R. v. Wisdom, 2012 ONCJ 54

Citation: R. v. Wisdom , 2012 ONCJ 54 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN -AND- DWIGHT WISDOM AND JULIETA GONZALES-SANTONJA Before Justice T. Lipson Reasons released on February 3, 2012 Ms. B. Olesko ............................................................................................................ for the Crown Mr. R. Posner ............................................................................... for the applicant Dwight Wisdom Ms. J.

Goldenberg....................................................................................for the applicant Julieta Gonzales- Santonja Lipson J.: RULING ON CHARTER APPLICATION [ 1 ] The applicants, Dwight Wisdom and Julieta Gonzales-Santonja, pleaded not guilty to charges of unauthorized possession of a firearm, possession of a restricted firearm with ammunition, careless storage of a firearm, possession of a firearm obtained by the commission of an offence, careless storage of ammunition, unauthorized possession of a prohibited device, possession of proceeds of crime, possession for the purpose of trafficking cocaine and marijuana and three counts of trafficking cocaine. [ 2 ] Police officers searched the applicants’ residence at apartment 303, 37 Durnford Road, Scarborough.

The search warrant authorized a search of “a dwelling unit located at 37 Durnford Road” but did not specify any apartment number. Inside the apartment, the officers seized a loaded firearm, ammunition, crack cocaine and marijuana. Mr. Wisdom and Ms. Gonzales seek an order directing a stay of proceedings pursuant to section 24(1) of the Charter on the basis that their rights guaranteed by sections 7 and 8 were violated. In the alternative, they submit that the evidence obtained as a result of the search of their apartment should be excluded pursuant to section 24(2) of the Charter .

Overview of the evidence on the application [ 3 ] On Tuesday, February 8, 2011, members of the Toronto Police Services East Drug Squad commenced surveillance of Dwight Wisdom. The impetus for this operation was information from a confidential source that Wisdom was trafficking in cocaine. The surveillance continued for three days until Wisdom and his girlfriend Ms. Gonzales were arrested on February 10, 2011. The court heard evidence that during the surveillance period, Wisdom conducted four “hand to hand” drug transactions.

He used a black Chevrolet Impala for three of the transactions and was on foot for the other. Immediately prior to every transaction Wisdom was seen leaving the apartment building at 37 Durnford Road. None of the officers conducting the surveillance saw any drugs being exchanged nor did they obtain confirmatory evidence that these were, in fact, drug transactions. [ 4 ] The last observed hand to hand transaction took place around 2:15 p.m. on February 10, 2011. Ms. Gonzales was driving the Impala and Wisdom occupied the front passenger seat.

The Impala parked near a low-rise apartment complex on Ling Road in Toronto. A man approached the front passenger side of the car and put his hand through the open passenger window, handing something to Wisdom who then handed something to the man. The man then walked back to the complex. Police continued to follow Gonzales and Wisdom for the next thirty six minutes. During that time the Impala was driving in an increasingly erratic manner. It travelled on both quiet residential streets and busy roadways. It made some u-turns and went through two gas station parking lots without stopping. D.C.

Spencer, the “road boss” in charge of the investigation, determined that the applicants were engaging in “counter-surveillance” and that his team’s cover had been compromised. He ordered a takedown of the Impala. At 2:56 p.m. the applicants were apprehended by the police as their car was waiting at a red light to exit the off-ramp of the 401 Highway at Meadowvale Road and arrested for trafficking in cocaine. D.C. Wallace observed what he thought to be a small unpackaged piece of crack cocaine on the front passenger seat. The piece weighed 0.01 grams but would later test negative for cocaine.

There were also two cell phones located beside the front passenger seat. [ 5 ] At approximately 3:07 p.m. police obtained a key from Ms. Gonzales for apartment 303 at 37 Durnford Road. D.C. Spencer determined that there existed exigent circumstances which necessitated the police to freeze and secure the premises pending the issuance of a search warrant. D.C. Spencer, Detective Sergeant Shanks and D.C. Douglas left the arrest scene in order to secure the

apartment. They entered at 3:22 p.m. They remained in the apartment for eight minutes before leaving to await the arrival of a searchwarrant. [6] D.C. Spencer testified that during this warrantless entry he observed in plain view on the kitchen table a bullet and in thekitchen some cooking utensils with what appeared to be cocaine residue and a digital scale. [7] In the meantime, D.C. Warrener was back at the police division preparing the information to obtain (ITO) a searchwarrant.

