2016 QCCQ 6153, 2016 QCCQ 6153

R. c. Picot 2016 QCCQ 6153 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-117194-156 DATE: March 14 th , 2016 ______________________________________________________________________ BY THE HONOURABLE DANIEL BÉDARD, J.C.Q. ______________________________________________________________________ Her majesty the Queen Respondent v.

David Picot Applicant ______________________________________________________________________ JUDGMENT ON A MOTION FOR EXCLUSION OF EVIDENCE OBTAINED FOLLOWING A SEARCH WARRANT (Sections 8 and 24(2) of the Charter ) ______________________________________________________________________ INTRODUCTION [ 1 ] David Picot, a young man of 30 years, was arrested on January 23rd, 2015, following a search warrant issued and executed the same day, in his apartment. [ 2 ] His judicial interim release was refused and the outcome was the same upon review of the order by the Quebec Superior Court.

Consequently he remains detained since his arrest. He also waived his right to a preliminary inquiry and a trial date was set. [ 3 ] Mr.

Picot faces twenty one charges that can be summarized as follows: possession of a detonator, a Norinco rifle, caliber 5.56 with an erased serial number, a Herbert-Schmidt revolver, a Simonov rifle (AK-47), a magazine and ammunitions, brass knuckles and nunchakus all without any permit and certificates. [ 4 ] The remaining accusations are related to drugs and include production of cannabis and possession for the purpose of trafficking of cannabis. [ 5 ] All of the above items were seized following the execution of the search warrant.

CONTEXT [ 6 ] On November 17th, 2015 the accused brought two motions before me, a motion for disclosure under sections 7 and 24(1) of the Charter and a motion for the exclusion of evidence obtained following the execution of a search warrant under

section 8 of the Charter . [ 7 ] Filed with the motion for disclosure was the letter sent to the Crown containing fourteen questions relating to the affiant and sub-affiant, police investigators in the file and also relating to the source. [ 8 ] The Court granted leave to cross examine the affiant and sub-affiant. Most of the questions outlined in the letter were answered except those permitting, according to the police officers, identification of the source. Objections of the Crown were thus maintained each time the answer would have permitted directly or indirectly identification of the source.

The questions and the answers provided will be dealt with in the motion for exclusion. [ 9 ] Finally, following arguments by defence counsel and prosecutor, the Court ordered on February 11th, 2015, disclosure of the source debriefing report after redaction, to ensure that the report did not include information which tended to disclose the identity of the confidential informant.

[ 10 ] On February 11th and 12th, 2016, the Court proceeded with the motion for exclusion. [ 11 ] At the beginning, the defence had in its possession relevant, non-privileged information needed by the accused to make full answered defence, more specifically all the fruits of the investigation, the redacted ITO, redacted source debriefing report, investigators reports and list of items seized. ISSUE TO RESOLVE [ 12 ] Considering the warrant is presumptively valid, has Mr.

Picot met his burden to establish that the authorizing judge had no basis to issue the warrant, more specifically did the information in the ITO amount to reasonable and probable grounds that evidence of an offence being committed would be found? [ 13 ] At this point, the Court notes that the defence challenged the ITO by argument without presenting additionnal evidence.

In the case at bar, innocence of the accused is not at stake, which implies that the informer privilege cannot be overridden by the right of the accused to full answer and defence. [ 14 ] The route chosen by the accused to meet his burden is a facial and sub-facial attack of the ITO, through a Garofoli process. ANALYSIS [ 15 ] The ITO prepared by the police officer Erik Lavallée, contains ten paragraphs set out in a page and a half. [ 16 ] Before the hearing on the motion, counsel for the accused already had been provided with a redacted ITO.

