appeal in R. v. Ha, 2018 ABCA 233 at para. 34, “the presence of other possible, plausible, innocentexplanations for police-observed behaviour does not legally or automatically negate credibly-based probability, that is, reasonable andprobable grounds.” The police did not need to eliminate the possibility Mr.

Kulathungam had been the victim of theft. However, even ifit was true that Mr. Kulathungam’s rather extensive, restricted firearm collection had been the subject of theft, unbeknownst to Mr.Kulathungam, this would still raise a significant public safety concern. Such a possibility could mean that numerous firearms were nowabout in the community, and not in the locked, controlled environment which his firearm licence required. This would certainly raisesignificant concerns for the safety of others - a prerequisite for the

section 117.04 warrant. I conclude it was certainly open to theauthorizing justice to conclude the ITO established reasonable grounds. Did the police use the public safety warrant to unlawfully gather evidence and pursue a criminal investigation? [15] Mr. Kulathungam argued there was a material non-disclosure in the ITO. The affiant did not disclose police intended to arrestMr. Kulathungam. He was arrested at 1:45 pm on November 8, 2019, as noted in Officer Fowler’s notes and narrative report (attached

at Tab F of the defence legal brief). Cst. Fowler’s notation says Mr. Kulathungam was arrested for failure to report firearms lost orstolen (an offence pursuant to

section 105 of the Criminal Code). Mr. Kulathungam argues this demonstrates that the police wereconducting a criminal investigation which undermines the public safety warrant. He asserts this establishes the police were erroneouslyusing a public safety warrant to gather evidence in a criminal case. He does not offer any legal authority to support this position. [16] The law requires the police or a judicial officer to ask, is the search authorized by law? There can be a number of legal avenuesof investigation, which overlap and co-exist.

The fact police chose one investigative tool over another, is not a violation of Chartersection 8, in itself. The question that must properly be asked is, did police stay within the parameters of the law that authorized thesearch or detention? [17] In Brown v. Durham Regional Police Force, (ON CA), the police used regulatory highway traffic provisionsto stop members of an “outlaw” motorcycle club. The evidence before the Court established the motorcycle club would host socialgatherings where large numbers of people would attend a small, rural town and be disruptive to public peace.

In addition to highwaysafety concerns, police used the opportunity for the maintenance of the public peace, to investigate other criminal activity and gatherintelligence about the associations and identity of club members. The Court held as long as the other purposes motivating the highwaystops were not themselves improper, the fact the police had other law enforcement motivations, did not invalidate the police stops undervalid provincial traffic legislation. [18] Similarly, in R. v.

Nolet, 2010 SCC 24 the Supreme Court directed courts to proceed step by step to analyze whetherpolice stayed within the bounds of the authorizing regulatory provisions – in that case, commercial vehicle transport provisions. InNolet, the police were also alive to the possibility the driver was transporting illegal (criminal) contraband. In a similar vein, the Courtrejected the argument that police had time to seek a search warrant and therefore should not have searched the sleeper birth of the truckpursuant to the common law warrantless search incident to arrest power (at para. 52).

These cases stand for the proposition that policeconduct must remain within the authorizing provision or lawful authority. They do not stand for the proposition that police ought tohave chosen a better, more appropriate tool from their lawful authority tool box – for example, a search warrant rather than searchingincident to arrest. [19] On the evidence presented to me on this voir dire, there is no basis to conclude police were using a public safety warrant togather evidence to further a criminal investigation. I accept the Crown’s position the arrest of Mr.

Kulathungam for failing to report afirearm lost or stolen, could co-exist with a valid public safety concern for the integrity of a significant gun collection. Was there material non-disclosure such that the search warrant should be invalidated? [20] This leads me to the second part of this argument – was the failure to alert the judicial officer of the intention to arrest Mr.Kulathungam material non-disclosure? [21] In Canadian Broadcasting Corp. v. Manitoba (Attorney General) et al., 2009 MBCA 122 at paragraph 57 the Courtsummarized the law on material non-disclosure.

The principles relating to material non disclosure and its impact on the validity of asearch warrant can be summarized as follows: 1. The investigator is under “a special duty to bring all relevant information to the attention of the issuing justice of the peace”(Scott C. Hutchison, James C. Morton & Michael P. Bury, Search and Seizure Law in Canada, looseleaf (Toronto: Thomson ReutersCanada Limited, 2005) vol. 1 at 16-16.2). The “informant must not omit, colour, withhold or distort material facts” (id., at p. 98). Seealso, Araujo, at para. 46.

This is often described as the duty to bring full, fair and frank disclosure of all material facts. 2. But even a deliberate error is not automatically fatal to the warrant. The Court must determine whether the error was suchthat it was subversive of the judicial authorization process. (R. v. Araujo, 2000 SCC 65 at para. 54, quoting R. v. Morris (1998) 1998NSCA 229 ) 3. The erroneous material should be removed and the remainder of the information in the ITO examined to determine, whethervalid grounds remain to support the warrants issuance. 4. The evidence on review can be amplified to explain the error. 5.