In the ITO he included information that the police had received from the confidential informant, details about the surveillanceteam’s observations of the alleged hand to hand transactions, the discovery of the alleged crack cocaine on the car seat at the time ofarrest and the observations made by D.C. Spencer during the warrantless entry of the cooking utensils with cocaine residue, the digitalscales and the bullet in the apartment. [8] At 6:20 p.m. on February 10, 2011 a justice of the peace issued a telewarrant to search “a dwelling unit located at 30Durnford Road”.

Officers located a loaded 45 calibre semi-automatic handgun in a bedroom closet as well as ammunition, a quantity ofcrack cocaine and marijuana as well as approximately $8000 in cash. [9] Dwight Wisdom testified that following his arrest, officers searched the Impala. He recalled that D.C. Wallace said helocated a speck of unpackaged crack cocaine on the front passenger seat. Wisdom testified that there was no crack cocaine on the seat.He admitted that he had stored a handgun in his bedroom closet as well as a bag of bullets in a dresser. Wisdom said that he didn’t knowthe gun was loaded.

He had just received the gun the night before the search and was planning to sell it the next day. He asserted thatthere were no bullets on the kitchen table or in Ms. Gonzales’ gym bag as the police claimed and that there were no drugs in plain view.He said that he stored his supply of cocaine on top of the stove in a cupboard and that the marijuana was in a closet drawer. Wisdom tookissue with the surveillance officers’ observations. He claimed that he never conducts his drug deals in plain sight.

The first observedhand to hand transaction on February 8 was conducted inside the Impala and not through the driver’s side window. The first transactionon February 9 was not a drug deal but involved the purchase of some Pro-Line lottery tickets. The second transaction on February 9 tookplace inside the Impala and involved Wisdom buying some marijuana from a friend. The fourth alleged transaction which took place onFebruary 10 involved a discussion with someone about the purchase of drugs but no money or drugs were ever exchanged. The

section 8 Charter application Did the warrantless entry prior to the issuance of the search warrant constitute a breach of

section 8? [10] The Crown submits that the purpose of the warrantless entry of the applicants’ apartment by the police was to secure thepremises and to prevent the destruction of evidence. Thirty six minutes elapsed between the last alleged hand to hand transaction and thearrest. During that time the Impala was travelling in a manner which caused the officers to suspect that Wisdom and Gonzalez realizedthey were being followed. The takedown took place on the off ramp of Highway 401 by Meadowvale Road. There were two cellularphones in the Impala.

The Crown submits that because of the high volume of traffic at the arrest scene and the public visibility of Mr.Wisdom who, according to D.C. Spencer, was well known in the area, exigent circumstances existed to justify an unauthorized entry intothe applicants’ apartment to freeze and secure the residence pending the issuance and receipt of the search warrant.

The Crown relies onsection 11(7) of the Controlled Drugs and Substances Act (CDSA) which permits a peace officer to search and seize evidence without awarrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain one. TheCrown submits that the officers acted lawfully pursuant to that authority. [11] The applicants submit that the Crown has not demonstrated that exigent circumstances existed to justify the warrantlesssearch.

Further, it is submitted that the officers did more than simply “freeze’ the apartment as they claimed but also engaged in anunauthorized search of the apartment and this constituted a serious breach of the applicants’

section 8 Charter right. It is submitted thatno artificial line should be drawn between the entry into the home of the applicants and the subsequent seizure of the gun, ammunitionand drugs pursuant to a search warrant because the two actions were intertwined in time and in their nature. [12] While the CDSA does not define "exigent circumstances", the Criminal Code does provide some reference as to whatmight be included as an exigent circumstance: 529.3

(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law,the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to insection 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in thedwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would beimpracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entryinto the dwelling-house is necessary to preventimminent bodily harm or death to any person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-houseand that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [13] In R. v. Grant, (SCC), [1993] 3 S.C.R. 223 the Supreme Court of Canada examined when exigentcircumstances might exist so as to authorize a search or seizure without warrant.

The court noted at para 32 that "[e]xigent circumstanceswill generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if thesearch or seizure is delayed." In R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, Cory J. for the majority agreed that thequestion as to whether exigent circumstances have been made out should be determined on a case-by-case basis. [14] In R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260 (B.C.C.A.), police officers entered an accused's dwelling

without a warrant, looked around to ensure no one was present and then waited outside until the warrant arrived. The accused had justbeen arrested in the underground parking lot of the building in which he was living and police believed that the accused's girlfriend hadwitnessed the arrest and was in a position to destroy evidence. The court held as follows, at para. 17: There remains only one question to be answered in determining whether there was a breach of the appellant's s. 8 rights. Does this searchfit within the allowance for warrantless searches under s. 11 of the Controlled Drug and Substances Act?

