2017 MBPC 40, 2017 MBPC 40

Cite: 2017 MBPC 40 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Vanderhooft and ) M. Lavitt, - and – ) for the Crown ) Guido Paul Amsel, ) S. Zaman and Accused ) J. Kostiuk, ) ) ) ) for the Accused Judgment delivered: September 22, 2017 ) TRACEY LORD, P.J. Ruling on Validity of the DNA Warrant Introduction [ 1 ] This is a sub facial challenge to the DNA warrant authorizing the taking of a blood sample from the accused. The applicant Mr. Amsel seeks to challenge the sufficiency of the evidence before the issuing judge, alleging a breach of

section 8 of the Canadian Charter of Rights and Freedoms (the “ Charter” ) and the exclusion of the resulting evidence obtained pursuant to section 24(2) . [ 2 ] The applicant alleges that the Information to Obtain the DNA warrant contained misleading information as a result of a material non-disclosure by the affiant, and that the non-disclosure should result in the excision of certain material from the Information to Obtain. [ 3 ] The applicant further submits that after the excision of the offending material, the Information to Obtain would be incapable of supporting reasonable and probable grounds to believe that Mr.

Amsel was a party to the offences alleged. [ 4 ] The applicant also alleges bad faith on the part of the affiant in the form of willful blindness leading to plausible deniability of the existence of certain relevant information, and ultimately the strategic non-disclosure of that relevant material in the Information to Obtain. [ 5 ] For either, or both, of these reasons the applicant says that the warrant should be quashed. Without a valid authorization, the taking of the DNA sample from Mr. Amsel would be an unreasonable search and seizure and a breach of

section 8 of the Charter ; a breach that the applicant submits should result in the exclusion of the blood sample pursuant to Charter section 24(2). Facts as established by the materials filed [ 6 ] On July 3, 2015 an improvised explosive device (“IED”) exploded at the Law offices of Peterson King located at 252 River Avenue. The explosion seriously injured lawyer Maria Mitousis. Ms. Mitousis was legal counsel for the accused’s former wife. [ 7 ] On July 4, 2015 Mr. Amsel was arrested with respect to a number of offences relating to that explosion.

Upon his arrest, his hands and face were swabbed for the presence of compounds commonly used in the making of explosive devices. [ 8 ] On July 5, 2015 the swabs were tested for the presence of such compounds using an Ion Mobility Spectrometry scanner. The result of the scan was a presumptive finding of Hexamethylene-Triperoxide-Diamine (“HMTD”), which is a compound commonly used in the manufacture of explosive devices. [ 9 ] The swabs were subsequently sent by Constable Neumann of the identification

section of the Winnipeg Police Service

(“WPS”) to the Royal Canadian Mounted Police (“RCMP”) Forensic lab for further confirmatory testing. [ 10 ] Detective Ravi Misir of the WPS was tasked with the preparation of a number of Informations to Obtain various warrants and authorizations with respect to this investigation, which soon encompassed other similar packages that arrived at the law offices of Mr.

Amsel’s former lawyer, as well as his former wife’s place of business. [ 11 ] On August 24, 2015 Detective Misir learned that a sample of biological material obtained from an item associated with the explosive device delivered to 252 River Avenue contained a DNA profile of an unknown male that was suitable for forensic analysis. [ 12 ] An Information to Obtain a DNA warrant was sworn by Detective Misir on August 26, 2015, with the warrant, which is at issue in this motion issuing the following day August 27, 2015. [ 13 ] The Information to Obtain referenced the results of the ion scan done on the swabs from the accused’s hands as being positive for the presence of HMTD as well as the significance of this finding as it relates to explosive devices. [ 14 ] On August 25, 2015, the day prior to the Information to Obtain being sworn, a report authored by Dr.

Nigel Hearns of RCMP Forensic Services was sent to Constable Neumann of the WPS by RCMP Forensic Science and Identification Services. (applicant’s book of materials Volume 1 Tab 2) The report concluded that no explosive residues were found on the swabs taken from the hands and face of Mr. Amsel. [ 15 ] The notes of Constable Neumann at Volume 2, Tab 1of the applicant’s materials indicate that he retrieved a hard copy of this report from his Sergeant’s office on the morning of August 28, 2015 and scanned the report into the police data base.

Constable Neumann had no entries in his notebook between August 20 th and August 28 th , 2015. [ 16 ] The information contained in the RCMP report was not included in the Information to Obtain the DNA warrant submitted by Detective Misir. It is the omission of this information that is the focus of this application. [ 17 ] Leave was granted to cross-examine Detective Misir on the issue of his knowledge of, or his ability to have knowledge of, the existence of the RCMP Forensic Services report dated August 25, 2015, and/or its content. Evidence of Detective Misir [ 18 ] Detective Misir is a member of the WPS.

At the time of this investigation he had 15 years experience, and was the Major Crimes Coordinator. The majority of his duties were centered around the preparation of documents to obtain warrants and judicial authorizations. [ 19 ] Detective Misir was responsible for the many applications for judicial authorizations in this investigation. He drafted the Information to Obtain for the DNA warrant that is at issue in this application. [ 20 ] Detective Misir gave evidence as to his understanding of his duties as an affiant. It is clear that he is both familiar with, and understands his duties.