If there is an unintentional omission, the reviewing judge should consider whether the omission left the issuing justice withan incorrect impression or an insufficient basis to issue the warrant. [22] I find there is no basis in the police notes and information presented to me to conclude the police were strategically withholdinginformation. While it was not in the notes or materials filed by Mr.

Kulathungam in support of his Charter search challenge, the Crownstipulated during the course of argument that the affiant dropped off the Information to Obtain the public safety search warrant at thecourthouse at 12:25 pm. Mr. Kulathungam was arrested at 1:45 pm. The authorized public safety warrant was picked up by police at2:40 pm. Some of the officers’ notes filed in the application before me describe “T1” (which I conclude refers to Target 1) being Mr.Kulathungam and “L1” (which I conclude refers to location one or in some notes, “TL”, (target location) at 31 Marine Drive.

Thesenotations occur one after the other. Officer Fowler’s notes indicate his unit was assigned to be the “takedown” unit in regards to afirearms investigation. Officer Thimm noted T1 “was surveilled away from residence and taken into custody.” [23] I accept from the notes and the Crown’s concession, the police intended from the outset to arrest Mr. Kulathungam and thiswas not disclosed to the authorizing justice. The arrest of the accused, Mr. Kulathungam is not subversive or undermining of thegrounds in the application for the public safety warrant.

Officer Thimm noted, “Guns and gangs applying for public safety warrant toconfirm firearms, proper storage and documentation.” The arrest of Mr. Kulathungam does not weaken the grounds to believe hislicenced firearms should be at Marine Drive, as required by the licences. The arrest of Mr. Kulathungam did not weaken the publicsafety grounds as it was still true that one of his firearms had been found in possession of a criminal suspect and not in his residencewhere it should have been. His firearms licence required all of the firearms to be at 31 Marine Drive.

I am not convinced the arrest wasrelevant to the public safety warrant based on the criteria set out in

section 117.04 of the Criminal Code. I find these two processes can

co-exist without being in conflict with each other. [24] I do not have any information or evidence before me to explain why police did not mention to the issuing justice their intentionto arrest Mr. Kulathungam. As a best practice, this could have been included to prevent the challenge they were not being fully frank inthe ITO. And yet, the law requires police officers to include information that is material and relevant, but not every detail. I haveconcluded the grounds for the warrant existed irrespective of the arrest. The failure to include this information does not amount to abreach of

section 8 as it was not subversive of the judicial authorization process. Was the police request of Mr. Kulathungam for pass codes a breach of

section 8? [25] Mr. Kulathungam says police subjected him to an unreasonable search when they asked him for the passcode to his garage andthe combination to a gun safe found in his garage. He also argued the police asked him for this self-incriminating information before hehad spoken to counsel. I agree with counsel for the Crown, the motion filed alleged only

section 8 search violations. A breach of theright to counsel was not alleged. Further, the notes and narrative report of officer Fowler filed by the defence establish Mr. Kulathungamwas advised of his right to counsel and declined to speak to a lawyer. There is no evidence before me to establish a breach of a right tocounsel, even if it had been pled. [26] The Crown responds they will not be relying on the passcodes as apparently provided by Mr. Kulathungam for police to enterboth his garage and the gun safe.

The Crown argues the police asked for the passcodes to prevent any property damage to the accused’sresidence or an expensive gun safe. I accept the police would have been entitled to cause such reasonable damage in order to execute thewarrant that had been authorized, (see R. v. Thompson, 2010 ONSC 2862 for a helpful review of how extensive property damage cangive rise to a warrant being executed in an unreasonable manner, thereby breaching

section 8.). I note a number of the officers’ notesreveal no damage was caused in the execution of this warrant. I distinguish the case before me from the analysis by the Court in R. v.Talbot, 2017 ONCJ 814 where the police request for an assistance order requiring the target of the search to reveal the passcode to adigital device was considered. Different criteria are at play when the search of an electronic device is at issue. The law requires thepolice to execute a warrant in a reasonable manner (R. v. Collins, (SCC), [1987] 1 SCR 265).

It seems reasonable to meto ask for a key or a passcode to enter a location before executing the warrant where that is available in the circumstances rather thancause damage. I do not find a breach of

section 8 or that such a request amounts to an unreasonable search. Did police have lawful authority to detain the firearms seized at 31 Marine Drive? [27] A few additional facts should be outlined to provide a proper context for the consideration of the issues raised. Police executedthe public safety search warrant and found most of the firearms registered to Mr. Kulathungam. Two firearms were not in the residenceand Mr. Kulathungam provided an explanation as to the sale of these two firearms.