To fall within the authorizinglegislation, section 11(7) of the Controlled Drugs and Substances Act, two conditions must be satisfied, the conditions ordinarilyrequired to obtain a search warrant must be present, and exigent circumstances must exist which make it impracticable to obtain a searchwarrant. [15] In examining the circumstances of the warrantless entry the court stated that the "existence of exigent circumstancesinvolves the subjective belief of the police, and the objective basis for the belief." On the facts in McCormack, the court held that it wasreasonable for the police to believe that evidence could be destroyed.

See also R. v. Castro, 2001 BCCA 507, 157 C.C.C. (3d) 255,application for leave to appeal dismissed [2001] S.C.C.A. No. 533, where the Court found on the facts that there was a "real risk" thatthe accused could have been tipped off by an acquaintance (para. 49). See especially R. v. Damianakos (1997), (MBCA), 121 C.C.C. (3d) 293 (Man.

C.A.) where the fact that a highly visible public "take down" of two individuals who had just left theaccused's premises and police concerns that the accused might be "tipped off" did not constitute exigent circumstances so as to justify awarrantless entry into the dwelling. [16] In the recent decision of R. v. Kelsy 2011 ONCA 605 (Ont. C.A.), the court considered the exigent circumstance doctrine.Rosenberg J.A. observed at para. 35 that it is the nature of the exigent circumstances that make some less intrusive investigatoryprocedure insufficient.

By their nature, exigent circumstances are “extraordinary and should be invoked to justify violation of a person’sprivacy only where necessary”. [17] Assuming that the police had reasonable grounds to obtain a warrant, I am of the view that the Crown has not establishedthat exigent circumstances existed to justify the warrantless entry in this case. While there was a basis for the officers to suspect that theircover had been compromised in light of the evasive driving, there is no evidence that either Wisdom or Gonzales had done anything toalert others to remove or destroy any items in their residence.

The police had no information that anyone was attempting to remove ordestroy items at the residence. The mere presence of cell phones in the Impala is not evidence that the applicants called anyone toremove or destroy items at the residence. During the entire surveillance of the applicants, no one other than Wisdom and Gonzales wasseen entering or leaving the building at 37 Durnford Road. The police had no information that others had access to the applicants’apartment.

The presence at the scene of the arrest of random motorists who happened to be stalled at the off ramp at the time due to thetakedown did not create exigent circumstances to justify a warrantless entry. The Crown did not lead evidence of the proximity of theresidence to the arrest scene except that it took the officers some fifteen minutes to drive from the scene of the arrest to 37 DurnfordRoad.

Nor did the police attempt less intrusive measures to secure the residence such as simply guarding the apartment and building exitsbefore deciding that it was necessary to make the entry pending receipt of the search warrant. [18] Even if exigent circumstances did exist, it seems to me that they arose solely out of the manner in which the police chose tostructure their operation.

Further, I cannot dismiss the suggestion made by the applicants that the location and manner of the takedownwas likely a tactic to lay the foundation for the warrantless entry. [19] The case law in this area is summarized by Hill J. in R.v.N.M as follows: As a general rule, the existence of exigent circumstances cannot be justified on the basis of the police operationally causing anemergency. In other words, as observed in R. v. Burlingham (BC CA), (1993), 85 C.C.C. (3d) 343 (S.C.C.) at 407,exigency cannot be justified where “the police created an artificial situation of urgency”.

Similarly, in Silveira, at para. 69, 85, 91 and94, La Forest J. (in dissent) noted that but for the way in which the police “chose to sequence their actions” leading to “police-createdexigencies” the urgency would not have arisen and, in acting as they did, the officers “created their own exigent circumstances andshould not be permitted to use them as a justification for circumventing the law”. Otherwise, observed La Forest J. at para. 84, thisapproach to exigent circumstances “would give the police little incentive to acquire a warrant in advance”.

Other authorities toorecognize that circumstances described as exigent, and therefore purportedly supportive of exceptional warrantless police activity, oughtnot to be contrived or unreasonably the product of police actions: R. v. Greffe (SCC), (1990), 55 C.C.C. (3d) 161(S.C.C.) at 192 (no “immediate necessity” to conduct search to prevent loss of evidence); Caslake, at 108 citing Doherty J., as he thenwas, in R. v. Lim (No. 2) reflex, (1990), 1 C.R.R. (2d) 136 (Ont.

H.C.) at 146 (re considering the “police motives” for the timing of thesearch); Bohn, at 332 (“The reason to hurry the search along was created by the decision of the police to go ahead that night, rather thanwait until the next day”.); R. v. Damianakus (MB CA), (1998), 121 C.C.C. (3d) 293 (Man. C.A.) at 304-5. [20] The police followed the Impala for over half an hour as it travelled in a seemingly aimless manner. D.C. Spencer, the “roadboss” of the police team, testified that Ms.