Counsel for the accused submits that the redacted ITO renders impossible any appreciation whatsoever as to the nature of the deletions. The prosecutor maintains that the deletions are necessary to protect the identity of the informer. It must be said at this point that the deletions are in paragraph 4 of the ITO and represent the equivalent of two phrases. [ 17 ] The Court held an ex parte hearing, read the deleted phrases, question police officer Lamartinière and was provided with a proposal for a judicial

summary as to the nature of the deletions. The testimony of officer Lamartinière concerning the informer, makes it impossible to go further. The phrase deleted on the second page is a replica of the phrase deleted in paragraph 4. [ 18 ] Counsel for the accused, with the judicial

summary in hand maintains that it is not sufficiently detailed and precise. [ 19 ] Leave to cross-examine the affiant and subaffiant is refused for the following motives. The Court granted leave to cross- examine the affiant and sub-affiant under the motion for disclosure. Questions concerning their disciplinary records showed they had none. They confirmed that the informant was paid and had in the past transmitted information leading to an arrest. [ 20 ] As for the credibility of the informant police officer Lamartinière confirmed that he was the one controlling the informant.

Furthermore, the redacted informant debriefing report was transmitted to counsel for the accused. [ 21 ] Consequently the Court is of the opinion that granting leave to cross-examine once more the affiant and sub-affiant would be a redundant exercise. [ 22 ] The judicial

summary is longer that the deleted phrases in the ITO and answers questions as to the quality of the information given by the informer. [ 23 ] In R v. Crevier [2015] ONCA 619, the Court provides, in paragraph 84, a long list of information items that can be contained in a judicial

summary, specifying at the same time that the list is illustrative only, neither prescriptive nor exhaustive. In the case at bar, the equivalent of two phrases are deleted from the ITO, consequently the judicial

summary cannot be anything other than short without jeopardizing the privilege of the informer. [ 24 ] The testimony of the police officer Lamartiniere clearly establishes the impossibility to provide more information in the judicial

summary and the Court is satisfied with the explanations provided. [ 25 ] The Court concludes that the judicial

summary, sufficiently informs the accused of the nature of the deletions and thus the right of the accused to full answer and defence is not at stake. [ 26 ] The prosecutor concedes that the edited ITO does not support the issuance of the warrant given the insufficient information to provide reasonable and probable grounds and asks the Court to consider the unredacted version. [ 27 ] Considering the totality of the disclosure, more specifically everything minus two phrases, the Court considers that the accused has enough material to challenge the issuance of the warrant, including a sub-facial attack that pertains to reliability. [ 28 ] The accused submits that the information originating from the informer is not compelling, credible and corroborated, in its totality.

The ITO does not include sufficient information as to the track record of the source, the motivations underlying his willingness to inform, his prior convictions if any, when the information was transmitted, his relation to the accused. Consequently the ITO does not represent a full and frank disclosure and does not contain sufficient grounds for issuance. [ 29 ] As outlined in R v.

Crevier at para. 76: “As mentioned, however, at step 6, the very details about the confidential informer that satisfied the Debot requirements are often contained in the redacted portions of the ITO.” [ 30 ] The accused further submits that the judge acted more as a rubber stamp considering the absence of reasonable and probable

grounds in the ITO. [ 31 ] Was the ITO, on its face (facial challenge) sufficient to warrant issuance? [ 32 ] The informer gave the description of the accused, his address, his cell number, description of his car, on which floor was his apartment, that he had dogs [ 33 ] The police investigation confirmed the looks of the accused, description of his car, place of entry for his apartment, driving permit.

An observation was made and confirmed that the accused had a crown tattooed on his forehead and entered his apartment by the backstreet door on the second floor. [ 34 ] The informer stated that the accused kept firearms and ammunitions in his apartment.

The investigation confirmed that the accused did not have any permit and certificate for possession of firearms. [ 35 ] The informer was a credible source having given information in the past that resulted in an arrest. [ 36 ] The above must be added to the deleted phrases that establishes credibility and compelling information. [ 37 ] When dealing with a facial challenge the Court examines the ITO, on its face, as outlined in Crevier in paragraph 73: “The court asks whether, by its terms, the warrant authorized the search and seizure and whether the authorizing judge , acting judicially, could have issued the warrant based on the contents of the ITO.” [ 38 ] Even if one can argue that the ITO, is in its terms, minimalist and minimal, still the accused has not met his burden to establish insufficiency. [ 39 ] As for a sub-facial challenge, Crevier at para. 74: “On a sub-facial challenge, the burden likewise rests on the accused to establish the warrant’s invalidity.