Based on the information outlined in the legal briefs,I understand this explanation to have resulted in a public mischief charge that is still proceeding to trial in October. Police also locatedbrass knuckles, the subject of a criminal charge (possess prohibited device without a registration certificate) which will proceed to trial inOctober. [28] The affiant asserts in the information to obtain, that if they find other weapons, unregistered, prohibited or restricted firearms orprohibited devices, not listed in the warrant, a further

section 487 search warrant will be sought. This was not done. Mr. Kulathungamconnects this with his assertion the police were required to proceed to have a disposition hearing pursuant to

section 117.05. Since policedid not proceed with a disposition hearing, he argues, the 117.04 seizure of firearms is “abandoned”, anything seized is therefore withouta warrant and all of the firearms and items seized should be returned. He argues further not all of the seized firearms are subject tospecific charges before the court, so they should not have been detained. In other words, some the firearms seized were being properlystored as required by his licence. [29] The Crown responds the police reported all of the seizures to a justice and sought a detention order pursuant to

section 490. This was granted by the issuing justice. The report to justice identifies the seizures were made pursuant to the 117.04 public safetywarrant and

section 489 of the Criminal Code.

Section 489 of the Code allows police, if they are lawfully in a place, to seize any itemswhich they have reason to believe are evidence of an offence or have been used in the commission of an offence. The Crown concedesthe police ought not to say they will do something in an ITO and then not do it, but they were not legally required to seek a further 487warrant, as they could seize the brass knuckles pursuant to

section 489. The Crown further responds the police were not required toproceed to have a 117.05 disposition hearing as once the seizure of brass knuckles occurred and the police failed to locate two furtherfirearms that should have been in the residence as required by Mr. Kulathungam’s licences, the basis for the criminal charges was made. The police choice to proceed to have all items detained pursuant to

section 490 was proper. The Crown will rely on the seizure of thefirearms seized within the home to ask the Court to make inferences as to knowledge of the missing firearms at the trial of this matter,therefore the detention of all of the items was justified as they relate to the ongoing prosecution. [30] I agree with and accept the position of the Crown.

Section 117.05 of the Code provides a route for police to seek a judicialorder for the disposition of property when there are no other criminal proceedings. See for example, R. v. Douglas, 2013 ONCJ 649where mental health concerns caused police to seize the applicant’s firearms and seek a disposition order pursuant to

section 117.05when no other criminal charges were laid. In this case, when evidence related to additional criminal charges presented themselves uponexecution of the warrant, the police were no longer required to proceed to a

section 117.05 disposition hearing, but could rely on thedisposition of property scheme in

section 490. Similar to the analysis above, there can be duplicate authorities to detain and disposewhich overlap. The choice to use

section 490 was logical and appropriate because criminal charges had been laid. There was no need toduplicate proceedings. [31] It also must be remembered that I am a reviewing judge and required to apply a deferential standard of review to the judicialofficer’s decision to grant the

section 490 detention order. This detention order allowed all seized items to be retained until the criminalcharges were completed. I have no evidence before me to question that decision, other than counsel’s submissions. There is nothing inthe police notes to suggest the seeking of the detention order was not proper or justified. Therefore, there was no breach of

section 8because police did not seek a disposition pursuant to

section 117.05.

Should the police have used a Firearms Act inspection rather than a public safety warrant? [ 32 ] Mr. Kulathungam argues the police should have allowed the Chief Firearms Officer to conduct an inspection pursuant to the regulatory provisions,

section 104 of the Firearms Act. He argues the police used

section 117.04 as a replacement “inspection.” He provides no legal authority to support this position. [ 33 ] The Crown responds the Firearms Act inspection requires notice to the firearms owner and the owner’s consent. If consent is not forthcoming, police can apply for a warrant.

In this case, the Crown says there were investigative imperatives for timeliness given the “serious guns” at issue and the need to verify the integrity of the collection quickly. [ 34 ] I have no evidence before me as to why the police chose to use a public safety warrant rather than a Firearms Act inspection to verify the integrity of Mr. Kulathungam’s firearms collection. I return to the point already made above (see Brown v. Durham Police, Nolet, supra ), different legal avenues may be available which overlap and co-exist. In this case, police complied with the legal requirements to obtain a

section 117.04 public safety warrant. There is no legal basis to conclude they should have proceeded with an inspection by the Chief Firearms Officer. The seizure of two firearms from Mr. Kulathungam’s car on November 15, 2019? [ 35 ] In the interest of completeness, I will mention, Mr. Kulathungam argued police unlawfully seized the two missing firearms from his car on November 15, 2019. Apparently, Mr. Kulathungam called police and told them he had located the two missing firearms and police could retrieve them from the trunk of his car, parked at his residence. Mr.

Kulathungam’s Charter application alleged police failed to report this seizure to the court and therefore the detention of these two firearms was not authorized. [ 36 ] The Crown’s material provided a copy of the detention order that was in fact made related to these seizures. Once this was pointed out during the course of argument, defence abandoned this argument. CONCLUSION [ 37 ] I have found police did have reasonable grounds to seek a public safety warrant.

They needed to confirm the remainder of a significant firearms collection was still lawfully stored at the Marine Drive residence, when a handgun that should have been at the residence, was found in possession of a criminal suspect. They properly sought the detention of all the firearms seized, when grounds for additional criminal charges presented themselves during execution of the public safety warrant. [ 38 ] I have not found any breach of

section 8 based on the evidence presented and the arguments raised. Therefore, there is no need to proceed to conduct an analysis pursuant to section 24(2) of the Charter and whether there should be any exclusion of evidence. “Original signed by:” A.C.J. KRAHN