Gonzales was driving on several different streets, making u-turns, changing directions, anddriving through gas station lots without stopping. Well before ordering the take down, Spencer suspected that the applicants wereengaged in counter surveillance. As he and his team followed the Impala, he determined that “they might possibly be getting ‘hinky’, youknow suspicious or perhaps notice that we were following…. Rather than lose the target due to the driving, I made the executivedecision to arrest both parties.” D.C.

Spencer acknowledged that he could have ordered the takedown sooner and on other roadways withfar less volume than the off-ramp of the 401 at Meadowvale. When asked about his decision to freeze the applicants’ apartment until thesearch warrant was prepared, D.C. Spencer explained that there was a high volume of traffic at the takedown location and Mr. Wisdomwas “well-known” in the area. He testified “You never know in regards to the circumstances when taking down an individual whether,(

a) because it takes a couple of seconds, whether he is on the phone. I don’t recall him being on the phone but, (

b) he could press dial atthe time we were coming up –making our way to the car and just giving a heads up, so to say, and due to the high velocity of traffic andthe circumstances we just wanted to ensure no destruction of evidence at the residence.” In my view, this type of speculation about thepossible destruction of evidence falls well short of what is required to establish exigent circumstances for a warrantless search. [21] D.C. Spencer, D. C. Douglas and Detective Sergeant Shank participated in the warrantless entry. The officers testified thattheir purpose in doing so was to “freeze” the apartment. In the ITO at para. 53, the affiant asserted that the “surveillance team has

secured the address at 37 Durnford Road and had not searched pending this search warrant information.” However, the evidence in thisapplication tends to establish that the officers probably conducted a search. [22] The three officers were in the applicants’ small two bedroom apartment for eight minutes from 3:22 p.m. to 3:30 p.m. Incross examination, D.C. Spencer agreed that it took very little time, perhaps a minute or less, for the officers to determine that no onewas in the apartment. Instead of leaving the apartment to await the warrant, all three officers remained inside for at least six minutes.

Incross examination D.C. Spencer claimed that during this period of time he was making phone calls to other officers at the arrest sceneand at the police division. The Crown and defence then obtained D.C. Spencer’s cell phone records which show that no phone calls weremade during the time he and the other officers were in the apartment. When recalled to the witness stand, Spencer suggested that hiswatch must have been running several minutes fast.

That explanation is implausible, given that this experienced drug squad officer wasnot only in charge of the team but also responsible for recording times during this part of the investigation. There is no issue that theofficers spent a significant period of time in the apartment and I am driven to conclude that they took the opportunity to have a good lookabout the place to determine if there were was evidence to seize once the warrant arrived. [23] There is another troubling aspect relating to D.C. Spencer’s account of the warrantless entry.

He testified that he observed“in plain view” a bullet on the kitchen table as well as cooking utensils with what appeared to be cocaine residue on them as well as adigital scale. Strangely, D.C. Douglas and Detective Sergeant Shank neither observed nor heard about these very significant findings nordid they make any note of what Spencer said he observed. The information about the cooking utensils with cocaine residue and thedigital scale was conveyed by Spencer to D.C. Warrener at the station for inclusion in the ITO. The difficulty with Spencer’s evidence isthat it was D.C.

Douglas who seized those items after the search warrant was issued. And those items, according to Douglas, were not inplain view but stored in a kitchen cupboard above the stove in a “Superman” bag along with some zip lock bags of marijuana. I acceptthe evidence of Douglas that he seized the scale and utensils from the cupboard.

I am driven to conclude that Spencer must have comeacross these items because he was conducting a search of the kitchen cupboards during the warrantless entry, contrary to the assertion inthe ITO that no search was conducted during the warrantless entry. [24] The defence suggested that the three officers took the opportunity to search the apartment during the warrantless entry tobolster their grounds for obtaining a warrant or even to determine whether it was worth their effort to apply for a search warrant. Neithersuggestion can, in my view, be dismissed.

In any event, I am satisfied that the entry was made not simply to secure the residence but alsofor the purpose of finding evidence to confirm that Wisdom was involved in trafficking cocaine. [25] This warrantless entry and search was not authorized by law and infringed the applicants’

section 8 rights. Could a search warrant have properly issued? [26] In a

section 8 Charter application, the court reviewing a search warrant ITO does not stand in place of the justice of thepeace who issued the warrant. The governing principles were summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99: A reviewing judge does not substitute his or her view for that of the justice who issued the warrant.