A sub-facial challenge, however, goes behind the ITO “to attack the reliability of its content.” Arujo, at para. 50. Any errors and inaccuracies in the ITO are excided, but can be amplified by evidence as long as the errors or inaccuracies ere made in good faith. In determining the sub-facial validity of a warrant, the reviewing judge inquires into whether, based on the record as amplified on review, “ there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued”. (Arujo, at para.51).

An accused might, for instance, challenge the credibility and reliability of the ITO affiant through cross-examination. This could serve to undermine the reliability of the affiant’s statement in the ITO, including the information attributed to the confidential informer: see e.g. R. v.

Brown , [2013] ONCS 2848, 282, C.R.R. (2d), at para. 115.” [ 40 ] The deleted portions of the ITO added to the disclosed information could certainly convince the authorizing judge that the source was credible and reliable. [ 41 ] As stated earlier, the ITO could have been more explicit, for example that the source was paid and other additional accessory information.

But even then, one must acknowledge that if in the past the source gave information that led to an arrest, it could amount , with the deleted information and without any other information concerning payment and track record of the source, to credible and reliable information for the authorizing judge. [ 42 ] The fullness of an ITO is always relevant when considering full and frank disclosure and sufficiency to determine if the authorizing judge had reasonable and probable grounds to issue.

But again the nature and scope of a police investigation added to the necessity of protecting the identity of a source impose limitations that cannot be bypassed, when writing a ITO. [ 43 ] The Court concludes that the accused has not met his burden as for a sub-facial challenge and that overall the information was credible, reliable, compelling and corroborated, considering the totality of the circumstances. [ 44 ] Even if the Court had concluded to an invalid warrant and thus a Charter breach under

section 8, the question of the exclusion of evidence collected following the execution of the warrant would remain. [ 45 ] The exercise includes the balancing of the three following parameters - Seriousness of the State conduct in relation with the breach; - Impact on the rights of the accused protected by the Charter; - Society’s interest in an adjudication on the merits. [ 46 ] The first parameter relates to the conduct of the State, the police. In the case at bar, neither bad faith, wilful blindness or ignorance surfaced during cross-examination of both police officers.

The exparte hearing did not reveal any hidden motives or a reprehensible pattern that would bring the Court to dissociate itself from the conduct of the two police officers. [ 47 ] As for the impact on the specific right of the accused protected by the Charter , the accused, as a Canadian citizen, has a high expectation of privacy concerning his home, his apartment.

The illegal intrusion of the State in one’s home is one of the most serious breaches and the Court in such a situation must closely examine the impact of admitting the evidence on the public, who expect judicial decisions confirming the respe ct of their rights guaranteed by the Charter. [ 48 ] Finally the interest of society dictates admission of evidence in seeking the truth in a trial but not at the cost of bypassing the methods utilized to gather evidence. Society requests that persons who commit crimes be dealt with according to the law.

On the other hand, the same society would rather see exclusion of evidence as a remedy, in flagrant cases of State misconduct.

[ 49 ] Here, the information given by the informant is credible and the exclusion of the evidence means the end of the prosecutor’s case, since no other evidence is available. [ 50 ] The alleged offences are quite serious and their objective gravity is significantly high. [ 51 ] Considering the absence of bad faith and the absence of a pattern of misconduct, given the seriousness of the breach and the interest of society that favours in this specific case admission, the Court would have rejected the exclusion demand under section 24(2) of the Charter .

FOR THESE MOTIVES THE COURT DISMISSES the motion for exclusion; __________________________________ DANIEL BÉDARD, J.C.Q. M e Audrey Simard Prosecutor M e Ronnie E. Macdonald Prosecutor’s defendant