He described his duty to make full, fair and frank disclosure of all relevant facts and material in the Information to Obtain, whether helpful to the police investigation or tending to show the innocence of the accused. [ 21 ] He confirmed that it is his decision, and his alone, as to what information is included in an Information to Obtain for a warrant that he submits. [ 22 ] Detective Misir described the method that he uses when drafting an Information to Obtain. He does not keep separate notes, nor does he prepare a police narrative of his work.

His involvement is documented in the Information to Obtain itself which he described as a running record of the information he receives and retrieves. [ 23 ] According to Detective Misir, when he prepares an affidavit to apply for a judicial authorization he receives his information from various sources; through contact from officers involved directly in the investigation, in briefing sessions with supervisors of the investigation, from experts consulted by the police service and the police computer data base which contains officers’ reports as well as relevant forensic reports. [ 24 ] His usual practice is to input the information he receives directly into the document that eventually becomes the Information to Obtain. [ 25 ] Detective Misir testified that he is also alerted to the existence of information relevant to an investigation by other officers, such as when a document of interest is available for his review on the police computer data base.

He then is able to retrieve that document for his own review and incorporate that information into his affidavit if relevant to the issue at hand. [ 26 ] Detective Misir agreed that he is also able to initiate contact with officers himself for updates, as well as contact experts from whom the service is awaiting reports. [ 27 ] With respect to this investigation specifically, his evidence was that he began collecting information on July 4, 2015, and continued to receive and enter information from various sources, as it became available, into a document as a running record from which to prepare Informations to Obtain various authorizations. [ 28 ] Entries in the Information to Obtain with respect to his receipt of information relevant to this authorization were made on July 4, 5, 7, 9, 21, 29 and 31, 2015, as well as August 6, 12, 19, 20 and 24, 2015, the day on which he focussed his efforts on preparing the Information to Obtain the DNA warrant. [ 29 ] On cross-examination regarding the inclusion of the information about the positive presumptive swab testing in the

Information to Obtain, Detective Misir agreed that he did not include the word presumptive in his description of the test. He also agreed that he was aware of the possibility of false positives and false negatives when using presumptive testing, and that further analysis of the items was required.

He agreed that he also did not include this information in the Information to Obtain. [ 30 ] Detective Misir said that despite this, in his view the results of a presumptive test are still factual and are a starting point for further investigation. [ 31 ] Detective Misir said that he was not aware of the RCMP Forensic Services report dated August 25, 2015 at the time he prepared and submitted the Information to Obtain the DNA warrant. [ 32 ] While he was aware that the swabs had been sent to the lab for the further required analysis, he had not spoken to Constable Neumann or anyone at the RCMP lab to obtain an update about the completion of the testing or results of the further analysis. [ 33 ] He testified that he became aware of the report at issue towards the end of August 2015, when he noted that it had been entered onto the police computer data base. [ 34 ] Detective Misir has since checked the data base and noted that the report had been entered onto the system on August 28, 2015, which accords with the information contained in the notes of Constable Neumann.

Conclusion [ 35 ] I am satisfied by the testimony of Detective Misir, and the materials filed on the application that he did not know of the existence of the RCMP Forensic Services report dated August 25, 2015 at the time he submitted his Information to Obtain.

Further, I am satisfied that he was not in a position to know of its existence until Constable Neumann received the report on August 28, 2015, two days after the Information to Obtain was sworn. [ 36 ] I am satisfied that Detective Misir was diligent in the preparation of the Information to Obtain and discharged his duty as an affiant to make full, fair, and frank disclosure of relevant evidence known to him at the time.

I do not accept that he acted in bad faith by deliberately failing to make inquiries about the outstanding report, in order to create a situation of plausible deniability. [ 37 ] I am satisfied that the statements in the Information to Obtain regarding the presence of HMDT on the swabs taken from Mr.

Amsel are factually correct and not misleading based on the information known to the officer at the time. [ 38 ] As a result, I am not prepared to excise reference to it from the Information to Obtain. [ 39 ] While not relevant to the affiant’s knowledge at the time of the request for the warrant, it should be mentioned that the potential for accuracy of the presumptive test has since found support in the subsequent report of Dr.

Nigel Hearns of the RCMP dated September 7, 2017, in which a possible explanation for the differing results is provided. [ 40 ] The Information to Obtain remains as it was before the issuing judge at the time the warrant was granted. As there is no challenge to the sufficiency of the intact Information to Obtain as it was before the issuing judge, there is no need, as the reviewing judge for further evaluation. [ 41 ] Having also found no evidence of bad faith on the part of the affiant Detective Misir, the warrant will not be quashed, and remains a valid authorization.

That being the case, the DNA sample taken from Mr. Amsel was not taken in breach of

Section 8 of the Charter . [ 42 ] The applicant’s motion to quash the warrant is dismissed. “Original signed by” TRACEY LORD, P.J.