Rather, the reviewing judgeconsiders the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, butamplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remainssufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, atparas. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.992, at paras. 54 and 59: R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1452; and R. v.

Wiley (SCC),[1993] 3 S.C.R. 263, at pp. 273-274. [27] The existence of fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence or theomission of facts material to the exercise of discretion to issue a warrant are all relevant to the review of a warrant and relate to whetherthere continues to be any basis for the decision of the authorizing judge. [28] In determining the sufficiency of the warrant, I propose to first address the offending portions of the ITO which should beexcised for the purpose of this review. [29] The first portion of the ITO which must be excised relates to the information obtained from the confidential informant [30] The ITO states that in 2011, the confidential source purchased crack cocaine from Wisdom.

This information provided theimpetus for the drug squad officers to conduct surveillance on the applicant between February 8 -10. The confidential source alsoprovided information that Wisdom was dealing “large quantities of crack cocaine”. All of the information in the ITO that may haverelated to the reliability of the informant was redacted by the Crown and cannot be considered by this court.

The only reference to theinformant’s alleged reliability is found at page 20 of the ITO which states, “The confidential source has been proven reliable in thisinstance to the affiant as several items of information have been corroborated throughout the investigation.” The redacted ITO does notdisclose those items of corroborated information. Crown counsel did not ask the court to consider the unredacted version.

Where theaffiant relies on information obtained from a police informer, the reliability of the information must be apparent to the reviewing court toassess in light of the totality of all the circumstances: Garafoli at pp 1456-1457. The redacted version of the ITO does not contain anyindicia of reliability about the confidential informant or the information offered.

Therefore the assertions that the accused sold theinformant crack cocaine and dealt in large quantities cannot be considered as support for the issuance of the warrant. [31] Another problematic portion relates to the alleged “quantity of unpackaged crack cocaine” found on the front seat of theImpala. This item did not test for crack cocaine and must be excised from the ITO. [32] Then there is the reference in the ITO to the bullet, the cooking utensils with cocaine residue and the digital scales all saidto have been observed by D.C. Spencer during the warrantless entry.

The alleged cocaine residue on the utensils did not test for cocaine.Second, as found earlier in these reasons, all of this information was obtained in the course of an unconstitutional search and cannot beused to uphold the issuance of the warrant.

[33] After excising the incorrect, misleading and unconstitutionally obtained information, what properly remains in the ITO forconsideration is Wisdom’s criminal record and the information concerning the alleged hand to hand transactions. [34] Mr. Wisdom has a lengthy criminal record for drug trafficking and firearm offences. He has also been convicted of thecommission of an offence for a criminal organization.

His most recent conviction was in February 2010 for trafficking in cocaine.Evidence of an investigative target’s criminal past is often relevant and can be included to show his propensity to commit the sort ofcrime being investigated. This can assist in demonstrating reasonable grounds to believe that the offence under investigation has beencommitted and the target is involved: R. v. Debot (1986), (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.) at pp. 220-221affirmed (1989), (SCC), 52 C.C.C. (3d) 193 (S.C.C.); R. v.

Storrey (1990), (SCC), 53 C.C.C. (3d) 316(S.C.C.) at pp. 319, 324. [35] The evidence of the unconfirmed hand to hand transactions also supports the position of the Crown that there werereasonable grounds to believe that Wisdom was engaging in drug trafficking. The quantity and nature of the drug involved in theseapparent hand to hand transactions are not known. In the ITO, the affiant pointed to Wisdom’s behaviour of repeatedly going under thedriver’s seat and the use of the Impala for the purpose of conducting the hand to hand transactions.

He wrote; “It is common ground fordrug traffickers to hide narcotics inside their vehicle in natural voids or specially prepared hidden compartments. The affiant has beeninvolved in investigations where this occurred.” I am satisfied that the ITO established reasonable grounds to search the Impala, quiteapart from any search incidental to arrest. [36] The real issue is whether there were reasonable grounds to believe that drugs and/or other evidence of drug trafficking werein the applicants’ apartment. In the ITO, the affiant based his belief upon the plain-view observations of D.C.

Spencer during thewarrantless entry and, specifically, at paragraph 55(d) “that during the securing of 37 Durnford Road, revealed evidence in plainevidence (sic) of the preparation of powder cocaine to crack cocaine. This would indicate that Wisdom received bulk quantities ofpowder cocaine and makes his own crack cocaine to maximize profit”. Had this important evidence been constitutionally obtained andnot excised from the ITO, I am of the view that there would have been reasonable grounds to search the apartment.

However, for thereasons given earlier, that evidence cannot be used to uphold the warrant. [37] The Crown submits that there is a sufficient nexus between the apartment and the hand to hand transactions to establishreasonable grounds to believe that drugs would be found in Wisdom’s residence. Immediately prior to each transaction, Wisdom wasseen leaving 37 Durnford.

On one occasion he walked across the street to conduct a hand to hand transaction in a strip mall parking lot.On the remaining occasions, he left the building, got into the Impala and drove to a location to conduct what were believed to be hand tohand transactions. Since Wisdom had not stopped anywhere else along the way before these transactions, the Crown submits that it isreasonable to believe that he would have had the drugs on his person when he left the apartment. [38] Support for the Crown’s position is found in R. v. Soto 2011 ONCA 828 (Ont. C.A.).

In that case the police had reliableinformation that the accused was dealing cocaine. Officers also saw Soto leave his building, get into his car and engage in two apparenthand to hand transactions.

In endorsing the trial judge’s decision to uphold the search warrant, MacPherson J.A. observed that this set offacts spoke to “an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediatelyengages in two drug transactions, it follows there is a good chance that there are drugs in his residence.” [39] There are important features in this case which distinguish it from Soto. The most obvious is, of course, that in Soto, theofficers did not engage in an unconstitutional search prior to the search warrant being issued.

In Soto there was compelling and reliableinformation from a confidential informant that the accused was dealing “large amounts” of powder cocaine. The affiant also swore that,in his experience dealers, like the accused, need a “safe house’ to store their product and that Soto’s residence was that safe house.

Thatkind of information provided strong support for a reasonable belief that drugs would be located in Soto’s residence but, by contrast, is notfound in the ITO used in this case. [40] It should also be noted that in Soto, the ITO contained reliable evidence that the accused actually resided at the location tobe searched. Here the ITO does not establish a sufficient nexus between Wisdom and the apartment that was to be searched. There issome evidence that Wisdom and Gonzales were in a relationship. They worked out together at a gym.

They were observed entering andleaving 37 Durnford together and rode in the same car. Mr. Wisdom had a key to the apartment building. The ITO states that the tenantdirectory lists Ms. Gonzales as residing in apartment 303. In fact, the tenant directory did not list Ms. Gonzales’ apartment number. Ms.Gonzales was once seen at the window of what officers thought was apartment 303 throwing down a plastic bag to Mr. Wisdom onFebruary 9. From this observation, the officers believed that she resided in apartment 303.

The only reliable evidence that Wisdom alsolived in apartment 303 came when the officers conducted an unconstitutional search prior to the warrant being issued. The ITO did notcontain information as to whether Wisdom lived with Ms. Gonzales or happened to be an occasional visitor. [41] The general governing principle for this review was expressed by Blair J.A. in R. v.

Nguyen 2011 ONCA 465 at para 57 asfollows: “...the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and asamplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant couldbe issued. Police conduct is clearly relevant to that consideration.

However, the review is not an exercise in examining the conduct ofthe police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point whereit is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. [42] After excising the offending portions of the ITO, I am of the view there is an insufficient basis upon which the justice couldhave issued the warrant.

This is not the kind of case involving an ITO that is flawed by minor, careless or confusing statements notintended to mislead the issuing justice. The most compelling reason found in the ITO to believe that drugs were in the applicants’apartment must have been the information from D.C. Spencer of the suspected cocaine residue, drug paraphernalia and the bullet duringthe course of an unconstitutional search on the part of the police prior to the issuance of the search warrant.

The ITO was misleading intwo crucial ways- that the warrantless entry was based on legitimate exigent circumstances and also that the officers did not engage in asearch of the apartment while waiting for the warrant. Had the issuing justice known the facts as disclosed by the evidence in this

application, the search warrant could not have properly issued. [43] Even if it could be said that the ITO itself provided reasonable grounds for the warrant to issue, there can, in my view, beno artificial division drawn between the unlawful entry into the apartment by the police and the subsequent search pursuant to thewarrant. As put by Cory J, in Silveira at para. 140: The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them inorder to claim that, although the initial entry was improper, the subsequent search was valid.

Does the failure to specify the applicants’ apartment in the search warrant invalidate the warrant? [44] Exhibit 13 is the telewarrant used in this case. This warrant only authorized a search of “a dwelling unit located at 37Durnford Road, City of Toronto, Province of Ontario”. The address at 37 Durnford Road is an apartment building.

The warrant fails tospecifically authorize a search of apartment 303 which is where the applicants resided. [45] The learned authors of The Law of Search and Seizure (8th ed.) point out at p.87 that “the search warrant process islocation-critical and a high degree of precision is expected in both the supporting documents and the warrant itself...Vagueness in thedescription of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises and remedialconsequences under the Canadian Charter of Rights and Freedoms”.

The authors cite Re McAvoy (1971), (NWTTC), 12 C.R.N.S. 56 (N.W.T. Terr. Ct) where Morrow J. stated at p.65, “To avoid search warrants becoming an instrument of abuse ithas long been understood that if a search warrant...fails to accurately describe the premises to be searched...then it will be invalid.” [46] In R. v. Parent

(1989) Y.J. No. 15 (Y.T.C.A.) the face of the warrant did not contain the address to be searched. Thiswarrant in question was held to be invalid due to this defect. As a warrantless search, the search was unreasonable within the meaning ofsection 8 of the Charter.

Locke J.A. stated the following: However, the learned trial judge excused the omission on the basis of the fact that the justice of the peace was not misled, that the searchhad been made at the dwelling described in the Information, that no one was present in the house, and that the whole amounted to a meredefect in form which had no impact and made no difference to the outcome. With respect, the validity of the warrant is not to be testedeither by the results or manner of execution, but by the circumstances at the time of authorisation.

It is true that the justice's mind wasdirected to the premises but the failure to express it on the face of the warrant, and thus to justify a blanket search surely cannot beplaced in the same category as an inconsequential defect in form, or a misspelling or trivial error in the description of premises, whicherrors, (in the eyes of the Court of Criminal Appeal at least) would not necessarily invalidate a warrant. Regina v. Atkinson, [1976]Criminal Law Review 307. The Crown conceded that there was a serious defect on the face of the warrant.

I find without difficulty that this is an invalid warrant: itwas in a form not authorised by law, offending in a major way against the law of the land. It is not a mere matter of a procedural defect,but so fundamental as to render the document of no legal effect. The Queen v. Collins, (SCC), [1987] 1 S.C.R. 265 at278, Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486 at 512. (And see also the discussion in the Supreme Courtof Canada in Genest v.

The Queen Jan. 26, 1989 unreported.) [47] The Crown fairly concedes that the search warrant is invalid because it did not specifically authorize the police to searchthe applicants’ apartment. Because what took place amounted to a warrantless search, it was unreasonable within the meaning of section8 of the Charter. [48] In

summary, I am persuaded that the

section 8 right of the applicants to be secure against unreasonable search and seizurewas violated in three ways: 1. The first entry and search prior to the issuance of the warrant lacked exigent circumstances and was not justified in law. 2. There was an absence of reasonable grounds to justify the issuance of a search warrant for the apartment. 3. The search warrant was facially invalid because it did not specifically authorize a search of the applicants’ residence. The

section 7 Charter application [49] Before moving to the appropriate remedy for the

section 8 breach in this case, I propose to address the

section 7 Charterapplication. Counsel for the applicants applied for a stay of proceedings pursuant to section 24(1) of the Charter on the basis of analleged

section 7 breach. It was submitted that the police fabricated evidence in order to obtain a search warrant. This argument is basedlargely on Mr. Wisdom’s testimony on the application. He claimed that he never engaged in the hand to hand transactions in the mannerdescribed by the surveillance officers. Mr. Wisdom also claimed that D.C. Spencer fabricated evidence that there was a bullet and drugparaphernalia on the kitchen table or that there was a bullet in Ms. Gonzales’ gym bag. Mr. Wisdom denied that there was anythingresembling crack cocaine on the front seat of the Impala at the time of the arrest. [50] The court’s reasons for finding a

section 8 breach are critical of important aspects of the police investigation and conduct inthis case. This court doubts D.C. Spencer’s account of why he ordered the warrantless entry of 37 Durnford, as well as his testimonyabout what he saw and what he and his fellow officers did during that entry. However, there is no credible evidence to support anallegation that the officers engaged in inventing or planting the evidence that they seized in the car or the apartment. I am satisfied thatD.C. Wallace did find something he believed to be crack cocaine on the front seat of the Impala.

The information was communicatedimmediately to D.C. Warrener who was drafting the ITO. As well, the item was submitted for testing and it turned out not to be cocaine.Wisdom also admitted that there was a loaded firearm, ammunition and drugs in the apartment. As for the police observations of the“hand to hands”, Wisdom admitted that he was, in fact, selling, purchasing or discussing a drug deal in all but one of the incidentsobserved by the surveillance officers. Wisdom’s main dispute was only that he did not engage in any of these alleged transactions in plainview.

While there is an obvious conflict between the evidence of the applicant and that of the officers on this point, there is no credible

evidence that the police invented evidence that Wisdom was engaging in trafficking or that he had drugs and a gun in his apartment. Bythe applicant’s own admission, he was either selling or buying drugs in two of the alleged hand to hand transactions. Mr. Wisdom alsoadmitted possession of the gun, ammunition and drugs. [51] I am not persuaded that there was a

section 7 Charter breach. Should the evidence be excluded pursuant to section 24(2) of the Charter? [52] The court has found that there were multiple breaches of the applicants’

section 8 Charter rights.

Should the court excludethe evidence of the seized items pursuant to section 24(2)? [53] The analytic framework for exclusion of evidence under s. 24(2) is set out in the Supreme Court of Canada decision in R. v.Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 71 as follows: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether,considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns,while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determinationas enunciated in Collins and subsequent jurisprudence. 1.

The Seriousness of the Breach [54] This first line of inquiry “requires the court to assess whether the admission of evidence would bring the administration ofjustice into disrepute by sending a message to the public that the courts…effectively condone state deviation from the rule of law byfailing to dissociate themselves from the fruits of that the unlawful conduct”: Grant at para. 72.

The majority in Grant explained that thecourt “must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whomthe rule of law requires to uphold the rights guaranteed by the Charter”: State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained throughinadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end of thespectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect onthe public confidence in the rule of law, and risk bringing the administration of justice into disrepute: Grant at paras. 73-74. [55] The seriousness of the breaches is obvious. The officers engaged in a warrantless search of the applicants’ home not only tosecure the residence but also, in my view, to find evidence in order to bolster their grounds for obtaining a search warrant.

Their conductwas deliberate and demonstrated a wilful or reckless disregard of the applicants’

section 8 Charter rights. The breach is aggravated bywhat I have found to be misleading testimony from D.C. Spencer, the team’s road boss, that no search occurred prior to receipt of thewarrant and that he observed the cooking utensils with cocaine residue and scales in plain view. As well, for the reasons given earlier,there were insufficient grounds to support the issuance of a search warrant for the applicants’ apartment. The issuance of an invalidsearch warrant must be placed on the serious end of that spectrum referred to in Grant.

Finally, the search warrant itself, no doubtthrough inadvertence, did not authorize a search of the applicants’ apartment. This is, of course, a major defect on the face of the warrant.In executing an invalid search warrant which omits any mention of the apartment to be searched, the police acted in a highly carelessmanner which further aggravates the seriousness of the other

section 8 breaches in this case. 2. The impact of the breach on the Charter-protected interests of the accused [56] It is well established that a dwelling house attracts a high expectation of privacy and that an illegal search of a person’shome constitutes a significant breach of the person’s right to be free from unreasonable search and seizure: Silveira at para. 148.

At para.78 of Grant, the majority stated that an unreasonable search on an area “where the individual reasonably enjoys a high expectation ofprivacy…is more serious than one that does not.” The two illegal searches of the applicant’s home point strongly to exclusion of theevidence of the seized items. 3. Society’s interest in the adjudication of the case on its merits [57] The police seized a loaded handgun and a sizeable quantity of cocaine. The charges are very serious. The evidence isreliable and probative. The seized items are central to proof of the charges against the applicants.

All of these factors militate in favour ofadmitting the evidence. However, as the majority in Grant pointed out at para. 84: …it is the long-term repute of the justice system that is s. 24(2)’s focus ... The short-term public clamour for a conviction in aparticular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the publichas a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in havinga justice system that is above reproach, particularly were the penal stakes for the accused are high. Balancing the Grant factors

[58] Cromwell J. recently pointed out in R. v. Cote 2011 SCC 46 , [2011] S.C.J No. 46 (S.C.C.) that once there has beena determination on the first and second Grant factors that the Charter violation or violations were serious, the factors of the seriousnessof the offence, the reliability of the evidence and the importance of the evidence to the Crown’s case are not determinative and shouldnot lead to admission. Because of the very serious nature of the

section 8 breaches and the impact on the applicants’ Charter protectedinterests, those factors in favour of admission do not, in my view, outweigh the significant harm to the long-term repute of theadministration of justice were the seized items to be admitted. While the information to obtain targeted drugs, I appreciate that this isprimarily a gun case and that Mr. Wisdom has a serious criminal record for drugs and firearms. But in the end, it is the Charter-infringing conduct by the police here from which the court should be most concerned about dissociating itself.

The exclusion of theseized items is the only course open to the court in order to prevent the administration of justice from falling further into disrepute as aresult of that conduct. [59] For all of the above reasons the evidence of the items seized is excluded pursuant to section 24(2) of the Charter. Released: February 3, 2012 Justice T. Lipson